The Law Times Reports

This is a reproduction of a library book that was digitized
by Google as part of an ongoing effort to preserve the

information in books and make it universally accessible.
https://books.google.com
THE
LAW TIMES REPORTS

OF
Cases Decided
IN
THE HOUSE OF LORDS, THE PRIVY COUNCIL ,

THE COURT OF APPEAL ,
THE CHANCERY DIVISION , THE QUEEN 'S BENCH DIVISION , THE
PROBATE, DIVORCE , AND ADMIRALTY DIVISION ,
THE QUEEN' S BENCH DIVISION IN BANKRUPTCY,
THE COURT FOR THE CONSIDERATION OF CROWN CASES RESERVED
AND THE RAILWAY AND CANAL COMMISSION COURT:
VOLUME LXII.
FROM MARCH TO AUGUST 1890 .
LONDON :
HORACE COX, 10 , WELLINGTON STREET, STRAND , W . C .
LONDON :
PRINTED BY HORACE COX , WELLINGTON STREET, STRAND, W .C.
94334
THE REPORTERS
OF THE CASES IN THIS VOLUME.
HOUSE OF LORDS, by C. E.MALDEN,Esq., Barrister-at-Law . CHANCERY DIVISION (continued )

PRIVY COUNCIL , by C . E . MALDEN, J. P. ASPINALL, and Before MR. JUSTICE STIRLING, by A . J. HALL, A . PULLING,
L . S. BRISTOWE, and W . IVIMEY COOK, Esqrs., Barristers
BUTLER ASPINALL, Esqrs., Barristers -at- Law . at-Law .
Before MR. JUSTICE KEKEWICH, by G .MACAN and F . GOULD,
Esqrs., Barristers-at-Law .
QUEEN ' S BENCH DIVISION . by H . LEIGH , A . H . LEFROY ,
W . H . HORSFALL, R . M . MINTON -SENHOUSE, W . ORR , and
MERVIN LL . PEEL , Esqrs .. Barristers -at- Law .
SUPREME COURT OF JUDICATURE. IN BANKRUPTCY,by W . B. Yates, Esq., Barrister-at-Law .
COURT OF APPEAL, by FRANK EVANS, W . C . Biss, A . J .
SPENCER , A . H . BITTLESTON, E . MANLEY SMITH , J . HERBERT | PROBATE, DIVORCE, AND ADMIRALTY DIVISION
WILLIAMS, J . P . ASPINALL, and DUTIER ASPINALL, Esqrs.,
Barristers -at- Law .
PROBATE BUSINESS,
Barrister-at- Law . by H . DURLEY-GRAZEBROOK, Esq .,
DIVORCE BUSINESS, by H . DURLEY-GRAZEBROOK, Esq ,
Barrister -at- Law .
ADMIRALTY BUSINESS, by J. P. ASPINALL and BUTLER
HIGH COURT OF JUSTICE. ASPINALL , Esqrs., Barristers-at- Law .
CGANCERY DIVISION
Before MR, JUSTICE KAY, by E . A . SCRATCHLEY and F. E .
ADY, Esgrs., Barristers-at Law . CROWNParrister
CASES RESERVED ,by R . CUNNISJUAN Gr.En, Esq.,
-a . .Law .
Before MR. JUSTICE CHITTY , by G . WELBY KING anul
A COYSGARNE SOM , Esqrs., Barristers-at-Law .
Before MR. Esqrs.,
JEFFERY, JUSTICEBarristers-at-Law
NORTH, by J. .R. BROOKE and G . E . | RAILWAY AND_CANAL
HORSFALL COMMISSION
, Esq ., Barrister -at- Law . COURT, by W . H .
INDEX
TO
THE NAMES OF THE CASES

REPORTED IN THIS VOLUME.
I.- INDEX TO PLAINTIFFS.

Barne, re ; Lee v. Barne ...................page 922
Allen v. Oakey ........ ......page 724 Barrett v.Day ; Day v.Foster, 43 Ch. Div. 435 597
American Braided Wire Company v. Thomson Barton v. The London and North -Western
and Co., 44 Ch. Div . 274 ......................... 64 Div . 77 Company (Ct. of App.), ...........
Railway 24 Q . B .
164
American Braided Wire Company v. Thomson Batavier, The (Ct. of App.), 15 Prob. Div . 37 406
and Co. (Ct. of App.),44 Ch . Div. 274 ...... Bate, re ; Bate v. Bate, 43 Ch. Div. 600 ...... 559
American Pastoral Company, re................... 625 Batten, Proffitt, and Scott v. The Dartmouth
Arbitration between Gallop and The Central Harbour Commissioners . .. . . .. .. . . . 851
Queensland Meat Esport Company, re,
25 Q . B . Div. 230 ........... ............. 834 Benyon v . Benyon and O 'Callaghan, 15 Prob .
Arbitration between Hammond and Waterton , Div. 29 .......... . . .... .. ... 329
re ...... . .. ... ... .. .. .. . .. .. ... .. ... .. ... ... .. .. ... ... 808 Benyon v. Benyon and O 'Callaghan (Ct. of
Arbitration between the London , Tilbury, and App.) 15 Prob . Div. 54 ............ ...... 381
Southend Railway Company and the Berridge, re; Berridge v. Turner ............... 365
Trustees of the Gower's-walk Free Schools, Blankenstein v. Robertson , 24 Q . B . Div . 543 732
re (Ct. of App.), 24 Q . B . Div . 326 ............ 306 Blundell v. Blundell (Ct. of App.), 44 Ch . Div. 1 620
Arbuthnot v . Bunsilall ..... ............... 234 Booth v. Ratté (Priv. Co.), 15 App. Cas. 188 198
Armstrong, Samuel (deceased), In theGoodsof 184 Bourke v. Davis, 44 Ch. Div. 110..................
Arratoon Apcar, The (Priv.. . Co.), 15 App. Bradshaw v. Huish , 43 Ch . Div. 260 .............
Cas. 37 ............ . . . . . . . . . . . . . . . . . . . . . . . 331 Brighton and Dyke Railway Company, re
Atkins v. Shephard (Ct. of App.) ............... 337 (Čt. of App.), 44 Ch. Div. 28 . . . . . . . . . . . . . . . . . . 353
Atkinson and another v. Atkinson and another 735 Brinkley v. The Attorney-General, 15 Prob .
Atkinson o. The Bradford Third Equitable Div. 76 ........... .......... .. 911
Benefit Building Society (Ct. of App .)...... Bristol, Cardiff, and Swansea Aerated Bread
Attorney-General v. Emerton and others (Ct. Company Limited v.Maggs...................... 416
of App .) ......... .... . .. . . .. . . . . . . . . .. . .. 21 Bristol Joint Stock Bank Limited, re 745
Attorney -General v. Thecbald , 24 Q . B. Brown v. Commissioner for Railways (Priv .
Div. 557.... .................. ... 768 Co.), 15 App. Cas. 240 .......... 469
Brown, re; Walsh v. Browne ................... ... 899
Browne v. Collins .......... 566
Bryant and Cullingford to Barningham , re,
44 Ch . Div. 218 .. 53
Babin (deceased ), In theGoods of .............. 185 Buckle v. Fredericks (Ct. of App .),..........
44 Ch. ..
Badham v. Badham and Gorst ....... .. . .. . . .. .. 663 Div. 241 ........... .. . . . .. .. . . . 88 +
Bagot v. Bagot ............... 612 | Buckley v. Royal National Lifeboat Institu
Baker, re; Nichols v. Baker (Ct. of App), tion (Co. ofApp.).......
44 Ch. Div . 262 ........... .......... Building Societies Trust Limited, re ; ex
Barker v. Fleetwood Improvement Commis parte Laughton ; ex parte Pooley, 44 Ch.
sioners .......... .. ... ......... 831 Div . 140 .... . .. . .. . . .. 360
Barlow and others v. Ross (Ct. of App.), Burningham v. Burrage ............................ 752
24 Q . Div. 381.
B. 552 | Burrage, re; Burningham v. Burrage ........ 752
vi- Index.] THE LAW TIMES. (Oct. 18, 1890.
PLAINTIFFS.
Burton -on - Trent, Mayor, Aldermen ,and Bur Coupe v. Collyer........ ..........page 927
gesses of (apps.) v. The Assessment Com Crawford v. Forshaw ,43 Ch . Div. 643 ......... 63
mittee of the Burton -on -Trent Union and Crawshay, re; Crawshay v."Crawshay, 43
the Churchwardens and Overseers of the Ch . Div . 615 ......... " ....... 489
Township of Stretton (resps.) (Ct. of App.), Crisp v. Thomas .......................................... 810
24 Q . B . Div. 197 ........................... .page 412 Crown Bank Limited, re ........... 823
Burton -on - Trent,Mayor , Aldermen ,and Bur:
gesses of (apps.) v. The Churchwardens and Cuno, re ; Mansfield v. Mansfield (Ct. of App.) 15
Overseers of the Parish of Egginton and Curwen v. Milburn (Ct. of App.).................. 278
others (resps.) (Ct. of App.), 24 ..Q.... ....
197 . ....... ....
B . ......
Div . 412
Butler v. Butler, 15 Prob. Div. 32 ............... 123
Butler v. Butler (Ct. of App.), 15 Prob . Div.
126 .......... ...... 477
Butler v. Butler ; Butler v. Butler and Burn Dale and Plant Limited,re, 43 Ch. Div . 255 215
ham (Ct. of App .), 15 Prob . Div. 66 . .... .... 344 Dale , re ; Stubbs v. Dale .............. ... ... 28
Darbishire v. Darbishire and Baird ............ 664
David , re ; Buckley v. Royal National Life 141
boat Institution (Ct. of App.)
Davies and Co. v. André and Co. ............... 298
Davies v. Hetherington......... . . . . . . .. . . . . . . . 753
Caistor Union,Guardians of (apps.),v. Over Daries, re ; Issard v. Lambert (Ct. of App.),
seers of North Kelsey (resps.). ... .... .......... 731 44 Ch. Div. 253 . . . . . . . . . . . . 715
Caldwell v. Matthews ..... 799 Davis (app.) 2. Stephenson (resp.), 24 Q . B .

Cardiff Savings Bank, re ........... ............ 628 DawDiv.529..... .. .........
Carisbrook, The, 15 Prob. Div. 98 ... ... ..... ... .. . 843 and Son (apps.) v. The London County
Carlisle, re; Clegg v. Clegg, 44 Ch. Div. 200 821 DayCouncil (resps.) ... ...... ............................ 937
v. Foster, 43 Ch. Div. 435 .. ....... 597
Cashmere, The, 15 Prob. Div. 121 ............ .. 814 De Lossy v. De Lossy, 15 Prob. Div. 115 ...... 704
Central Bank of London Limited v .Hawkins; Devonshire, Duke of, and others v. O 'Connor
The Consolidated Credit Company Limited , (Ct. of App.), 24 Q . B . Div. 468 ..... ....... ... 917
Claimants............ ................ ..... 901
Ceto, The (H . of L.) ........ .... ... ... Dickinson v. Dickinson .............................. 330
Charterhouse School, Governing Body of, v. Dicks v. Hare (Ct. of App.), 44 Ch. Div. 236 819
Lamarque, 25 Q . B . Div. 121 . .................. 907 Dillon , re ; Duffin v . Duffin (Ct. of App ), 44 .
Christ's Hospital and others, Governors of, Ch . Div . 76 ........... ........... ... 614
v . The Charity Commissioners (Priv. Co.), Dixon (app.) v. Wells (resp ), 25 Q. B . Div.
15 App . Cas. 172........... 10 249 .................. ......... .... 812
City of Lincoln , The (Ct. of App.) ...... ...... 49 Dodds, re M . B .; ex parte Executors of
Vaughan ; re J. Dodds ; ex parte Same ... 837
Clark v. Sonnenschein , 25 Q . B. Div. 226 ...... 8801 DoréGallery
Clegg v. Clegg, 44 Ch . Div. 200 .................. 82 Limited, re ....... .............. 758
Clegg v. Hands (Ct. of App.) ..................... 502 Dreyfus and Co. v. The Peruvian Guano Com
pany (Ct.of App.), 43 Ch. Div. 316 ......... 518
Clook , Jabez James (deceased ), In the Goods Duffin v . Duffin (Ct. of App.), 44 Ch. Div . 76 614
of, 15 Prob . Div . 132 ..... 607
Clutterbuck v. James ... ... .. .......... 454 Duke of Buccleuch, The (Ct. of App.), 15 Prob.
Cochrane v. Entwistle and others (Ct.of App.), 852 Duke Div . 86 ..... ...vercosse....... . .. 94
25 Q . B . Div. 116 of Devonshire and others v. O 'Connor
Colley v. Hart,44 Ch. Div . 179 .................. (Ct. of App.), 24 Q . B . Div. 468 ............... 917
Duke of Norfolk (app.) v. Lamarque
Colquhoun (Surveyor of Taxes) (app.) v. 155 (Surveyor of Taxes) (resp .), 24 Q . B. Div.
Heddon ( resp.), 24 Q . B. Div. 491 ............ 548 ..... ... ... .... ... ............................... .. 153
Colquhoun v. Heddon (Ct. of App.), 25 Q . I . 53 Duncan v. Dixon, 44 Ch . Div , 211, ................. 319
Div. 129 ............ .......... 8
Constantine, The... 236
Cook v. Cook, 15 Prob. Div. 116 ........ ........ 667
Cook v. Whellock (Ct. of App.), 24 Q . B. Div . 675
658 ............
E.
Cooke v. Smith ........ ... ......... 156 East and West India Dock Company, re
Cooke v. Smith (Ct.of App.),44 Ch. Div . 72 . 712 (Ct. of App.), 44 Ch. Div . 38 ........ . ...... 239
Cope, William Hobson (deceased ), In the Ecclesiastical Commissioners to King ......... 635
Goods of, 15 Prob . Div . 107 ................... .. 500 Eddowes v. The Argentine Loan and
Coriolanus, The, 15 Prob. Div . 103............... Mercantile Agency Company Limited ... ... 602
Cornish v. Cornish, 15 Prob. Div. 131 ......... 667 Eddowes v. The Argentine Loan and Mer
Cotterill cantile Agency Company (Co. of App.)...... 514
Div. 634(app.) v. Lempriere (resp.), 24 Q . B .
. . .. .. . .. .. . .. . . .. . . .. . . .. . . .. . .. .. .. . . .. . 695 Edevain v. Cohen (Ct. of App.), 43 Ch. Div . 17
Coulson v. Dickson (Ct.of App.), 25 Q . B . Div . 187) .......... . ....... .........
110 .... 479 | Edwards to Daniel Sykes and Co. Limited,re 445
Oct. 18, 1890.] THE LAW TIMES. [ Index - vü
PLAINTIFFS ,
Elder v. Carter (Ct. of App.), 25 Q . B . Div.

194 ......... ............page 516 1.
Ellam v. Ellam ....... .. ............... ...... 331
Empire Mining Company, re, 44 Ch . Div.402 493 Halifax Company v. Sugar Refining
Endeavour, The ...... Francklyn ............ .. . .... .page 563
.......... 840 Hammond and Waterton, re An Arbitration
Evans v. Roberts............. .. .. .... 33 between .................... . . .. . . .. . . . . .. 808
Harg reaves, re; Dicks v. Hare (Ct. of App.),
44 Ch . Div . 236 ............... ... .... . 819
Hargreaves,re; Midgley v. Tatley (Ct.of App.), 73
43 Ch . Div . 401 4
Fairclough v. Roberts, 24 Q . B . Div . 350 ...... Harris v. Knight (Ct. of App .) .................. 507
Farrar v. Cooper, 44 Ch. Div . 323 ............... Hart v. Colley, 44 Ch . Div . 193 .................. 623
Ferguson-Davieand others v.Ferguson -Davie, Hawke v. Cole......... .............. 658
15 Prob . Div . 109 ................. Hayv. Justices of the Tower Division ,
Field v. Hopkins.............. 24 Q . B . Div. 561 .................. .................. 290
.......... 102 Headington
Field v. Hopkins (Ct. of App.) .................. Union , Guardians of (apps.), v.
The Guardians of the Ipswich Union
Finck v. The London and South -Western (resps.), 24 Q . B . Div. 414 ........................ 547
Railway Company (Ct. of App .), 44 Ch. Headington Union ,Guardians of,v.Guardians
Div . 330 ........ ................. 881
Flower , re ; Matheson v.Gondwyn ............... 2167 ofDivIpswich
143
Union (Ct. of App.), 25..........
Q . B. 786
. ............
Flower,re; Matheson v.Goodwyn (No. 2) ... 67 Hemming v. Neil ......... .................. 649
Fox, re; Fox v. Fox 762 Henderson v. Bank of Australasia . 869
Francesco v . Barnum ....... .................. 40 Hermanos, re Artola ; ex parte Chale (Ct. of
Frank v.Muzeen , 43
to Ch.
un DIVDiv.. 630 . . . . . . . . . .. . . 423 App.) .......... ... 781
Freeman , re ; ex parte Freeman .................. 367 Hermod , The ..... .. .. ... ... .......
670
French , re ; ex parte French (Ct. of App.), Hickman (app.) v. Birch (resp.), 24 Q . B .
24 Q . B . Div . 63 ......... .. .... ..... 9 Div. 172 ... . . . . .. . . . . . .. . . . . . . . . . 113
French -Brewster v. French -Brewster ; French 60 Highgate, The ......... ............. 841
Brewster v. French -Brewster and Gore ... 9 Hind, re ; ex parte Hind ............ 327
Frost, re ; Frost v. Frost, 43 Ch. Div. 246 ... 25 Hobbs and Co. Limited v. Hudson and Co ,
25 Q . B . Div . 232 ......
Fry o. Fry (Ct. of App.), 15 Prob.Div. 50 ... 501 Hoby . .. .. . . . .. . 764
and Co. Limited v. Birch .................. 404
Hodgson v. Bell (Ct. of App.), 24 Q . B . Div.
525 ........................ 481
G . Holmes, re ; Holmes v. Holmes ....
Holtby v. Hodgson ; Bateson, Garnishee (Ct.
Gallop and The Central Queensland Meat of App.), 24 Q . B . Div. 103 ... .
Export Company, re ; An Arbitration Hooper
Co
and Co. v. Balfour, Williamson, and
between , 25 Q . B . Div. 230 ..... ... ... .... ...... 834 Co. .. . . . . ............. 616
Garrard v. Edge (Ct. of App.), 44 Ch . Div . Hopkins v. The Smethwick District Local
224 .............. ........................... 510 Board of Health (Ct. of App .), 24, Q . B .
Gas Light and Coke Company v. South Div . 712 ............. 783
Metropolitan Gas Company ( H . of L .) ... ... 126 d and another v.Goodley , 25 Q. B . 736
HubDivbar. 156
Gatling Gun Limited , ra, 43 Ch. Div.628 ... 312 ......... ......... ............ .
Giles, re ; Real and Personal Advance Com . Huish , re; Bradshaw v. Huish , 43 Ch. Div .
pany Limited v. Michell (Ct. of App.), 375 .. .. .. ... ... ... .. .. ... .. ... ... ... ... . ... ... .. 52
43 Ch. Div. 391 ... ........... Hulton, re ; Hulton v. Lister (Ct. of App.) ... 200
Giles v. Walker, 24 Q . B . Div . 656 ............... 933 Hume v . Somerton , 25 Q . B . Div . 239 ... ....... 828
Glasier v. Rolls (Ct. of App .) ..................... 133 Hunt, re ; Davies v. Hetherington ............ 753
Glasier v. Rolls (Ct. of App.) ....... ............... 305
Glasscock v. Balls (Ct. of App.), 24 Q . B.
Div. 13 .......... 163
Gooch, re ; Gooch v. Gooch ........................ 384 I.
Gra y th
v. Smi (Ct. of Ap p.), 43 Ch. Div. 208 335 Irwin v. Irwin and Layard .. 612
Great Northern Salt and Chemical Works
Company Limited ,re, 44 Ch. Div. 472 ...... . 231 Issard v. Lambert (Ct. of App.), 44 Ch. Div.
253 ... ... .......... 715
Gresham Life Assurance Society (apps.) v.
Styles (Surveyor of Taxes) (resp.), 24 Q . B .
Div . 500................................................ 464
Griffith r , The Ystradyfodwg School Board ,
24 Q . B . Div. 307........ 151
Grubb v . Grubb ................ ........ 644 | Jacobs v. Schmaltz ...... 121
Guy v. Churchill (Ct. ofApp.)....... 132 | James, re ; Clutterbuck v. James .............. 45 +
vi — Index.] THE LAW TIMES . [Oct. 18, 1890.
PLAINTIFFS.
Jobson , re ; Jobson v. Richardson , 44 Ch. London and Westminster Bread Company
Div . 154 ..............page 148 Limited , re .............. ..................page 224
Johnson v .Wild , 44 Ch . Div. 146 ............... 537 Lorrimar, re ; ex parte Constable ............... 943
Jones, re; ex parte Jones, 24 Q . B . Div. 589... 370 Lowe, re ; ex parte Lowe .............................. 263
Jones v. Padgett and Co., 24 Q . B . Div . 650 ... 934 Lyell v. Kennedy ; Kennedy v. Lyell (H .
Jones v. Simes, 43 Ch. Div . 607 .................... 447 of L .) .... 72
Jones v. Watts, 43 Cb. Div .574 ............. ... 58
Jones v.Watts (Ct. of App.),43 Ch. Div. 574 471
K. McAlpin v. Macdonald ......... 541

Keeling v. Smith ........ Macartney v. Garbutt and others, 24 Q . B .
Div. 368 ............ .......... .......... 656
Kennedy v. Kennedy and Schurch ............ Macdonald , re ; McAlpin v . Macdonald ...... 541
Kennedy v. Lyell (H . of L .) .................. McGrath , re ; ex parte The Chief Official
Ker v. Dent ................ Receiver, 24 Q . B . Div. 466 .. . . . . . ....... . . . . 122
Kinahan and Co. v. Kinahan and Lyle and Mackenzie v. Childers, 43 Ch . Div. 265......... 98
Kinahan Limited
ved . . . .. .. .. . . .. . . . . . 718 McLardy v. Slateum , 24 Q . B . Div . 504 ...... 151
King v. The Charing Cross Bank, 24 Q . B .
Div. 27 ............ Macnee v. The Persian Investment Corpora 89
42
King and Cordner (apps.) v. Rawlings (resp.) 293 tion Limited , 44 Ch. Div. 306 .... ... .. . .. ..
King, re ; Salisbury v. Ridley. 789 Mainwaring (deceased), re ; Crawford o. For
shaw , 43 Ch . Diy . 643 ... .................... 63
King v. Whitten .......... ...... ... 391 Manchester, Overseers of the Township of, v.
Knill v. Towse, 24 Q . B . Div. 186 , 697 ......... 259 Guardians of Ormskirk , 24 Q . B . Div.
678 . ............ 66 }
Manchester Royal Infirmary , re ; Manchester
Royal Infirmary v . Attorney-General, 43
Ch. Div .420 .......... . ... 419
Manningv.Commissioner of Titles (Priv . Co.),
Lang v. The Whitecross Company Limited ... 119 15 App. Cas. 195 .......... .............. 373
Law Guarantee and Trust Society Limited Mansfield v. Mansfield (Ct. of App.)............ 15
and Hunter v. The Bank of England, 24 Marine and General Land, Building, and
Q . B. Div . 406 ............. ........ 496 Investment Company Limited , re ............ 723
Lawrance v. Lord Norreys and others ( H . of Marquis of Northampton v. Pollock ........... 313
L .), 15 App . Cas. 210 ..... .......... Matheson v.Goodwyn .......... .................. 216
Lawrence v . Horton ....... ... .............-... 749 Matheson v.Goodwyn (No. 2) ..................... 677
Learmonth v. Learmonth and Austin ......... 608 Maule v.Maule and others ........................ 702
Lebanon, Owners of the, v. Owners
Ceto ; The Ceto ( H . of L .).............
of the Mayor v. Collins, 24 Q. B . Div. 361 ............ 326
Lee v. Barne ..................................... ...... 922 Meadows (app.) v. Taylor (resp.), 24 Q ..B. .... .Div .
717 .... . .. .. . .. .. . .. . .. 658
Lehmann , re ; ex parte Hasluck .................. 941 Memnon , The (H . of L .) ...........................
Lennox Publishing Company Limited , re ; ex Metropolitan Coal Consumers' Association
parte Storey ............ .. .. .... Limited , re; Grieb's case........................ 561
Lister v. Lister (Ct. of App.) .................... 90 Metropolitan Coal Consumers' Association
Lister and Co. v. Stubbs ......... ............... 654 Limited , re ; Wainwright's case............... 30
Little v . London Joint Stock Bank ............ 427 Meyerstein and Co.'s Trade Mark “ Satinine,"
Liverpool, Brazil, and River Plate Steam re, 43 Ch. Div . 604
Navigation Company v .Campanhia Bahiana Midgley v. Tatley (Ct. of App.), 43 Ch. ......
Div . 473
de Navegacio a Vapor ; The Memnon (H . 401
of L .) .... .... ... ....................... ... ... .......... 84 Midland Railway Company v. Robinson
Liverpool Household Stores Association , re .. 873 ( H . of L .), 15 App. Cas. 19 ........ .............. 194
Lloyd ,re ; ex parte Lloyd .. ... ... .. ............ 366 Miles, Rebecca (deceased ), In theGoods of ... 607
Locke, re ; ex parte Poppleton ..................... 9-12 Milnes v. Foden , 15 Prob. Div. 105 ............ 498
London Library (apps.) v. Carter (Surveyor .. . . . .. . .. 466
Morris, re ; Morris v. Fowler, 44 Ch. Div .
of Taxes) (resp.) ........... 151 ........ .. .. . . . .. . . . ..
.. . 758
London and North-Western Railway Com Moxon v. The Berkeley Mutual Benefit Build .
pany v. Boulton .................................... 393 ing Society ............. .. ......... 250
don Ste
LonThe ams hip Ins ura nce Asso ciat ion v. Moxon v. Sheppard , 24 Q. B. Div . 627 ......... 726
Grampian Steamship Company (Ct. of
App.) 24 Q . B. Div. 663 ........................ 784 Murray v . Watkins .. .... .. 796
London , Tilbury, and Southend Railway Mustapha,Mustapha
of
(deceased), In the Goods
............ 006
Company and the Trustees of the Gower 's.
walk Free Schools, re An Arbitration Myers v.Catterson (Ct. of App.), 43 Ch. Div.
between (Ct. of App.), 24 Q . B . Div. 326 ... 306 ' 470 ...... . .. .......... 205
Oct. 18, 1890.] THE LAW TIMES. [Index - ix
PLAINTIFFS .
Phillips v. Cayley (Ct. of App.), 43 Ch . Div.

2:22 ... . . . . . . . . . . . . . . ...............page 86
Phillips v. Homfray ..... ..... ........... 897
National Permanent Mutual Benefit Build Phillips v. Ivel Cycle Company ................... 392
ing Society , re, 43 Ch . Div. 431 .........page 596 Phillips v. Thomas............ ........................ 793
Neil, re ; Hemming v. Neil .......... 649 Portuguese Consolidated Copper Mines Lim
Nerill, re ; Robinson v . Nevill... 864 ited , re ; Badman's case ; Bosanquet's case 179
Newbald v. Beckitt ........ 533 Portuguese Consolidated Copper Mines Lim
New Eberhardt Company Limited , re ; ex ited, re; ex parte Steele (Ct. of App.) ...... 88
parte Menzies (Ct. of App .)...................... 301 Postlethwaite v . Port Philip and Colonial
Newman v. London and South -Western Rail Gold Mining Company Limited, 43Ch. Div.
way Company, 24 Q . B . Div . 454 ............ 290 452 .............................
... .. ... .. .. . .. .. .. ... ... ... ... ... .. ... .. ... ... .. 60
Nichols v. Baker (Ct. of App.), 44 Ch. Div . Pound (Henry), Son , and Hutchins Limited ,
262 ....... ........ .... . ...
.................... 817
re (Ct. of App.) ....... ..... ...... ..
Nie Niemann (Ct. of App.), 43 Ch.
mann v. ..............
Div . 198
Priest v. Uppleby (Ct. of App.) .................. 270
............... ... ............ ............ 339 Purves v. The Wimbledon and Putney Com
Nizam 's (His Highness The), Guaranteed mons Conservators ................................. 529
State Railways Company Limited (apps.) v. Pyle Works Limited, re ............................ 226
Wyatt (Surveyor of Taxes) (resp.), 24 Q . B .
.................. 765 Pyle Works Limited, re (Ct. of App.) ......... 887
Div. 548 ...... ... ..
Norfolk , Duke of (app.), v. Lamarque (Sur
veyor of Taxes) (resp .), 24 Q . B . Div . 485... 153
North Australian Territory Company Lim R.
ited , re .... .............. .. . . .. . . . . . 556
Rawlings (app.) v. Oliver (resp.), 24 Q ............
Northampton , Marquis of, v. Pollock ......... 313 . B.Div. 293
Nouvion v. Freeman
Cas. 1 .. ......
(H . of L.), 15 App.
PP 189 394 ..
Rawlings (app.) v. Wilkinson (resp.) 24 Q . B.
Div. 394 .................. .................. ............. 293
Real and Personal Adrance Company Limited
v.Michell (Ct. of App.), 43 Ch . Div. 391... 375
Reed v. Nutt, 24 Q . B . Div. 669 .... .............. 635
Oddy (deceased), In theGoods of .... 643 Rees v. Richmond .................................... 427
Rees, re ; Williams v. Davies, 44 Ch. Div. 484 362
Old (app.) v. Robson (resp.) .......... Reg. v. Barker, 25 Q . B . Div . 213 ................ 578
Oliver v . Hunting, 44 Cb. Div. 205 ........... 108
Oliver, re ; Newbald v . Beckitt 533 Reg . v. Barnardo, 24 Q. B. Div . 283 ............ 44
Reg. v. The Bishop of London (Ct. of App.),
Olive's Trusts, re,44 Ch . Dir . 316 ............... 24 Q . B . Div . 213........... 167
Onslow and others (apps.) v. The Commis Reg. v. J. Bridge, Esq. (Metropolitan Police
sioners of Inland Revenue (resps.), 24 . . .. . .. . .. . . .. . .. 297
Magistrate), 24 Q . B . Div . 609......
Q . B . Div . 584 ........... .......... 461 Reg . v. The Deputy Judge of the Croydon
Opera Limited, re ........... ... .. ..... County Court (Ct. of App.) ..... 583
Orchis, The (Ct. of App.), 15 Prob. Div . 38 ... Reg. v. Evans and others ........... .... ... 570
O 'Shea v. O 'Shea and Parnell; ex parte Reg. v. James, 24 Q . B. Div. 439..... 578
Tuohy (Ct.of App.), 15 Prob. Div.59 ...... Reg. v . The Judge of the Bloomsbury County
Otto v. Singer .......... . ......... 220 Court and Cattle , 24 Q . B . Div . 309 ......... 286
Reg. v. The Justices of Bromley ..................
Reg. v. The Justices of the County of London,
24 Q . B . Div. 341........ ............ ... . 458
Reg. v. The Justices of Glamorganshire ,
PainDiv (app.) 0. Boughtwood (resp.), 24 Q . B. 24 Q . B . Div.675. .. ..... . . . .. . . . .
. 353 ...... ..... . ...... 2884 Reg . v. The Justices of Upper Goldcross .. .... 112
Palmer, re W . B. (Ct. of App.) ........ .. . . . . . .. 77 Reg. v. Miles, 24 Q . B . Div. 423 .................. 572
Parker o. Duncan ......... . . . . . .. . . . . . 642 Reg. v. Paul, 25 Q . B . Div . 202 ................... 845
Reg . v. Solomons....... . .. ... ... ... ... .. ... ... ... 672
Parnell v. Walter and another, 24 Q . B . Div.
441 ... ... ....... Reg. v. The Vice-Registrar of the Office of
Pareons o. Brand ; Coulson v. Dickson (Ct. Land Registry, 24 Q . B . Div. 178 ............. 117
of App.), 25 Q . B. Div. 110 ........ 479 Reg. on the prosecution of Richard West
Parsons, re ; Stockley v. Parsons ... ... 929 brook v . The Vestry of St. Pancras (Ct. of
Partridge v. General Council of Medical App.), 24 Q . B . Div. 371 ........................
Education and Registration of the United Reg. v. Whitchurch and others, 24 Q . B . Div.
Kingdom (Ct. of App.), 25 Q . B . Div. 90 ... 787 420 .................. .................. ..................
Petition for Dissolution of Marriage, re A ; 186 Reilly v. Booth (Ct. of App.), 44 Ch . Div. 12 378
ex parte Russell ................... Rhodes,re; Rhodes v. Rhodes, 44 Ch. Div. 94 22
Pharmaceutical Society of Great Britain v. Rhodes, re ; Rhodes v. Rhodes (Ct. of.....App.),
...... 342
Wheeldon , 24 Q . B . Div. 683 ................... 727 | 44 Ch . Div. 94 .....
X - Index.] THE LAW TIMES. [Oct. 18 , 1890.
PLAINTIFFS .
Richardsand Co.v. Butcher and Robinson page 867 | St. Martin's Vestry (apps.) v. Gordon
Rickett v. Sharp ........ 364 (resp .) ..... ...........Page 835
Rickett v. Sharp (Ct. of App.) ................ ..... Stockley v. Parsons 929
River Derwent, The (Ct. of App .) ............... 45 Stokes, re; Stokes v. Ducroz .... 176
Roberts, re ; Evans v. Roberts ... ... ... ....... .. Storer and Co. v . Johnson and Weatherall
Robertson , re (a Solicitor) ........ ..... .... (H . of L .), 15 App. Cas. 203...... ........ 710
Robertson v. Hartopp (Ct. of App.), 43 Ch. Strutt v. Tippett (Ct. of App.) ..................
Div. 484 .................................................... 585 Stuart v. Diplock (Ct. of App.), 43 Ch. Div. 343 333
Robinson v. Jenkins and another ; Bebro , Stubbs v. Dale................. .. ................ 28
Claimant (Ct. of App.), 24 Q . B . Div. 275 439 Stubbs v. The Director of Public Prosecu
Robinson v. Nevill ...... ............... 864 tions, 24 Q . B . Div . 577 ............ ................ 399
Rocke v. McKerrow (Ct. of App.), 24 Q . B . Styles v. Stylesos und
and Jacks on . .. . . . . . . .. . . . . . . . . . . 613
Jackson
Div. 463.. ............... ...... 556 Sunderland 32nd and 36th Universal Building
Rogers and Co. v. Lambert and Co., 24 Q . B . Societies, re ; King and Cordner (apps.)
Div. 573 ........... .... 694 v . Rawlings (resp.) ; Rawlings (app.) v.
Russell, George Brown (deceased ), In the Oliver (resp .) ; Same v. Wilkinson (resp.),. 293
Goods of, 15 Prob. Div. 111 ......... 044 24 Q . B . Div . 394......................................
Ryley (app.) v. Brown (resp.) ..................... Sutton and Co. v. Ciceri and Co . ( H . of L .),
15 App . Cas. 144 .............. ........................ 742
SwaDivine v. Wilson (Ct. of App.), 24 Q . B .
. 252 .. ............ 309
Swift v. Swift, 15 Prob. Div . 118 ............... 669
Salford , Mayor, & c. of, v. Lever, 24 Q . B . Div .
695 ............. 434 T.
Salisbury v. Ridley ...... 789
Salmon, re; Priest v . Uppleby (Ct. of App.) 270 Tamplin , re; ex parte Barnett. 264
Scott and Mitchell, re ; ex parte Scott ......... 840 Tancred, Arrol,and Co. v. The Steel Company 738
Scottish Economic Life Assurance Society of Scotland (H . of L.), 15 App. Cas. 125 ...
Limited , ex parte....................................... 926 | Taylor v. Russell ...... . . . . .. . . .. 922
Searle v. Cooke (Ct. of App.), 43 Ch. Div.519 211 Taylor v. Soper .......... .............. 828
Serle v . Fardell and Co ., 44 Ch. Div. 299 ....... 359 Taylor, re ; Turpin v. Pain , 44 Ch. Dir . 128 ... 754
Sharp, re ; Rickett v. Sharp (Ct. of App.) ... 364 Tendring Union , Guardians of, v.............. Dowton
805
Sharp, re ; Rickett v. Sharp (Ct. of App .) ... 777 and Slimon .................. .....
Shaw , Savill, and Albion Company v. The Theobald v. Theobald , 15 Prob. Div . 26 ......... 187
Timaru Harbour Board (Priv. Co.) .......... 913 | Thompson and Holt 's Contract, re, 44 Ch.
Sheffield and South Yorkshire Building Div . 492 .. .......... 651
Society v. Aizlewood,44 Ch. Div. 412 ...... 678 Thynne v. Shove...... 803
Shepherd, re; Atkinsv. Shephard (Ct.ofApp.) 337 Tilbury v. Silva . . . .. . . . . . . . 254
Shoolbred (James ) and Co. (apps.) v. The Tomkinson v. Consolidated Credit and Mort
Justices of St. Pancras (resps.), 24 Q . B . gage Corporation Limited (Ct. of App.) ... 162
Div. 346 .............................................. 287 Tomlin v. Luce (Ct. of App.), 43 Ch. Div. 191 18
Sibun v. Pearce and the East Dulwich Townend v. Sheriff of Yorkshire, 24 Q . B .
Building Society , 44 Ch. Div. 354 ............. 388 Div. 621 ...................... ... ... .................... 402
Simes, re ; Simes v. Newbery ..................... 721 Tregaskis, re; ex parte Tregaskis ............. 605
Simmons v . London Joint Stock Bank ; Little Trubner v. Trubner and Christiani 186
v . Same ............ .......... ... ..................... 427 Tupper v . Tupper and Terrell............. .......... 665
Smart v. Tranter (Ct. of App.),43Ch.Div.587 356 | Turnock v. Sartoris (Ct. of App.) ............ 209
Smith, John (deceased), In the Goods of,...... 183 Turpin v. Pain , 44 Ch. Div . 128 .............. 754
Smith, re ; Keeling v. Smith ..................... 181 | Tussaud v. Tussaud ........... 633
Smith v. Smith (Ct. of App.), 15 Prob .Div. 47 237
Smith (app.) v. Thomasson (resp.) ............... 68 U.
Smithett v . Hesketh , 44 Ch. Div . 161 .......... 802
Solicitor, re A ; ex parte The Incorporated Usher and others (apps.) v. Luxmore (resps.) 110
Law Society, 25 Q . B . Div. 17................... 567 Uxbridge and Rickmansworth Railway Acts,
Southern v. Southern ...... .......... 668 re (Ct. of App.), 43 Ch. Div. 536 ............ 347
Spackman , re ; ex parte Foley (Ct. of .App.),
. . .. . . .. 84 9
* 24 Q . B . Div . 728 ..........
Spackman , re ; ex parte May ..................... 266 V.
Standard Portland Cement Company,re ...... 822
Starcy v. The Chilworth Gunpowder Manu Vadala and Co. v. Lawes, 25 Q . B. Div . 310 ... 701
facturing Company, 24 Q . B . Div. 90 ...... 73 Van Gelder, Apsimon, and Co. v. Sowerby
St. James and St. John, Clerkenwell, Vestry Bridge United District Flour Society, 44
of (apps.), v. Feary (resp .), 24 Q . B . Div. 703 697 | Ch. Div. 374.... ........ 105
Out. 18 , 1890.) THE LAW TIMES . [Index - xi
PLAINTIFFS .
Vestry of St. James and St. John , Clerken | Weston v. The New Guston Company (Ct. of
well (apps.), v . Feary (resp.), 24 Q . B . Div . App.)................. ...........page 275
703 .......... page 697 | Whatley v. Holloway . ...... 639
Vibert v. Coles (Ct. of App.), 24 Q . B . Div. 364 551 Whitby v. Mitchell (Ct. of App.),44 Ch. Div.
85 .......... ...... ... . 771
White v . White and Jerome......... ................. 663
w. Whitehurst (app.) v. Fincher (resp.)............ 433
Whittaker v. Kershaw (Ct. of App.), 44 Ch .
Walker, re ; Walker v. Walker 449 Div. 296 . 776
Wallis, re ; ex parte Lickorish (Ct. of App .), 4 Whitten , re ; King v. Whitten ............. 391
35 Q . B . Dir . 176 ............. ... 67 Wilcock ,re ; Wilcock v. Johnson ............. 317
Walsh v. Browne.. ......... .. ... ... .. .. ... ... 899 362
Ward (app .) v. The Folkestone Waterworks Williamsv. Davies, 44 Ch. Dir . 484 ............
Company (resps.), 24 Q . B . Div. 334 .......... 321 Windhill Local Board of Health v. Vint ...... 725
Ward v. Lawson (Ct. of App.),43 Ch.Div. 353 158 Winsford Local Board v . The Cheshire Lines
Committee , 24 Q . B . Div . 456 ................... 268
Warminster and the County Council of the Wolmershausen , re ; Wolmershausen v.
County of Wilts, re The Local Board for Wolmershausen ............. 541
the District of.............. ..... 902
Wood v. Gregory, 43 Ch. Div. 82 ............... 179
Warter v. Warter, 15 Prob . Div. 35 ............ 32 8 Wood
3 's ( A . M .) Ships' Woodite Protection
Watts v. Smith ......... .......... ....... 45 Company Limited, re...............................
Wayland Union , Guardians of the (apps.), v. Wormald , re ; Frank v.Muzcen, 43 Ch. Div.
The Guardians of the Mitford Union 630 ............................
(resps.), 24 Q . B . Div. 122.......... . . . . . . . . .. . 69
Wright and Co. v. Mills .........
Webber, re ; ex parte Webber (Ct. of App.),
24 Q . B . Div . 313 .......... 485
Webster v. Appleton ......... ............ 704
West Ham Union ,Guardians of, v. Pearson... 638
West Riding of Yorkshire Permanent Benefit
Building Society, re, 43 Ch. Div .407......... 486 | Yerbury's Estate, re ; Ker v. Dent..
II.- INDEX TO DEFENDANTS.
A. Bridge, J.,Esq. (Metropolitan Police Magis.
trate), Reg. v. ........ .............page 297
Aizlewood, The Sheffield and South York . Bromley , Justices of, Reg. v. ..................... 114
shire Building Society v. ...................page 678 Brown (resp.), Ryley (app.) v. ..................... 4589
André and Co., Davies and Co. v. ............... 298 ne h
Brow , Wals v. ; re Brow ... ... ... ...... ... ... n 89
Appleton ,Webster v. ....... . . . ... .. ..... 704 Bunsilall , Arbuthnot v........................ .... 234
Argentine Loan and Mercantile Agency Com Burrage, Burningham v. ......... ...... ...... ...... 752
pany, Eddowes v. ............................. 514 , 602 Burton -on -Trent Union and the Church
Atkinson and another, Atkinson & another v. 735 wardens and Overseers of the Township of
Attorney-General, Brinkley
Tukley v..
v . . . . . .. . . . . . . . . . . .. . . . 911 Stretton , AssessmentCommittee of (resps.),
Attorney -General, Manchester **..............
Royal In 419 The Mayor, Aldermen , and Burgesses of
Burton -on - Trent (apps.) v . ..................... .. 412
firmary V .......
Australasia , Bank of, Henderson v. ............ 869 Butcher and Robinson , Richards and Co. v ... 867
Butler, Butler v......... ........... 123, 344 , 477
B. Butler and Burnham , Butler v. .................. 344
Badham and Gorst, Badham v. .................. 663
Bagot, Bagot v . ..... ...... .................. .. 612
Baker , Nichols v . ............. . .. . .. . .. . .. 817
Balfour, Williamson, and Co., Hooper. . . . and Campanhia Bahiana de Navegacio a Vapor,
Co. v...... ............. .. . . . . 646 Liverpool, Brazil, and River Plate Steam
Balls, Glasscock v...... ..... ... ..... 163 Navigation Company v............. . . . . . . . . . . 84
Bank of Australasia, Henderson v . ............... 869 Carter, Elder v. ............ ......... .. . 516
Bank of England, The Law Guarantee and Carter, Surveyor of Taxes (resp.), The Lon
don Library (apps.), v.......
Trust Society Limited and Hunter v. ...... 496 Catterson, 466
Barker, Reg . V........... . .. . . . .. .. 578 Myers v. ........ . ...... .. .. 205
Barnardo, Reg . v. .. ........... Cayley, Phillips v. .......... 86
Barne, Lee v. ........ 922 Ceto,Owners of the,Owners of The Lebanon v.
Barnum , Francesco v................................ 40 Charing Cross Bank, King v . ......
Bate, Bate v ............................
.. . . . . . . .. . . .. . . . . . 559
Hospital and others v. ......
Charity Commissioners,Governors ofChrist's
Beckett, Newbald v.; re Oliver ................. 533 Cheshire Lines Committee , The Winsford
Bell, Hodgson v.... .............. 481 Local Board v............ 268
Benyon and O'Callaghan, Benyon v....... 329, Childers, Mackenzie v. ......
Berkeley Mutual Benefit Building Society, 250 Chilworth Gunpowder Manufacturing Com .
Moxon v. ......... ............. ..... . . . . .. . . . . . .
pany, Starcy v .
Birch (resp .), Hickman (app.) v.......... 113 Churchill,Guy ~ . ..........
Birch , Hoby and Co. Limited v.................. 404
Bishop of London, Reg.v.. . . . . . . . . . . . 167
Ciceri and Co., Sutton and Co. v. ... 742
Clegg, Clegg v.; re Carlisle. 821
Bloomsbury County Court (Judge of) ......
Cattle, Reg. v......................
and 286 Cohen , Ederain v . ..............
Blundell, Blundell v. ...... ... .... .... . 620 Cole, Hawke v.............
Booth, Reilly v. ...... 378
.................... Coles, Vibart v. .. ....... ... ........ . ... .. ... ... ... 551
Boughtwood (resp.), Pain (app.) ..................... 234 Colley, Hart v................ 623
Collins , Browne v. ................. . 566
Boulton , London and North -Western Rail Collins, Mayor v..................... 326
way Company v........... ............. 393
Bradford Third Equitable Benefit Building 857 Collyer, Coupe v........................ 927
Society, Atkinson v. .......... Commissioner for Railways, Brown v. ......... 469
Brand, Parsuns v. ............ ............. 479 | Commissioner of Titles, Manning v. ............ 373
Oct. 18, 1890.] THE LAW TIMES. [ Index - xii
DEPENDANTS.
Consolidated Credit and Mortgage Corpora | Foster, Day v. ......... ...............page 597
tion Limited, Tomkinson v. ... ......page 162 | Fowler, Morris v. ......... 758
Cook , Cook v. ............... 667 Fox, Fox v . .. 762
Cooke, Searle o. ........................................ 211 Franklyn , The Halifax Sugar Refining Com
Cooper, Farrar v. ..................
............................
. 528 pany v . ... ....... ......... 563
Cornish, Cornish v....... ........ 667 Fredericks, Buckle v. ........... ............... 884
Crawshay, Crawshay v......... ....... 489 Freeman, Nouvion v............ 189
Croydon County Court, Deputy Judge of, French -Brewster, French -Brewster v. .........
Reg. v. ...... .... 583 French-Brewster and Gore, French-Brew
ster v . . .... .. ... .. ... ... ... .... .. .... 609
Frost , Frost v ......... .... .... ........... .......... ........
Fry, Fry v. ............ .. . .. . . .. . . . ... . . . .. . . . .. ..
D.
Dale, Stubbs v ...... ......... 28
Darbishire and Baird , Duros
Darbisbire v . . . . . . . . . . . .. 664
ure v.
Dartmouth Harbour Commissioners, Batten,
Proffitt ,and Scott v . .. .... Garbutt and others, Macartney v. ....... 656
Williams v.; re Rees .....
Davies,Bourke General Council of Medical Education and
Davis , v ................ 34 Registration of the United Kingdom , 787
Partridge v ........
Day, Barrett v ............................ .. 597
De Lossy, De Lossy v. .......... . .
. .. ....
. . .
704. . . . . .
Glamorganshire, Justices of, Reg. V............ 730
Dent, Ker v . ; re Yerbury's Estate .. .. Ucu vv.. ............
Gooch ,Gooch .. . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . 384
Dickinson, Dickinson v............. .... .. .... 230 Goodley, Hubbard and another v. ............ 736
Dickson ,Coulson v ................................. 479 Goodwyn, Matheson v.; re Flower............... 216
Diplock , Stuart v . .. ................. ... .... ........... 333 Goodwyn (No. 2), Matheson v.; re Flower ... 677
Directo r of Public Prosecutions, Stubbs v.... 399 Gordon (resp.), St. Martin 's Vestry (apps.) v . 835
Dixon , Duncan v ................ 319 Grampian Steamship Company, The London
Dowton and Slimon ,Guardians of Tendring Steamship Insurance Association v. ......... 784
Union v ....... Gregory, Wood v. ................................... 179
Ducroz, Stokes v. 176 Grubb, Grubb v.......... ............. 644
Duffin, Duffin v .; re Dillon ............ 614
Duncan , Parker v . ......... 642
E.
Hands, Clegg v. ............... 502
Hare, Dicks v. ; re Hargreaves ......... 819
Edge, Garrard v. ..... ....... ......................... 510 Hart, Colley v. .......... . . . .. .. .. 424
Egginton and others, The Churchwardens Hartopp, Robertson v. ........... .... .... ....... 585
and Overseers of the Parish of (resps.), Hawkins, The Central Bank of.. . . ..London
The Mayor, Aldermen, and Burgesses of Limited v . ........ .. . . . .. . . 901
Burton -on - Trent (apps.) v . ... .. ... .. . 412 | Heddon (resp.), , Colquhoun (Surveyor of
Ellam , Ellam v. .................... .... ... ... .. 331 Taxes (app.) v. ........ ............ 155, 853
Emerton and others, The Attorney -General v. 21 Hesketh , Smithett v....... ...... .. ....... 802
Entwistle and others, Cochrane v. ............... 852 Hetherington , Davies v.; re Hunt............... 753
Evans and others, Reg. v. .......... 570 Hodgson, Holtby v. 145
Holloway, Watley v . .. 639
Holmes, Holmes v................. .... 383
Homfray, Phillips v. ...... 897
F. Hopkins, Field v. .............................. 102, 774
Horton , Lawrence v. ......... ............. 749
Fardell and Co., Serle v. .......... 359 Hudson and Co., Hobbs and Co. Limited v. .. 764
Feary (resp.), The Vestry of St. James and Bradsbaw
Huish , Draagb . . ... . . . .. . .. . . . . .. . . . . . .. .. . . .. 52
aw vv.. .........
St. John , Clerkenwell (apps.) v. ...... 697 Hunting, Oliver v. ........ ................... 108
Ferguson
0.
-Davie, Ferguson-Davie and others 703
... .. ..
Fincher (resp.), Whitehurst (app.) v.............. 433
Fleetwood Improvement Commissioners,
Barker 0. .......... 831
Foden , Milnes v.................. . . . .. . .. . . . 498
Inland Revenue, Commissioners of (resps.),
Folkestone Waterworks Company (resps.), Onslow and others (apps.) v. .................. 461
Ward (app .) v .... .... ........... .................. 321 Ipswich Union, Guardians of (resps.), The
Forsceasbawed ,) Cra wfo rd v.; re Mainwaring (de 63 1 Guardians of the Headington Union
......... (apps.) v. ........ ........ 547, 786
xiv - Index.] THE LAW TIMES. (Oct. 18 , 1890.
DEPENDANTS.
Irwin and Layard , Irwin v...................page 612 | Maggs, Bristol, Cardiff, and Swansea
IvelCycle Company, Phillips v . ................... 392 Aerated Bread Company Limited v....page 416
Mansfield,Mansfield v.; re Cuno............... 15
Matthews, Caldwell v. .............................. 799
Maule and others, Maule v. ......................... 702
J.
Medical Education and Registration of the
United Kingdom , General Council of,
James, Clutterbuck v. ............ .... ....... 454 Partridge v....................
James, Reg. V....................... . .............. 578 Michell, Real and Personal Advance Com
Jenkins and another, Robinson v. ............... 439 pany Limited v. ; re Giles....
Johnson and Weatherall, Storer and Co. v. ... 710 Milburn , Curwen v . ....
Johnson , Wilcock v. ..... ............. 317 Miles, Reg. v. .........................................
Mills, Wright and Co. v. ....... ....... .......
Mitchell, Whitby v. ............. 771
K. Mitford Union , Guardians of (resps.), The
Guardians of the Wayland Union
Kennedy,Lyell r. ......... 77 (apps.) v. .............. 69
Kennedy and Schurch, Kennedy v. .. ......... 705 Muzeen , Frank v.; re Wormald ................. 423
Kershaw , Whittaker v. ..... ...... 776
Kinahan and Lyle and Kinaban
Kinaban and Co. v...........
Limited,
.. 718
Knight, Harris v. ......... ................ 507
Neil, Hemming v. .......... 649
Nevill, Robinson v............ 864
L . Newbery, Simes v....... . .. . .
New Guston Company, Weston v. ............. 275
Lamarque, The Governing Body of Charter . Niemann, Niemann v. 339
house School v. .......... .. ............ 907
Norreys (Lord) and others, Lawrance v. ...... 706
Lamarque (Surveyor of Taxes) (resp.), Duke
of Norfolk (app.) v. .... 153 North Kelsey, Overseers of (resps.),
Lambert, Issard v.; re Davies..................... 715 Nutt, Reed v.of.........
Guardians Caistor Union (apps.), v ....... 731
.... 635
...........
Lambert and Co., Rogers and Co. v. ............ 694
Land Registry , The Vice-Registrar of the
Office of, Reg . v. ......... ...... ... 117
Lawes, Vadala and Co. v. ........................... 701
Lawson , Ward v.............. ................. . 158
Learmonth and Austin , Learmonth v. ......... 608 Oakey, Allen v. ......... ..... ....... .... .. 724
Lempriere (resp.), Cotterill (app.) v. ... 695 O 'Connor, Duke of Devonshire and others v . 917
Lever, The Mayor, & c., of Salford v............ 434 Oliver (resp .), Rawlings (app.) v.; re Sunder
Lister , Hulton v ............. 200 land 32nd and 36ın Universal Building
Lister, Lister v. ................................... 90 Societies ............ . . . .. . . . . . . . . . . .. . . . . . . . . . . . .. . .. 293
London, Bishop of, Reg. v. ........................ Ormskirk , Guardians of, Overseers of the
London County Council (resps.), Daw and 937 Township of Manchester v. ... 661
Son (apps.) v. .............. .... ... ......... O 'Shea and Parnell, O ' Shea v. ....... .............
London Joint Stock Bank, Little v. ............ 427
London Joint Stock Bank, Simmons v.......... 427
London , Justices of the County of, Reg. v.... 458 P.
London and North -Western Railway Com
pany, Barton v . .......... ..... ... .... 164 Padgett and Co ., Jones v.................
..... ... ... 934
London and South-Western
pany, Finck v. .......
Railway Com Pain , Turpin v. ; re Taylor ... ... .... . ............ 754
......... ......
London and South -Western Railwa Comy Parsons, Stockley v. ................................. 929
pany, Newman v. ....... ... 290 Paul, Reg . v. .......... ... ... ........ 845
Lord Norreys and others,Lawrance v.......... Pearce and the East Dulwich Building 388
Luce, Tomlin v. ......... .. .......... 18
Society, Sibun v. .
Luxmore (resp.), Usher and others (app.s.) v. 110 Pearson, Guardians of the West............
Union v. .................. ......
Ham 638
Lyell, Kennedy v. ...... 77
Persian Investment Corporation Limited ,
Macnee v. ........... .......... 894
Peruvian Guano Company, Dreyfus and..
M. Co. v................... .............. 518
Pollock , The Marquis of Northampton v. ... 313
Macdonald ,McAlpin v............ ... ..... 541 Port Philip and Colonial Gold Mining Com
McKerrow , Rocke v........ ............ 556 I pany Limited , Postlethwaite v. .......... 60
Oct. 18, 1890.) THE LAW TIMES. (index - XV
DEFENDANTS.
Styles (Surreyor of Taxes) (resp.), The Gres
ham Life Assurance Society (apps.) v. page 464
Swift, Swift v........... ... 669
Ratté, Booth v. ........ ........page 198
Rawlings (resp.) King and Cordner (apps.) v.;
re Sunderland 32nd and 36th Universal
Building Societies ....... .. .... 293 T.
Rhodes, Rhodes v. .................. ....... 2.2, 342
Richardson , Jobson v. ...... 148 Tatley,Midgley v.; re Hargreaves.......... 475
Richmond , Rees v . ... . ..... Taylor (resp.), Meadows (app.) v. ............... 658
Theobald , Attorney -General v............. .
Ridley, Salisbnry v.; re King........ Theobald , Theobald v. ... 187
Roberts , Evans v. ....
Roberts, Fairclough v. ............................ 700 Thomas, Crisp v............................... 810
Robertson, Blankenstein v. ...................... Thomas, Phillips v. ........ 793
Robinson , Midland Railway Company v . .... 194 Tbomasson (resp.), Smith (app .) v................ 68
Robson (resp.), Old (app .) v. ........ ............. 282 Thomson and Co., American Braided Wire
Rolls, Glasier v . ...... Company v............. .................64 , 616
305 Timaru Harbour Board , The Shaw , Savill,
Ross, Barlöw and others v. ............ 552 and Albion Company v............................ 913
RoyalNational Lifeboat Institution, Buckley Tippett, Strutt v. ...... ............. 475
v . ; re David ..... Tower Division, Justices of, Hay v. ........... . . 290
Russell , Taylor v. ..... .............. 922 Towse, Kạil
LA l v.
V ............
. . .. .. .. . .. .. . .. .. .. . .. ... . .. . .. .. 259
Tranter, Smart v. ................. ................... 356
Trubner and Christiani, Trubner v. ...
Tupper and Terrell, Tapper v. ......... 665
Torner, Berridge v. ......... 365
Sartoris, Turncock v. ..... 209 Tussaud , Tussaud v . . . . . . . . . . . . . . . . . . . . . .
633
Schmaltz, Jacobs v. ........ 121
Sbarp, Rickett v . .. ... ....... 777
Shephard, Atkins v . ..... 337 U.
Sheppard, Moxon v. .... ........ . ........... 726
Sheriff of Yorkshire, Townend v.... 402 Upper Goldcrsos, Justices of, Reg. v. ......... 112
Shore, Thynne v . 803 Uppleby, Priest v.; re Salmon .................. 270
Silsa , Tilbury v. .. ... .......... 254
Simes , Jones 0. .................. 447
Singer, Otto v . ..... 220
Slateum , McLardy v. .......... 151
Smethwick District Local Board of Health , Vice-Registrar of the Office of Land Regis
Hopkins, v. ................ . . ... . .. .... 783 try , Reg. v. ......... ........... 117
Smith , Cooke v. .......... ....... 456 , 712 Vint, Windhill Local Board of Health v..... . 7:25
Smith , Grey v. . .... ... .... ... . . . . .. . . . .. 335
Smith, Keeling v. ........ 181
Smith , Smith v . ................ 237
iii
Smith , Watts v. .. ............. 453 W .

Solomons, Reg. v. ................. 672 Walker, Giles v.......... 933
Somerton , Hume v. ........ 828 449
Sonnenschein, Clark v...... 880 Walker, Walker v......
Walter and another, Parnell v. .............. 75
:
Soper, Taylor v...... 828 Warter, Warter v . .. 328

Southern , Southern v. ... ... ... ..................... 668 Watkins, Murray v. .. 796
South Metropolitan Gas Company,Gas Light
.. . .. . .. . . . . 126 Watts, Jones v. .................. ............... 58 , 471
and Coke Company v. ............ 812
Wells (resp.), Dixon (app.) v. ......... .
Sowerby Bridge United District Flour Wheeldon , Pharmaceutical Society of Great 727
Society, Van Gelder, Apsimon , and Britain v. ..............
Co . v........... .......... ...... ...... 105
Stee l Company of Scotland , Tancred , Arrol, 738 Whellock , Cook v. ..... 675
and Co. v. ......... . .. . . . .. . . .. . .. . . .. . . . .. .. . . .. Whitchurch and others , Reg . v................ 124
Stephenson (resp.), Davis (app.) v................ 436 White and Jerome, White v. ...................... 663
St. Pancras,Justices of (resps.), James Shool 287 Whitecross Company Limited, Lang v. ...... 119
bred and Co . (apps.) v. .......... ..... ...... .. Whitten , King v......... .. . . . .. .. 1 . . 39
St. Pancras , Vestry of, Reg. on the prosecu Wild , Johnson v.......... ................... 537
tion of Richard Westbrook v. ..... 440
Wilkinson (resp.), Rawlings (app.) v.; re
Stubbs, Lister and Co.v............... ........... 654 Sunderland 32nd and 36th Universal
Styles and Jackson, Styles v...................... 613 | Building Societies .... ..... 293
xvi - Index.] THE LAW TIMES . [Oct. 18, 1890.
DEFENDANTS .
Wilson , Swaine v. .. ....... .......... ......page 309
Wimbledon and Putney Commons Conserva
tors, Purves v...... ... ... .... ... ................... ..
Wolmershausen , Wolmershausen v. ............ 541
Wyatt (Surveyor
Highness of 'sTaxes)
the Nizam (resp ), State
Guaranteed His Yorkshire, Sheriff of, Townend v. .........page 402
Railways Company Limited (apps.) v. ...... 765 | Ystradyfodwg School Board,Griffith v. ...... 151
IN THE FOLLOWING APPEALS THE DECISIONS OF THE COURTS
BELOW WERE REVERSED.
American Braided Wire Company v. Thomson Lebanon , Owners of the, v. Owners ofthe
and Co. ........... ........page 616
33 Ceto ; The Ceto .... ......... .. ....page
Arratoon Apcar, The .......... 1 Lyell v. Kennedy; Kennedy v. Lyell ..........
Blundell v. Blundell . . . . . . 620 New Eberhardt Company Limited, re ; 30
Brighton and Dyke Railway Company, re ... ex parte Menzies .................................... 1
Brown v. Commissioners for Railways ......... Niemann v . Niemann .............................. 339
City of Lincoln , The ........... .... ........ .. 49 | Reg. v . The Bishop of London ....
Duke of Buccleuch, The, varied ..... River Derwent, The, varied ...... .
Duke of Devonshire and others v. O 'Connor 917 Salmon , re ; Priest v. Uppleby , varied ......... 270
Elder v . Carter .................. ..................... 516 Smart v. Tranter .... ........... 356
Gas Light and Coke Company v . South Smith v. Smith ........ 237
Metropolitan Gas Company ........ ............. 126 Spackman , re ; ex parte Foley ..... ..... .. 849
Glasier v. Rolls ............ 133 Stuart v. Diplock
ck .... . ........... 333
Hargreaves, re; Midgley v. Tatley ............ Tomlin v. Luce, varied ..................... ....... ... 18
Henry Pound, Son, and Hutchins Limited. 137
Uxbridge and Rickmansworth Railways
re Acts, re ............. ... ... 347
Hulton , re; Hulton v. Lister ........ 200 Ward v . Lawson ..... ............. 158
TABLE OF CASES CITED
IN THIS VOLUME.
Argles v. Heasman ( 1 Atk . 518 ) ............

..... .........page 41
Arklow , The (50 L . T. Rep. N . S . 305 ; 9 App . Cas.
Abbott v. Abbott (4 Swa . & Tr. 284 ) ............page 78 136 ; 5 Asp. Mar, Law Cas. 219) ...... 95
Abouloff x. Oppenheimer (47 L . T. Rep. N . S. 325, Arlett v . Ellis (7 B & C . 346 , 369) ..................... 590
702 ; 10 Q . B . Div . 29515 )...... ......... ...... ... ...... ... 701 Armstrong v . Storer (14 Beav. 535) ................., 922
Adams v. Batley (56 L. T. Rep. N . S. 770 ;.......... 18 Q . B . Arnison v. Smith (59 L . T . Rep. N . S . 627 ; 41 Ch.
Div. 625)...... ... Div . 348) ...... ... .. 135
Adams v. Lancashire and Yorkshire Railway Com Arnold v. Blake (L. Rep. 6 Q . B . 433).... 34
pany (L , Rep . 4 C . P . 742)...... Arnott 2. Hayes (57 L. T. Rep . N . S. 299 ; 36 Ch. 7
Adamsv. North British Railway Company (29 L . T. Div . 731) .... 51
Rep. N . S. 367) ......... Artisans and Labourers' Dwellings Improvement
Adams and the Kensington Vestry , re (51 L . T. Act 1870 , re (43 L . T . Rep . N . S . 84 ; 14 Ch . Div .
Rep . N . S. 382 ; 27 Ch. Div. 394). 71
624) .. ... . ... . .. .. ... . .. 627
Adamson v . Barbour (1 Macq . 376 )......... Ashbee v. Appleby (W . N . 1878, p. 20) ............... 21
Agency Company v. Short (59 L . T . Rep . N . S.677 ; Ashby v. White (2 Raym . 938 ; 1 Smith L . C . 268). 788
13 App. Cas. 793) .... 78 Asiatic Banking Corporation , re ; Royal Bank of
Airoy v. Bower (56 L . T . Rep . N . S. 409 ; 12 App. India's case (19 L . T. Rep. N . S. 444 ; L . Rep. 687
Cas. 263) ................. . 87 4 Ch. 252) ...............
Airth Peerage case and other cases (see Hubback , Aspden v. Seddon (32 L . T. Rep. N . S. 415 ; 36 L . T .
pp. 519, 526 ) .. .......... 78 Rep. N . S.45 ; L. Rep. 10 Ch. 394 ; 1 Ex. Div.496 ) 194
Alexander v. Simpson (61 L . T . Rep. N . S. 708 ) ... 61 Aspdin v. Austin (5 Q . B . 671)...... ... 99
Alexandre v. Alexandre (23 L . T . Rep . N . S . 268 ; Aste v. Stumore (49 L. T. Rep. N . S. 742 ; 13 Q . B .
L. Rep. 2 P. & D . 164) ...... .... 345 Div. 326 ) ...... 290
Alice Woodhall, ex parte (59 L . T. Rep. N . S. 841 ; Atcherley v. Du Moulin (2 K . & J. 186 )............... 933
20 ,Q re. B (56
. Div.L . 832) 713 Atkins v . Tredgold (2 B . & C . 23).. 544
Allen T. Rep. N . S. 6 ; 34 Ch. Div. 433)... 779 Atkinson v. Littlewood (31 L . T. Rep. N . S. 225 ;
Allen v. Doulton (4 Rep. Pat. Cas. 377) ... ... .... .. ... 120 L . Rep. 18 Eq. 595) ............ 53
Allen v. Knight (5 Hare, 272) 923 Atkinson v. Teasdale (2 W . Bl. 817 ; 3 Wils. 278)... 591
Allen v. Taylor (24 L. T. Rep. N . S. 249 ; 19 W . R . Attenborough v. The St. Katherine's Dock Com
556 ) ............... .. . . ** .......... 453 pany (38 L . T. Rep. N . S. 404 ; 3 C. P . Div.450 ). 439
Allis v. Rayn (7 B . & C. 441) ..................... 832 Attorney-General v. Alford (24 L. T. Rep. 0 . S. 265 ; 8
AlmaonSpinning erCompan y , re ; Bott 's
omley case (13 4 De G . M . & G . 843)............ 89
L. T . Rep. N . S. 620 ; 16 Ch. Div. 681) ............. 565 Attorney -General v. Corporation of Kingston (12
Almada and Tirito Company, re (59 L . T. Rep. N . S. L . T . Rep . N . S. 665 ; 13 W . R . 888) ............ ... 794
159 ; 38 Ch . Div . 415 ) ..... . . ... . .. . .. .. . Attorney-General v. Davey (2 Atk . 212) ............. 89
Ancona v. Waddell (40 L . T . Rep. N . S. 31 ; 10 Ch. 5 Attorney -General v. Great Western Railway Com
Div . 157)....... ........ 45 pany (35 L . T . Rep . N . S . 921 ; 4 Ch. Div. 735 )... 269
Anderson's case (37 L . T. Rep . N . S. 560, 564 ; 7 303 Attorney-General v. Hubbuck (50 L . T. Rep. N . S. 8
Ch . Div. 75).......... 374 ; 13 Q . B . Div. 275)..... 17
Andrew , ex parte (33 L. T. Rep. N . S. 556 ; 1 Ch. 263 Attorney -General v. Kohler (9 H . of L . Cas. 685)... 78
Div . 358) ......... ......
Andrew v. Andrew (34 L. T. Rep. N . S. 82 ; 1 Ch. Attorney-General v. Lomas (29 L . T. Rep. N . S.
749 ; L . Rep . 9 Ex. 29 ) .......... 178
Div. 410) ............ ... ... Attorney-General v. The Marquis of Ailesbury (58 8
Andrew v. Motley (12 C . B . N . S. 514, 532) .......... 508 L . T . Rep . N . S. 192 ; 12 App. Cas. 672)............ 17
Andrews, ex parte ; re Wilcoxon (50 L . T. Rep. N . S. Attorney -General 2 . The Marquis of Hertford (3 Ex.
679 ; 25 Ch. Div . 505) .... 328 670 ; 18 L . J. 322 , Ex.)........... 770
Anglo-Italian Bank v. Davies (9 Ch. Div. 275) ...... 3383 Attorney-General 2. Terry (30 L . T.Rep . N . S. 215 ;
Anon. (Godbolt, 120).......... .......... ... 50 L . Rep . 9 Ch. 423)............ 199
Antrobus v. Davidson (3 Mer. 569) ..... ...... 603 Attorney -Generalv. Tewkesbury and Malvern Rail
Apollinaris Company v. Norrish (33 L . T. Rep. N . S . way Company (8 L . T . Rep. N . S . 682 ; 1 De
242) ........... 868 G . J. & S.423) ......... --........ 882
Appledore Tithe Commutation , re (8 Q . B . 139)...... 115 Attorney-General 1. Tomline (43 L. T. Rep. N . S.
Arbitration between Carus.Wilson and Greene, re 486 ; 15 Ch . Div . 150)................
520 ..............
(55 L. T. Rep . N . S. 864 ; 18 Q . B . Div. 7).......... 808 Attorney -General 2. The Wax Chandlers Company
Ardasser Cursetjee Perozeboy (10 Moo. P . C. 419 )... 912 (28 L. T.Rep . N . S.681 ; L. Rep. 6 E . & I. App. 1) 534
Argentino, The (59 L . T . Rep. N . S. 914 ; 13 P. Div. Auld v. Glasgow Working Men 's Building Society
198 ; 6 Asp. Mar. Law Cas. 348).................. ... 50 (56 L . T. Rep. N . S. 776 ; 12 App. Cas. 197) ...... 294
Oct. 18, 1890.) THE LAW TIMES . [Index - xix
TABLE OF CASES.
Austerberry v. Corporation of Oldham (53 L . T. Baumann v. James (16 L . T. Rep. N . S. 165 ; 6 H .
Rep . N . S. 543 ; 29 Ch. Div. 750)...............page 504 of L . Cas. 238) ............ .... .........page 108
Avern v . Lloyd (18 L . T. Rep. N . S. 282 ; L. Rep. Baxter v . Lord Portsmouth (5 Barn & Cr. 170 )...... 23
5 Eq. 383) .......... ........... 474 Baynton v. Collins (51 L . T. Rep. N . S. 681 ; 27 929
Ch . Div . 604) ........ ....
Beak, re ; Beak v. Beak (26 L . T. Rep. N . S. 281 ;
L . Rep. 13 Eq. 489) ...................................... 614
B. Beard v . Walcott (5 Taunt. 395) .................... .... 26
Beaupre's Trusts, re (21 L . Rep. (Ir.) Ch. Div. 397) 929
Backhouse v. Alcock (52 L . T. Rep . N . S . 342 ; 28 Beavan v. Beavan (49 L . T. Rep. N . S. 263 ; 24 Ch.
Ch. Div.669) .... 715 Div. 649)....... 218
Badische Anilin und Soda Fabrik v. Levinstein (53 Beck v. Robley (1 H . Bl. 89, n .) ....... 164
L . T . Rep . N . S. 750, 751 ; 29 Ch. Div . 366 ; 57 Becke and Flower, re (5 Beav. 406).. 39
L . T . Rep. N . S . 853 ; 12 App . Cas. 710 ) ...... 393, 511 Bedborough v. The Army and Navy Hotel Company
Bagley v . Mollard (1 Russ. & My. 581) ............... 900
Bagshaw v. The Buxton Local Board of Health (34 (51 L. T. Rep . N . S. 173 ; 53 L. J. 658, Ch.)..... 360
Beddow v . Beddow (9 Ch. Div. 89) ........ 529
L . T . Rep . N . S. 112 ; 1 Ch. Div . 220 )............... 111 Belchier v. Butler (1 Ed. 523) .... 923
Bahia and San Francisco Railway Company, re (L . Bell Cox , re (58, L . T. Rep. N . S. 323; 20 Q . B .
Rep. 3 Q . B . 584) .......... ... 43 2 Div . 1) ......... 713
Bainbridge, re; ex parte Fletcher (38 L . T. Rep.
N . S. 229 ; 8 Ch. Div . 218) ... . 265
Bell v. Wilson (14
1 Ch . 303) .... ...
L. T. Rep. N . S. 115 ; L. Rep.
. . .. . ... 194
Bainbridge v. Kinnaird (8 L . T . Rep . N . S. 447 ; Benares, The (48 L . T. Rep. N . S. 127 ; 5 Asp. Mar.
32 Beav. 346 ) ... .......... 336 Law Cas. 171 ; 9 P . Div . 17 ) 332
Baker v. The Bank of Australasia (1 C . B . N . S.515 ) 439 Bennett v. Brumfitt (19 L . T. Rep . N . S. 283 and
Baker v. Greenhill (3 Q . B . 148) ......... 581 452 ; L . Rep. 3. C. P . 28) ......... 584
Baker v. The Owners of the Theodore H . Rand (56 Berkley v. Ryder (2 Ves. sen . 532 ) ........ 182
L. T. Rep . N . S. 343 ; 12 App. Cas. 247)............ 8 Beryl, The (51 L . T. Rep . N . S. 554 ; 9 P . Div. 137 ;
Ball, ex parte ; re Shepherd (40 L . T. Rep. N . S . 5 Asp. Mar. Law Cas. 321) .....................2, 85, 332
141 ; 10 Ch . Div. 667) ... .. . .. . .. . ... 636 Best v. Hayes (1 H . & C . 718 ) ..... 439
Banbury Peerage Case (in Le Marchant's Gardner Beswick v. Capper (7 C . B. 669; 18 L . J. 216 , n .,
Peerage Claim , appendix, p. 410 ; 2 Selw . N . P . C . P .) .. .. . .. .. .. 737
10th edit. 756 ) ... ...... 78 Bethell v. Hildyard (58 L . T. Rep . N . S. 674 ; 38
Banco de Portugalv. Waddell (42 L . T. Rep. N . S. Ch . Div . 220) ........... . ... . .. . ... 912
698 ; 5 App. Cas. 161) .......... 781 Betts v . Armstead (58 L . T . Rep . N . S. 811 ; 20
Banister, re ; Broad v. Munton (12 Ch. Div. 131)... 653 Q . B . Div. 771) ... ..... 285
Bank of Australasia v. Niass (16 Q . B. 717) ......... 701 Bett s and Block , re; ex parte the Board of Trade
ustan(21 a n Limited , re ; (56 L. T. Rep. N . S. 804 ; 19 Q . B . Div. 38 ; 59
Bank of Hind
er parte Kintrea , Chin Rep.Japa
L . T., and N . S. 688 ; L. Rep. L . T. Rep . N . S . 734 ; 13 App . 570) ............... 370
5 Ch. App . 95 )...... ... . .. . .. .. . 891 Bevan's Trusts, re (56 L . T . Rep . N . S. 277 ; 34
Bank Hindustan , China, and Japan, re ; ex parte Ch. Div. 716) ... 149
Smithof (17 L . T . Rep. N . S. 339 ; L . Rep . 3 Ch. Bewley v. Atkinson (41 L. T. Rep. N . S. 603 ; 13 02
App. 125 )...... . . . . . . . . . 621 Ch . Div . 283) .......... 3
Bank of South Australia v.Abrahams(32 L. T. Rep.
N . S . 277 ; L . Rep. 6 P . C . 265)............ ......227, 888
Biddle v. Bond
225) ........
(12 L. T. Rep. N . S. 178 ; 6 B. & S.
. . . . . .. .. . 694
Banks v. Gibson (34 Beav. 566 ) .. ... . ... .. ... . 336 Biddulph v. The Vestry of St. George, Hanover
Banner v . Berridge (44 L . T. Rep. N . S.680 ; 18 Ch . square (8 L . T. Rep. N . S. 44 ; 33 L . J.411, Ch .) 442
Div . 254) ...... .... 280 Biddulpb v. Williams (1 Ch. Div . 203) ............... 318
Bareham , re (17 Ch . Div . 329).................. ......... 627 Bigsby v. Dickinson (35 L. T. Rep. N . S. 679 ;
Baring v. Dix (1 Cox, 213) .......... . ... ... .. .. .. ... 746 4 Ch. Div. 24 ) ........... 305
Barker v . Greenwood (2 Y. & C . 414 )................. 927 | Birch v. Cropper (61 L . T. Rep . N . S. 621 ; 14 App.
Barned's Banking Company v. Johnston (24 L . T . Cas. 525) ... ...... 888
Rep. N . S. 542 ; L . Rep. 5 H . of L . 157).............. 838 Bird v. Brown (4 Ex. 786 ) ..... 83
Barned's Banking Corporation Limited, re ; Peel's Bird v . Luckie (8 Hare, 301).............................. 363
Case (16 L . T. Rep . N . S. 780 ; L . Rep . 2 Ch .674 ) 825 Birley v . Birley (25 Beav. 299) ................. 491
Barnes v. Racster ( i Y . & Coll. Ch. Cas. 401) ...... 252 Birmingham and District Land Companr v. London
Baron de Bode's case (8 Q . DB .. 208 ) ......
10 ) . . . . . . . . . . . . . . . . . . . . . 78 and North -Western Railway Company (57 L. T .
Baroness Wenlock v. River Dee Company (57 L . T. Rep. N . S . 185 ; 36 Ch. Div . 650 ; 60 L . T . Rep.
Rep . N . S. 320 ; 19 Q . B . Div.ny155).. ...... 75 6 N . S. 527; 40 Ch. Div. 268 ; 60 L . T. Rep. N . S.
ompa , re (59
Barrow Haematite Steel Company, (59 L . T. Rep. 317 ; 22 Q . B . Div . 435) ............. 394
N . S. 500 ; 39 Ch. Div. 582 ) Birmingham , Dudley, and District Banking Com
Bartlett v. Wood (4 L . T. Rep . N . S.692 ; 9 W . R . pany v. Ross (59 L . T . Rep . N . S. 609 ; 38 Ch.
817) ...... ... Div. 295) ........ . ............. 205
Bartley v. Hodges (1 B . & S. 375) ...... 781 Birmingham and Lichfield Junction Railway Com
Barton v . The London and North -Western Railway pany, re (45 L . T. Rep. N . S. 164 ; 18 Ch . Div. 155) 349
Company (62 L . T. Rep . N . S. 164 ; 24 Q . B . Birt, re (48 L . T. Rep. N . S. 67 ; 22 Ch. Div. 604 ) 862
Div. 77) ............ ...... ... ......... ...... ... . ...... 439 Bishop of St. Albans v . Battersby (38 L . T . Rep .
Barton v. The North Staffordshire Railway Com N . S. 685 ; 3 Q . B. Div. 359) ...... 885
pany (58 L. T . Rep. N . S. 549; 38 Ch . Div. 458) 165 Black and Co.'s case (27 L . T. Rep. N . S. 509 ; L .
Bartrum v. Caddy (9 A . & E . 275 ) ..... 164 Rep. 8 Ch. App. 254).... 227
Barwick v. English Joint Stock Bank (16 L . T. Rep. Blackburn and District Building Society, re (W . N .
N . S . 461; L . Rep. 2 Ex. 259) ......... 135 1886 , p . 22).......... 295
Bastow and Co., re (16 L. T . Rep. N . S. 788 ; 4 Eq. Blackburn District Benefit Building Society v.
681) ... 860 Ward (unreported )..... ... 687
Bateson v. Green (5 T . R .411).. 591 Blacket.v. Lamb (14 Beav. 482) 90
Batten , Proffitt, and Scott v. The Dartmouth Blackwood v. London Chartered Bank of
Harbour Commissioners (89 L. T. 101; W . N . Australia (30 L . T. Rep . N . S. 45 ; 5 Priv. Co.
1890, p. 118) ... .......... ......... 9221 Apps. 92)......... ..... 923
xx - Index.] THE LAW TIMES. (Oct. 18, 1890.
TABLE OF CASES.
Blagden v. Bradbear (12 Ves. 466) ................page 108 ) British Oil and Cannel Company (15 L . T. Rep .
Blake, re (3 Ell. & Ell. 34 ) ...... .. ...... 568 N . S . 601) .......page 826
Blake v. Beech (34 L . T. Rep . N . S. 764 ; 1 Ex. British Provident Fire and Life Assurance Society ,
Div . 320) .. ... ...... 813 re ; ex parte Stanley (10 L . T . Rep . N . S. 674 ; 4
Blake v. The Imperial Brazilian Railway.. . ..Com . De G . J. & S. 407).... ............... 888
pany (unreported ) ................... . .. .. . 766 Broad and Broad , re (52 L . T. Rep. N . S. 888 ; 15
Blake 1. Mayor of London (18 Q . B . Div. 437, Q . B . Div . 420 ) 832
445 ; affirmed on appeal 19 Q . B . Div . 79) .. ....... 910 Broad v. Selfe (9 L . T. Rep . N . S. 43; 11 W . R . 105
Blankenstein v. Robertson (24 Q . B . Div. 343)...... 479 1036 ) ......
Blittman , re (14 L . T . Rep . N . S. 6 ; 2 Eq. 23 ) 781 Brocklebank, re ; ex parte Dunn v. Raeburn (61
Blount v. Harris (39 L . T. Rep. N . S. 465 ; 4 80 L . T. Rep. N . S. 543 ; 23 Q . B. Div. 461) .........
Q . B . Div. 603 ) ......... 4 Brockwell v. Bullock (22 Q . B . Div. 567) .........24, 343
Blount v. Hipkins (7 Sim . 51) .......... 819 Bromley v. Coxwell (2 B . & P . 438) ..... 688
Blundell v. Catterall (5 B . & Ald . 268) ... ........ Brook v . Brook (3 Sm . & G . 280) ..... 736
Blunden v . Baugh (Cro. Car. 302) . Brooke v. Hook (24 L . T. Rep . N . S. 34 ; L . Rep .
Blythe, ex parte ; re Blythe (16 Ch . Div. 620) ...... 6 Ex. 89) ........ 165
Blyth and Fanshawe, re (47 L. T. Rep . N . S. 610 ; 832 Brooshoft's Settlement,re (
6 1 L . T. Rep. N . S. 320 ;
10 Q . B . Div . 207) .... 42 Cb . Div . 250 ). 627
Board v. Board (29 L . T. Rep. N . S. 459 ; L . Rep . Broughton v. Broughton (5 De G . M . & G . 160) ... 104
9 Q . B . 48 ; 29 L . J. 4, Q . B .) .... 798 Brown, re (L . Rep . 4 Eq. 464 ) .............. 319
Boarder v. Lindsay (34 W . R . 473 )...................... 290 Brown v. Burdett (60 L . T . Rep . N . S . 520 ; 40 Ch.
Boileau v . Rutlin (2 Ex. 665) ........ Div . 244) ............ 28
Bolton Partners v. Lambert (60 L. T. Rep . N . S. Brown v . Freeman (4 De G . & S . 444).................. 315
687, 691 ; 41 Ch . Div. 295, 306 )............89, 180, 416 Brown v . Howard (2 B . & B . 73 ).... ... .... .. 687
Bond v. The Brig Cora (2 Washington, 80) ......... 844 Brown, ex parte ; re Smith (17 Q . B . Div. 488 ; 20
Bongiovanni v. Société Générale (54 L . T. Rep . Q . B . Div. 321) ....... 552
N . S . 320) ............ 430 Browning v. Sabin (5 Ch. Div. 511) ...... 758
Bonnewell v. Jenkins (38 L. T. Rep . N . S. 581; 8 Brownlie v. Russell (48 L. T . Rep . N . S. 881 ; 8
Ch . Div. 70) ...... 416 App. Cas. 235 ) ......... ............294, 487
Bonser v. Cox (4 Beav . 397)... 545 Bruce v. Helliwell (5 H . & N . 609) .... 918
Booth v. Alington (28 L . T. Rep . 0 . S. 211 ; 6 De Brudenell v. Elwes (1 East, 442, 452 )..... 772
G . M . & G . 613) 491 Bryant and Cullingford to Barningham , re (62
Bos v. Helsham (15 L . T . Rep. N . S. 481; L . Rep. L. T. Rep. N . S. 53 ; affirmed 88 L. T. 361) ...... 653
2 Ex. 72)................ 808 Bryon, re ; Drummond v. Leigh (30 Ch. Div. 110 ) 900
Boss, ex parte ; re Whalley (30 L . T. Rep. N . S. 474 ; Buchan v . Hill (W . N . 1888 , p. 233) ........ 676
L . Rep . 18 Eq. 375) ........ 263 Buchanan v. Andrew (L . Rep. 2 H . L . Sc. 286 )...... 194
Bostock v. Floyd (13 L. T. Rep. N . S. 489 ; L. Rep . Buchanan v. Muirhead (Mor. Dict. 14 , 593) ......... 741
1 Eq. 26) ........... 630 Buchan's Case (4 App. Cas.583)..... 165
Bostock v. The North Staffordshire Railway Com . Buckle v. Lordonny (56 L . T. Rep. N . S. 273 ; 56
pany (5 De G . & Sm . 584).... 794 L. J . 437, Ch.)...... . . . . . . . . . . . . 653
Bosvile v . Bosvile and Craven (58 L . T. Rep. N . S. Bugden v. Bignold (2 Y. & Coll. Ch. Cas. 377) ...... 252
640 ; 13 Prob. Div . 76 ) ........... Bulkeley v. Schutz (L .Rep. 3 P . C . 764 ) .........156 , 854
666
Bowen
Rep . v.N . The
S. 6 Brecon
; L . Rep.Railway Company (16 L . T . 240 Bullen, re ; ex parte Arnauld (5 M . B. R . 243,
3 Eq. 541)............... C . A .)........ ............ 368 , 371
Bowes v. The Directors of the Hope Life Insurance Bullock v. Downes (3 L . T . Rep. N . S. 194 ; 9 H . of
and Guarantee Company (12 L . T. Rep. N . S.680 ; L . Cas. 1 )... . . .. .. .. . .. ... 362
11 H . of L . Cas. 389)... 817 Bund v . Green (12 Ch. Div. 819) ....... 383
. . . . . . . . . 303
Bowker v. Burdekin (11 M . & W . 128 ) 850 Burdett, re ; ex parte Byrne (58 L. T. Rep . N . S.
Bowker v. Evans (53 L. T. Rep . N . S. 801 ; 15 708 ; 20 Q . B . Div. 310) 852
Q . B . Div . 565) ......... Burdick Garrick
447 v. (22 L . T. Rep. N . S. 502 ;
Bows v . Fenwick (L . Rep . 9 C . P. 339) ..... ...... .... 437 L . Rep. 5 Ch. 233)..... ...........83, 898
Boyd v . Horrocks (6 Rep. Pat. Cas. 152 )............... 511 Burgess v . Burgess (3 De G . M . & G . 896 , 904) ... 634
Boydell v . Drummond (11 East, 142) ........ 108 Burgess's case (43 L . T . Rep . N . S. 45 , 46 ; 15 Ch .
Bradford Tramways Company, re (35 L . T . Rep . Div. 507, 511) .......... .......... ...227, 888
N . S. 827 ; 4 Ch. Div. 18)... 349 Burgoyne v. Showler (1 Rob. 5) .................. ...... 508
Bradley v. Riches (39 L . T. Rep. N . S. 78 ; 9 Ch. Burland's Trade Mark , re ; Burland v. The Rox .
Div . 189) .............. 923 burn Oil Company Limited (60 L . T . Rep . N . S .
Bradshaw v. Vaughton (3 L . T. Rep. N . S. 373 ; 30 586 ; 41 Ch. Div . 542) ....... . .................... 720
Burleton v .Humfrey (1 Ambl. 256 ).........
L . J . 93, C . P .) ...... 637
Branston, The (2 Hagg . 3, n .) .... 844 Burrard v. Calisher (45 L . T. Rep. N . S. 793) ...... 751826
Branstrom v. Wilkinson (7 Ves. 420).. 149 Burrell v. Delevante (30 Beav. 550) ... . .. . .. .. . .. . ... 819
Bray v. Gardner (56 L . T. Rep. N . S. 292 ; 34 Ch. Busfield , re (54 L . T. Rep. N . S. 220 ; 32 Ch. Div.
Div. 668) .. 120 123) ... ... .. . *.*............... 830
Bree v. Perfect (1 Coll. 128) 149 Bushby v. Dixon (3 B. & C . 298) ...
Bridges, re ; Hill v. Bridges (17 Ch. Div. 342) .......838 Byfoged Christensen , The (41 L . T. Rep. N . S. 535 ;
Briggs v. Jones (23 L . T. Rep. N . S . 212 ; 10 Eq. 92) 927 4 App. Cas. 669 ; 4 Asp. Mar. Law Cas. 201) ... 842
Briggs v. Olliver (14 L . T. Rep. N . S.412. ............
; 4 H . & 810
C . 403 ) ...... .......
Bright v. Legerton (3 L. T. Rep . N . S. 205, 713) ... 281
Brighton Arcade Company v. Dowling (17 L . T .
Rep . N . S. 541 ; L . Rep. 3 C . P . 175 )... 229, 405 , 892
Brigstocke, re ; ex parte Brigstocke (35 L . T. Rep . Caballero v. Henty (30 L. T. Rep. N . S. 314 ; L .
N . S . 831 ; 4 Ch. Div . 348) ........................... 263 Rep. 9 Ch. App. 447) .. ........... 395 , 446
Bristol and North Somerset Railway Company, re Cadell v. Palmer (7 Bli. N . S. 202 ; 1 Cl. & F. 372) 772
(20 L . T. Rep. N . S. 70Assurance
; L . Rep. Company,
6 Eq. 448 ) ....... 240 Caledonian Railway Company v. Dixon (7 Court
British Guardian Life re (14 Sess. Cas. 4th series, 216 ; 43 L . T. Rep. N . S.513 ;
Ch. Div . 335 ) 632 1 5 App. Cas. 824 ).......... 197
Oct. 18, 1890.] THE LAW TIMES. [Index - xxi
TABLE OF CASES.
Caledonian Railway Company v. Sprot (2 Macq. Childers v. Childers (1 De G . & Jo. 482; 3 K . & J.
310 ) ...... ......... ** **
449) ......
H . of L . Railways
Cambrian re (17 L . T . 194
Company's Scheme,...........page China Steamship Company, re ; ex parte ...... .........page 386
Mackenzie
Rep. N . S. 374 ; L . Rep. 3 Ch. App. 278 )......... 240 (L . Rep. 7 Eq. 240).... .. . .. . ... . .. . .. . .. 227
Camp bell v. Lang Oil
Canadian Native (1 Mac q.451) Limited
Company .......... , re ; Fox's 34 Christie v. Richardson (10 M . & W . 688)................ 704
Christmas, re (55 L . T. Rep. N . S. 200 ; 33 Ch. Div.
case (L . Rep . 5 Eq. 118 ) ......... 332, 340) ... ... ... .. 143
Cannon v . Smalley (10 P. Div. 96 ) ..... 501 Christy v . Courtnay (13 Beav. 96 ) ............... ..... 386
Capel and Co. v. Sim 's Composition Company (58 Churchill v . Churchill (5 Eq. 44) ......... 491
L . T . Rep. N . S. 707 ; 36 W . R . 689) .......... City and County Investment Company, re (42 L . T .
Carleton v. Leighton (3 Mer.671) · 929 Rep . N . S. 303 ; 13 Ch. Div. 475 )...... 62
Carr v. Easta brook (3 Ves. 561) . City of London v. Acocks (8 C. B . N . S. 760) ......... 732
Carr v . Lambert (14 L . T . Rep. N . S. 255 ; L . Rep . City of London Brewery Company v. Tennant (39
1 Ex. Ch. 168) 1. T. Rep. N . S. 755 ; L . Rep. i Ch. App. 212)... 751
. .. 593
Carr v. Stringer (Ell. Bl. & M Ell. 123)) . . . . . . . . . . . . . . . . . . 815
l . 128 Claggett, re ; ex parte Lewis (36 W . R . 653) .......... 942
Carrick v. The North British Building Society (in Clarence, The (3 W .Rob. 286 ) ..... .. .. . .. 841
liquidation ). (22 Scottish L . Rep. 833) ............ 294 Clarke v. Adie (L . Rep. 2 E . & I. App. 423) ......... 222
Cart v. Rees (cited in Squib v.Wyn , 1 P.Wms. 381) 356 Clark v. The School Board for London (29 L . T. Rep.
Carter v . Boehm (3 Burr. 1905) ......... 418 N . S. 903 ; 9 Ch. App. 120)........................ 553, 807
Carter v . Taggart (16 Sim . 423 ) ......... 490 Clark v.Watkins (8 L. T.Rep. N . S. 8 ; 11 W . R . 253) 453
Carter v. White (50 L . T. Rep . N . S. 670 ; 25 Ch. Clarke, re (1 De G . M . & G . 43) .................. 832
Div . 666 )... ...... . . . .. .. . .. . 544 Clarke , ex parte (Jac. 595)........... .. . .. . .. . .. . .. . 930
Carven, re (8 Beav. 436 ) ........ 39 Clarke v. Colls (9 H . of L . Cas. 601) 790
Carver v . Bowles (2 R . & M . 304) ...... ... ... ... ... 491 Clarke v. Hart (32 L . T. Rep. N . S. 380 ; H . of L .
Cassaboglou v. Gibb (48 L , T. Rep. N . S . 850 ; 11 Cas. 633) ............. 277
Q . B . Div. 797) .. 688 Clarke v . Law (2 K . & J. 28).. 715
Cassidy v. Belfast Banking Company (22 L. Rep. Ir. Clarke v. Parker (19 Ves. 1) ..
68 ) . .. . .. .. 614 Clark 's Estate, re ; Maddick v. Marks (43 L . T. Rep.
Cattlin v. Brown (11 Hare, 372, 375) .............. 26 , 772 N . S .40 ; Ch. Div. 53) ........ 87
Catton v . Wyld (32 Beav. 266)...... 520 Clarkson, re ; ex parte Allestree (2 M . B . K . 219) ... 614 371
Cave v. Hastings (45 L . T. Rep. N . S. 348 ; 7 Q . Clement v. Cheesman (27 Ch. Div.631) :
B . Div. 125) ............. .. . .. .. .. . 108 Clergy Orphan Corporation , re (30 L. T. Rep. N . S.
Cavendish - Bentinck v. Fenn (57 L . T. Rep . N . S. 806 ; 18 Eq. 280) .....
773 ; 12 App. Cas., 652, 669) ......... . .. .. . . .. 874 Clifford ». Lewis (6 Mad .................... ................... 421
. 33)............ ... ............... 560
Cella, The (59 L . T. Rep. N . S. 125 ; 6 Asp. Mar. Clifton v. Burt (1 P . Wms. 678) ............. . . .. .. .. .. . ..
561
Law Cas. 293 ; 14 P. Div. 82) ........................... 410
Central News Limited v. Eastern Telegraph Com
Clifton v. Ridsdale (36 L . T. Rep. N . S. 865.............
; 2 Prob. 168
Div. 276 ) ...... ...
pany (W . N . 1884 , p. 23 ) ............. . . ... . .. ... . .. 516 Clinch v. Financial Corporation (19 L. T . Rep. N . S.
Central Railway Company of Venezuela v. Kisch 334 ; L . Rep. 4 Ch . 117 ) ..... .. .. 61
(16 L . T . Rep. N . S. 500 ; 2 H . L . 99) ...... 32 Clinton, re (13 Eq. 295 ; 26 L . T. Rep. N . S. 169) ... 933
Ceto, The (62 L . T. Rep . N . S. 1 ; 14 App . Cas. 670) 332 Cloud v. Turfery (2 Bingh. 318 ; 3 L. J. Rep . O . S.
Challender v. Royle (57 L . T. Rep . N . S. 734, 17, C . P .) ...... ... 114
738 (a ) ; 36 Ch. Div. 425, 437) ............ 425, 598 Clough v. Bond (3 My. & Cr. 490) ... 630
Chamberlain v. Lee (10 Sim . 450) ... . .. 55
Chambers v . Bernasconi (1 Cr. & Jer. 451) ......... 78
Clover v. Adams and others (6 Q . B . Div .622)
Clowes v. Hilliard (4 Ch . Dir. 413) ..........
727
929
Champney v. Davy (40 L . T. Rep. N . S. 189 ; 11 Ch.
Div . 949)...... .. ...
Coates, ex parte ; re Skelton (5 Ch. Div. 979).. 943
Chapman v. Biggs (48 L. 1. Rep. N . S. 704 ; 11 Q . 490 Cobham v. Dalton (L . Rep. 10 Ch . App. 655 ) . 722
Cock v.Goodfellow (10 Mod . Rep. 489, 496 ) ........ 365
B . Div . 27) ........... 146 Cockburn v. Edwards (43 L . T. Rep. N . S. 755 ; 16
Chapman v. The Royal Netherlands Steam Navi. Ch. Div . 393) ........ 432
gation Company (40 L. T. Rep. N . S. 433 ; 4 Cockerell v. Aucompte (26 L . J. 194, C . P.) ......... 658
Prob. Div. 157) ........ .. ... .. . 785 Cockerill v. Sparkes (7 L. T. Rep. N . S. 752; 1
Chapman, Morsons, and Co. v. Guardians of H . & C . 699) ... ...... 543
Auckland Union (61 L. T. Rep. N . S. 446 ; 23 Q . Codrington v. Codrington (34 L . T. Rep. N . S. 221 ;
B . Div . 294) ... ........ ......... 520 L . Rep. 7 E . & I. App. 854 ) ...
Charitable Corporation v. Sutton (2 Atk. 400) ...... 687 Cole v. Park (61 L . T . Rep. N . S. 173 ; 41 Ch. Div.
Charles v . Burke (60 L . T . Rep . N . S. 380) 87 326 )
Charlton v. Earl of Durham (20 L. . T. ... .Rep. N . S. Cole v. Sewell (4 Dr. & War. 1, 28, 32 ; 2 H . of L .
467 ; L . Rep . 4 Ch . 433 ) . . . . . . . . . . . . . . . . . . . . . . 165 Cas. 186) ............... ............... 26 , 772
Charlton v. Hindmarsh (8 H . of L . Cas. 160)......... 508 ! Cole v.Willard (25 Beav. 568) . .. .. ... ... 52
Charlton v. West (30 Beav. 124 )......... .. . .. . .. ... . . .. .. .. 53 Colem an , re ; Henry v. Strong (60 L . T. Rep....N . S.
Chartered Mercantile Bank of India, London and 127 ; 39 Ch. Div.443) .. ...
China v. Wilson (38 L . T. Rep. N . S. 254 ; 3 Ex. Coleman v. Llewellin (55 L . T. Rep . N . S . 647 ; 34
Div. 108)............ . . ... . .. . 467 Ch. Div. 143) .......... .. . .. . ... . ..
Chatfield v. Berchtoldt (26 L . T. Rep . N . S. 267..; Collette v.Good (38 L. T .Rep. N . S. 504 ; 7 Ch. Div. 18
L. Rep . 7 Ch. 192) ...... 177 842 ) ........................
Cheney v. Courtois (7 L . T. Rep. N . S. 680 ; 13 C. B . Collie's Claim (25 L , T. Rep . N . S. 526 ; L . Rep . 12 2
N . S . 634) ............ 515 Eg. 246 ) ............. 23
Cheslyn Hall, re (W . R . 686 ) .. 568 Collinge v. Heywood (9 Ad. & El. 633) 603
Chester v. Rolfe (23 L . J. 233, Ch.)..... . Collings v . Collings (26 Beav. 306 ).... 808
Chetwynd v. Chetwynd (13 L . T . Rep. N . S . 474 ; Collins v. Locke (41 L . T. Rep. N . S. 292 ; 4 App.
L . Rep . 1 P . & M . 39 ) 91 Cas. 674) .. 310
Chifferiel, re ; Chifferiel v. Watson (60 L . T . Bep . Collyer v. Finch (5 H . L . Cas. 905, 920) ................ 923
N . S. 99 ; 40 Ch. Div. 45 ; W . N . 1888, p. 155 , Colonial and General Gas Company Limited, re ;
36 W . R . 806 ) ... .......... Lishman's case (23 L . T. Rep. N . S. 759)............. 888
Child v. Douglas (5 De G . M . & G . 739) ...........19,. 71599 Colonial Mutual Life Assurance Society, re (46 L . T .
Child v. Starr (4 Hill's New York Rep . 369) .......... 1991 Rep. N . S. 282 ; 21 Ch. Div.837) ... 926
xxii - Index.] THE LAW TIMES. [Oct 18, 1890.
TABLE OF CASES.
Colonial Trusts Corporation , re ; ex parte Bradshaw
(15 Ch. Div . 465).........
Crossfield v. Such (8 Ex. 159, 825 ; 22 L. J. 55, 325
..........page 888 Ex.) .......... ..............page 497
Coltness Iron Company v. Black (45 ..L.. .. .T... . ...Rep. Crossley v.Maycock (18 Eq. 180 )....... ... ... . ..... 419
S. 145 ; 6 App. Cas. 315) .......... . .. 154 Crossman v. The Queen (55 L . T. Rep. N . S. 848 ;
Combined Weighing and Advertising Company v. 18 Q . B . Div. 256) ........ 769
Automatic WeighingMachine Company (61 L . T. Crowhurst v. The Amersham BurialBoard (39 L. T. 4
Rep . N . S. 582 ; 42 Ch. Div. 665)...................... 598
Comn ce, The (3 W . Rob. 287) ...... ................... 842
Rep. N . S. 395 ; 4 Ex. Div. 5).... ....... 93
Crowther, re ; ex parte Ellis (58 L . T. Rep. N . S.
Compagnie Générale deBellegarde, re (34 L . T. Rep.
N . S. 54 ; 2 Ch. Div . 181) .........
115 ; 20 Q . B . Div . 38 )..... 817
139 Crowther v. Oldfield (1 Salk . 170, 364 ; 2 Lord Raym .
Concha v. Concha (55 L. T. Rep . N . S. 522, 526, 717 1225) ....... 255
527 ; 11 App. Cas. 541, 558, 559) ............ ............ Cuddington v. Wilkins (Hob . 81)...... 291
Condor , The (40 L . T . Rep. N . S. 442 ; 4 P . Div. 115 ; Cullen v . Morris (2 Stark . 577) .. 788
4 Asp . Mar. Law Cas. 115) .. 407 Cundy v. Le Cocq (51 L . T. Rep. N . S. 265 ;. .13. . 2285
Coneys' case (Godbolt, 124 ; 2 Leonard, 201) ...... 591 Q . B . Div . 207) ... ...... .. . .. . .. . .. . . . 285
Connolly v. Woolrich (11 Low . Can. Jur. 197) ...... 912 Cuno, re ; Mansfield v . Mansfield (43 Ch . Div. 12) 930
Conservators of the River Thames v . Hall (18 L . T . Cuthbert Cumming v. (11 Ex.4 . 405)
9 . ) ....... 740
. . . ... . . .. . . ..
.. .. .
Rep. N . S . 361; L . Rep . 3 C . P . 415) ............... 815 Cutts v.Gilbert (9 Moo. P. C . 131) .......... ..... .... 503
Cook, (61 L . T.(W Rep.
Cook v.reHeynes N . S . p.33575).....................
) ......... 371
. N . 1884, 724
Cooke v . Maxwell (2 Stark . 185, 186 ) ... ...... ..... 559
Cooke v. Oxley (3 T. R . 653)......... 419 D.
Cooke, ex parte ; re Strachan (35 L . T. Rep . N . S.
649 ; 4 Ch . Div . 123) .. .... 429 Dale and Plant Limited , re (61 L. T. Rep. N . S.
Cooper v. Cooper (59 L . T. Rep. N . S. 1 ; 13 App . 206 ; 43 Ch. Div . 255 )..... ... . .. .. . 761
Cas. 88 ) ...... 520 Daley v. Desbouverie (2 Atk . 261) ........ 182
Ccoper v . The Wandsworth Board of Works (14 Dalton v. The Midland Railway Company (12 C . B . 439
C . B . N . S . 180 ; 32 L , J. 185 , C . P .) 698 458) ...... ... .
Cooper v. The Wandsworth District Board of Daniel's Settlement Trusts, re (54 L. T. Rep. N . S.
Works (8 L. T. Rep. N . S. 278 ; 14 C.. . .B... . N. ... .S.. . 784
180 ) . .. .. . .. . ...
308 ; 1 Ch. Div . 375) ...... ......... . .. . . ... . .. .. .. 754
Darby v. Darby (3 Drew . 495) ........ ... . .. .. . ... 202
Coote v. Judd (48 L. T. Rep. N . S. 205 ; 23 Ch. Div . D 'Arcy v. The Tamar Kit Hilland Callington Rail
727 ) ... . ....................................... ............ 18 way Company (L . Rep. 2 Ex. 158) ............ 232, 564
Coppard , re ; Howlett v. Hodson (56 L . T.Rep. N . S. Darling v. Atkins (3 Wilson , 33) ........................ 657
359 ; 35 Ch. Div . 391 Darlington v.Hamilton (Kay, 550) ..................... 472
Copin v. Adamson (31350)
L . T... Rep. N . S. 242 ; L . Rep. Darvill v. Roper (3 Drew . 294 )..... 194
9 Ex. 345 ; affirmed on appeal 33 L . T . Rep. N . S. Davenport v. Rylands (14 L . T. Rep. N . S. 53 ;
560 ; 1 Ex. Div . 17) .... ........................... 189 L . Rep . 1 Eq. 302) ........ 520
Corbett v. Corbett (60 L . T. Rep. N . S. 74 ; 14 P. David Lloyd and Co, re (37 L . T. Rep. N . S. 83; 139
Div. 7) ............. . . ... . . . .. . 6 Ch . Div . 339) ......
Core v. James (25 L . T. Rep. N . S. 593 ; L . Rep. Davidson's Settlement, re (15 Eq. 383) 781
7 Q . B . 135)....... 286 Davies, re ; Davies v. Duvies (58 L. T . Rep . N . S. 474
Cornmell v. Keith (35 L . T. Rep. N . S. 29 ; 3 Ch. 312 ; 38 Ch . Div . 210)
Div . 767) ... 933 Davies v. Felix (39 L . T . Rep . N . S. 322 ; 4 Ex.
Corporation of Birmingham v. Baker (17 Ch. Div. Div . 32) ......... ...... 556
782) ............... 807 Davies v. Lowndes (5 Bing. N . C . 161 ; 6 M . & G .
Corporation of Huddersfield and Jacomb, re (L . Rep . 471) ... . .. ... .. .. ... ... .. ..; ..4. 78
17 Eq. 476
ratio n ; 10 Ch. 92) .............. 835 Davi es v. Mc eagh (41 L . T. Rep. N . S. 308
Corpo of Worcester v. Droitwich Assessment Ex. Div. 265 ; 4 Asp . Mar. Law Cas. 149) . ... .. ... 844
Committee (36 L T. Rep. N . S. 186 ; 2 Ex. Div. Davies v. Rees (54 L. T. Rep . N . S. 813 ; 17 Q . B .
49) ...... Div . 408) ........... 480
Cory v . Eyre ( 1 De G . J. & Sm . 149) .......... 923 Davies v. Angel (4 De G . F . & J. 524)............. 931
Cossens, ex parte (Buck . 531) .......... 568 Davies v. Bank of England (5 B . & C . 185 ) .......... 165
Cosser v. Radford (1 De G . J. & Sm . 585) ...... 931 Davis v. The Duke of Marlborough (2 Sw . 108)....... 82878
Cotterell v. Dutton (4 Taunt. 826 ) .... Davis v. Lloyd (1 C . & K . 275)....
Cotton v. Wood (8 C. B . N . S. 568) Davis v. Treharne (6 App . Cas. 460) ......... ......... 194
Countess of Durham , The (9 Monthly Law Magazine, Dawdy, re (53 L . T . Rep. N . S. 800 ; 15 Q . B . Div.
279 ) ....... ........ ... 50 426 ) ... ....... 308
County Marine Insurance Company, re ; Rance's Dawes, ex parle ; re Moon (55 L. T. Rep. N . S. 114 ;
case (23 L . T. Rep . N . S.828 ; L . Rep. 6 Ch. 104) 688 17 Q . B . Div. 275 ) ........ . . . . . . . . . . .. . 455
Courtenay v. Wright (2 Giff. 337) ............. Dawes v. Tredwell (45 L . T. Rep. N . S. 118 ; 18
Cowell v. Taylor (53 L . T. Rep. N . S. 483 ; 31 Ch . Ch . Div . 354) ........ 775
Div .886 ) ............ . .. . .. .. . .. . ... ... . .. . .. 676 Dawson v. Dawson ( L . Rep. 4 Eq. 504) ............... 53
Cox v. Cooper (12 W . R .75).......... .. ..... ... ... 122 Dawson v. Paver (5 Hare. 415)............... ............ 421
Cox v. Hickman (8 H . of L . Cas. 268).................. 300 De Bernales v. Wood (3 Camp. 258)................... 33
Coxhead v. Mullis (39 L. T. Rep . N . S. 349; 3 C. P. 319 Delaunay v . Strickland (2 Stark. 416 )................... 658
Div. 439) .......... Delvin v . Skeats (1 Sw . & Tr. 148) ............ ....... ... 508
Cradock v. Piper (1 Mac. & G . 664).... . 104 Denham & Co., re (25 Ch. Div. 752).... 688
Crawshay , re ; Dennis v. Crawshay (60 L . T . Rep . Dent v . The Auction Mart Company (14 L . T. Rep.
N . S. 357)... 340 N . S . 827 ; L . Rep . 2 Eq. 238 ) 520
Creagh v. Wilson (2 Vern . 571) 182 Derry v. Peek (61 L . T. Rep . N . S. 265 ; 14 App.
Crewe v. Crewe (3 Hagg. Eccl. Rep . 123) ............. 345 Cas. 337 , 346) ..... ...... ... ....... 30, 135, 305 , 396 , 761
Crickmer's case (L . Rep. 10 Ch. App. 614 )............. Dickens v. Shaw (Hall on the Seashore, 2nd edit., 34
303
Cridland, ex parte (2 Rose, 164 ; .3 Ves. & B . 94 ) ... app., p. 45) ........
Crisp v . Bunbury (8 Bing. 394) .. . .. Dickinson v. Dodds (34 L . T . Rep. N . S. 607 ; 2
Cropper v. Smith (51 L . T . Rep . N . S. 729 ; 26 Ch.
Div. 700 ) .........
Ch. Div. 463) ................................................. 419
18 Dickenson v. Kitchen (8 E . & B . 789) ................... . 410
Oct. 18, 1890.) THE LAW TIMES. [ Index - xxiii
TABLE OF CASES.
Dicksonv.Great Northern RailwayCompany (55 L. T . Dunelm , The (51 L . T. Rep . N . S. 214 ; 9 P . Div.
Rep . N . S. 868, 873; 18 Q . B. Div. 176 , 184) page 269 164 ; 5 Asp . Mar. Law Cas. 304)... .............page 95
Ditcham v. Worrall (43 L . T . Rep. N . S. 286 ; 5 Dunkirk Colliery Company v. Lever (39 L . T. Rep . 756
C . P . Div . 410).......... .... 319 N . S. 239 ; 9 Ch. Div. 20)......
Dixon v . Caledonian Railway Company (7 Court Dann v. Dann (59 L. T. Rep. N . S. 385 ; L . Rep .
Sess. Cas. 4th Series, 216 ; affirmed an appeal, 43 13 P . Div . 91)..........
L . T . Rep . N . S . 513 ; 5 App . Cas. 820)............ 194 Dunstan v. The Imperial Gas Light Company (3
Dixon v. Muckleston (27 L . T. Rep. N . S. 804 ; 8 B . & Ad. 125)........
Ch . App. 155) ...... 922 Durell v. Pritchard (13 L. T. Rep. N . S. 545 ; L .
Doble v. Manley (52 L . T. Rep. N . S. 246 ; 28 802 Rep . 1 Ch. App. 244). .........................
Ch . Div. 664) . Durham v. Durham (10 P . Div. 80 )........ 501
Docker, ex parte (26 W . R . 633) 39 Dursley v. Fitzhardinge Berkeley (6 Ves. 251, in
Doe v. Angell (9 Q . B . 328 ) . 77 which case reference was made at page 259, to
Doe v. Beckett (4 Q . B . Div.601) ...... 78 Smith v. The Attorney -General,in Chancery 1777) 929
Doe r . Bray (8 B . & C . 813) .................. ............ 78 Dyce v. Lady James Hay (1 Macq. 305 , 312) ...... 34
Doe v . Groves (10 Q . B . 486 )............ 78 Dyke v . Cannell (49 L . T . Rep. N . S . 174 ; 11 Q . B .
Doe d . Armitstead v. North Staffordshire Railway Div . 180) ...... ........ ............ 360, 880
Company (16 Q . B , 526 ) ............. 882 Dyke v. Stephens (53 L. T. Rep. N . S. 561 ..; ....30 Ch.
Doe d . Baldwin v. Rawding (2 Barn , & Ald . 441) ... 790 Div. 189)......... . . .. .. . 326
Doe d . Calvert v . Reid ( 10 B . & C . 849) ............... 503
Doe d . Cook t. Danvers (7 East, 229) .................. 790
Doe d . Davies v. Davies ( 9 Q . B . Rep. N . S . (Ad. &
El . 648) ....... 508 E.
Doe d . Fisher v . Cuthell (5 East. 491)...... 181
Doe d . Harborne v . Lewis (7 Car. & P . 574 )......... 508 Earl of Charlemont v. Spencer (11 L . Rep . Ir. 347) 16
Doe d .Mann v . Walters (10 B . & C . 626 ) ... ......... 181 Earl of Chesterfield 's Trusts, re (49 L . T . Rep .
Doe d . Payne v. The Bristol and Exeter Railway N . S. 261 ; 24 Ch . Div . 640) ... .... 218
Company (6 M . & W . 320) . .. . .. .. . .. ..
Dominion of Canada Plumbago Company, re..; 882 Earl of Coventry v. Willes (9 L . T . Rep. N . S. 384) 36
Earl De la Warr v . Miles (45 L . T . Rep. N . S . 424 ;
ex33)parte Beall (50 19 Ch. Div . 80 ) ........ .. . .. . .. . . .. 305
............. L. T.Rep. N . S.518 .........
; 27 Ch. Div.
621, 862 Earl of Jersey v. Guardians of Neath (22 Q . B .
Donal dson , re (51 L. T. Rep. N . S.622; 27 Ch. Div.
544) ......... ..
Div . 555)....
........... 33, 674
194
Earl of Ripon v. Hobart (3 My. & K . 169) ............ 794
Doncaster Permanent Building Society, re (15 Earl of Sheffield v. London Joint Stock Bank (58 L .
L . T . Rep . N . S . 270 ; L . Rep . 3 Eq. 158 )......... 487 T . Rep. N . S. 735 ; 13 App . Cas. 333)............... 429
Dorchester Union v. Poplar Union (59 L . T . Rep. Earl of Thanet's case (27Policy
State Trusts,
Trials, re822)(59.........
N . S . 687 ; 21 Q . B . Div . 88)...... .......... ... ........ 70 Earl of Winchelsea's L. T. 713
Dordogne, The (51 L . T. Rep. N . S.650; 10 P . Div.6 ) 3 Rep . N . S . 167 ; 39 Ch. Div . 168) .................. 476
Dowling v. Pontypool, Caerleon, and Newport
Railway Company (L . Rep. 18 Eq. 714 )............. 882
East London Waterworks Company v. Vestry of
St.Matthew , BethnalGreen (54 L . T. Rep . N.....
. S.
Downs v. Salmon (59 L . T. Rep. N . S. 374 ; 20 919 ; 17 Q . B . Div . 475) ........
Q. B . Div . 775) .... 902 East Pant Dee Company v. Merryweather (2 H . ..& ..
Dowse v. Gorton (60 L . T. Rep . N . S. 605 ; 40 M . 254 )......... . . .. .. .. ...
QO
Ch. Div. 536 ) ...

Drage v . Ibberson (2 Esp. 643) .........
... . .. . .. . .. 621 East and West Junction Railway Company, re (21
. . . . . . . . . . . . . . . . . . . ."...
Dreyfus v . Peruvian Guano Company (61 L . T . Rep.
726
. . . . 726 L . T . Rep . N . S . 86 ; L . Rep . 8 Eq. 87, 91, 93) ... 240
Eastwood v. Lever (9 L . T . Rep. N . S . 615 ; 4 De
N . S . 180 ; 62 Ib .518 ; 42 Ch . Div . 66 ; 43 Ib. 316 ) 898 G . J. & S. 114, 128 ) ................ .. . ... ... . .. 520
Driffield and East Riding Pure Linseed Cake Com 491
Easum v. Appleford (10 Sim . 274) ........................
pany v. Waterloo Mills Cake and Warehousing Ebor, The (54 L . T. Rep. N . S. 200 ; 11 P . Div. 25) 3
Company (54 L . T . Rep . N . S. 210 ; 31 Ch. Div. Ebsworth and Tidy's Contract, re (60 L . T . Rep.. . 55
638 ) ..................................... .. ... .. ..... ... .... 600 N . S. 841 ; 42 Ch.Div. 53) ...... .. ....
Dronfield Silkstone Coal Company, re (23 Ch. Div. Eccleston v. Petty (Carth. 79) ........ ......... 326
511) ......................... 621 Eden v. Thompson (10 L . T . Rep. N . S . 522; 2 H .
Drummond and Sons v. Van Ingen and Co. (57 & M . 6 )...... 626
L . T. Rep . N . S . 1 ; 12 App . Cas. 284 ) ............ Edgcombe v. Rodd (5 East, 294) .. 7265
Drysdale v. Piggott (27 L. T. Rep . 0 . S. 193 ; 8 Edmunds v . Low (3 K . & J. 318 )..... 2
De G.M.& G. 546 ) ... Edmunds v . Povey (1 Vern . 187) ... 923
Duffield v. Elwes (1 Sim . & St. 239; 1 Bli. N . S. Edmunds v. Wallingford (52 L . T. Rep . N . S. 720 ; 409
497) ......... 615 14 Q . B . Div . 811) ...
Duke of Bedford v. Dawson (33 L . T. Rep. N . S. Edwards v. Dennis (54 L . T. Rep . N . S. 112 ; 30 Ch.
Edwards v. Thompson (38 L . J. 65, Ch .) ............ 624
156 ; L . Rep . 20 Eq. 353) ...... ......... 553, 807 Div .454) ............
Duke of Bedford v. The Trustees of the British 777
Museum (2 M . & K . 572 ) ... ........ 101 Egerton v. Brownlow (21 L . T. Rep. N . S. 306 ; 4
Duke of Buccleuch, The (62 L . T. Rep. N . S. 94 ; 6 1 H . L . Cas. at p . 163) ............. 726
Asp. Mar. Law Cas. 471 ; 15 P. Div . 86 ) .......... 67 Elder v. New Zealand Land Improvement Company
Duke of Buccleuch v. The Metropolitan Board of (30 L . T . Rep . N . S . 285) ........ 876
Works (27 L . T . Rep . N . S . 1 ; L . Rep . 5 H . of L . Eldridge v. Burgess (38 L. T. Rep. N . S. 232 ; 7 Ch.
418 ) ... ............... ........ 307 Div. 411) .......... 338
Duke of Leeds v. Earl of Strafford (4 Ves. 180) ... 213 Elliot v . Collier (3 Atk . 526 ).............. ..... .... ... 357
Duke of Marlborough v. Sartoris (55 L . T. Rep. Elliot v. North -Eastern Railway Company (10 H .
N . S . 506 ; 32 Ch . Div. 616 )....... 54 of L . C . 333) ... ........
Duke of Northumberland v. Todd (38 L . T . Rep . Elliott v. Elliott (12 Sim . 276 ) .
N . S . 746 ; 7 Ch . Div . 777, 780) ....... 38 Emden v. Carte (44 L . T. Rep . N . S.840 ; 19 Ch .
Duke of Portland v. Topham (10 L . T. Rep. N . S. Div . 311) ...
355 ; 11 H . of L . Cas. 32, 55) ...... .. . . . . . . . . . 491 Emme Haase, The (50 L . T. Rep. N . S. 372 ; 9 P .
Duncan v. Lawson (60 L . T. Rep. N . S . 732 ; 41 Div. 81 ; 5 Asp . Mar. Law Cas. 216 ) . .. . .. .. . ... .... . 515
Ch. Div . 394 ) . ...... ............ 177 i Empey v. King (13 M . & W . 519) ......
xxiv - Index.] THE LAW TIMES. [Oct. 18, 1890.
TABLE OF CASES.
English's Settlements, re (60 L . T. Rep. N . S. 44 ; Fisher v. Fisher (5 L. T . Rep . N . S. 364 ; 2 Sw . &
39 Ch. Div. 556 ) ... ............page 627 Tr. 410) ..... .. ... ... . .. ... .... .. page 91
Eno v. Tatham (7 L . T. Rep. N . S. 664 ; 3 De. G . Fitch v . Rawlings (2 H . Bl. 393 ) .......................... ... 36
J. & Sm . 443) ....... . . .. . ... ... ... . .. . .. 865 Fitch v . Weber (6 Hare, 145 ) ............ . ... . ... ... . .. 383
Enohin v. Wylie ( 10 H . L . C . 1) ........................ 781 Fitzgerald, re (2 Sch .and Lef. 431) ......
Errington v. Metropolitan District Railway Com Fleck, re ; Colston v. Roberts (58 L . T . Rep. N . S. 865
pany (46 L . T . Rep . N . S . 443 ; 19 Ch. Div. 559) 194 624 ; 37 Ch. Div.677)...... . .. .. . .. . .. .
Esdaile v. Payne (59 L. T. Rep. N . S. 910 ; 40 Ch . Fleming v. Self (23 L . T. Rep. 0 . S. 63 ; 3 De. G .
Div. 520) .......... ... ... .. 180 M . & G . 997) 689
Essex v. The Acton District Local Board (61 L . T. Fletcher v. Bealey (52 L . T. Rep. N . S. 541 ; 28 Ch .
Rep. N . S. 1 ; 14 App. Cas. 153) ............... 307, 882 Div . 688) ..... 794
Estates Investment Company Limited , re ; McNeill's Flight v. Bolland (4 Russ. 298 )..
case (23 L. T. Rep. Ñ . S. 297 ; L . Rep . 10 Eq. Flinn v. Perkins (32 L . J. 10, Q . B.) ... 448
503) .. .... ... .. 792 Flitcroft's case (46 L . T. Rep. N . S. 474 ; 21 Ch .
Estates Investment Company Limited, re ; Pawle's Div . 519) ..... .... ..... ...
case (20 L . T.
App . 497) ........
Rep. N . S. 589 ; L . Rep. 4 Ch .
.... 792
Flower v . Flower (29 L . T. Rep. N . S. 253 ; 3 P. &
Div. 132) ..... . .. . .. .. . .. .. .. . .. 478
Etty v. Wilson (39 L . T . Rep. N . S. 83 ; 3 Ex. Div. Flying Fish , The (Br. & L . 436 ) ...... . .. .. . 50
359) .....................
European Assurance Society's Arbitration , re (17 556
......... Foley v. Fletcher (3 H . & N . 769 ; 28 L . J. 100,
Ex.) ... ... ... ... . .. .. ..... ... . .. . ... ... . ... .. ... ... .. ... . ... 766
Sols. Jour. 403) ....... 61 Foley v . Hill (1 Phil. 399)........ ... .. .. .. 858
European Central Railway Company, re (35 L . T . Folliott v. Ogden (1 H . Bl. 124) 781
Rep . N . S . 583 ; 4 Ch. Div. 33) ....... 235 Forbes v. Stevens (22 L . T. Rep. N . S. 703; L. Rep.
European Life Assurance Society, re (9 Eq. 122, 10 Eq. 179) .. 177
128 ) .................... .. .. . .. . Ford v. Earl of Chesterfield (21 Beav. 426 , 456 ) ... 862
European Railway Company, re ; Sykes's case (26 Foreman v. Mayor of Canterbury (24 L . T. Rep. .....N . 810
L . T. Rep . N . S. 92 ; L. Rep. 13 Eq. 255 ) ... S . 385 ; L . Rep. 6 Q . B . 214)
Evans, ex parte ; (41 L. T. Rep. N . S. 565 ; 13 Ch. Forest of Dean Coal Mining Company, re (40 L . T.
Div. 252) . 337 Rep . N . S. 287 ; 10 Ch . Div. 450-452).....
Evans v. Bicknell (6 Ves. 173)... ... ... 923 Foster v. The Great Western Railway Company
Evans v. Coventry (29 L . T. Rep . 0 . S. 118 ; 8 De (46 L . T. Rep. N . S. 74 ; 8 Q . B . Div. 515) ...... 513
G . M . & G . 835) ......... 687 Foster v. Roberts (2 Q . B . 467) . 315
Evans v. Evans and Robinson (32 L . T. Rep. 0 . S. Foster v. Usherwood (37 L. T . Rep . N . S. 389 ; 3
244 ; 28 L . J. N . S . 136, P . & M ) .................. 612 Ex. Div. 1) .......... 482
Evans v. Higgs (2 Strange, 797) ...... 657 Foulger v. Taylor (5 H . and N . 202 ; 29 L . J. 154 ,
Ewart 2.Graham (7 H . of L . Cas. 331) ............... 918 Ex.) .......... 162
Ewing v. Orr-Ewing (50 L . T. Rep . N . S. 401; 9 Foy v. Cooper (2 Q . B . 937) .... 832
App . Cas. 34 ) ... ... .. 781 Francis v . Francis (5 De. G . M . & G . 108)........... 272
Frankland, The (27 L. T. Rep . N . S. 633 ; L . Rep.
4 P . C . 529) ...
Freakley v. Fox (9 B . & C. 130)
Freeman, re; ex parte Freeman (62 L . T. Rep. N . 506
S. 367) ...
Falcke v. The Scottish Imperial Insurance Com . Freeman v. Moyes (1 A . & E . 338 ) 771
pany (56 L . T . Rep. N . S. 220 : 34 Ch. Div . 234 ) 476 Freke x. Lord Carbery (16 Eq. 461).. 177
Fallowes v. Taylor (7 Times Rep . 479 ) ............... 725 Freme v. Brade (2 De. G . & J. 582)........... . . .. 315
Fanny M . Carrill, The (32 L . T. Rep. N . S. 646 ; 2 Freme v. Clement (44 L . T. Rep. N . S. 398 ; 18 Ch. 490
Asp. Mar. Law Cas. 565 ; 13 App. Cas. 455 , n ) 95 , 671 Div . 499) ..... . . . . . . . . ..
Farden v. Richter (60 L . T. Rep. N . S. 304; 23 Q .
B . Div . 124) ...........
Freston, re (49 L . T. Rep. N . S. 290 ; 11 Q . B. Div. 713
545 ) ... ... .. .. .. ... ... . ... .. . . ... . .
....... ..... ... . .. ......... 180
Farman, re ; Smith v. Farman (57 L . J . 637, Ch.)... 614 Friedeberg, The (52 L . T. Rep. N . S. 837; 10 P .
Farmer v. Francis (2 Sm . & St. 505) ................... 149 Div. 112 ; 5 Asp. Mar. Law Cas. 426 )................
Farquhar v. Farley (7 Taunt. 592) .......... 33 Frisby, re; Allison v. Frisby (61 L . T. Rep. N . S.
Farrer v. Close (20 L . T. Rep. N . S. 802 ; L . Rep. 632 ; 43 Ch. Div. 106) .........
4 Q . B . 602) ............. .... 282, 310 Fritz v. Hobson (42 L . T. Rep . N . S. 225, 677 ; 14
Farrow v. Austin (45 L . T . Rep. N . S. 227 ; 18 Ch. Ch. Div . 542) 520
Div. 58) ......... 28 Fry v. Tapson (51 L. T. Rep. N . S.............
326 ; 28 273,
Ch .
Faure Electric Accumulator Company Limited , re ; Div . 208 ) 687
. .. . .. 817
(59 L . T. Rep. N . S. 918 ; 40 Ch. Div. 141) 687, 875 Fuller v. Redman (26 Bear. 614)......
Fellows v. Wood (59 L . T. Rep
sep.. N . SS.. 513
513)) ......... 41
Fennings v. Grenville (1 Taunt. 241) .. . .. ... . .. ... . .. 265 Fulton
Ferguson v. Wilson (15 L. T. Rep. N . S.230 ; L.
v. Andrew (L . Rep. 7 Eng. & Ir. App.
461) ......
Cas. 643
..........
Rep. 2 Ch . App. 77) .......... 520
Fewings, ex parte ; re Sneyd (50 L . T. Rep. N . S.
109 ; 25 Ch . Div . 338) ....... 235
Field v. Field (59 L . T. Rep. N . S. 560, 880 ; 14
Prob. Div . 26 )........ 238
Field v. Hopkins (62 L . T . Rep. N . S. 102)............ 674 Gandy v. Jubber (9 L. T . Rep. N . S. 801 ; 5 B . & S.
Fielden v. Slater (20 L . T. Rep. N . S. 112 ; L . Rep . 78 ; 33 L . J. 151 Q . B .) ......... 794
7 Eq. 523) ......... 334 Gardiner, re ; ex parte Coulson (58 L. T. Rep . N . S.
Finch , re ; Abbiss v. Burney (44 L . T. Rep. N . S . 119 ; 20 Q . B . Div. 249) ......... 146
267 ; 17 Ch . Div . 211) .......
Finch v. Great Western Railway Company (41 L .
. 26 Gardner v. The London , Chatham ,and Dover Rail.
way Company (15 L. T . Rep. N . S...............
494, 552 ; 57,
L . 144
T. Rep. N . S. 731 ; 5 Ex. Div. 254)................... 379 Rep. 2 Ch . App. 201) ....
Firmstone's case (L .s Rep . 20 Eq. 524 ) ............... 302 Garfitt v. Allen (57 L . T. Rep. N . S. 818 ; 37 Ch.
Fisher v. Apollinari Company (32 L . T. Rep. N . S. Div. 48) ........................................ ............ 62
5343 904
628 ; L . Rep . 10 Ch. 297) ........ .......... 725 | Garland, ex parte (10 Ves. 110).........
Oct. 18, 1890.] THE LAW TIMES. [Index - X & V
TABLE OF CASES.
Garnett v. Bradley (39 L . T . Rep . N . S. 261; 3 App. | Grant
unt vv.. Ellis (9
( 9 M . & W . 113)
113 ) . .. .. . .. . .. . .. . ... page 77
Cas. 944) ........ ..........page 815 | GrayDivv.. 246 Hopper (59 L. T. Rep . N . S. 286 ;. ...21.. .Q.... ...B. 482
). .. ... ... ...
Garth v . Cotton (1 Dick . 183) . . . .. . .. . .. . ... . .. 448
use
Gateho v. Gat eho use y
(16 L. T. Rep . N . S. 43 ; 611 Gra208)v................
Smi th (62 335 ; 43. . .Ch. . . .. . Div
L . T. Rep. N . S. ............ .
L . Rep . 1 P . & Div . 331) .... ... ................ . . . .. 804
Gateward 's case (6 Co. 59) ....... ..... ... .... .. 255 Great Northern Salt and ChemicalWorks Company,
Gawton v. Lord Dacres (1 Leon . 219).... 78 re (62 L . T . Rep . N . S . 231)........... .. . .. .. . ... .. . 561
Gay t. Cadby (36 L . T. Rep. N . S. 410 ; 2 C . P . Great Western Railway Company v. Bennett (16
Dir . 391) ........... 836 L . T. Rep . N . S . 186 ; L . Rep. 2 H . of L . 27) ...... 194
Geddes v. Mowat (1 Gl. & J . 414 ) ....... 781 Great Western Railway Company v. Fletcher (2 L .
Gee v . Ward (7 El. & Bl. 517)..... 78 T. Rep . N . S. 803 ; 5 H . & N .689) .... 194
General Financial Bank, re (47 L . T. Rep . N . S . 1 ; Greathead v. Morley (3 M . & G . 139) ... 918
20 Ch . Div. 276 ). 361 Greaves v. Greenwood (36 L . T . Rep. N . S. 1 ; 2 Ex.
GeneralSouth American Company, re (34 L . T . Rep. Div. 289 ) ......... 78
N . S. 706 ; 2 Ch . Div . 337) 888 Green v. Humphreys (51 L . T. Rep . N . S. 42 ; 26
GermanDivv. 271)
Chapman (37 L . T. Rep . N . S. 685 ; 7 Ch. Div . 474 ) ......... ... . 280
Ch . . ............. ......... 99, 333 Greenhow v. Ilsley (Willes, 619) ... 593
German Date Coffee Company, re (46 L . T. Rep . Greer v. Young (49 L . T . Rep. N . S . 224 ; 24 Ch.
N . S. 327 ; 20 Ch. Div. 169)..................... 746, 825 Div . 545) .......... 727
Ghost v. Waller (9 Beav.497) ...... 630 Gregg v . Slater ( 25 L . J. 440 Ch .) ... .................. 10 +
Gibb v. Great Southern Mysore Gold Company . ........
Grey v .Grey (2 Swanst. 594) ................... .. .. ... 38674
(unreported case) ... ... ..... Gridley v. Swinborne (52 J. P. 791) ............
Gibbins v. Taylor (22 Beav, 344)... .................. ... Griffith , re ; Carr v. Griffith (41 L. T. Rep. N . S.
Gibson , re (25 L . T. Rep. N . S. 551 ; 7 Ch. App . 540 ; 12 Ch. Div. 655 ) . ............. 365, 777
52) 23 , Griffith v. Paget (37 L . T. Rep . N . S. 141; 5 Ch. 1
Gibson v. Evans (61 L. T. Rep. N . S. 388 ; 23 Q . B . Div . 894) ....... 6
Div. 384) .. 76 Grissell's case (14 L . T . Rep. N . S. 843 ; L . Rep .
Giffard , ex parte (6 Ves. 805 ).. 1 Ch. App. 528 , 535) .. .... ......... 227, 888
Gilbert v. Corporation of Trinity House (17 Q . B. 0 Groom v. Rathbone (41 L. T . Rep. N . S. 591) ...... 405
Div. 795 ) .. .............. 81 Grundy, Kershaw , and Co., re (44 L . T . Rep . N . S.
Gilbert v. Schwenck (14 M . & W . 488 ) 1 4 541 ; 17 Ch. Div . 108) ......... .....
Gilbertson v. Richards (33 L . T. Rep. 0. S. 107 ; 4 Guardian Permanent Benefit Building Society, re
H . & N . 277) ........ 474 (48 L . T. Rep . N . S. 134 ; 23 Ch . Div. 440) ...... 689
Gill v. Gill and Hogg (10 L . T. Rep. N . S. 137 ; 33 Guardiansof Headington v.Guardians of Ipswich
L . J. N . S . 43, P . & M .).......... 612 (2 + Q . B. Div. 414 n ; also reported since this
Gill v . Lougher (1 Cr. & J. 170) ........................ 832 case was heard 62 L . T. Rep . N . S . 547) ............ 662
Gillman v . Daunt (3 K . & J. 48 ) ...............
.............. 391 Gaardians of Headington Union v. Guardians of
Gilman v.Gulcher Electric Light Company (3 Times St. Olave's Union (13 Q . B . Div. 293,at p. 299)... 548
L . Rep. 133) . 761 Guardians of Reigate Union v.Guardiansof Croydon
Gladstone v. Gladstone (35 L . T. Rep . N . S. Union (61 L . T.Rep. N . S. 733 ; 14...............
App. Cas. 548,
465 ; 662
380 ; 1 P . Div. 442, 446 ; L. Rep . 3 P. & D . 56 L . J. 29 , M . C .) ..........
260 ) .. . .. . .. . ..... 91, 329, 382, 477 Guardians of Salford v.Guardians of Manchester
Glanville, re (32 W . R . 523 ; 2 Mor. 71)..... 850 (48 L. T. Rep. N . S. 119 ; 10 Q . B. Div. 172)...... 662
Godard v. Gray (24 L . T. Rep. N . S. 89 ; L. Rep. 6 Guardians of Wayland v . TheGuardians of Mitford
Q . B . 139 ) . ... .. ... .... 191 (62 L . T. Rep . N . S . 69 ; 24 Q . B . Div . 122 ;
Godfrey , re (48 L . T . Rep. N . S. 853 ; 23 Ch. Div. affirmed on appeal)....... .. . .. .. .. .. ... 662
483) ......... .. . . .. .. . .. . . .. . . . 273 Guardians of West Derby Union v. Guardians of
Goetze r. Aders (2 Ct. Sess. Cas., 4th series, 150 )... 781 Atcham Union (24 Q . B . Div. 117) ............. 548, 662
Goldie v. Christie (6 Court Sess. Cas., 3rd series, 541) 78 Guest v. The Poole and Bournemouth Railway
Golds mid v. Cazenove (7 H . L . C. 785) ............... 781 any
Comp (22 L . T. Rep. N . S. 589 ; L . Rep. 5 349
Goldsmid v . Goldsmid (2 Here. 187) .................. 491 C . P. 553) ..................... ....................
Goleborne v. Alcock (2 Sim . 552)...... ... .. 923 Guinness v . Land Corporation of Ireland (47 L . T .
Good, ex parte (36 L . T. Rep. N . S. 338 ; 5 Ch . Div.
46) ... ... ..
Rep. N . S. 517 ; 22 Ch. Div. 349)..... .. . .. . .. .. .. . ..
545 Guthrie v. Walrond (47 L . T. Rep. N . S. 614 ; 22
Goodall v. Skerratt (3 Drew . 216 ; 1 Jur. N . S. 57) 798 Ch . Div. 573) ... ... .. . .. .
Goodfellow v. Prince (56 L . T. Rep. N . S. 617........
Ch. Div. 9 )
; 35 868
Gylbert v. Fletcher (Cro. Car. 179) .....
Goodman v. Grierson (2 B . & B . 274) ...... ........ ... 315
Goodman v. The Mayor of Saltash' (48 L . T. Rep.
N . S. 239 ; 7 App. Cas. 633) .......... .. . ... . .. . .. 255 U
Goodwin v. Robarts (35 L . T . Rep. N . S. 179 ; 1
App. Cas. 476 )........... 428 Hackett v. Baiss (L. Rep. 20'Eq.494).......... 751
Gordon v. James (53 L. T. Rep. N . S.641; 30 Ch. Hackett v. Lalor (12 L . Rep. Ir. 44 ).............. 152
Div. 249) ........ .. . .. . . .. 927 Hadley v. Baxendale (9 Ex. 341; 23 L. J. 179, Ex.) 50
GouDiv.
’s Tra st,re
gh 569) ........ 4
( 9 L. T. Rep. N . S. 494 ; 24 Ch. Hal e v. Hale (3 Ch . Div. 643) 391
627 Hales v, Darell (3 Beav. 324) ........
Goulard
Div. 38v.) Lindsay
.......
(59 L. T. Rep. N . S. 44; 38 Ch. Hall, re ; Branston v. Weightman (57 L . T. Rep . 900
120 N . S. 42 ; 35 Ch . Div. 551) .......
Gould , re ; ex parte Official Receiver (56 L . T . Rep. Hall v. Byron (36 L . T. Rep. N . S. 367 ; 4 Ch . Div.
N . S. 806 ; 19 Q . B . Div. 92) 818 667,675) .. 590
Gould v. Oliver (2 M . & G . 234 ) ..... ........ 848 Hall v. Connell (3 Y. & G . Ex. 707). 472
Gowan v. Wright (18 Q . B . Div. 201) ...... ............ 552 Halliday v . Phillips (23 Q . B . Div.48 )... .. .. . 255
Grace v. Clinch (1 L. T. Rep. 0 . S. 144 ; 4 A . ......
& E . 4 Hallows v. Fernie (15 L . T. Rep. N . S. 602; L. Rep.
Q. B . Reps. N . S . 606 ) ... 70 3 Eq. 520 ; 18 L. T. Rep. N . S. 340 ; 3 Ch.... App.
Graff v. Evans (46 L. T. Rep. N . S. 347 ; 8 Q . B . .......... 30, 232
471)... ......... ...... ... ......... ......... .........
Div. 373) ........
Graham r. Ingleby (1 Ex.651)............ .............. 515 885 Halsey v. Brotherhood
19 Ch. Div. 386) .....
(45 L . T. Rep. N . S. 640 ;
xxvi - Inder.] THE LAW TIMES. [Oct. 18, 1890.
TABLE OF CASES.
Hambly v . Trott (1 Cowp. 371) ........... ... ...... ...page 898 Hester v . Hester (55 L . T . Rep . N . S. 669, 862 ; 34
Hammersmith Railway Company v. Brand (21 L . Ch . Div. 607) ......... ...............page 779
T .Rep. N . S. 238 ; L. Rep . 4 H . of L. 171)......... 307 Hewitt v. Kaye (L . Rep. 6 Eq. 198)..................... 614
Ham 's Trusts, re (2 Sim . N . S . 106 )... .. .. . .. . .. . .. 363 Hewitt r . Loosemore (9 Hare 449) ..................... 922
Hancock v. Peaty (16 L . T . Rep. N . S. 182 ; 1 P. & Hewlins v . Shippam (5 B . & C . 221)......... 472
Div . 335) ........... 501 Hext v. Gill (27 L. T. Rep. N . S. 291 ; L. Rep.
Hancock v. Soames (28 L. J. 196, M . C.; 1 E. & 7 Ch. App . 699, 711)...... ........ 194 , 796
E . 795 ) .. .......... ......... ............ ...... ... .......... . 637 Heywood v. Heywood (3 L . T. Rep. N . S. 429 ;
Harding v. Glyn (1 Atk .at p . 469) ...................... 735 29 Beav , 9 )........... .. ...... 790
Hardy v. Metropolitan Land and Finance Company Hibbert v. The Acton Local Board (In the Court 0
(26 L . T. Rep. N . S. 407 ; 7 Ch. Div . 27) .......... 596 of Appeal ; 5 Times L . Rep. 274). ...... 66
Hare v. The London and North-Western Bailway 269 Higginsand 95 )
Hitchman's Contract, re (21 Ch. Div. 55
Company (2 J. & H . 480)
Hargreaves v. Diddams (32 L . T. Rep . N . S. 600 ; 34 Higginson v. Clowes (15 Ves. 516 , 521).... 446
L . Rep . 10 Q . B . 582)........ .... ... .... ...
.. . Higgs' case (12 L. T. Rep. N . S. 669 ; 2 H . & M ..
Hargreaves, re ; Midgley v. Tatley (62 L . T. Rep. 657 ) ... . .. .. . ... .. ... ... . .. 61
N . S . 473 ; 43 Ch. Div. 401) ...... 929 Highworth Union v .Wostbury -on -Severn...Union (a ) 70
Hargreaves v. Taylor (8 L . T. Rep. N . S. 149 ; 32
L . J. 3, M . C .)..............
(58 L . T . Rep . N . S . 839 : 20 Q . B . Div .597)......
............ 698 Hill v. Crook (L . Rep. 6 E . & 1. App. 265) ............ 900
Hargreaves and Thompson 's Contract, re (55 Hill, re ; Hill v. Hill (50 L . J. 551, Ch.) ................. 753
L . T . Rep. N . S. 239 ; 32 Ch. Div. 454) ...... ....... 55 Hill and Co. v. Hill (55 L . T . Rep . N . S . 769 ; 35
Harpham v.Shacklock (45 L . T. Rep. N .............
. S. 569 ; 923 W . R . 137) .......... **.................... 453
19 Ch . Div . 207) ............ Hilton v. Eckersley (6 E . & B . 47) ...................... 3109
Harrie's Trust, re (Joh . 199, 205) ........ Hinde v. Whitehouse (7 East 558) ..................... 10
Harris v. James (35 L . T . Rep. N . S. 240 ; 45 L . J. Hindmarsh , re (1 L, T. Rep. N . S. 475 ; 1 Dr. &
545 , Q . B .) ... Sm . 129) .... 688
Harrison v. Harrison (57 L . T. Rep. N . S. 119 ; 12 Hinves v. Hinves (3 Hare 609) . 218
P . Div . 130).. 92 Hoare's case (6 L . T. Rep. N . S. 240, 2 J. & . H . 229) 165
Harrison v .Mexican Railway Company (33 L . T . Hobbs v. Dance (L . Rep . 9 C . P . 30 ) 660
Rep. N . S. 82 ; L . Rep. 19 Eq. 358) ......... 227, 888 Hobbs, re; Hobbs v. Wade (58 L. T. Rep.. . .N. ... . S.. . . 9. . ;. 60
Hart v. Hart (45 L. T. Rep. N . S. 13 ; 18 Ch .Div.670) 92 36 Ch . Div. 553)........... DVS3
Hartley v. Hindmarsh (14 L . T. Rep. N . S. 795 ; Hobbs v. Wayet (57 L . T . Rep . N . S. 225 ; 36 Ch.
L . Rep. 1 C. P. 553 : 35 L . J. 255, M . C.) .......... 572 Div . 256) ...... 603
Hartley v. Peball (Peake 178) ......... 503 Hobgen v. Neale (23 L . T. Rep . N . S. 681 ; L . Rep .
Harvey v. Aston (1 Atk. 361) ......... 182 11 Eq. 48 ) ... 678
Harvey, re ; Peek v. Savory (60 L . T. Rep. N . S.79 ; Hobson v. Todd (4 T . R . 71, 73) ....... 591
39 Ch . Div. 289, 298)........ Hobson, re ; Walker v. Appach (53 L . T. Rep. N . S. 218
Haslam Foundry Company v. Goodfellow (57 L . T. 627; 55 L. J . 422 Ch.) ...... ...... ...
Rep . N . S . 788 ; L . Rep. 37 Ch. Div . 118) ......... 120 Hobson, re ; Webster v. Rickards (34 W . R . 195)... 929
Haswell v. Haswell and Sanderson (1 L . T. Rep. Hoby v. Grosvenor Library Company Limited (28
N . S . 69) 705 W . R . 386 ) .... 634
Hatchard v. Mege (56 L . T . Rep. N . S. 662 ; 18 Q . Hockley v. Mawbey (1 Ves. 143). 772
B . Div. 771)... 448 Hodgkinson v. Fernie (3 C. B . N . S. 189) .... ... ... 647
Hatten v. Russell (58 L . T. Rep . N . S. 271 ; 38 Ch. Hogan, re (3 Atk . 812 ) .. 38
Div. 334)............. 54 Holden v. Hearn ( 1 Beav. 445) .. 326
Haven Gold Mining Company, re (46 L. T. Rep. N . Holden and Wife v. King (46 L . J. 75 , Ex.) ......... 573
S . 322 ; 20 Ch . Div . 151, 157) .................. 746, 825 ! Holland v . Smith (6 Esp . 11) ............. 315
Hawkes v. Holland (W . N . 1881, p . 128) ......... 828 Holland v . Wood (L . Rep . 11 Eq. 91).................. 218
Hawkins v. Herbert (60 L . T. Rep. N . S. 142) ...... 179 Holliday v. Heppenstall (61 L. T. Rep. N . S. 313 ;
Hawthorn v . Shedden (3 Sm . & G . 303)......... ...... 87 41 Ch . Div . 109 ; 6 Pat. Rep . 320 ) .................. 392
Hay v. Earl of Coventry (3 T . Rep . 83, 86 ) ......... Hollins v. Fowler (33 L . T . Rep. N . S. 73 ; L . Rep. 439
Haywood v. Brunswick Permanent Benefit Building 7 H . of L . 757)
Society (45 L . T. Rep. N . S. 699 ; 8 Q . B . 504 Hollins v. Verney (51 L . T . Rep. N . S. .753 ; 13 Q .
. . . . . . . . . . . . . 255
Div. 403) .... B . Div. 304 ).........
Heap v. Hartley (61 L . T. Rep. N . S. 538 ; 41 Ch . 868 Holmes v . Remsen (4 John . N . Y . Chan . 460) ...... 781
Div . 461) ........... . ......... Holroyd v.Marshall (7 L . T. Rep . N . S. 172; 10 227
Heath v. Bucknall '20 L. T. Rep. N . S.549; L. Rep . 751 HoltH . ofv. L Collyer
. Cas. 191) ...
(44 L . T . Rep. N . S. 214 ; 16 Ch.
8 Eq. 1.) ...
Heathfield v. Chilton (4 Burr. 2017) ... 657 Div . 718)...... ... 333
Hedley v. Bates (42 L . T . Rep. N . S. 41 ; 13 Ch. Holyland v. Lewin (51 L. T. Rep. N . . .S.... .114 ;
.. . .. 491
Div . 448)...... ...... 26 Ch. Div . 267)...... ............
Heinrich Bjorn , The (55 L. T. Rep. N . S.66 ; 11 529 Home Investment Company re ( 14 Ch . Div. 167) ... 621
App . Cas. 270 ; 6 Asp . Mar. Law Cas. 1) .......... Homer Distriot Consolidated Gold .Mines, re ;
(60 L . T . Rep . N . S 97 ; 39 Ch .
Henderson v. Cross (29 Beav . 216 ) ............ 763 ex parte Smith
................ 30, 232
Henderson v. Hudson (15 W . R . 860)..... Div. 546) ....
Henderson v. Lacon (17 L . T. Rep . N . S. 527 ; Hooper v. Clark (L . Rep . 2 Q . B . 200 ).................. 504
84 +
5 Eq. 249) ........... 33 Hope, The (3 Hagg. 423) .........
Hendriks v. Montagu (44 L . T . Rep . N . S. 879 ; Hopkin v. Hopkin (10 Hare , App. 2) .................. 657 30
17 Ch. Div . 638 ). - 634 Hopkins v . De Robeck (3 T . R . 79)............... ......
Hennessy v. Wright (59 L . T. Rep. N . S. 323, 329 ; Hopper, re (L . Rep . 2 Q. B . 367) ... 808
21 Q . B . Div. 509, 512, 523 ; on appeal, 59 L . T . Hornby v. Close (15 L . T. Rep. N . S . 563 ; L . Rep .
Hensma v. Fryer (17 L . T. Rep. N . S. 394 ;....3 Ch.
Rep. nN . S . 795) . 76 , 558 2 Q . B . 153 ). ...........
.283, 310
Horner, re ; Eagleton v. Horner (58 L . T. Rep .
App .420).......... .... N . S.v.103 ; 37 Ch(50. Div 900
. ... ..... ... ... 561
965 )........ ............... 676
Herbert v. Sayer (5 Q . B . 965)........... Hough Windus L . T..695
Rep.) N . S. 312 ; 12 Q . B .
Herrborger Schwander et Cie. v. Squire (5 Pat. Div. 224 )............... ** ................... 770
Rep. 581)............ 425 | Howard v . Digby (2 Cl. and Fin . 634) ..... .......23, 313
Oct. 18, 1890.7 THE LAW TIMES. [Index - xxyii
TABLE OP CASES.
Howard v . Harris (1 Vern. 190) ...................
..........Page page 315 | In Rep.
the Goods of Rachel Bayne, deceased (31 L. T.
Howard v . Patent Ivory Manufacturing Company O . S . 172 ; 1 Sw . & Tris. 132)............page 645
(58 L . T . Rep . N . S. 395 ; 38 Ch. Div. 156 )...227, 888 In the Goods of Schwerdtfeger (34 L. T. Rep. N . S.
v. Teague (2 L . T . Rep . 72 ; 1 P . Div .424) ........ . . . . . . . .. . .. 643
Howbeach ; 5 H Company
N . S. 187Coal h (7 Ves. 137)...218 , 876
. & N . 151).........................232, ds man
In the Goo of Shar (20 L . T. Rep. N . S. 683 ;
e
How v. The Earl of Dart mout 753 L . Rep. 1 P. & D . 661) 184
Howell v . Young (5 B . & C . 259 ).......... 688 In theGoods of Tharp (38 L . T. Rep. N . S. 867 ;
Howes v. Turner (1 C. P. 671)... . . . . . . . . . . . . 532 3 P . Div . 76 ) ... 329
Hoylake Railway Company, re (30 L . T. Rep . N . S . Ireland v. Livingstone (27 L . T. Rep . N . S. 79 ; L .
213 ; L . Rep. 9 Ch. 257........... ..... .... ... 631 Rep. 5 H . of L . 395 ,416 ) ........ ...... 687
Huble v. Clark (1 Hag. 115) ...... .. .. .. .. ... 508
Huggins,
236
ex parte ; re Huggins .(60.. .. L. ....T.. .. Rep. N . S.
. .. . .. .. .. . .. 605
) ...
Hughes, re....(59 L . T. Rep . N . S. 586 ) .................. 614 J.
Hughes v. Edwards (The Denbigh case, 2 Prob.
Div . 361)... ...... . .. .. . .. . ... ... 168 Jacks v. Bell (3 C. & P . 316 ) .............................. 832
Hughes r. Metropolitan Railway (36 L. T. Rep . Jackson v . North -Eastern Railway Company (36
N . S. 932 ; 2 App. Cas. 439, 448 ) .....
.. . .. . .. .. . ... . .. 396 L. T. Rep. N . S . 779 ; 5 Ch. Div. 844 ) ......... 338
Hughes -Hallett v. Indian Mammoth Gold Minos Jacobs, ex parte (31 L . T. Rep . N . S. 745 ; 10 Ch.
Company (48 L . T. Rep. N . S. 107)...... App . 211)..... 544
Hull v. Barnsley Railway Company, re (59 L . T. Jacobs v. Dawkes (56 L . J. 446, Q . B . Div.; 56 5
Rep . N . S. 302 , 887 ; 40 Ch. Div . 119) .. .. .. ... .. . 240 L . T. Rop . N . S. 919) ........... 81
Hull and County Bank Limited, re ; Burgess's case Jacobs v. Seward (20 L . T. Rep. N . S.448 ; L . Rep.
(43 L . T. Rep. N . S. 45; 15 Ch. Div. 507, 511) ... 792 4 C . P . 328 ) ......... 265
Humberston v. Humberston (1 P. Wms. 332 ). ........ 26 James v . Hayward (Cro. Car. 184) ............... ...... 111
Humphries , re ; Smith v . Millidge (49 L . T . Rep. James v. Kerr (60 L . T. Rep . N . S. 212 ; 40 Ch.
N . S. 594 ; 24 Ch . Div. 691)............. 900 Div . 449) .............. .......... 104, 315
Hunt v . Clarke (61 L. T. Rep . N . S. 343) ............ 713 James, ex parte ; re O'Reardon (29 L . T. Rep. N . S.
Hunt v. Elmes (3 L T. Rep. N . S. 796 ; 2 De G . F . 922 James 761 ; 9 Ch. App. 74)... ......... 781
& J. 578).......... . . . .. . .. . . . . .. . v. Rumsey (11 Ch . Div . 405 ) ......... ... ......... 800
Hunt v. Hunt (39 L . T. Rep. N . S. 45) ............... 347 James v. Wyrill (51 L . T . Rep . N . S. 237 ; 48 J. P.
Hunter v. Hunt (1 C . B. Rep. 300) ... .... ... 540 725) 660
Hunter v . Hanter (10 P . Div . 93)... 501 Jamieson v.North British Railway Company (6 Sco.
Hussey v. Horne- Payne (41 L . T. Rep. N . S. 1 ; 4 L . Rep. 188) 195
App . Cas. 311) ..... 416 Jefferys v. Boosey (4 H . of L . Cas. 815) ... 854
Hutchinson and Tenant, re (39 L . T. Rep. N . S. 86 ; Jenkins v. Jackson (60 L . T. Rep. N . S....105 ; 40
8 Ch . Div. 540) .. 736 Ch . Div. 71) ....... ... 794
Hutton v . Harper (2 Court Sess. Cas., 4th Series Jennings v. Ward (2 Vern.520) ...................... 105, 315
893) .... ...................... 78 Jervis v. Berridge (28 L . T . Rep. N . S. 383; 8 Ch .
Hyde v. Hyde and Woodmansee (14 L . T. Rep . App . 360).... .. ..... ... 418
N . S. 188 ; L. Rep. 1 Prob. and Div. 130) ......... 912 Jesmond, The (25 L . T. Rep. N . S. 514 ; L . Rep. 4
P . C . 1 ; 1 Asp . Mar. Law Cas. 150) ........... ... 332
Jinkinge v. Jinkings (15 L . T.Rep. N . S. 512 ; 1 P. & 613
Div . 330) . ... .... . .. . .. . .. . .. . ..
Jodrell, re ; Jodrell v . Scale (W . N . 1890, p. 89)... 929
900
Jorl v . Mills (3 K . & J . 453, 458)..... ... .... .. ... ...
Ihlee v. Henshaw (53 L. T. Rep. N . S. 949 ; 31. ..Ch.
.. . 868
John M Intyre, The (51 L . T. Rep. N . S. 185 ; 9 P.
Div . 135) ......
Div . 323) ........ 3
Imperial Gas Light and Coke Company v. West Johnson , re (58 L . T. Rep. N . S. 160 ; 20 Q . B. Div.
London Junction Gas Company ( W . N . 1868, 68)
p . 1, and 58 L . T . Rep. N . S . 900, n .) ...... Johnson v. Barnes (27 L . T. Rep. N . S. 152 ; L . Rep. 5
Inch v. Southern Counties Deposit Bank (61 L . T. 265 7 C . P . 592, 604)..... 25
Rep. N . S. 348 ; 42 Ch . Div. 471).........
( 1 ) . .. . . . . .. ... . .. .. . .. . Johnson v. Johnson's Administrator (30 Missouri
Inchbald v. Robinson ; Inch bald v. Barrington (20 State Reports, 72 ) ............ .. ... . .. . .. . .. . .. .. . ... . .. 912
L . T . Rep. N . S . 259 ; L . Rep . 4 Ch . App. 388 )... 794 Johnson , re; Manchester and Liverpool Banking
Inder wick , re (50 L . T. Rep. N . S. 221 ; 25 Ch . Div. Company v. Beales (61 L . T. Rep. N . S. 160 ; 42
279) ............ . Ch. Div. 505) ............. .. . . . . . .. .. . 376
ndian Zoedone Company, re (50 L . T. Rep. N . S. Johnson v. Raylton (45 L . T. Rep . N . S. 374 ; 7 74
547 ; 26 Ch . Div. 70) ......... Q . B . Div. 438) .........
Ingram 1. Little (11 Q . B . Div. 251) ...... 326 Johnson v. RoyalMail Steam Packet Company (17
Ingram v. Suckling (33 L. T. Rep. N . S. 89) ......... 149 L . T . Rep. N . S. 445 ; L . Rep. 3 C . P . 38 ; 3 Mar.
Inns of Court Hotel Company, re (L . Rep . 6 Eq. 82) 888 Law Cas. 0 . S . 21) ... ... 409
In the Goods of Amelia Price (57 L . T. Rep . N . S. Johnson, re ; Shearman v. Robinson (43 L. T. Rep .
497 ; 12 Prob. Div. 137)...... .........357, 929 N . S. 372; 15 Ch. Div.548 ) ...... 621
In the Goods of Barber (L . Rep. 1 P. & D . 267) ... 508 Johnstone v. Cox (45 L . T. Rep . N . S. 657; 19 Ch.
In the Goods of Brown (1 Sw . & Tr. 32)... Div. 17) ............
508
862
In the Goods of Eliz. Jordan (L . Rep. 1 P . & D . 555) 508 Johnston 's Claim (23 L. T. Rep. N . S. 520 ; L . Rep.
In the Goods of Fenwick (16 L . T . Rep. N . S . 124 ; 6 Ch. 212 ) ...........
L . Rep . 1 Prob. & Div. 319) ............ 645 Joint Stock Discount Company v. Brown (20 L . T.
In the Goods of Fitzroy (31 L. T. Rep. 0 . S. 171 ; Rep. N .Long
S. 844(58; L8.Eq.T . 381) 875
. . . . . . . . . . . 875
Rep. N . S. 787; 20 Q . B .
1 Sw . & Tris. 133) ........... Jonas v.
Thomas (1 Sw . & Tr. 255 ; ............... 584, 815
L . J. N . ofS. 33Jane
In 28theGoods Div . 564)....
, P . & M .) ....... Jones v. Badley (L. Rep. 3 Ch. 362)..................... 491
In the Goods of Jenny Watson , deceased (31 L. T. Jones 2. Bone (23 L . T. Rep. N . S. 304 ; L . Rep. 9
Rep . 0 . S. 104 ; 1 Sw . & Tr. 110)........ ..... 607 Eq. 674) ................. ............. 288 , 289, 886
50
In the Goods of McVicar (L . Rep . 1 Prob . & Div . Jones v. Boyce (1 Stark . 493) .... 935
671) .......................... 645 Jones v. Bright (5 Bing. 533) ...........
xxviii- Index.] THE LAW TIMES. (Oct. 18, 1890.
TABLE OF CASES.
Jones, re ; Calver v. Laxton (53 L. T. Rep. N . S . Knight's case (15 L . T . Rep . N . S. 546 ; L . Rep . 2
855 ; 31 Ch. Div. 440) .............................page 863 Ch. App. 321)....... ...............page 234
Jones v . Foxall (15 Beav. 388) . ..... ........... 898 Knott v. Cottee (16 Beav. 77) ......... ....... ... 272
Jones v. Harries (25 L . T. Rep. N . S. 702; L . Rep. 0 Knowles v . Booth (32 W . R . 432) ........... 282
7 Q . B . 157) ...... . . .. . . . . . . 48 Knox v .Gye (L . Rep. 5 H . of L . 656 ) ... ................ 687
Jones v. Hope and others (3 Times L . Rep. 247) ... 6583 Kurtz v. Spence (55 L . T . Rep . N . S. 317 ; 36 Ch. 602
Jones v . Hughes (5 Ex. 104). 54 Div. 770)...
Jones v. Jones (25 L . T. Rep. N . S. 856 ; L . Rep. 2
P . & D . 333 ; 26 L . T. Rep. N . S. 106 ) ...... 123, 479
Jones v. Jones (60 L . T. Rep. N . S. 421; 22 Q . B .
Div . 425) .......... ... .... .. ... 764
Jones, ex parte ; re Jones (44 L. T. Rep. N . S. 588 ; 319
18 Ch. Div. 109) ... Ladyman v. Grave (25 L . T. Rep. N . S...........
52 ; 6 553
Jones v. Just (18 L . T. Rep. N . S . 208 ; L . Rep. 3 Ch. App. 763) .......
Q . B . 197) ... .. . ... . ... .. 935 Laird v. Briggs (45 L. T. Rep. N . S. 238 ; 19 Ch .Div .
Jones v. Roberts (8 Sim . 397) ........ . . .. . .. . .. 710 22) . .. ... ...
.. 18
Jones's Trust Estate, re (39 L. T. Rep. N . S. 190 ; Lake v . Plaxton (10 Ex. 196 ) ... ... ... .. ... . .. . ..
18 W . R . 312)......... 627 Lambe v. Eames (25 L . T . Rep. N . S. 175 ; L . Rep .
Jordan v. Money (5 H of L . C . 185).. 99 6 Ch. 597)....
Jubb v. Bibbs (W . N .) 83 , 208 ... ... 840 Lambert,re ; Stanton v. Lambert (59 L . T. Rep. N . S.
Julius v. The Bishop of Oxford (40 L . T. Rep . N . S. 429 ; 39 Ch. Div. 627) ..... ....
162 ; 4 Q . B . Div . 275 ; 42 L . T. Rep . N . S . 546 ;
5 App . Cas. 214 ) ..................... 168, 169, 442, 817
Lamplough v. Braithwaite
8th edit. 151) ..
(Smith's Leading Cases, 409
Justices of Lancashire v. The Mayor of Rochdale Lancaster and Carlisle Railway Company v. The
(49 L. T. Rep. N . S. 368 ; 8 App . Cas. 494) ...... 905 London and North -Western Railway Company (2
K . & J. 293)................ **.. . ........... . 269
Land Credit Company of Ireland v. Fermoy (22 688
L. T. Rep. N . S. 394 ; L. Rep. 5 Ch. 763, 771) ...
K. Lane v Collins (52 L . T. Rep. N . S. 257 ; 14 Q. B .
Div. 193) .........
Kearney v. ILondon , Brighton , and South Coast Lane v. Tyler (56 L . J. 461, Q . B .) .....................
Railway Company (24 L. T. Rep. N . S. 913 ; Langham Skating Rink Company, re (36 L . T. Rep.
L . Rep . 6 Q . B . 759) ... ... ............... 810 N . S. 695 ; 5 Ch. Div.669).... 746
Kearsley v. Cole (7 L . T. Rep. O . S. 89 ; 16 M . & Lanphier v. Buck (2 Dr. & Sm . 484; 34 L . J. 650,
W . 128) . 543 659, Ch ) .. . . .. .. . .. . .. . 678
Kearsley v. Phillips (48 L. T. Rep. N . .S.. . .468
Q . B . Div . 40 , 42 ) ...
; 10
. . . . . . . . . . 559
Lascelles v. Lord Onslow (36 L . T. Rep . N . S.459 ;
2 Q . B . Div . 433, 449) 588
Keate v. Phillips (44 L . T. Rep. N . S. 731; 18 Ch .
Div 560)..........
Lassence v. Tierney (1 Mac. & G . 551) ............... 491
. .. ... ... ... . . . 923 Last v. The London Assurance Corporation (52 L . T .
Keates v. Burton (14 Ves. 434 ) ........... 64 Rop. N . S . 604 ; 14 Q . B . Div . 239).................. 465
Keates v. Lyon (20 L . T. Rep. N . S. 255 ; L . Rep. Latham v.Ray (33 L . J. 199, M . C . ; 5 B . & S.635) . 847
4 Ch. App. 218, 223 ) ...... .... ... ...... 99 , 504 Laugher v. Pointer (5 B . & C. 54 , 60, 75) ... ... .. ... . 794
Keir v. Leeman (7 L . T. Rep. 0 . S. 347; 6 Q . B . 725 Layard v. Maud (16 L . T . Rep. N . S. 618 ; 4 Eq. 923
308 ; 9 Q . B . 371) ...... 397) v....Nelson
.....
Kekewich v. Manning (1 De G . M . & G . 187) ....... 92976 Layer ( 1 Vern . 456 ) ......... .. . .. . ... 540
Kelly v. Sherlock (L . Rep. 1 Q . B . 686 ) ..... Laythoarp v . Bryant (2 Bing . N . C . 735 )......... 303
Kennedy v. Lyell (53 L . T. Rep. N . S. 466 ; 15
Q . B . Div.491) .. 77
Lea v. Hinton (24 L . T . Rep . 0 . S. 101 ; 5 De G .
M . & G . 823) 315
Kenner v . Williams (5 Sim . 171) ... .. ... .. .. .. 391 Leak v. Driffield (61 L . T. Rep. N . S. 771 ; 24
Kent v. Freehold Land and Brickmaking Company Q . B . Div . 98 ) ......... ....... ... 603
Limited (17 L . T. Rep. N . S. 77 ; 4 Eq. 588 ; Learoyd v. Whiteley (58 L. T. Rep. N . S. 93 ; 12 App.
affirmed L . Rep. 3 Ch. App. 493)............... 32, 792 Cas. 727, 733).. .............. 273, 450, 687
Kenworth v. Schofield (2 B . & C . 945) .............. 109 Lee v. Dixon (3 F . & F . 744).... . . .. . .. . .. .. . 832
Keppell ». Bailey (2 Myl. & K . 517, 544) ............ 503 Lee v . The Neuchâtel Asphalte Company (58 L . T .
Keyworthy, ex parte (52 L. T. Rep. N . S. 201 ; 11 Rep. N . S. 553 ; 61 Ib. 11 ; 41 Ch . Div. 1) ...... 365
Q . B . Div. 49)........................................ ...... 94 Leech v. Widsley (1 Vent. 54,and 2 Keb. 590) ...... 595
Khedive, The (43 L . T . Rep . N . S. 610 ; 5 App . Cas. Leeds Estate Building, & c., Company v. Shepherd
876 ; 4 Asp. Mar. Law Cas. 360 ) ............... 3, 332 (57 L . T. Rep. N . S. 684 ; 36 Ch. Div. 787) ...... 687
Kibble, ex parte ; re Onslow (32 L. T. Rep. N . S. Leek Improvement Commissioners v . The Justices
138 ; L . Rep. 10 Ch . 373)........................ 263, 319 of Stafford (20 Q . B. Div. 794) ......................... 905
Kimbray v. Draper (17 L . T. Rep. N . S. 540 ; L . Lees v. Nuttall (4 My. & K . 284)........................... 710
Rep . 3 Q . B . 160) .....
King v. Malcott (9 Hare, 692).......
Leicester Club and County Racecourse Company,
re ; ex parte Cannon (53 L . T. Rep . N . S. 340 ; 30
King of the Two Sicilies v. Wilcox (1 Sim . N . S. Ch. Div. 629) ... .............. 215, 761
319, 320 ) . Leigh v. Dickeson (52 L . T. Rep. N . S.790 ; 15 Q . . B... 540
KingsmanD . DIVv. . Kingsman (44 L. T. Rep....N .....
. S. ...124...; 319 Div. 60) . ... ...
:
6 QC .. B . Div. 1 1224 ) . . . . . . . . . .
Kirby Hall, The (48 L. T. Rep . N . S. 797 ; 8
Leigh v. Jack (42 L. T. Rep. N. S. 463; 5 .Ex.
264 ) .........
Div .
.. .. . .. . .. . 78
P. Div. 71) ... . .. . . .. . ... Leoni no v. Leonino (40 L . T. Rep. N . S. 359 ;..........
Div . 460) ............
10 Ch. 865
Kirk v . Bell (16 Q . B . 290) . . . . . . . . . . . . . . 565
Todd (47 ...L. T. Rep. N . S. 676 ; 21 Ch . 447 Lesingham 's Trusts , re (49 L . T. Rep . N . S. 235 ;
KirkDiv.v. 484).........
24 Ch . Div. 703) ..........
Kna v . Williams (4 Ves. 430 , n .)................... ... 143 Leslie, re ; Leslie v. French (48 L . T. Rep. N . S.
pp
Knight v . Boughton (11 Cl. & F . 513) ............... 735
Knight v. Knight (3 Beav. 148) ..
564; 23 Ch. Div. 552) .......
735 Lett v. Randall (3 Sm . & Giff. 83) ......... ..... ... ... 383
476
Knight r. Pursell (40 L . T. Rep . N . S. 391 ; 11 Ch. Levy v. Walker (39 L . T. Rep. N . S. 654 ; 10 Ch .
Div . 412).......... 379 Div. 436 ).... ... 336 , 804
Oct. 18, 1890.) THE LAW TIMES. [Index - xxis
. TABLE OF CASES.
Lewis v.Lewis , (57 L. T .Rep. N . S. 715 ; 20 Q . Be. 482 Lord Ranelagh v . Hayes (1 Vern. 189)............page 603
Lord Trimlestown r. Kemmis (9 Cl. & Fin . 777) ... 78
Div. 56 )............ ..... ......pag
Leyman v. Latimer (37 L . T. Rep. N . S. 360, 819 ; 3 Lord's Estate, re ; Lord v. Lord (L. Rep . 2 Eq.
Ex. Div . 15, 352)....... .......... ... 291 605) ...... ........................... . . .. . .. . .. .. . .. . . .. 717
LifecaseAssoc iatio n of England Limited , re ; Blake's Lovat Peerage case in 1827 . .. . .. . .. . .. 78
(34 Beav. 639) ........ ... .... .... 30 Love v. Bell (51 L . T. Rep . N . S. 1 ; 9 App. Cas.
Life Association of Scotland v. Siddall (4 L. T. Rep . 286 ) ......... ... ...... ..... 194
N . S . 311 ; 3 De G . F . & J. 58, 69)............. ... 82, 273 Love, re; Hill v. Spurgeon (52 L. T. Rep. N . S.
Liquidators of the British Nation Life Assurance 398 ; 29 Ch. Div . 348) ........ .... ... 28
Association , ex parte (39 L. T. Rep. N . S. 136 ; 8 Loveridge v. Hodsoll (2 B . & Ad.602).................. 905
Ch. Div . 708 ) ....... Lowe v. Carpenter (6 Ex.825) ....... . .. ... ... . .. ... 255
631
Lister v. Perryman (32 L. T. Rep. N . S. 269; Lucas v. Lucas (13 Ves. 274) .... 326
L . Rep . 4 H . of L.521)........... Luker v. Dennis (37 L . T. Rep . N . S. 827 ; 7 Ch . 4
737
Little v. Newport, Abergavenny, and .Hereford Div. 227) ... 50
Railway Company (12 C . B . 752) Lumband Co. v. Teal (60 L . T. Rep . N . S. 451 ; . 22
882
. . . . . . . . . . . 000
LiverpoolCivil Service Association (9 Ch.App. 511) 860 Q . B . Div.675) ........ ..
Liverpool and London Guarantee Insurance Com Lumley v. Wagner (5 De G . & Sm . 485) ...............
pany, re ; Gallagher and other's case (46 L . T . Lundy Granite Company Limited, re ; Harvey
Rep. N . S. 54) ... ......... ........................ ... ...... 761 Lewis' s case (26 L . T. Rep . N . S . 673) ...... .. .... . 761
Livingstone r. Rawyards Coal Company (42 L . T. Lupton v . White (15 Ves. 432 )..... 213
Rep. N . S.334 ; L. Rep. 5 H . of L . 25 ) ............ 898 Lutetia , The (9 App. Cas. 640) ... . ... 3
Lloyd v.Lloyd (3 K . & J. 20 ; L . Rep 2 Eq.722 ) 392, 455 Lybbe v. Hart (52 L. T. Rep. N . S. 634 ; 29 Ch .. . Div.
. . .. . 503
Lloyd, re ; ex parte Lloyd (62 L . T.Rep . N . S. 366 ) . 368 819) ...... ... .
Lloyd's Banking Company v. Jones (29 Ch . Div . 221) 923 Lyell v. Kennedy (1) (48 L . T. Rep. N . S . 585 ; 8
Lobb v. Stanley (5 Q .B . 574 ) ..... 584 App. Cas.217)......
Lockwood v. Coysgarne (3 Burr, 1676 ) ............ 657 Lyell v. Kennedy (2) (50 L . T . Rep. N . S. 277; 9
.. ..
Lomax v Ripley (24 L . T . Rep. 0 . S. 323 ; 3 Sm . & App . Cas. 81) ... ... ... .... .. 77, 435
G . 48) .......
London and Australian Agency Corporation, re (29 491 Lyell v.Kennedy (50 L. T.Rep. N. S. 730 ; 27 Ch.
Div . 1) .
L . T . Rep. N . S . 417) .. .......... 362 Lyndon v. Stanbridge (2 H . & N . 45)..
London and Blackwall Railway Company v. Cross Lyon v. Johnson (60 L . T. Rep. N . S. 223 ; 40 Ch.
(54 L . T . Rep . N . S . 309 ; 31 Ch. Div . 354) ....... 529 Div. 579) 822
London and County Bank v. London and River
Plate Bank (20 Q . B. Div. 232 ; 21 Ib. 535) ...... 429
London and County General Agency Association
Limited, re ; Hare's case (20 L . T. Rep . N . S . 157 ; M.
L . Rep . 4 Ch . App. 503) ... ... ... 792
London and Devon Biscuit Company, re (24 L. T . Macbeth v. Ashley (30 L. T. Rep. N . S .310 ; L . Rep.
Rep . N . S .650 ; 12 Eq. 190) ..... ... .. . 860 2 Sc. App. 352) ......, 442
London Financial Association v. Kelk (50 L. T. Mc Culloch , ex parte (42 L . T. Rep. N . S. 664; 14
781
Rep . N . S.492
London and
; 26 Ch. Div. 107, 144, 146)... 687, 875 Ch. Div . 716 )
Mediterranean Bank Limited , re ; Macgregor v. Macgregor (2 Coll. 192) ......... 220, 678
Wright's case (25 L . T. Rep. N . S. 471 ; L. Rep. M 'Hattie, ex parte (39 L . T. Rep. N . S. 373 ; 10 Ch.
7 Ch.App. 55).. ..... 792 Div . 398) . 901
London Scottish Benefit Society v. Chorley (50 McHenry, re ; ex parte McHenry (48 L . T. Rep .
L . T. Rep . N . S. 265 ; 51 Ib. 100 ; 12 Q . B . Div. N . S . 921 ; 24 Ch . Div. 35) ........ 263
452,454 ; 13 Ib . 872) ............................ 33, 674 MʻIlwraith
Div
v. Green (52 L . T. Rep. N . S. 81; 14 Q .
London and Southern Counties Feehold Land Com . B. . 766 )................ .. . .. .. . .. . 151
pany , re (54 L . T . Rep . N . S . 44 ; 31 Ch. Div .
223) .....................
Macintyre v . Connell (1 Sim . N . S. 225) ......... 365, 777
30, 232 Mackenzie's Settlement (16 L . T . Rep . N . S. 138 ;
London and South -Western Railway.............
Company v . 2 Ch. App . 345 ) ....... 933
Gomm (46 L . T. Rep. N . S. 449 ; 20 Ch . Div. McLachlan v. Taitt (3 L . T. Rep. N . S.492 ; 2 De
562) .. . ...... ....... 26 , 99, 474 G . F . & J. 449) ....... 149
London Steam Dyeing Company v. Digby (58 L . T. 72 Maclean v. Mackay (29 L . T. Rep . N . S. 352 ; 5 Pr.
Rep. N . S. 724 )............... 4 C . 327)....... 99
Londor and Suburban Land and Building Company Macleod v. Annesley (21 L . T . Rep. 0 . S. 40 ; 16 273
v. Field (44 L . T. Rep. N . S.444 ; 16 . Ch. Div. Beav. 600) .. .. . . . . . . . . .
645 ) .......... . . . . . . . . . . . . 886 Maconochie v. Lord Penzance (6 App. Cas.424) ... 584
London Taverns Company v.Worley (Nov. 24, 1888, Macpherson v. Scottish Rights of Way and
not reported ved )) . . . . . . .. . ... .. . ... . .. ... 379 Recreation Society (13 App. Cas. 744, 750) ...... 34
London, Tilbury, and Southend Railway Company Maddever re ; Three Towns Banking Company v.
and Trustees of Gower's Walk Schools,.. . ..re. .. .(24
Q . B . Div. 326 , at p. 329 ) ......... ... 433
Maddever (52 L . T. Rep. N . S. 35 ; 27 ...Ch.. .. . Div
523) ...... .....
.
.. . .. 277
Long v. Millar (41 L. T. Rep. N . S. 306 ; 4 C. P. Maddison v . Alderson (49 L. T. Rep. N . S. 303;. . 8. 99
Div . 450 ) .... 108 App. Cas. 473) ....... ....
Longbottom v. Shaw (61 L. T. Rep. N . S. 325; 43 511
Ch . Div . 46 ).....
Magistrates of Glasgow v. Farie (60 L . T. Rep . 197
N . S. 274 ; 13 App. Cas. 657)
Lord v. Bunn (2 Y. & Coll. Ch. Cas. 98 ) ................ 650 Mainland v. Upjohn (60 L . T. Rep. N . S. 614 ; 41
Lord Audley v . Pollard (Cro . Eliz . 561) ............... 83 Ch. Div . 126 ) ........... 104
Lord Chichester v . Coventry (17 L . T. Rep. N . S. Mainwaring v . Baxter (5 Ves. 458 ).... ...... 26
35 ; L . Rep. 2 E . & I. App. 71)..... 53 Malim v. Keighley (2 Ves. jun . 529) ... ... ... ... ...... 763
Lord Hatherley , per (3 K . & J. 474 )..... 932 Manby v. Scott (1 Sid. 112 ; 2 Sm . L . C . 471) 23, 343
Lord Leconfield v. Dixon (17 L . T. Rep. N . S. 18 ; Manchester Economic Building Society, re (24 Ch. 3
L . Rep. 3 Ex. 30) 918 Div. 488)....
.. . . . . .. . 10 83
Lord Midleton v. Eliot (15 Sim . 531) ................... 800 Manchester and Liverpool District Banking Com
Lord Oakley v. Kensington Canal Company (5 B. & A . pany v. Parkinson (22 Q . B . Div. 173) ... ... ... ... 338
138 ) ........ 448 | Mann v. Brodie (10 App. Cas. 378) ........................ 34
XXX - Index.] THE LAW TIMES. [Oct, 18, 1890.
TABLE OF CASES.
Mann v . Shepherd (6 T. R . 79) ... ......page 263 | Metropolitan Bank v. Heiron (43 L. T. Rep. N . S.
Mannox v.Greener (27 L. T. Rep. N . S. 408 ; L. Rep . 675, 676 ; 5 Ex. Div. 319 ).................... page 655, 687
14 Eq. 456 )... . .. ... ... . .. ... 379 Metropolitan Bank , re ; Heiron 's case (43 L . T.
Mant v. Leith (15 Beav. 524) . ...... ...... 273 Rp. N . S. 299 ; 15 Ch. Div. 139) ................... 557
March v.March and Palambo (16 L . T. Rep. N . S. Metropolitan Bank v. Pooley (53 L. T . Rep. N . S.
366 ; L . Rep. 1 P. Div. 440) ................... 329, 382 163 ; 10 App. Cas. 210)............. ............... 602
Marman's Trusts, re (38 L. T. Rep. N . S. 797 ; 8 23 Metropolitan
Ch. Div . 256 ) ....... .. .. .; 39, M . C . ; 33Board
W . ofR . Works v. Anthony (54 L . J. 939
166 ) .........
Marpesia, The (26 L. T. Rep. N . S. 333 ; 1 Asp . Metropolitan Board of Works v. McCarthy (31 L .
Mar. Law Cas. 261 ; L . Rep. 4 P . C . 212 ) ... ...... 407 T. Rep. N . S. 182 ; L . Rep. 7 H . of L . 243) ...... 307
Marquis of Salisbury v. The Great Northern Rail. Metropolitan Board of Works v. Nathan (54 L . T .
... ... .. 349 Rep . N . S. 423) 939
Board......of Works v. Steed Brothers
way Company (17 Q . B .
Marriott v. Chamberlain 840) ....
(54 L . T. Rep . N . ....S. 714 ; Metropolitan
17 Q . B . Div. 154) ......... 76 (45 L . T . Rep. N . S . 611 ; 8 Q . B . Div. 445) ...... 940
Marris v. Ingram (41 L. T. Rep. N . S.613. ; 13 Ch. Metropolitan Board of Works v. West Ham (23 L .
Div . 338)....... ... ... . .. . .. 722 T. Rep . N . S. 490 ; L . Rep. 6 Q . B. 193)............
Marsden 's Trusts, re (33 L. T. Rep. 0. $. 271 ; Metropolitan (Brush ) Electric Power and Light
4 Drew . 594, 599) .............. 491 Company Limited, re ; ex parte Leaver (51 L . T .
Marsh, reMason v. Thorne (59 L. T. Rep. N . S.595 ; Rep . N . S. 817) ......... .............. ... ............ 557
38 Ch. Div. 630) ........ 87 Micklethwait v. Newlay Bridge Company (55 L. T.
Marshall v. Marshall (59 L. T.* *Rep. N . S. 484 ; 38 Rep. N . S . 336 ; 33 Ch. Div . 133) .................. 199
Ch . Div. 330) ..... . .. ... ......... ...... 720 Middlesborough Assembly Rooms, re (42 L . T. Rep .
Marshall v. Smith (28 L . T. Rep. N . S. 538 ; L. Rep. N . S. 609 ; 14 Ch. Div. 104 )... ........... 746
8 C . P . 416 )...... 939Middlesborough and Redcar Permanent Benefit
Marshall v. Ulleswater Steam Navigation Company Building Society, re (No. 2), (53 L . T . Rep. N . S . 203)
(25 L . T. Rep. N . S. 793 ; L . Rep. 7 Q . B . 166)... Midland Railway Company v . Haunchwood Brick
Martin v . Porter (5 M . & W . 352) 898 and Tile Company (46 L . T . Rep. N . S . 301 ; 20
Martin v. Treacher (54 L . T. Rep. N . S. 7 ; 16 Q.. . . .B. .. Ch. Div . 552) .......... 194
Div . 507) ... ....... ..... 764 Midland Railway Company v. Watton (54 L . T.
Marzetti's...case (42 L . T . Rep . N . S. 206 ; 28 W . R . Rep. N . S. 482; 17 Q . B . Div. 30) .......... 939
541) ... ... ......... 688, 875 Miles v. Rose (5 Taunt. 705)...... 34
Massam v. Thorley's Cattle Food Company (42 Miller, ex parte ; re Garland (Buck . 283)............... 263
L . T. Rep . N . S. 851; 14 Ch. Div. 748 ) ............. 635 Millington v . Fox (3 My. & Cr. 338 ).................. ... 805
.. . . ... .. . .. . .. . .. 557 Mills' Estate, re (55 L . T. Rep. N . S. 465 ; 34 Ch.
Massey v. Allen (9 Ch. Div. 164).........
Maste rs v. The Pontypool Local .. .Gove rnment Div . 24) ........... . ... ... . .. 511
Board (9 Ch. Div . 677) ............ . . . . . . . . . . . . . . . .. 784 Minet v. Morgan (28 L. T. Rep. N . S. 573 ; 8 Ch.
Matson v. Swift (8 Beav. 368)........... . ... . . . . . . .. . 177 App. 361)....... 559
Matthews, re (12 Ir. Com . Law Rep. N . S. 233) ... 45 Mitchell v. Cantrill (58 L . T. Rep. N . S. 29 ; 37 Ch.
Maunsell v. Midland Railway Company (of Div. 56 ) ......... 553
Ireland) and Great Northern and Western (of Mitchell v. Simpson (23 Q . B . Div . 373) ............... 815
Ireland) Railway Company (8 L . T. Rep. N . S . Mitchell's claim , re (19 L . T. Rep . N . S. 261; L .
826 ; 1 H . & M . 130)....... . ... 529 Rep. 6 Ch. App. 822) .......... 280
May, ex parte ; re Brightmore (51 L . T. Rep. N . S. Mody and another v. Gregson and another (19 L . 935
710 ; 14 Q . B . Div. 37) ........ 93 T. Rep. N . S. 458 ; L . Rep . 4 Ex. 49)................
May v.May (33 Beav. 81) . 386 Mogg v.Mogg (1 Mer. 654 ,664 ) ..... 772
May v. Thomson (47 L . T. Rep. N . S .295 ; 20 Ch. Monkseaton , The (60 L . T. Rep. N . S. 662 ; 6 Asp. 07
Div . 705 )............ .... ... .... .. 417 Mar. Law Cas. 383; 14 P . Div. 31). 4
Mayhew v. Crickett (2 Swans. 185). .. ...... .. ...... 545 Montagu v. Earl of Sandwich (54 L. T. Rep. N . S. 52
Mayor of Basingstoke v. Lord Bolton (1 Drew . 502 ; 32 Ch. Div. 525) ........... . .. . .. . . .
270 ) ....................................... .. .. .. . .. .. . .. . 213 Monypenny v . Dering (2 D . M . & G . 145, 170)...... 772
Mayor of Burnley 1 . The County Council of Moore v. Darton (4 De G . & Sm . 517).................. 614
Lancaster (54 J. P . 279 ) 905 Moore v . Doherty (5 Ir. L . Rep. 449) ......... 78
Mayor of Colchester v. Brooke (7 Q . B . Rep. 339 ) Moore v. Moore (30 L . T. Rep. N . S. 752 ; L . Rep. 614
Mayor of Congleton v. Patteson (10 East, 130)...... 503 18 Eq. 474 )............
Mayor of Swansea v. Quirk (41 L . T.Rep. N . S. 758 ; Morgan v. Gronow (28 L . T. Rep. N . S. 434; L . 491
5 C . P . Div . 106 ) .... 435 Rep. 16 Eq. 1 ).........
Meacham v. Cooper (L . Rep. 16 Eq. 102 ; 42 L . J. Morgan v. Selford (4 Ch. Div . 388 )........ ... ... 21
876, Ch .) ...... ... . . . . . . . . . . . . . . 715 Morgan v. Thorne (7 M . & W . 400, at p . 408 ) ...... 326
Mead, re ; Austin v. Mead (43 L . T. Rep . N . S. 117 ; Morison v. Thompson (30 L. T . Rep . N . S. 869 ; 655
15 Ch . Div. 651) .. L . Rep . 9 Q . B . 480) ..
Medley v.Medley (47 L . T.Rep. N . S. 556 ; 7 P. Div. Morland v. Isaac (25 L . T. Rep. 0 . S. 137 ; 20 315
122) .. .. ... ... 92919
Meek v. Kettlewell (1 Hare, 464 ; 1 Ph. 342).........
Beav. 389) ............,
Morley v. Culverwell (7 M . & W . 174 ) ............ . 164
Megson v. Hindle (43 L. T. Rep. N . S. 551 ; 15 Ch. Mortimore v.Mortimore (40 L. T. Rep. N . S.696 ; 4
Div. 198) ... ......... : :............... 900 App. Cas. 448 )............... . .. .. .. .. . . .. .. . 362
Mellor v. Spateman (1 Wms. Saund. 612 ; n. 4, p . Moseley v. The Victoria Rubber Company (57 L . T.
627) ....... .. .. ... ... .. .. .. ... .. . ... ... .. .. .. ... ... .. . ... 255 , 5 Rep. N . S. 142; 4 R . P . C . 241) ........................ 222
Mercer v. Woodgate (21 L . T. Rep . N . S. 458 ; L . Moseley's Trusts, re (41 L . T. Rép. N . S. 9 ;. . ..11. ..Ch.. .. 391
Rep.k 5 Q . B. 26 ) ........... Div. 555) ..........
Merric 's Tru sts, re (L . Rep. 1 Eq. 551)............... Moss v.Cooper (1 J. & wH . 352).......... .. .... ..... ... 491
Merry v. Nickalls (L . Rep . 8 Ch. App. 205) ......... Muir v. City ofGlasgo Bank (4 Ct. of Sess. Cas.
Mersey Docks and Harbour Board v. Overseers of vol. 6 , 392, 401) ...... .. 227
Llaneilian (52 L. T. Rep. N . S. 118 ; 14 Q . B . Muir v. Kirby (32 Sol. Journ. 139) .. 715
Div . 770) ........... 414 Munro, ex parte (35 L. T.Rep. N . S. 847; 1 Q . B. Div.
Mesgrett v . Mesgrett (2 Vern . 580).................. . . 182 724) 302
Metcalfe, re ; Metcalfe v. Metcalfe (61 L. T. Rep .
N . S. 767; 59 L. J. 159, Ch.)..... 455 |
Murphy v. Coffin (5 Asp.Mar. Law . Cas. 531,n.; 844
12 Q . B . Div. 87).........
Oct. 18, 1890.] THE LAW TIMES. [Index - xxxi
TABLE OF CASES.
Murphy v. Ryan (2 L . Rep . Ir. C . L . 143) ......page 34
Murray r. Walter (Cr. & Ph., 114 , 124, 125 ).......... 559
Murrell v . Goodyear ( 1 De G . F . & J. 432)........... 54
Mussett v . Burch (35 L . T . Rep . N . S . 486 ) ......... 111 Oakes v . Tarquand (16 L . T . Rep . N . S. 808 ;
Mutual Life Assurance Society v. Langley (54 L . T. L . Rep. 2 E . & Ir. App. 325)................page 319, 792
. 326 ; 32 Ch. Div . 460) .................. 802
Rep. N . S Oakley v. Dalton (57 L . T. Rep. N . S. . .18...;.. ..35..
Mutual Society , re (24 Ch. Div. 425 ) .... 294 Ch. Div. 702) ...... ...... 448
Myatt v. The St. Helen 's Railway Company (2 Ad. & Olive ,re (55 L . T . Rep. N . S. 83 ; 34 Ch. Div. 70 ) 273
Ell. N . S . 364).......... 57 O'Neill v. Read (7 Ir. L . Rep. 434) ...... ........ 326
Myers v. Elliott (54 L. T. Rep. N . S. 552 ; 16 Q. 734 Oppenheim v. Oppenheim (9 Prob . Div.60)............. 666
B . Div . 526 ) ... .. ......... Oppensalhaw v . Whiteh ead ( 9 Ex. Rep . 384) ... ... ... 563
Mylne v. Dickenson (G . Coop. 195) ....... ...... ... ... 529 Origin Hartlepool Collieries Company v. Gibbs (36
L . T. Rep. N . S . 433 ; 5 Ch. Div. 713 ) ............ 449
Ormston, re ; Goldring v. Lancaster (58 L . T. Rep.
N.
N . S. 594
74 ; confirmed on appeal, 59 L . T. Rep. 28
N . S. ).........
Orr-Ewing v . Colquhoun (2 App. Cas. 839)
Nanson v. Gordon (34 L . T. Rep. N . S. 401. ...; ..1 ..App. Osborne v. Homburg (33 L . T. Rep . N . S. 531 ; 1
Cas. 195 ) ... .. ... 328 Ex. Div. 48) ... ..................... 482
National Funds Assurance Company , re (39 L . T . Ostle v. Christian ( T. & R . 324) .. 710
Rep. N . S. 420 ; 10 Ch . Div. 118, 128) ......688, 875 Ousey v. Ousey and Atkinson (33 L. T. Rep. N . S.
National Marine Insurance Company, re ; Gilbert's 789 ; 1 P . Div . 56 ) ...... ............ 668
case (22 L . T. Rep. N . S. 341 ; L . Rep. 5 Ch. 559 761 Overend and Gurney v. Gibb (L . Rep. 55 H . of L .
National Provincial Bank of England v . Games (53 480 ) ......... ......... ... .. . ... .. .. .. ... ... . .. ... ... . . . .. . .. .. .. ...
L . T . Rep. N . S. 955 ; 54 L . T. Rep . N . S . 696 ; 31 Overend ,Gurney , and Co., re ; Griseell's case (14
Ch . Div . 582) ..... . . . . . . . . . . . . . . . . . 674 L. T. Rep . N . S. 843 ; L . Rep. 1 Ch. App .528) ... 405
National Provincial Bank of England v . Jackson Overton v. Hewitt and others (3 Times L . Rep . 247,
(55 L. T. Rep. N . S. 458 ; 33 Ch. Div. 1).......... 923 at p . 250)....................................................... 658
National Provincial Bank of England v. Marshall Owen v. Bryant (2 De G . M . & G . 697) ............... 900
(60 L . T. Rep. N . S. 341 ; 40 Ch. Div. 112 ...... 453 Owens College v. Overseers of Chorlton -upon -Med .
Native Guano Company (Patent Cases, vol. 4 , 473) 868 lock (56 L. T. Rep. N . S. 373 ; 18 Q . B . Div. 403) 414
Neale v. Cottingham (i H . Bl. 133, n ...... 781 Oxford Benefit Building and Investment Society, re
Needham v . Bowers (59 L . T. Rep . N . S. 404 ; 21 (55 L. T. Rep. N . S. 598 ; 35 Ch . Div. 502, 512)
Q . B . Div . 436 ) .. . . . . . . . . . . . . . . 910 630, 688, 875
Nelson v. Dahl (44 L . T . Rep. N . S. 381; 12 Ch .
Div. 568 ; 4 Asp.Mar. Law . Cas. 392) ............ 844
Nelson 1. Duncombe (9 Beav. 211), ...............23, 343
New Brunswick Railway Company r. Muggeridge (3 P.
L . T. Rep. N . S. 651 ; 1 Dr. & Sm . 362) ......... 30
Newbegin , re ; Eggleton v, Newbegin (57 L . T. Rep. Page v. Leapingwell (18 Ves. 463) ........
N . S. 390 ; 36 Ch. Div. 477)........... 639 Paget v. Grenfell (L . Rep. 6 Eq. 7) ......
Newcomen v. Conlson (36 L. T. Rep. N . S. 385 ; 5 379 Pain v. Jones (30 L . T. Rep. N . s. 779 ; L . Rep. 18
Ch. Div . 133 ...... Eq. 320; 43 L. J . 787, Ch.) ...... 798
Newton v. Newton (19 L. T . Rep . N . S. 588 ; 4 Ch. 922 Palliser v.Gurney (19 Q . B . Div. 519)....... 603
App. 143)......... Palmer v.Mallet (58 L . T .Rep. N . S.64 ; 36 Ch . Div .
Nicholl v . The Eberhardt Company Limited (61 411) 453
L . T . Rep . N . S . 489). . . . . . . ... 61 Pannell, re ; ex parte Bates (11 Ch . Div. 914 ) ...... 838
Nicholl's Trusts, re (14 W . R . 475 )... 627 Paraguassu Steam Tramroad Company, re ; Black
Nichols v. Rosewarne (6 C . B . N . S . 480)..... ........ 777 and Co.'s case (28 L . T. Rep . N . S. 50, 53 ; L . Rep.
Nicholson v. Booth and Naylor (58 L . T . ....... Rep. N.... ...S. 636 8 Ch . App . 254 , 264). .. ... ... ... ............. 405 , 888
187 ; 57 L . J . 43, M . C .) .. Parker, re ; Cash v. Parker (40 L . T. Rep . N . S .
Nicholson v . Revill (4 Ad. & E . 675) .................. .543 878 ; 12 Ch. Div . 293) ............. ..... ............ 338
Norman v. Johnson (29 Beav. 77).. .. .. .... .... 819 Parker v . Mitchell (11 A . & E . 788)..... . . . . . . . . . . 255
Norris, ex parte ; re Biddulph (L . Rep. 4 Ch. App. Parkinson v. Potter (53 L . T. Rep. N . S. 818 ; 16
280 ) ........ ......................... 273 Q . B . Div . 152) ......... 657
North Kent Railway Company , re; Kincaid's case Parnham 's Trusts, re (46 L . J. 80 , Ch.) ............... 455
(23 L . T . Rep. N . S . 460 ; 11 Eq. 192) ............ 30 Parry v. Parry (Seton on Decrees , 4th edit., p . 1146) 802
North London Raliway Company v. Great Northern Partridge, ex parte (19 Q . B . Div . 467) ......... 787
Railway Company (48 L. T. Rep. N . S.695; 11 Patch v. Shore (2 Dr. & Sm . 589)........... 608
Q . B . Div . 30)........ 529 Patent File Company, re ; ex parte Birmingham
North Staffordshire Railway Company v. Peck (E . Banking Company (23 L . T . Rep. N . S . 484 ;
B . & E ., 986 , 1001) 108 L . Rep. 6 Ch . App. 83).... .. .. .. . .. .. . 888
North -West Transportation Company v. Beatty (57 Patrick v. Shedden (2 E . & Bl. 14 )... ... 189
L. T. Rep. N . S. 426 ; 12 App. Cac. 589) ......... 825 Payne, re ; er parte Castle Mail Packet Company
Northcote v. Doughty (4 C . P . Div. 385) ............ 319 (18 Q . B. Div. 154) ....... ........ ...... 368
Northern (Counties of England) Fire Insurance Payne, ex porte ; re Sinclair (53 L . T. Rep. N . S. 767 ;
Company v. Whipp (51 L . T. Rep . N . S. 806 ; 26 15 Q . B . Div. 616 ) ...... ... ... .... .. 850
Ch . Div . 482) ......... 923 Pearks v. Moseley (43 L . T. Rep. N . S . 449; 5
Norton Iron Company, re (47 L . J. 9, Ch.) ......... 361 App . Cas. 714) ....... 391
Norwich Town Close Estate Charity, re (60 L . T. Pearson, re ; Oxley v. Scarth (51 L. T. Rep. N . S.
Rep . N . S. 202 ; 40 Ch. Div. 298), ..... 421 692) ............ . . .. .. . 687
Nottingham Patent Brick and Tile Company v. Pearson v. Pearson (51 L . T. Rep. N . S. 311 ; 27
Butler (54 L. T. Rep. N . S. 444 ; 15 Q . B . Div. Ch. Div. 145 ........ 417
261, 268 ; 16 Q . B . Div. 778) ................99, 333, 472 Pearson v. Stephen (5 Bli, N . S . 203)...... 678
Notting Hill , The (51 L . T. Rep . N . S. 66 ; 5 Asp. Pedrotti's Will, re (27 Beav. 583) ....... 763
Mar. Law Cas. 241 ; 9 P . Div. 105 )...............
. . . . . . . . . . .. . 50 Peek v. Derry (59 L. T. Rep. N . S. 78 ; 37 Ch . Div.
Novello v. Toogood (1 B . & C .554 ; 1 L. J. 181, K . B .) 657 | 541) ...... 135
xxxii - Index.] THE LAW TIMES. [Oct. 18, 1890.
TABLE OF CASES.
Peek v. Gurney (L . Rep. 6 H . of L. 377) page 135, 761 | Pountney v. Clayton (49 L . T . Rep. N . S. 283; 11
Pelly v. Bascombe (4 Giff. 390 ) 78 Q . B . Div . 832) .........Page 194
Penn v. Bibby (15 L . T. Rep. N . S. 399 ; L . Rep.
2 Ch. App. 127) .......
Powell's Trusts, re (18 W . R . 228 ) ...... 87
281
222 Pronce v. Sympron (Kay, 678, 681)...
Penn v. Jack (17L. T.Rep . N . S.407; L . Rep .5 Eq.81) 65 Prendergast v . Turton (1 Y . & Col. 98 ) ... 277
417
Pennell v . Deffell (4 De G . M . & G . 381).............. 82 Preston v . Luck (27 Ch. Div. 497) ...
Pensher, The (Swab. 213) ........ . . . . . . . . . 50 Price v. Berrington (11 Beav . 90) ..................... 448
Percival v . Pedley (18 Q . B . Div. 635 ) .............. 737 Price v. Green ( 16 M . & W . 353) ... ....., 311
Percy, re (49 L . T. Rep. N . S. 554; 24 Ch. Div.616 ) 736 Price v.McBeth (10 L. T. Rep . N . S. 521; 33 L. J.
Perham v. Raynall (2 Bing. 306 )............. 544 460, Ch .) ...... .... ... ... ...... ... 34, 674
Perry v. Merritt (L . Rep. 18 Eq. 152) .......... .. 736 Priske v. Priske and Goldby (29 L . J. 195 ; P . &
Perry v. Oriental Hotels Company (23 L . T. Rep. M . .. . ... . . . .. . .. .. . ... 608
N . S. 525 ; L . Rep. 5 Ch. App. 420).................... 139 Procter v. Bayley (61 L . T. Rep. N . S. 752; 42 Ch.
Perry v . Phillips (17 Ves. 173, 182) .................. 930 Div . 390 )......
Petre v . Petre (21 L . T .Rep. 0 . 8 . 136 ; 14 Beav. 197) 491 Provost of Glasgow v. Farie (60 L . T . Rep . N . S. 602
Pharmaceutical Society v . The London and Provin . 274 ; 13 App. Cas. 657)...... . .. . . .. 194
cial Supply Association (43 L . T. Rep. N . $. 389 ; Pryor v. Pryor (10 L . T. Rep. N . S. 364 ; 2.. D . J.
5 App . Cas. 857)........... & S. 205) ......... 491
Phillips v. Eastwood (Ll. & G . temp.Sugd. 270)...... 763 Pulling v. London, Chatham , and Dover Railway
Phillips v. Homfray (49 L . T. Rep. N . S. 5 , 439 ; 24 Company (10 L . T. Rep . N . S. 741 ; 3 De G . J.
Ch. Div. 439) ... .........448, 898 & S. 661). . .... . .. .. . .. . 882
Phillips v. Phillips (5 nQ . B. Div. 60) ... 305 Purfrey 's case (Moore, 243) ... . . .. . .. . .. . 503
Phillips, re ; Robinso v. Burke (60 L . T. Rep . Pyman Brothers v . Dreyfus Brothers (61 L . T .
N . S. 808 ; 41 Ch. Div. 417) ...... 87 Rep . N . S. 724 ; 6 Asp. Mar. Law Cas. 444 ; 24
Phillpotts v. Boyd (The Exeter case), (32 L. T. Rep. Q. B.Div. 152) .... ....... 844
N . S . 73 ; L . Rep . 6 P . 0C . 435
405 ) ..........
. . . . . . . . . . . . . . . . . . . . . . . . 168
Philps v . Evans (4 De G . & Sm . 188) ................... 363
Philps' Will, re (19 L . T. Rep. N . S . 713 ; L . Rep.
7 Eq. 151) ........ 363
Phæni: Bessemer Steel Company, re (32 L . T. Rep.
N . S.v.854Matthews
; 44 L. J.(39 .LS.. 683, Ch.) N............
. S. 531;27,
10 888 Quartz
QuarmanHillv. Brırnett (6 M . & W . 499, 510)........... 794
Picken T. Rep. Consolidated Gold Mining Company v .
Ch . Div . 264) 391 Eyre (49 L. T. Rep. N . S. 249 ; 11 Q . B. Div.674) 520
Pickering v. James (29 L . T. Rep. N . S . 210 ; Quebrada Land and Copper Company, re (60 L . T .
L . Rep . 8 C . P . 489) .. ............ 788 Rep . N . S. 482 ; 40 Ch. Div. 363) .................. 313
Pickering v. Pickering (4 My. & Cr. 289) ............ Quick v. Quick (3 Sw . & Tr.442)...... 508
Pickering v . Stephenson (26 L . T . Rep . N . S. 608 ; Quincey v. Sharp (34 L. T. Rep. N . S. 495; 1 Ex.
L . Rep. 14 Eq. 322, 341) ..........
. ... .. . ... ... .. ... . ... 688 , 875 Div . 72) .... 280
Pierce v. Jersey Waterworks Company (22 L. T.
Rep . N . S. 519 ; L . Rep. 5 Ex. 209).. . .... ... ... ... 761
Piercy v . Young (42 L . T . Rep. N . S. 292 ; 14 Ch .
Div . 200 )......... ....... ...... ......... 529
Piggott v. Stratton (1 L . T . Rep. N . S. 111 ; 1 De
G . F . & J. 33) ......... 99, 101 Rabbeth v. Squire (4 De G . & J. 406 ) ................ 379
Pilcher v. Rawlins (25 L . T. Rep. N . S. 921 ; 7 Ch. Rackham v. Siddall (1 Mac. & G . 621) ............... 82
App. 268 )............... Radcliffe, re ; The European Assurance Society v.
Pilkington v. Hunsworth (1 Y . & C . Ex. 612).......... 515 Radcliffe (7 Ch . Div. 733)............ 552
Pinchin v. The London and Blackwall Railway Radde v. Norman (26 L . T . Rep . N . S. 788 ; 14 Eq.
Company (5 De G . M . & G . 851) 348) ....... ... 868
Pinchin v. Simms (30 Beav. 119)... 53 Railway and Electric Appliances Company, re ..(59
Pindar v . Wadsworth (2 East. 154).. 591 L . T. Rep. N . S. 22 ; 38 Ch. Div. 597)........ 99
Pinkerton v. Easton (29 L . T. Rep . N . S. 364 ; L. Rainbow v. Juggins (5 Q . B . Div. 422) ... .. . .. .. .. ... 544
Rep. 16 Eq. 490)......... ... 727 Randegger v. Holmes (L. Rep. 1 C. P. 679) ......... 822
Plasterers' Company v. The Parish Clerks Company Rankin , re ; ex parte Radkin (5 M . B . R . 23).......... 368
(6 Ex.630) ....... Rankin v. Weguelin (27 Beav. 309).....
553 614
Platt v . Mendel (27 Ch . Div. 246 ) ...................... 802 Rawling's Settlement Trusts, re (L . Rep. 6 Eq. 601) 363
Plumb v. Fluitt (2 Anstr. 440)......... 923 Read v . Blunt (5 Sim . 567) .... ... ... 819
Podmore v. Whatton (3 Sw . & Tr. 449) ............ 508 Reese River Silver Mining Company Limited v.
Polak v. Everett (34 L . T. Rep. N . S. 128 ; 1 Q . B . Smith (L . Rep . 4 E . & Ir. App. 64, 73) ............. 792
Div , at p . 675 ) ......... 546 Reg. v. Adamson (1 Q . B . Div. 201)............... 169, 571
Pollard , re (L . Rep . 2 P. C. 106 ) ......... 713 Reg. v. Adamson (1 Q . B . Div. 201 ; 8. c. nom . Reg.
Pool v . Bousfield ( 1 Camp. 55) ....... 726 v. Justices of Tynemouth , 33 L . T. Rep . N . S. 44922
Poole, Jackson and White's case (38 L . T. Rep . 840) ....... . . . . . . . .. .. . . . .
N . S. 413 , 659 ; 9 Ch . Div . 322) 761 Reg. v. Barnardo (61 L. T.Rep. N . S. 547 ; 23 Q . B .
Popple v. Sylvester (46 L. T. Rep. N . S. 329 ; 22
Ch . Div. 98 ).........
Div. 204 , 305 ) ............ 44, 713
. . . . . . . . . . . . . . 235 Reg . v. Battens (6 C . & P. 147) .......... . . . . . . . . . . . 578
Portal v. Emmens (35 L. T. Rep. N . S. 882 ; 1 C . P . Reg. v . Bird (5 Cox C . C . 11 ; 2 Den . C . C . 94 ; 20
Div . 664)......... .. . ... ... . .. . .. 30 L . J. 70, M . C .; 15 Jur. 193 ; T. & M . 437) ...... 573
Porter v. Bradley (3 T. Rep . 143) ..................... 772 Reg. v. The Bishop of Chichester (33 L . T. Rep.
O . S . 301 : 2 E . & E . 209) ... ............ ......... ... ... 169
Portuguese Consolidated Copper Mines Limited , re
(60 L . T. Rep. N . S. 857 ; 62 Ib . 88 ; 42 Ch . Div. Reg . v . Bloxham (6 Q . B . 528 ) 515
160) .......... ............ 30, 180 , 564 Reg. v. Boteler (4 B . & S . 959 ) 169
Pott v. Clegg (16 M . & W . 321) . . .. . .. . ... 858 Reg. v. Brakenridge (48 J. P . 293) ... 458
Potteries, Shrewsbury , and North Wales Railway Reg . v. Backmaster (57 L . T. Rep . N . S. 720 ; 16
Company, re (21 L . T. Rep. N . S. 545 ; L . Rep . Cox. C . C . 339 ; 20 Q . B . Div. 182 ; 57 L . J. 25
5DivCh. App. 67 ; 50 L . T. Rep. N . S. 104; 25 Ch . M . C.) ......... 673
. 251)..... .......... 240, 349 | Reg . v. Bucknell (7 Mod . 55 ) ..................... ......... 581
Oct. 18, 1890.) THE LAW TIMES. [Index - xxxiii
TABLE OP CASES.
Reg. v. Campbell (11 Q . B. 799) ..................page 847 | Reg . v.Thomas Fletcher (51 L. T. Rep. N . S. 334 ;
Reg. v. Cleworth (6 Mod. 163).......... 581 L . Rep . 1 C . C . R . 320).. ........................page 813
Reg. v. The Commissioners of Income Tax (60 L . T. Reg . v. Towgood (35 J. P . 791). ... 111
Rep . N . S. 446 ; 22 Q . B . Div. 296 )........ Reg . v. The United Kingdom Electric Telegraph
Reg. x. Cook (L. Rep. 13 Q . B . Div. 377) 4377 Company (6 L. T. Rep. N . S. 378 ; 31 L. J. ..166. ..., 111
Reg . r . Dunsford (2 Ad. & Ell. 568) . 195 M . C.)
Reg. v. Elrington (5 L. T. Rep. N . S. 585; 1 B . & 73 Reg . v. The Vestry of St. George's Southwark (19
S. 688 ; 31 L . J. 14 , M . C .) ... 5 Q . B . Div . 533 ; 56 L . J. 652, Q . B .) .. 441
Reg. v. Emmell (9 C . & P . 365). 578 Reg. v. Vine (31 L . T. Rep . N . S. 842 ; L ....Rep. 10
Reg . v. Fawcett (11 Cox C . C . 305) ......... 571 Q . B . 195 ) ....... .. . . .. . .. 291
Reg. v. Fuidge (9 L . T. Rep. N . S. 777 ; 9 Cox C. C.
430 ; 33 L . J. 74, M . C .) .........
Reg. r. Walker (2 M . & R . 446) .... ..... ............... 573
848 Reg. v. Warburton (23 L . T. Rep . N . S. 473 ; L .Rep.
Reg. v. The Governors of Darlington School (6 Q . B . 1 c. C. R . 274 ; 11 Cox. C. C . 584 ; 40 L . J. 22, 5
682 ; 14 L . J. 67, Q . B .) ........ 442 M . C .) ......, 12
Reg. ?'. The Guardians of Leeds (40 L . T. Rep . 2 Reg . v. Watts (1 Salk . 377) ...... . ...... ... 581
N . S. 521; 4 Q . B . Div. 323) 66 Reg. v. Wealand (58 L . T. Rep . N . S. 782 ; 16 Cox
Reg. v. Herford (2 L . T . Rep. N . S. 459 ; 29 L . J. C . C . 402 ; 20 Q . B . Div. 827 ; 57 L . J. 44,
249, Q . B .) ........ . ... .. ... 115 M . C .) 846
Reg. v. Hughes (40 L . T. Rep . N . S. 685; 4 Q . B . Reg . v. Wilson (8 C . & P. 111) 673
Div. 614 ) ...... 813 Reichel v. Magrath (61 L . T. Rep. N . S. 131 ; 14
Reg. r. The Inhabitants of All Saints, Derby (14 App . Cas. 665). 602
Q . B . Rep . 207) . 551 Reid v . Reid (54 L . T. Rep. N . S. 100 ; 31 Ch. Div.
Reg. v. The
Garden (7 Q.Inhabitants
B . Rep. 232)of . ..St.. . ...Paul's, ..........
Covent 5481 Reigate
402) ...... .... ... .... .... .............. 16 , 929
Union v. Croydon Union (in H . of L .,61
Reg. 2. The Inbabitants of Surrey (2 Camp. 455) ... 581 L . T . Rep . N . S . 733, at p . 735 ; 14 App. Cas.
Reg. v. The Inhabitants of Yelvertoft (6 Q . B . Rep . 465, at p . 483).......... ............ 70
801) ...... ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Renals v. Cowlishaw (38 L. T. Rep. N . S . 503 ; 9
Reg. v. Jordan (36 W . R . 797) ............. 713 Ch. Div. 125, 129 ; 41 L . T. Rep............
N . S. 116 ;
Reg. r. Judge of the Marylebone County Court 11 Ch . Div. 866) ........ 101, 504
(50 L . T. Rep . N . S. 97) ... ........ .. 583 Republicof Costa Rica u . Erlanger (35 L . T. Rep . 830
Reg. v. The Justices of Essex (4 Times L . Rep .676 ) 905 N . S. 19 ; 3 Ch. Div . 69) ..
Reg v. The Justices of Wiltshire (8 L . T. Rep. N . S . Reass v. Picksley (15 L . T. Rep. N . S. 25 ; L . Rep.
242) ......
Reg. u . Lamsdon (E . B . & E . 949, 954 ) .....
637 1 Ex. 312 ) ..... 3033
54
581 Rew v. Pettet (1 Ad. & E . 196 ) ...
Reg. v . Leadbetter (3 C . & K . 108) .......... 848 Rex v. Askew (4 Burr . 2186 ) 442
Reg . r. Mathias (2 F . & F . 570) .. 111 Rex v. Barton Turfe (2 Const.'s Poor Law , p. 26 ,
Reg. r. The Mayor of Exeter ; Dipstale's case (19 5th edit.) ........ 548
L.115 T.) ...Rep. N . S.432,433 ; L . Rep. 4 Q . B . 114, Rex v. Braiser (1 Leach C . L . 199 ; 1 East P . C . c.
531 10 , s. 5 ) ... ... ... .......... ... 847
Reg.J. 73'. , The Mayor of York (1 E . & B . 588 ; 22 L . Rex v. Corporation of Shrewsbury (Cas. temp.
M . C .) ......... 413 Hardwicke, p. 147)......... 89
Reg. v. The Metropolitan Board ofWorks (19 L . T. Rex v . Edmonton (1 M . & R . 24) ........................ 581
Rep . N . S . 349 ; L . Rep. 4 Q . B . 15) ...... ........ 414 Rex v. The Inhabitants of the County of Salop (13
Reg. r. Middleton (28 L . T. Rep. N . S. 777 : 12 East . p . 97) ............ 111
Cox. C . C . 417 ; L . Rep . 2 C . C. R . 38 ; 42.......... L . J. 673 Rex653)v. ..The.. .. ...Inhabitants of Heaton Norris (6 T. Rep.
73, M . C .)............... . ........... ... .. . ... ... .. . ... ... ... . ... .. ... . ... ... 55
Reg. v.Miles (24 Q . B . Div. 423) ...... ..... Rex v. The Inhabitantss ofMiddlesex (3 B . & A . 201) 581
Reg. v.Morris (16 L . T. Rep . N . S. 636 ; 10 ..Cox... 458 Rex v. The Inhabitant of Woodsford (Cald . 236 )... 551
C.M . C.C .)480....; L . Rep. 1 C. C . R . 90 ; 36 L.. . . J.. . . .84. . . , Rex v. The Justices of Lincolnshire (3 B . & C . 548) 731
576 Rex v. The Justices of Oxfordshire (1 M . & S. 446) 731
Reg. v. The Overseers of Withyham (2 C. L. Rep . Rex 1 . Moore (3 B . & Ad . 184) 794
1657 ).......... . ... .... .... . 441 Rex v . North (6 Dowl. Ryl. 143) 696
Reg. v. Owen (58 L. T. Rep. N . S. 780 ; 16 Cox Rex v. Pain (7 Dowl. & Ryl. 678) ...... ............... 696
C . C . 397 ; 20 Q . B . Div . 829 ; 57 L . J . 46, M . C .) 848 Rex v. Pedly (1 Ad. & Ell. 822) . 794
Reg . v . Padwick (8 El. & Bl. 704 ; 27 L . J. 113 ,M . C .) 730 Rex v. Powell (1 Leach C . L . 110) ........... 847
Reg. v. Pickering (41 J. P . 564)........................... 581 Rex v. Sadler (2 Chitty's Rep. 519) .................. 696
Reg . v . Robson (R . & R .413)........... 673 Rex v. The Severn and Wye Railway Company
Reg . v. Rowlands (18 L . T . Rep . N . S .347 ; 17 Q . B . (2 B . & Ald . p . 648) ........ 111
686 ; 2 Den . C . C . 388 ; 5 Cox C . C . 490) ......... 125 Rex v. Sutton (3 A . & E . 599; 5 Nev. & M . 353 ;
Reg. v. School Board for London (55 L. T. Rep. Har. & Woll. 428 ) .......... . . ... . . 58 1
N . S . 384 ; 17 Q . B . Div. 738 ) 414 Rex v. Turner (13 East, 228 ) .. ......... .. 125
Reg . v. Scott (25 L . J. 128, M . C .) ........... 568 Rex v. The West Riding of Yorkshire (2 East, 581
Reg.M . v.Shaw
C ..
( 12 L. T . Rep. N . S. 470 ; 34 L. J. 169, 813 352 , n )............
Reg. v. Stainer (21 L . T. Rep . N . S. 758 ; L . Rep .
Rex v.v. Whixley
Rex Young and(2 Bott,
Pitts (114 )......
Burr. 559)
551
W ... ... .. .. .. ... 442
IC. C . R . 230 ).... . ... .. . .. 311 Reynish v. Martin (3 Atk . 330) .... 182
Reg. v. Stanton (5 Cox C . C . 324 )............ . . .. .. . . .. 575 Rhodes v. Dawson (16 Q . B . Div. 548) ...............
.
Reg. v. St. George, Hanover-square (3 Camp. 222) . 58 ! | Rhodes v. Swithinbank (60 L . T. Rep. ..N ....S.. .. 856 ;
Reg. v. St. Mary Arches, Exeter, (5 L . T . Rep . 70 22 Q . B . Div. 577 . ........... . .. .. . 326
N . S . 637 ; 31 L . J. 77, M . C .) .... Rhondda , The (49 L . T. Rep. N . S. 210 ; 5 Asp.
Reg . v.St. Olave's Union (29 L . T. Rep . N . S . 426 ; Mar. Law Cas. 114 ; 8 App. Cas. 549) .......... 2, 332
8. c. L Olave's
.Rep. 9 Union
Q . B . 38 ; nom . St.George's Union 923
Rice v. Rice (2 Drew , 73 ) .....
t. St. ) Rich v. Basterfield (9 L . T. Rep. 0 . S. 356 ; 4 C. B. 794
.. . . .... . . . . . . 70
Reg. v. St. Paul's Covent Garden (7 Q . B . 232)...... 786 783 ; 16 L . J. 273, C . P .) ..
Reg. r. Taylor (20 L . T . Rep . N . S. 402 ; 11 Cox Richards v. Johnston (4 H . & N . 660) ...... ........ 265
C. C. 261 : L . Rep. 1 C . C . R . 194 ; 38 L . J. 106 , Richmond v. White (41 L . T. Rep. N . S. 570 ; ...12 863
M . C . ; 17 W . R . 623) ...... .. ............. 576 ' Ch. Div . 361) .......
xxxiv - Index.] THE LAW TIMES. [Oct. 18, 1890.
TABLE OF CASES.
Ricket v. The Metropolitan Railway Company | Salvin v. The North Brancepeth Coal Company
(16 L . T . Rep . N . S . 542 ; L . Rep. 2 H . of L .
175 ) ...... ... ...........,
(31 L . T . Rep. N . S. 154 ; L . Rep. 9 Ch. Appe.
705) .......
............ page 307 ............pag 794
Ridgway v. Wharton (6 H . of L . Cas. 238) Sampson v. Easterby (9 B . & 272C. )..505 ) .... . . . . . . . . . . . . 503
Ridley, re (41 L . T. Rep. N . S. 336 ; 11 Ch . Div. Samuel v. Howarth (3 Mer. 543
645) 772 Sanders v. Sanders (45 L . T. Rep. N . S. 637 ; 19 Ch.
Rigby v. Connol (42 L. T. Rep. N . S. 139 ; 14 283,
Ch . 310 Sanders'
Div. 373) .. 77
Div. 482) ........... ......... Trusts, re (L . Rep . 1 Eq. 675 ) ..... .. ... ... 790
Riley v.Read (40 L . T . Rep. N . S. 398 ; 4 Ex. Sanderson's Trust, re (3 Kay & John . 497) ......... 650
Div . 100)............ **.... ........ 467 Sankey Brook Coal Company, re (22 L . T. Rep .
Rishdon v. White (5 Times Rep . 59) .................. 516 N . S. 62 ; L. Rep. 9 Eq. 721) .................. 227, 888
Roach v. Trood (31 L . T . Rep. N . S. 666 ; 3 Ch. Sankey Brook Coal Company, re (No. 2) (22 L . T.
Div. 429)......... Rep . N . S. 784 ; L . Rep . 10 Eq. 281).......... 227, 888
Robb v. Connor (9 Ir. Rep. Eq. 373) ................... 563 Sanville v. The Commissioners of Inland Revenue
Robert Mary's case (9 Rep. 112)......... .. . .. . ... . .. (23 L . T . Rep . O . S . 223 ; 10 Ex. 159)................ 463
Roberts, re (62 L . T. Rep. N . S. 33 ; 43 Ch . Div. Sara , The (61 L . T. Rep. N . S. 26 ; 14 App. Cas. 409
52) ................... .............. 104, 674
Roberts, ex parte ; re Browne, Bayley, and Dixon 199 Saul209v.;Wigton
6 Asp. Mar. Law Cas. 413) .........
Rural Sanitary Authority (56 L . T. 732
(18 Ch . Div. 649) ... 922
Rep . N . S. 438 ; 35 W . R . 252) ......... 923
Roberts v. Croft (2 De G . & J. 1) ...... Saunders v . Debew (2 Vern . 270 ). ..
Roberts v. Eden (1 B . & P . 398) 164 Saunders v. Deligne and Barns (Freeman's Rep . 923
Roberts, re ; Goodchap v. Roberts (42 L . T. Rep. 235 Ch . 123) . .. . .. .
N . S. 666 ; 14 Ch. Div. 49) Saunders v. Vautier (1 Cr. & Ph. 240) 149
Roberts v. Roberts (2 Ph. 534)......... Savage v. Carroll (1 Ball & Beatty , 548)............... 326
Robertson v. Robertson (45 L. T. Rep . N . S. 237 ;
478
Sayers v. Collyer (51 L . T. Rep. N . S. 723 ; 28 Ch .
6 P . Div . 119) ......... . Div. 103) ......... 98
Robinson , ex parte (48 L . T. Rep. N . S. 501 ; 22 781
Schibsy v. Westenholz (24 L . T . Rep. N . S. 93 ; L . 191
Ch . Div . 816 ) ....... Rep. 6 Q . B . 155 ) ...........
Robinson v. Duleep Singh (41 L. T. Rep............
311 ; 11 Ch. Div. 798) ...
N . S. 590 Schofield
Scholes v. Hargreaves (5 Term Rep . 46, 48 ) .......... 589
v. Spooner (51 L . T. Rep. N . S. 138 ; 26 91
Robinson v . Sykes (23 Beav. 40) ........................ 218 Ch . Div . 94)........... 4
Robinson 's Executors' case (6 De G . M . & G . 572) 227 Sclater v. Cottam (29 L . T. Rep. O . S. 309; 3 Jur.
Robson v. Drummond (2 B . & Ald . 303).... 504
45 . 3
N . S. 430; 5 W . R . 744 ) ....
Scott v . Josselyn ( 26 Beav
... 33, 674
. 174) ...... ......... ......... 763
Rolfe v . Rolfe (15 Sim . 88) .........
Rolph v. Crouch (17 L . T . Rep. N . S. 249 ; L . Rep . 395 Scott v. Legg (10 Q . B . Div. 236 ) ...... 660
3 Exch. 44) ...... Scott v. London Dock Company (13 L . T. Rep . 810
Rooke's case (5 Coke's Rep . 100 a , vol. 3, p. 204) ... 441 N . S. 148 ; 3 H . & C . 596 )
Ross v. Estates Investment Company (15 L . T . Scott v. Morley (57 L . T. Rép. N . S. 919 ; 20 Q . B .
Rep. N . S. 272 ; 3 Eq. 122) ......... 33 Diy . 120) ......... .......... 146, 603
Roose v. Wainman ( 14 M . & W . 859) .................. 194 Ch .
Scott v. Pape (54 L . T. Rep. N . S. 399 ; 31
Rossiter v. Trafalgar Life Assurance Association
(27 Beav. 377)............ ............... . . . . . . . . . . . . 688
Div . 571) .. .. ... .. ... .. . ... ... . .. ... ... ... ... ... .. . ... ... ... 553
Scott v . Pilkington (2 B . & S. 11) ......................... 189
Rossiter v . Rossiter (13 Ch . Div . 355 ) ................ 865 Scottish Petroleum Company, re ; Anderson 's case
Roublot v. Boutell (33 L . T. Rep. 0 . S. 121).......... 480 (43 L . T . Rep . N . S. 723 ; 17 Ch. Div. 373) ...... 30
Routledge v . Dorril (2 Ves. 357, 366 ) ............... 772 Scottish Petroleum Company Limited, re ; Wallace's
Routledge v. Grant (4 Bing.653) .... ... . .. . .. ... 419 case (49 L . T. Rep. N . S. 348 ; 23 Ch. Div. 413,
Routledge v. Low (18 L . T . Rep . N . S. 874 ; L . Rep. 436 ) ........ ............ 30, 792
3 H . of L . 100) ;
Rowbottom v. Dunnett (8 Ch. Div . 430) ... ......... 491
854 Seaton v. Seaton (58
Cas. 61) ..........
L . T. Rep . N . S. 565 ; 13 App... 319
Rowe v. Hopwood (L . Rep. 4 Q . B . 1) .. Selkrig v. Davies (2 Rose, 97, 291) ............ ....., 561781
Rowe v . Rowe (2 De G . & S . 294 ) Sellon v. Watts (9 W . R . 847) ...
Royal Bank of Scotland v. Cuthbert ; Stein 's case Selwyn v. Garfit (59 L . T. Rep . N . S. 233 , 236 ;
(1 Rose, 462) ... ... ... ... ..... 38 Ch. Div. 273, 284).......... 653
Royal Exchange Shipping Company v. Dixon (56 Serjeant v. Dale (37 L . T. Rep . N . S. 156 ; 2 Q . B .
L . T . Rep . N . S. 206 ; 12 App. Cas. 11) ............ 741 Div . 566 ) ............... ........... 169
Royal Victoria Palace Theatre Syndicate , re (30 Shackleton , re ; ex parte Shackleton (61 L. T. Rep.
L . T . Rep . N . S. 3 ; L . Rep . 18 Eq. 661) ......... 630 N . S . 648 ) ........... .......... 368, 371
Royle , re ; Royle) v.............
Hayes (61 L . T . Rep . N . 8. 542 ; Shak espeare , re ; Deakin v. Lakin (53 L . T. Rep.
N . S. 145 ; 30 Ch. Div. 169) ...
Rugby Charity v.Merryweather (11 East, 375, n.) 349 Sharp v.Wright (14 L . T. Rep. N . S. 246 ; 1 Eq.634) 603
43 Ch . Div . 18 474
563
Russell v. Smyth (9 M . & W . 810) .......
Ruthin and Cerrig-y -Druidion Railway Act, re (55
18 Sharpe v. Wakefield (60 L
Q . B . Div . 239) ...........
. T. Rep. N . S. 130 ; 22
... 113
L . T. Rep . N . S. 237; 32 Ch. Div. 438) ............ 349 Sharples v . Adams (32 Beav. 213) ....... ...... 923
Ryalls v. Reg. (11 Q . B . 781) ..... Shaw v. Keighron (Ir. Rep. 3 Eq. 574 ) ............ 78. . ,326 82
Ryley, re ; ex parte The OfficialReceiver (15 Q . B . Shaw v. Wilder (2 Molloy's Ir. Rep . 532) ...
Div. 329)........... ............... 722 Sheffield and South Yorkshire Permanent Benefit
Building Society, re (59 L . T . Rep. N . S. 401 ;
22 Q . B . Div. 470 ; 60 L . T. Rep . N . S. 186 ) 295, 389
Shelmardine v. Harrop (6 Madd 39) .................. 800
Shepherd v. Keatley (1 C . M . & R . 117)............... 472
Sheil v. Mayor of Sunderland (6 H . & N . 796 ; 30
Sadler v. Bush and Stanton (2 Vern . 30)................ 923 L . J . 215, C . P .) ...... 660
Sadler v. Pratt (5 Sim . 632) .... 49 1 Shields Marine Insurance Association, re (17 L . T .
Salacia , The (2 Hagg. 269) ................................ 844 Rep. N . S . 308 ; L . Rep. 5 Eq. 368).................. 631
Salisbury v . Hatcher (2 Y . & Coll. Ch. Cas. 65) ... 55 Short v .McCarthy (2 B . & Al.626 ).... ...... 688
Salmon , re ; Priest v. Uppleby (62 L . T. Rep. N . S . Shrewsbury Peerage case 17 H . of L . Cas.
270 ; 42 Ch. Div. 351) ....... ....... 450 L 32) ....... 79
Oct. 18, 1890.) THE LAW TIMES. [Index - XXXV
TABLE OF CASES.
Shropshire Union Railways and Canal Company v. Somerset and Dorset Railway Company, re (21 L . T .
The Queen (32 L. T . Rep . N . S. 284 ; L . Rep. Rep . N . S. 656 ; 18 W . Rep. 332) .............page 240
7 H . L . 507) ......... ..........page 924 South Durham Iron Company,re ; Smith's case
Sibley 's Trusts , re (37 L . T. Rep. N . S. 180 ; 5 Ch. 678 (40 L . T . Rep. N . S.63, 572 ; 11 Ch. Div. 579,
Div. 494).. 586)....... ............. 227, 888
Sidmouth v. Sidmouth (2 Beav. 447) . South-Eastern Railway Company v. Railway Com .
Sidney v. Sidney (12 L . T. Rep . N . S . 827 ; 4 Sw . missioners (44 L . T. Rep. N . S. 203 ; 6 Q . B .
| Tr. 178) .......... n " . .. ...... ....... .. 91 Div . 586 ) ............. ................... ..... ......... ... 269
ne (5n E . & B . 367).........
Siggers v . Evans 850 Southall v . British Mutual Life Assurance Society
Silk . Pryme (2 Col. 509, n .) ............ ............... 561 (23 L . T. Rep. N . S. 682 ; L . Rep . 6 Ch . 614 ) ... 61
Sill v . Worswick (1 H . Bl. 665)......................... 781 Southam v. Blake (2 W . R . 446) ........ 220
Sillitoe, ex parte (Gl. & J. 374).......... 327 Southouse v. Bate (16 Beav . 132) ..... 736
Simmonds v . Hitchman (53 L . T . Rep. N . S. 751, n . ; Sowerby v. Smith (31 L . T . Rep . N . S. 309 ; L. Rep.
29 Ch. Div.417, n .; Eng. Rep. Jan . to March 1881, 9 C . P. 524).............. 918
p . xvi. App.) ......... 511 Spackman , ex parte (1 M . & G . 170) ........... 746
Simpson v. Gutteridge (1 Madd. 615 )... 165 Speer v . Chawter (2 Mer. 410) .......... 213
Sinclair,re ; ex parte Payne (53 L . T . Rep. N . S. 767 ; Spencer's case (1 Sm . L. C., 9th edit. 72) ......... 503
15 Q. B . Div. 616 ) ... .......... 267, 850 Spence's case (17 Beav. 203) 165
Singer v. Stassen (1 Rep. Pat. Cas. 121) 120 Spicer v. Martin (60 L . T. Rep. N . S. 546 ; 14 App.
Singer Sewing Machine v. Wilson (38 L . Rep. N . S.
303 ; 3 App . Cas. 376 ) ......
Cas. 12, 23) . ........... . 98 , 101, 504
624 Spong v. Wright (9 M . & W . 629).. 281
Sir John Bennet's case (Cro . Car. 55) .................. 292 Sprange v . Barnard (2 Bro . C . C . 587) ............... 763
Skeet v.Lindsay (36 L. T. Rep. N . S. 98 ; 2 Ex. Spurgeon v. Collyer (1 Eden , 54)..... 315
Div . 314) ............................ 280 Staight v. Burn (22 L . T. Rep. N . S. 831 ; L . Rep.
Sketchley v. Corrigan (12 L . T . Rep . Ir. 50) ......... 152 5 Ch . App . 163) ... ... . 751
Skipp v. Harwood (2 Swanst. 586 ) ..... . .. ... . .. 265 Stanford , ex parte ; re Barber (54 L . T. Rep. N . S.
Skipworth's case (28 L . T. Rep. N . S. 227 ; L . Rep . 894 ; 17 Q . B. Div. 259)............ 480, 734, 828, 853
9 Q . B . 230 )........... 714 Stanley 's case (10 L , T. Rep. N . S.674 ; 4 De G . J.
Skull t. Glenister (19 L . T. Rep. N . S. 763 ; 16 C. B . & S. 407) ... .. .. . ... . . .. .. . .. . ... 227
N . S . 81) ...... ......... Stannard v. Vestry of St.Giles, Camberwell (46 L . T .
Slater v. Darlaston Steel and Iron Company (W . N . Rep. N . S . 243; 20 Ch . Div. 190).. 602
1877, pp. 139, 165)...... 495 Stanton v. Collier (23 L . J. 116 , Q . B .) .. . .. . ... ... . .. 676
Slater v. Lawson (1 B . & A . 396 )........ 544 Stedman , re (58 L . T. Rep. N . S. 709 ; L . Rep.
Slatter v . Bailey (37 J. P . 262) ............... 434 W . N . 1888, p. 119) ... ...... 179
Sloman v. Bank of England (14 Sim .475 ; 14 L . J. Steed , ex parte ; re Day (33 W . R . 80) ............... 305
226 , Ch.)............. ............. 165 , 497 Steel v. Gourley (3 Times L . Rep . 118 , 218 , 772) ... 658
Sly v. Sly and Dredge (2 Prob. Div. 91) ............... 508 | Stevens v. Bishop (58 L . T. Rep . N . S . 669 ; 20
Small v. Smith (10 App . Cas. 119) ..... .. . . .. . . . . . .. 687 . B.s Div. 442) .......... ts . lwa
Qven ....................y 154
Smart v. Tranter (62 L . T . Rep. N . S. 356 ; 59 Ch . Ste v. The Mid Han Rai y Compan
Div . 586 ; mentioned by Kay J., in argument, 929 (39 L . T. Rep . N . S. 318 ; L . Rep. 8 Ch.App. 1064 ) 240
59 L . J. 363, Ch. Div .) ....... Steward v. Blakeway (L . Rep . 6 Eq. 479 ; L. Rep. 203
Smethurst v. Hastings (52 L . T. Rep. N . S. 567 ; 4 Ch. App. 603) .......
30 Ch . Div. 490)........ 273 Steward v. North Metropolitan Tramway Company
Smith v. Attorney-General (cited 6 Ves. 259 and (54 L . T. Rep. N . S. 35 ; 16 Q . B . Div. 556) ...... 18
15 Ves. 133 and 136 ) ........ .. . .. . . 9 Stewartstown Loan Company v. Daly (12 L. Rep .
Smith v. Bennett (30 L . T. Rep. N . S. 100) .........
Smith v . Bicknell (3 Ves. & B . 51) .....
Ir. 418) ............ 152
St. James's Club, re (3 De G . M . & G . 383 ; per
Smith v. Bonsall, in the 39th year of Elizabeth 595 Lord St. Leonards, L . C .) .... 658
(Goulds. 117) .. . .. . .. .. . .. . .. . ... St. Lawrence Pittington , re (5 P . Div. 131) .. . .. 169
Smith v. Buchanan (1 East, 7)..... 781 St. Nazaire Land Company, re (41 L. T. Rep. N . S.
Smith v . Cannan (2 E . & B . 35) ........ 850 110 ; 12 Ch. Div . 188) ....... 827
Smith v. Chadwick (50 L . T. Rep. N . S. 697 ; 9 Stockport, Timperley, and Altrincham Railway
App . Cas. 187) ....... 135 Company, re (10 L . T. Rep . N . S. 426 ; 33 L. J.
Smith v. Dobbins (37 L . T. Rep. N . S. 777) ......... 180 251, Q . B .) ............... . ............... : 307
Smith v. Edwards
Div. 10) .......
(60 L . T. Rep. N . S. 10 ; 22 Q . B . 710
Stockport Waterworks Company v. Potter (3 H .
& C . 300) ...... ..... 199
Smith v . Fox (10 L . T . Rep. O . S. 363; 6 Hare, 386 ) 687 Stogdon , re ; ex parte Baker (56 L . T. Rep. N . S. 355 ;
Smith v. Great Western Railway Company (37L. T . | 56 L. J. 420, Ch.) ... .................. ......... 779
Rep . N . S. 645 ; 3 App . Cas. 165) ... ... ... 194 Stokoe v. Robson (19 Ves. 384) .......... . .. ... ... ... 800
Smith v. Harrison (1 F . & F . 565) ..... 76 Stone v . Cartwright (6 T . R . 411) ... 688
Smith v . Lloyd (9 Ex. 462 ) ... ... .... 78 Stone v. City and County Bank (38 L . T . Rep . N . S .
Smith v. London and South -Western Railway 9 ; 3 C . P . Div. 282) ......... 227
(1 Macrory's Pat. Cas. 209) 65 Stone v. Godfrey (5 De G . M . & G . 76) .... 78
Smith v. Lucas (45 L . T. Rep . N . S. 460 ; 18 Ch
......... ... 31
. 9
Stoomvaart Maatschappy Nederland v. The
Div. 531, 543 ) ... Peninsular and Oriental Steam Navigation
Smith v. Neale (2 C. B N . S. 67)......... 303 Company (The Khedive), (47 L. T . Rep. N . S.
Emith v . The Parkside Mining Company (6 Q . B . 198 ; 7 App. Cas. 795) ... . ... ... .. .... 785
Div . 67) ......... .... ... .. . ... 834 Straker v . Reynolds (60 L . T . Rep. N . S. 107 ; 22
Smith v . Smith (L . Rep . 5 Ch . 342)..... 391 Q . B . Div . 262) ........... .. . . .. 516
Smith v. Smith (32 L . T . Rep. N . S. 787 ; L . Rep . Street, re (22 L. T . Rep. N . S. 429 ; L . Rep. 10 Eq.
20 Eq. 500) ..... .................. 751 165) ..................... . 779
Smith v. Stoneham (W . N . 1886 , p. 178 ) ............ Strick v . The Swansea Tin Plate Company (57 L . T .
Smith v. Hill (52 L. T. Rep. N . S. 859 ; 14 Q. B . 437 Rep . N . S. 392 ; 36 Ch. Div. 558)...... 310
Div . 588).... .......... 434, Studdert v.Grosvenor (55 L . T. Rep. N . S. 171 ;
688 , 875
Solicitor, re A (42 L. T. Rep. N . S. 310 ; 14 Ch . 33 Ch. Div. 528) ....
Div . 152) .......... 758 ! Studds v. Watson (52 L. T. Rep. N . S. 129.............
; 28 Ch. 108
Solomons v. Ross (1 H . Bl. 131, n.)..... .................. 7811 Div. 305 ) .
XXXVI– Index] THE LAW TIMES. [ Oct. 18, 1890.
TABLE OF CASES.
Sturla v. Freccia (43 L . T. Rep . N . S. 209; 5 App. ! Thorogood v . Clarke (2 Starkie, 251) .............page 164
Cas. 623) .............page 78 Thorpe v. Brumfitt (L . Rep . 8 Ch . 650 ) ......... 472
Styant v . Staker (2 Vern . 250)...... .. ... .. .. .. 255 Thorpe v. Cregeen (55 L. J. 80, Q . B.)..... 733
Suburban Hotel Company, re (17 L. T. Rep. N . S. 22 ; Thorpe v. Holdsworth (7 Eq. 139) 925
2 Ch . App. 737, 745 , 751).......... Tinkler v. TheWandsworth Board of Works (2 De
Sugden v. Lord St. Leonards (34 L. T. Rep. G . & J. 261 ; 27 L . J. 312 , Ch.) ..... .................. 698
N . S . 372 ; 1 Prob. Div. 154) ........................ 509 Tiverton and North Devon Railway Company v.
Sugg v . Bray (2 Pat. Rep . 223)............ 424 Loosemore (50 L . T. Rep. N . S .637 ; 9 App. Cas.
Surman v . Surman (5 Madd. 124)......... 763 480 ......... .. ... ... ... .. . 349
Swan v. Sonth Australasian Company (2 H . & C. Todd v. Flight (9 C. B . N . S. 377 ; 30 L . J. 21,
175, 191) .......... 630C . P .) .. .... .. ... .. ... .. . . .. 794
Sweet v. Hunter (9 Jur. N . S. 807, 808)............... 559 Tolputt v. Wells (1 M . & S. 395) ......... .............. 531552
Toomes v. Constet (3 Atk . 261) .......
Topham v. Duke of Portland (22 L . T. Rep . N . S .
851 ; L . Rep . 5 Ch. 40) ... ..... 491
Topping, ex parte (12 L . T. Rep. N . S. 3 ; 11 Jur. 27
N . S . 210 ) .. . . . .. . . . . .. . 3
Tacker v. Billing (3 Jur. N . S. 483)......
Tabiti Cotton Company, re (L . Rep. 17 Eq.273) ... 165
10
Tosh v. North British Building Society (11 App. 487
Cas. 489) ......... .
Tailby v.Official Receiver (60 L . T. Rep. N . S. 162 ; Tottenham Local Board of Health v. Rowell (35
13 App. Cas. 523) .................. ... ......... ... .... ..... 230 L . T. Rep. N . S. 887 ; 15 Ch. Div. 378) ............ 807
Tallis v. Tallis ( 1 E . & B . 341) ...... .. ............ 311 Tozer v. Child (7 E . & . B . 377) ... ........ ... ... ... ... 788
Tanner v. The European Bank (14 L . T. Rep. N . S. Trades Bank Company, re (W . N . 1877, p . 268)...... 361
414, L . Rep. 1 Ex. 261).............. . . .. . .. . .. . .. . ... 439 Trafford v. Boehm (3 Atk . 440,444) .................... 365
Tanner v. Smart (6 B . & C . 603) .... . ... .. . 280 Trent and Humber Ship Building Company, re ;
Tasmania, The (60 L . T. Rep . N . S. 692 ; 14 P. Dir . Bailey
301 ; L and
. Rep.Leetham 's case (20 L. T. Rep. N . S.
53 ; 6 Asp. Mar. Law Cas. 381) ............, 842 8 Eq. 94)................... 621
Tatem v. Chaplin (2 Hy. Bl. 133)........... ..... 504
0 8 Trevelyan, d -ceased , rc ; Percival v. Trevelyan (26 5
Tathum v. Hayes (1885, unreported) ..... 5 Sol. Jour. 43) ..... . ... ... .. . 86
Taylor v. Best and others (22 L . T . Rep. 0 . S. 287 ; Trevor v. Whitworth (57 L . T. Rep. N . S.457 ; 12
14 C. B. 487) ... 657 App. Cas. 409) . ............. 227, 888
TaylS . or826v.) Cald well
.........
(8 L . T. Rep. N . S. 356 ; 3 B . &
. . . . . . . . . . 503
| Triquet v. Bath (3 Burr. 1478) ... .
Trott v. Skidmore (2 Sw. & Tr. 12; 29 L . J.
657
Taylor v. Corporation of Oldham (35 L. T. Rep. 156 ) ............ .. . ... . .. . . . .. . 508
N . S. 696 ; 4 Ch. Div . 395) 939 Trotter v. Harris (2 Y. & J. 285)............ 34
Taylor v. Horde (2 Smith 's L . C .) ... .. ............... 78 Trueman and Co. v. Redgrave (45 L. ... T.. .. .Rep. N . S.
.. .. . .. . ... . .. 828
Taylor v. Plumer (3 M . & S. 562)............ 655 1 605 ; 18 Ch. Div . 547) ........
Taylor, re ; Taylor v. Taylor (56 L. J. 597, Ch.) ... 614 Trustees, Executors ,and Agency Company Limited
Tee v. Ferr is (2 K . & J. 357 ) ... . ... ... ... ... ... 491 and Templeton v. Short (59 L . T. Rep. N . S.677 ;
Teme Valley Railway Company, re ; Forbes's case 30 13 App. Cas. 793) ........ .... ... ... ... 798
19 Eq. 353) ...... Tucker, re (52 L. T. Rep . N . S. 923)................... 929
Tempest v. Lord Camoys (48 L . T. Rep. N ... S. 13; Tulk v. Moxhay (2 Phil. 774 ,778) ......... 99 , 334, 504
21 Ch. Div. 571, 576 ) ......... . .. .. . .. . 753 Tunnicliffe v. Tedd (17 L . J . 67, M . C . ; 5 C . B .
Templeman v. Trafford (45 L . T. Rep . N . S. 684 ; 8 553) .......... 637
Q . B . Div . 397) ............ 728 Turner, re (25 L. T. Rep. N . S. 907; 41 L. J. 142, 5
Tennent v. The City of Glasgow Bank (40 L . T. Rep . Q . B .) .. . . .. . 4
N . S. 694 ; 4 App. Cas. 615).. 294 Turner v . Bayley (34 Beav. 105) ....... 472
Terry and White's Contract, re (54 L . T. Rep. N . S. Turner v. Goulden (L . Rep. 9 C . P . 57 ) . 809
353 ; 32 Ch. Div. 14 ) ... . . .. .. . . .. 19 TurnerDiv.
v. Hancock (46 L . T. Rep. N . S. 750 ; 20
Tharp, re ; Tharp v. Macdonald (38 L . T. Rep. N . S. Ch. 303) ............ . . . . . . . . . 478
867 ; 3 P . Div. 76 ) ..... ....... ... 357 Turner's Settled Estates, re (52 L . T. Rep. N . S. 70 ;
Theodore H . Rand, The (56 L. T. Rep. N . S. 343; 12 28 Ch. Div. 205)...... ............ 490
App. Cas. 247) ........ Turton v. Turton (61 L . T. Rep. N .** S. 571 ; 42
85
Thomas v. Griffith (3 L . T. Rep . N . S. 761 ; 2 De Ch . Div. 128) ...... . .. . .. 6
G . F . & J. 555 ) .... ................... 820 Twycross v. Grant (39 L. T. Rep. N . S. 618 ; 4 C . P .
Thomas v. Hayward (20 L. T. Rep. N . S. 814 ; Div. 40) ....
L . Rep . 4 Ex. 311) ...... . .. ... . .. . .. 503 Twyman v. Porter (23 L . T. Rep. N . S. 551 ; L . Rep .
Thomas v. Kelly (60 L . T. Rep. N . S. 114)... 480, 852 11 Eq. 181) .. 727
Thomas v. Sylvester (29 L . T. Rep. N . S. 290 ;
L . Rep. 8 Q . B . Div . 368) ......... 213
Thomas v . Welch ( L . Rep. 1 C . P . 192) ............ ..... 222
Thompson , re (6 H . & N . 193 ; 30 L . J. 19, M . C .) . 576 U.
Thompson v . Cooper (1 Coll. 85) ....... 23
Thompson v. Thompson (1 Sw . & Tris. 231) ......... 611| Union Bank of London v. Kent (59 L . T. Rep. N . S.
Thompson and Curson , re (52 L . T . Rep . N . S. 498 ; 714 ; 39 Ch. Div. 238 ) .......... . .. . ... ... 923
29 Ch. Div. 177) ............. 929 | Union Plate Glass Company, re (61 L . T. Rep. N . S. 313
Thompson's Estate, re ; Herring v . Barrow (43 327 : 42 Ch . Div. 513) ........
L . T . Rep . N . S . 35 ; 14 Ch . Div. 263 ; 13 United Bacon Curing Company, re (W . N . 1890, p.
Ib. 144) ........ .. 74 ) ........................................................ 723
. . ..
Thompson v. The Advocate-General (12 Cl. & United Horseshoe and Nail Company v.Stewart and
F . 1) ..................... 177 Co. (59 L . T. Rep. N . S. 561 ; 13 App. Cas. 617
Thomson v. Stevenson (Morison 's Dictionary of
Decisions, 12,701) ......... ..
401) ... . .. . .. . .. ...............65,
78 United Ports and General Insurance Company, re
Thornton v. Clegg (60 L . T. Rep . N . S. 562 ; 59 | (39 L. J. 146, Ch.) ............ ........... 361, 823
L . J. Rep. 6 , M . C.) .... 113 United States of America v. Wagner and others (16
Thornton 2. Stokill (26 L . T. Rep . O . S. 26 ; 1 Jur. L . T . Rep. N . S. 86 ; 2 Ch. App. 582)............. 326
N . S . 751) ......... ............... 273 Upwell v. Halsey (1 P . Wms. 651) ...................... 763
Oct. 18, 1890.] THE LAW TIMES. [ Index - xxxvii
TABLE OF CASES.
Weir v. Bell (38 L. T . Rep. N . S. 929; 3 Ex. Div.
338)...... ....... ......... page 135
Weldon v. Hoyland (4 De G . F . & J. 564)...... 218, 678
Vachell v . Breton (5 Bro . Parl. Cas. 51)..........page 383 Wells v. Abrahams (26 L . T. Rep. N . S. 433 ;
Vane v. Vane (34 L. T. Rep. N . S. 613 ; 2 Ch. Div.
121) ... ......... ...... ... ...... . . ....
L . Rep . 7 Q . B . 554) ........ .. 636
23 Wells v . Watling ( 2 W . Bl. 1233) ..................... 590
Vaux v . Henderson (1 Jac. & W . 388 )... ................ 363 Wells v. Wells (10 L . T. Rep. N . S. 696 ; 3 Sw. &
Vernon, Ewens, and Co., re (55 L. T. Rep. N . S. Tris. 544).......... .. 123
420 ; 33 Ch . Div . 408) .......... . . . . . . . . . . . . . . . . . . . . Wemyss v. Hopkins (L . Rep. 10 Q . B . 378 ) ......... 573
v. Wenmouth (57 L . T .
N . S. 110 ; 34 Ch. Div. 458 ; 4 Rep. Pat. Cas. 71) 1 | Rep. N . S., re709; Wenmouth
Vesta Company v. Bryant and May (56 L. T. Rep . 20 Wenmouth
; 37 Ch. Div. 266) ......... ......... 391
Vestry of St. Luke, Middlesex, v. Lewis (1 B. & S. Wensley, re (1 De G . J. & S. 273) .... 850
865 ; 31 L . J. 73, M . C .) 698 Wentworth v. Tubb (1 Y. & C. C. Cas. 171; 6 Jur.
Vestry of St. Mary, Islington , v. Barrett (30 L . T . 0 . S . 980 ; 2 Y . & C . C . Cas. 537)...... ......... 23, 343
Rep. N . S. 11 ; L. Rep . 9 Q . B . 278 ) Te .......... 83 93 9 West of England Bank, re ; ex parte Hatcher (41
Voght, re ; er parte Spamer (3 M . B . R . 164) ..... 7 L . T. Rep. N . S. 181 ; 12 Ch. Div. 284 ) ............ 888
Vron Colliery Company, re (20 Ch. Div. 442). 860 West of England and South Wales District Bank
Vyvyan v. Arthur (1 B . & C . 410) ....... 503 v. Murch (48 L . T . Rep . N . S . 417 ; 23 Ch. Div. 138) 340
Western v. Macdermott (15 L . T. Rep . N . S. 641 ;
2 Ch. App . 72) ....... 99
W.
Weston v. Arnold (L. Rep . 8 Ch. 1084) ............... 379
Weston v. New Guston Company (60 L . T. Rep .
Waddell v . Wolfe (L . Rep. 9 Q . B . 515) ........... 472 N . S. 805; and on appeal, Megone's Company
Cases, vol. i., p. 352) ...... 61
Wade-Gery v.Morrison (37 L. T. Rep. N . S. 270)... 210 Wharran v . Wharran (3 Sw . & Tr.r . 301)301) ... . .. . .... .. . 508
Waldron v. Sloper (1 Drew . 193) ...... 924 Wharton v. Barker (4 K . & J. 483,at p . 502) ....... 363
Walesby v. Goulston (14 L . T . Rep . N . S. 662 ; Whatman v. Gibson (9 Sim . 206 ) 99
L . Rep. 1 C . P. 567) ... .. 482, 737 Wheeldon v. Burrows (41 L . T. Rep. N . S. 327 ; 12
Walker v. Brewster (17 L . T . Rep . N . S. 135 ; Ch . Div. 31) ...... 194
L . Rep . 5 Eq. 25) . .. . .. .. . , 794 Wheeler v. The United Telephone Company (50
Walker 7. Bankell (48 L . T. Rep. N . S.618 ; 22 Ch .
Div . 722)...... ......
L . T . Rep. N . S. 749 ; 13 Q . B . Div. 597) ... ...... 151
Whicker v. Hume (1 De G . M . & G . 506 ) ............ 366
.......... ............ 756
Walker v . The General Mutual Building Society Whiskon and Cleyton 's case (1 Leon. 156).............. 736
(57 L. T. Rep . N . S. 574 ; 36 Ch. Div. 777) 295, 389 Whitby v. Mitchell (61 L. T. Rep . N . S. 343 ; 42 26
Wallgrave v. Tebbs (26 L . T . Rep. 0 . S. 147 ; 2 491 Ch. Div. 494) ..........
K . & J. 313) ..... Whitcomb v. Whiting (2 Doug. 652) .................. 544
Wallingford v. Mutual Society (43 L . T. Rep. N . S. 209 White v. Chitty (13 L . T. Rep. N . S. 750 ; L . ...Rep.
... 455
App . Cas. 685 ) ..........
258 ; v.5 Wallinger 018 1 Eq. 372)
Walsh (2 Russ. & My. 78) .......... White v. Feast (26 L . T. Rep . N . S. 611; L . Rep.
Walter v. Nicholson (6 Dowl. 517) .. 439 7 Q . B . 353 ) 111
Walton r. Edge (52 L. T. Rep. N . S. 666 ; 10 App. White v. Jameson (L . Rep. 18 Eq. 303) ............ 794
Cas. 33) 294 Whitehead v. Howard (2 B . & B . 372).. 687
Walwyn v . Lee (9 Ves. 24 ) 922 Whitehouse and Co., re (39 L . T. Rep . N . S. 415 ;
Ward
Rep .7.N NationalBank ofNew Zealand (49 L . T. 9 Ch . Div 595)...... 227 , 405, 888
. S. 315 ; 8 App. Cas. 755) .................. 543 Whitechurch v. Fincher (88 L . T.............
255) 437
Ward v. Ward (1 Sw . & Tris. 185) ...... 611 Whitelock v. Hutchinson (2 M . & R . 205 ) .. . .. .. . . .. 589
Warde, re (2 J. & H . 191)......... 422 Whitmore v. Oxborrow (2 Y . & C . (Ch.) 13) ......... 819
Warner r . Mosses (43 L . T. Rep . N . S. 401 ; 16 Ch. Whitmore v. Whitmore (14 L . T. Rep . N . S. 171 ;
Dis . 100) ...... ..... 517 L . Rep. 1 P . & D . 96 ) ...... .. .. . .. .. . .. . ... 478
Warrender v . Warrender (2 Cl. & F . 530) ............ 912
Whitwell vv.. Wildman
Warner v. Willington (3 Drew . 523) ......... 108, 303 Wildman Thomson (1(9 Esp.68) . .. . . . .. . . .. .. . ... . .. 850
Ves. 174) ... ........ ......... 497
Wathen r. Smith (4 Mad. 325 ) ........... . . . .. . . 52 Wilkinson v . Duncan (23 Beav. 469) .................. 218
Watkins r.Great Northern Railway (16 Q . B. 961) 882 Wilkinson v . Dutton (32 L . J . 152, M . C .) ............ 576
Watmonch, re ; Serjenson v. Beloe (49 L . T. Rep. Wilkinson v . Hull, & c., Railway and Dock Company
N . S . 220 ; 24 Ch. Div. 280).............. 712 (46 L . T . Rep. N . S. 455 ; 20 Ch. Div . 323) ...... 882
Watson r. Glass (15 Court Sess. Cas. 1st Series, Willesford v. Watson (28 L. T. Rep. N . S. 428 ;
753) . 78 L . Rep. 8 Ch. 473) ..... 210
Watters v . Sniith (2 B . & Ad. 889 ) ...... .... ... :-.. . 54 5 Williams v. Byrnes (1 Moo. P . C . N . S. 154)... 303
Watts r. Shuttleworth (35 L . T. Rep. 0 . S. 515 ; Williams v. Clark (4 De G . & Sm . 472) ..... .. .... ... ... 149
H . & N . 235 ) .. ... .... .. .. 543 Williams v. Colonial Bank (57 L . T. Rep . N . S. 188 ;
Weaver, re (48 L . T . Rep. N . S. 93 ; 21 Ch . Div . 59 Ib .643 ; 36 Ch . Div. 659 ; 38 Ib. 388) ......... 429
615 ) ... . .. ... . .. .. ... .. .. ... ... . .. ... ... . ... . ... .. . ..: Williams v. Harding (14 L . T. Rep. N . S. 139, 143 ;
Weaver, re ; Higgs v. Weaver (52 L . T. Rep. N . S., te
L. Rep. 1 E . & I. Apps. 9, 29) ............. 888
512 ; 29 Ch . Div . 236 ) ...... 817 Williams v. Haythorne (L . Rep. 6 Ch. 782) ......... 149
Webb r. Hewitt (29 L. T. Rep. 0. S. 225 ; 3 K . & Williams v . Jones (13 M . & W . 628) ......... 189
J. 438) .......... .... ... ....... ..... 543 Williams v. Owen (5 Myl. & Cr. 303 ) .................. 315
Webb r. Jonas (58 L . T. Rep. N . S. 882 ; 39 Ch. Williams v. Peel River Land and Mineral Company
Div. 660) .... .. . .. . .. 451 (55 L . T. Rep. N . S. 689) .................. ..... 432, 520
Webb v.Whiffin (L. Rep. 5 H . of L. Cas. 711, Williams v. Pott (L. Rep .12 Eq . 149 ; 40 L . J. 774,
734).. ......... 227, 888 Ch.) ........ 78, 798
Webber v. Smith (2 Vern. 103) 540 Williams v. Powell (15 Beav. 461) . 898
Webster, re (51 L. T. Rep. N . S. 319 ; 27 Ch. Div. Williams v.Wentworth (5 Beav. 315, 325) ...... 23, 343
710 ) .......... 23 Williams v. Williams (32 Beav.370) ....... 386
Wedgwood Coal and Iron Company, re (47 L . T. Rep . Willins v. Smith (4 E . & B. 180)...... . . ... . .. 326
X . S. 612) ...... ... 874 Willis v. Earl Beauchamp (54 L. T. Rep. N . S. 785 ; 602
Weikersheim 's case (28 L . T. Rep. N . S. 653; L. Rep. 340 " Willis
11 P . Div . 59)........... . . .. . . . . .. . .. . ..
v. Ward (2 Chitty , 297) ............... ... ......... 593
8 Ch. App. 831) ...
Xxxviii - Index.] THE LAW TIMES. Oct. 18, 1890
TABLE OF CASES.
Willis v.Watrey (51 L. J. 181, Ch.) ... ...........page 379 Wright v. Goff (27 L . T . Rep. 0 . S. 179 ; 22 Beav.
Willis v. Willis (38 W . R . 7) . .. . ... . .. . ... 179 217) ..... .........page 491
Willcock v. Noble (32 L . T. Rep . N . S.410 ; L . Rep . 1 Wright v.... Hall (3....L . T. Rep. N . S. 444 ; 6 H" ... ...& 771
7 E. & I. App. 580)....... 6 N . 227 ) ...... ...
Wilson v.Aitken (Morison's Dictionary of Decisions, Wright v. Horton (56 L . T. Rep. N . S. 782, 783 ;
12 ,700) ...... 12 App. Cas. 371, 376 ) ......... 227
Wilson v. Church (39
Ch. Div .454 ) ........... L. T. Rep. N . S. 413 ; 12
.. .. .
Wright v. Kirby (23 Beav. 463, 467, 468)...... 862, 922
Wright v. Lambert (6 Ch. Div. 649) 218
Wilson, ex parte ; re Douglas (26 L . T. Rep. N . S. Wright v. Rogers (38 L. J. N . S. 67, P . & M .) ......... 491 509
489 ; 7 Ch. App. 490 ) ...... 781 Wright v . Weston (26 Beav. 429 ) .
Wilson v. Kenrick (31 Ch. Div.658,661)............. 491 Wright v. Wilkin (2 B . & S. 232) ....... ...... 534
Wilson v. Kirkwood (48 L . T. Rep. N . S. 821) ... 734 Wrigley V. Lancashire and Yorkshire Railway
Wilson v. Major (11 Ves. 205) .................. 763 Company (4 Giff. 352 ; 9 Jur. N . S. 710) ......... 883
Wilson v.Newport Dock Company (14 L . T. Rep . Wront v. Dawes (25 Beav. 369) ............ .. . .. . .. . .. . . .. . .. 927
N . S. 230 ; L . Rep. 1 Ex. 177)........... 50 Wulff v. Jay (L . Rep . 7 Q . B . 756 ) ......................... 546
Wincham Shipbuilding Boiler and Salt Company, Wyatt v . Hodson (8 Bing. 309) .... 544
re; Poole, Jackson, and Whyte's case (38 L . T. Wyke v. Rogers (19 L . T. Rep. 0 . S. 1 ; 1 De G .
Rep . N . S . 659 ; 9 Ch. Div . 322)..... 888 M . & G . 408) ....... 546
Winter v . Baker (3 Times L . Rep. 569) ............ ... Wynne v. Hawkins (1 Bro. C. C. 179).................. 763
Wiseman, et parte ; re Kelson , Tritton, and Co .
(25 L . T. Rep . N . S. 545 ; 7 Ch. 35)... 603
Withernsea Brick Works, re (43 L . 1. Rep. N . S.
713 ; 16 Ch . Div. 337) .. .. .. . ... . 860
Witt v. Amis (4 L. T.Rep. N . S. 283 ; 33 Beav.619 ; 4
1 B . & S . 109) ........... . ...: 61 Yale Lock Company v. Sargent (10 Davis Rep. 536) 617
Wolfe v. Matthews (47 L . T . Rep . N . S . 158 ; 21 Yates v. Jack (14 L . T . Rep. N . S. 151 ; L . Rep. 1
Ch . Div. 194) ......... ....... ................ 310 Ch . App . 295) .......... .................... ............ ...
n
Wollasto v. King (20 L . T. Rep. N . S. 1003 ; L . Yeatman
Rep . 8 Eq. 165) ..... ................... 773 L. Rep . v.1 Prob.
Yeatman & Div.(18489)...........................
L . T . Rep. N . S. 415 ; 705
Wood v . Fenwick (10 M . & W . 195 ) ........... Yeilding and Westbrook 's Contract,re (54 L. T. Rep.
Wood v . Harpur (3 Beav. 290)........... N . S. 531 ; 31 Ch. Div. 344)............................ 55,
Wood v . Morewood (3 Q . B . 440 , n .) ............ York, re ; Atkinson v. Powell (56 L. T. Rep. N . S .
Woodhams v . Newman (7 C . B ., at p. 665 )......... 704 ; 36 Ch . Div . 233) ......
Woodward v. Goulstone (55 L . T . Rep. N . S. 790; York and North Midland Railway Company v. The
11 App . Cas. 469, 471) . 508 Queen (1 Ell. & Bl. 858) .. ... .
Wooldridge v. Norris (19 L. T. Rep . N . S. 144 ; York Tramways Company v. Willows (46 L . T. Rep.
L . Rep. 6 Eq. 411).......... 603 N . S. 496 ; 8 Q . B . Div. 685 ) ...
Woolf, ex parte (H . T. 1871, not reported, cited by Young v. Cuthbertson (1 Macq. 455) .................. 31
Sir Hardinge Giffard in Reg. v. Adamson, Young v. White (7 Beav. 506 ) .... .. ... ... ... ... ... . 927
L . Rep. 1 Q . B. Div. 201) ........ 571

Woolridge v. Woolridge (John . 63,69) ........ 491
Wordsworth v. Harley (1 B . & A . 391) ............... 448
Wormsley , re (39 L . T. Rep. N . S. 85) ........... 512
Wren v. Weild (L . Rep. 7 Q . B . 730 , 734 ; 20 L . T.
Rep. N . S. 377 ; L. Rep . 4 Q . B . 73) .......... 520, 599 Zuccani v. Nacupai Gold Mining Company (61
Wright v. Deley (4 H . & C . 209) .... .......... 389 L . T . Rep. N . S. 176 )
INDEX
TO
THE SUBJECTS OF THE CASES

REPORTED IN THIS VOLUME.
ABSOLUTE ASSIGNMENT. facts, that the statement in the prospectus was

Absolute assignment to trustees for benefit of untrue, and (following the decision of the Court
creditors - Release - Express trust - Surplus after of Appeal in Peek v. Derry , 59 L . T . Rep . N . S .
payment of debts in full - No resulting trust. - In 78 ; 37 Ch. Div. 541), that G . R . must be held
1876 the partners in a business firm , which was in liable as a promoter of the company, as the
financial difficulties, executed a information upon which the statement was based
after reciting their inability to paydeed by which ,
their debts in was furnished by him . After the judgment of
Kekewich , J., the House of Lords reversed the
full, they absolutely assigned the whole of the decision in Peek v . Derry (Derry v . Peek , 61 L . T .
business to two trustees upon trust, in their dis
Rep.authority
N . S. 265; 14 App. Cas.that
337).the Held,
cretion , either to carry it on or sell it, and out of
the profits or sale moneys to pay and divide the the of 'Derry v . Peek, plaintiffon,
clear residue unto and among all the creditors, on whom lay the onus, must prove (1) that the
in rateable proportions, according to the amount defendant's statement was untrue ; (2) that it
was dishonest : (3 ) that if he believed it to be true,
of their debts. The creditors were parties to the
deed , and gave a release of their debts to the that was sufficient, however unreasonable his
partners. The trustees of the deed carried on the belief might be ; (4 ) that the plaintiff had
business at a profit, and an interim dividend was failed to sustain the onus of proof. (Glasier v .
paid. In 1882 they sold the business to one of Rolls.) ... ... ... ... ... ... ... ... ... page 133
the principal creditors, who paid the other
creditors the remainder of their debts in full.
This particular creditor had not been paid . In ADMINISTRATION .
1889 one of the original partners in the firm and Administration with will annexed - Specific legatee .
the representative of a deceased partner brought - The testatrix died in Jan . 1890. She separated
an action against the trustees of the deed and the from her husband in 1863, and had not seen or
creditor who had purchased the business, impeach heard of or from him since. During all that
ing the sale, and asking for an account. A preli period she had been living with another man as
minary point of law was raised by the defendants his wife, and had had eightchildren by him . The
as to whether the plaintiffs had any title to sue. day before she died she duly executed a will,
Held , that, as an express trust had been declared leaving to her paramour a specific sum which was
by the deed of assignment, which exhausted every indicated as standing in her name at a certain
thing , there was no resulting trust of any surplus bank . No executor was named , and the testatrix
in favour of the plaintiffs, and they had no title had no other property except her clothing . Her
to maintain the action (Coke v. Smith .) ...page 456 only known relative predeceased her. Upon the
specific legatee applying for a grant of letters of
administration with the will annexed : The Court
ACTION FOR DECEIT . refused the motion , saying that it was not inclined
Company - Prospectus – Misrepresentation - to favour such an application , especially in the
“ Capital employed in the business " -- Liability absence of evidence as to any diligent search to
of director for statements in prospectus - Pro ascertain whether the deceased left any next of
moter. - In May 1886 a prospectus was issued kin , or whether her husband was still alive. (In
inviting applications for shares in the company of the Goodsof Rebecca Miles, deceased.) ... ... ... 607
J. R . and Sons Limited, which was being formed Annuity - Deficient estate - Right to order for ad
to take over the business of J. R . and Sons. This ministration. - A testator covenanted to pay to
prospectus contained a statement that “ the busi trustees during the life of D . an annuity of 5001.
ness at the present time returns a net profit of for the benefit of her and her children . After
over 17 per cent. on the capital employed." G . R . the testator' s death the trustees issued an origi.
was the principal partner in the firm of J. R . and nating summons for the administration of his
Sons, and was named in the prospectus as one of estate, on the ground that it was insufficient to
the directors ; but it was stated therein that he provide for the payment of the annuity in full.
would join the board on the completion of the No payment of the annuity was at the time in
purchase. The firm had, on the 1st April 1886 , arrear. Held , that, although sect . 10 of the Judi
sold the business to the Universal Contract Cor cature Act 1875 gives a right to an annuitant to
poration Limited , and they resold to the proposed prove in administration proceedings for the
new company. G . R . did not see the prospectus capital value of an annuity, yet it confers no
which was actually issued ; but he saw and cor right upon the annuitant to obtain an order for
rected two previous drafts. G . R . dià not join administration so long as the annuity is punctually
the board of directors until the 19th Aug . 1886 . paid ,although the estatemay be insolvent,and that
In an action by an investor against G . R . for the summons must therefore be dismissed. (Re
deceit and damages, Kekewich , J. held , apon the Hargreaves ; Dicks 0. Hare.) ... ... ... ... ... 819
xl - Index.] THE LAW TIMES. [Oct. 18, 1890:
SUBJECTS OF CASES.
Costs -- Proceedings against third party taken by sect. 125 of the Bankruptcy Act 1883 for the
leave of judge – Right of indemnity – Priority . transfer of the proceedings to the County Court
- A company having the conduct of an action for having jurisdiction in bankruptcy. It was alleged
the administration of an estate obtained leave that the debt of the creditor, who was plaintiff on
from the judge to prosecute a summons against the originating summons, was barred by the
B . and Co. on behalf of the estate. This sum Statute of Limitations, which the executors did
mons was dismissed with costs. Shortly after not intend to plead, and that the executors in
wards the company became insolvent, and was tended to exercise a right of retainer, but that it
ordered to be wound-up. The estate which was the proceedings were transferred the plaintiff's
being administered was insolvent, and the balance debt would not be recoverable , and the executors
was not sufficient to pay the costs of either party would lose their right of retainer, and that it was
imperative on the court to order a transfer in
to the summons. Held , that B . and Co. were
entitled to be paid their costs out of the order to secure equality amongst creditors.
balance
Blundell in.) ...priority to the company.
... ...
(Blundell v.
... ... ... ... ...page 620
Chitty , J. refused to order the transfer. Held ,
on appeal, that the power to transfer given by
Debts charged on real estate - Pecuniary legacies sect. 125 of the Bankruptcy Act 1883 is discre .
tionary , and that sufficient reasons had not been
- Marshalling assets. - A testator directed his
just and funeral expenses to be paid as soon shown to make it the duty of the court to order
after his decease as convenient, and gave specific the transfer. (Re Baker ; Nichols v. Baker.) page 817
and general legacies, and specifically devised his Intestacy - Creditor ander a verbal promise —
real estate. There was no residuary bequest, and Claim sounding in damages - Grant refused . -
the residuary personal estate was insufficient for Where an applicant for administration claimed the
the payment of the debts . Held , that the whole whole estate ofan intestate (subject only to the pay
ofthe personal estate not specifically bequeathed , ment of debts, & c.), under a verbalpromise made
not excepting pecuniary legacies, must be applied by the intestate,and acted upon by the applicant,
in payment of debts and funeral expenses before that, if the latter would go and live with the
the real estate was resorted to. (Re Bate
v . Bate.) ..
; Bate
... ... ... 559 deceased and take care of him , he would leave her
Distribution of fund in court — Creditor long
all his property ; and where, through alleged im
since deceased - Creditors whose addresses and proper overtures, the applicant had ceased to live
with the deceased : Held , that the applicant's
existence not proved - Separate account - Carry claim was not a liquidated debt, but was a claim
ing over -- Form of order. - Under an administra sounding in damages, and that the applicantmust
tion decree made in 1886 divers creditors carried first establish her claim and its amount before she
in proofs ; but the proceedingswere not completed , could obtain a grant of administration as a creditor.
in consequence of an insufficiency of assets. In (In theGoodsof Jabez James Clook,deceased .) ... 607
1888 further assets fell in , and by the chief clerk 's - Infant child -- Legitimacy questioned by
certificate it appeared that there was a sufficient maternal aunt of infant – Guardian ad litem
fund in court to pay all the creditors, but that appointed by Chancery Division - Grant. - Where
some of the creditors whose claims were allowed a judge of the Chancery Division , before whom
could not be found. Held , that the proper course a suit for administration in respect of the intes
was to retain in court to the credit of each of such tate's estate was pending, had appointed a guar
last-mentioned creditors a sum of Consols repre dian ad litem of the infant child of the deceased,
senting the amount of his debt and the interest for the purpose of obtaining a grant of letters
thereon, and to fully administer the residue of of administration in the Probate Division, and
the fund. (ReMacdonald ; McAplin v. Macdonald .) 541 where it appeared that the sole function of the
Inquiries - Unnecessary and improper - Rules of proposed administrator would be to hand over the
Court 1883, Order LXV., r. 38 . – This case came the property at once to the Chancery Division :
before the court for further consideration , and The court made the grant in the usual form to the
the defendants asked that the plaintiffs might be guardian ad litem of the infant. (In theGoods of
ordered to pay the costs of the action . The Mustapha Mustapha , deceased .) ... ... ... ... 606
plaintiff was the sole executor and trustee of the No known next of kin - Grant ad colligenda
will of George Dale, a grocer. The property had bona , with liberty to pay pressing debts , and
been realised in the action, and the totalamount to dispose of business. Under a grant ad col.
of the proceeds was about 3701. The testator ligenda bona , made to the Solicitor to the Trea
died in 1878, having by his will left all his pro sury, the court gave leave to the administrator to
perty upon trust for his wife during widowhood, pay all pressing claims for rent, rates, and taxes,
with power to carry on the business, and on to take the accounts of the manager of the intes
her death or marriage, upon trust for sale , the tate 's business, and to dispose of the said busi.
residue to be divided among his children , and the ness. (In theGoods of Oddy, deceased .) ... ... 613
issue then living of any deceased . On the 30th Intestate a married woman domiciled in Canada
May 1879 the writ was issued in this action . In Husband not entitled to administration , as of
April 1880 the statement of claim was delivered , right- Law of country of domicile - Refusal to
in which the number and names of the testator's act upon affidavits of one person alone - Direction
children were stated, the only reason given for to cite husband - No appearance by him - Grant
the action being that difficulties had arisen in to children 's representative. - The court will
the administration of the trust. The widow and refuse to act upon the affidavits of one person
Joseph Dale , an adult son , were the defendants. alone, no matter how responsible and respectable
On the 17th Nov . 1880 the plaintiff applied for that person may be, in the absence of proof that
and obtained an order for accounts and inquiries.
The certificate was not made until the 5th June the person who would , by the law of England, be
1889. Held , that many of the inquiries, particu entitled to a grant of letters of administration ,
larly that concerning the children, were unneces had been formally cited . But, upon proof that
sary and improper. Held , however, that the suit no appearance had been entered on his behalf, the
being instituted, and the order for accounts and court made a grant to the attorney of thechildren
inquiries made before the General Orders of 1883 of a lady who had died intestate, domiciled in
came into operation, the trustee , under the old Canada. (In the Goods of Babin , deceased .) ... 185 .
practice, was not so much to blame as to be Sureties — Applicant the Chief Official Receiver
ordered to pay the costs . Held , that it was a in Bankruptcy - Sureties dispensed with . - Where
case to which the new rule, Order LXV., r. 33 , of
the Rules of Court 1883 applied. (Re Dale ; the applicant for a grant of letters of administra
Stubbs v . Dale.) 28
tion was the Chief OfficialReceiver in Bankruptcy,
the Court directed that he should enter into the
Insolvent estate - Transfer to Bankruptcy Court usual
Executor's right of retainer- Discretion. - Pro of thebond
estateforofthetheduedeceased,
and proper
butadministration
in view of the
ceedings for administration of the estate of a official position of the administrator, the Court
testator, who died insolvent,were commenced in dispensed withdeceased
sureties..) (In... the. GoodsofWilliam
the Chancery Division . A creditor applied under Hobson Cope, ... 500
Oct. 18, 1890.) THE LAW TIMES. [Index - xli
SUBJECTS OF CASES.
ADMIRALTY. twenty feet above the deck . It was admitted by
Collision - Crossing ships - Regulations for Pre only saw the after
the defendants thatwastheyto blame light.
Held , that the H . for a bad look -out,
vention Collisions at Sea , art. 16 , 18 , 23 . - When and the E . to blame for a breach of the regula
two steamships are approaching so as to involve tion , it not being shown that in the circumstances
risk of collision , and it is the duty of one to keep of the case the breach conld not bave contributed
out of the way, and of the other to keep her to the collision . (The Hermod .) ... ... ...page 670
course, the latter is bound to comply with art. 18 Collision -- Reference - Repairs to damaged ship
of the Regnlations as to slackening her speed or Bankruptcy. - Where in the registrar's report in a
stopping and reversing if necessary , and if she collision action it appears that the claimant claims
does not do so the onus lies upon her to show that (inter alia) as part of his damages the cost of
to continue her speed was in fact the best and repairing his ship, but has not paid the ship
most seamanlike maneuvre under the circum wright, and has since the repairs were effected
stances. ( The Memnon .) ... ... ... ... ...page 84 become insolvent, and the registrar allows such
- - Fog - Regulations for Preventing Collisions item , the court has no power to do anything to
at Sea , art. 18. - If a steamship is approaching ensure the money being paid over by the claimant
another in a dense fog , without the means of to the shipwright, and will not retain the money
ascertaining , except by fog signals, the course in the registry until the claimant has given satis
which the other is pursuing , unless there are
indications to convey to a seaman of reason .
factory evidence that he has paid the shipwright. 840
(The Endeavour.) ...
able skill that they are in such a position as to - Risk — Engines - Regulations for Prevent-ing
pass well clear of each other, it is her duty not to Collisions at Sea , art. 18. - Where one of the
continue on a course which may have been origi Regulations for Preventing Collisions at Sea has
nally correct, but to stop and reverse, and (in the been infringed by a vessel, the fact that the in
absence of other circumstances making it danger fringement is comparatively venial, and that the
ous) she will be held to blame if she does not do reckless navigation of the other vessel is the
uso and a collision takes place. (Owners of the principal and primary cause of the collision, does
Lebanon v . Owners of the Ceto ; The Ceto.) ... ... not instify the court in absolving the vessel guilty
- Inevitable accident - Costs - Special circum of infringement from blame unless necessity for
stances
ing upon. -and
As succeeding
a general upon
rule thea defence
defendant rely
of inevi. such infringement is established. (The Arratoon
Apcar .) ... ... ... ... ... ... ... ... ... ... 331
table accident in a case of collision is entitled to River Thames - Vessels crossing river -- Rules
his costs, but theremay be exceptions to this rule and Bye-laws for the Navigation of the River
where, in addition to such defence, the defendant Thames, arts, 24, 25. - A steamship ceases to be
alleges facts inconsistent therewith , and fails in “ crossing from one side of the river towards the
establishing their truth . (The Batavier.) ... ... 406 other side ” within themeaning of art. 24 of the
- Lights - Obscuration – Regulations for Pre Rules and Bye-laws for the Navigation of the
venting Collisions at Sea, art. 6 –Merchant
Shipping Act 1873. - In & collision action where
River Thames when her stem has got so far across
either party has infringed tbe Regulations for that it can go no further , although she is still
athwart the stream ; but where a vessel is swing.
Preventing Collisions at Sea , he is deemed to be ing for the purpose of turning in the river with
in fault unless he can establish that the infringe her anchor down but not holding , she is not a
ment could not possibly have caused or contri. crossed ship if she is still moving towards the
buted to the collision ; and it is the duty of the shore, although she may have got more than
judgetheto party
not determine upon the
committing the evidence whether
breach has satisfiedor athwart, and although her stern may be swinging
the burden of proof that the breach could not to the tide. The steamship A ., having come up
possibly have occasioned or contributed to the the Thames as far as Bugsby's Reach on the flood
tide, was about to turn head down, and, having
collision . The steamship A . collided with the whistled , her helm was ported and anchor let go
sailing ship B., striking her on the port bow . The
red light of the sailing sbip was obscured by the
so that it might dredge, and she began to swing
foresail to a vessel substantially right ahead . round . Meanwhile the steamship Ř . D ., which
had been coming up the river astern of the A .,
The steamship approached the sailing ship on a instead of taking any steps to keep out of the
bearingnever lessthan one the
pointredto lightof
two andthea sail
half way of the A ., although she saw that the A . was
points on the port bow ,and doing nothing to keep out of her way in obedience
ing ship was in fact always open to the steamship . to art. 24 of the Thames Rules and Bye-laws,
Held , that, on the proper construction of sect. 17 came on and collided with the A . Held , thatboth
of the Merchant Shipping Act 1873, although the vesselswere to blame, the A . because,being a cross
sailing ship had infringed the regulations as to ing ship, she neglected to keep outoftheway of the
lights , the court was bound to consider the evi R . D ., and the R . D . because , after she saw that
dence as to whether such infringement could in the A . was neglecting her duty to keep out of the
fact have contributed to the collision, and that, way, she failed to take any steps in sufficient
as in the circumstances the infringement could time to avoid the collision . ( The River Derwent.) 45
pot possibly have contributed to the collision , - Sailing ships - Fog - Regulations for Prevent
the owners of the sailing ship were not to blame. ing Collisions at Sea , art. 12. - Where a sailing
(The Dukeof Buccleuch .) ... ... ... ... .. . . .. 94 vessel is tacking in a fog, she is not relieved
- Lightship at anchor - River Mersey - Mer. during the manœuvre from giving the signals
chant Shipping Act 1873 – Merchant Shipping Act prescribed by art. 12 of the Regulations for Pre
Amendment Act 1862. - In considering whether venting Collisions at Sea ,and it is her duty until
a breach of the regulations for preventing colli. she gets the wind on to the side other than that on
sions could possibly have contributed to a colli. which she had had it to treat herself as still on
sion, the court must take into consideration the the same tack on which she was when she began
whole of the evidence even where there is a con . to go about and tomake the prescribed signal, and
Alict, subject to the qualification that the onus of only to change that signalwhen she gets the wind
proof lies on those infringing the regulations ; on the other side. ( The Constantia.) ... ... ... 236
and if upon such evidence the court comes to the - Steamship and sailing ship --Keeping course--
conclusion that the breach could not possibly have Regulationsfor Preventing Collisions at Sea , arts,
contributed to the collision , the ship committing 17, 22, and 23. - The fact that a steamship is
it is not to be deemed to blame in respect thereof. neglecting to keep out of the way of a sailing
The steamship H . at night ran into the barque E . ship does notmake it the duty of the sailing ship
at anchor in the river Mersey. By Order in to takemeasures to avoid a collision , except pos
Council of the 5th Jan . 1881, every vessel when at sibly in very exceptional circumstances, because
anchor in the river Mersey shall carry two white it is possible for a steamship to act for a sailing
lights, the after light being carried double the ship np to almost the lastmoment, and any action
height of the foremost light. The E . exhibited on the part of the sailing ship might be liable to
two anchor lights both of which were about increase risk of collision, The 8,8. H . was ap
xlii - Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
proaching the sailing ship 8. for several minutes, buyer in one of the departments at a fixed salary ,
with her masthead and red lights open , on the and almost immediately entered the service of a
starboard bow of the S. The S. kept her course rival establishment of universal purveyors next
till a collision was imminent, and then hard-a door,where he was appointed to a salaried post in
ported , but the H . with her port side struck the
stem and port bow of the S . The H . admitted
aoutprecisely similar department. Held that,with
precisely defining the meaning of the words
“ engage
whichinthebusiness,”
agreementtheintended
that she was to blame, but contended that the S . defendant had done
was also to blame for breach of art. 23 of the that he should not
Regulations in not maneuvring for the H . after
she saw the H . persisting in doing nothing to keep
do, andan injunction mustbe granted. (Watts v.
Smith .) ... ... ... ... ... ... . .. . .. ...page 453
out of her way . Held , that the S. was not to
blame,
require asthethe8 . tocircumstances were and
alter her course not maneuvre
such as to ANCIENT LIGHTS .
for the H . ( The Highgate.) ... ... ... ...page 841 Obstruction - Damages or injunction - Discretion of
court - Mandatory injunction - Form of order . - A.
Collision - Stranding - Consequential damage - Re mandatory injunction will be granted for the
moteness. - In an action for damages by collision, removal of a building which obstructs ancient
a claim for consequential loss, caused by a mis lights, notwithstanding that such building has
take of the master of the injured vessel after been completed before the issue of the writ in the
the collision , is recoverable from the wrongdoer action . An action was brought by the owners of
in the absence of negligence or want of ordinary certain tenements, claiming damages, and also a
skill on the part of the master , provided such mis . mandatory injunction against the defendants in
takewas one which might reasonably have been respect of an interference with the enjoyment of
made in consequence of the damaged condition of ancient lights attached to the property . The
the vessel. A collision between the Swedish access of light had been diminished by the erection
barque A . and the steamship C ., about 6 p .m . on of a new building , which at the time of the com
the 7th Nov.,about twelve miles
Lightship, was solely caused byN . ofthethenegligent
Hinder mencement of the action was not quite completed .
After the action was begun the defendants con
navigation of thebarque's
the collision the steamship. In consequence
starboard of tinued and hurriedly finished the building, and
quarter was paid 501. into court as sufficient to compensate the
cut off, and her steering compass, log glass, and plaintiffs for the injury which was admitted to
gear for rudder and wheel were lost. The steer have been caused to their property . Held , that ,
ing compass having been replaced by a spare com in exercising the discretion given to the court by
pass and tackles having been sect, 2 of Lord Cairns'Act (21 & 22 Vict. c. 27), to
rudder, the master of the A ., rigged
with
on to the
a view to award damages in substitution for an injunction ,
saving the vessel, sailed up the Thames, but be in the case of a substantial interference with the
tween three and four p.m . next day thé A . went plaintiffs ' ancient lights, the court would take
ashore in consequence of her master mistaking into consideration all the circumstances of the
the Tongue Lightship for the Kentish Knock . case ; and that, as the defendants must be taken
The owners of the barque (inter alia ) claimed for to be acquainted with their own rights, their
the loss occasioned by the stranding : Held , that building having been completed after action
the stranding was due to themaster of the barque brought, they could not complain if they were
being deprived by the collision of the ordinary
means of navigation , and that in the circum subsequently ordered by the court to pull it down.
stances the owners of the steamship were liable. Held also, that à fortiori where the defendants
(The City of Lincoln .) ... ... ... ... ... ... ...
admitted that they were wrong, and paid money
into court by way of damages. having since action
Practice- Collision - County Court -- Costs - Wit brought completed their building, they had no
equity to resist a mandatory injunction. (Law
nesses — Interlocutory order - Appeal - County
Courts Admiralty Jurisdiction Act 1868 . – A rence v. Horton .) ... ... ... ... ... ... ... ... 749
County Court judge cannot lay down a general
practice that only the costs of such witnesses who ANTICIPATION .
have been called
at the trial shall be allowed , and Married woman — " Withoutpower of anticipation "
that if it be desired to have witnesses allowed - Gift
life over
who bave not been called application is to be her " on- her
interest. anticipating.”
Atestator — Mortgageandof
gavehis realestate
made to him , such practice being contrary to the residue of his personal estate to trustees upon
the provisions of Order L ., r. 16, of the County trust out of the rents and income thereof to pay
Court
Admiralty Under sect.Act26 1868
Rules.Jurisdiction Countyto Courts
of theleave appeal a certain annuity , and to pay the remainder of
from an interlocutory order in County Court the rents and income to M ., à married woman,
actions on the Admiralty side must be obtained “ for her separate use, free from the debts and
from the County Court judge, and this enactment control of any husband, without power of antici
pation , and for and during the term of her natural
is still applicable to such actions, notwithstand life, and from and after her decease, or on her
ing the general provisions of sect. 120 of the
County Courts Act 1888, and hence a party can anticipating the same rents and income, or any
part thereof," upon trust as to the said trust.
not appeal from... such
Cashmere. )
orders without leave. ( The
... ... ... ... ... ... ... ... 814
estate for all the children of M . equally as tenants
in common , with a gift over in case there should
Salvage - Apportionment - Crow – Cattlemen . - be no such child who should attain twenty -one.
Where At the date of thetestetor's will M . was a married
and theaUnited
salvingStates,
ship, trading
carried between
cattlemenEngland
, whose woman, and her husband was still living.
was one child only of the marriage. M . executed
There
duties were to attend 'to a cargo of live cattle,
they being paid a lump sum for the voyage by the an assignment of the life interest by way ofmort
owners of the cattle, the fact that they are on the gage. Held , that the word “ anticipate ” aid not
ship's articles at a nominal rating , in order to include “ attempt to anticipate," and that conse
satisfy the requirements of the American autho quently the clause in the will divesting M .'s
rities, does not of itself make them part of the interest in the event of her anticipating the same,
crew , so as to entitle them to share with the ship's had not, in the events that had happened, taken
crew in the award . ( The Coriolanus.) ... ... ... 844 effect. (Re Wormald ; Frank v.Muzzen.) ... ... 423
AGREEMENT. APPEAL.
Construction - Not to “ engage in business " Criminal cause or matter – Contempt of court
Breach - Injunction . - S . entered into a written - On an application to the Divorce Court
agreement of service with W . and Co.,who were T . was ordered to pay a fine as being guilty
general drapers, haberdashers, & c., and agreed not of a contempt of court in publishing in a certain
to “ engage in a similar business " within half a newspaper comments upon the conduct of a
mile of W .'s premises for six months after leaving party to a divorce suit pending in the High
the same. s. left W .'s services, being at the time Court of Justice. T . appealed . Held , that
Oct. 18, 1890.] THE LAW TIMES. [Index - xliii
SUBJECTS OF CASES.
the matter was a criminal one, and that, by to the court under sect . 19 of the Act. The sum
virtue of sect. 47 of the Judicature Act 1873 , monswas ordered to stand over until the appli.
there was no right of appeal. (O 'Shea v . O 'Shea cants had put in their statement of defence , in
and Parnell ; Ex parte Tuoby .)... ... ... ...page 713 order that any party might then apply to have the
question of law decided . (Re Carlisle ; Clegg v .
APPORTIONMENT.
Tenantfor life and remainderman - Reversion falling
Clegg. ... ... ... ... ... ... ... ... - page 821
Award - Motion to set aside - Notice of motion
in - Mode of apportionment- Power of appoint - Limitation of time- Order LXIV ., r. 14 - Order
ment over reversionary LII., r. 1.- By Order LXIV ., r. 14. it is provided
fund asfund
part subject to settlement that an application to set aside an award may be
- Appointmentof ofappointor'sresidue
-tenant
First for
tenant for life under settlement also first made at any time before the last day of the
sittings next after such award has been made and
life of residue - Conversion - Substitu
tionary gift - " Descendants.” - By a settlement published to the parties. An award was dated
made in 1815 , A ., on the marriage of his son , and published on the 27th Feb . 1890, and upon the
settled two several sums of 10,0001. upon trusts 20th May one of the parties gave notice of motion
for the son for life, and after the son 's decease for to set aside the award. Upon the 23rd May, the
the son's wife for life, and in default of issue of last day of the Easter Sittings, the party who
the marriage as the testator should by deed , will , gave the notice applied to the court, although the
or codicil referring to the settlement, appoint. By case was not in the list for that day, to extend
his will in 1832 (not referring to the settlement) A . the time formoving to set aside the award , but
directed that his residuary personal estate, or the no order was made upon that application . Upon
produce thereof, should be invested , and held upon the 9th June the motion came on for hearing , and
trast for his son for life, and, in default of issue the objection was taken that the application was
of the son, for A .'s daughters and their children , too late. Held, that the notice of motion having
the daughters taking life interests. By a codicil been given before the last day of thesittings next
in 1833 A . appointed that the two several sums of after the publication of the award, the application
10,0001. mentioned in the settlement shonld form was in time. (Re An Arbitration between Gallop
part ofexecutors
his residuarytrustees
personalaccordingly
estate, and be paid and the Central Queensland Meat Export Com
to his and . A . died pany .) ... ... ... ... ... ... ... ... ... ... 80
in 1834 ; the son in 1850, without having had Invalid award – Remission to arbitrators – New
issue ; and the son 's wife in 1889. At her death contract- Ultra vires - Trade description - Com
& sum of 25,4001, Consols represented the two pensation — “ Customary allowances ' - Merchan
sumsof 10,0001. The executors of thewill proposed dise Marks Act 1887. - The defendants contracted
to apportion the 25,4001. Consols between capital to supply the plaintiffs with 20,000 cases of tinned
and income under the will and codicil, treating salmon at 238. 9d . per case , " allowances, as cus.
the capital as amounting to 31301. 168. only, tomary , to be settled on result of examination
being the sum which at the death of A . would , if before delivery, of not less than 10 per cent. of
accumulated at 4 per cent. less tax , with annual the cases for average." Any dispute was to be
rests, have produced the value of the 25,4001. settled by arbitration. In due course the defen
Consols on thedayof the death of the son 's widow . dants tendered 14,000 cases as part of the 20 ,000,
Held , that the principle of Re The Earl of Chester each tin of which was labelled “ tinned salmon ;
field 's Trusts applied, and that the proposed 1lb . ; first quality .” A dispute arose as to the
apportionment was correct. By another codicil A . weight of some of the tins, and the plain .
desired his son to insure his life for 50001., and to tiffs gave notice of their intention to reject
bequeath that sum to his wife for life, and the goods, inasmuch as a sale of them with a false
at her death, or at the death of the son , to statement as to weight would render the vendors
bequeath the 50001, to A .'s daughters or their liable to criminal proceedings under sects, 2 and
“ descendants” in substitutionary
equal proportions. Held, 3 of the Merchandise Marks Act 1887. The
(1) that this was a gift to the parties thereupon proceeded to arbitration , arbi.
descendants of those of the daughters of A . who
died in the lifetime of the son's wife leaving trators and an umpire being appointed . On
investigation it was found that about sixty tins
descendants ; (2) that “ descendants ” included in every twenty-five cases were deficient in
children , grandchildren,distribution
and great-grandchildren weight. The umpire made his award, finding ,
living at the time of ; and (3) that, first, that the salmon was a fair tender under the
although the daughters were to take as tenants in contract, and that no sufficient cause existed for
common , the words " in equal proportions " did rejecting the same; secondly, that the weight
not apply as between the descendants themselves,
such descendants taking as joint tenants. (Re was “ irregular and unusually deficient;" and
Flower ; Matheson v . Goodwyn .) ... ... ... ... 216 thirdly, awarding 18. per case compensation to
the plaintiffs. The evidence showed that in the
trade the “ customary allowance ” for deficiency
ARBITRATION . in weight was 78. 6d . for twenty-five cases,
Agreement to refer - Staying legal proceedings whereas the umpire's allowancewas 258. Accord
Discretion of court. -- In this action the executors ingly the plaintiffs moved to restrain the defen
of Clegg , a deceased partner, sued the surviving dants from making the award a rule of court ;
partners and the executors of Carlisle, a partner and that the matter in dispute might be remitted
who had survived Clegg, but died afterwards, to to the arbitrators and umpire for reconsideration .
Teoover payment of the share of Clegg in the part Held , that, having regard to the Merchandise
nership assets, according to the provisions of the MarksAct 1887, as the tins purported to contain
partnership deed . The deed contained one pound, if the goods were forced on the plain .
ment to refer all disputes to arbitration . anA agree
state tiffs they would have to weigh the tins and either
efface the “ llb ." or affix the true weight on each
ment of claim had been delivered , but before of a large number of tins. Held, also, that the
delivering their defence the defendants, the deficiency being according to the umpire's award
execators of Carlisle, took out a summons to stay “ irregular and unusual, " the award was on the
proceedings in the action, pursuant to the Com face of it bad ; and that,'under the circumstances,
mon Law Procedure Act 1854, s. 11, on the ground the umpire had no power to force the parties to
of the agreement to refer to arbitration. It was enter into a new contract by the insertion of a
admitted at the bar that there wasno dispute as new price, instead of the " customary allowances,”
to facts, and the only question was one of law as he having considered that “ customary allow
to the construction of the partnership deed . Held , ances " did not apply. Held, therefore, that the
that, under the Arbitration Act 1889, s. 4,the matter must go back to the arbitrators and
court has a discretion whether to stay proceed. umpire. (Hooper and Co . v . Balfour, Williamson ,
ings or not, and that it would not exercise that and Co.) ... ... ... ... ... ... ... ... ... ... 616
discretion by staying proceedings in a case where
the only question was one of law which , if sent to Questions not covered by arbitration clause - Refer
the arbitrator, ought to be referred back by him ence - Common Law Procedure Act 1854. - A
sliv - Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
lessor granted in 1870 to the plaintiff 's prede had been built in 1867, and from that date until
cessor in title a lease for sixty years of a manu 1888 enjoyed an access of light to their windows
factory , and covenanted to supply a certain over an adjoining piece of land . In 1877 the local
quantity of water daily to the demised premises.
The lease contained a clause providing for the
authority acquired the adjoining piece of land
under the Artisans' Dwellings Act 1875 , and in
reference to arbitration of any dispute or diffe 1886 let it to the defendant, who in 1888 built
rence between the parties " touching these pre houses which obstructed the plaintiff's light.
sents . . . or any matter in any way connected Held , that the plaintiffs had not acquired a pre
with these presents." In 1885 a further agree scriptive right to the light they had enjoyed be.
ment was entered into between the parties, which cause their inchoate right which arose from their
imposed upon the lessor fresh liabilties as to the ten years' enjoyment from 1867 to 1877 was extin
supply of water, and to a certain extentmodified guished by sect. 20 of the Act, and thatunder the
the plaintiff's right under the lease. Theplaintiff same section compensationr.
they were entitled to and
subsequently brought an action against the
executors of the lessor, claiming damages for
for the extinguishment. (Barlow . . ...
others
... ...page 552:
Ross .)... ... ... ... ... ...
. "**
alleged breaches of the lease, and also of the
agreement of 1885, in respect of the supply of
water to the demised premises . The defendants
ASSAULT.
applied for a stay of proceedings in the action , and Complainant not appearing before magistrate
Charge dismissed - No evidence taken on oath .
for the reference to arbitration of the differences - “ Hearing upon the merits " - Certificate of dis
between the parties. Held , that the arbitration
clause referred to questions arising under the missal - Power to grantsuch certificate - Whether
lease alone, and that, as the claim was in respect such certificate is a bar to subsequent civil pro
of matters under the agreement as well as under ceedings- Sect. 44 of 24 & 25 Vict. ofc. 100, enacts
that, upon the bearing of any case assault or
the lease, it would not be right to refer the whole
matter or the questions arising under the lease battery “ upon the merits," if the justices deem
the offence not to be proved, they shall dismiss the
only to arbitration . (Turnock v. Sartoris.) ...page 209 complaint and shall give to the party against .
Restraining arbitration proceedings – Injunction whom the complaint was preferred a certificate
-- Particulars of differences — Futile result -- and sect. 45
stating the fact of such dismissal;obtained
Jurisdictiur - Judicature Act 1873 – Arbitration provides that the person whobehasreleased fromsuch all
Act 1889. — Partnership articles provided that, certificate of dismissal “ shall
in case any dispute should arise between the further or other proceedings, civil or criminal, for
three partners relating to the partnership , they the same cause." Held , that a magistrate has no
should forthwith each nominate a referee, and jurisdiction under sect. 44 to grant a certificate on
that such three referees should determine all the dismissal of a summons for assault, when the
matters in dispute, or , in default of agreement, complainant does notappear and when no evidence
appoint an umpire.' Questions arose,and two of on oath is taken , as such hearing is not a “ hear
the partners appointed referees to " settle and ing upon the merits,” and if the magistrate does
determine all questions, disputes,differences,and grant a certificate, such certificate is not a bind
matters that may be in dispute or difference " ing certificate, both parties not having been .
present, and the case not having been argued and
between the partners. The third partner objected
that there was no point in dispute within the part decided on the facts. That if in such a case the
magistrate grants a certificate of dismissal, the
nership articles. Heasked for information as to
the alleged differences,and was informed that par judge in a subsequent action for damages in respect
ticulars would be furnished at the proper time. the but
officate, samehasassault, is not bound by such certi
power to go behind the certificate
He now moved to restrain his partners from pro
ceeding with the arbitration finally , or until they and to inquire into the facts,and to determine
had specified what disputes they wished to refer ; whether facts which gave the magistrate juris
or that he might be at liberty to revoke the sub
mission to arbitration contained in the partner
diction to grantthe certificate. (Reed v. Nutt.)... 635
ship articles . Held , that the court had jurisdic ATTACHMENT.
tion to grant the injunction , but that arbitration Trustee - Breach of trust - Non -compliance with
proceedings, without particulars and without the order to pay cash into court as trustee -- Subse
consent of the plaintiff , would be merely futile ; quent bankruptcy of trustee - Jurisdiction -
and that that was no gronnd for restraining the Debtors Act 1869, - By an order made on the 5th
proceedings. (Farrar v . Cooper.) ... ... ... ... 528 · April 1889 the defendant was directed, as trustee ,
Tenant giving up possession - Compensation for to pay two sums of cash , which he was alleged to
quitting – Agreement to appoint arbitrators have misapplied , into court on or before the 6th
Umpire - Assessment of compensation — Appli May 1889. He failed , however, to comply with
cation to issue execution. -- An agreementmade that order. On the 13th May 1889 a receiving
between the purchaser of a close of land and the order was made against him on his own petition ,
tenant,who was a nurseryman and market gardener , and he was adjudicated a bankrupt, andhehad not
provided that the tenant should give up posses yet obtained his discbarge. ofThe plaintiffs moved
sion before the expiration of his lease, and that for liberty to issue a writ attachment against
the amount of compensation to be paid to him (a )
in respect of such giving up possession ; (b ) in him , the notice of motion being dated the 22nd
April 1890. Held , that the property and person of
respect of various plants and shrubs taken by the the debtor were protected by sect. 9 of the Bank
purchaser, shculd be determined by two named
arbitrators, one of whom was a seedsman and the ruptcy Act 1883 ; and that the court had no juris
other a market gardener, and in case of dispute by diction to direct a writ of attachment to issue
an umpire to be appointed by the arbitrators . against him . (Re Simes ; Simes v. Newberry.) ... 721
The arbitrators differed,and the amount of com BAILMENT.
pensation was assessed by an ampire appointed by Bailor's title - Termination of — Jus tertii — When
them . Held , that this was a valuation, and not an bailee precluded from setting up. - In an action for
award, and that the tenant was, therefore, not wrongful detention of certain goods brought by
entitled to issue execution under the Arbitration bailors against bailees, who were warehousemen ,
Act. 1889. (Re An Arbitration between Hammond and had engaged to hold the goods to the plain
and Waterton .) ... ... ... .. ... ... ... ... 808 tiffs' order, the defendants sought to administer
interrogatories as to whether the plaintiffs had
ARTISANS ' DWELLINGS ACT 1875. not, since the date of the bailment, sold the goods
" chased
02 the ment
Right orbyease local inauthori ty ting
or rela to landnts "ofpur
- Enjoyme ac to a certain firm ,and whether they had notreceived
payment for the same and had not indorsed and
cess of light for less than twenty years - Inchoate handed over delivery orders for such goods. The
right, extinguishment of and compensation for. third parties claimed the goods from the defen
The plaintiffs were owners of a town house which dants, but it was admitted by the defendants that..
Oct. 18, 1890 .) THE LAW TIMES . . [Indes - xlv
SUBJECTS OF CASES.
they were defending the action in their own Act of bankruptcy - Assignment for the benefit of
interests entirely, and were not acting under the creditors generally - Assignment not by deed. -
authority of the third parties. Held, that the the Bankruptoy Act 1883
By sect. 4, sub-sect. 1,of debtor
defendants were precluded from setting up the it is provided that : “ A commits an act of
title of these third parties as against their hailors , bankruptcy in each of the following cases :
and that, as the defence sought to be established (a ) If in England or elsewhere he makes a convey
by the interrogatories was bad in law , the interro ance or assignment of his property to a trustee or
gatories could notbeallowed . (Rogers and Co. v . trustees for thebenefit of his creditors generally .”
Lambert and Co.) ... ... ... ... ... ... ...page 694 Held , thatan assignment within this section must
be a formal assignment by deed of the whole , or
BANKER. substantially the whole, of the debtor's property .
(Re Spackman ; Ex parte Foley.) ... ... ...page 849
Broker - Loan - Deposit of Securities - Negotiable
securities - Parchaser for value - Notice - Duty to Bankruptcy notice -- Right to include interest on
inquire - Damages - Evidence given in another
action - Admissions. The ruling of the Honse of
judgment debt. - Where a creditor seeks to issue
a bankruptcy notice on a judgment debt, he is
Lords in Earl of Sheffield v. London Joint Stock entitled to add to the judgment debt the interest
Bank (58 L , T . Rep. N . S . 735 ; 13 App . Cas. 333), which has accrued due upon it, and to have a
that in the case of advances by bankers to their bankruptcy notice issued for the full amount. (Re
customers, money-dealers, on the deposit of nego Lehmann ; Ex parte Hasluck .) ... ... ... ... ... 941
tiable securities to bearer, it is the duty of the Bill of sale — “ True owner ” - Partnership property
bankers to inquire into the customer 's title ,
applies also where the customer is a stockbroker . - Bill of sale by one partner over - Bills of Sale
Where , in such a case the title of the bankers Act (1878) Amendment Act 1882 - Bankruptcy Act
failed in action brought against them by the 1883. - The words “ true owner " in sect. 5 of the
plaintiff, being the real owner, who had bought Bills of Sale Amendment Act 1882 are ased in
the securities merely with a view of selling on a their popular sense, and a man does not cease to
be the true owner of goods merely because his
favourable opportunity ,and the value bad fluc ownership is to some extent qualified by rights
tuated while they were held by the bank : Held , existing over the goods in other persons. One of
that it could not be presumed against the bank two partners, with the assent of his copartner ,
that the plaintiff wonld have realised when the executed a bill of sale of partnership goods to
securities had reached their higbest price, and secure a loan of money which was used for the
that, as regards some of the securities which the benefit of the two partners. The firm went into
bank had sold before demand by the plaintiff, they bankruptcy , and the bill of sale was set aside by
were liable for the price at which they had hose
sold
with interest at 4 per cent., and, as regards tho the County Court judge. Held , on appeal, that
still in their possession , which had depreciated, the grantor was to the extent of his share in the
for the differences between their value on the partnership goods assigned by the bill of sale the
date of the plaintiff's demand and the date of true owner within the meaning of sect. 5 ; and
recovering judgment, with any dividends received that the bill of sale was to that extent valid , but
in the meantime. The bank manager had in a that as to the rest of the goodswhich belonged to
previous action by another plaintiff given evidence his copartner it was void . (Re Tamplin ; Ex
of the practice of the bank in making such loans parte Barnett.) ... ... ... ... ... ... ... ... 26b
to customers. Held , that the manager being a Depositon appeal- Abandonment ofappeal. - Where
person authorised to make admissions on the part an appellant
security whocosts
for the hasofpaidhis the 2012 into court
appealunder as
the pro
of the bank, bis evidence might be read on the visions of rule 131 of the Bankruptcy Rules 1886 ,
part of the plaintiff in this action so far as rele afterwards abandons his appealand pays the costs,
Fant to the matters row in question . (Simmons such moneys will be paid out to him on his appli
v. London Joint Stock Bank ; Little v . Same.) ... 427 cation,and will not be made subject to a claim for
BANK OF ENGLAND. costs incurred by the appellant at an earlier
stage of the litigation which remains unpaid at the
Transfer of stock into joint names of a corporation time of abandoning his appeal. (Re Scott and
and an individual- Refusal of bank register
to Mitchell ; Ex parte Scott.) ... ... ... ... ... ... 840
transfer - Mandamus - Joint tenancy and tenancy Discharge -- Considerations affecting. - On the appli.
commonestate--
inpersonal Upon of,asregards
- Incidents by anrealand
an applicationboth action cation by a debtor for his discharge the County
Court judge, upon the report of the official
at the suit of the plaintiffs for a mandamus to receiver being of opinion that the debtor had
compel the Bank of England to register in their committed two offences under sect. 28 , and had
books a transfer of stock in the joint names of the otherwise been guilty of misconduct, refused the
trustees : it was held that the plaintiffs, being debtor his discharge, but gave him liberty to
a corporation and an individual, were tenants in apply again on his proving that he had paid to
common of the stock in question, and that the the official receiver such a sum as would , with the
Bank was entitled to decline to register the dividend already paid , make up a dividend of
transfer, being exonerated , by their ordinary fifteen shillings in the pound . The evidenee
course of practice and the terms of the National showed that the debtor was in receipt of a small
Debt Act 1870 , from recognising or registering salary, and that a sum of 40001. would be neces.
trusts or tenancies in common, and therefore the sary to make up the required dividend. Held , on
mandamusmust be refused. (The Law Guarantee appeal, that the order was too severe, and that,
and Trust Society Limited andHunter v. The Bank under the circumstances, the proper order to
ofEngland.) ... ... ... ... ... ... ... ... ... 496 make was to suspend the discharge for a period
BANKRUPTCY . of three years. As a general rule an order sus
pending a debtor's discharge for a period of three
Action - Meaning of word - Motion is not an action. months or six months should not be made, inas
- The word " action " in sects. 53 and 54 of the much as such period of suspension amounts to
County Courts Act 1888 , being the sections more than a nominal punishment, and vet is not
which require notice and other formalities to be sufficiently severe to beofany effect in discouraging
gone through before proceedings can be taken
against a person for anything done in pursuance
debtors from committing offences. (Re Freeman ;
of that Act, will not be enlarged so as to include a Ex- Önpartean Freeman.)
application ....
by a ...bankrupt for his dis
motion by a trustee in bankruptcy against a bigh charge the officialreceiver reported that the bank .
bailiff , ander sect. 46 of the Bankruptcy Act 1883, rupt had committed four of the offences specified
for a declaration that he was entitled as against
the high bailiff to certain goods taken in execu .
in sect. 28 of the Bankruptcy Act 1883. The County
tion , on the ground that the execution had notbeen
Court judge modified
been made, and refuseda previous order which
the bankrupt had
absolutely
completed by seizure and sale. (Re Locke; Ex his discharge,but gave him liberty to apply again
parte Poppleton .) ... ... ... ... ... ... ... ... 942 I so soon as he had paid a further dividend of 18.
SO soon as he had paid a further divide
xlvi- Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
in the pound, in addition to the 108. in the pound construction of sects. 95 and 97 of the Bank
already paid. The bankrupt appealed . Held , ruptcy Act 1883, where bankruptcy proceedings
that the order would not be interfered with , for have been inadvertently commenced in the 'court
that if it erred at all it was on the side of leniency . in which the debtor
of a district other than that order
(Re Tregaskis ; Ex parte Tregaskis.) .... ...page 605 has been residing,a receiving may be made
Discharge - On an application by the debtor for his by that court. When a abankruptcy petition is
discharge under sect. 28, the court may take into presented founded upon judgment as to which
consideration all the circumstances connected notice of appeal has been given by the debtor,
with the bankruptcy , and is not bound merely to the probability or improbability of the appeal
consider whether or not there has been misconduct being successful is to be taken into consideration
as defined by sect. 24 and sect. 28 , as conduct in in deciding whether the bankruptcy proceedings
sect. 28 is not confined to the particular instances shall be postponed pending the appeal. (Re
of misconduct mentioned in that section or in French ; Ex parte French.)... ... ... ... ...page 93
sect. 24 , though itmust be limited to conduct con Order fixing Public Examination - Service on debtor
nected with or arising out of the bankruptcy .
Therefore, where a man against whom judgment
by registered letter. - By rule 186 of the Bank
ruptcy Rules 1886 , “ Where any order is made
was recovered for 5001. in an action for breach of appointing the time and place for holding the
promise of marriage was adjudged bankrupt on public examination of a debtor, the official
the petition of the plaintiff in the action , and the receiver shall serve a copy thereof on the debtor.”
court granted his discharge subject to his con Notice of the time and place appointed by the
senting to judgment being entered up for 2501., court for his public examination was sent to a
such judgmentto be satisfied on paymentof 2001. : debtor in a registered letter. The debtor failed
On appeal, it was held that the judgment was to attend the examination , and gave no reason for
correct, as the court was at liberty to take into his absence. On application for a warrant to
consideration all the circumstances of the case , arrest him for non -compliance with the notice :
amongst which was an offer by the debtor's Held , that the document which by rule 186 is
mother before petition to pay 2501, in satisfaction required to be served on the debtor may be sent
of the debt. (Re Jones ; Èx parte Jones.) ... ... 370 to him by registered prepaid post letter, and that,
- Refusal of — Application de novo for. – as that had been done, the warrant might be
Where a bankrupt, who has been refused his issued . (Re McGrath ; Ex parte The Chief
discharge, applies a second time for it to the Official Receiver.) ... ... ... ... ... ... ... 122
County Court judge, such application , if founded Practice - Appeal against receiving order- -Upon
receiver. Service
an
upon what was or what might have been before of notice of appeal on official
the judge on the original hearing, should be an appeal by a debtor to a divisional court sitting in
application by way of review , and not an applica bankruptcy from a receiving order made in a
tion to rehear. An application of this kind ought County Court, and upon an appeal by a debtor to
to be made and decided upon before the facts are the Court of Appeal from a receiving order made
gone into, and should not be ex parte ; the appli in the High Court, service of notice of appeal on
cantmust make out a prima facie case , and until the official receiver, within the time limited for
such a prima facie case is madeout, no answer need service on the petitioning creditor, is essential
be given by the other side. Semble, an applica whether there has or has not been å stay of pro
tion for an order of discharge cannot be made
merely on the samematerials which were or might ceedings on thereceiving order pending the appeal.
have been before the court on the first occasion,
(ReWebber ; Ex parte Webber.) ... ... ... ... 485
but where the order of discharge has been refused Previous foreign bankruptcy – Jurisdiction of Eng .
on account of the bankrupt's misconduct, the lish court - Stay of proceedings- Domicil - Forum
concursur- Locus standi of foreign syndio . - A
bankruptmay apply again at a subsequent period
if he is able to show that he has during that period firm of merchants carrying on business in France
displayed qualities the absence of which lost him and England, but domiciled in neither country ,
his discharge on the first occasion . (Re Lloyd : were declared bankrupt in Paris, and shortly
Ex parte Lloyd .) ... ... ... ... ... ... ... ... 366 afterwards in London . Held , that the prior
Informality in petition - Amendment- Bankruptcy foreign bankruptcy proceedings did not take away
the jurisdiction of the English court to make a
Act 1883. - A bankruptcy petition was presented receiving order, nor were any ground for staying
against E . L . which alleged , “ that the said E . L . the proceedings in England. Semble, that the
within three months before the date of this peti. representative of a bankrupt's estate appointed
tion has committed the following act ofbankruptcy, in foreign bankruptcy proceedings has no locus
namely, non -compliance with a bankruptcy notice
issued out of this court on the 13th day of May standi either to oppose the pronouncing of a
receiving order in this country, or to apply for
1890, and duly served upon the said E . L . on the its rescission after it has been pronounced . (Re
13th day of the said month ." Objection was Artola Hermanos ; Ex parte Châle.) ... .... .... 781
taken by the debtor, that the act of bankruptcy Proof for contingentbyliability - Annuity - Limit of
was not sufficiently alleged upon the face of the time for rejection trustee -- Assent to creditor's
petition
the . Theappealed
creditor registrar. upheld the objection
Held . that ,and
the registrar estimate of proof - On the 22nd May 1885 proofsD .
ought to haveamended the petition ,and heard the against the estates of J.
were put in by A . V.(being
case on the merits, and that, as that had not been and M . D . for 2401. arrears of an annuity
done, the case must goback to him . (Re Lorrimar ; of 1201. a month arising outof a covenant by J. D .
Ex parte Constable.) ... ... ... ... ... ... ... 943 and M . D . to pay the same), and for 70001., the
estimated value of the annuity for the residue of
Joinder of debts to found petition - Knowledge by A . V .'s life. A . V . wasseventy-four years of age,
creditor of act of bankruptcy - Tender of debt to and on the 20th Sept. 1885 she died . On the 7th
creditor- Refusal — Bankruptcy Act 1883. - Two Jan . 1890 both proofs were rejected by the trustee
creditors with debts of 251. each joined together to the extent of 59201., on the ground that the
in order to present a petition against a debtor, annuity was determined by A . V .'s death . On
who had committed an act of bankruptcy of Held, that the
motion to reverse this decision : that
which they had knowledge. The debtor tendered trustee's calculation was correct, he had not
to one of the creditors the amount of his debt, assented to the creditor's estimate of the annuity ,
which was refused, a petition was presented , and and that the proofs must be rejected towhere the ex
a receiving order made. The debtor appealed . tent he had named . Held further, &
Held, on appeal, that the creditor was right in creditor sends in a proof for a contingent liability,
refusing the tender after knowledge of the act of and also estimates the value of such liability for
bankruptcy, and that the receiving order must not bound,
the purposes of proof, the trusteeto isreject
stand. (Re Lowe; Ex parte Lowe.) ... ... ... 263 he dissents
iftwenty from the proof, it in
Jurisdiction - Petition presented in wrong court -eight days under rule 228. (Re M . B .
Receiving order - Appeal pending from judgment Dodds; Ec parte Exccutors of Vaughan ; Re J.
on which petition founded.-- According to the true Dodds ; Ex parte Same.) ... ... . ... ... ... ... 837
Oct. 18, 1890.) THE LAW TIMES. (Indes - xlvii
SUBJECTS OF CASES.
Proof of debt - Partnership - Separate estate - Proof same under an assumed name, the only name by
by co-partner against-- Bankruptcy Act 1883. - In which the grantees of the bill of sale knew the
1888 the partnership carried on between A . and B . grantor, and this assumed name was the name by
was dissolved , A . receiving as his share the sam which the grantor was known in the neighbour
of 11,6421 ., which he left on mortgage. B . pro hood for some three years, and under which he
ceeded to carry on the basiness alone until bank had carried on business for that time, and the
raptcy. On B .'s bankruptcy there were debts to bill of sale was registered in the assumed name.
the amount of 23,7001. and assets 38421. Joint In an interpleader issue between the claimants
creditors of the old firm to the amount of 70001. ander the bill of sale and execution creditors who
were admitted to prove against B .'s separate had previously obtained judgment against the
estate . A . put in a proof for his 11.6421., which grantor under another name. Held , that the
was rejected. A . appealed . Held , on appeal bill of sale was duly registered under sub-sect. 2
(dismissing the appeal), that inasmuch as the of sect. 10 of the Bills of Sale Act 1878, and was
joint creditors had been admitted to prove against valid ,as it was registered in the name of the
B .'s estate A .'s proof must be rejected , as other grantor, the name by which he was known and
wise A . would be proving in competition with recognised at the time, and the section does not
necessarily require a bill of sale to be executed
them . (ReHind ; Ex parte Hind .) ... ... ...page 327
Solicitor's costs - Money in hands of solicitors and registered in the real name of the grantor,
ander charge for general costs - Costs incurred in (Central Bank of London Limited v. Hawkins ;
endeavouring to prevent bankruptcy proceedings Consolidated Credit Company , Claimants.)...page 901
- Retention of money by solicitors for. – The rule
laid down in Re Sinclair ; Ex parte Payne (53 Validity
ment of- Departure from together
chattels real. statutory with
form -personal
Assign
L . T. Rep. N . S. 767 ; 15 Q . B . Div. 616 ), that a chattels — Void as to the personal chattels
money payment made by a debtor bonâ fide to his
Holicitors to defray costs incurred in opposing
Severance of security. - A bill of sale, given by
way of security for the payment of money, as.
bankruptcy proceedings which have been com signed “ all and singular the several chattels and
menced against the debtor cannot be recovered things specifically described in the schedule
from the solicitors on bankruptcy ensning, is not . . . together with all the tenant right, valua
to be extended so as to allow solicitors who have
money in their hands on which the debtor has
tion, goodwill,
grantor in a farmtillages, and interest
. The schedule ” of the
contained the
given them a charge for generalcost to retain that following items, among others, “ nine acres of
money to meet costs incurred for the debtor after wheat, nine acres of oats, two acres of barley,"
knowledge of an act of bankruptcy. The rule andalso “ all the tenant'right, valuation , good .
only applies to costs which are expended on what will, tillages, and interest of and in the farm .”
is strictly a necessity, and does not cover costs Held , that the bill of sale was not in accordance
incurred in endeavouring to make arrangements with the statutory form , because it assigned chat
with creditors with a view of preventing bank tels realaswell as chattels personal, and was void
ruptcy proceedings being taken . (Re Spackman ; as to the personal chattels . (Cochrane v. Ent
Ex parte May.)... ... ... ... ... ... ... ... ... 266 wistle and others. ).... ... . ... ... ... 852
- Lump sum for interest - Rate of interest not
BETTING . specified - Omission of addresses and descrip
Ilegal bettingmoney outside
- Bettinginside licensed premises tions of attesting witnesses — Deviation from
Depositing - Licensing Act 1872 — form in schedule - Bills of Sale Act (1878) Amend.
ment Act 1882. - & bill of sale was given as
" Suffering house to be used.” — The landlord of security for the payment of 501. “ and interest
licensed premises who knowingly allows his house thereon at the rate of 171, 10s, for three years,"
as a place
to be usedreceived of deposit for money which making together the sum of 671. 108., and the
has been in betting on a spot outside the grantor covenanted to pay to the grantee " the
area included in the licence cannot be convicted of principa sum together with the interest then
l
suffering his house to be used for the purposes of due in thirty -six equal monthly instalments of
betting. (Davis,app., v. Stephenson, resp.)... ... 436 6d." The bill ofionssale did not containg the
11. 178. es
used ” for betting -
Room “ open , kept, orin bar-room address and descript of the attestin wit
Person making bets of public-house omission was rectified in the
nesses, though thistion
- The Betting Houses Act 1853. - A person on
three successive days went to the bar- room of a
affidavit of registra ,which properly contained
the addresses and descriptions of the witnesses .
public-house for the purpose of betting, and did Held , that the bill of sale was not in accordance
there bet upon certain horse races with persons with the form in the schedule, and was invalid on
resorting thereto , but he had no interest in the two grounds : (1) because, instead of specifying
keeping, management, or tenancy of the room , or the rate of interest per cent. per annum , it speci.
of any part of the public -house. Held , that, as fied only a lump sum for three years by way of
the room had not been opened , kept, or used for interest ; (2) because it omitted the addresses and
the purpose of betting, he had not committed an descriptions of the attesting witnesses in the
offence under the 3rd section of the Betting attestation clause, and such omission could not be
Houses Act 1853, which imposes a penalty upon cured by the addresses and descriptions being pro
any person who, being the owner or occupier of perly set out in the affidavit filed under the Bills
any house , office, room , or other place, or a of Sale Act. (Blankenstein v . Robertson.) ... ... 732
person using the same, shall open , keep, or use
the same for the purpose ofbetting with persons BUILDING AGREEMENT.
resp.) ... thereto.
resorting * (Whitehurst,app., v. Fincher,
... ... ... ... ... ... ... . ... ... 433 Time - Implied waiver - Vendor and purchaser
. ... ... declaration
Notice - Covenant for title - Statutory .
BILL OF SALE . - A land company were in possession of part of
Deviation from statutory form - Address and de certain settled estates under building agreements
scription of witness - Omission - Bills of Sale Act providing for leases to be eventually granted,
such agreements to expire in case the buildings
(1878 ) Amendment Act 1882. - The address and were not completed in 1881 and 1885 respectively .
description of the attesting witness to a bill of A railway company projected a scheme which
sale are essential parts pf the form given in the would involve taking part of the premises and
schedule to the Bills of Sale Act (1878 ) Amend interfere with the building operations. The
ment Act 1882, and a bill of sale omitting either tenant for life, the leasingauthority of the estate,
the address or description of the attesting witness under these circumstances, without making any
will be void under sect, 9 of that Act. (Parsons 479 agreement to that effect, did in fact, through his
v . Brand ; Coulson v . Dickson .) ... ... ... ... agent's conduct, waive the obligation of the
Registration - Validity of - Grantor giving bill of land company to complete within the specified
sale in assumed name by which he was known . time. In 1883 the railway company, with know
A bill of sale was given by the grantor of the ledge of these circumstances, agreed to purchase
xlviii - Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
the fee subject to the building agreements. In liable. The directors subsequently advanced a
1880 the railway company entered withont further sum for paying off the first mortgagees ;
making a deposit or giving a bond to
company under the Lands Clauses Act, though the land they also took possession of the property and
expended large sums in working the colliery .
knowing that the land company claimed that Held , that they were not liable for loss resulting
their agreements were subsisting in equity . The from those proceedings, for that they had an
land company brought an action against the implied power to pay off the first mortgagees,
railway company, and established that the
way company had wrongfully entered , the land rail. enter into possession, and expend sums neces
sary for the preservation of the security . (The
company being equitably entitled to an extension Sheffield and South Yorkshire Building Society
of time. The railway company took their con
veyance of the fee, the tenant for life , who joined
v. Aizlewood.) ... ... ... ... ... ... ... ...page 678
Dissolution - Consent of three-fourths
as beneficial owner, and his land agent, giving
statutory declarations that they knew of no nego members - Member having given notice toofwith the
draw - Building Societies Act
tiation of any kind with the land company having
reference to any extension of time under the Dulwich Building Society was 1874 . — The East
a society regis
building agreements. The conveyance was ex. tered under the Building Societies Act 1874.
pressed to be subject, so far as the premises That Act provides (sect. 32) that a society under
were affected thereby, to the building agree the Act may terminate or be dissolved, among
ments. The land company subsequently obtained other ways (sub-sect. 3), by dissolution with the
compensation from the railway company in re consent of three-fourths of themembers holding
spect of their interest in the lands taken . Held , not less than two-thirds of the number of shares
instatutory
the absence of fraud, that neither under the in the society , testified by their signatures to the
declarations nor onder the covenant for instrument of dissolution . S . the plaintiff in this
title supplied by the Conveyancing Act 1881 were action had taken shares in the society, and on
the railway company entitled to be recouped the the 7th Sept. 1886 had given notice of withdrawal.
compensation they had paid the land company. The rules provided that a member haying given
(London and North-Western Railway Company v. notice of withdrawal should thenceforth take no
part in the affairs of the society . On the 26th
Boulton .) ... ... ... ... ... ... ... ... ... page 393 April 1889 a meeting of the society was held , of
which no notice was sent to S . or the other mem
BUILDING ESTATE . bers of the society who had given notice of with .
Restrictive covenant- Implied contract - Intention drawal, and a resolution was passed that the
- Vendors - Unsold land - Injunction. - The plain . society should be wound -up. On the 24th Oc:.
tiffs in 1868 bought plots of land under conditions 1889 a deed was executed by the statutorymajority
of the members of the society . who had not given
of sale which provided that no purchaser should notice of withdrawal,providing for the dissolution
erectmore than one house or two semi-detached of the society and appointing P . trustee. The
houses on each plot, each house to be of a certain deed was not executed by any members who had
value. All the purchasers were to execute a deed ,
which recited the scheme of the estate, and that given notice of withdrawal, and, if they were to
all purchasers should execute the deed ,and be be counted as members, it was not executed by
bound by the stipulations contained in it. The the statutory majority . S. brought this action to
purchasers Covenanted in the deed with the restrain P . from acting under the deed. Held ,
several other purchasers and the vendors to build that, for the purpose of voting concerning a
only one or two houses of a particular class on dissolution under sect. 32 (3) of the Building
each plot. The deed contained no covenant by Societies Act 1874, withdrawing members must
be counted
the vendors. Sixty -six purchasers between the as members, and that the rule stated
years 1868 and 1889 executed the deed. On the above did not deprive them of this right. Injunc
4th Sept. 1889, the vendors, the trustees of the tion granted . (Sibun v. Pearce and the East
building estate, offered unsold land, part of the Dulwich Building Society.)... . ... ... ... ... 388
building estate for sale for the erection of con Insolvency - Withdrawal of members - Winding-up
tinuous rows of artisans' cottages. The plain - Priority of payment- Interest on paid -up shares
tiffs brought this action to restrain the trustees - Building Societies Act 1874 . - In 1884 a series of
from selling any part of the land except upon the ten building societies was formed , and it was
terms of the deed . Held , that the vendors were provided by one of their roles that " any member
bound by the deed ; the intention of the vendors may withdraw the subscription money which he
had been expressed in the deed in order to induce may have contributed with such an amount of
the purchasers to buy, and the vendors were not interestasmay be determined by the committee."
at liberty to alter that intention . Held , that, The societies being in difficulties, an accountant
if not bound by covenant, the vendors were was employed to make a report, which was pre
bound by implied contract. Injunction granted ar Cgave Sith3rd
ofdrwithdrawal,
sented
21sttoFFeb.
ethe members ordnonenotice
to restrain the detendants from authorising any the 21st
the b MKing r the awFeb
al on. 1887
1885. .and
On
On
purchaser from them of land included in the Olivthe
on h a
4th a n
May W 6 3 r
Cordnere s o a n
gave
7 ofllwithdrawal o
a similar notice.
scheme to build on any plot more than one house
or two semi-detached houses in accordance with Oliverer hadd givend notice d n on the 8th
the terms of the scheme, the defendants to pay the Oct. 1886 , and Wilkinson on the 3rd Oct. 1885. On
costsof theaction . (Mackenzie v.Childers.)... ... 98 the 17th June 1887 resolutions were passed for
winding-up the societies, and on the 2nd July
winding-up orders were made by the court. King,
BUILDING SOCIETY. Cordner, and Oliver claimed priority payment
of
over the members who had not given notices of
Directors — Investment on second mortgage — Ultra withdrawal, and Wilkinson claimed interest on
vires – Negligence - Building Societies Act 1874.
Directors of a building society are not in the the amount due to him from the time when his
same position or subject to the same liabilities as notices expired until payment. Held , that the
trustees. Under the rules of a building society rules only applied when the societies were being
registered under the Building Societies Act 1874 , arried on as going concerns, and not when they
carr
advances might bemade on the mortgage of free were in a state of insolvency , and that King ,
holds, copyholds, or leaseholds, and directors Cordner , and Oliver were not entitled to any
were not liable for loss arising by reason of in . priority over the other members. Held further ,
sufficiency of title unless caused by their own that, as the committee had not fixed any amount
neglect or default. The directors advanced a large of interest under the rules, Wilkinson was not
entitled to any . (Re Sunderland 32nd and 36th
sum of money on second mortgage of a leasehold Universal Building Societies ; King and Cordner,
colliery and on certain collateralsecurities, acting apps., v. Rawlings, resp . ; Rawlings, app. v . Oliver,
on the opinion and report of a valuer selected by resp . ; Same v. Wilkinson , resp.) ... ... ... ... 293
their chairman from a number of persons sug
gested by the mortgagor. A heavy loss having Winding-up - Advanced members and investing
been incurred · Held , that the directors were not T members - Liability for losses - Special contract
Oct. 18, 1890.] THE LAW TIMES . [Index - xlis
SUBJECTS OF CASES.
Redemption of mortgages. - By the rules of a absolutely. The Swansea Harbour Bonds were
building society registered under 6 & 7 Will. 4 , securities for 1001. each, issued by the trustees,
c . 32 , but not incorporated , it was provided (1) incorporated by the Swansea Harbour Act 1851
that, whenever the value of a share or shares (17 & 18 Vict. c. cxxvi., local and personal),and
should be advanced to any member, the property were in the form ofan assignment by the trustees
should be secured to the society by way of mort to the lender of " such proportion of the several
gage until the amount of such share or shares rates, tolls, rents, and other moneys arising and
should be repaid “ with all fines and other pay. accruing by virtue of the said Act as the said sum
of 1001. bears to the whole sum which is or shall
ments in respect thereof ;" (2) that any member
wishing to redeem could do so by paying the be borrowed upon the credit of the said rates,
amount determined at that date by the tables of tolls, rents, and other moneys.” The rates and
the society, together with the full amount which dues leviable under the Act included harbour dues,
should then be due from him to the society for lighthouse dues, and tolls for passing bridges and
"that
subscriptions, fines, and other payments;" (3)
surplus profits, “ after providing for all
locks. The harbour trustees had also power to
let their rates and tolls and mortgage the rents.
liabilities," should from time to time be appro Held, that the bridge tolls were money paid for
priated equitably and equally between the invest the active use of land, and were, therefore, so
ing and borrowing members ; and (4) that in the
event of the directors determining at a special
intimately connected with and arising from the
use and possession of land that a mortgage of
meeting to be held every three years that there them would be within the mischief of the Mort
was a deficiency of income by which the society main Act ; (2) that the true effect of the bond was
might be prevented from meeting its anticipated a mortgage of the specific tolls and rates, and not
expenditure and liabilities, the amount of such simply a mortgage
that the bonds,
of the undertaking
therefore, were
; and (3)
impure personalty ,
deficiency should be apportioned by the directors
between the got
investing and borrowing members. and were incapable of being given to a charity
The society into difficulties, and was being except in the manner provided by 9 Geo. 2, c. 36.
wound-up by the court, and, although there were (Re David ; Buckley v. Royal National Lifeboat
no outside creditors, the assets were insufficient Institution.) ... ... ... ... ... ... ... ...page 141
to pay investing members in full. On an applica Mortmain - Gift by will - Interest in land - Railway
tion by the liquidator to place advanced members company - Mortgage debentures — Charge on
on the list of contributories : Held , that the “ tne undertaking." - A mortgage debenture
* liabilities " to be provided for under rule (3) made by the North-Eastern Railway Company
included sams payable to investing members ; and by virtue of a special Act of Parliament of
the same word in rule (4 ) also included sums pay.
able to investing members, and that under these
1854 and not in the form given in schedule
rules advanced members were liable to contribute C . of the Companies Clauses Consolidation
equally with the investing members to any losses, Act 1845 , being in form a grant and assign
and that an advanced member desiring to redeem ment by the company to the mortgagee , “ ber
conld do so only upon paying what was due from heirs, executors, administrators, and assigns, of
him in respect of his liability. (Re The West the North -Eastern Railway and undertaking, and
Riding of Yorkshire Permanent Benefit Building all branch railways; lands, and hereditaments
Society.) ... ... ... ... " . ... ...page 486 connected therewith and belonging thereto,” may
be validly bequeathed to charities, and does not
CARRIER fall within the Mortmain Act (9 Geo . 2, c. 36 ).
The “ undertaking " of a railway company, which
Liability - Rates not to cover any —insurance risks is pledged in such a mortgage, is the going con
Statuary – Terra-cotta busts Evidence. — The cern of the company, and does not give the right
respondents applied to the appellants, who were to any specific charge on the surplus lands, or the
carriers, for their charges for shipping certain proceeds thereof if sold . (Re Yerbury's Estate ;
Ker v. Dent.) ... ... ... ... ... ... ... ... ... 55
works of art from Italy to Scotland . The appel
lants replied : " For alabaster goods, furniture,
& c ., but not for goods described as statuary , the CHURCH BUILDING ACTS .
rate of 18. per cubic foot. The rates do not cover Purchase of land - Site of parsonage-house - Eccle
any insurance risks, but are simply for freight.” siastical Commissioners — Power of resale . - By
Some terra -cotta busts, being part of the goods in 58 Geo. 3 , c. 45 , s . 33, the Ecclesiastical Commis
question , were damaged . inHeld the negli.
transitu bythere were sioners were empowered to purchase land as sites
gence of the appellants , that for churches or chapels , and by sect. 51 of the
no words in the contract to free the appellants same Act they were empowered to resell any land
from their crdinary liability as common carriers , so purchased not required for that purpose ; but
and that the terra -cotta busts were not brought under that Act the commissioners had no power
within the exception of " statuary " as understood to purchase land as a site for a house of residence
inandtheCocarrying trade. (Sutton and Co. v. Ciceri for an incumbent, but only to accept land from
** ...* ... 742
.) ... ... ... ... ". .. ... ...** ... persons willing to give the same. By 1 & 2 Vict.
c. 107, s. 9, it was enacted that all the powers and
CHARGING ORDER. authorities given by the former Act for enabling
Solicitor 's costs -- “ Property recovered or pre the commissioners to tako land for the sites of
served ” – Money paià into court to abide the churches and chapels should " extend to the
event of an action - Solicitors Act 1860. - A charg transfer, by sale or exchange only, of land for a
ing order may be made for a solicitor 's costs, site for a house of residence of any incumbent.”
under sect. 6 of the Solicitors Act 1860, upon Under the powers contained in the last-mentioned
money paid into court under Order XIV . to section land was purchased by the commissioners ;
abide the event of an action . (Moxon v . but, such land not being required for the purpose
Sheppard .) ... ... ... ... ... ... ... ... ... 726 of a site for a residence, they had contracted to
sell the same, and the question was whether they
had power to do so . Held , that the effect of sect.
CHARITY. 9 of the latter Act was to bring land which had
Mortmain – Bonds of harbour commissioners - been bought under the power thereby conferred
Assignment of proportionate part of tolls - into the same category as land which had been
Bridge and lock tolls - Interest in land. - bought under the powers of the earlier Act ; and
By a settlement dated the 8th Aug . 1882 that therefore the commissioners could make a
certain trust funds, including 20001, invested on good title. Semble, that the Act of 1845 for
Swansea Harbour Bonds, were assigned to trus further amendment of the Church Building Acts
tees upon trust for the settlors for life, and after (8 & 9 Vict. c. 70 ), s. 25 ,might also enable the
their deaths to pay 1000t, to the Royal National commissioners, in a case like the present, to make
Life Boat Institution , and similar sums to three a good title. (The Ecclesiastical Commissioners
other charities, and the residue to the plaintiffs to King.) ... ... ... ... ... ... ... ... ... ... 535
l- Index.] THE LAW TIMES. [Oct. 18, 1890 .
SUBJECTS OF CASES.
COLONIAL LAW . COMPANY.
Western Australia - Transfer of Land Act 1874 – Allotment of shares – Directors — Quorum - Con
Registration of title- Powers of commissioner. firmation of allotment. The articles of associa
By sect. 19 of the Transfer of Land Act 1874 tion of a company , which was incorporated on the
(38 Vict. No. 13) the Commissioner of Titles is 20th Oct. 1888, provided that there should be not
directed , upon certain conditions fas to incum more than ten nor less than three directors ; that
brances having been complied with , to advertise the first directors should be appointed by the sub
an application for the registration of a title , ard scribers of the memorandum of association ; that
to serve notices on persons affected, “ and shall the directors should hold meetings for the
despatch of business at such times and places .
appoint a time. . . . after the expiration of
which ” he " shall, unless a caveat shall be served and might adjourn and otherwise regulate such
forbidding the same, bring the land under the meetingsasthey thought fit, and might determine
operation of this Act." Held that, after the com the quorum necessary for the transaction of busi
missioner had expressed himself satisfied with the
title, and had advertised in accordance with the
ness ; and that a resolution in writing signed by
all the directors should be as valid as if passed at
section , he still had a discretion to refuse to aprovided
meeting that
dulythecalled and constituted. They also
shares should be allotted by the
register should any further information casting
doubt on the title come to his knowledge, even directors to such persons at such times and on
though no caveat was served. (Manning v . Com such terms as they should think fit. On the
missioner of Titles.) ... ... ... ... ... ...page 373 22nd Oct. 1888 thesubscribers of thememorandum
of association duly appointed five directors, one
COMMISSION . of whom was not to take his seat at the board
until after allotment. On the 24th Oct. a meeting
Secret commission - Investment- Following funds was held at which only two directors were present.
Injunction. - A foreman employed by a firm of The two directors passed a resolution that two
directors should be a quorum , and proceeded to
dyers was in the habit of receiving a secret com
mission on all goods ordered by him on behalf ofhis allot a number of shares. Among others, they
principals from a certain firm . The sums so
received , which reached in the aggregate a consi.
allotted to S . one hundred 51. shares, for which he
had applied . On the 25th Oct. S . withdrew his
derable amount, had been invested by him in the application. On the same day a third director
purchase of certain land and houses. Held , that, signed a resolution appointing two directors a
although the employer would be entitled to recover quorum ; and onwritten
handed in his
the 26th Oct. a fourth director
assent to the sameresolu
from the foreman the sums so received from him
by way of commission, yet he was not entitled to tion . At the meeting on the 26th Oct, the pre
follow the money into its investments. An appli
cation for an injunction to restrain him from
vious allotments were confirmed. S. applied to
havehis namestruck off the register, and North , J.
parting with the houses was therefore refused. held , that there was no properly appointed quorum
(Lister and Co. v. Stubbs.) ... ... ... ... ... ... 654 of directors present at the meeting of the 24th Oct.
when the allotments were made; that the allot
COMMONS CONSERVATORS. ment of S . was therefore invalid , and the con
Elective body — “ Elector ” _ " Tenant or occupier " firmation on the 29th Oct. would only take effect
as a fresh allotment on that date, which , being
-- Ratepayer - Bye-law - Ultra vires — Injunction. after withdrawal, was ineffectual. S .'s namewas
-- By the Wimbledon and Putney Commons Act therefore removed from the register : (60 L . T .
three provisions
1871 are made
yeors of a body for the election
of conservators, every
themselves Rep. N . S . 857.) Held ,without deciding theother
points, that there was no evidence that Lord I. (a
to be personswho ar
to be persons who are " electors ” under the Act :
and it is provided that any person who is " tenant
director, who was not present atdocument
the meeting of
the 26th Oct., butwho signed the on the
or occupier of a dwelling-house " of the annual 21th Oct.) received proper notice of the meeting ;
rateable value of 351. or upwards shall be qualified that he had not waived his right to the notice
as an elector. The Act empowers the conserva which he onght to have received ; that the
tors to make bye-laws. One of the bye-lawsmade meeting was a bad one ; and that the decision of
by them provides that no person , not being an North, J . must be affirmed . (Re Portugese
" elector " named and described in the list of Consolidated Copper Mines Limited ; Ex parte
voters, shall vote at any election of conservators Steele)
teele ) ... . . ... ... ... ... ... ... ... Page 86
under the Act. A house within the limits of the
Act was let to R . and his sister-in -law , as joint Allotment- Directors - Quorum - Confirmation of
tenants, at an annual rent of 3001. The house allotment- Practice - Setting aside judgment by
was occupied by both , but the rates and taxes
were always paid by the lady, whose name alone default - R . S. C., Order XIV ., r. 6 ; Order
XXVII., r. 15 .-- In this casean allotment
of
appeared on the parisk rate-books as ratepayer in shares in the P . company had been made on the
respect of the house, R . contributing half the 24th Oct. 1888 , at a meeting of directors, at which
amount paid . The triennialmeeting for the elec two directors only ont of four were present, and
tion of conservators was to be held on Monday, of which one director at least had received no
the 31st March 1890,and in the list of " electors," notice. This allotment was held invalid by
which was prepared by the overseers from the
rate books, the lady 's name alone appeared in
North , J., and by the Court of Appeal (Re Portu
guese Consolidated Copper Company Limited ;
respect of the house in question . R . had been Steele's case, 60 L . T . Rep . N . S. 857; 42 Ch. Div .
nominated as one of the candidates for election 160), and an applicant, who had withdrawn his
at the meeting, but the returning officer had application on the 25th Oct., had had his name
refused to accept his nomination on the ground removed from the register. This was an applica
that his name was not upon the list of electors. tion by two other applicants to whom
Held , that R . was a " tenant or occupier of a been allotted at the same meeting, on shares had
the 24th ,
dwelling-house " within the meaning of the Act ; and who claimed that they had withdrawn their
that payment of rates was not required by the applications immediately afterwards. It now
Act as a qualification as an elector; and that R . appeared that, on the 7th March 1889, & resolu
was therefore qualified as an elector, and conse tion was passed at a validly constituted meeting
quently eligible as & candidate for the office of of directors confirming the allotment. This fact
conservator. Held also, that nothing done by the
conservators could diminish R .'s right to vote as
had not been in evidence before either court in
Steele's case . Held , that this subsequent ratifica
tenant or occupier unless a power to do so was tion related back to and confirmed the allotment
conferred upon them by an Act of equal authority
with the present Act ; and that if the bye-law had
made by the two directors asunauthorised agents,
a contrary effect it was void and must be disre
and the 'sapplicants
Badman must retain their shares.
case the instalments payable In
on allot
garded . (Purves v. The Wimbledon and Putney ment had not been paid . The company had com
Commons Conservators.) ... ... ... ... ... ... 529 menced an action in the Queen 's Bench Division
Oct. 18, 1890.) THE LAW TIMES. [Inder - li
SUBJECTS OF CASES.
to recover them ,and applied for judgment under When a duty incumbent on the directors has not
Order XIV .paying
Leave1001.
wasinto
givencourt.
to Badman to de been performed , the burden of proving crass negli
fend upon He made de gence is on those who allege that conclusion ; but
fault, and leave to sign judgment against him where the facts establish crass negligence, but at
was given on the 17th Jan . Judgment was signed the same time show that it is possible or likely
early in February, and on the 9th April Badman that a satisfactory explanation ought to be forth
took out a summons to set aside the judgment, coming , the burden of proof is shifted . Directors
which was transferred and came on with the of a company (acting within their authority )
motions. Held , that the court had jurisdiction resolved that all the powers of the directors
to set aside the judgment. (Re Portuguese Con (other than to make calls ) be delegated to three
solidated Copper Mines Limited ; Badman 's case ; of the directors as a committee. The resolution
Bosanquet's case.) ... ... ... ... ... ... ...page 179 did not appoint a quorum . Held , (1) that, though
Debenture - Mortgage – Receiver - Winding-up unanimity of the committee might not be neces
Possession of assets. - By debentures a company, sary to make their acts valid , they must all be
as beneficial owner, charged with payment of the present at a meeting ; (2) that they had no power
money secured " all its present and future capital, to appoint other members of the committee,
stock , goods, chattels, and effects, and all its real either in addition to or to fill a vacancy on the
property and interest in lands, including the committee. (Re Liverpool Household Stores
amount uncalled on its shares already issued, or Association.) ... ... ... ... ... ... ... ...page 873
hereafter to be created or issued ,and also all its Dock and railway company -- Company unable to
present and future plant , machinery, pay its creditors — Scheme of arrangement -
manufactured and unmanufactured , bookstock, and Objections to, by outside creditors - Railway
other debts, goodwill and assets , and generally Companies Act 1867. - A company was authorised
all the present and future property, real and to make, and had made, a railway through the
personal, and undertaking of the company." principal part of its undertaking, which consisted
The debentures also provided that if the moneys of its docks and the works connected therewith ;
secured should become payable, or after a peti and , being unable to pay its debts, a scheme of
tion for winding-up should have been presented , arrangement between the company and its credi
or a resolution wind-up passed , the debenture tors was prepared under the Railways Companies
holders might atto their own instance, without any Act 1867. The schemewas prefaced , as required
further notice , appoint one or more persons to be by that Act, by a declaration under the sealof
a receiver or receivers of the property charged by the company that it was unable to pay its debts,
the debentures in likemanner in every respect as and contained various provisions designed to
if they were mortgages within the meaning of the enable it to ultimately discharge its obligations.
Conveyancing and Lawunder
of Property Contractors who had constructed certain docks
bad become entitled that ActActto1881, and
exercise for the company, and who claimed to be creditors
of the company for a large amount, but who held
the power of sale thereby conferred, and such re no security for their debt, opposed the confirma
ceiver should have power to take possession of the tion of the scheme. Other unsecured creditors
property, to carry on the business of the company, likewise opposed . Held, that the scheme was a
to sell any part of the property,
name of the company . On the 4thandMayto use the
1889 a reasonable and honest one, and that as the scheme
did not in any way exceed the powers afforded by
winding-up order was made, and an official liqui. the statute, nor deprive the creditors of any legal
dator was appointed. On the8th April (but after rights which they possessed, but was likely to
presentation of the petition payment.
debenture-holders demanded to wind-up) the benefit all persons concerned , the secured and the
On the
10th May the debenture -holders appointed a unsecured creditors as well as the shareholders,
receiver of the property of the company. On a no sufficient objections to it had been established ,
summons by the debenture-holders, asking that, and that therefore the scheme ought to be con
notwithstanding the appointment firmed . (Re The East and West India Dock Co.) 239
liquidator, the receiver might be atofliberty
an official
forth First directorB- Appointment of Appointment in
with to take possession of the property of the writing not signed at a meeting of subscribers
company, Kay, J.
and in the exerciseheld that he had a
of that discretion discretion
refused to
, Allotment of shares — Validity of- No minute of
allotment. — The company was formed under
make the order asked , but appointed the official Table A . to the Companies Act 1862, art. 52 of
liquidator to bereceiver on behalfofthe debenture which provides that the number of the directors,
holders, and the proceedings
to attend all gave leave to theindebenture-holders and the names of the first directors, shall be
the winding-up : determined by the subscribers of thememorandum
(61 L . T. Rep . N . 8 . 207.) Held , on appeal, that of association . The subscribers of the memo
although the winding-up prevented the receiver randum , by a document in writing signed by them
from doing various things which he was autho all , appointed four persons to act as directors.
rised to do by the debenture deed --for instance, That document was not signed at any meeting of
carrying on the business, or making a call - the
order of Kay , J . must be discharged , and an
the subscribers. Held, that the subscribers were
order made authorising the receiver to take pos not under any obligation to meet for the purpose
session forthwith of all the real and personal of signifying their determination as to the appoint
ment of directors, and the appointment was valid .
property of the company, but without prejudice K ., who owned shares in the company, in respect
to any question as to his powers other
powers to take possession and sell. (Rethan the
Henry of wbich hewas held to be a contributory, applied
for further shares, and received a letter of allot
Pound , Son, and Hutchins Limited.) ... ... ... 137 ment. The transaction appeared in the allotment
Directors - Misfeasance - Nonfeasance-- Crass negli. book of the company, but there was no record of
gence- Burden of proof- Committee of directors any board meeting having been held at the date of
- Quorum - Summons by liquidator.-- The sum the allotment, the minutes having then ceased to
mary process ander sect. 165 of the Companies be kept. K . disputed the validity of the allot
Act 1862 is not limited to acts partaking of a ment. Held , that, K . being a contributory , the
criminal character, but applies to every case in entry in the allotment book was prima facie evi.
which misfeasance by the directors can be estab dence against him of the allotment, under sect.
lighed . Misfeasance includes such nonfeasance 154 of the Companies Act ; tbat the entry of a
as is negligence amounting to a breach of trust. resolution in a minute was not essential to the
Liability for negligence cannot it is imputed validity of the resolution if it could be proved
directors under this section unless be to
crass negli. aliunde, and the burden of showing that no valid
allotment was made fell upon K . (Re Great
gence resulting in loss. To constitute crass negli . Northern Salt and Chemical Works Company
gence, there must be, first, a plain duty to do or Limited.) ... ... ... ... ... ... ... ... ... ... 231
abstain particular
from ora such
abstention action thing ; secondly, such
as the court would be
justified in holding to be mischievous or reckless .
Foreign lottery – Illegal contract - Prospectus -
Injunction - Lotteries Acts (9 Geo. 1, c. 19, s. 4 ;
li - Index.] THE LAW TIMES. [Oct, 18, 1890.
SUBJECTS OF CASES.
6 & 7 Will. 4 , c . 66). - A company entered into a con being formed for the purpose of life assurance
tract for the purchase of a concession granted by business, made the deposit of 20,0001, required by
the Shah of Persia for the sole and exclusive the Act of 1870 . Subsequently the B . Company
right and privilege of initiating and conducting entered into an agreement for amalgamation with
throughout the Persian Empire all operations the M . Company. The amount of policies for
which the B . Company was liable was 260 ,000t.,
relating to lottery loans. The prospectus which
had been issued by the company and advertised in and this liability was taken over by the M . Com
the newspapers, stated that the company was pany. The B . Company, which was in liquidation ,
formed to acquire and work concessions granted had not entitled themselves to receive the deposit
by the Shah for lottery loans. It then referred to out of court , as they had not accumulated 40,0001.
to the acquisition of the concession which had The M . Company had accumulated 100,0001. The
been granted by the Shah , and stated that the policy .holders in the B . Company , except four ,
head-quarters of the system would be in Persia , had agreed to accept the liability of the M . Com
but the company would not be limited to that pany as if their policies had been originally issued
country in the field of its operations, for it was by that company, and a memorandum to that effect
intended that the company should be represented had been indorsed upon their respective policies.
Thememorandum , however , did not in terms
by agents in the chief cities of Eastern Europe for
the purpose of obtaining subscriptions, and that tain any abandonment by the policy-holdersconof
at least five issues had to be made annually in their rights against the B . Company under sect. 7
Persia with minimum drawings of 10,0001., and of the Act of 1872. On petition by M . Company ,
it was estimated that these operations would B . Company, and the liquidators of B . Company
return continuously increasing dividends. In an for payment out of the 20,0001. to M . Company :
action brought by a shareholder in the company Held , that before the 20,0001, could be so paid,
on behalf of himself and the other shareholders theremust be an accumulation of 40 ,0001., which
might now bemade out ofany or all of the policies
against the company and the directors for an in of M . Company, in addition to the fund set apart
junction restraining the company from acquiring to answerthe liability or M . Conipany in respect of
or dealing with the concession and from adver their policies existing previously to the amalga
tising any such prospectus : Held , that the con. mation. (Ex parte The Scottish Economic Life
tract to acquire the concession was not illegal Assurance Society Limited.) ... ... . . ...page 926
within sect. 4 of 9 Geo . 1, c. 19, and that the Meeting of directors - Directors absent abroad
issuing of the prospectus was not an advertise
ment or notice of a foreign or other illegallottery Notice of meeting to. - The articles of association
within 6 & 7 Will. 4 , c. 66 , and action dismissed of a company provided that the number of the
with costs. (Macnee ....v. The Persian Investment directors should not be less than three ; that the
Corporation Limited.)... ...... ... ... ... ...page 894 continuing directors might act, notwithstanding
any vacancies in their body, ae long as there
Gener al meeting - Notice ofresolution - Validity of remained three directors qualified to act ; that the
notice - Amendment to resolution - Decision of office of a director should be vacated if he should
chairman - Waiver. - By the provisions of the deed absent himself from the meetings of the directors
• of settlement of a bank, notice of any extraordi during the three calendar months without special
nary general meeting had to be advertised at
twenty-one days before the holding of such meet.
least leave of absence from the directors. Of the four
ing , and the objects for holding the meeting had directors of the company , two, D . and R ., were
both absent at the same time. D . was resident in
to be specified . Notice of an extraordinary general Nova Scotia , and was appointed a director to
meeting for the 4th April 1889 was advertised by secure his influence there , and was charged with
the directors of the bank on the 7th March 1889, duties for the performance of which residence
stating that a special resolution would be pro there was essential. R . was travelling abroad,
posed for altering the deed of settlement of the and it was not known where he was. Held , that
bank in the following particulars : “ To alter the during such absence of D . and R . it was not
scale of voting by giving to every qualified pro essential for the validity of every board meeting
prietor one vote for every share held by him or that notice of the meeting should be sent to them ,
her. On the 1st April 1889 the directors issued and the other two directors were entitled to act
a circular to the proprietors stating that the full as a board to bind the company. (The Halifax
resolution to be proposed would be, “ That every
proprietor shall Sugar Refining Company v.Francklyn.) ... ... ...
provided that nohave one vote for every share ,
proprietor shall be entitled to
vote at any generalmeeting in respect of any share Mortgage of uncalled capital- Power to mortgage
unless registered as holder of sach share for at in memorandum and articles of association
Winding-up – Calls in winding-up - Unsecured
least six calendar wonths prior to such general creditors - Priority . - Where thememorandum and
meeting.” The plaintiff, a proprietor, attended
the meeting and made a speech objecting
articles of association of a company authorise the
to the mortgage of uncalled capital, such a mortgage is
disqualification of a shareholderby the resolution valid , even if the company is afterwards wound -up.
unless some words could be added with reference and the mortgagees are entitled to be paid in ful
to the qualification of a director, and intimated in priority to the unsecured creditors. Such a
that he proposed to move an amendment, but the mortgage of uncalled capital is valid although the
chairman ruled that the resolution as it stood mortgagee is a shareholder,provided it is a general
must be either accepted or rejected, and the
plaintiff then said he would move the rejection of
charge on unpaid calls. The calls made by a
the resolution . The plaintiff did not put before liquidator on theshareholders of a limited com
the chairman either orally or in writing the pany which is being wound -up are calls of unpaid
capital, and are not calls of money payable under
terms of his proposed amendment. The resolu a fresh liability imposed by the Companies Acts as
tion was put and carried , and was confirmed at a a consequence of the winding -up. (Re Pyle Works
subsequent meeting. The plaintiff then brought Limited .) ... ... ... ... ... ... ... ... ... 226 , 887
an action against the bank for a declaratiou that
the on was invalid , on the grounds that it Purchase of land - Incumbrances created after pur
was not covered by the notice convening the chase money paid into court - Payment out of
meeting, and also that his amendmentwas not put court - Costs - Lands Clauses Consolidation Act
to the meeting. Held , that the notice was valid , 1845, s. 80 . - After payment into court by a corpo
and that as the plaintiff had nct challenged the ration of the purchase money of land belonging
ruling of the chairman he must be taken to have tothe a remaindermen
tenant for life and remaindermen , two of
waived any irregularity in the chairman's ruling, mortgaged their reversionary
and action dismissed with costs. (Herderson v . interests in the fund. Upon the death of the
Bank of Australasia .) ... ... ... ... ... ... ... 869 tonant for life someof the remaindermen (includ .
ing those who had mortgaged their interests)
Insurance – Deposit – Amalgamation - The Life
Assurance Companies Act 1870 — The Life Assur
presented a petition for the payment out of the
fund. The petition wasserved on themortgagees.
ance Companies Act 1872. - The B . Company , upon The mortgagee of one share appeared by the same
Oct. 18, 1890 .] THE LAW TIMES. [Index - liii
SUBJECTS OF CASES.
counsel as the petitioner. The mortgagee of the Consumers Association Limited ; Wainwright's
other share appeared separately. Held , that the case.) ... ... ... ... ... ... ... ... ... ...page 30
corporation must pay the costs of the appearance Shares issued asfully paid - Registration ofcontract
of the mortgagee who appeared separately (but - Contract executed by company only - Companies
such costs not to exceed 428.), and also the costs of Act 1867. - An agreement purporting to be made
serving themortgagees. (Re Olive's Trusts.) page 626 between a company and certain personsmentioned
Redaction of capital- Confirmation by court - Calls in the schedule thereto , by which the company
unpaid on some shares-- Forms of minute for agreed to issue to those persons certain shares as
registration . - Form of minute for registration fully paid , was executed by the company only and
approved by the court on the confirmation of a filed with the Registrar of Joint Stock Companies,
special resolution for the reduction of the capital
of a company in a case in which calls on some of
Held, that the agreement waa not " a contract
dulymade in writing ” within sect. 25 of the Com .
the shares are ..in arrear. (Re American Pastoral 5 panies
Limited Act
Company.)... .: 62
1867. (Re New Eberhardt Company
; Ex parte Menzies.) ... ... ... ... ... 301
- Reducing part only - Companies Acts 1867 and WINDING -UP.
1877 . - There is nothing in the Companies Act 1867
which presents a company reducing some of its Allotment of shares - Repudiation - Relief after
shares without reducing the others. (Re Gatling commencement of winding -up. - In May 1889 S .
Gun Limited .) ... ... ... ... ... ... ... ... ... 312 applied for shares in a company, believing that
Register of shareholders - Co-executors - Transfer of the directors had subscribed for and would pay
shares - Notice of transfer - Estoppel. - In the case for their qualification shares in the ordinary way.
of companies governed by the Companies Clauses In June 1889 he received notice of allotment of
Act 1845 all persons entitled to shares must have the shares ; but, as S , had not paid the application
money , he being absent at the time, no certificate
their names can makein the
before they entered register of shareholders
a valid transfer of them ; of shares was sent to him . Shortly afterwards S .
and when this has been done they becomeordinary ascertained that the directors had not paid, and
shareholders ; so that one of two co -executors did not intend to pay, for the shares taken by
cannot transfer shares registered in their joint them ; that they had in fact obtained their shares
names, although described as co -executors in the for nothing, with the exception of one small sum ;
register. Application having been made to a com and that, as he said, the company was a bogas
company. S . then gave notice to the secretary
pany to register
sent a notice toa the
transfer of shares,
plaintiff the company
, whose name was that he withdrew his name from the company. A
registered as holder of the shares. As shemade few days later S. received a letter from the secre
no reply, they registered the transfer. Held , tary informing him that the affairs of the com
that she was not estopped from claiming her right pany had been placed on an entirely differentfoot
to have her name restored to the register . ing, but S. destroyed the letter without answer--
(Barton v. The London and North -Western Rail ing it. On a subsequent occasion the managing
way Company .) ... ... ... .. ... ... ... ... 16 + director informed S . that the directors had been
Registration – Injunction — Name calculated to advised that they could not make S . pay as a
deceive. - The defendant formed a company, to be shareholder. Accordingly S. never took any steps
called by his own namewith the addition of the to have his name removed from the register of
word Limited, for the purpose of erecting and shareholders. In Nov. 1889 an order was made
for the winding-up of the company, and S.'s name
carrying on a waxwork exhibition. The defendant was placed on the list of contributories. There
had never carried on such a business on his own upon S . applied to the court that his namemight
account. The plaintiff company carried on an be removed from such list. Held , that S.’s appli
old -established business of the same kind, and the cation could not, under the circumstances, be
proposed name of the new company was so like acceded to , his name being properly on the list of
that of the plaintiffs as to be likely to lead people contributories. (Re The Lennox Publishing Com
to confuse the two. The plaintiffs claimed an pany Limited ; E.c parte Storey.) ... ... ... ... 791
injunction to restrain the defendant from register
ing a new company with a name so closely
resembling that of the plaintiffs as to be calcu .
Directors' fees — Statement in prospectus that
lated to deceive. Held , that, although the defen
" vendor pays all expenses up to allotment” - No
allotment - Remuneration of directors by annual
dant might have carried on such a business in his salary - Winding-up of company within the year
own name, or having once established it in his own Directors not trustees for creditors of company. -
name might have transferred it to a company Thearticles of association of a company provided
with the right to use the name, yet he was not at
liberty , having never carried on such a business
that the remuneration of the directors should be
himself, to transfer the right to use his name to a
by way of annual salary . The directors issued a
prospectuswhich contained a statement that “ the
company ; and that both under the general law vendor pays all expenses up to allotment.” An
Companies
and under sect. 20 of the Act 1862 he insufficient number of applications for shares
must be restrained from registering the company having been received , no allotment was made on
under the name proposed, or any name similarly the faith of that prospectus. The directors, how .
calculated to deceive. v. Tussaud.) ... 633
Shareholder - Prospectus -(Tussaud
ever, continued to carry on the business of the
Misrepresentat ion - Con . company to the best of their ability, and issued a
tract to take shares -- Rescission - Interest on second prospectus which did not contain the state
deposit - Special damage-- Rate of interest. ment in question . Before allotment, and before
Motion on behalf of W . asking that his name the expiration of a year from the incorporation of
might be removed from the list of shareholders the company, the directors voted themselves cer
of tain sums in respect of their quarter 's salary,
beentheinduced
company. Applicant alleged that he hada 9
to apply for shares on the faith of which were applied in payment of the amounts
statement in the prospectus that certain gentle . uncalled up on months
the shares which they had agreed
men were members of the council of administra to take. Six later the company was
tion ,which statement was untrue, and that certain ordered to be wound -up . Held , (1 ) that, as no
material facts were suppressed from the pro shares were allotted on the faith of the first pro
spectus. Held , that the statement was so mate . spectus, the directors were not bound by thestate
rially untrue as to be calcnlated to deceive. Held ment contained in it ; (2) that the directors were
that wi's contract to take shares must be re, not trustees for the creditors of the company ; (3)
scinded , and the deposits repaid to him . Held . that the directors, having acted bona fide in the
that W . was entitled to interest on the deposits interests of the company, were entitled to vote
paid by him from the date of such payment. Held , themselves remuneration before the expiration of
that the court was not bound by a hard -and-fast the year. (Re A . M . Wood 's Ships' Woodite Pro
rule as to the rate of interest, and that, having tection Company Limited.)... ... ... ... . . ... 760
regard to the present mercantile rate of interest, | Examination of witness — Pending action --Com
4 per cent, was sufficient. (Re Metropolitan Coal panies Act 1862. - The liquidator of a company
liv - Index.] THE LAW TIMES. [Oct. 18, 1890 .
SUBJECTS OF CASES.
which is in course of being wound-up is entitled , holding 605 shares opposed the petition . Held ,
under sect. 115 of the Companies Act 1862, to that the court had jurisdiction to wind-up the
examine an officer of the company or other person company. Held also, that the substratum of the
whether before or afterexamination
action brought, and not company was gone, and there must be the usual
withstanding that such is made deli winding-ap order. (Re The Bristol Joint Stock2 745
berately with a view to assisting proceedings Bank Limited .) ... ... ... ... ... ... ...page 7
brought or intended to be brought against the Sheriff - Execution put in force after commence
company , and even although the officer of the ment of winding-up - Theatre - Money taken for
company or other person may be a party to those entrance. - On the 16th Jan . 1890 the sheriff of
proceedings. (Re North Australian Territory London , ander a writ of fi. fa .,seized goods valued
Company Limited.) ... ... ... ... ... ...page 556 at 15001. of The Opera Limited , at the theatre .
Examination of witness - Scheme of arrangement On the 18th Jan, two petitions were presented to
- Sanction of court
holders to surrender- Power to compel debenture
security - Joint Stock Com . wind -up the company, and on the 5th Feb . &
winding-up order was made. On the 8th Feb .
panies Arrangement Act 1870.-- The court has the sheriff was ordered to withdraw ; he had not
jurisdiction under sect. 2 of the Joint Stock Com . sold the goods, but on withdrawing gave them up
panies Arrangement Act 1870 to compel secured
creditors of a company to surrender their security to the liquidator. These goods were claimed by
and to accept shares in lieu thereof. Debenture
the debenture-holders. The sheriff since the
holders are “ creditors ” within the meaning of presentation of these petitions had received
sect. 2 of the Act. (Re The Empire Mining Co.)... 493 14951. 58. 6d ., moneys paid at the doors of the
theatre by the public, and out of these moneys
Liquidation - Transfer or sale to new company , he had paid the creditor, under whose writ he
Dissentient shareholder — Neglecting to take had seized the goods, a sum of 6811. to satisfy his
shares within timespecified by resolutions - Effect judgment. On summons by the liquidator asking
of subsequent agreement- - Ultra vires. (Weston that the sheriff mightbe ordered to pay over the
v. The New Guston Company.) ... . ... ... ... 275 moneys received by him at the door of the theatre
Proof - Claim for salary - Competition with outside to the liquidator : Held , that the execution as to
creditors - Money due in character of member the money paid for entrance to the theatre was
Managing director. – The business of D . and P. not put in force until after the commencement of
was sold to a company, and an agreement was thewinding -up, and was void under sect. 163of the
Companies Act 1862: That the sheriff must pay
entered into whereby Ď . and P. were appointed over the whole of the moneys so received by him
managing directors for a term of ten years, each
at a salary of 3001. per annum . By the constitu to the liquidator, less 201. already paid. The
tion of the company directors were required to be order to be without prejudice to the right (if any)
shareholders. In the winding-up of the company of the sheriff against the goodswhich be seized
before the commencement of the winding-up , and
P . claimed to prove as creditor in respect of which he gave up to the liquidator. (Re The
arrears of salary, and damages for breach of the Opera Limited.) ... ... ... ... ... ... ... ... 859
agreement. The question was whether he was
entitled to prove for them in competition with the Suspending its business — Just and equitable. - A
other creditors. Held, that the character
were not debts due to P . in his sums claimed limited company was incorporated under the name
of the Mid -Northamptonshire Bank Limited . The
of
member, and that he was entitled to prove for memorandum of association stated the objects of
them in competition with the other creditors. the company to be carrying on of the business of
(Re Dale and Plant Limited.) ... ... ... ... ... 215 bankers in all its branches, with all incidental
Resolution for voluntary winding-up passed after matters and things connected therewith , and,
presentation of petition - Supervision order after
powersgiving the company
and authorising all usual
the doing incidental
everything con
Amendment of petition - Re-advertisement
a company has -passed
Com nected with the business of bankers or financial
panies Act 1862. — Where agents, added : “ The carrying on of any other
resolutions to petition
wind-up voluntarily after the pre business which may seem to the bank capable of
sentation of a for a compulsory winding being conveniently carried on in connection with
up, but before the same comes on for hearing,and the above, or calculated to enhance the value of
ajurisdiction
supervisionto order is granted , the court has
dispenge with the amendment of or render profitable any of the bank's property
the petition by stating the resolutions to wind-up or rights." In April 1888 the company issued a
voluntarily, prospectus which described the business as that
The court willandexercise
also with re-advertisements.
this jurisdiction where of a local bank in Northamptonshire, and did not
mention any other business. A certain amount of
the resolutions to wind-up voluntarily appear in capital was subscribed , and a small banking
the affidavits filed in support of the petition. (Re business carried on at Rushden . Northampton
The Marine and General Land, Building , and shire , from May 1888 to the end of the year, but
Investment Company Limited.) ... ... ... ... 723 this was not successful. In Jan. 1889 the directors
Shareholder's petition -- Substratum - Impossibility
of carrying on business - Reserve capital. - This
issued a notice to the shareholders that, though
the intention of the founders was to establish a
was a petition by a shareholder asking for the
the winding-up of the company on the ground
local bank , the directors had decided to put the
bank on a wider basis, so as to be able to carry on
that the bank was an absolute failure , that its business anywhere. With this object they pro
substratum wasgone,and thatit was impossible to posed and carried a special resolution changing
resuscitate it. The bank was originally registered the name of the company to the “ Crown Bank
without articles, and with a share capitalof 20001., Limited ; ” about the same time the premises at
but articles were subsequently adopted, and the Rushden were given up, and the business removed
nominal capitalwas increased by the addition of toremoval
offices the
on acompany
third floor in Cheapside. After its
998,0001. in 101. shares. Only 2400 shares were never carried on any bank
issued . By the articles not more than 5l. per ing business proper, but engaged in speculations
on the Stock Exchange, in some speculative par
sbare was to be called up except in accordance
with the Companies Act 1879 ; that is, only “ in chases of land, and in some business connected
the event of and for the purposes of the company with floating & company in South Africa . This
being wound-up.” The company had been in petition was presented on the 29th March 1890 , by
existence for six years, and from the last balance & shareholder, for the winding-up of the company
sheet it appeared that all the paid -up capital of on the grounds that the company was carried on
the company except about 3371. had been ex under false pretences ; that it had ceased to
hausted. The company had never made any pro carry on its business; and that it was insolvent.
fits so as to be able to declare a dividend, and The petitioner had applied for and been allotted
the shares had been sold at a nominal price. The twenty 101. shares relying on the prospectus.
petitioner and shareholders supporting him held Held , that the requirements of the Companies
1128 shares. The company and shareholders Act that the memorandum of association shall
Oct. 18, 1890.] THE LAW TIMES. . [Index - lv
SUBJECTS OF CASES.
state the objects of the company, is not satisfied tionate number of shares in the new company,
provided he applied for the same within ten days
by a mere general statement that the objects shall after the receipt of notice requiring him so to
be
of such
the asthe company; thinks
shareholders to be for the
that therefore benefit
the wide apply . In accordance with the resolution a new
powers given by the memorandum in this case company was incorporated , a contract for the
must be construed as being subsidiary to carry transfer of the assets was entered into , and a
ing on thebusiness of bankers ; that the company circular was issued by theliquidator to the mem
could not legitimately carry on any other business bers of the old company informing them of the
than banking , and as it has ceased to carry on time within which application for shares in the
that business it was just and equitable that the new company must be made. The plaintiff, who
company should be wound-up. Where a company was a shareholder in the old company, sent in his
which is carrying on or can carry on its proper application for shares somemonths after the time
business engages in business ultra vires, the limited had elapsed . Held , that there was power
proper remedy is an injunction to restrain the under sect. 161 of the Companies Act 1862 to fix a
directors from using the capital of the company reasonable time for the exercise of the option to
in such illegitimate business ; but where the com take shares in the new company ; that the time
fixed by the resolutions was reasonable, and that
pany cannot or does not carry on any legiti
mate business, and engages in business which the plaintiff, not having applied within that time,
it has no power to carry on , a shareholder is was not entitled to have shares in the new com
entitled to a winding-up order. Before the pany allotted to him . (Postlethwaite v . Port
above order was drawn up an application was Phillip and Colonial Gold Mining Company
made by the shareholders who had opposed Limited.) ... ... ... .. ... ... ... ... ...page 60
the petition, that the order should be varied Voluntary winding-up - Transferor sale ofbusiness
by dismissing the petition , the applicants Specialresolution - Dissentientmember - Notice of
having agreed to take a transfer of the shares of dissent, When to be given . - A company passed a
the petitioner and all shareholders supporting special resolution for a voluntary winding-up , and
the petition . Held , that the order not having for the sale of the business to another company .
been drawn up , the judge had jurisdiction to vary Before such special resolution had been confirmed
it, and the courtbeing satisfied that all the share in the manner required by sect. 51 of the Com
panies Act 1862 a dissentient member gave notice
holders of the company were represented and
consented, and no creditor having supported the of dissent to the secretary of the company . The
secretary was afterwards appointed liquidator,
petition ,no order was made on the petition except
that the company pay the costs. (Re The Crown when the special resolution was confirmed . The
Bank Limited.) ... ... ... ... ... ... ...page 823 notice of dissent, wherein thesecretary was styled
the “ liquidator. " was never returned to the dis .
Two creditors' petitions - Priority - Advertisement sentientmember, and no objection was made to it
- Answering petition – Where two or more until one month after the date of the meeting at
petitions are presented to the court for the wind which the special resolution was confirmed. The
ing-up of a company the order will be made upon liquidator eought to restrain thedissentientmember
the petition first presented, although the second from proceeding to arbitration . Held , that the
petition may have been the first advertised , notice of dissent was a continuing notice, and
unless the first petition be proved not to have
been presented bona fide. (Re The Building valid within sect. 161 of the Companies Act 1862,
Societies Trust Limited parte and that the liquidator's application must be
parte Pooley .) ... ... ...; Ex... ... ...Laughton ; Ex
... ... ... 360 refused . (Re The London and Westminster
Bread Company Limited .) ... ... ... ... ... ... 224 .
Two petitions - Second petition advertised first
Costs of second petition . - Two petitions were COMPENSATION .
presented for winding-up a company, the first by Land taken for railway - Compensation for sub
the company, the second by a creditor. The jacentminerals - Minerals workable at a profit
second petition was advertised before the com Evidence. - Where land is taken compulsorily for
pany's petition. It was stated at the hearing a railway or similar purpose, the fact that there
that, according to the present practice, a second is a conflict of scientific evidence as to whether
petition to wind-up a company is always set down there are minerals under such land workable at a
before the same judge as the first, and notice is profit, does not impose upon the owner the burden
given to the person presenting the petition that
petition has already been presented . Held , of proving by actual experiment the nature of the
that this new practice put an end to the grounds subjacent minerals as a condition precedent to
on which priority of advertisement has been held obtaining compensation. Where a particular
to give priority to a second petition (Re39United seam cannot be worked at a profit at the time that
Ports and General Assurance Company, L . J. the land is so taken, compensation may neverthe
146, Ch.), and that the second petition having been less be given for it, if it is likely to prove profit
be dis
persisted in after notice of the firstmust chooses able in the future. (Brown v. Commissioner for
missed with costs. If a second petitionercompany Railways.) ... ... ... ... ... ... ... ... ... 469
to proceed with his petition for fear the CONTINGENT REMAINDER .
should let a petition drop, he must do so at his
own risk . (Re Standard Portland Cement Com Possibility on a possibility — Rule against perpe
tuities - Remoteness. - By hiswill ,made the 19th
pany .)... ... ... ... ... ... ... ... ... ... ... 822
(See also Re Pyle Works Limited , page 887.) March 1870, testator devised freehold land to the
use of trustees and their heirs during the life
Voluntary liquidation - Shareholder - - Action for his daughter EmmaFrost, in trust for his daughter
calls - Right to set off debt due from company for her separate use, and after her death to the
Companies Act 1862 . - Where a limited company is
in voluntary liquidation , a shareholder, against use of any husband she might thereafter marry,
whom an action is brought by the liquidator to
and after the death of the survivor of his
daughter and her husband to the use of the
recover money due in respect of calls upon his children of his daughter as she should appoint,
shares, is not entitled to set off a debt due to him and in default of appointment to the use of the
from the company. (Hoby and Co. Limited v. children of his daughter who should be living at
Birch ) ... ... ... ... ... ... ... ... ... ... 404 the death of the survivor of his daughter and
Voluntary winding-up – Reconstruction - Sale of her husband, or who should be previously dead
assets for shares - Limit of time for taking shares leaving issue then, living, their heirs and assigns,
- A company being in voluntary liquidation , reso in equal shares as tennts in common ; but if
lations were passed for the transfer of its assets there be no such child , then to the use of such of
to a new company in consideration of shares in his song or other daughters as should be then
thenew company to be allotted to the liquidator living, or should have previously died leaving
of the old company or his nominees, each member issue then living, their heirs and assigns, as
tenants in common. The will contained a resi
of the old company being entitled to a propor.
lvi - Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
duary devise. Emma Frost survived thetestator,
and after his death married Robert Tyley , and
carry on business in the district of one of the
metropolitan courts, and the defendantshall dwell
died in 1872 without issue. Robert Tyley has or carry on business in the district of the said
since died . This was an originating summons , courts, such administration actions may be
raising the question whether the limitationsafter brought - as provided by sect. 84 - either in the
the death of the survivor of Emma Tyley and court of the district in which the plaintiff shal.
her husband were valid or not. Held , that, as shall dwell or carry on business, or in the court
the daughter might have married a person unborn of the district in which the defendant shall dwell
at the testator's death , the limitations in default or carry on business. (Reg. v. The Judge of the
of appointment after the death of the daughter Bloomsbury County Court and Cattle.) ... ...page 286
and ber husband were void for remoteness, and Jurisdiction - Claim exceeding 501. - “ Admitted set
that the lands fell into the residue and were off ” – Claim reduced below 501, by set-off not
disposed of accordingly. (Re Frost; Frost v. admitted by defendant - County Courts Act 1888 .
Frost .) ... ... ... ... ... ... ... ... ...page 25 - Sect. 57 of the County Courts Act 1888 provides
that “ where in any action the debt or demand
CONTRACT. claimed consists of a balance not exceeding 501.
after au admitted set-off of any debt or demand
Letters — Negotiation — TheNew defendant
term — Rescission
A . offered claimed or recoverable by the defendant from the
Specific performance. plaintiff, the court shall have jurisdiction to
his business for sale to the plaintiff company by try such action ." Held , that the words “ ad
letter. The plaintiffs'agent B . accepted the offer. mitted set-off ” in this section mean a set-off
A . then sent to B , a formalmemorandum of agree admitted by both parties, and that therefore the
ment for approval. B . made material altera section does not give jurisdiction to the County
tions in the memorandum . After some negotia Court to try a case where the plaintiffs
tion A . cancelled the agreement. On action by claimed in their particulars the sum of
the plaintiff company for specific performance of 561. 98. 11d ., and where they gave the defendant
the alleged agreement : Held , that, though the credit for a set-off of 141. 98. iid ., thereby reduc.
two original letters relied on would , if nothing ing the amount claimed to 421., which set-off was
else had taken place, have been sufficient evidence not admitted by the defendant. (Hubbard and
of a complete agreement, yet the plaintiffs had
themselves shown that the agreement was not another v. Goodley .) ... ... ... ... ... ... ...
complete by stipulating afterwards for an impor. Power to remit action for trial in County Court
tant additional term , which kept the wholematter - Action of contract - Claim reduced below 1001.
of purchase and sale in a state ofnegotiatioa only , by payment under Rules of Supreme Court 1883,
and that the defendant was therefore at liberty Order XIV., r. 64- County Courts Act 1888. The
to putan end to the negotiation as he did , by reduction of a claim indorsed on a writ to a sum
withdrawing his offer. Action dismissed with not exceeding 1001. by payment after action
costs. (The Bristol, Cardiff, and Swansea brought will not enable an application to be made
Aerated Bread Company Limited v. Maggs.) ... 416 for an order that the action should be tried in a
County Court, the words " reduced by payment,
COPYHOLD . an admitted set-off, or otherwise,” in sect. 65 of
Common of pasture - Lord of manor - Inclosure by the County Courts Act 1888, referring only to a
- Sufficiency of common - Modern system of sheep reduction of the claim before action . (Hodgson
farming .-- An action was brought on behalf of all V . Bell .) ... ... ... ... ... .. . . .. ... ... ... 431
1the tenants of a manor to restrain the lord from Practice - Costs of particulars - Indorsement of par.
inclosing and digging up the waste, so as to inter ticulars of claim - Signature of solicitor. - By
fere with rights of common. The tenants bad rights Order VI., r. 10, of the County Court Rules 1889,
of common appendant over the waste for sheep , the particulars of claim are required to be in
and some landowners who were not tenants had dorsed with the name of the solicitor for the
rights of common appartenant over the waste for plaintiff , otherwise the costs thereofare not to be
.sheep , such rights entitling the two classes to allowed . In the appendix to those rules, under
turn outmore sheep than the waste would carry. the head of “ Costs to be paid ," the particulars
But, judging by the average number of sheep
turned out in past years , it was improbable that are required to be " signed ” by the solicitor.
anything like the number of sheep which the Where a solicitor employed his clerk to write out
waste would carry would ever be turned out a form of particulars, including the name of the
on it. Held , that the question of sufficiency of firm , and then used lithographed copies of that
common must be decided with reference to the form : Held , that he was not entitled to recover
number of sheep the commoners were entitled to the costs of such particulars, on the ground that
turn out - not according to the average number the particulars were not signed by the solicitor .
turned out in past years ; and therefore that there (Reg. v. The Deputy Judge of the Croydon County
was insufficiency of common, and the plaintiffs Court.) ... ... ... ... ... ... ... ... ... ... 583
were entitled to have the acts diminishing tho COVENANT.
waste restrained. (Robertson v. Hartopp.) ... ... 585 Covenant against carrying on trade — " Trade of
COUNTY COUNCIL . retailer of wine, spirits, or beer ” - Sale in theatre .
- The lessee of a theatre bought a piece of ground
Election of councillors - Qualifications in two elec adjoining the theatre , and erected thereon , as an
toral divisions of one administrative county extension of the theatre , a building in order to
Right to vote in both divisions. - In elections of provide additional exits, but on each of the three
county councillors vnder the Local Government floors he put up a refreshment bar, where wine,
Act 1888, an elector, although possessing a quali. spirits, and beerwere sold. This piece of ground
fication in two electoral divisions of the same was subject to a covenant, of which he had notice,
administrative county , and duly registered under that “ the trade of an innkeeper, victualler , or
the County Electors Act 1888 in both , is not retailer of wine, spirits, or beer,” should not be
entitled to vote in more than one division. (Knill 259
carried on there. The sale of the refreshments
v . Towse .)... ... ... ... ... ... ... ... ... ... 203 was confined to frequenters of the theatre. Held ,
that the lessee was carrying on the trade of a
COUNTY COURT.
Jurisdiction - Administration action - Metropolitan
retailer of wine, spirits, and beer, and that an
injunction ought to be granted restraining him
County Court districts – County Courts Act from doing so. (Buckle v. Fredericks.)... ... ... 884
1888. — Sect. 84 of the County Courts Act Judgment- Merger - Rate of interest after judg.
ment - Mortgage security . - A . executed an instru
1888 is an exception upon sect. 75 as well
as sect. 74 of the Act, so that, notwithstand ment acknowledging the receipt from B . of an
ing the provisions of sub-sect. 3 of sect. 75, in advance of 9000 rupees , bearing interest at 18 per
actions for the administration of the assets of a cent. per annum , which amount he promised to
deceased person, where the plaintiff shall dwell or repay by monthly instalments until the whole
Oct. 18, 1890.) THE LAW TIMES. [Index - lvii
SUBJECTS OF CASES.
amount, with interest, shonld be finally liquidated , was given to support the charge except as to the
the monthly interest to be deducted from the 21st Aug ., and the charge was dismissed on the
instalment,and the balance to be applied towards ground that the offence had not been made out.
the liquidation of the principal, and he assigned Šubsequently the appellant was charged with not
on the 21st
to B , as a security & policy of insurance on his
life. He subsequently executed a similar instru
keeping the dog under proper control
proved and the
Aug. simply ; this charge was
ment on the occasion of a further advance by B ., appellantwas convicted . Held , that, as the appel
the interest being at the same rate, but in that lant was put in peril and might have been con
case the monthly instalments were not to com victed on the first hearing, the matter was res
mence until after the final liquidation of the judicata on the second hearing, and the maxim
former debt, and in the meantime he promised
to pay the monthly interest at the aforesaid per Nemo bis vexari debet applied . (Ryley, app., v.
Brown , resp .) ... ... ... ... ... ... ... . page 458 :
centage, and the policy was again charged . B . Indictment for non -repair of highway-- Liability to
had recovered judgment for the amounts due on repair ratione tenuræ - Indictment of owner of
these securities, with interest at 18 per cent. to lands charged with repair - Continuance of lia
the date of the judgment. The totalamount due bility during existence of turnpike trust - Destruc
under the judgment, with interest at 4 per cent, tion of subject-matter of liability by trustees
from the date of it,claimed
and theinterest
taxed costs, had been Liability to repair altered road . - An indictment
paid to B ., but he at 18 per cent. for the non-repair of a highway will not lie against
until payment. Held , that the covenants for the the owner of lands, the tenure of which carries
payment of interest was merely subsidiary to the with it the burden of repairing the highway, the
covenants for the payment of the principal sums, occupier of such lands being the only person
and weremerged in the judgment for the principal against whom such an indictment will lie. Where
sums,and B . was only entitled to interest at 4 per a highway becomes repairable by trustees under
cent. from the date of the judgment. (Arbuthnot a Turnpike Act the common law liability to repsir
v. Bunsilall.) ... ... ... ... ... ... ... ..page 234 such highway (whether such liability rests with
the inhabitants of the parish in which the high
CRIMINAL LAW . way is situate or with an individual ratione
Conspiracy - Combination to do unlawful act - Act tenure ) continues, in the absence of any enact
ment to the contrary , so long as the highway
not criminal if effected by prisoner alone, but
criminal if done by others - Conspiracy to pro remains similar in character to what it was up to
care abortion of a woman not with child - Crimi the time of the passing of the Turnpike Act. If,
pality of woman operated upon. - A combination however, the highway is so altered in character
of a person with other persons to commit a felony by the trustees, under the powers conferred upon
renders every one of the persons taking part in then by the turnpike Act, as to destroy what was
such combination guilty of conspiracy. A person the old highway, the common law liability is put
can therefore be convicted of conspiracy with an end to by operation of law . (Reg . v. Barker.) 578;
other persons to do an act, the doing of which Indictment for unlawful wounding - Special plea of
by such other persons amounts to a felony, not
withstanding the fact that the doingof the act by
autrefois convict - Conviction for assault before
such person alone would not have been criminal.
court of summary jurisdiction - Defendant dis
charged on recognisances for good behaviour. - A
A woman was convicted upon an indictment which person who has been convicted before a court of
charged her with conspiring with two men to pro summnry jurisdiction of an assault which in the
care her miscarriage by unlawful means. The opinion of such court was of so trifling a nature
men had previously been convicted of the felony as to render it inexpedient to inflict any punish
of administering drugs and using instruments for ment, or other than a nominal punishment, and
thc purpose of procuring the woman'smiscarriage, who has been discharged upon giving security to
who, however, was not in fact pregnant at the be of good behaviour, cannot afterwards be con
time the felony was committed . Held , that the victed upon an indictment, the charges in which
are based upon the same assault . Semble . per
woman was rightly convicted , although her acts
would not have been criminal had they been Hawkins, J., that the giving of security to be of
effected by herself alone and without the help of good behaviour was intended by sect. 16 of the
the men , inasmuch as the doing of the acts to her Summary Jurisdiction Act 1879, as a substitu
by the men constituted the felony on their part. tion for punishment, and that by giving such
(Reg . v. Whitchurch and others.) ... ... ... ... 124 security à defendant
same position is placed had
as if punishment in been
precisely the
inflicted
Cons piracy and Protection of Property Act 1875 –
“ Persistent following.” — By sect. 7 of the Con . and suffered by him . (Reg . v . Miles.) ... ... ... 572.
spiracy asd Protection of Property Act 1875 , it is Information and conviction, form of - Alternative
enacted that “ every person who,with a view to offences. - A driver of a steam tram car was prose
compelany other person abstain
to do any act which such toother from doing or
person has a legal
cuted and convicted for having permitted smoke
to escape from his engine “ contrary to the bye
right to do , or abstain from doing, wrongfully laws of the Board of Trade, made for the regu
and without legal authority . . . persistently lation oftraffic on the said company's lines.” The
follows such other persons about from place to bye-law in question provided that " no smoke or
place shall” be liable to a penalty. The respon
dent , who was on strike ,was posted ontside works
steam shall be emitted from the engines so as to
constitute any reasonable ground of complaint.
at which he had been engaged as a picket, ana to the passengers or the public " under a penalty .
when the workmen who had taken the place of Held , that the bye-law created offences in the
the strikers came out of the works silently fol alternative, and that, as the information and con
lowed the respondent at a short distance down viction did not set forth distinctly with which of
two streets. A crowd which had been waiting these alternative offences the defendant was
outside the works also followed the respondent charged , the conviction was bad . (Cotterill,
with hostile words and gestures. The justices app., v. Lempriere, resp.) ... ... ... ... ... ... 695
convicted the appellant under the above section . Justices – Jurisdiction - Illegal issue of summons
On appeal : Held , that the justices were right in
decision. (Smith , app., v . Thomasson, Appearance by accused - Objection to jurisdiction
their
resp .) ... ... ... ... ... ... ... ... ... ... ... 68
---Conviction – Limit of time. – An information
having been laid before two justices against the
Conviction - Dismissal of charge on first hearing a appellant under the Sale of Food and Drugs Acts
bar to subsequent conviction - Res judicata 1875 and 1879 with reference to the sale of a
Nemo bis vexari debet — The Dogs Act 1871. quantity of new milk upon the 20th Sept., no
The appellantwas charged with non-compliance, summons was issued by such justices, but subse
quently a summons returnable upon the 23rd Oct.
on the 21st Aug . 1889 and ten days thereafter,
with an order made by justices under sect. 2 of was issued by a justice who had not heard the
the Dogs Act 1871, requiring him to keep a information. The appellantappeared and objected -
dangerousdog under proper control. No evidence that the justices had no jurisdiction, as the.
Iviii - Index.] THE LAW TIMES. (Oct. 18, 1896.
SUBJECTS OF CASES.
summons had been illegaly issued, but the objec having been directed that there was not sufficient
tion was overruled, upon the ground that, as the evidence to support the charge contained in the
appellant had appeared , it was immaterial that first count of the indictment, acquitted the
the summons had not been properly issued . Held , defendant upon such charge, but convicted him
that thesummonswas not legally issued , and that
theappearance of the appellant before the justices
of the indecent assault charged in the second
count. In order to support the conviction for the
did not give them jurisdiction , as the Sale of Food indecent assault, the evidence was insafficient
and Drugs Act 1879, s. 10, required that the unless the evidence which had been given by the
summons should be served within twenty -eight girl was admissible. Held , that the proceedings
days from the time of the purchase of the article upon each count of the indictment were as sepa
in question , and the appeìlant had not appeared rate and distinct as if such counts had been con
antil more than twenty -eight days had expired tained in separate indictments, the one charging
since the alleged offence bad been committed . the defendant with the attempt underthe Criminal
(Dixon, app., v. Wells , resp.) ... ... ... ...page 812 with Law Amendment Act 1885 , the other charging him
Justices - Appeal from summary conviction - Recog. the indecent assault under 24 & 25 Vict. c .
nisance entered into too late - Costs of appeal 100 , s. 52 ; and that, as the first-mentioned Act
Appellant's liability for--Summary Jurisdiction only rendered the answorn evidence of the girl
Act 1879. - An appealfrom a summary conviction admissible in support of the first count of the
was dismissed with costs by the Court of Quarter indictment, it was inadmissible in support of the
Sessions on the ground that the court had no second count, and the conviction could not there
jurisdiction to entertain it, as the appellant had fore be sustained . (Reg . v. Paul.) ... ... ...page 845
not entered into a recognisance within three days Private prosecution - Charge dismissed - Prosecutor
after the day on which he gave notice of appeal, bound over - Bill preferred by prosecutor - True
as required by sect. 31, sub-sect. (3) of the
mary Jurisdiction Act 1879. On the refusal of the
Sum bill - Case undertaken by Public Prosecator
appellant to pay the costs of the appealas ordered Acquittal- Costs of defendants. - It is provided
the Court of Quarter Sessions directed that his by 30 & 31 Vict. c. 35, s. 2, that when an indict
ment is preferred under 22 & 23 Vict. c. 17 , and
recognisance should be estreated . Held , that the the person accused is acquitted , the court may
justices were right in estreating the recognisance order the prosecutor or other person by or at
on nonpayment of the costs of the appeal. (Reg . whose instance such indictment shall have been
v. The Justices of Glamorganshire.)... ... ... ... 730 preferred to pay the costs of the accused person.
Larceny - Letters in course of transmission through 42 & 43 Vict. c. 22, s. 7, enacts that, if any person
is bound
post - Inducing postman to hand over letters ad
dressed to other persons - Accessory before the for costs,over to prosecute
he shall, upon the, or Director
has given ofsecurity
Public
fact of theft by postman. - A person who without Prosecutions undertaking the case, be ofreleased
authority induces a servant of the Postmaster from such obligation, and the Director Public
General to hand over to him and so receives letters Prosecutions shall be liable to
such person. Where a person , who was bound
costs in lieu of
addressed to persons other than himself, which over to prosecute a charge under 22 & 23 Vict .
come into the possession of such servant in the c. 17 , preferred a bill of indictment and a true bill
course of their transmission through the post, is
guilty of larceny of the letters so received , either was found, the Director of Public Prosecutions
at common law as a principal in the commission of undertook the case , and the accused were ac
the larceny by the servant, or, under 24 & 25 quitted . An order was made that the Director of
Vict. c. 94 , s. 1, as an accessory before the fact of Public Prosecutions should pay the costs of the
such larceny. (Reg . v. James.) ...rse to ... 578 persons acquitted . Held , that the order was
- Obtainingdropping
money several Pu trick -
:-- Purse
by trickshillings bad . (Stubbs v. The Director of Public Prose
cutions.) ... ... ... ... ... ... ... ... ... ... 399
Pretence of into purse
- Shilling obtained in exchange for purse and its
contents. - In support of an indictment for the DAMAGES .
larceny of three shillings and sixpence it was Wrongful detention of goods — Damages for being
proved that the prisoner had obtained possession keptout of possession - Measure of damages - Lord
of a shilling, and then of a half-crown , from the Cairns' Act (21 & 22 Vict. c. 27), s. 2 – Jurisdiction
prosecutor bymeans of what is known as the purse - Threatened injury. — The plaintiffs commenced
trick. That is to say, he had induced the prose an action against the defendants claiming delivery
cator to give him a shilling for a purse, into of certain cargoes of guano (then on their way to
which he had dropped three coins, by first show this country ),and an injunction to restrain the de
ing the prosecutor three shillings, and then making fendants from dealing with such cargoes. The de
it appear as if he had dropped them into the fendants denied the title of the plaintiffs to the
purse. In the sameway he had induced the prose cargoes. An order wasmade by consent for the
cutor to give him a half-crown for a purse into
which he had made it appear that he had dropped appointment of a receiver, and the defendants
two half-crowns. Having been convicted of were allowed to remain in possession of the
obtaining the money by means of a trick , upon a cargoes, without prejudice to any question, on an
case reserved for the opinion of this court : Held, undertaking to keep accounts and to abide by
any order the court might make. The statement
that the prosecutor having parted with the pro of claim was subsequently amended by claimiag
perty in his shilling and half-crown in exchange
for the purses and their contents, the prisoner damages for detention of the cargoes. At the
had been guilty, if at all,of obtaining the coins by trial of the action judgment was given in favour
means of a false pretence, and could not be con of the plaintiffs, declaring them to be entitled to
victed of larceny. (Reg . v. Solomons.) ... ... ... 672 the cargoes ; and that the defendants were not
Practice - Indictment under Criminal Law Amend entitled to be reimbursed certain expenses in
curred by them in respect of the cargoes ; and
ment Act 1885 for attempting to defile girl under
thirteen , and under directing an inquiry what damages had been
24 & 25 Vict. c . 100 , for an sustained by the plaintiffs by reason of the deten
indecent assault - Conviction for indecent assault tion by thedefendants of the cargoes. The defen
- Admiseibility of answorn testimony of girl to dants appealed from this judgment, claiming to
support conviction .- Upon the trial of an indict be reimbursed for expenses incurred by them in
ment, the first count of which charged the defen respect of the cargoes received under the consent
dant, under sect. 4 of the Criminal Law Amend. order. The appeal was dismissed , but on appeal
ment Act 1885 , with attempting to have unlawful to the House of Lords the judgment was varied
carnal knowledge of a girl under the age of by allowing the claim to expenses, but no appli
thirteen years ; and the second count of which cation was made to alter the terms of the inquiry .
charged him , under 24 & 25 Vict. c. 100 , s. 52 , The chief clerk by his certificate awarded a sum
with an indecent assault on the girl, her evidence as damages on the footing that there had been
was admitted in support of both charges, although a wrongful detention of all cargoes commencing
it had not been given upon oath . The jury on their arrival in this country . The defendants
Oct. 18, 1890.) THE LAW TIMES. [Index - lix
SUBJECTS OP CASES.
applied to have thecertificate varied ,on the ground malice, ordered the plaintiff's name to be removed
that the effect of the decision of the House of from the register upon the ground that his
Lords was that there had been no wrongful de diploma had been withdrawn by the Royal College
tention, and that the plaintiffs were entitled to of Surgeons, Dublin , for breach of an undertaking
nominal damages only . Held , that the inquiry given by him not to advertise in connection with
directed affirmed that there had been an unlawful his profession . No opportunity was given to
detention by the defendant company of the eleven him to show cause why his name should not
cargoes in question which gave rise to damages ; be removed , and he obtained a mandamus directe
that the inquiry could not be satisfied by finding ing the defendants to restore his name to
merely nominal damages ; that it was not compe the register. Held , that the defendants, having
tentto the court in working out the inquiry , not acted without malice, were not liable, inasmuch
reversed by any court, to deprive it of all meaning as they intended to exercise their powers under
by reviewing the circumstances under which it the Act, which were of a judicial nature. (Part
was made ; that the inquiry was not affected by ridge v. GeneralCouncil ofMedical Education and
the decision of the House of Lords, and the cer Registration of the United Kingdom .) ... ...page 787
tificate was right. (Dreyfus and Co. v. The
Peruvian Guano Company.) ... ... ... ...page 518 DISCOVERY.
Patent – Infringement - Underselling - Redac
tion of prices. The plaintiffs had obtained an Agreement for lease - Specific performance - Pro
injunction against the defendants to restrain duction of lessor's title -- Easement - Vendor
the infringement of their patent with a reference and Purchaser Act 1874 . - The owners in fee
to ascertain damages. The officialreferee found of freehold land commenced an action for the
as facts : (1) that the plaintiffs had reduced their specific performance of an agreement by the de
prices of the patented articles in consequence of fendant to accept a lease of the land for a term of
years . The agreement contained (inter alia )
the wrongful competition of the defendants, who
were onderselling them , and in order to save them . stipulations for the free use by the defendant of a
(2) certain “ drive " as a means of access to the
selves from being driven out of the market ; the estate. By his defence the defendantdenied that
that but for the competition of the defendants the plaintiffs had any power to demise the land,
plaintiffs would (subject to a reasonable deduction and alleged that it was subject to restrictive cove
on account of the probable increase of sales by nants . Held . that, by virtue of sect. 2 of the
the lowering of prices and the connection and Vendor and Purchaser Act 1874 , the defendant
industry of the defendants) have sold at their
original prices all the articles wrongfully sold by was not entitled to discovery and production
the defendantsaswellas thosesold by their themselves. from the plaintiffs of the documents in their pos
The plaintiffsof had never reduced , thatprices session relating to the freehold title, though , if he
below those the defendants. Held the had raised specifically any particular objeetion to
plaintiffs wereas entitled by way damages
ofmade to all the title,he might have had discovery of the docu .
such profits they would have (subject to ments bearing upon that point. Held also, that
such dednctions as aforesaid ) if all the sales made the contract as to the “ drive ” was a contract to
by the plaintiffs and defendants had been made granta lease of Irnd, and that therefore the plain
by the plaintiffs alone at the original prices tiffs were protected from production of their title
charged by them previously to the reduction of thereto by the Vendor and Purchaser Act
1874, s. 2. (Jones v. Watts.) ... ... ... ... ... 472
prices. (American Braided Wire Company v. 616 Interrogatories
Thomson and Co.) ... ... ... ... ... ... ... ... - Corporation - Order to administer
interrogatories to town clerk of- Town clerk Soli
DECEIT. citor of corporation - Answer by town clerk
(See ACTION FOR.) Privilege. - Interrogatories delivered in an action
₂/₂₂?₂?Â₂₂ ₂₂ņēti₂m₂ņēmē►ņģētiņģēti₂?Â₂ Ò₂Â§Â§Â₂Ò₂ÂòÂ₂ âÒâÒÂ???₂?Â₂â?
DEED . “ for the examination of S . B . the town clerk of
Construction - Conveyance_ of “ exclusive use of the above-named plaintiffs," were answered by the
gateway ” — Easement.- By lease and release, exe town clerk , who objected to give the information
cated infreehold
1839, Mground,
. and others conveyed thereon
to w . a, sought for, on the ground that the whole of the
pieceof with a messuage information which he or the plaintiffs possessed
adjoining a covered gateway, “ together with had been obtained by him as solicitor for theplain
the exclusive ase of the said gateway.” The tiffs in that action, and was therefore privileged .
dimensions of the gateway or passage, as to length , Held , that the information was(The privileged , and
breadth , and height, were mentioned in the deed ; that the answer was sufficient.
of Salford v . Lever.) ... ... ... ... .
Mayor, & c., 434
and the said " piece of ground and premises ” Infant's liability to answer - Rules of
were stated to be more particularly delineated by Supreme Court 1883, Order XVI., r. 16 , 21 ;
the portion in the plan thereto , and coloured Order XXXI., r. 1. - An infant, whether he appears
pink. The covered gateway was not coloured on as plaintiff or defendant in an action , cannot be
the phan. Held , that the conveyance to W . did not compelled
merely confer on W . and his successors in title a
right of way through the covered gateway , but Collins.) ...to ...answer
... interrogatories.
. . (Mayor v. 326
enabled them to use the gateway for all purposes . - Libel — Payment into court - Issue as to
Semble, the conveyance to W . passed the owner damages - Negligence of defendants. - In an action
ship of the gateway, and not merely an easement. for libelagainst a newspaper, where the only issue
(Reilly v. Bootb .) ... ... ... ... ... ... ... ... 378 isis entitled
the amount of damages to which the plaintiff
, the court will not allow interrogatories
to be administered to the defendants with the
DENTISTS ACT 1878.
Dentists register – General council — Wrongful
object of eliciting that the defendants published
the libel negligently. (Parnell v. Walter and 75
another
- Penal.) action
.... ...- Action
.... . by
. ....landlord for double
erasure of name from register - Action for
damages for removing name - Judicial or minis
terial functionsdamages
- Malice. - The plaintiff sued the value for fraudulent removal under 11 Geo . 2 ,
defendants for for wrongfully removing c. 19, 8. 3 - Right of plaintiff to administer
his name from the register of dentists kept under interrogatories- Order XXXI., r. 1. - An action
the Dentists Act 1878 . By the provisions of that brought by a landlord under sect. 3 of 11 Geo. 2,
Act theregister is to be keptby the registrar, who
is bound to conform to any special directions
c. 19, to recover double value, against a tenant
given by the defendants, and power is also given
for fraudulently removing goods, and against
others for wilfully and knowingly assisting the
to thedefendants to erase from the register the tenant in such fraudulent removal, for thepurpose
nameof any dentist who has been guilty of dis of avoiding a distress , is a penal action , and the
graceful conduct in a professional respect. The plaintiff is not entitled to administer interroga
defendants, intending to act under the powers tories to the defendants. (Hobbs and Co . Limited
conferred upon them by the Act, and without v. Hudson and Co.)... ... ... ... ... ... ... ... 764
Ix - Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
Interrogatories - Security for costs - Deposit - Dis riage, found that his wife's statements as to the
cretion of judge to dispense with . - Under rules 25 alleged bigamous marriage were false, and that
and 26 of Orderdispense
discretion XXXI., the courtdeposit
or a judge has a
required she had, in fact, been guilty of pre-marital incon
to with the tinence , and was in an advanced state of preg
by those rules to be given, as security for costs,
by the party seeking discovery by interrogatories
nancy. Still believing, however, that her former
statements, as to her being possessed of private
or otherwise. (Newman v . London and South means, were true, thepetitioner told her to go to
Western Railway Company.) ... ... ... ...page 290 her friends, and he never contributed to her sap
Production of documents – Agreement to grant port,
years,and did not see her again for about seven
a lease — Specific performance - Vendor and being mostof that time on service. During
Purchaser Act 1874 . – The owners in fee of that time the respondent committed adultery.
a freehold estate commenced an action for the Held , that the petitioner's conduct did not disen
specific performance of an agreement by the title him to relief. (Kennedy v. Kennedy and
defendant to accept a lease of the estate for a Schurch .) ... ... ... ... ... ... ... ... ... page 705
term of years. The agreement provided (inter Collusion - Withholding material facts - Rescission
alia ) that the plaintiffs should enter into a cove of decree nisi-- Divorce and Matrimonial Causes
nant for the free use by the defendant of a certain Act 1857. - Upon the intervention of the Queen 's
“ drive ” as a meansof access to the estate . Held , Proctor in a case where a decree nisi for disso
that, by virtue of sect. 2 of the Vendor and Pur lution of marriage has been pronounced on the
chaser Act 1874 . the defendant was not entitled wife's petition, it is not necessary , in order to
discovery from the plaintiffs of the documents in deprive her of her right to a decree absolute, to
their possession relating to their freehold title. prove that she has been guilty of a matrimonial
Held also , that, as the covenant contained in the offence ; for, by virtue of sects. 30 and 31 of the
agreement was not “ a covenant to grant or Matrimonial Causes Act 1857 the wife may be
assign a term of years," sect. 2 of the Vendor deprived of her right to a dissolution of marriage
and Purchaser Act did not apply , and that conse if there has been a withholding of material facts
quently the plaintiffsmust produce the documents through collasion , although nomatrimonialoffence
in their possession relating to their right to grant is proved. (Butler v. Butler. Butler v . Butler
the use of “ the drive.” (Jones v. Watts.) ... ... 58 and Burnbam .) ... ... ... ... ... ... ... ... 344
Co-respondent - Measure of damages. - A claim for
DIVORCE . damages in a divorce case is founded upon the
Adulterer named in petition - Confessions as to hypothesis that the husband has suffered injury
illegitimate child by wife, and diary in her hand by being deprived of his wife's society throngh
writing, only evidence as to the alleged adulterer the wrongful act of the co-respondent. In order
to award any damages it is necessary to find . ( 1)
Where
dispensewaswithobtainable
-- Motionno toevidence .
- Orderthe
citation against that the husband has in fact been damnified, (2 )
man whom the respondent had indicated as the that such damage has been brought about by the
father of one of her illegitimate children , and who wrongful act of the co -respondent, without any
was believed to be in America , the Court gave the fault on the part of the husband. It is no part of
petitioner leave to proceed without citing the the functions of the jury to punish the adulterer
alleged adulterer as a co -respondent. (Bagot v. for his immorality. Their sole duty is to compen
sate the husband for the injury (if any) which he
Bagot.) ... ... ... ... ... ... ... ... ... ... 612 has suffered through the wrongful act of the co
Adultery - Direct evidence. A husband,who peti.
tioned for the dissolution of his marriage on the
respondent. If a husband has a virtuous wife
taken from him by the contrivance of another
gronnd of his wife's adultery with the co -respon man , he is entitled to damages commensurate with
dent, produced evidence at the hearing to show the loss of such a wife ; but if she has led a loose
that he and a sergeant of police traced the respon life before marriage, her value is not the sameas
dent and co- respondent to the house of the latter 's that of a virtuous woman. In estimating the
sister, and that in the presence of all five persons amount of damages to be awarded , the fact that
questions were put to the respondent, and admis the wife was earning money, of a portion of which
sionsmade by her, that incriminating allegations the petitioner had the advantage, may properly
weremadeagainsther and the co-respondentby the be taken into account ; but the co -respondents
landlady, and that the co-respondent said nothing means must be left entirely out of the question.
(Darbishire v . Darbishire and B
in reply . Held , that this was not sufficient legal
proof that adultery bad , in fact, been committed Co-respondent's knowledge – Costs. — A man who
at thathouse, and that the casemust stand over for formsan intimacy with the wife of another, not
direct evidence to be given by the landlady. 663 knowing at the time that she was married , but
(White v. White and Jerome.) ... ... ... ... . . subsequently discovers that she was in fact
Affidavit to verify petition - Divorce Ccurt Rules married to the petitioner, and continues to
and Regulations, rule 2 - Swearing affidavit , live with her, ought, as a generalrule, to pay costs.
British consnl- 6 Geo. 4 , c. 87, s. 20 - 18 & 19 Vict. (Learmonth v. Learmonth and Austin.)... ... ... 608
c. 42, s. 1 -- MatrimonialCauses Act 1858 – Divorce | Costs - Rescission of decree nisi - Collusion - Right
Court Rulesand Regulations, rule 142 - Solicitor to appeal- Matrimonial Clauses Act 1857 - Judi.
permitted to verify petition - Form of order. cature Act 1873 . - A wife petition for divorce.
În a case where a husband proposed to petition
this court for a divorce from his wife by reason and tbere was a cross-petition by the husband.
of her adultery, and the petitioner was theacting Under order of the court, the husband paid a
British consulat a place in a non-Christian sam of money into court to provide for the wife's
country, and was unable to leave his post, the costs . A decree nisi was pronounced on the
Court allowed his solicitor to verify the petition wife's petition , and costs were given her ; but
to the best of his knowledge and belief, pending before the decree wasmade absolute the Queen 's
Proctor intervened . The husband under order
the filing of the proper affidavitby the petitioner
in compliance with rule 2 of the Divorce Court paid a further sum into court to provide for the
Rules hnd Regulations. (Re A Petition for Dis. wife' s costs. Upon the trial of the issue with the
solation of Marriage ; Ex parte Russell.) ... ... Queen 's Proctor, it was found that there had
186 been collusion at the first trial, and Butt, J.
Ante-nuptial incontinence - Wilful separation - Rea rescinded the decree nisi. The Court
affirmed the order of Butt , J .
of Appeal
The wife then
sonable excuse - 20 & 21 Vict. c . $5, s. 31 - Discre
tionary bar- Decree. - The petitioner, an officerof
marines, when only twenty years of age, in Dec.
applied for payment out of the money deposited
in court to meet her costs, but Butt, J . refused
1883,married the respondent, relying upon state the application , being of opinion that the original
ments made by her as to her having been pre order as to costs was gone when the decree nisi
viously entrapped into a ceremony of marriage was rescinded. The wife appealed without having
with a man whom she afterwards found had a wife obtained the leave of Butt, J. Held , that the
then living. The petitioner, soon after his mar wife's costs were in the discretion of the court ,
Oct, 18, 1890.] THE LAW TIMES. Index - lxi
SUBJECTS OF CASES.
and there was no right of appeal either as to the going in for a separation, but he “ should take
suin paid in before decree nisi or upon the inter devilish good care to return home before the two
Fention of the Queen's Proctor. (Butler v.
Butler .) ... ... ... ... ... ... ... ...page 477
years were up."
his wife an
The husband
allowance, and
, all through , made
continued provide
to a
Cross-petitions- Finding by jury in wife's favour home for her. He did rot answer several of her
Decree nisi - Intervention by Queen's Proctor letters, and at Christmas 1887 she wrote to him ,
Finding by jury of collasion - Disagreement as saying she had heard from one of the children (by
to wife 's adultery - Rescission of decree - Notice of wbom he had sent her a present) that he had
appeal - Discontinnance of payments of alimony said he should return home soon ; that she hoped
on rescission of decree nisi - Application for writ he would do so for the children 's sake, but that,
of fieri facias in respect of arrears. - At the trial for herself, she had long ago given up hope .
of cross-petitions for divorce no evidence was With that letter she sent a memorandum , written
offered on behalf of the husband, and the jury by herself a year before , on which occasion she
foand for the wife and against the husband on had taken off her wedding-ring and put it away
all the issues, and the Court pronounced a decree along with the memorandum . In the middle of
nisi upon the wife's petition and dismissed the Aug. 1888 , about ten or twelve days before the
husband's petition. The Queen 's Proctor sub two years' absence had expired , the husband
sequently husband
intervened and filed his plea alleging wrote to his wife, who was then in Scotland ,
that the and wife had been guilty of saying he had returned to their London house.
collusion, that material facts had been kept from and requesting her to join him there with the
the court and jury , and that the wife had been children . The wife was at that time suffering
guilty of adultery. At the trial of these issues from the effects of an accident which she had
the jury found that the collusion was established , met with before she went. to Scotland, but the
bat they disagreed as to the wife's alleged adul. results of which rendered it unadvisable for her
tery. Upon this, the Court rescinded the decree to take another long journey just then . She
nisi. The wife gave notice of appeal against the accordingly wrote to her husband to that effect ,
rescission of the decree. The husband ceased to offering to send the children if he so desired , and
pay alimony after the conclusion of the trial of saying that she herself would return homeas soon
the Queen's Proctor's case. The wife applied as she was well enough to travel. Her sister,
for & fi . fa . to compel the payment of arrears. with whom she was staying, also wrote , and
The registrar declined to issue the writ. Held, invited the husband to see his wife in Scotland .
that the registrar was right, but that an order He declined this, and wrote to his wife again ,
should be made directing the husband to pay to repeating his request that she would return home
his wife, pending theappeal, alimony at the same “ at her convenience and as soon as she was suffi.
rate as had been allotted to her pendente lite in ciently recovered ; ” and, not wishing to remain
the first instance, but that the husband should in London , he asked her to write to him at his
have liberty to apply to bave the order discharged club a few days before she intended to return , to
in the event of any undue delay on the wife' s apprise him of the date of her intended arrival in
part in prosecuting the appeal. (Butler v. Butler.) 123 London . The wife did , in fact, return a few days
Damages - Order against co-respondent for “ costs later, but failed to inform her husband as he had
incurred and to be incurred ' - Costs of settling requested . On Aug. 31 he wrote to her from
scheme for apportionment of damages — Order Cowes, saying he “ believel" she had arrived at
against co-respondent. — The costs of settling a their house in London , and that he regretted she
scheme for the apportionment of damages are had not advised him of her intention, as, had she
*** costs of and incident to ” the decree for divorce, done so, he would havemet her on herarrival, but
and, as such , are recoverable from the co -respon that he would arrive home on the afternoon of
dent under the order in the usual form for “ costs the next day, Sept. 1, 1888. The wife had, in the
incurred and to be incurred,” made against hir meantime, consulted her solicitors, from whom
by the court at the time the decree nisi was the husband received a letter on the morning of
granted . (Irwin v. Irwin and Layard .) ... ... ... 612 the 1st Sept., just before he would have started
Decreenisi - No application to make decree abso for London , intimating that proceedings were
late- Motion to dismiss suit for want of prosecn. about to be commenced for a judicial separation ,
on the ground of desertion without just cause for
tion - Proceedings pending for maintenance
Valid excnse for delay - Motion dismissed . The two years and upwards. The husband thereupon
wife obtained in Feb. 1889 a decree nisi for the wrote to his wife, saying that, in consequence of
that letter , he should not return home that day as
dissolution of her marriage. She afterwards
tioned for permanent maintenance, peti.
and that peti. he had intended to do, and that while any pro
tion was still pending, the registrar not having as ceedings were threatened he must decline further
intercourse with her . At the trial, the husband ,
yet reported thereon . In April 1889 the husband though present, was not called. At the close of
applied to have the divorce suit dismissed for the wife's case, it was submitted , as a point of
want of prosecution , in that the petitioner had law , that there was no case to go to the jury , but
notapplied to have the decree nisimade absolute, the learned judge (Butt, J.) Held , that there was
The Court held that the pendency of the proceed a case, and he left to the jury the question,
ings for maintenance was a valid excuse for the whether the conduct of the husband was that of a
delay, and dismissed the motion , with costs. man honestly intending to resume cohabitation
(Southern v. Southern.) ... ... ... ... ... ... 668 with his wife ; whether he was notmisrepresent.
Desertion - Divorce Act (20 & 21 Vict. c. 85) — Plea ing his real intentions in the letters he wrote in
established -Decree. - The wife petitioned for a Aug. 1888 ; and whether the realand only object
divorce on the grounds of desertion and adultery . of those letters was to evade the consequences
As to the desertion : The husband left his wife in
Ang. 1856 . mainly on account of her reiterated
which might ensue, and to deprive the wife of the
remedy which she would be entitled to upon the
objections to associate with a lady and gentleman completion of the two years' absence. (French
of his acquaintance, with whom the wife com Brewster v. French-Brewster ; French-Brewster
plained that he spent too much of his time, to v. French-Brewster and Gore.) ... ... ... ...page 609
the consequent neglect of herself and children . Desertion - Undefended divorce suit by wife -
There was no charge of cruelty upon the record , Adulteress brought to house by husband - Wife's
but it was proved at the trial that he had struck refusal to remain in consequence - Decree . - A
her before leaving her, and that she had called wife petitioned for the dissolution of hermarriage
him a coward on one occasion . It was also proved on the grounds of adultery and desertion. The
that he had stated that he would never live with parties were married in 1866, and in 1872 the hus
her again, and that hewould do anything, short of band brought to the house a woman with whom he
crime, to injureher. Shortly after leaving her he had immoral relations. The wife refused to
wrote to her, saying it was no part of his plan to admit her, but the husband insisted. The wife
desert her. The husband in Dec. 1837 told an old remained a short time in the house , and then told
friend of his that he had heard his wife intended her husband that either she or the woman must
lxii- Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
leave the house. The husband told her she might she marry again ” – Order " for her life
do as she liked , but that the woman would remain . ” omitting limitation - Divorce Act 1857, s. 32.
The wife thereupon left, and never afterwards - A wife, who had obtained a decree absolute
cohabited with her husband. Held , that the hus. for the dissolution of her marriage, on the ground
band wasguilty of deserting his wife. (Dickinson of her husband's cruelty and adultery , and who
v . Dickinson .) ... ... ... ... ... ... ... ...page 330 had afterwards married again , moved before
Divorce citation and petition - Substituted service Butt, J. to confirm that part of the registrar's
Co-respondent, an Austrian subject, resident in report which recommended that the respondent be
Switzerland - Swiss law — Service by registered ordered to secure to the petitioner 1951, a year, by
letter - Order .-- The Court ordered substituted way of permanent maintenance for her life, but
service of the citation and petition in a suit for to vary the report by omitting the farther words,
dissolution of marriage to be effected upon the " until shemarry again .” Themarriage which was
co-respondent, an Austrian subject, by registered dissolved had taken place in 1876, the wife at
letter, where it appeared that he was living with that timebeing about seventeen years of age. On
the respondent in a foreign country, the laws of behalf of the respondent it was urged that, if the
which precluded personal service upon him . court should order the omission of the words of
(Trübner v. Trübner and Christiani.) ... ... ... 186 limitation , the amount ought to be reduced in the
Husband's petition - Adultery of wife - Former event of the petitioner's re-marriage . Butt, J.
decree of judicial separation at suit of wife doubted the power of the court to make an order
giving her two sums, one now , and another if she
Cruelty - Failure to pay alimony - Discretional married again ; but held that the matter as to
bar- Decree for dissolution of marriage. - The the words of limitation was in the discretion of
wife obtained in March 1887 a decree for a judicial the judge ; that the exercise of that discretion
separation on the ground of cruelty, and was must in each case depend upon the particular
given the custody of her only child . On the 4th facts ; and that in this case the amount would be
May 1888 the husband was ordered to pay per ordered to be secured by the respondent for the
manentalimony at the rate of 801. a year from the maintenance of the petitioner during her life .
date of the decree. This he did not pay, though Held , on appeal, (1) that, under the particular
he had the means. On the 17th Sept. 1888 a deed circumstances of the case, the discretion of
was executed by the husband and wife, by which
the latter relinguished the custody of the child Batt, J. had not been improperly exercised ; (2)
and all her right to alimony , in consideration of a that in such cases, notwithstanding the discre
lump sum of 751, then paid to her by her husband . tion , an appeal lag from the decision of the court
Some little time after that deed was signed the below ; (3) thatthe court ought not to laydown any
husband became aware that his wife was com general rule that the allowance should be secured
mitting adultery with the co-respondent, with for the wife's life absolutely, or that it should
whom she went to live . The husband then filed be secured only during the joint lives and the
his petition, asking for the dissolution of his mar period while she remained chaste and unmarried .
(Lister v . Lister.) ... ... ... ... ... ... ...page 90
riage. Held , that, as the creulty on the part of Practice - Affidavits - Rule 138 Divorce Court
the husband was not of such a nature as would Rules - Description of deponents. — The affidavit
induce the court to withhold a decree, and as the of a married woman must state the description
deed of release was executed by the wife with her of her husband, and that of an unmarried
eyes open , the husband should not be refused the woman should give the description of her parentsv.
relief prayed , and that a decree nisi should ac. inEllamorder to comply with the rules. (Ellam
cordingly be pronounced in his favour. (Bad .) ... ... ... ... ... ... ... ... ... ... 331
ham v. Badham and Gorst.)... ... ... ... ... ... 663
- - Marriage before decree absolute in former Restitution of conjugal rights — Practice - Suffi
suit by petitioner- No intervention by Queen 's ciency of affidavit - " Written demand for coha
Proctor – Decree absolute – Further ceremony bitation and restitution of conjugal rights ”
of marriage with second wife – Adultery – Rules and Regulations in Divorce and Matri
Relief not barred – Decree nisi.- In 1878° the monial Causes, rr. 2, 175, 176. - A wife, before
husband obtained a decree nisi against his first commencing proceedings against her husband
wife. Before decree absolute he married the pre (who had been living apart from her for eleven
sent respondent . The Queen 's Proctor not oppos years) for restitution of conjugal rights, served
ing, the decree was afterwards made absolute . upon him a letter signed by herself giving him
The petitioner and respondent subsequently went notice of her desire to cohabitand live with him ,
through a fresh ceremony of marriage. Held , and demanding from him a full restitution of
conjugal rights . and further notifying to him
upon a petition by the husband, that he was that, in the event of his not receiving her and
entitled to have this marriage dissolved by reason providing a suitable home and habitation for her ,
of his wife's adultery , and that his claim to relief she intended to apply to the court for restitution
was not barred by reason of his adultery com of her conjugal rights . Tho husband went a
mitted prior to the final dissolution of the first
marriage. (Styles v . Styles and Jackson.) ... ... 613 reply the same day acknowledging the receipt of
Nullity - Alleged insanity of petitioner - Guardian the letter, and stating that he declined to receive
ad litem . - An order onght not to be made under back his wife or make a home for her. The
rule 196 assigning a guardian ad litem where there wife's affidavit filed with her petition set out the
is a bona fide dispute as to whether the person to letters. Held , that the case was distinguished
whom it is proposed to assign the guardian is of from Field v . Field (59 L . T . Rep . N . S . 560 , 880) ;
unsound mind. (Fry v . Fry.) ... ... ... ... ... 501 14 Prob. Div . 26 ) by the facts here the letter
was the wife's own and not a solicitor's letter ;
Permanent maintenance - Nonpayment of instal that it expressed her desire to cohabit again with
ments - Motion for attachment- Refusal. - The her husband , and that he answered it with an
wife having obtained a decree absolute in 1883 for unqualified refusal. Held , therefore, that the
the dissolution of her marriage, and also an order wife 's letter was a sufficient compliance with
for permanent maintenance, the instalments were rule 175 of the Divorce and Matrimonial Causes
duly paid for some five years, but at the end of Rules and Regulations ; and that a decree
1888 the and
further, respondent
he had indeclined to pay
fact paid anything
nothing since
for restitution ought to be made. (Smith v .
Smith .) ... ... ... ... ... ... ... ... ... ... 237
that time,although he admittedly had means to - Wife disobeying decree - Petition for allow .
do so . Upon motion to attach him : Held , that the ance — Income derived from marriage settle
application was misconceived ,and that as the suit ment -- Matrimonial Causes Act 1884 . - In July
in this court was at an end, there was no jurisdic 1889 the husband obtained in this court a
tion here to enforce payment of the arrears. decree for restitution, which the wife had not
(De Lossy v. De Lossy.) ... ... ... ... ... ... obeyed . He petitioned thereupon for an allow
- Registrar's report - Amount recommended ance, his income being stated as 451, a year,
to be secured to wife " for her life, or until while his wife's income was 8201. a year, of which
Oct. 18, 1890.] THE LAW TIMES. [Index - lxjii
SUBJECTS OF CASES.
5201, was liable to forfeiture upon any attemptat amongst the children or remoter issue of the said
anticipation ,and was therefore treated as beside marriageshould be extinguished. It was left for
the question . The balance of the wife's income the court whether
to say her power ofappointing,
was payable under the trusts of the settlement or joining in the appointment of, new trustees
executed upon the marriage. Held, that this should be extinguished as prayed by the peti
portion of the wife's incomewas within the words tioner. The registrar refused to take into
of the Matrimonial Causes Act 1884, s. 3, as being account the great probability of the husband's
“ property " to which she was entitled " in posses
sion or reversion ,” and that she should be ordered
promotion in the office held by him in Her
Majesty's household, by which promotion , it was
to settle for her husband 's benefit such part of said , that his income would be increased by
her property as the registrar should find to be fit about the amount of income which would accrde
under the circumstances. (Swift v . Swift.) ...page 669 to the that
respondent on the death of her mother.
Restitution of conjugal rights - Wife's petition Held , the registrar was right in not taking
Decree Non -compliance - Petition for alimony the husband's probable future promotion and con
Periodical payments - Matrimonial Causes Act sequent increase of salary into account. But,
1884 — Mode of estimating husband's income held , that, as the wife's increase of income was
Deduction for temporary loss in business dis a vested 'interest to which she was absolutely
allowed - Order for one- third of joint income entitled in reversion, the registrar's report as to
during joint lives. - From and after the passing of the increased amount to be paid by the respon
the Matrimonial Causes Act 1884 (47 & 48 Vict. dent for the benefit of the child upon the reversion
c. 68 ) the court may, at any time after the making falling in was not unreasonable nor contrary to
of a decree for restitution of conjugal rights at the practice. Held further, that, as the wife was
still to retain an interest in the fund brought
the suit of the wife, and upon the husband's non
compliance therewith , order the respondent to settlement by herself , her right to appoint,into
or
make to the petitioner such periodical payments join in the appointment of, new trustees must be
as may be just, and such order may be enforced retained in her favour. (Tupper v. Tupper and
in the same manner as an order for alimony in a Terrell.) ... ... ... ... ... ... ... ... ... page 665
suit for judicial separation . There is no obliga Wife's confessions - Adulterer named in petition
tion upon a wife who has obtained a decree for Occupation and address known - Nolegal evidence
restitution of conjugal rights, to proceed to have against alleged adulterer - Motion to dispense
that decree turned into one for judicial separation with citation upon him - Motion refused - Adul
under sect. 5 of the Act. She may stand upon terer to be cited and personally served. - A hus
her decree for restitution , and is entitled to band who had inserted in his petition for divorce a
“ periodical payments " equivalent to the amount charge of adultery with one S . N .,moved thecourt
to allow him to proceed without making S . N . a
of permanent alimony
entitled under a decree toforwhich she would be
judicial separation. co-respondent, or, in the alternative, that hemight
Where a husband had failed to comply with a be cited by registered letter. The petitioner
decree for restitution of conjugal rights, the stated that he had been unable to obtain corro
Court, upon the wife's petition for an allowance, boration of his wife's confessions, and that hehad
ordered bim to secure to his wife, during their no legal evidence with regard to her intimacy
joint lives, such a sum yearly, by periodical pay with S . N . whose full name, address, and occu
ments, as would make up the wife's income to an pation were known to the petitioner and his
amount equivalent to one-third of their joint advisers. The Court refused the motion , and
incomes ; and, in estimating thehusband 's income, directed that the alleged adulterer should be
upon the usual basis of the preceding three years, cited and personally served . (Cornish v. Cornish.) 667
refused to allow any deduction whatever to be (See also Swift v . Swift, page 669 .)
made on account of a loss sustained by him in a
branch business which had been finally closed DONATIO MORTIS CAUSA .
prior to the date of these proceedings. (Theobald Deposit note with cheque indorsed - Validity. - D .
t . Theobald .) ... ... ... .. ... ... ... ... ... 187 held a deposit note upon a joint-stock bank for
Settlements — Variation of - Report of registrar 5801. There was a form of cheque on the back of
Respondent's interest only partially extinguished the note, and on its face was a direction for filling
Right to appoint, or join in appointment of, up the cheque when the money or any of it was
new trustees retained - Probable increase in hus withdrawn . D ., being very ill, on the 11th Jan .
band 's incomenot taken into account - Practice. 1888 expressed to E . his intention of giving her
After final decree dissolving the marriage apon the deposit note on condition that she should give
the ground of theadultery of the respondent with it back if he recovered. Heaccordingly stamped
and filled in the cheque at the back of the note
the co-respondent, the petitionerpresented a peti. and handed the note to her . D . died on the 15th
tion for variation of two settlements executed in Jan . 1888. Held , that a deposit note could be the
1882 in contemplation of the marriage. Substan subject of a good donatio mortis causa ; that the
tially, the settlements gave the wife a first life mere fact that there was a form of cheque on the
interest in half the income of the fund brought back of the note did not prevent there being a
into settlement by herself, and further conferred good gift of the note ; and that there had been a
upon her conditional benefits in certain contin
gencies, the principal one being that, upon the valid donatio mortis causa in favour of E . (Re
death of the respondent'smother, now aged about Dillion ; Duffin v . Duffin .) ... ... ... ... ... ... 614
seventy , the respondent's incomewould be imme ECCLESIASTICAL LAW .
diately increased from about 3001. to about 6501. a
year. There was also a power of appointing new Ornaments of a cathedral church - Public Worship
trustees by the petitioner and respondent during Regulation Act 1874 - Bishop's discreticn — " After
their joint lives, and by the survivor of them considering the whole circumstances of the case "
during his or her life. The registrar recommen - Mandamus. - By the Public Worship Regula
ded , as to the property brought into settlement by tion Act 1874 it is enacted in sect, 8 that any
the petitioner, that the whole of the wife's in three male inhabitants of a diocese who are of
terest and powers should be extinguished opinion that an addition has been made to the
as to the property brought into settlement by; and
the fabric, ornaments, or furniture of the cathedral
church of the diocese without lawful authority
respondent, that terms the
should be varied bytheordering the settlement
of trustees to pay may make a representation to the bishop , and by
501. a year to the petitioner for the maintenance sect. 9, “ unless he shall be of opinion , after con
and education of the infant child of the marriage sidering the whole circumstances of the case, that
during her minority, and after twenty-one to the proceedings should not be taken on the representa
said child ; and that upon the death of the re tion , in which case he shall state in writing the
spondent's mother the allowance for the child reason for his opinion , & c .," he shall take certain
should be increased to 1501. a year. Further, steps. A representation was made to the Bishop
that the respondent's power of appointment of London that the Dean and Chapter of St.
lxiv - Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
Paul's had introduced into the cathedral and set
up on the reredos an image of Our Lord upon the
“ educational endowment ” within sect. 5 of the
Endowed Schools Act 1869, whether they be
Cross in a conspicuous position immediately
above the Communion - table . the figure of Onr
applied to teaching only, or to boarding and
maintaining the scholars as well as teaching
Lord being of the height of five feet, and the them , Sect. 29 is not intended to cut down the
image having the appearance of an altar crucifix definition of " educational endowments ” given in
such as was used in the Church of England before sect. 5 . The amountof recent endowments spent
the Reformation , and had also set up an image re . in maintaicing or improving the old property of a
presenting the Blessed Virgin Mary with the
Child in her arms in a conspicuous position a few
school cannot be removed from the operation of
a scheme under sect. 14 of the Act. Christ's
feet above the first-mentioned image, the figure Hospital is not a foundation specially attached to
of the Blessed Virgin being of the height of five the Church of England within sect. 19 of the Act.
fee six inches or thereabouts, and that each of A provision in a scheme for the administration of
the said images tended to encourage ideas and a school reqniring persons in charge of a boarding
devotions of an unauthorised and superstitious house to allow exemptions from prayers and reli.
kind and was unlawful. The bishop gave a gions worship cannot be supported, not being
written opinion , saying that he had considered in accordance with the provisions of sect. 16 of
all the circumstances of the case and was of the Act. A schemewhich pays substantial regard
opinion that furtber proceedings should not be to existing rights of patronage cannot be success
taken , on the ground that the main question of fully impeached on the ground of not being in
principle had already been decided in Philpotts conformity with the Act because it curtails such
v . Boyd (32 L . T . Rep . N . S. 73 ; L . Rep . 6 P . C . rights without giving any compensation . A body
435 ) ; that the difference between the reredos corporate which is under an obligation to pay
there and in this case was not of very grave im . a certain sum annually to an endowed school upon
portance ; that litigation is , even when necessary , certain conditions is not a governing body within
an evil, keeping up irritation and partly strife, sect. 39 of the Act. (Governors of Christ's
and that, in the present instance, it would inflict Hospital and others v. The Charity Commis.
much more injury on the Church than be of bene sioners.) ... ... ... ... ... ... ... ... ...page 10
fit to any one. Held , that no mandamus could be
granted against the bishop,as there was no evi.
dence that hehad declined jurisdiction by refusing EQUITABLE EXECUTION .
to consider the circumstances of the case or act. “ Equitable but execution ” isequitable
not execution properly
reliefwhich can
ing without considering them , or that he had ex. so -called , is merely
ceeded his jurisdiction by considering and acting be obtained only by an order of the court founded
on the fact that legal execution cannot be obtained
upon some circumstance not a circumstance of and the Judicature Act gives no right to such
the case. The expression in sect. 9, “ after con relief when there is no difficulty in obtaining
sidering the whole circumstances of the case , legal execution. (Re Shephard ; Atkins v . Shep
does not compel the bishop to consider every cir. hard .) .. ... ... ... ... ... ... ... ... - - 337
cumstance of the case, but enables him to take
into account any collateral circumstance within EVIDENCE .
his knowledge, provided it be a circumstance of Admissibility - Pedigree - Scotch parish registers
the case before him . (Reg v. The Bishop of Proceedings in Sheriff 's Court - Action to recover
London.) ... ... ... ... ... ... ... ... ...page 167 land - Statute of Limitations - Receipt of rents by
EMPLOYERS ' LIABILITY . agent - Possession of heir-at-law . - Scotch parish
registers, or certified extracts from them , receiv .
“ Act or omission of employé done or made in able as evidence in Scotland, are admissible as
obedience to rules or bye- laws of employer " evidence in English courts, subject to just excep
Or “ in obedience to instructions by employer's tions
tion ofaspedigree
to particular entriesinina them
proceedings . 'sInCourt
Sheriff a quesin
delegate." - The plaintiff was employed by
the defendant, the owner of a saw -mill, con Scotland are admissible as evidence as to the facts
taining saws driven by steam power, and'
certain day he was told by the defendant's fore. on a of the pedigree incidentally stated in them , the
pedigree not being then in dispute. D . died intes.
man to cutsomewood in specified lengths with the tate as to certain real estate, of wbich she was
circular saw . This work was generally performed owner in fee, in 1867. During her lifetime the
by twomen , one “ feeding " the saw and the other property was managed by K .,who continued to do
taking the wood out from it. A .was engaged by the so after her death , receiving the rents and paying
defendant to attend to the engine and boiler,
to assist generally in the saw -mill. and was also
and them into a separate account at a bank . There
was considerable difficulty in ascertaining who was
told “ not to neglect the engine.” At the time in the heir-at-law of D ., but K . stated on several
question the plaintiff was at one end of the saw occasions that he was acting for the heir whoever
frame pushing the wood through it, and A . was at he might be. In 1881 the heir-at-law commenced
the other end receiving the wood coming out from an action against K , to recover possession of the
the saw . Hearing steam blowing off, A . sud land, and for an account. Held , that the acts of
K . could not operate to dispossess the heir, and
denly and without notice to the plaintiff , let go
the wood and ran to the engine-room , whereapon that they were capable of ratification, and were
the wood, becoming unsteady, shook the plaintiff's in fact ratified, by him , and that K , bad consti
hand against the saw , which cut and injured his tuted himself a trustee of the accumulated rents
fingers. In an action in the County Court, under and profits, and that the action was not barred by
sub-sect. 4 of sect. 1 of the Employers' Liability the Statute of Limitations. (Lyell v. Kennedy : 77
Act 1880 but
damages, theHeld
plaintiff recovered judgment with
, on appeal, reversing the judg.
Kennedy v. Lyell.)... ... ... ... ... ... ... ...
mentbelow , that the plaintiff was not entitled to
recover, on the ground that, although the injury
EXECUTOR AND ADMINISTRATOR .
was caused by “ the act or omission of A . in Payment of a creditor after action brought by
another ---- Plene administravit- Conflicting rules
leaving the saw without notice to the plaintiff , of law and equity - Non -merger of debt in a judg.
there was no evidence that such act or omission ment avoided by the Debtors Act 1869 (32 & 33
was “ done or made in obedience to any rule or
bye- law of the emplover , or to instructions by any Vict. c. 62), s. 27.-- The plaintiff having brought
delegate of his." (Whatley v. Holloway.) ... ... 639 an action for money lent against the administra
trix of the deceased debtor, another creditor of
ENDOWED SCHOOLS ACT 1869. the deceased brought another action against the
administratrix in which she consented to judg .
Educational endowment - Religious education ment. This judgment was not filed as required
Recent endowments - Governing body - Rights of by the Debtors Act 1869 (32 & 33 Vict. c . 62), s . 27 ,
patronage. - Funds are applied for the purposes but was satisfied by the administratrix , who then
of education at school so as to constitute an pleaded plene administravit to the first action.
Oct. 18, 1890.) THE LAW TIMES. [Index - lxv
SUBJECTS OF CASES.
Held , (1) that, though the judgment was void as her husband made a will by which she left all her
against the creditor in the first action, the debt property to persons other than her husband,and
for which it was obtained remained ; (2) that, as appointed executors. She died in 1887, entitled to
the rules of equity now prevail over rules of law certain choses in action ,which had notbeen reduced
the voluntary payment of a creditor by an ad . into possession by her husband . Probate of the
ministratris after an action has been brought will was granted to the wife 's executors in accord .
against her by another creditor will be considered ance with the Probate Rules 1887, r. 15 . The
& good payment of the first as against the latter husband brought an action against the executors
named creditor. (Vibart v . Coles.)... ... ...page 551 for the choses in action . Held , that, although the
husband could not have sued the persons liable t )
FOREIGN JUDGMENT. his wife for the choses in action without taking
Action in English conrt - Fraud on foreign court. out administration to her, yet he had the beneficial
- That a foreign judgment was obtained by fraud interest in them when received by the wife's
may be pleaded as a defence to an action apon executors, and could sue them in respect thereof,
the judgment brought in this country . (Vadala and recover subject to the payment of the probate
and Co. v . Lawes.) ... ... ... ... ... ... ... ... 701 and testamentary expenses incurred in reference
Law ofconclusive.
Spain - Executive judgment- Whether final to these assets. (Smart v. Tranter.) ... . page 356
and - By the law of Spain , a plaintiff INCLOSURE ACT.
in whose favour documents of a particular
character have been executed may commence Construction - Reservation of right of shooting
Claim to shoot over inclosed waste -- Territorial
" executive " proceedings, in which the defendant and manorial rights, — Where an Inclosure Act
can only raise defences which do not dispnte the
original cause of action , and the plaintiff , if he reserves to the lord of the manor the right of
succeeds, obtains a " remate ” judgment, which shooting not, according to the true construction
is an order for execution to issue for a fixed sum of the Act,as a territorialbut as a manorial right,
of money and costs. Either party may, neverthe. and there is no evidence of any right of shooting
less, take “ ordinary,” or “ plenary ” proceedings in the lord , except as owner of the soil, the right
in respect of the same subject matter, in which of shooting over the freehold allotmentswhich had
all defences are open to the defendant, and the been acquired under the Act by the commoners
**remate ” judgment cannot be pleaded as res out of the waste of the manor is not thereby re
judicata , or as in any way affecting the rights of served . In order to construe a reservation of the
the parties. Held , that such “ remate ” judg . rightof shooting in an Inclosure Act, as applying
ment was not a final and conclusive judgment to the lord 's right to shoot over the waste of the
which could be made the foundation of an action manor incident to his ownership of the soil, there
in this country. (Nouvion v . Freeman.) ... ... 189 must either be express words reserving to the
lord the right of shooting over the inclosed lands.
FRIENDLY SOCIETY . or words that necessarily imply that that is the
right reserved . (Duke of Devonshire and others
Trade union - Illegality of rules - Restraint of trade
- Legality of society - Trade Union Acts 1871.
v . O 'Connor.) ... ... ... ... ... ... ... ... ... 917
When the fandamental object of a friendly society
which is a trade union within the Trades Union
INCOME TAX.
Acts 1871 and 1876 is a legal one, the illegality of Annuity - Income - Annuity for formation of sinking
fund - Liability of, to income tax. - A company
some of its rules on account of their being in was formed to carry out an agreement with the
restraint of trade does not make the society an Nizam of Hyderabad for the purpose of making
illegal one or prevent the enforcement of those of and carrying on a certain railway in India . By
its rules which are not illegal; nor will the fact the agreement the capital of the company was to
that some of these last-mentioned rules may, if consist of a certain share capital and a certain
carried ont, to a certain extent restrain trade render debenture capital, the latter to bear interest at 4
them illegal if they were bona fide made for the per company
cent. per annum . The Nizam was to pay to
purposes of carrying out the fundamental object the for twenty years an annuity equal
of the society . (Swaine v. Wilson.) ... ... ... 309 to 5 per cent. on both share and debenture capital,
HABEAS CORPUS. and the company were to apply this sum in paying
5 per cent. on the share capital, 4 per cent, on the
Iseneof writ - Answer to application for - Inability debenture capital, and in using the remaining 1
to obey writ. - Where the defendant has unlaw . per cent. for providing a sinking fund for the
folly parted with the custody of the person with redemption of debenture capital. This sum of 1
respect to whom an application for a writ of per cent. was to be paid to trustees to be invested
habeas corpus is made , his inability to obey the and accumulated for the purposes of the sinking
terms of the writ is no answer to the application fund. The company claimed an exemption from
for theissueof the writ. (Reg. v. Barnardo.) page 44 income tax with regard to this balance. Held ,
that this balance of 1 per cent., which was to be
HUSBAND AND WIFE. accumulated and applied for the sinking fund,
Divorce- Variation of settlement- Power to vary was a profit or annuity to the company, within
the meaning of the Income Tax Acts , and was not
order originally made - Matrimonial Causes Act exempt from the tax, and that the company were
1859.– Upon a decree for divorce obtained in 1876 liable to income tax in respect of the whole annual
an order was made under the Matrimonial Canses sum received by them from the Nizam ( H .H .
income
Act 1859, s. 5 , that out of the to which the the Nizam 's Guaranteed State Railways Company
wife was entitled under the provisions of the Limited,apps., v.Wyatt,Surveyor of Taxes, resp .) 765
marriage settlement the sum of 3001. a year Deductions - Premium on life iusurance - Insurance
should be paid to the husband. Since 1876 " the in foreign company. -- By the Income Tax Act 1853
total income of the wife's settlement funds had
considerably decreased , and application was now (16 & 17 Vict. c. 34), s. 54 , it is provided that,
made to vary the order by reducing the sum pay. “ Any person who shall have made insurance on
able to the husband. Held , that, an order having his life in or with any insurance company which
once been made under sect. 5 of the Matrimonial shall becomeregistered underany Act to be passed
Causes Act 1859, the court had no power to in the present session of Parliament for that
vary such order. (Benyon v . Benyon and purpose, and which shall comply with the re
O 'Callaghan .) ... ... ... quirements of such Act . . . shall be entitled
...... .Right
Probate granted of will of wife--
.. ... ... 329, 381
of husband to deduct the amount of the annual premium paid
by him for such insurance from any profits or
to wife's choses in action - Probate Rules 1887, gains in respect of which he shall be liable to be
I. 15 . - A married woman , married before the 1st assessed under schedules D . or E . of this Act."
Jan , 1883, possessing a small separate estate , but NoAct for the registration of insnrance companies
having no testamentary capacity , by consent of was passed in that session of Parliament, but in
Ixvi- Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
the same session it was provided by 16 & 17 Vict. to the provisions of 7 & 8 Vict. c. 110. The
c . 91, that “ Any person who shall have made any respondent claimed to be entitled to deduct the
such insurance in or with any insurance company amount of the annnal premium paid by him from
existing on the 1st Nov . 1844 , or in or with any the profits in respect of which hewas liable to be
insurance company registered pursuant to 7 & 8 assessed under Schedule D . Held , that the deduc.
Vict. o . 110 , shall be entitled to all the benefits tion could only be made in the case of premiums
and advantages which by the said provision are paid to English insurance companies described in
expressed to be given in respect of the like insur 16 & 17 Vict. c. 91, and that the respondent was
ance in orwith any insurance company which shall therefore not entitled to make it in the present
become registered under any Act to be passed in case. (Colquhoun, Surveyor of Taxes, app., v .
the present session of Parliament.” Heddon , Heddon , resp .)... ... ... ... ... ... ... ...page 13
claimed , under the above provisions, to
from his assessment to income tax the amount of
deduct
INFANT.
a premium paid upon a policy of life insurance in Apprenticeship deed - Covenant - Injunction to re
the New York Life Insurance Company, which strain breach by infant. - By an apprenticeship
was in existence on the 1st Nov . 1844 , but was a deed made in Dec. 1886 between a female infant
foreign company . Held , that these provisions of the age of fourteen years of the first part, the
did not apply to insurance in a foreign insur infant's mother, a widow , of the second part, and
ance company, although iu existence on the 1st the plaintiff, a teacher of stage dancing , of the
Nov. 1844 . (Colquhoun v. Heddon.) ... ...page 853 third part, the infant was apprenticed to the
Life assurance society - Sale of annuities for lump plaintiff for a term of seven years, to be instructed
in stage dancing, the apprentice to be paid certain
sum - Rightof society to deduct from gross income
annuities paid - Liability of society to be taxed in sums for engagements, not exceeding in any case
respect of such annuities - Sums paid out of 1s. per night, and the apprentice covenanted that
profits or gains. - A life assurance society , in she would not during the term enter into any pro
addition to its ordinary business of life assurance, fessional engagements without the consent in
carried on the business of selling or granting writing of the plaintiff , and the deed provided
annuities for a lump sum paid down by the pur that on failure of compliance by the apprentice
chaser. Held , that the society , in making out with this and other provisions of the deed, the
their income tax returns, and in estimating their plaintiff might determine the apprenticeship, and
the mother was to pay the plaintiff 501, as liqui.
“ net profits ” for the purposes of the Income Tax
Acts, are not entitled to deduct from their gross dated damages. There was no provision in the
income such annuities, that is to say, the sums deed binding the plaintiff to procure engagements
paid in discharge of their annuity contracts ; but for the apprentice, or to provide her with food ,
such annuities are taxable for income tax in the clothes, or lodging. There was a similar appren
hands of the society,who are the proper persons ticeship deed in the case of another danghter, who
to be taxed in respect thereof, inasmuch as they was twelve years of age. The apprentices having
areannualsums“ payable out of profits or gains” entered into engagements to perform as stage
within the meaning of sect. 102 of the Income Tax dancers for the defendant B ., each receiving one
Act 1842. ( The Gresham Life Assurance Society , guinea per week , without the consentof theplain
apps., v. Styles, Surveyor of Taxes, resp .) ... tiff , he brought an action and moved for an
interim injunction to restrain them from dancing ,
Manorial dues — Annual value - Deductions - Ex and the defendant B . from allowing them to dance ,
penses of collection - 5 & 6 Vict. c. 35. - The appel without the written consent of the plaintiff .
lantwas assessed to income tax as the lord of the Held that, as the case of Gylbert v . Fletcher (Cro .
manor of D ., from which manor he received certain Car. 159) had established that the master could
dues and fines. He claimed to be entitled to not sue the apprentice on the covenants in the
deduct the expenses of collecting the dues and apprenticeship deed purported to be entered into
fines from the gross amount so collected . Held , by the apprentice, it would be wrong on a motion
that the full amount collected was properly to throw any doubt on that case, and to grant the
taxable, and that the appellant was not entitled injunction asked for,which might leave the ap
to deduct the costs of collecting the samefrom the prentices without any employment or remunera .
amount at which he was assessed. (Duke of tion until the trial of the action , and motion re
Norfolk , app ., v . Lamarque, Surveyor of Taxes, fused . (Francesco v. Barnum .) ... ... ... ... ... 40
resp.) ... ... ... ... ... ... ... ... ... ... ...
Schedule D . - Life insurance - Deduction of pre INHABITED HOUSE DUTY.
mium from profits - Premium paid to foreign com Exemption from - Charterhouse School - “ Charity
pany - Life Assurance Companies Act 1870 . - It is school ” - School maintained partly by tuition fees
provided by 16 & 17 Vict. c. 34 , 8. 54, that " any and partly by charitable endowments. – The
person who shall have made insurance on his life Charterhouse School was founded beside Smith
in or with any insurance company which shall field , in the county of Middlesex, under a charter
have become registered underany Act to be passed
in the present session of Parliament for that par.
granted in the reign of James I., whereby one
Thomas Sutton was empowered to found and
pose, shall be entitled to deduct the amount of establish " one hospital, house, or place of abiding,
the annual premium paid by him for such in for the finding, sustentation , and relief of poor,
surance from any profits or gains in respect of aged , maimed , needy , or impotent people," and
which he shall be liable to be assessed under also to found and establish in the same place “ one
Schedule D . of this Act. No Act for the regis
tration of insurance companies was passed during
free school for the instructing, teaching , mainte
nance, and education of poor children or scholars."
that session of Parliament, but in place thereof it In the year 1867, under the powers of a private
was enacted by 16 & 17 Vict. c. 91, that any person Act of Parliament (30 & 31 Vict. c. 8), the school
who shall have madeany such insurance in or with was removed to Godalming, where new premises
any insurance company insuranceoncompany
1814 , or in or with any existing the 1st regis
Nov . were erected for the carrying on of the school,
but the hospital remained in Middlesex. The
tered pursuant to 7 & 8 Vict. c. 110, for the school consists of the school itself, the masters'
“ Registration , Incorporation , and Regulation of houses, chapel, library ,hall , classroom , & c., all in
Joint Stock Companies," shall be entitled to all.
the benefits and advantages of theabove provision
one group , except a sanatorium called “ Uskites."
There is no hospital at Godalming, and the build
The respondent insured his life in an insurance ings there are built for and are used as a school.
company, whose principal office and business was There are a number of scholarships and exhibi
in America , but which had agents and offices in tions awarded to pupils after examination, and
this country, and made returns to the Board of there are a large number of pupils who pay fees
Trade pursnant to the provisions of the Life for their tuition , so that the school is in the main
Assurance Companies Act 1870, 33 & 34 Vict. self-supporting, though a number of the scholars
c. 61. The company was not registered pursuant derive a benefit from the charitable endowments.
Oct. 18, 1890.] THE LAW TIMES . [Index - lxvü
SUBJECTS OF CASES.
The governing body of the school claimed that by the usual Lloyd's policy, with the running.
down clause attached . The defendants 'ship came
the whole school premises (except the masters'
houses) were exempt from inhabited house duty as into collision with another ship , and caused and
coming within the exemption in 48 Geo. 3, c. 55, suffered damage ; both ships were to blame. The
defendants' ship was fully insured by policies in
sched. B., case 4, in favour of any " hospital, theusual form of Lloyd's policy with the running.
charity school, or house provided for the recep
tion or relief of poor persons." The Commis .
sioners of Income Tax held that the sanatorium .
down clause attached . It was admitted that the
ered by the defendants ' ship exceeded
Uskites, was exempt, but that the other premises that inflicted by her on the other ship , and that
did not comewithin the exemption , and they the owners of the other ship had paid the defen
dants a sum equal to the difference between half
assessed the premises to inhabited house duty
accordingly. Held (affirming the decision of the of the amount of the damage sustained by their
Commissioners), that the school buildings and ship and half of the damage sustained by the
premises in question, at the time the assessment
was made, did not come within the exemption as &
defendants' ship . The plaintiffs brought theirof
action to recover a sum of money in the hands
* charity school," as the school, being in the main the defendants,which sum the defendants claimed
self-supporting, and by far the larger portion of it to be entitled to retain as an indemnity in respect
could be carried on without the aid derived from of the proportion of the damage to the colliding
the charitable foundation, it could not properly ship which had been taken into account in adjust
be called a “ charity school ” because a small pro ing the amount to be paid by the other ship , and
which proportional sum was not covered by the
portion of the scholars derive benefit from the ordinary running -down clause in their policies.
charitable foundation whence originally sprung
it .
(The Governing Body of Charterhouse School v. Held , that the true principle for adjusting the loss
from collision in such a case was that of a single
Lamarque.) ... ... ... ... ... ... ... ...page 907 liability
Exemption from - Library - House used for " trade and not cross-liabilities, and that, as the
or business " --Attendant occupying sitting-room defendants had not been called upon to contribute
and sleeping on premises – Customs and Inland anything in respect of the damage done to the
Revenue Act 1878 — “ Servant or other person.” other vessel, they were not entitled to call upon
The London Library occupy a house which is used the plaintiffs to indemnify them in respect of a
as a library and reading-rooms for the use of loss or damage which they had Association
(The London Steamship Insurancenot sustainedv ..
members. The income of the library is derived The Grampian Steamship Company.) ... ...Page 784
solely from the subscriptions of members, and the
library is not conducted with a view to making
any profit for the members. The use of a sitting
room and bedroom is given, in addition to his
INTERNATIONAL LAW .
wages, to an attendantwho with his wife dwells Privileges of ambassador - British subject resident
inthethese rooms, both by day and also by night, for in England, secretary of foreign embassy —
protection of the premises , and no other person Exemption of, from liability to parochial rates.:
dwells on inhabited
the premises. Held , that the library is A British subject resident in England in the
liable to house duty , as it does not come service of a foreign State,as an accredited mem
ber of its embassy in London , and received and
within any of the exemptionsspecified in sub-sect.2 recognised as such by the English Government, is
of sect. 13 of the Customs
and Inland Revenue entitled to the privileges of the Corps Diplomc
Act 1878 . ( The London Library, apps., v. Carter , tique ; and therefore, unless, at the time of his
Surveyor of Taxes, resp .) ... ... ... ... ... ... 456 reception by the English Government, the con
INSURANCE. dition thathe should be subject to the local juris
diction of his own country was imposed upon him ,
LIFE. his household goods and effects are exempt, under
Policy - Payment of premiumsby stranger - Lien . the localAct, 59 Geo. 3, c. 73 , 8, 169, from liability
A ., the owner of land, and also of a policy of to seizure for parochial rates. (Macartney v.
life assurance on his own life in the office of the Garbutt and others.) ... ... ... ... ... ... ... 6
... ... 656
B. company,mortgaged both these properties to JOINT SPECULATION .
the B . company. It was provided that the mort
gage debt shonld be reduced by instalments, and
the mortgage deed contained a covenant by A . to
Buying and selling of land - Partnership - Conver
sion . - H ., who was a solicitor , had formany years
pay the premiums on the policy , and a power of previously to his death been engaged in various
sale was given to the mortgagees (inter alia ), if
there should be a breach of the covenant, to keep
land speculations jointly with c. The specula
tions consisted in the buying and selling of plots
ap the policy . A . sold the land subject to the of land, the laying out of the land for building
mortgage to C ., but retained the policy, and
agreed to pay the premiums. He afterwards
purposes, and the advancing of money to builders.
The lands were generally bought in consideration
failed to pay the premiums. The B . company of chief rents, and then sc.ld to builders at
thereupon called upon C . to pay the premiums, increased chief rents, which were retained by H .
and threatened to call in tho mortgage and exer and C . The conveyances of the lands bought
cise their power of sale if he failed to do so. C . were taken either to H . and C . jointly or to C .
accordingly paid the premiums, and claimed to alone. A banking accountwas kept in the names
have it declared that he was entitled to a lien on of H . and C ., and statements of account were
the policy for the premiums so paid . Held , that made out every half year, but there were no
C. was not under the circumstances entitled to partnership articles between H . and C . Upon
any lien on the policy . Held further (per Lindley, the death of H ., there being an intestacy as to
L. J.), that C . might have been entitled to a lien certain lands and chief rents which had been ac
if the terms of the agreement between him and A . quired by him in the course of his joint specula
had not by implication excluded it, and that the tions with C ., the question arose as to whether
list of persons in Re Leslie ; Leslie v. French H .'s share ofthe property went to hisheir-at-law or
(48 L. T. Rep . N . S. 564 ; 23 Ch. Div. 552), who
may obtain a lien on a policy is not exhaustive. to his next of kin, as being partnership property
and subject to conversion . Held , that the proper
(Strutt r. Tippett.) ... ... ... ... ... ... ... 475 inference to be drawn from the evidence and
MARINE. statements of account was, that the relations
which had existed between H . and C. was that of
Satualinsuranc e for prote ction - Ordinary running. partners , and that they were not co -owners of
down clause - Collision - Assured 's ship in equal real estate , but that the property in question con
fault- Non-liability of insurers.-- The defendants stituted partnership assets. Held , therefore ,
insured their ship in the “ protecting class ” of that the property must be treated for the purpose
the plaintiff association , a limited mutual marine of devolution as personal estate of H ., to which
insurance association , to indemnify them against his next of kin were consequently entitled. (Re
any loss or damage to any other vessel not covered Hulton ; Hulton v . Lister.) ... ... ... ... ... 200
Ixviii - Index.] THE LAW TIMES . [Oct. 18, 1890 .
SUBJECTS OF CASES.
JUDGMENT DEBTOR . May 1879 C .demised to M . a plot of land for 993
Death of Appointment of receiver - Abatement years, at a yearly rent amounting to 111. 78. 8d .
Order XVII.. rr, 7 4 . - S. was entitled to freehold In April 1878 M . assigned to A ., the predecessor
property subject to a mortgage, and a judgment in title of the plaintiff, by way of mortgage, a
creditor applied for the appointment of a receiver portion of the land for the residue of the term , at
by way of equitable execution . The hearing of the an apportioned rent of 31. 178. 8d., subject to a
application was adjourned , and S . died . Two days proviso for redemption , and he covenanted to pay
after his death the receiver was appointed with the entire yearly rent and indemnify A ., his
out the action being revived or the heir-at-law executors, administrators, and assigns, from all
being bronghtbefore the court. Held , that there damage by reason of its nonpayment. By an
order, as therc
indenture of underlease, dated in May 1879, M .
no jurisdiction
was no
was to makehistheestate
one to represent before the demised to W ., the predecessor in title of the
court. Order XVII., r. 1. applies and keeps an defendants, another portion of the land for
action alive when on the death of a party there the residue of the term save the last ten days, at
is a devolution of his interest upon a person who an apportioned rent of 61. 68.6d., and covenanted
is a party to the action ; but it does not apply to pay the entire rent and to keep W . indemnified
against the nonpayment. M . being unable to
when the devolution is upon a person who is not a pay the rent reserved by the lease, the landlord
party. (Re Shephard ; Atkins v. Shephard .) ...page 337 applied to the plaintiff, who was mortgagee in
possessionforand on whose lands buildings had been
JUSTICES. erected , payment of the whole rent, which he
public footpath paid under threat of distress. The question was,
- Conviction for — “upFairpostandin reasonable
Jurisdiction — Pulling sup. whether the defendants were liable to contribute
position of right ” – Malicious Injuries to any , and what portion , of the rent. Held , that
the plaintiff was liable to the original lessor, and
Property Act 1861. – The respondent's wife
the owner of the land on each side of a public
was that the defendants being under-lessees the land .
footpath and also of the land over which the foot lord could not demand rent from them ; that
path passed. To prevent his cattle straying along there was no common obligation between the
the footpath , the respondent erected in themiddle parties, and that therefore there could be no right
of the footpath two wooden posts, one at the of contribution . (Johnson v . Wild .)... ... ...page 537
entrance to the footpath , the other some distance
further down the path . There was a space of
Public -house - Lease by brewer - Covenant not to
about two feet on either side of these posts sell beer other than that purchased from lessors
through which foot passengers could but cattle or assigns - Covenant running with the land
could not pass. The appellants, with a number of Assignment of public-house and benefit of cove.
others, inhabitants of the district, considering nant. - By a lease madebetween C . and W ., there.
that these posts interfered with their use of the inafter called “ the lessors, including in such
footpath , pulled up one of them and threw it over term each of them , their , each and every of their
the fence. They were convicted, under sect. 52 heirs, executors, and administrators, and assigns " )
of 24 & 25 Vict. c. 97, of having committed wilful of the one part and H . of the other part, a public
damage to the post. Held (quashing the con house was demised to H . for a term of years, H .
viction), without deciding the question whether covenanting with the lessors not to sell in or
the post in the footpath was an obstruction or not, upon the demised premises any beer other than
that, even assuming it not to be an obstruction, beer purchased from the lessors or from either of
the appellants had acted under a fair and reason. them , either alone or jointly with any other per.
able supposition that they had a right to do what son or persons who might thereafter become a
they did , and that they therefore came within the partner or partners with them or either of them ,
proviso of the section , and ought not to have been provided they or be should at such time deal in
convicted , as the jurisdiction of the justices was or vend such liquors as aforesaid , and should be
ousted. (Usher and others, apps., v. Luxmore, willing to supply the same to the said lessee of
resp ) ... ... ... .. good quality and at the fair current market price
*** . .. ... 110 thereof. At the date of the lease C . and W .
carried on business as brewers at the A . brewery ,
LAND CHARGES. and they also sold beer not brewed by themselves.
Expenses incurred by sanitary authority - Regis. They subsequently sold the A . brewery with the
tration of such expenses as “ land charges " - plant, business, and goodwill to N ., and conveyed
Public Health Act 1875 (38 & 39 Vict. c. 55), their reversion in the lease of the public-house to
8.Act2571888
- Land Charges Registration and Searches him with the benefit of the covenants in the lease ,
- Mandamus to compel registration of and expressly assigned to him the benefit of the
such charges - Result of rule for. -- The corpora aforesaid covenant. They then ceased to carry
tion of N ., as the sanitary authority , had carried on business and dissolved partnership . N . did
out certain paving and draining works in respect not use the A . brewery ,but carried on his brew .
ing business at M . brewery, which was near
of certain premises, and the expenses so incurred
became,by virtue of sect. 257 of the Public Health thereto . H . declined to take his beer from N .,
Act 1875 , charges on the premises, one of such and the latter brought an action in his own name
charges arising before and one after the passing and those of C . and W . claiming an injunction
of the Land Charges Registration and Searches in the termsof the covenant to restrain H . from
Act 1888. On the charges being tendered for taking or selling beer other than such as should
registration under sect. 10 of the last-mentioned have been purchased from N ., either directly or
through C . and W . Held , that the benefit of the
Act, as being “ land charges ” within themeaning covenant was not limited to such of the lessors'
of thatRegistry,
Land vice-registrar
Act, the doubting of thetheyOffice
whether of
came assigns as should carry on business at the lessors '
within the scope of the Act, refused to register brewery ; that the covenant was not a personal
them , and on a rule for a mandamus to compel covenant with the lessors, but the benefit of it ran
him to register them it was Held , discharging the at law with the reversion ; that the principle of
rule , that such charges, arising under the Public Tulk v. Moxhay (2 Ph. 774) applied , and the plain
Health Act 1875 , were not " land charges ” within tiffs were entitled to an injunction . (Clegg v .
the scope or
meaning of the Land Charges Regis . Hands.) ... ... ... ... ... ... ... ... ... ... 501
tration and Searches Act 1838 , and were not Removal of goods to avoid distress - Action for
intended or required to be registered under it. double value - Bill of sale over goods - Goods
(Reg. v. The Vice-Registrar of the Office of Land notsale
the holder
property of thefivetenant
Registry.)... ... ... ... ... ... ... ... ... ... 117 of within days -from
Removal by- bill
seizure No
LANDLORD AND TENANT. right of action in landlord. - An action for double
value under 11 Geo . 2 , c. 19, s. 3, cannot be main
Assignment - Sub-demise - Nonpayment of rent tained by a landlord against a bill of sale holder ,
Common obligation - Right of contribution. - In I who, with the consent of the tenant, the grantor
Oct. 18, 1890.) THE LAW TIMES. [Index- lsix
SUBJECTS OF CASES.
of the bill of sale, removes the goods comprised be consumed off premises - Seller of beer by retail
in the bill of sale from the tenant's premises, to - The Game Act 1831. — The holder of an addi
prevent the landlord from distraining the same tional licence to sell beer to be consumed off the
forarrears of rent ; the section only applying to premises , commonly called a grocer's licence,
a removal of the tenant's goods, and the goods under the 1st section of the Act 26 & 27 Vict.
comprised in the bill of sale ceasing to be the licensed
c. 33 , is a person “ to sell beer by retail ”
legal property of the tenant from the time of the within the meaning of the 18th section of the
execution of the bill of sale. Sect. 13 of the Bills Game Act 1831, and is therefore disqnalified from
of Sale Act (1878) Amendment Act 1882 applies holding a licence under that section to deal in
only as between the grantor and the grantee of a game. (James Shoolbred and Co., apps., v . The
bill of sale, and does not enable a landlord to sue
the grantee for removing the goods within the
Justices of St. Pancras, resps.)... ... ... ...page 287
five days in order to avoid a distress. (Tomkin . Mandamus - Application for transfer of licence
son v.Limited
Consolidated Refusal of transfer to one tenant- Application
tion .)... ...Credit
... and
... Mortgage
... ... ...Corpora
...pcge 162 for transfer by subsequent tenant- Res judicata .
-- The holder of a licence for the sale of intoxica
ting liquors left his house during the currency of
LANDS CLAUSES CONSOLIDATION AUT 1845. the licence. Some months afterwards a new
Railway Clauses Consolidation Act 1815 – Land in tenant entered, and applied at a transfer sessions
juriously affected - Obstruction of ancient and for a transfer of the licence. The justices refused
new lights - Compensation. - A railway company, the transfer, and suggested an application for a
by the erection of a warehouse under the powers new licence. A new licence was subsequently
conferred on them by their special Act, which applied for and refused. Before the expiration of
the original licence, another tenant entered and
incorporated the Lands Clauses Act 1845 aud the applied for a transfer, but the justices refused , on
Railway Clauses Act 1845 , obstructed the passage the ground that they had already gone fully into
of light to an adjacent building. This building had the matter on the application by the previous
been lately erected on the site of an old building tenant, and that the matter was res judicata .
which had acquired a right of free access of light Held (making absolute a role for a mandamus),
under the Prescription Act 1832,and certain por that the justices were bound to hear the latter
tionsof thewindows in the new building coincided application , as they could not refuse to hear it on
with certain portions of the windows which had the ground that they had heard and disposed of a
esisted in the old building. The owners of the similar application in the case of a previous
new building claimed compensation for damage tenant. (Reg . v. The Justices of Upper Gold
bytheirobstruction of light in respect of the whole of cross.) ... ... ... ... ... ... ... ... ... ... 112
windows, including thewindowsand portions
of windows which did not coincide with their Provisional licences - Power to renew provisional
ancient lights. Held , that the claimants were licences - Refusal by justices to renew - Right of
entitled to be compensated by the railway com . appealagainst such refusal - Licensing Act 1874
pany for the obstruction to the passage of light Licensing Act 1828. - Sect. 22 of the Licensing
not only to those portions of windowswhich coin . Act 1874 enables the licensing justices, if satisfied
cided with the ancient lights, but also to the new with the plans submitted to them , to give a pro
visional grant of a licence to any person interested
windows. (Re An Arbitration between the Lon.
don , Tilbury , and Southend Railway Company in any premises about to be constructed or in
and the Trustees of the Gower's-walk Free course of construction for the purpose of being
Schools.) ... ... ... ... ... ... ... ... ..." ... 306 used as a house for the sale of intoxicating liquors
to be consumed on the premises. Held , that a
LEGITIMACY DECLARATION ACT 1858. provisional licence granted under that section may
Marriage in Japan - Husband a domiciled British be renewed from time to time like any other
subject - Wife a native of Japan - Lex loci con licence, if it requires renewal, even though the
tractus - Monogamous marriage - Validity. -- The house has been completed and a final order under
petitioner was a British subject, his domicile of the same section refused ; and secondly , that, if
origin being Irish . When temporarily residentin the justices refused to renew such provisional
the empire of Japan, he married a native of that licence, an appeal lies to the quarter sessions
against such refusal, as in the case of a licence
country in accordance with the laws of thesame, finally granted. (Reg . v. The Justices of the
which recognised monogamy as the basis of the County of London.) ... ... ... ... ... ... .. 45S
matrimonial
the Legitimacycontract. UponActpetition filed under Sale- Quantity
by retail--ofLicensing
beer to beconsumed off the premises
Declaration 1858 : Held , that Act 1872 — Inland Revenue
the marriage was valid in this country also . Act 1863 — Beerhouse Act 1834 (6 Geo . 4 , c. 81), s. 2 .
(Brinkley 0. The Attorney-General.) ... ... ... 911 - The holder of an excise licence under 6 Geo. 4 ,
LICENCE . c. 81, s. 2, may sell beer in casks containing not
less than four-and-a half gallons or in not less
- Applicant -previous
InnDisopalification ly convicte
Released
d of felony
and pardoned _ Effect
quantity than two dozen reputed quart bottles at
one time. A holder of a licence under this Act
of freeActpardon sold beer in pint and half-pint bottles, but the
1870,- s.Wine
14. - and
It is Beerhouse
ment ActtheAmend.
provided by Wine quantity so sold at one timewas not less than that
and Beerhouse Act Amendment Act 1870 , that contained in a cask of four-and-a -half gallons or in
every person convicted of felony shall for ever be two dozen reputed quart bottles. He was convicted
under sect. 3 of the Licensing Act 1872 of having
disqualified from selling spirits by retail, and no
licence to sell spirits by retail shall be granted to
any person who shall have been so convicted as
sold
Held beer
, thatby
theretailwithout
quantity sold ata one
licence. Onappeal
timewasthe test:
aforesaid . TheDivision
appellant appliedtransfer
to the justices ofa sale ofbeer by retail, and therefore the convic.
of the Tower for the to him of tion was wrong. (Fairclough v. Roberts.) ... ... 700
the licence of a fully licensed house. The appli (See BETTING.)
cation was refused upon the ground that the
applicant had been convicted of felony, although LIFE INTEREST.
he proved that he had received a “ free pardon ” Forfeiture on bankruptcy - Scotch sequestration .
in respect of the conviction . Held , that the free H . J . was entitled under a will to the income of a
pardon " placed the appellant in the same posi legacy of 15 ,0001. for his life, or until " he shall
tion as to status and character as the was before become a bankrupt . . . or shall do or suffer
his conviction, and that he was therefore entitled something whereby the same or some part thereof
to be treated as a person who had not been con would , through his act or default, or by operation
victed, and to have the licenco transferred to him . of law , or otherwise, if belonging absolutely to
(Hay v. Justices of the Tower Division .) ... ... 290
Licence to dealin game- Disqualification from hold . I him , become vested in or payable to some other
persons or persons.” On the 31st July 1889 se.
ing such licence--Grocers' licence to sell beer to . questration of the estate of J. H . was awarded in
lxx - Index.] THE LAW TIMES. (Oct. 18, 1890 .
SUBJECTS OF CASES .
Scotland , upon a petition by himself and another ; these main roads, as parts of such main roads,
but atthe first meeting resolutions for winding and is also under the same liability in respect of
paved or pitched crossings over such main roads,
up tbe estate by a deed of arrangement were
passed , and no trustee was elected. On the 15th and that, as to alterations, if the local board alter
Oct. 1883 the sequestration was recalled by the the pavement or flagging of the footways in the
Lord Ordinary . Between the dates of the pre streets of the town , the county council is liable
sentation of the petition and the recall certain for the costs of such alteration, provided that
dividends and sums of interest payable in respect such alteration is a reasonable improvement ; and
of the legacy of 15 ,0001. came into the hands of the if there be any dispute as to the reasonableness
trustees of that legacy , and were lodged in a bank . of the alteration, or as to the payment to be made,
According to Scotch law H . J . was made a bank such dispute is to be settled by arbitration of the
rupt by the sequestration ; but until the election Local Government Board, as provided by sub
and confirmation of a trustee a sequestered estate sect. 3 of the same section . (Re The Local Board
did not become vested in another person . Held , for the District of Warminster and the County
that, although there was a bankruptcy, the right
to receive the income had not vested in any other
Council of the County of Wilts.) ... ... ...page 902
person , and therefore the forfeiture claase did not Local Improvement Act - Pablic Health Acts - Bye
operate as a defeasance. (Re James ; Clutterbuck laws thereunder - Conversion of conservatory into
part of dwelling
v. James.) ... ... ... ... ... ... ... ... ... page 454 constructed -house - Building not originally
for human habitation - “ Addition to
LIGHT. existing building " _ " Erection of new building ”
- Notice to surveyor - Summons for breach
Implied obligation - Railway arch - Obstruction of bye-laws – Dismissal of, by justices. – By
Mandatory injunction - Prescription Act. - In 1863 sect. 111 of a Local Improvement Act, “ the
erection of any building . . the conver
a railway company granted land with a house on it sion into a dwelling-house of any building not
to M ., together with all the rights, easements, and originally constructed for human habitation ," and
appurtenances thereto belonging . Therailway was “ the making of any addition to an existing build
eight feet from M .' s house, and was carried past ing by raising any part thereof, or making any
it on a viaduct, the arches of which were fifty projection therefrom ," shall for the purposes of
eight feet long. Light came to certain windows this Actand the Public Healths Acts, and of any
of M .'s house
viadu ct.
through two of the archways of the
In 1872 the railw company conve
ay yed bye-laws thereunder respectively, “ be deemed
the fee of some surplus land on either side of the tothebeword
an "erection of a new building," and
building " shall. for all such pur
line,and gave a long lease of the archways to the
predecessor in title of C . In 1887 C . blocked up poses, include “ an erection of a building of a
one of the arches by placing a wooden hoarding permanent character of whatever material con
on the side nearest to M . ' s house , and thereby structed .” By one of the bye-laws it was pro
caused a diminution of the light to M .'s windows. vided that “ every person before beginning to
Held, that there was implied obligation by C . not erectlawa building
bye- relating ortoexecute any work tomaywhichapply
new buildings any,
to interfere with M .'s access of light; and that, as shall deliver or send to the surveyor a written
this obligation was not restricted by any reason notice of the date on which he will begin to
able presumption on the part of M . that the arches build or execute the work ; and by another bye
would be blocked up , a mandatory injunction must
be granted to prevent the continuance of the ob lawa penalty is imposed for offences against the
bye-laws. The respondent, a builder , at the west
struction . (Myers v . Catterson .) ... ... ... ... 205 side of his dwelling-house, immediately over the
ground floor portion of it that was ocennie
LOCAL GOVERNMENT. brick -built scullery, had erected, in accordance
District local board - County council- Main roads with duly approved plans, a conservatory , the
Footpathsand footways of - Paved crossings over west, north , and south walls of which consisted
main roads - Cost of maintaining and repairing, of a framework of wood , filled in with glass, the
& c. - Highways and Locomotives (Amendment) access to it being through a French window or
Act 1878 — The Local Government Act 1888. - The door in the western external wall of the first floor
localboard of W . is an arban sanitary anthority , room of the house . Subsequently be pulled the
and within the urban sanitary district there are conservatory down , bricked up the French window
certain roads, which are main roads within the or door, and raised the external walls of the
meaning of the Highways and Locomotives scullery to the same height as that to which
(Amendment) Act 1878 . On each of these main the conservatory had reached , and thereby
roads there are footpaths or footways, which in
the streets of the town were flagged . paved , or
erected over the scullery a brick-built bedroom ,
occupying the same position and no greater space
asphalted as ordinary street pavements in towns, than the conservatory had done. On summons
and in other parts weremacadamised or gravelled . for infringing the bye-laws, by omitting to give
Certain questions arose between the local board the required notice to the surveyor, the justices
and the county council of the county as to (1) dismissed the summons, on the ground that, inas
whether, under sect. 11 of the LocalGovernment
Act 1888 . the county conncil is liable for the main
much as the bedroom occupied no greater space
than the conservatory previously occupied, it
was not “ an addition to an existing building "
tenance and repairs of the footpaths or footways
on the sides of these main roads as parts of sach within sect. 111 of the local Act. Held , on case
main roads ; (2) the like question as to paved or stated by the justices for the opinion of the court,
pitched crossings over such roads ; (3) the like that they were wrong in dismissing the summons
question as to scavenging , cleansing, and watering on that ground ; as, although no greater space was
main roads and the footpaths thereon ; (4) the occupied by the bedroom than by the conservatory,
like question in respect of lighting main roads ; it was “ an addition to an existing building,"
(5 ) whether, if the local boards alter the pave within sect. 111, and the case must be remitted
ments or flagging of the footways in tbe streets of to the justices with an intimation of the
the town, the county council is liable for the cost opinion of the court. (Meadows, app., v. Taylor,
of such alteration . The claim for lighting was resp .) ... ... ... ... ... ... ... ... ... ... ... 0
abandoned by the local board ; and the claim (See also “ Metropolis Management Acts " and
for scavenging, cleansing, and watering was ad
mitted by the county council to the extent of their “ Public Health Act 1875." )
being necessary for the maintenance of the roads.
Held , that, ander sect. 11, sub-sects. 1 and 2,of LUNATIC .
the Local Government Act 1888 , the county Implied obligation to pay for necessaries, Where
council of the county is liable for the costs of the necessaries are supplied to a lunatic by a person
maintenance and repair, and reasonable improve. who knowshim to be a lunatic, there is an implied
ment connected with the maintenance and repair , obligation on the part of the lanatio to pay for
of all the footpaths or footways on the sides of Ỉ₂\₂\ \₂\₂ÂÒ₂Âò❤❤ū₂\₂₂\₂₂\₂₂\\₂\Ầ₂₂ ₂₂ ₂₂₂\/\₂₂\\₂3–₂
Oct."18, 1890.) THE LAW TIMES. [ fides - lxxi
SUBJECTS OF CASES.
Maintenance – Necessaries -- Implied contract. - A Argentine Loan and Mercantile Agency Company
lady, a lunatic, not so found by inquisition , had Limited .) ... .. . - Page 602
certain property of her own, which produced a (See ANTICIPATION.)
small income. Her brother A . B . placed her in Separate use - Will- Contingent interest — “ Title.”
an asylum at the cost of 1401. a year, being more - J . S ,by his will left 16002. to trustees upon trust
than the lady's private income. A . B . died , and for his daughter, E . Bird, remainder to her
his son C . D . and other members of the family husband for life, remainder for her children and
continued the maintenance of the lunatic at this issue, “ and if there should be no child or other
sum . On the death of the lunatic intestate , issue of my said danghter who shall attain a
C . D ., as erecutor of A . B . and administrator of vested interest in the said trust moneys, funds,
the intestate, claimed to retain so much of the and securities, then the same shall be in trust for
lunatic's estate as would repay the extra cost of such person or persons as at the time of the
the maintenance of the lunatic defrayed by these
persons. In an administration action brought by failure of the preceding trusts would be my next
the next of kin against C . D ., the chief clerk of kin , and entitled to my personal estate under
the statutes for distribution of the personalestate
refused to allow the payments made by these of intestates if I had then died intestate,and in the
persons towards the maintenance of the lunatic. proportions in which they would be so entitled .”
C . D . then took out a sommons to vary the chief J . S ., the testator, died in 1879. E . Bird died on
clerk's certificate by allowing this extra expense the 21st May 1886 , without leaving any husband
to be repaid out of the lunatic 's estate , on the or having had any issue. One of the next of kin
ground that the payments were for necessaries. of J. S. if he had died at the same timeas E . Bird
Held , that it was not proved that the placing of was E . P . She married in 1857,made her will in
the lunatic in an expensive asylum was a neces. 1887, and died on the 10th Sept. 1889, leaving her
sary . Held also , that it was not proved that the husband her surviving. The plaintiff proved her
payments made by A . B . were not in the nature will. On originating summons : Held , that the
of a gift. (Re Rhodes ; Rhodes v . Rhodes.) ...page 22 property in this case first accrued in title and in
Person violent and dangerous-- Removal to work .
house, expenses of – Right of guardians to
terest to E . P . on the death of E . Bird on the 21st
May 1886 , and by sect. 5 of the Married Women 's
recover such expenses -- Common law liability Property Act 1882 she was entitled to it for her
Necessaries – Lanatic Asylums Act 1853. - A
person suwering from delirium tre
separate use, and it passed by her will dated in
1887, and her husband was not entitled to it in
violent in his own house , used threats and broke his marital... right. (Re Parsons; Stockley
Parsons.) v.
thewindows and furniture ; a relieving officer of ... ... ... 929
the union was sent for who ordered his removal (See also Whittaker v, Kersha. w , page 776.)
to theworkhouse where he was kept for some days. Will - Married Women 's Property Act 1882. - By a
Hewas then examined by a doctor and brought settlement executed on a marriage in 1863 the
before the magistrates as a lunatic , but as the wife's property was limited , in default of issue,
magistrates held that he was not a lunatic he upon trust for her absolutely if she survived her
was discharged . Certain expenses were incurred
by the guardians in respect of these services . husband, but if she should dig in his lifetime,
Held , that, apart from the Lunacy Acts, there then upon such trusts as she should by will appoint,
and, in default of appointment, for her next of
was a common law liability upon such person to kin . · The wife , during coverture, made a will
s
repay to the guardian the expenses so incurred , dated in 1886 , by which , if she should die in her
and that the guardians therefore could recover husband's lifetime, she appointed the fund to
such money ass necessaries expended by them . trustees upon certain trusts, and she bequeathed
(The Guardian of the West Ham Union v . to them upon the same trusts all the property she
Pearson .) ... ... ... ... ... ... ... ... ... ... 638 could dispose of by will. She survived her
MAGISTRATE . husband , and died without republishing her will,
and without having had any issue. Held , that
Summons for libel - Power to adjourn when civil the will did not dispose of the settled property .
proceedings pending between other parties arising Sect. 1, sub-sect. 1, of the Married Women's Pro
out of same matter - What is exercise of dis perty Act 1882, must be read with sects. 2 and 5 ,
cretion . — A magistrate cannot juäicially con and therefore a married woman has no power
sider, as ground for adjourning a summons for ander it to dispose of property which does not
libel, pending civil proceed between
parties for a different libel,ings differen come within either of the two latter sections.
though arising out oft (Re Cuno ; Mansfield v . Mansfield .) ... ... ... ... 15
the samematters. (Reg. v. Evans and others.)... 570 MERCHANDISE MARKS ACT 1887.
MARRIED WOMAN . False trade description — “ Intent to defraud ”
Separate estate - Partnership — Contract to in. Jurisdiction of magistrates. - A gunpowder manu.
demnify - Married Women's Property Act 1882. facturing company had contracted with Her
- A married woman suing as a member of a firm Majesty's Government to supply 5000 barrels of
has thereby sufficient separate estate to justify a certain class of powder known in the trade as
her in maintaining an action . A company entered R . L . G . 4 . There were no stipulations in the con.
into a contract with a business firm to indemnify tract that the gunpowder should be of the com
them against a particular claimant, the company pany's own manufacture, or that it should be of
being at liberty to use the name of the firm in English manufacture. The companybeing unable,
defending any action brought by the claimant, through no fault of their own, to fulfil their con
and the firm agreeing to give all assistance tract, imported gunpowder from Germany. This
required . At the time when this contract was gunpowder - which was equal in quality to , and
entered into an action had been commenced by accurately described as, R . L . G . 4 - was on its
the particular claimant ; it was defended by the receiptby the company taken out of the cylinders
company in the name of the firm , and in their in which it was imported and which were labelled
pleadings the company stated that E . had become " manufactured in Germany," and was placed and
the surviving partner of the firm . Judgment was supplied to the Government in barrels to each of
given in the action against the firm , and execu which was affixed the following label, “ Gun.
tion was threatened . E ., who was a married powder , 110 lbs. Chilworth Gunpowder Company
woman, would not sanction an appeal to the Limited , R . L . G . 4 ; " which was the label pre
House of Lords, and brought an action against scribed by the Government. On a prosecution
the company to enforce the contract of indemnity . being instituted under theMerchandise Marks Act
Held, that E . was entitled to the benefit of the 1887, against the company on the above facts, the
contract of indemnity , as she was, in any case , magistrates found that the label was not a “ false
estopped from denying her liability as surviving trade description " within the meaning of the
partner of the firm , and was consequently statute , and that there had been no “ intent to
liable under the judgment. (Eddowes v. The defraud," and they accordingly dismissed the case.
Ixxü - Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
Held, on appeal, that the label was a “ false trade Held , that the ashes and clinkers were domestic
description " within the meaning of sect. 2 of the refuse, and not the refuse of a trade, manufacture ,
Merchandise Marks Act 1887, and that there had or business, and that therefore the appellants
been an “ intent to defraud," in the sense of an were not entitled to extra payment for the re
intention to mislead the purchaser,and that there moval of the same. (St. Martin 's Vestry, apps.,
fore the magistrates ought to have convicted. v . Gordon, resp .) ... ... ... ... ... ... ...page 555
(Starcy v. The Chilworth Gunpowder Manufac Summary Jurisdiction Act 1879 - Refusal of magis
turing Company.) "... " " " . ... ... ...Page 73 trate to state a case -- Question of law - Removal
of refuse - Ashes — " Trade refuse." - It is pro
METROPOLIS GAS ACT 1860. vided by the Metropolis Local Management Act
Supplying gas for sale -- Gas used within limits of 1855 (18 & 19 Vict. c. 120 ) that the vestries shall
another company's
Metropolis Gas Act district.
1860 a -certain
By sect.district
6 of was
the appoint persons to remove all dirt, ashes, & c.,
within their parish ; that if the owner of any
assigned to each metropolitan gas company, and premises shall require the scavenger to remove
it was provided that no other company or person the refuse of any trade, such owner shall pay to
should " supply gas for sale within the said the scavenger a reasonable sum for such removal ;
limits," unless authorised by Parliament to do so. that the justices shall determine whether the
Bysect. 14 the supply of gas to owners or occupiers matter is or is not the refuse of trade, and the
of premises within or partly within the company's decision of such justices shall be final. The
district requiring such supply was made compul Summary Jurisdiction Act 1879, s. 33, enacts that
sory . A railway company had a station which was any person aggrieved who desires to question the
partly within the district of the appellant com order of a court of summary jurisdiction, on the
pany and partly within that of the respondent ground that it is erroneous in point of law , may
company . The respondents, on being required to apply to the court to state a case , and , if the
do so by the railway company, provided a meterat court decline to state a case , may apply to the
a point within their own district from which they High Court of Justice for an order requiring the
supplied gaswhich wasused for lighting the whole case to be stated. The vestry of St. M . refused
station, including the part within the appellants ' to remove, unless paid for doing so , the ashes and
district, to which it was conducted through pipes other refuse produced by furnaces at an hotel in
laid on the premises of the railway company. the furnaces for supplying
Held (reversing the judgment of the court below ), the parish , suchlight
plantric
electric light and being
and otherusedpurposes
other . The
that this wasan infringement of the provisions in manager of the hotel applied to one of themetro
sect. 6 of the Metropolis Gas Act 1860. (Gas Light politan police magistrates, who decided that the
and Coke Company v . South Metropolitan Gas ashes were not trade refuse, and that the vestry
Company.) ... ... ... ... ... ... ... ... ... 126 must remove them withappl
beha of the vest an out
extra payment. On
was made to
lf ry ication
METROPOLIS MANAGEMENT ACTS. the magistrate to state a case for the opinion of
Metropolis Management Amendment Act 1862 the High Court , but he refused to do so upon the
New street “ open at both ends ” - Private road the grounds ( 1) that his decision was final and
conclusi ,and (2 ) that no deci
point of law arose in
Continuing offence. - Tbe appellants were the
owners of a road which had been recently laid the case ve
. Held , that the sion of the magis
out for building as a street for the purposes of trate was not final and conclusive, and that the
carriage traffic , but had not been dedicated to the question whether the ashes were trade refuse or
public. The road communicated with a thorough not depended upon the construction and interpre .
fare, and at their junction the appellants had tation to be put upon the words of a statuto, and
erected, without the consent of the Board of was therefore a question of law upon which the
Works or their successors, certain piers and gates magistrate must state a case. (Reg. v. J. Bridge,
for the purpose of excluding the public. The Esq., Metropolitan Police Magistrate.) ... ... ... 29
appellants were convicted and fined for having Vestry - Officer of - Superannuation allowance to
laid out a road or way for building as a street for Discretion of vestry as to amount of allowance . -
the purposes of carriage traffic, the same not A metropolitan vestry has a discretion under
haviug an entrance of the full width of such 29 & 30 Vict. c. 31, s. 1, to grant or refuse a super
street norbeing open at both ends from the ground annuation allowance to a retiring officer, and also
upward , contrary to sect. 98 of the Metropolis a discretion as to the amount of the allowance up
Management Amendment Act 1862, and to a bye. to the limit imposed by the scale in sect. 4. (Reg.
law made under sect. 202 of the Metropolis on the prosecution of
Vestry of St. Pancras.)Richard Westbrook v. The
Management Act 1855 . Subsequently the appel. ... ... ... ... ... ... 440
lants were convicted for permitting the said road - Powers of- Water-closet, “ proper doors and
to be continued so formed and laid out for a coverings " to - Orderof vestry - Notice to owner
certain numberbuilding
of days. Held , that no new street Recovery of penalties – Jurisdiction ofmagistrate .
laid out for since the passing of the - A vestry gave notice in writing to the owner
Metropolis Management Amendment Act 1862 of a certain house under sect. 81 of theMetropolis
should have barriers across it to exclude the Management Act 1855 requiring him to furnish a
public unless with the consentof the Metropolitan water-closet which was therein with proper doors
Board of Works or their successors, and that the and coverings, and on his neglecting to comply
appellants had been properly convicted of a con therewith he was summoned before a magistrate
tinuing offence. (Daw and Sons, apps., v. The under sect. 64 of the Metropolis Management
London County Council, resps.) ... ... ... ... 937 Amendment Act 1862. The magistrate being
Scavenger's duties - Removal of refuse --Ashes opinion that the water-closet was already providedof
Hotel - “ Trade, manufacture, or business." - It with proper doors and coverings, decided that the
is provided by the Metropolis Management Act vestry had no jurisdiction to order further doors
1855 (18 & 19 Vict. c . 120), and coverings , and that he was not bound by the
vestries shall appoint persons88. 125 -129, that the
to remove all dirt. decision of the vestry , and,
dismissed the summons. Heldon, these grounds,
ashes, & c , within their parish ; that if the owner that the vestry
of any premises shall require the scavenger to re had jurisdiction to make the order, and that the
move the refuse of any trade, manufacture, magistrate had only power to inquire whether
business, such owner shall pay to the scavengerora such order had in fact been made and obeyed .
( The Vestry of St. James and St. John , Clerken .
reasonable sum for such removal. The appellants well, apps., v. Feary , resp.)... ... ... ... ... ... 697
refused to remove from the respondent's
unless paid
hotel,
a reasonable sum for so doing, the MINERALS.
ashes and clickers produced in the furnaces of
boilers used to generate steam for supplying
power for the electric lighting of the hotel, for
Minerals wrongfully abstracted - Compensation
Interest. - By a decree made in 1871, the defendants
heating the public rooms and passages , for cook . were declared liable in respect ofminerals removed
ing, and for working the lift and pumping water. by them from under the plaintiff 's lands,and (inter
Oct. 18, 1890.) THE LAW TIMES. [Index - lsxiii
SUBJECTS OF CASES.
alia ) an inquiry was directed what quantity of 1847. — This was the further consideration of an
minerals bad been so removed by them , and it action brought by a creditoragainst incumbrancers
was ordered that the market price of all such and the Dartmouth Harbour Commissioners , who
minerals at the pit's mouth should be certified , were trustees and mortgagors of the tolls and
all just allowances being made for carriage, but rates raised under their Act of Parliament. A
none for getting or working. The official referee receiver had been appointed and priorities deter
before whom the inquiry was prosecuted reported mined, and money paid into court in the course of
that the value of the minerals taken was the action . The Court directed the taxingmaster
90281. 6s. All the defendants having died , the incoststaxing the plaintiffs' costs to distinguish the
of which the other incombrancers (except
suit was continued against their respective repre
sentatives for the purposes of the inquiry . On the commissioners) had had the benefit in secur.
the further consideration , the plaintiff's claimed ing the fund in court or in determining the rights
interestat 5 per cent, on the amount found to be of the parties to it, and ordered these costs to be
due to them . Held , that the suit could not be paid to the plaintiffs in priority to all other
treated as an action of trover, as in that case the incombrancers, the plaintiffs to add the rest of
maxim Actio personalis moritur cum persona their costs to their security . Held , that by the
would apply . That, treating it (as it must be) as Commissioners Clauses Act 1847, sect. 60 , the
an action for money had and received , the case commissioners were entitled to be indemnified
was not within sect. 29 of 3 & 4 Will. 4 , c. 29. out of the rates and other moneys coming to the
That no fiduciary relation existed between the bands of the commissioners by virtue of that and
plaintiffs and the defendants upon which the the special Acts for all payments made or liability
plaintiff's claim could be supported . And that incurred in respect of any acts done by them , and
the claim to interest ought to have been adjudi. for all losses, costs, and damages incurred by them
cated upon at the trial, and that it was therefore in the litigation , and that this provision applied
too late to raise the question upon the further to the funds now in court, and that the fact that
consideration . (Phillips v Homfray.) ... ...page 897 the commissioners were in the position of mort
gagors did not affect their rights as trustees to
MORTGAGE . reimbursement under this provision . Therefore,
Co-owners - Arrest of ship - Master's claim - Priori. they were entitled to their costs as between soli.
ties --Compulsion of law - Bristol Dock Act 1881 citor and client in priority to the plaintiffs and
- Harbours, Docks, and Piers Clauses Act 1847. other insumbrancers. (Batten , Proffitt, and Scott
The arrestof a ship in an action in rem for a claim v. The Dartmouth Harbour Commissioners.) page 861
legally due from the owners of the ship , although
there be no maritime lien , is a sufficient compul.
Equitable mortgagees – Fraud - Negligence - Legal
estate - Tacking --Priority . - Two equitable mort.
sion of law to entitle mortgagees of part of the gagees having suffered throngh the fraud of
shares in the ship paying off the claim in order to the mortgagor, the first equitable mortgagees
get possession to recover from the owners of the broughtan action against the subsequent equit .
remaining shares the amount so paid . The owner able mortgagees ; these latter had obtained
of 44,64th shares in the steamship 0 , mortgaged possession of the title deeds, and having become
them to the plaintiffs. Subsequently the 0 . was aware of the plaintiffs'mortgage, got in the legal
arrested in the Admiralty Court at the suit of estate. Held, that the negligence necessary topost
pone the first equitable mortgagee in such a case
her master for disbursements. The mortgagor
being insolvent, and the plaintiffs wishing to as the presentmust be so gross as to render him
realise theirsecurity , paid the master's claim and responsible for the fraud committed on the second
the ship was released . The plaintiffs then took mortgagee; Held , that the plaintiffs had notbeen
possession of the 0 . on behalf of themselves and guilty of such gross negligence as to be postponed
the other co -owners, and it was thereupon tothethetitledefendants ; Held , that the possession of
deeds did not confer on the defendants
arranged between the plaintiffs and the co-owners
that the 0 . should be sold on behalf of all parties. an advantage in respect of which they were
entitled to plead that they were purchasers for
and this was eventually done. Whilst the plain .
tiffs had possession of the 0 . she was lying in the value without notice ; Held also , that the legal
Bristol Dock , and they paid the necessary dock estate , which the defendants had got in , did not
does. In the event of the dock dues not being protect them against the plaintiffs' claim ; Held
paid , the 0 . was liable to seizure and sale by the therefore, that the plaintiffs were entitled to
dock authorities under the BristolDock Act 1881,
and the Harbours, Docks, and Piers Clauses Act
priority. (Taylor v. Russell.) ... ... ... ... ... 922
1847. In an action against the co-owners to Foreclosure action - Successive incumbrances —
recover the payments made by the plaintiffs : Annuitant- Conveyancing and Law of Property
Held , that, in the circumstances, there was an Act 1881- Conveyancing Act 1882-- Form of order.
implied promise in law by the co -owners to pay - In a foreclosure action the plaintiffs were first
back the plaintiffs all the money paid by them to mortgagees, and also third mortgagees. The
release the ship ; and that the defendants were defendants were the second incumbrancer, who
also liable to pay their proportion of the dock was a jointress, and several subsequent incum
dues, the payment thereof by the plaintiffs being brancers, whose priorities had not been ascer.
necessarily made on behalf of all theowners. ( The tained. An order was made on the hearing of
Orchis.) ... ... ... ... ... ... ... ... ... ... 407 the action giving the jointress a period of six
months within which to redeem . In case she did
Costs - Incumbrances - Plaintiff's cost of action not redeem , the subsequent incumbrancers were to
Priority. - Where a pnisne incumbrancer brought have one period of three months within which to
an action against other incumbrancers and the redeem ; but in case the jointress did redeem , the
trustees of a will for administration of the estate, plaintiffs, as third mortgagees, were to have a
on further consideration : Held , that, so far as the period of threemonths within which to redeem ,
administration proceedings were proper,and also subject to the jointure, and a further period of
for the benefit of the prior mortgagees, the plain . three months was given to the subsequent incum
tiff was entitled to his costs of such proceedings brancers
ont of the estate in priority to the prior mort Hesketb .)within which to redeem . (Smithett v.
... ... ... ... . . . : .... ... 802
gagees, butmust add the rest of his costs to his — Receiver and manager - Possession . — This was
security. Held also , that the trustees' costs of
the action, so far as such costs were costs of
an action brought by brewers for foreclosure
administration of which the prior mortgagees bad
of a mortgage of a public-house of which the
mortgagor was in possession . A receiver and
bad the benefit, must come out of the fund as manager bad been appointed by order on interlo.
between
Barne solicitor and client. (Re Barne ; Lee v.
.) ... ...
cutory motion in the form given in Truman , Han .
.... ...- 922 bury, and Co. v . Redgrave (45 L . T. Rep . N . S. 605 ;
– Incumbrances - Plaintiffs' costs of action 18 Ch. Div. 547). The mortgagor continued in
Priority - Trustees and mortgagors of harbour
rates - Indemnity - Commissioners Clauses Act
occupation of a part of the premises, and was
alleged to have acted in a manner which inter
lxxiv -Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
fered with the proper conduct of the business by the trustees for the sum of 34,5001. The policy
the receiver. The plaintiff now moved for an was kept up by the trustees. Nothing was ever
order directing the mortgagor to give up posses paid by C . either by way of principal, interest,
premium , or otherwise . C . died in the lifetimeof
sion to the receiver , and restraining him from
remaining in occupation of any part of the his father intestate. The trustees claimed to
premises. retain the policy moneys. The personal represen
entitled to Held, that the mortgagee
such an order before
was not
judgment. tative of C . consequently brought an action
( Taylor v . Soper .) ... ... ... ... ... ... ...page 828 against them to redeem the policy and obtain pay
Mortgage of two estates - Subsequent mortgages of ment of the policy moneys less the amount which
estates to separate mortgagees - Rightof payment should be found to be due to them from the estate
of firstdebt out of two estates rateably . - Where ofproper
C . forcharges.
principal,Held
interest,
, that premiums, and other
thewhole transaction
a person mortgages Blackacre and Whiteacre to
A ., and then mortgages Blackacre to B. and was a mortgage transaction, that the policy was
part of the security , and that consequently the
Whiteacre to C ., the rights between B . and C . plaintiff was entitled to redeem thepolicy,notwith
are to compel the payment of A .'s debt out of standing the expressstipulation that, in the events
the two estates rateably , so that there shall be that had happened, the samo should belong to the
left of those estates the proper proportion for B .
and C . respectively. So . also , where there are defendants. (The Marquis of Northampton v .
two funds, either or both of which A . has the Pollock.) ... ... ... ... ... ... ... ... ...page 313
right to apply in paying himself, and one of such Redemption of first mortgage by second - Loss of
funds is assigned to B . and the other to C ., then , mortgage deed and other documents - Indemnity.
whether that right arises from a positive charge - In 1867 M .mortgaged his life interest in certain
Ỉti/₂₂\\₂₂ \òm₂₂₂ņģēmēti₂\\₂₂/\/₂\/₂ti₂m\/₂ ₂₂/₂₂?₂ti₂m
under which the two funds came into A .' s hands, funds subject to the trusts of his marriage settle
it is a right which he can exercise against both B . ment and three policies of insurance on his own
and C ., and an equity to an apportionment of A .'s life . In 1876 he executed a second mortgage of
debt exists between B . and C . (Moxon v. The his life interest to the plaintiffs. This mortgage
Berkeley Mutual Benefit Building Society..... ... 250 did not include the policies of insurance. In 1886
an action was brought by the plaintiffs against
Recital- Covenant - Solicitor - Auctioneer - Costs. the mortgagor and H ., the legal personal repre
- By a mortgage deed made between two mort. sentative of the first mortgagee, to redeem the
gagors and twomortgagees (one of the latter heing firstmortgage and foreclose the mortgagor. Pend
a solicitor, and theother an auctioneerand valuer ), ing the progress of the action it was discovered
after reciting that the mortgagees took over the that the mortgage of 1867 and the policies were
not in the possession of H ., and an inquiry was
transfers of certain mortgages at the request of directed as to the loss of the documents, and
the mortgagors, on the terms that they should whether any and what indemnity should be given
advance the necessary money at the rate of 41. 108. in respect of the loss in case it should be found
per cent. per annum , and that, on the other hand , that any of them had been lost. In the mean
they should be entitled to make the same charges while the plaintiffs had paid into court the
and receive the same remuneration respectively amount which had been certified to be due to the
for all business done by them respectively in or defendant H . under the mortgage of 1867, and for
about those presents as they would have been her taxed costs of the action . The chief clerk, in
entitled to make and receive if they had not been
mortgagees, themortgagors covenanted with the answer to the inquiry , found that the mortgage of
mortgagees to pay the principal moneys stated to 1867 and the policies had been lost, and he also
be advanced by them out of moneys belonging to found that the plaintiffs were entitled to " such
them on a joint account, and every other sum an indemnity as will equal that which the insur
ance company may require.” The plaintiffs took
which might thereafter be advanced or paid by the out a summons to vary this certificate, by which
mortgagees, or either of them , or become owing
tothemthem or him by the mortgagors, or either of they asked that thewhole of the fund in court
, with interest. The stamp on the mortgage might be retained until further order by way of
deed was sufficient to cover a further 1001. On indemnity to them . The insurance company
taking the accounts under a foreclosure order, declined to make any arrangement with regard to
two sums charged for certain costs incurred by an indemnity until claims should be made on the
topolicies.
a bond ofHeld
the mortgagors to the solicitor-mortgagee after , that theto plaintiffs
indemnity, be given were
by theentitled
defen
the date
with ,andofa themortgage
of 51. 58.and
sum-mortgagee not connected paid
thereto dant H . as executrix, the bond to be settled in
the auctioneer forremuneration,
valu ty chambers in case the parties differed, and that
e
on the occasion of themortgage, were disallowed . they were also entitled to have retained in court
Held, that the mortgage was only intended to the sum of 1001., and no more, to meet any pos.
include sums paid in the nature of advances, and sible costs that migbt be incurred when the
did not include future cost : incurred to the soli. policies should become claims. (Caldwell v.
Matthews.) ... ... ... ... ... ... ... ... ... 79
citorwith reference to other matters. Held also,
that the 51. 58. could not be allowed in the absence Sale - Mis-statementin particulars - Compensation to
of special contract. (Field v. Hopkins.) ... 102, 774 purchaser - Rights of secondmortgagee -- Account.
Redemption - Agreement excluding right to redeem -- In Feb . 1886 the first mortgagees of a building
in a certain event- Validity . - The trustees of an estate sold under their power of sale. In pre
insurance company advanced to C ., the eldest son paring particulars of sale a statement was inserted
ofreversionary
N ., a sum interest
of 10,0001. on the security of a
in land to which he was
by the auctioneers as to the roads on the property
being kerbed . sewered . & c . This statement prove
entitled in the event of his surviving his father. to be incorrect, and the purchasers declined to
It was agreed that the trustees should, as an complete without compensation . The vendors
additional security, effect a policy of assurance ultimately allowed 8951. as a deduction from the
for 34,5001. on the life of C . against that of his original purchase money , which was 20,8001., and
father, that the interest on the loan and the claimed to be allowed that sum in their account
premiums should be allowed to accumulate for furnished to the second mortgagee of the pro
five years, and after that, if the premiums were perty. After satisfying the debt of the first
not paid by C ., the trustees were authorised to mortgagees, the remainder of the proceeds of
pay the interest and premiums themselves, and sale was considerably less than the amount
add the amount to the debt. It was also provided due to the second mortgagee. An action was
that if C . should die in the lifetime of his father brought by the second mortgagee against the
without having paid to the trustees principal, first mortgagees for an account of the moneys
interest, premiums, and costs, the moneys received , or which but for wilful default might
recovered on the .policy
trustees absolutely shouldwasbelong
A policy to the
accordingly have been received , by the first mortgagees in
respect of the sale. Held , that the first mort
effected with the above company in the names of gagees were answerable for any loss caused to the
Oct. 18, 1690.] THE LAW TIMES: [Index - lxxv
SUBJECTS OF CASES.
second mortgagee by their mis-statement, but ensued , which resulted in the defendant's agent
that 8951, was not necessarily the true amount to declining to give an undertaking , and expressing
be allowed ; that an account should be taken his intention of allowing persons to use Market
whether, if the property had been properly square for publie shows. Held , that,as the defen
described, it would have sold for more than dant contended that he had the right to do the
19,9051. (being the purchase money of 20 ,8001., thing complained of, and had refused to give an
after deducting the 8951.),and that the first morte undertaking, the inference was that there would
gagees should be charged with the amount of be a repetition of the nuisance , and that there
loss (if any) which should be certified to have fore the plaintiffs were justified in bringing the
been caused by the mis-statement. (Tomlin v. action , and were entitled to an injunction .
Luce.) ... ... ... ... ... ... ... ... ...page 18 (Phillips v. Thomas.) ... ... ... ... ... ...page 793
Transfer - Escrow - Title-deeds — Negligence - Soli . Thistles- Neglect of occupier to cut - Seeds blown
citors - Agents -- Cash payment- Set-off -- Convey . on to adjoining land - Damages. - The defendant
ancing and Law of Property Act 1881. - An action occupied certain land which had originally been
was brought by the transferor of a mortgage forest land , but had recently been brought into
against the transferees , seeking for payment of cultivation. As soon as this land was brought
themoney which was the consideration of transfer, it.
into cultivation thistles sprang up all overand
or to bave his mortgage and other deeds back again . The defendant neglected to cut these thistles,
The plaintiff and the defendants employed in the consequently the seeds were blown in large quan
matter of the transfer the same firm of solicitors,
who were then in good credit . On the 20th Oct.
tities on to theadjoining land which was occnpied
by the plaintiff. The plaintiff having brought an
1883 the plaintiff executed the transfer, which action to recover damages from the defendant for
expressed that themoney was paid ,and he handed injury done to his land : Held , that the defendant
the transfer and the title-deeds to the solicitors , was under no duty towards the plaintiff to cut the
they undertaking either to return them or to pay the thistles, which were the natural growth of the soil,
money. The plaintiff did not make any inquiry and therefore wasnot liable for the damage caused
till the 5th Feb. 1889 , the solicitors telling him so to the plaintiff's land. (Giles v . Walker.) ... ... 933
much notice was required . On the 22nd Feb . the
solicitors handed over the deeds and the transfer OFFICERS' MESS.
to the defendants. On the 15th March the solici Wine caterer of- Goods supplied to mess by order
tors filed their petition in bankruptcy. The defen . of - Liability of individual member of the mess.
dants never paid the money in cash to the soli. - An individual member of a mess,who has not
citors, but they set off in their books part of a in any way pledged the credit of themess, is not
sum owed by them to the defendants. Held, that personally liable for goods supplied to the mess
the defendants ought to have paid the solicitors by the orders of the wine caterer. (Hawke v.
in cash , and were not entitled to set off a debt due Cole.) ... ... ... ... ... ... ... ... ... ... ... 658
to them from the solicitors ; Held , that there had
been no negligence on the part of the plaintiff, OMNIBUS.
and that the deed was an escrow until the defen Proper licence for---Hackney carriage — “ Standing
dants had paid the money to the solicitors in cssh . or plying for hire " - Customs and Inland Revenue
(Coope v. Collyer.) ... ... ... ... ... ... ... ... 927 Act 1888. - An omnibus plying in the ordinary way
NEGLIGENCE. for the conveyance of passengers for payment
along a fixed route , comes within the definition of
Accidentto scholar- Negligence of teacher - Liabi. a “ hackney carriage " in sub-sect. 3 of sect. 4 of
lity of committee of management. The plaintiff
was a scholar in a voluntary school, and the defen .
the Customs and Inland Revenue Act 1888 as
dant, who was the ricar of the parish , was an
being a carriage " standing or plying for hire,”
and therefore the Excise licence at 158., as for a
ex officio trustee of the school, and one of the “ hackney carriage,” is a sufficient licence for
committee of management. The plaintiff sought such omnibus. (Hickman, app ., v. Birch , resp.)... 113
to recover damages for personal injuries inflicted
upon her by a black -board falling from an easel PARENT AND CHILD .
and striking her upon the head . It was alleged Advancement - Presumption - Rebuttal of - Result
that the board fell owing to the negligence of one ing trust - Director's qualification . - A father
of the teachers. The staff of teachers was ap made his eldest son, who was living near him , and
pointed by the committee of management,butwas was married , a liberal annual allowance. Being
not otherwise under its control. Held , that there desirous of providing his son with some occupa
was no evidence of negligence to go to the jury ; tion , he took, in the son 's name, 100 shares of 101.
but that, if there was, the defendant, as one of each in the A . company, that number of shares
the committee of management. was liable for the being the necessary qualification for a director ;
negligence of the teacher in the school. (Crisp also fifty shares of 1001. each in the B . company,
7. Thomas.) ... ... ... ... ... ... ... ... ... 810 ten shares " at least " being a director's qualifica
NUISANCE. tion ; and transferred from his own name into
that of the son's 500 shares in the C . company, a
Pablic shows, sports, and exhibitions-- Apprehended director's qualification being " at least ” 100
repetition of nuisance - Quia timet action - Injunc. shares. The son thereupon became a director of
tion.-- An action was brought by inhabitants of these companies, and received the fees as director,
houses abutting on an open and unbuilt-on area of but voluntarily transmitted the dividend war
land situate in the centre of a town , adjoining the rants on the several shares to the father. After
Market-place, and known as Market-square, for wards, at the father's suggestion , the certificates
an injunction to restrain the owner thereof from of the shares were handed to him for safe custody,
using , or causing or permitting the same to be and they were retained by him until his death .
used for the purpose of any sports, exhibitions, The three lots of shares were then found in three
entertainments, or otherwise whereby a nuisance
might be occasioned to the annoyance and injury
envelopes, each indorsed by the father with the
number of certificates it contained, two of the
of the plaintiffs. It appeared that in June 1889 envelopes bearing the words “ belonging to me.”
the defendant's agent licensed S. to use Market The father by his will settled the bulk of his real
square for holding a public show for several days,
S. paying 61. The show consisted of a large
and personal estate upon his eldest son for life,
with remainder to his children . Held , that the
circular roundabout worked by a steam -engine, shares were taken in the son 's namemerely for
which engine also worked an organ ; a large cir. the purpose of qualifying him as a director ; that
calar mechanical switchback worked by another that being the purpose the presumption of
steam -engine , which worked a second organ ; a advancement which might otherwise have come
sbooting gallery ; and a boxing booth . Whilst under consideration was rebutted : and that the
the show was going on , the plaintiffs complained son held the shares as trustee. (ReGooch ;Gooch
to the defendant's agent, and a correspondence v . Grooch .) ... ... ... ... ... ... ... ... ... ... 30 +
Ixxvi - Index.] THE LAW TIMES. ( Oct. 18, 1890.
SUBJECTS OF CASES.
PARTITION . the widest possible discretion as to the termson
Proof of title at hearing - Inquiry in chambers as which leave to apply for amendment should be
to persons interested - Dispensing with inquiry . granted, and that that discretion should not be
This was an action for the partition or sale of interfered with unless it had been exercised on
absolutely wrong grounds, and that in the present
property of the value of 10,0001. The plaintiffs, case it seemed to have been exercised properly .
who were owners of one moiety of the property , (Lang v. The Whitecross Company Limited .) page 119
asked by their statement of claim for a sale in Infringement - D ., the owner of a patent, granted to
lieu of partition . The defendants were theowners F . the exclusivelicence for such patent. B ., the
of the other moiety. Affidavit evidence was owner of another patent, also granted to F . the
tendered that all persons interested in the pro exclusive licence for his patent. D . sned F .
perty were parties to the action, and the court for a declaration that articles made under B .'s
was asked towithmake
dispensing an immediate order for sale,
the usual inquiry in chambers as patent were an infringement of his, D .'s, patent,
to the parties interested. Held, that, as a general and for an injunction to restrain manufacture
rule, an inquiry will be directed , though , where and sale under B .'s patent without paying
the property is small, the court may dispense royalties to D ., and for accounts of royalties
with it if satisfied at the hearing as to the title. for past manufacture. Previously to the issue
(Wood v . Gregory.) ... ... ... ... ... ...page 179 of the writ D .'s solicitor had written to F .'s
solicitors that B .'s patent was within D .'s
patent, and claims would be made in the action
PARTNERSHIP. then intended in respect of articles made under
Dissolution - Power of one partner to compromise B .'s patent. B . sued D . under sect. 32 of the
debts-- Power to accept shares in satisfaction of Patents, Designs, and Trade Marks Act 1883 for
debt-- Power of receiver. - One partner has no an injunction to restrain threats. Held , that D .'s
power, without special autbority or a special action was an action for infringement within the
course of dealing, to accept shares in a company meaning of that section , and as it had been
in satisfaction of a debt due to the firm , even brought with due diligence, the section did not
though the shares are fully paid up. In an action apply, and B .'s action was stayed . (Barrett v .
for winding-up & partnership , the court has no Day ; Day v. Foster.) ... ... 597
jurisdiction to authorise a receiver to do any. - Particulars
propriety of objections
of objections not -asked
Certificate
for — as
Co to
thing which it cannot authorise one partner to do
against the will of the other. (Niemann v. Nie of `meeting objections – Improper,
or unnecessary proceedings. vexations,
- An action was
mann.) ... ... ... ... ... ... ... ... ... ... 339 brought to restrain the infringement of a
Interest in land - Agreement to retire-- Informal patent. The defendants pleaded no infringement
agreement - Statute of Frauds -- Specific perfor and also invalidity of the patent on the grounds
mance - Right to use name of retired partner. set out in their particulars of objections. At the
G ., S ., and B . carried on business under that name trial the action was dismissed with costs on the
as partners, a part of the partnership property sole ground of no infringement, the court
consisting of a lease. In pursuance of an agree declining to go into the question of validity , and
ment among the partners that S . and B . should this decision was affirmed on appeal. At the close
retire from the business and assign their respec
tive shares to G ., the following memorandum was of the trialno certificate was asked for or granted
signed by B ., and given to G .: “ Rough draft. underTrade
and sect 29, sub-sect 6, of the Patents, Designs,
Marks
Memorandum from G ., S., and B . -- This is to Act 1883, that the defendants'
record that, in consideration of G . or his exe objections, were “ reasonable and proper." Upon
cutors paying B . or his assigns the sum of 1001. the taxation of the defendants' costs the taxing
on the 1st Jan. 1890, and the sum of 1001, on master disallowed all the costs of the particulars
of objections, as no certificate had been obtained.
every 1st Jan . for the nine succeeding years, B .
agrees to withdraw from the firm of G ., S., The plaintiff'then carried in for taxation a bill of
and B .” It was proved that the parties contem costs occasioned by his having had to meet the
plated the signing of a more formal contract. defendants' objections. The taxing master refused
Held, that the memorandum implied that B . to tax the bill and disallowed it altogether. The
should retire at once, and should assign his share plaintiff took out a summons to review the taxa
to G ., and that G . should indemnify tion on the ground or unnecessary
proper, vexations, that the objectionswere “ im
the liabilities of the partnership ; andhim, therefore
against, ” within the
as the memorandum contained all the essential Rules of Court 1883, Order LXV., r. 27 , sub
terms of the agreement, it was a sufficient memo rule 20, and that such costs should be set off under
randum within sect. 4 of the Statute of Frauds. sub-rule 21 against the costs payable by him to the
Held also , that, as there was no express agreement defendants. Held , that, as the costs of the defen
for the assignment of the goodwill, G . had no dants with reference to their particulars of objec
right to continue to use B .'s name by carrying on tions were only disallowed in consequence of the
business in the name of the old firm . (Gray v . absence of a certificate by the judge ve under sect. 29,
Smith .) ... ... ... ... ... ... ... ... ... ... 335
sub-sect.
sub-sect.
Marks Act6 ,1883 not be
6 , of983.theandPatents,
, and not
usor theirxaand
caDesigas,
because
tiobjections
ous,Trade
were unreasonable , improper, or vexations, the
PATENT. taxing master could not consider that question ,
Infringement- Application for liberty to apply to and consequently could not allow any of the plain
amend specification - Terms of order - Discretion . tiff's costs of meeting the objections. If in such
The owners of a patent bronght an action for in a case a plaintiff considers that in consequence
fringementagainst the defendants. After delivery of improper or unreasonable objections he has
of the defence the plaintiffs sought for leave to incurred extra costs, he ought to ask the court
apply at the Patent Office to amerd their specifica to direct the taxing master to consider that ques
tion " by way of disclaimer under sect. 19 of the tion, and to direct that the defendant shall pay
Patents, Designs,and Trare Marks Aet 1883. The the costs so incurred by him . (Garrard v. Edge.) 510
judge at chambers gave leave to apply and to put
the amended specification in evidence on condition
Underselling - Reduction of prices - Loss of
profits — Damages — Remoteness. - Where a
that no damages be recovered, or claim for injunc
tion founded on anything done before disclaimer,
patentee had obtained an injunction with a
reference as to damages against an infringer who
the costs of the action up to the time (if dis
claimer used) to be defendant's costs in the cause ;
was underselling him , the referee found that the
plaintiff had , in consequence of the defendant's
the costs of the application and the costs caused competition , been compelled to reduce his original
in the action by the disclaimer to be defendant's prices, and that,but for such competition, the plain
in any event, proceedings to be stayed pending tiff would himself have sold all the articles wrong.
the disclaimer. On appeal from this order to this fully sold by the defendantaswell as those sold by
court : Held, that under sect. 19 of the Patents, himself, and all at the original prices. Held ,
Designs, and Trade Marks Act, the judge bad that the plaintiff could not charge as damages
Oct. 18, 1890.) THE LAW TIMES. [Index - lxxvü
SUBJECTS OF CASES.
the loss of profits consequent on his baving been A preliminary objection was taken by H . that C .
compelled to reduce his prices, but only the had no cause for action under sect. 32 of the
profitstomade by the
effectdefendant on his sales. This Patents Act, which contains a proviso “ that this
held be the of the decision in United section shall not apply if the person making such
Horeshoe and Nail Company v. Stewart and Co.
(59 L . T . Rep . N . S . 561 ; 13 App . Cas. 401),
threats with due dilligence commences and prose
cutes an action for infringement of the patent."
although the plaintiff had never reduced his Held, that,considering all the circumstances, H .'s
prices below those of the defendant. (American action for infringement was commenced and
Braided Wire Company v. Thomson and Co .) page 61 prosecuted with due diligence up to the 7th Nov. ;
Provisional specification - Grant of licence before that H . could notbe in a worse position in conse
filing complete specification - Patent obtained quence of his having then discontinued the
for less than whole invention described in pro action than if he had gone to trial and had his
visional specification . - Claim for royalties. The action dismissed ; that sect. 32 does not require
plaintiff , a patentee , granted to the defendants the person making threats to prosecute his action
a licence of his patent for an improved method of to a successful issue, and therefore H , had
securing elastic tyres on wheel rims. At the date brought himself within the proviso , and C . had
of the licence the plaintiff had obtained provi. no cause of action under the section unless he
sional protection only . The licence was for a conld bring evidence to prove that the action for
term of one year from the 1st Dec. 1886 , and infringement was not broaght bona fide. (Colley
further from year to year during the continuance v . Hart.) ... ... ... ... ... ... ... ... ...page 424
of the letters patent to be granted (if granted ) for Mortgage of patent - Registration of mortgage
the invention or any prolongation or extension Assignee — “ Proprietor " - Action by patentee
thereof. The defendants paid the royalties for Parties to action. - The mortgagees of a patent
the first year, but refused to pay any further under a registered assignment are necessary
royalties on the ground that the plaintiff had parties as co-plaintiffs in an action by the mort
agreed in the licence to complete the letters gagor against an infringer claiming damages and
patent for the whole invention described in the the ordinary relief, the mortgagees being the
provisional specification , and this he had failed “ proprietors " of the patent within sect. 87 of the
to do. The defendants alleged that the plaintifi Act. (Van Gelder, Apsimon, and Co. v. Sowerby
was compelled before the comptroller to amend Bridge United District Flour Society.) ... ... ... 105
his specitication, and to admit that he knew Trade mark - Registration - Infringement - Regis.
of the claims of certain prior patentees to be the tration of mark for one class of goods - Right to
true and first inventors of the use of tyres with a prevent use of mark for another class of goods
helical spring core , and of the introduction into Trade MarksRegistration Act 1875. - The plaintiff
an indiarubber tyre of a core of corrugated spring registered a trade mark for the goods included in
wire, and to abandon his claim thereto . The
claim so abandoned formed . on the contention of class 6 in the first schedule to the rules under the
the defendants, the whole substance of the plain Trade Marks Registration Act 1875, that is,
tiff 's invention as described in the provisional " machinery of all kinds, and parts of machinery,
specification , and the defendants alleged that it except agriculturalmachines included in class 7.”
was the use of the invention so disclaimed that The plaintiff when applying for registration stated
they desired and intended to obtain in taking the that the article in connection with which the mark
licence. Held , that the licence ought not to be was to be used was " a toilet requisite, being a
declared void , consideration having passed , and machine to beld a reel of perforated paper.” The
there being no misrepresentation in the deed by plaintiff sold both the micbines and the reels or
which the licence was granted . Held also, that rolls of paper which were intended to be used
the defendant's attempt to show that there was a together. He did not place the mark upon the
warranty for thewhole invention which might by machine, but placed it upon the wrappers in
which his rolls of paper were sold . The defen
any chance be comprised in the provisional speci dant sold similar rolls of paper with the same
fication could not prevail, there being no warranty , mark on the wrappers. Held , that, inasmuch as
but merely a covenant to complete the letters the plaintiff had registered his trade mark in
patent. Held further, that,according to thedeed respect of goods comprised in class 6 , which did
itself, the bargain was that the royalty should be not include paper, he could not prevent thedefen .
paid , and that the plaintiff was therefore en dant from using a similar mark upon thewrappers
titled to have an account of what was due for in which his rolls of paper were sold. (Hart v. 623
royalties. (Otto v . Singer.) ... ... ... ... ... 220
-Colley .). " . " — jisatinine
Registration Invented word
* Satinine ”" –- Invon
PATENTS, DESIGNS, AND TRADE MARKS orquality
wordof having no reference to character or
ACT 1883. the goods - Descriptiveword. - Anappli.
Due diligence — Commencing or prosecuting an cation was made for an order upon the Comp
action. - On the 15th Sept. 1889., H ., a manufac troller -General to register the word " Satinine ” in
turer of toilet paper, sent a circular letter round respect of the goods in classes 47 and 48, com
the trade threatening legal proceedings in respect prising soap, starch , blue, and other articles for
of the sale of any goods made by Č. in alleged laundry purposes and perfumery . Theapplicants
had used the
theyword principally
whichforstarch
infringements of his patent. On the 22nd Sept. and them
soap,.
C . commenced this action against H . for an in in which dealt,but they did not
junction against the continuance of the threats selves manufacture. They had applied in 1886 for
and for damages. An interlocutory injunction the registration of the word under the Patents,
Designs, und Trade Marks Act 1883, but the
wasgranted on the 2nd Nov. 1888 . On the 6th comptroller preferred to reserve his decision until
Dec. 1888 H . issued a writ in an action against C .
for infringement of his patent. The time for there had been further legislation as to what
words were capable of registration . In 1888 the
delivery of statement of claim was extended by
consent from time to time, and on the 30th Jan . Patents, Designs, and Trade Marks Act of that
1889 H . took out a summons for an order to year was passed , by which sect. 64 of the former
inspect Co's method of manufacture. Objections Act was amended by providing that a trade
were taken to this order by C . on the ground that mark must consist of or contain at least one of
his process was a secret one. On the 13th June certain specified particulars, including " (d) an
an order was made for inspection by a named invented word or invented words; or (e) a word
expert, who was to report to the judge. The or words having no reference to the character or
report was made on the 9th July , but was not quality of the goods, and not being a geographical
name." Accordingly , in 1889, the applicants
seen by H . or his solicitors until the 6th Nov.
The report showed that there was no infringe applied for registration under that Act, which the
ment , and on the 7th Nov. H . discontinued his comptroller refused , on the ground that the word
infringementaction . The action of C. against H . had reference to the character or quality of
to restrain the threats now came on for hearing . the goods ; and that there was a mark “ Satin
lxIxxviii
xvii-in- Index.]
dex ] THE LAW TIMES.
SUBJECTS OF CASES.
(Oct. 18, 1890 .
Glaze " registered under the Trade Marks Regis. that such a child could not gain & settlement of its
tration Act 1875 , for a laundry preparation . own. (Overseers of the Township of Manchester
Held , that “ Satinine " was a word descriptive of v.Guardians of Ormskirk .) ... ... ... ...page 611
the effect of the article, and consequently could Removability – Emancipation – Derivative settle.
not be registered . (ReMeyerstein and Co.'s Trade
Mark “ Satinine." ) ... ... ... ... ... ...page 526 ment from father - Pauper child over age of six
teen , unemancipated and living with father
Removability of- 9 & 10 Vict. c. 66, ss. 1 and 3 –
PERPETUITY.
Remoteness - Possibility on a possibility - Legal
11 & 12 Vict. c. 111, s. 1 - Divided Parishes and
Poor Law Amendment Act 1876 . - The father of a
limitation - Limitations to unborn person for life pauper legitimate child had acquired by long resi
with remainder to her childrenunborn
Testamentary
given to -
dence a settlement and a status of irremovability
power of appointment person in a parish in the M . (the respondent) Union . He
Appointmentread into settlement. - By a marriage then, on the 11th Oct. 1887, removed into a parish
settlement freehold lands were limited to the
use of the husband and wife successively
in the W . (the appellant) Union , where he has
since resided . The pauper always up to the time
for life, with remainder to the use of any one or of her becoming chargeable and subsequently
more of their children, grandchildren , or more resided with her father as part of his family, but
remote issue (born before any such appointment she received the relief in her own name. When
should bemade), in such manner as thehusband and the father removed from the M . Union, the child ,
wife should by deed appoint. Thehusband andwife
by deed appointed onemoiety of the lands to the being then under the age of sixteen, removed with
him . She becamesixteen in Feb . 1888, and became
use of a daughter of the marriage for her life for chargeable to the W . Union on the 13th Ang . 1888,
her separate use,without power of anticipation ; being then over the age of sixteen . On the 24th
and after her decease to the use of such person or Oct. an orderwas made by justices for thepauper's
persons as she should by will appoint, and in removal to the M . Union on the ground that the
default of appointment to the use of hertenants
children child , when she attained the age of sixteen,
living at the date of that deed , as in became emancipated , and took a derivative settle .
common in fee. Held , that the old rule that an ment from her father in the M . Union. At the
estate cannot be given to an unborn person for date of this order the father had resided in the W .
life, followed by an estate to any child of such Union for twelve months so as to render him
unborn person, still exists, and has not been irremovable therefrom . Held , that, as the proviso
merged
against inperpetuities
or superseded by the
: that themore modernmust
appointment rale in sect. 1 of 11 and 12 Vict. c. 111, was left un.
repealed by the Divided Parishes and Poor Law
be treated as introduced into the settlement ; and Amendment Act 1876 , the child , notwithstanding
therefore the only part of the appointment which sect. 35 of the latter Act, being unemancipated
was good was the limitation to the daughter for and living with her father, though over the age of
her life forher separate use. (Whitby v. Mitchell.) 771 sixteen , came within the operation of sect. 1 of
11 & 12 Vict. c. 111, and was therefore irremov.
PHARMACY ACT 1868 . able from the W . Union , as the father was
Poison , sale of- Unqualified person selling as assis. irremovable therefrom . ( The Guardians of the
tant to qualified cheiniet - Penalty .-- The Phar. Wayland Union , apps., v . The Guardians of the 9
macy Act 1868 provides that any person who shall Mitford Union, resps.) ... ... ... ... ... ... ... 6
sell or keep an open shop for retailing, dispen Retrospective poor rate - Validity of — 22 & 23 Vict.
sing , or compounding poisons . . . not being c. 49, s. 6 . - A contribution order made by guar
a duly registered pharmaceutical chemist or dians under the provisions of the Consolidated
chemist and druggist, shall be liable to a penalty . Orders of the LocalGovernment Board of 1866 , in
The appellant, who was the unqualified assistant respect of expenses for the relief of the poor in
of a duly qualified chemist, sold, while in sole 1889, included arrears accrued due from a parish
charge of his employer's shop, to a customer in 1886 . These arrears had not been inserted in
certain poison referred to in the Act. Held, that any estimates or orders between 1886 and 1889 .
the appellant was liable to a penalty under sect. Held , that the order was good under 22 & 23
15 for having sold poison to which the Actapplies. Vict. c. 49, s. 6 . (Guardians of Caistor Union ,
(Pharmaceutical Society of Great Britain v. apps., v. Overseers of North Kelsey, resp .)
Wheeldon .) ... ... ... ... ... ... ... ... ... 727 Settlement - Illegitimate child under sixteen - Place
731
POOR LAW . of birth - Mother living - Onus of proof as to
Illegitimate female pauper under sixteen - Illegiti settlement ofmother. - By sect. 71 of 4 & 5 Will. 4 ,
mate child of. -- An illegitimate female pauper,
c.child76,'which
it is shall
provided, “ That every illegitimate
be born a bastard after the pass . .
born in June 1874 , at w ., without the town. ing of this Act shall have and follow the settle
ship of M ., was placed by her mother at two ment of the mother of such child until such child
years old at the house and under the care of shall attain the age of sixteen, or shall attain a
C ., the mother's aunt, and mother of the puta settlement in its own right." By an order of
M . The pauperplaces
tive father, at various so lived with C . removal an illegitimate child under sixteen whose
at M .,and at other without the mother was living, was adjudgedappeal
to be settled in
said township, but at each for a period of less the place of its birth . On to quarter
than three years, until, in 1883, she was brought sessions no evidence was given as to the settle
by hermother again to M ., where she lived for a ment of themother, and the order was confirmed .
period exceeding three years, and then at various Held , that such an illegitimate child is to be
other places without the said township until in deemed to be settled in the place of its birth until
Feb . 1889 she was admitted into the respondents' another settlement is proved ,and that the onus of
workhouse at 0 ., and was there delivered of an proving another settlement lies upon the parish
resisting a removal. (Guardians of Headington
illegitimate child . During the above period the
pauper was visited from time to time by her Union v. Guardians of Ipswich Union.)... ... 547, 786
mother , who also occasionally provided her with
clothes. On appeal from an order of justices POOR RATE .
adjudging the last legal settlement of the pauper Sewage farm - Purchase and occupation of lands for
illegitimateinterpretation
and herfollowing child to be in M ., itupon Held ,
wassects the purpose of carrying out statutory works
that, the put . Works incapable of yielding a profit - Beneficial
34 and 35 of the Divided Parishes and Poor Law occupation -- Hypothetical tenant - Parochial
Amendment Act 1876 by the House of Lords in Assessment Act 1836 . — inIn the
estimating the ofvalue
The Guardians of Reigate v. The Guardians of at which hereditaments occupation the
Croydon (14 App: Cas. 465 ; 59 L . J. 29, M . C .), owner are to be rated for the relief of the poor,
for the purpose of the Act the position of an ille the rent which the owner and occapier of the
gitimate child under sixteen is assimilated to that premises would give for them if he were not the
of a legitimate child under thatage, and therefore owner is to be taken into account. Where a cor
Oct. 18, 1890.) THE LAW TIMES. [Index - lxxix
SUBJECTS OF CASES.
poration sewage,
of their are underandstatutory obligations dispose
for that purpose topurchase PRACTICE .
land which they convert into a sewage farm with Accounts referred to official referee - Mode of
the necessary works, they are rateable in respect taking
Where
accountsand
accounts
- Judicature
inquiries
Act 1873, s. 56 .
of such sewage farm and works at the rent which official referee under sect. 56
are referred to an
of the Judicature
they would give for them if they belonged to Act 1873, he is not bound to take the accounts in
another person , although such sewage farm and the sameway as a chief clerk in chambers does,
works are incapable of yielding a profit, and could
not be let to any other person even at a nominal although he may adopt that method if he finds it
rent. (Mayor, Aldermen , and Burgesses of Burton convenient and likely to advance the ends of
on -Trent, apps., v . The Churchwardens and Over justice. The mode of taking accounts by an
seers of the Parish of Egginton and others, resps. ; official referee discussed . (Re Taylor ; Turpin v.
Same, apps., v . The Assessment Committee of the Pa ... ... ... ... ... ... ...page 754
Barton -on -Trent Union and the Churchwardens Action against firm - Service of writ- Person at
and Overseers of the Township of Stretton , place of business--- Conditional appearance - Issue
whether
resps .) ... ... ... ... ... ... ... ... ... page 412 person partner or not. - The plaintiffs
sued the defendants for the balance of an account
for goods sold and delivered . The writ was
POWER OF APPOINTMENT. served upon R . at the place where the defendants'
General power- Execution by general bequest business was being carried on , but he was not
Reference to power- Wills Act (1 Vict. c. 26 ), informed in what capacity he was served. R .
ss . 10 , 27. - Under a settlement dated the 4th June entered a conditional appearance denying he was
a partner in the defendants ' firm . The plaintiffs
1884 personal property was settled in trust
such person or persons and for such purposes for applied at chambers to strike out the appearance
as of R ., alleging that he was only served as a
P . should at any time or times, or from time to
time by writing under his hand (not being a will representative of the defendants' firm . Field , J.
or codicil) or “ by a will or codicil expressly made an order amending the appearance entered
referring to this power ” appoint, and in default by R ., by striking out the words " conditional ”
of appointment over. P . , having and “ butwho denies that he is a partner in the
bequeathed all his personal died
estateinby 1886
his will and
codicils, none of which referred to the power of
firm of André and Co.” Held, that if the plain
tiffs were willing to undertake not to issue execu .
appointment or to the settled property . Held , tion against R . as being a member of the firm , the
that the settlement did not give B. a power to appearance of R . would be struck out, and the
appoint “ in any manner he might think proper," plaintiffs might sign judgment against the defen
and that consequently sect. 27 of the Wills Act dant firm , otherwise the conditional appearance
did not apply , so as to render P .'s will and of R . must be restored , and an issue of the ques
codicils an execution of the power. ( Phillips v. tion of partnership directed . (Davies and Co . v .
Cayley.) ... ... ... ... ... ... ... ... ... ... 86 André and Co.) ... ... ... ... ... ... ... ... 298
Special power – Validity of exercise — Fraud on Action by sole plaintiff for mandatory injunction
Death of plaintiff - Order for continuance
power - Appointment to object power of with of
directions for settlement - Appointment of “ resi. action by devisee and executor - Motion to dis.
due " to object of power - Absolute appointment charge order. - On the 3rd Dec . 1888 a sole plain
- Trust for persons not objects of power . - A tes tiff broughtan action for a mandatory injunction
tator, having under a settlement made in 1828 and damages for the obstruction of light to the
power to appoint by will to and among his children plaintiff's freehold house by the defendant. The
plaintiff died on the 15th Oct. 1889 , after the
à sum of 35,0001., by his will made in 1865 be action had been entered for trial but before trial,
queathed 150,0001. to his daughter Jessy, and having made her will under which B . was sole
directed that this legacy should be paid to four devisee and execucor. B . subsequently obtained
trustees named in the will, and should be held by an order of course to carry on the proceedings
them apon trust for her during her life, with re
mainder to her issue. And the testator , by virtue against the defendant. Upon a motion by the
and in exercise of the power contained in the defendant to discharge the order for irregularity
on the grounds that the cause of action did not
settlement, appointed 10,0001. part of the 35,0001. survive and that there was no transmission of
to the same daughter, and directed that the same interest to B . : Held , that the action survived ,
should be paid to the four trustees before named , and that B . had a right to continue the action ,
with reference to the legacy of 150,0001.,
shonld be held by them upon and although , as regarded the claim for damages, it
the trusts therein might, under 3 & 4 Will. 4, c. 42, s. 2, be limited
before declared thereof. The testator then ap to damages for the injury during the six months
pointed two sums of 10 ,0001. and 70001, respec immediately prior to the original plaintiff's death ;
tively in favour of two other daughters, and he and motion dismissed with costs. (Jones v .
appointed the residue of the 35 ,0001, to his son Sims.)... ... *** ... ... ... ... ... ... ... ... 447
Robert absolutely . And in case he had exceeded Affidavit - Defect in jurat. - Thejurat ofan affidavit
his power in not appointing the 10,0001. to his
danghter Jessy unconditionally , but in directing stated that it was “ Sworn at R . in the British
the settlement thereof; and in case his said Vice-Consulate, this 20th day of January 1890.”
daughter, or her husband , or others having any Itthewas signed by A . as vice-consul,and the seal of
vice-consul was appended . There were some
right or power to object to the settlement thereof alterations in the affidavit which were initialed ,
as aforesaid , should so object, or should not con . and some blanks were filled up in the same hand.
firm such settlement if required so to do , then he writing as the signature. Held , that, though the
appointed that the said sum of 10,0001. should words " before me" should have been inserted ,
go and belong to his son Robert, “ but who will, I the reasonable probability was that it was sworn
am assured , settle the same voluntarily in the before the vice-consul; and itwas a case in which
manner in which I have attempted to settle the the court should exercise the power given by
same as aforesaid , so as thereby to carry out Order XXXVIII., r, 14 , and order the affidavit to
my wishes." There was no evidence (other than
the will itself) of any bargain between the son be received . (Eddowes v. The Argentine Loan 4
and the testator that the former would settle the and Mercantile Agency Company.) ... ... ... 51
10,0001. Held, that the appointment of the
10,0001. in favour of Jessy was invalid . Held Appeal - Stay of proceedings as to costs - Under
taking by solicitor to refund - Absolute discretion
also , that there being no evidence of any bargain in court - Order LVIII., r. 16 . — There is no
by the son thathe would settle the sum of 10 ,0001., settled practice to stay proceedings as to costs,
that som passed to him absolutely free from any pending an appeal, if the solicitor does not give
obligation to settle it, and was therefore validly an undertaking to repay them should the appeal
appointed . (Re Crawshay ; Crawshay v. Craw be successful. Such a practice would limit the
shay .) ... ... .. ... ... ... ... ... ... ... ... 4591 absolute discretion as to a stay given to the court
lxxx - Index.] THE LAW TIMES. (Oct. 18, 1890.
SUBJECTS OF CASES.
by Order LVIII., r. 16 ,and could not, therefore,be defendants, witb one exception, supported the
binding. (The Attorney-General v. Emerton and application . Held , that the defendant, who was
others.) ... ... ... ... ... ... ... ...page 21 principally attacked , being resident outside the
Appeal — Trial with jury - Judgment contrary to jurisdiction of the Palatine Court, the action
findings of jury - Appeal to divisional court should be transferred to the High Court. (Cook
v . Smith .) ... ... ... ... ... ... ... ... ...page 712
Order XXXIX ., r. 1 ; Order XL., r. 4. - A jury
having found verdict
a for the plaintiff
, the judge Cross-examination of witnesses before an examiner
upon further consideration came to the conclusion - Order of cross-examination - Rules of Superior
that there was no evidence to go to the jury, and Court 1883, Order XXXVII., rr. 21, 22. - An appli.
consequently ordered judgment to be entered for cation was made by a shareholder, ander sect. 35
the defendant. Held , that an appeal lay to a
divisional court, and not to the Court of Appeal.
of the Companies Act 1862, for the rectification of
the register of the company. When the appli.
(Rocke v McKerrow .) ... ... ... ... ... ... ... 556 cation came on for hearing, the shareholder
applied to have the witnesses who had made affi
Costs — Plea of tender – Payment into court davits on behalf of the company cross -examined
Taking out sum in satisfaction --- Tender not
stated to have been before action - Plaintiff' s on their affidavits, and an order was made that
right to have his costs taxed - Order XXII., r. 7. the witnesses on both sides should attend for
In an action formoney lent, thedefendant pleaded cross-examination before an examiner. On at.
that the only sum due was 381.,which sum they had tending before the examiner the question was
tendered to the plaintiff , and now brought into raised whether the shareholder's witnesses or the
court in satisfaction of the plaintiff's claim . The company's witnesses ought to be cross-examined
plea of tender was not stated to have been before first. Held , that, under the circumstances of the
action brought. The plaintiff took out the sum case, the shareholder 's witnesses should be cross
under ¡Order XXII., r. 7, in satisfaction of his examined first. (Re Doré Gallery Limited.)... ... 758
claim , and gave the defendants notice to that Defaulting trustee - Non-appearance - Order for
effect. Held , that the plaintiff was not entitled payment into court - Motion for attachment
to have his costs taxed, as there was a differenco Filing notice of motion - Order XLIV ., r. 2 –
between a payment into court with a money
mere denial Order LXVII., r. 4. - In an action against a
of liability
, in which case if the were defaulting trustee who had not entered an appear
taken out in satisfaction the plaintiff would be ance the judgment directed the defendant to pay
entitled to have his costs taxed, and a payment a sum of money into court within a limited time.
into court with a plea of tender, in which latter The judgment was served on the defendant per
case the plaintiff would not be entitled to bave his sonally , but he made default in payment of the
costs taxed ; and that it made no difference that money into court, and notice of motion for leave
the plea of tender did not state that the tender to issue a writ of attachment against him was
was before action brought, if that could other. filed with the proper officer . Held , that the
wise be inferred . (Griffith v. Ystradyfodwg
School Board.) ... ... ... ... ... 151
notice of motion was sufficiently served on the
defendant. (Re Morris ; Morris v. Fowler.)... ... 75
- Petition
- Taxation – Third party - Delivery of bill
of course - Attorneys and Solicitors
Evidence in chambers - Order for cross-examination
- Closing of evidence - Further affidavits - Dis
Act (6 & 7 Vict. c. 73),s. 38. - Copyholdsbelonging cretion of judge - Rules of Court 1883, Order
to three vendors were put up for sale, two soli XXXVII., rr. 21, 22 ; Order XXXVIII., rr. 18, 25 .
citors, B . and R ., acting jointly in the sale on 28. - In an administration action inquiries were
behalf of their respective clients, but B. having directed and the plaintiff was ordered to furnish
the conduct of the sale, and his name alone appear.
ing on the contract
certain accounts. After the plaintiff had filed his
desiring asto the
purchaser, vendors'
have solicitor. The
the property enfran
accounts and affidavits in the matter the defen
dants obtained an order for his cross-examination .
chised , wrote to B ., asking him to carry out the By direction of the judge the general practice in
enfranchisement, and undertaking to pay his his chambers, of which the defendants were aware ,
charges and the expenses. B . requested R . to do was not to make an order for cross-examination
what was necessary on behalf of his clients to until the evidence was closed . After the plain
carry out the enfranchisement. R . made out his tiff had been cross-examined the defendants
bill of costs as against his own clients, and sent applied for leave to file further evidence generally .
it to B ., who sent it on to the purchaser. An Held , that, there being no rule of court expressly
order for taxation of this bill on the usual petition referring to the point, the judge had a discretion ,
of course by a third party was obtained by the provided he made no bard -and-fast rule, to adopt
purchaser, the petition containing the allegation à generalpractice in such matters, and therefore
that the solicitor had “ delivered unto the peti. the defendants were not entitled to the leave
tioner his bill of fees and disbursements." On asked as a matter of right, but only on showing
motion by R . to discharge the order and stay special circumstances. (Re Davies ; Issard v .
all proceedings thereunder : Held , that the
allegation in the petition as to the delivery of thhe
Lambert.)... ... ... ... ... ... ... ... ... ... 715
bill was a material allegation which was not satis. Garnishee proceedings — " Judgmentfor the recovery
fied by a constructive delivery , and that there of money ” — Judgment against married woman's
separate estate — “ Debt owing and accruing "
had not in fact been any delivery of the bill to the - Judgment
but notforperfected
petitioner, and that the order must be discharged . court, damages. - Jadgment
given by forjudge
å samin
(Re Robertson , a Solicitor).) ... ... ... ... ... 38 ofmoney against a married woman, which is to be
Court of County Palatine of Lancaster - Defendant enforced only against her separate property, and
out of jurisdiction - Transfer to High Court only against such separate property as she is not
17 & 18 Vict . c. 82, 8. 8 . - An action was brought restrained from anticipating, is " a judgment or
order for the recovery or payment of money "
in the Court of the County Palatine of Lancaster within Order XLV., r. 1, and may therefore be
against (amongst other people) the trustees of a
deed whereby property within the jurisdiction of enforced by garnishee proceedings in respect of
the court was assigned to them for the benefit of any debt owing or accruing from any third person
creditors. The object of the action was to im to her. A debt is owing or accruing within
peach a sale as fraudulent, and to obtain accounts Order XLV., r. 1, as soon as judgment for & sum
from the trustees, who , it was alleged , had acted of money has been pronounced by the judge in
fraudulently . The principal defendant had , since court, although the judgment has not been
the date of the sale , removed out of the jurisdic formally entered ; Order XLI., f. 3, providing
tion of the Palatine Court, but the plaintiffs and that every judgment pronounced by the judge in
other defendants were within the jurisdiction . court is to take effect from the date on which
Leave was obtained to serve the writ on the de such judgment is pronounced. (Holtby v .
feudant outside the jurisdiction . He applied Hodgson ; Bateson, Garnishee.)
that the action might be transferred to the Chan . Interpleader - Jus tertii - Shares - Chose in action
cery Division of the High Court. The other Order LVII., rr. 1 and 2 . - The plaintiff being
Oct. 18, 1890.) THE LAW TIMES. [Index - lxxxi
SUBJECTS OF CASES.
desirous of selling some shareshe had in a limited charge to themselves, and claimed priority to the
company, intrusted the defendants with the certi mortgage of the plaintiffs. The plaintiffs dis
cate of ownership and a blank transfer. On his puted this priority, and the judge in chambers
withdrawing his authority to sell the defendants made
band
a common foreclosure order against the hus
and wife , but dismissed the summons against
refused to return the documents, and on his bring
ing an action for their recovery, they obtained an the trustees without prejudice to any action the
interpleader order on the ground that B . also plaintiffs might commence by writ. Held , that
claimed the shares. Held, that the defendants,
though holding the documents as agents for the
the order in chambers was right, because, even
assuming that there is jurisdiction to determine
plaintiff, might set up a jus tertii for the purpose a question of priority of mortgages upon an origi.
of obtaining an interpleader order. Semble, that nating summons (which Cotton and Lopes, L .JJ.
& chose in action may be the sabject of inter thought there was not, Lindley, L .J. doubting),
pleader . (Robinson v. Jenkins and another ; it is not convenient that such a question should
Bebro , Claimant.) ... ... ... ... ... ... ...page 439 be determined upon an originating summons.
Judgment on admissions in pleadings – Motion Held
charge
further, that the time for moving to dis.
a final order made in chambers should be
Summons in chambers - Costs — R . S . C ., Order the same as for moving to discharge an order
XXXII., r. 6 . — This was an action to restrain the which is not a final order, viz., twenty -one days
defendant fromlights,
tiff's ancient building as to obstruct
and forsodamages plain
. The defen from the date of the order. (ReGiles : Real and Per .
dant paid 2751. into court in satisfaction of the sonal Advance Company Limited v.Michell.) page 375
claim for damages, and by his statement of defence Order XIV . – Application for final judgment
offered to undertake not to carry his buildings under - Statement of defence delivered - Delay
higher than they were at the commencement of Plaintiff's right to apply under order after de.
the action , to consent to an order embodying this fence. -- A plaintiff can apply for final judgment
andertaking, and for payment to the plaintiff of
the 2751., and to pay the plaintiff 's costs. The
under Order XIV., r. 1, after the defendant has
delivered his statementof defence ; but if he does
plaintiff accepted these terms, and prepared so , the onus is on him to explain the delay and
minutes which he sent to the defendant's soli
citors with a notice that he should set down the
show that he isentitled to judgment,as the proper
time to make such application is before a defence
action on motion for judgment as a short cause. is delivered in the usual course, though the de.
The defendant' s solicitors wrote that thematter livery of such defence is not an absolute bar to a
could be concluded at much less cost on a sum . subsequent application by the plaintiff for judg .
mons in chambers, and the defendant wished that ment under that order. (McLardy v. Slateum .) ... 151
course adopted . The plaintiff, nevertheless, pro Originating summons — Jurisdiction - Order LV .,
ceeded with his motion . Held , that the letter of r . 3 - Perpetuity - Power of appointment given
the defendant's solicitors made the submission in to unborn persons. - A testatrix devised realestate
the pleadings equivalent to that in The London to two persons upon trust to pay the rents and
Steam Dyeing Company v. Digby (58 L . T . Rep . profits after certain deductions to M . during her
N , S. 724 ), where the offer of the defendants life, and after her death to pay the rents to her
the pleadings was expressly to submit to an orderin children respectively in succession in order of
for an injunction to be obtained in chambers, and seniority
death during
of M . their
that the plaintiff was only entitled to such costs the and all respective lives, upon
her children ; and after
trust
of his motion as would have been incurred on a tosively
pay the rents to E . and her children succes
summons in chambers. The plaintiff was allowed in the same way ; and after the death of
the costs of preparing minutes, and for the guid M .and E . and all their children , upon trust for
ance of the taxing master the judge intimated that such person or persons as the longest liver of
he should have allowed counsel in chambers. M . and E .and their children should appoint by deed
(Allen v . Oakey .) ... ... ... ... ... ... ... ... 724 or will, and in default of appointment for the
Namerous persons having the same interest - De heir-at-law of the testatrix. A question was
fence on behalf of other persons - Consent - Sub raised by originating summons as to the validity
of the power of appointment. Kay. J . held that
mission to judgment - Order XVI., r. 9 . - Persons
anthorised by the court to defend an action on he had no jurisdiction to decide the question on
behalf of others having the same interest cannot an originating summons. Held , by the Court of
consent to judgment against them ; the proper Appeal, that there was jurisdiction to decide the
course in case there is no defence is to submit on question on an originating summons. Held
their behalf to judgment. (Rees v . Richmond .) ... 427 further, that the power of appointment given to
Official referee - Application to set aside findings the last survivor of M . and E . and their children
Judgment ordered by referee to be entered was void for infringement of the law of perpe
Power of court to enter judgment notwithstanding tuity . (Re Hargreaves ; Midgley v. Tatley.) ... 473
jagment of referee - Order XXXVI., r. 52. – Upon Pleading, omission from — Judgment in former
an application to set aside the judgment ordered action - Amendment - R . S. C . 1883, Order XIX .,
to be entered for one of the parties by an official r . 15 - Order XXVIII., r. 1. - An action was
referee, in a reference under sect. 57 of the Judi. brought against twodefendants claiming damages
for the wrongful removal of certain furniture and
cature Act 1874 , the court has power not only to delivery of such of the furniture as had not been
set aside the findings of the referee, but also to
enter judgment for the other party, even though sold. The plaintiff had previously recovered
judgment has heen ordered by the refere to be judgment in another action against three other
entered and has been entered accordingly.
(Clark v . Sonnenschein .) ... ... ... ... ... 850
persons in respect of the same matters. At the
trial, after the plaintiff's evidence and that of one
- Entering up judgment-- Motion to set aside defendant had been heard , the defendants asked
judgment – Jarisdiction . - Where an award leave to amend their defence by adding a plea of
has been made by an official referee, and judg. merger of the cause of action in the previous
ment has been actually entered up, a court of judgment. There was some evidence of acts by
the defendants subsequently to the judgment
first instance has no jurisdiction to alter the find
ings of fact, so as to make the judgment incon which might give the plaintiffs a fresh cause of
sistent with the findings, the only remedy of the action . Held , that the defence of the judgment
in the previous action could not be raised unless
parties being to go to the Court of Appeal on the
whole case. (Serle v. Fardell and Co.) ... ... ... 359 pleaded, and that theamendmentasked for should
Order in chambers -- Motion to discharge – Final not be allowed, as it was not possible to put the
order - Time - Originating summons - Priorities plaintiffs in the same position as if the defen .
Jarisdiction . - The mortgagees of certain pro dants had pleaded it at first. (Edevain r. Cohen .) 17
perty commenced proceedings for foreclosure by Point of law - Trade mark - Infringement- Agents
- Action by - Injunction - Parties - Amendment.
originating summons against the mortgagors, who
were husband and wife, and against the trustees - In 1883 H . and Co. agreed to consign their wine
of the property for them . The trustees set up a i for sale in the United Kingdom or its colonies
lxxxii— Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
exclusively to the plaintiffs. The plaintiffs fraud.--- The appellant brought an action in 1886
brought an action to restrain the defendants, in the Queen 's Bench Division to recover certain
London winemerchants, from selling wine under & real estates as heir -at-law of J . L ., who died in
name in coloarable imitation of H .and Co.'s trade 1816 seised in fee and in possession thereof. The
marks. The defendants raised the point of law
that the plaintiffs were not capable of suing , as
statement of
he prtheopercase
ttake claim
on tofhecontained
tingout titleStatute
the m ons to
tatateno ofallegations
LiLimitations,
they were not themselves proprietors of the trade but relied only on the title as heir-at-law . After
marks. Held , that the plaintiffs had no right to the proper time for amendment had expired, an
bring this action ; they had no interest in the application was made for leave to amend by the
trademarks, and had no right to restrain a fraudu insertion of allegations of concealed fraud . The
lent use of them . Held , therefore, that the point Court refused the application and dismissed the
of law must be decided against the plaintiffs , with action . The appellant then commenced the pre
costs. Leave given to amend theaction by making sent action in the Chancery Division to recover
the present owners of the trademarksplaintiffs. the same estates, and in his statement of claim
(Richards and Co. v. Butcherand Robinson .) page 867 made allegations of a concealed fraud similar to
Production of documents - Privilege - Affairs of those wbich he had proposed to insert by way of
State - Documents belonging to colonial Govern amendment of the statement of claim in the
ment - Rules of Court 1883 , Order XXXI., rr. 12, former action, but in a somewhat more amplified
13, 14. - An action was brought against the Agent form . jurisdiction
herent Held,' that, tothough
dismisstheancoart has an in
action which is
General to a colonial Government by persons who vexationsand oppressive and an abuse of the pro
had entered into a contract with that Government cess of the court, such jurisdiction should be
and who claimed relief in respect of a sum of sparingly exercised, and its exercise would nothe
money which they alleged had been received by
the defendants from that Government as trustee justified merely because the case set up by the
for the plaintiffs , and afterwards, in breach of pleadings is highly improbable ; but that in the
present case it appeared from the materials before
trust, repaid by him to that Government. On the court that the plaintiff could have no reason
an application by the plaintiffs for discovery of able expectation of succeeding in the action ; and,
documents by the defendant, he made an affi . even supposing
davit specifying certain documents, but objecting
to produce some of them on the ground that he founded, that hethemight
allegations of fraud todiligence
by reasonable be well
had no property in them ; that they were the have ascertained his rights at an earlier period ,
property of the colonial Government (which was and that the action should be dismissed . Judg
not a party to theaction ) and had been acquired ment of the Court of Appeal affirmed . General
by him merely in his capacity of Agent-General, allegations are insufficient to amount to an aver
and subject to the directions of thatGovernment ; ment of fraud of which any court ought to take
and that the Prime Minister of the colony had notice. (Lawrance v. Lord Norreysandothers.) page 706
directed him not to produce the documents , except Writ - Service out of the jurisdiction - Company
under an order of the court, and to object to Sequestration . - A motionwas made by the defen
their production on the ground of the interest of dants to discharge an order obtained by the plain
the State and of the public service. The plain tiffs for service of the writ in an action out of the
tiffs then took out a summons to compel pro jurisdiction . By the indorsement on the writ the
duction of the documents, which the defendant plaintiffs claimed an injunction to restrain the
objected to produce. Held , that an official was defendants from infringing the plaintiffs' regis
only entitled to take copies forhis own protection , tered
passingtrade marks,
off the and fromgoodsselling
defendants' as andandforfrom
the
and to use them for that purpose and not for
ordinary purposes, and that it would be a dere plaintiffs' goods, and for consequential relief.
liction of duty on the part of the defendant to pro The plaintiffs had also given notice ofmotion to
duce documents which he knew his superiors rectify the register of trade marks by striking
objected to produce, and that the court had no out the defendants' trade mark . The plaintiffs'
principal place of business was in Dublin , that of
jurisdiction to order him to do so . (Wright ... and
... 558 the defendants in Belfast, and the latter had not
Co. v. Mills.) ... ...
Production of documents before trial- Persons not much business, and no agents or business premises
partiesto action. - An order cannot bemadeunder in this country. They did supply , however, occa
Order XXXVII., r. 7, before the trial of an action sional customers in England, and did a large
for the production of books or documents by a business on the Continent and in Ireland. Held ,
person not a party to the action. (Elder v.Carter.) 516 that, as the goods of the defendants coming to
this country came only to customers, there would
Security for costs - Married woman - Separate estate be nothing of the defendants in this country to
restrained from anticipation. - Where a married proceed against if an injunction should be granted
woman , whose only separate property was subject against them ;and that,as to the Irish business, the
to a restraint on anticipation , appealed without a action ought to be an Irish action , on the ground
next friend, she was ordered to give security for.) 776 of the comparative cost and convenience of the
the costs of the appeal. (Whittaker v. Kershaw proceedings. Held , therefore, that the order for
Plaintiff an undischarged bankrupt- Nominal
plaintiff — Action by landlord against tenant service of the writ must be discharged. (Kinahan
for rent – Estoppel. - The plaintiff in 1887 and Co. v . Kinaban and Lyle and Kinahan
Limited .) ... ... ... ... ... ... ... ... ... ... 718
granted a lease of certain premises to the Writs, renewal of — Writs issued before Judicature
defendant. The premises had belonged to the Act 1875 — Order of court or judge for renewal of
plaintiff since 1884 . In 1885 the plaintiff was such writs Whether
- such writs can be renewed
adjudicated a bankrupt, and his discharge was without order - Order VIII., r. 1 - Order LXXII.,
granted conditionally upon hispaying his creditors r. 2 - 46 & 47 Vict.
c. 49, s. 5 . - A writ of summons
five shillings in the pound, which had not been issued before the Judicature Act 1875 came into
paid. The plaintiff sued the defendant for arrears force comes within the operation of Order VIII .,
of rent under the lease, and the defendant applied r . 1 , as to renewal, and such writs cannot now be
for security for costs of the action , or thatasthea renewed without the leave of the court or a judge
trustee in bankruptcy should be joinedplaintiff as required by that rule, as thatrule forms a com
plaintiff. Held , that the fact that the plete code on the subject of renewals of writs of
wasan undischarged bankrupt was not a sufficient for summons, and applies to the renewal of all writs
ground for ordering him to give security of summons whether issued before or after the
costs ; that he was not a mere nominal plaintiff ; Judicature Acts came into operation. (Hume v .
and that in thisaction the defendantwas estopped Somerton .) ... ... ... ... ... ... ... ... ... 828
from setting up the plaintiff's bankruptcy for any
purpose. (Cook v . Whellock .) ... .. ... ... ... 675
Striking ont statement of claim Limitations
- Vexatious(3 and PRESCRIPTION .
oppressive action - Statute of & 4 Copybold - Profit à prendre - Right of fishing- User
Will. 4, c. 27), s. 26 — Allegations of concealed - Customary right - Enfranchisement- Effect of.
Oct. 18 , 1890 .] THE LAW TIMES. [Index - lxxxii
SUBJECTS OF CASES.
- An action was brought by T. on behalf of
himself and others the owners and occupiers of
request, placed against his debit account; that
they had never concealed M .'s name from the
ancient.copyhold tenementsand ancient tenements plaintiffs, but (as they proved ) that it was not
formerly copyhold , but now enfranchised, of the according to the usual course of business to
manor of c ., claiming a declaration that he and state the buyer's name in the sold note supplied
the other persons were entitled, as appartenant to the purchaser. The plaintiffs contended that
to their tenements, to a right of fishing in a the circumstance of M .'s indebtedness was calcu
portion of a certain river, situate within the lated to bias the defendant's judgment in fixing
parish of C ., and, as incident thereto, to a right the price at which M . should buy ; that the ques
of
tiff way
alsoalong the bank
claimed of the river.
an injunction The plain
to restrain the
tion in all such cases was whether the agent had
defendant from obstructing such rights. The a personal interest in the purchase being carried
plaintiff pleaded that be and the other persons, out, in which case the agent was bound, in dis
charge of his duty , to disclose such personal
and their predecessors in title , had been accus. interest to his principal. Held , that the defen
tomed to enjoy and were entitled to the rights dants had acted honestly thronghout these trans
claimed , and had exercised such rights for sixty actions, and in good faith , and had given the
years and upwards without interruption until plaintiffs the best advice in their power. Held
they were interrupted by the defendant. The also, that a mere expectation on the part of
middle of the river formed one of the boundaries the defendants that the timber would be dealt
of the manor of C ., and the homage of the manor with according to the course of business with M .
had for many years made a presentment of the in former transactions was not such dealing on
right of copyhold tenants of the manor to fish in the the part of tbedefendants as the court considered
river between certain points. In 1845 the lords
of the manor enfranchised the defendant's copy. unfair to the plaintiffs. (Guy v. Churchill.)...page 132
hold tenement which abutted on part of the river PROHIBITION .
between the points in questson . At a later date Practice - Prohibition to County Court - Applica
the lords also enfranchised the plaintiff's copy . tion at chambers - County Courts Act 1888 - Costs
hold tenement. Both before and after the en . - Claim exceeding 201., less than 201. recovered .
franchisement the right of fishing had been - An application for a prohibition to a County
exercised along the defendant's land
abutted on the river. In 1885,
where it
however, the
Courtmay,
the Rules ofnotwith
the Suprem Order1883,
standineg Court LIX .,ber. made,
8a, of
defendant stopped up the access to his land and at the option of the applicant, either at chambers
interrupted the right of fishing. This action was under the provisions of the 127th section of the
not commenced until Jan . 1889. Held , that the
claim based on user could not be sustained ,
County Courts Act 1888, or to a division court,
but if made to a divisional court it mustalnow be
because there had been an interruption acquiesced made by notice of motion , instead of, as formerly ,
in(2 &for3 more bymotion for an order nisi. Order L ., r. 20, of
Will. 4,than
n. 71,a year
ss. 1,before
4 ) ; andaction brought
because there the County Court Rules 1889, by which a County
could not be a prescriptive claim to a profit Court judge is empowered to give costs on the
à prendre for an indefinite class, such as owners higher scale in actions where the claim exceeds
and occupiers : (Gateward 's case, 6 Co. R . 59 .) 201, and the plaintiff recovers exceedi
a sum not ng
Held also , that, assuming that the plaintiff was 201., is not rendered ultra vires by, nor is it incon
formerly , as copyholder, entitled to the right of sistent with , the 119th section of the County Courts
fishing, this was necessarily a customary right Act 1888, which allows a County Court judge to
attached to his copyhold tenement, and was, award costs on the higher scale in the three classes
therefore,extinguished by enfranchicement ; while of actions there specifie
Cross Bank .) ... ... ...d . ...(King v. The Charing
any re-grant of the right to the plaintiff by the ... ... ... ... ... 42
lords of the manor in the deed of enfranchisement PROMISSORY NOTE .
con!d obviously have no effect as against the Collateral security with a mortgage for a debt
defendant whose land had been previously
enfranchised and conveyed , and which comprised Transfer of mortgage - Bona fide indorsee for
the bed of the river usque ad medium filum . value without notice - Re-issue of note . — The
(Tilbury v . Silva .) ... ... ... ... ... ... ...page 254 plaintiff was the bona fide holder of a promissory
note made by the defendant payable on demand,
PRINCIPAL AND AGENT. under indebted
being thefollowing
to W circumstances
. gave him the: The
notedefendant
sued on
Del credere commission - Profit on transaction as part security for the debt, and afterwards
Concealment of buyer's name. - In 1879 the plain & mortgage of real property accompanied by a
tiffs, timber merchants, purchased through the memorandum that it was intended as collateral
defendants, timber brokers, timber to the value of security with the note for the debt. Afterwards
about 70 ,0001., and placed it in the hands of the without thedefendant' s knowledge W . transferred
the mortgage to H . for a sum larger than the debt
defendants for sale on & del credere commission ,
and received 20001. as the net profit on the whole owing by the defendant to W ., and subsequently
transaction. The defendants had sold the timber W . indorsed the note for value to the plaintiff,
to M ., who was their debtor for large sums, and who had no notice of the preceding facts. Held ,
the plaintiffs alleged that M . was insolvent and that the plaintiff was entitled to recover on the
that the sale was made under an arrangement note. (Glasscock v . Balls.)... ... ... ... ... ... 163
that he should become the purchaser of the timber , PUBLIC HEALTH ACT 1875 .
but that the defendants should again sell the
timber as for M ., and receive all the proceeds
thereof, and that out of the profits to be realised
Disapproval of buildings by localboard - Notice to
owner that board intends to pull down the build .
by the transaction they should repay themselves ings. - The plaintiff having erected buildings on
the debt due to them from M ., and that the defen his land without the approval of the localboard ,
dants thereby recopped themselves to the amount notice was given him to remove the building.
of about 15,0001. That sum the plaintiffs claimed As the plaintiff did not comply with the notice,
as profit due to them under the agency contract the board passed a resolution ordering their sur
existing between them and the defendants. M .'s veyor to enter on the plaintiff's land and pull
name, as the purchaser of the timber was not dis the buildings down. No notice was given to
closed by the defendants. The defendants alleged the plaintiff of this resolution , and the sur.
that they had acted in the ordinary way of busi veyor entered on the land and pulled down
ness ; that the plaintiffs and M . both hap the buildings. Held , that the local board had
pened to be customers of theirs ; that the no power to enforce their resolution without
comparatively large profit made on behalf of M . first giving notice of their intention to the owner
was due to accidental causes ; that the 15 ,0001. of the building, so as to allow him an opportunity
was, in the ordinary course of business, placed to of showing cause against it. (Hopkins v . The
the credit account of M .,and subsequently, at his Smethwick District Local Board of Health .) ... 783
Ixxxiv - Index.) THE LAW TIMES.
SUBJECTS OF CASES.
Street improvements - Expenses of metalling and only to those minerals which , according to the
paving a road - Charge upon premises - Premises custom of the district where they are situate,
subject to restrictive covenants - Priority ofcharge would ordinarily be won by underground wat
- Sale free from covenants . - The charge created ings, but comprehends all beds or strats of
by sect. 257 of the Public Health Act 1875 in minerals, without any reference to the method of
respect
and for oftheexpenses incurred
repayment by athelocal
whereof authority
owner of the
working them . The owner of minerals lying onder
or near a railway may give notice, ander sect 28
premises in respect of which the sameare incurred of the Railways Classes Act 1845 , of his intention
is made liable under that Act, is a charge not upon to work them , thongh his intention is not to meet
the interest of any particular owner in the pre them himself, but only by his lessees or boersees,
mises, but upon the premises themselves. The provided that he has a bona fide intention of so
plaintiffs, who were the sanitary anthority , under working them . (Midland Railway Company r.
the powers conferred upon them by the Public Robinson .)... ... .. ... ... ... -- -- page Las
Health Act 1875, metalled and paved a public Railway and Canal Traffic
road which bounded for some distance certain
land to which the defendant was entitled in fee afford facilities for trafficAct- “ 1854 - Comszy
Traffie " - Discoto
simple, subject to a restrictive covenant which tinuance of passenger traffic - Jurisdiction of
prevented bim from building upon it . The defen commissioners. - It is provided by the Rails and
dant's apportioned share of the expense of metal. Canal Traffic Act 1854, that every railway com
ling and paving the road amounted to 1311., which pany shall, according to its power, ford all
the plaintiffs were unable to recover from him . reasonable facilities for the receivingand forward
Held, that the plaintiffs were entitled to a charge ing and delivering of traffic apon and fro the
upon the land for the 1311., and that, for the several railways belonging to or worked by soch
purpose of satisfying such charge, the land might company . By sect. 1 of the same aet ** trafe"
be sold free from the covenant. (Guardians of is defined to include passengers and their lagzage.
Tendring Union v. Dowton and Slimon .) ...page 805 The Local Board of Winsford applied for an order
requiring the Cheshire Lines Committee to run
RAILWAY COMPANY. trains for the carriage of passengers and their
luggage upon a part of their system within the
Abandonment- Winding-up - Deposit fund – Notice applicants' district. Trains for the conveyance
to treat- Compulsory powers - Claims of creditors of passengers had been run upon this part of the
- Special Acts. - A railway company was incor. railway up to the 30th Nov. 1888, but the con
porated by special Act of Parliament in 1881. mittee finding that such trains had been run sts
Sect. 35 of the Act provided for the application of loss discontinued them from that date It 533
the parliamentary deposit fund, and enacted that objected on behalf of the committee that the court
if the company did not complete and open their had no jurisdiction to make the order applied for,
railway as therein mentioned, the deposit fund as the committee were not obliged to ran trains
should be applicable towards bompensating land for the conveyance of passengers unless they
thought it desirable to do so . Held , that the
owners and other persons whose property had
been interfered with or rendered less valuable by court had jurisdiction to make the order. ( The
the commencement, construction, or abandonment Winsford Local Board v. The Cheshire Lines
of the railway, or who had “ suffered injury or Commitee.) ... ... ... ... ... - - - - 253
200
loss in consequence of the compulsory powers ” Scheme of arrangement- Preference shareholders
conferred upon the company,Crown,
and subject thereto - Divided shares - Assent to scheme - Railway
should forfeited
be to the or, in the dis Companies Act 1867. - By the Brighton and Dyke
cretion of the Chancery Division , if the company Railway Act 1877 power was given to the railway
had been “ ordered to be woand-up,” should be company thereby incorporated to divide any share
applied as part of the assets of the company for a their capital into half shares , of which one balt
the benefit of creditors. The railway was not should be called " preferred half sbare." And it
constructed , and in 1888 an Abandonment Act was provided that the dividendwhich would from
was passed, which provided (sect. 6) that after time to time be payable on any divided
the passing of the Act the company should pro share if the same had continued an entire
ceed toliabilities,
debts, wind-up and
its affairs, and :discharge
engagements all
and (sect. 7) share should be applied in payment of dividends
that when all the debts, liabilities, and engage on the two half shares in manner tollowing ,
ments should be satisfied , the company should be viz . : first. in payment of dividend at sach
dissolved. It was also enacted that, subject to rate not exceeding 5 per cent. per annum
the as should be determined once for all by
Act provisions
of 1881, theofdeposit
that Act,
fandandshould
of sect.be 35returned
of the the company in general meeting , on the amount
for the timebeing paid up on the preferred half
to the depositors . The assets of the company share, the remainder in payment of dividend on
being of no value, claims were made against the the deferred half share, but that the company
deposit fund by a judgment creditor of the com should not pay any greater dividend on the two
pany, and by landowners who had been served half shares than would have been payable on the
with notice to treat by the company, or who had entire share it the same had not been divided :
entered into agreements for purchase with the and the Act further provided that the preferred
company, which had notbeen carried out. Held , half share should be entitled to the dividend
that, as inthethe
petition company
ordinarycould
way,notsect.
be wound-up by
6 of the Act attached to it in priority to the deferred half share .
of 1838 must be construed as an order to wind-up but should not be entitled to have any dificiency
the company, which would enable the court to made good out of the profits of subsequent years,
apply the deposit fund for the benefit of creditors. and that the half shares should be registered and
Held also , that notice to treat was not by itself certificates issued . Part of, but not all, the
an exercise of the compulsory powers of the com shares of the company had been divided under
pany which would give a landowner served a prior these powers. The company being unable to meet
their engagements on the 11th Dec . filed a scheme
claim for injury or loss “ in consequence of the for arrangement under the Railway Companies Act
compulsory powers " but such landowner might, 1889, and petitioned for the confirmation of that
if he could show injury or damage suffered in schemewithout first obtaining theassent of the
consequence of the non -completion of the contract, holders of preferred half shares as a separate body .
claim against the deposit fund with other credi Held , that the holders of preferred half shares did
tors of the company. (Re Uxbridge and Rick not form a class of preference shareholders within
mansworth Railway Acts.)... ... ... ... ... ... 347 themeaning of sect. 12 of the Railway Companies
Mines - Minerals lying under or near railway - Rail. Act 1867 , and that it was therefore not necessary
ways Clauses Consolidation Act 1845 . - The word
“ mines ” in sect. 77 of the Railways Clauses Act to obtain the consent in writing of three-fourths
of such shareholders before the scheme could be
1845, is to be interpreted in the wildest sense that confirmed by the court. (Re Brighton and Dyke
can properly be given to it, and does not apply Railway Company.)... ... ... ... ... ... ...
Oct. 18, 1890.) THE LAW TIMES. [Index - lxxxv
SUBJECTS OF CASES.
Statutory powers - Land - Limits of deviation RIVER .
Land outside limits of deviation reasonably re
quired for purposes of undertaking - Railways Trespass — Right of way - Boating - Recreation
Clanses Act 1845 - Lands Clauses Act 1845. Public highway - Cul de sac - Dedication - Evi
A railway company has power to take land dence - Affidavits - Commissioner to administer
beyond the limits of deviation, if such land is oaths — Duty of. - An action was brought to
bona fide required for constructing within restrain the defendant from interfering with posts
the limits of deviation the works authorised and chainswhich the plaintiff, the owner of the
by their specialAct,provided such land is properly bed of the river under & title derived from the
shown and described in the deposited plans and Crown, had placed in the river Mole to stop the
books of reference. (Finck v . The London and waterway. There was a counter-claim by the de
South -Western Railway Company.) ... ... ...page 881 fendant, who was not a riparian owner, for an
injunction to restrain any hindrance to the passage
RENTCHARGE. of his boats. He based his claim on a public right
Arrears - Action for recovery - Inquiry as to lands of highway over part of the river, not on a right
charged - Lands formerly copyhold - Copyhold of recreation by custom . The evidence showed
that the reach in question was not tidal ; that it
Enfranchisement Act 1852 - Copybold Act 1858. could not be approached by boats from below ;
Three rentchargeswere created in favour of the that its depth was artificial, and depended on mill
lord of certain copyhold lands in 1880 by three dams; that it had never been used for purposes
awards of enfranchisement made by the Copy. of commerce, or as a way from one public place
hold Commissioners under the Copyhold Acts,at to another ; that there was no public access to it
the instance of the lord of the manor, and were at one end, and it was doubtful whether there was
charged upon the lands enfranchised . Theawards any public access to it for boats at any points :
did not distinctly set out the lands upon which that no one except the mill-owners had done any.
the rents were charged . The plaintiff, to whom thing towardsmaintaining it as a waterway ; that
the rentcharges had been conveyed , sought to there had been a considerable amount of boating
recover arrears of the rentcharges, and to have on the reach by riparian owners and by others in
the lands charged therewith ascertained , or, if boats brought from a distance, chiefly for fishing ,
that was not possible, to have land of the defen but that no right to fish was claimed ; and that
dants of equal value set out to secure them . The persons boating had hardly ever been interfered
defendant c . was tenant of the copybold lands with . Held , that the user had been permissive,
before the enfranchisements, and admitted he was and not of right, and that the defendant must
still in possession of the enfranchised lands, but be restrained from removing the obstruction .
stated that they were intermixed with other free Observation on the manner in which affidavits
hold lands of his, and that the boundaries were are sworn before commissioners to take oaths.
confused before the date of the enfranchisements. (Bourke v . Davis.)... ... ... ... ... ... ...page 34
Held , that there was a duty imposed upon the
copyhold tenant before the enfranchisements to SALE OF FOOD AND DRUGS ACT.
keep the boundaries distinct, and that the enfran
chisements did not relieve him from the conse Adulteration of food - Alteration of article -- Milk
quences of his neglect in the past, and that the Abstraction of fat from - Selling milk so altered
holder of the rentcharge was therefore entitled to Mens rea . - An offence within sect. 9 of the Sale
an inquiry , what were the lands charged with of Food and Drugs Act 1875 may be committed ,
these rentcharges, so far as this wasuncertain ,with although the seller of the article did not know
a direction that, if they could not be ascertained, that the article sold was “ not of the nature, sub
land of the defendant, of the same extent, must stance, and quality demanded ; ” and where the
be set ont under the direction of the judge in article has been so altered by abstraction of part
chambers. Held , also, that an action of debt of it as to injuriously affect its quality , substance,
might be maintained against the terre-tenant for or nature, the seller of the article so altered may
arrears of therentcharge. (Searle v. Cooke.) ... 211 be convicted under the section , although he had
no knowledge of such alteration . A retail seller
RESTRICTIVE COVENANT. of milk had sold milk from which nearly thewhole
of the fat had been abstracted . Held , that he
Particular business — Sale of articles also sold in might be convicted of an offence under the latter
other business . - A covenant not to carry on the
business of a ladies' outfitter is not broken by a part of the 9th section of the Act, although he
hosier selling , in the ordinary course of his had no knowledge of the alteration of the milk .
business , certain articles also sold by a ladies' (Pain, app., v. Boughtwood, resp.) ... ... ... ... 284
outfitter, although the articles so sold form a SALE OF GOODS.
substantial part of the business of a ladies'
catfitter. (Stuart v. Diplock .) ... ... ... ... ... 333 Estimated quantity — “ More or less " - Custom of
trade - Evidence - Admissibility . The resson .
RIPARIAN OWNER . dens agreed to supply to the appellants “ the
Floating wharf - Title by possession - Action for whole of the steel required by you," for certain
polluting water and impeding navigation .-- A works then in course of construction . The
piece of land abutting on a navigable river was contract was made subject to certain general
granted by the Crown to A ., and by the grant the terms and conditions, which contained the clause,
boundary on the river side was expressed to be “ The estimated quantity of steel we understand
a line " two chains distance from the shore," to be 30,000 tons more or less." Held, that the
" parallel to the general course of the shore.” respondents were entitled to supply all the steel
A . conveyed to P ., and P . conveyed to the respon. required in excess of the estimated quantity of
dent. In the conveyance to the respondent the 30,000 tons, and that the contract was not
boundary was expressed to be “ the water's edge qualified or affected by the clause stating that
of the river.” The respondent used the land as a the estimated quantity was “ 30,000 tons more or
boat-yard, and had for many years kept moored less ; ” and further, that evidence of an alleged
in the river opposite the land a large floating custom in the Glasgow steel trade, as to the
wharf, with a covered boat-house upon it, which interpretation of contracts containing such a
he used for the purposes of his business as a clanse, was not admissible. (Tancred, Arrol, and
boatman for housing and mooring boats. Held , Co. v. The Steel Company of Scotland .)... ... ... 738
that the possession following upon the conveyance Sample - Latent defect in sample - Purpose for
had given to the respondent a good prima facie which goods ordered not disclosed to manufac
title to the whole of the space of two chains from turer - Manufacturer's implied warranty , extent
the shore , and that he was entitled to maintain an of. - A woollen merchant, who also carried on the
action against the appellants for wrongful acts business of a tailor, ordered of woollen manufac.
which polluted the river and impeded the naviga turers piece-dyed indigo-blue cloth by sample, for
tion , and obstructed the access to his wharf. the purpose of making it into liveries ; but neither
(Booth v . Ratté. ) .. . ... ... ... . .. ... ... ... 198 the fact that the merchant carried on also the
lxxxvi - Index.] THE LAW TIMES. (Oct. 18, 1890 .
SUBJECTS OF CASES.
business of a tailor, nor that he intended to use charges, the Actof 1888, which directs their regis
the cloth for liveries, was known to the manufac tration , conferring no power or directions as to
turers. The cloth supplied corresponded with the vacating the same. (Cook v. Cook.) ... ...page 667
sample , but,owing to a latent defect, was unfit for
the purpose for which it was required , and conse SETTLED LAND ACTS.
quently the liveries were returned to themerchant. go with mansion-house
Chattels settled to Purchase - Sale of
There was evidence that the cloth was suitable for mansion-house -- ofnew one - Removalof
other purposes for which cloth of that description some of were given upon trust to be heldsettlor
chattels. - By the will of the
was frequently used. In an action by the mer. chattels and and
chant toforrecover
turers
damages against the
breach of an implied
manufac
warranty of enjoyed go along with his P . house. After
merchantableness, the judge directed the jury to his death personalty settled by thewithwilla
some ofthethepurchase
find a verdict for the manufacturers if they con . was laid outitinmore of real estate,
sidered that the cloth was merchantable as house upon suitable for the family man.
supplied to a woollen merchant, but refused to sion than the P . house. It was desired to
leave to them the question whether an ordinary sell the P . house, and such of the chattels in
and usual use of the cloth of the description it as were not suitable for removal to the new
the
ordered was the making of it into liveries. Held , house , and to remove to that house such of
that the direction was right, since an implied chattels aswere suitable for removal. Held , that
warranty that goods are fit for a particular pur. this might be done. (Brown v. Collins.) ... ... 566
pose only arises either where the merchant bas SETTLEMENT.
expressly informed the manufacturer of the pur - Infants'
pose to which they are to be applied , orwhere it is Infant- Married woman - Void orvoidable
shown that a particular use of an article is so Relief Act 1874. - A lady of eighteen , when
usual as to afect the manufacturer with know . domiciled in England , entered into an ante-nuptial
ledge of the purpose for which it is required . marriage contract, in Scotch form , for the settle
(Jones v. Padgett and Co.) ... .... ... ... ...page 934 . The marriage was
ment of her property Scotland subse
quently dissolved in at the instance of
SAVINGS BANK . the husband . Held , that a contract of this cha
Winding up - Liability of Trustees and Managers racter was unaffected by the Infants' Relief Act
Savings Bank Act Amendment Act 1863
- Companies Act 1862. - Upon the death of the late
1874 , s. 1, and that, as regarded the lady, it was
v.
actuary of the Cardiff Savings Bank it was dis
voidable as distinguished from void . (Duncan
Dixon .) ... ... ... ... ... .. ... ... ... 319
covered that he had for many years systematically - Ultimate trust by reference to “ indenture of
defrauded the bank , the total amount of his de even date , and made between the same parties ”
falcations being a very large sum . In consequence No such' indenture ever executed - Resulting
of these frauds the bank became insolvent. Its trust. - By a voluntary settlement execated on the
affairs were investigated by a commissioner 2nd Dec. 1873 certain property was settled upon
appointed under 50 & 51 Vict. c . 47 , and in pur. trust for W . during his life, with remainder to his
suance of his recommendation a winding-up children . And it was declared that, if there
petition was ultimately presented , apon which an should be edno childrestof the said Wt . whoertyshould
order was made on the 4th Feb . 1888 . The take a vest inte in the trus prop , the
question having arisen whether and how far the trustees were to stand possessed of the trust pro
trustees and managers were liable for the defalca perty in trust for J. and her childonsor childrens ,
tion of the actuary, the case of Mr. Peter Davies to the like trusts, limitati , provisoe ,
* subjections
was selected at a test case, and the official declarat , and agreements as are expressed
liquidator applied (1) that he
the list of contributories, and should be settled on and declared of and concerning certaind trust
(2 ) that he might be erty
prop ises
and prem ed rise
settl , comp in , and
declared liable, under sect. 165 of the Companies assured by a certain indenture bearing even date
Act 1862, to contribute to the assets of the bank. with these presents , and made between the said
It appeared that the frauds of the actuary could Charles Wilcock and Mary his wife of the one
not have been committed unless the provisions part and the said Thomas Charles eWilcock of
of the Savings Banks Act 1863 and the rules of the the other part.” No such indentur was ever
bank, especially as regards checking the sums exectuted . At the time, however , when the settl e.
paid into and withdrawn from the bank and the men was prep ared nture
an inde ared
was prep
auditing of accounts, had been constantly disre and engrossed by which certain property was
guarded by the trustees and managers. Held , that settled apon trust for J. for life, with remainder
the respondent was not liable to be placed on the to her children . This indenture , however, was
list of contributories, but that his neglect to never executed , but instead thereof a deed was
enforce the observance of the rules was a prepared conveyin g the property to J. absolutely .
misfeasance for which he was liable under sect. 11 This deed was executed on the same day as the
of the Savings Bank Act 1863 ; and an enquiry was settlement, but it was not made between the same
directed, under sect. 165 of the Companies Act parties. W . tsdied without leav ing a child. Held,
1862, what sum he ought to contribute in respect that no trus were sufficiently declared eith er
thereof to the assets of the company. (Re The for J. or for J. and her children . Consequently
Cardiff Savings Bank .) ... ... ... ... ... ... 628 there was a resulting trust for the benefit of the
SEQUESTRATION . settlor. (Re Wilcock ; Wilcock v. Johnson.) ... 317
Registration - Lands Charges Registration and Trustees - Leaseholds — Conversion - Discretion
Searche
Power coupled with a trust - Jurisdiction court
of
s Act 1888 - Discharge of writs and seques . to interfere with discretion of trustees. - Where
trators -- Application to vacate registration a power is coupled with a trust or daty , the court
Jurisdiction -- Refusal. - A husband having been will enforce the proper and timely exercise of the
ordered to pay various sums ofmoney due upon power, but will not interfere with the discretion
alimony proceedings in this division, and having of the trustees as to the particular time or
failedto pay the said sums, an action was com manner of their bona fide exercise of it . (Re Bar
menced in the Chancery Division to compel pay. rage ; Burningham v. Burrage.) ... ... ... ... 752
ment thereof, and sequestrators were appointed
under two sequestr ations. The respondent having SHERIFF .
assigned his interest in the lands directed to be Inquiries and seizures - Fees - Taxation - Appeal
sold , a sum agreed upon was paid into court in Sheriffs Act 1887 - Order as to fees. - By an order
respect of the claims of the petitioner, and the made under the provisions of the Sheriffs Act 1887
latter gave notice of motion in this court to execu
the fees to be taken by a sheriff upon theexpenses
obtain the discharge of the sequestrators and to tion of writs of fi. fa , shall be, “ For
vacate the registration of the writs in the Land incurred in making inquiries, one guinea . For
Registry. Held , that this court had no power or each building or place separately rated at which a
jurisdiction to vacate the registration of the seizure is made, one guinea.” It is also provided
Oct. 18, 1890.] THE LAW TIMES . [Index- lxxxvii
SUBJECTS OF CASES.
that " the amount of any costs and charges pay. premises” (meaning thereby thatthe plaintiff had
upon two occasions wilfully set on fire his business
able under this scale shall be taxed by a master of premises , or caused them to be set on fire, and was
the Supreme Court or district registrar of the
High Court (as the case maybe ) in case the sheriff likely to do so again ). Held , that the plaintiff
and the party liable to pay such costsand charges must be nonsuited on the ground that the innuendo
differ as to the amount thereof.” Held , that no was insufficiently alleged to give a good cause of
appeal would lie from the decision of a district action. (Jacobs v . Schmaltz.) ... ... ... ... page 121
registrar fixing the amount of the fees due to the
sheriff in respect of certain seizures made by him . SOLICITOR.
(Townend v. Sheriff of Yorkshire.) ... ... ... page 402 Bankruptcy - Public examination - Answers disclos.
SHIPPING . ing misconduct- Report by official receiver to Law
Society - Jurisdiction of official receiver - Admis
Charter-party - Demurrage - Lay days Place of sibility of incriminating statements. - In the course
discharge. Where by the terms of a charter public examination
of his bankrupt under the Bankruptcy
party & ship was to proceed to Odessa , or so near Act a solicitor made admissions of what
thereto as she might safely get, and deliver her was alleged to be professional misconduct. The
cargo alongside any safe wharf, store, craft, official receiver, before whom the examination was
steamer,depot, ship , or arsenal, as ordered by the
receiver, the timefor unloading to commence from
to the committee
held, applied that of the Incorporated
Law Society the solicitor might be required
the timeshe was ready and intimation thereof has to answer the allegations which were contained in
writing,
been givenshein being and after her arrival in the an affidavit by the official receiver, and were
harbour, ready to discharge, was ordered founded upon the admissions made by the soli
by the receiver to a quaythewhich was the usual citor. Itwas objected on behalf of the solicitor
place for the discharge of cargo in question , that, as the official receiver was not his client,
but she hadthetoquay
alongside turn before
waittoherdischarge, it was could that
sheHeld, get and was not injured by the alleged misconduct,he
could not make the application to the Law
the lay days commenced to run from the time Society ; and further, that the answers given by
when she was ready to discharge, and that the the solicitor could not be used as evidence against
consignees werewaiting delay (during
the turn.
liableforfor her the him in a proceeding of a criminal nature not
time she was The Caris expressly authorised by the Bankruptcy Act 1883,
brook .) ... ... ... ... ... ... ... ... ... ... 843 The court overruled both objections, and directed
Pilot - Negligence - Liability of barbour board - that the inquiry before the committee of the Law
New Zealand Harbours Act 1878, ss.49, 75, 76 , 215 , Society should proceed . (Re A Solicitor ; Ex parte
227. - A harbour board was empowered by statuté The Incorporated Law Society.) ... . . .. ... 567
to license pilots for the purpose of acting within agent and country
Costs - LondonRight solicitor - Agency
their district. Pilotage was not compulsory in the business - of London agent to participate
district, and the pilot made his own bargain with - W . was the
in interest on costs paid by client. agreed
the shipowner. The harbourmaster, who wastoalsoa country solicitor of a company . L . to act
a duly licensed pilot, was acting as pilot when as his London agent in the company's business on
the usualagency terms, except that L . should not
vessel, engaged by the owners themselves,
she was wholly lost, through his negligeuce and call on W . for payment of any of his agency bills
boardthewere
barbourunder
beingtheentitled
not
not, that'
responsible,Held
default. statute until W . had obtained payment from the company.
Aftermany years W . enforced paymentby the com
by which they were constituted to become pilots pany of the amount of his bill of costs, with a con
themselves, but only to issue licences. Judgment siderable sum for interest. An account of all
of the court below affirmed , upon differentgrounds,
and with a variation. ( The Shaw , Savill, and dealings between W . and L . was being taken in
chambers, and L . claimed to have the interest
Albiox. Company v. The Timaru Harbour Board .) 913 brought into account. Held , that L .'s right was
( See MORTGAGE.) to be repaid his disbursements , and receive, not
half the profits, but half the “ profit costs,"
SHORTHAND NOTES. whether the company paid them or not, and that
not
he was entitled to nothing more, and could also
Evidence - Judgments - Costs — Application after claim to participate in the interest. Held ,
order passed and entered . - The hearing of an the fact that L . had suspended
appeal was ordered to stand over until one that although
week after a pending judgment of the House his right to payment would have made a stipu .
of Lords had been delivered. After the final lation as to interest reasonable, yet the court
order of the Court of Appeal bad been passed could not import such a stipulation into the
agreement merely because he had agreed not to
and entered the successful appellant applied to
the court to direct that the costs of the transcript claim payment till W . had obtained payment from
of the shorthand notes of the evidence on the trial the company. (Ward v. Lawson .) ... ... ... ... 158
of the action and of the jndgment of the House of - mentSolicitors' Remuneration Act 1881 – Agree
Lords, all of which were used at the hearing of - Definition of client - Taxation notwith
the appeal, should be allowed . Held , that the standing agreement. - S. applied to P., a solicitor,
application must be refused, as such a direction to obtain him a loan on a reversionary interest,
would alter a final order of the court, which will and on the 21st June 1884 signed the following
only be done where , through some slip, the order letter : “ I hereby request and instruct you to
does not express the intention of the court. Appli raise for me the sum of 3001. at 10 per cent. per
cations for the allowance of such costs should be annum , on the security of all my estate and
made at the hearing of the case or immediately interest under the will and in the estate of T . S .
after judgment has been given . The cost of deceased, and I hereby undertake to pay your
shorthand notes of evidence will only be allowed costs which I agree at 201., exclusive ofmoney out
in extreme cases ; the judge's notes, coupled with of pocket, incurred and to be incurred in and
the notes of counsel, ought generally to be suffi . about doing what is necessary in your opinion for
cient. (Glasier v. Rolls.) ... ... ... ... ... ... 305 the purpose of carrying out these instructions.” S.
had already mortgaged his interest, and the first
SLANDER. mortgagee had to be paid out of the sum to be
Innuendo - Sufficiency of. - In an action for slander raised . P . raised the sum of 3001., and the
the statement of claim alleged that the defendant agreed sum for costs was paid thereout. On the
falsely and maliciously spoke and published the 17th Jan, 1890 S . took out a summons for an order
following of the plaintiff : “ Did he (meaning the that P . should deliver a bill of these costs, and
plaintiff) have a fire twice ?” (meaning thereby that that the costs might be taxed on the grounds
the plaintiff had upon two occasions set bis (a ) that the Solicitors' Ramuneration Act 1881
business premises on fire or caused them to be set only authorises an agreement between solicitor
on fire ). " He (meaning the plaintiff) has had two and client, and that there was nothing outside the
fires , and is a dangerous man to have on your agreement to show that S . and P . stood in that
lxxxviii- Index.] THE LAW TIMES. (Oct. 18, 1990.
SUBJECTS OF CASES.
relation , and someof the costs were mortgagee's the terms of the order were wide enough to
costs which S .asmortgagor was not liable to pay justify North , J. in reversing the taxing master's
to P . ; (b ) that the court had jurisdiction under decision . (Curven v. Milbarn .)... ... ... ...page 278
sect. 8 (4) of the Act to order the taxation or ( See CHARGING ORDER.)
moderation ofthe costs, notwithstanding theagree Mortgage to a solicitor - Redemption - Charges and
ment. Held (by North , J .), that the agreement expenses of mortgagee - Right of solicitor to
contained in the letters amounted to a retainer , charge profit costs. - A solicitor-mortgagee cannot,
and created the relation of solicitor and client,and apon redemption, charge the mortgagor with pro
that for the purpose of bringing an agreement fit costs of an action to recover solicitor.the mortgage
within the Act the relation of solicitor and client debt, in which he acted as his own (Re
need not exist before and apart from the agree Wallis : Ex parte Lickorish .) ... ... 674
ment, and the agreement was not made invalid by — Solicitor's remuneration - Right to chargeprofit
the inclusion of the mortgagee's costs ; that costs. - A solicitor who advancesmoney to a client
sect. 8 (4) of the Act gives no jurisdiction to order on mortgage is not entitled to charge the mort
agreed costs to be taxed, but only to vary or gagor profit costs for the preparation of the
cancel an agreementwhich is brought forward and mortgage from the mortgagor to himself. (Re 33
disputed in the course of taxation. Herd (by the Roberts ; Evans v . Roberts.) ... ... ... ... ...
Court of Appeal), that therelation of solicitor and Negligence - Action commenced in Superior Court
client had been created , and that the court had Amount recoverable in County Court - Costs.
power to refer such an agreement to the taxing The plaintiff, who was acting as solicitor for the
master under sect . 8 , sub -sect . 4, of the Act, but defendants, was instructed by them to commence
in the absence of evidence impeaching the agree. proceedings
to recover against
ought not to be any such reference.
ment therePalmer.) theowner
the amount due offrom
certain
him premises
as the
(Re W . B . ... ... ... . ... ... ...page 778
Costs - Taxation - Country solicitor and London frontager in respect of the expenses of repairing
agent - Taxationof part of bill - Solicitors Act a road upon which his premises abutted. The
1843. - Under the Solicitors Act 1843 the court has proceedings might have been instituted
County Court, but the plaintiff commenced them
in the
no power to direct that one item or one branch of a in the Chancery Court of the County Palatine of
bill of costs delivered shall be taken and remitted Lancaster. The action was dismissed by the
to the taxing master for examination. But, apart Vice -Chancellor, and the present defendants re
from the to
termsof
direct
the
that
statute
part
, the
of a
court
bill
has juris
should be fused to pay the plaintiff's costs, upon the ground
diction
taxed ,where the circumstances make it right that that he had been guilty of negligence in not com
such jurisdiction should be exercised, upon such mencing the action in the County Court. Held ,
terms as would prevent any injustice being done. that,as the Vice-Chancellor of the County Pala
tine bad no jurisdiction to inflict any penalty as
(Storer and Co. v . Johnson and Weatherall.) ... 710 to costs apon a plaintiff for bringing in the County
- - Taxation — Statute-barred costs – Acknow . Palatine Court an action which might have been
ledgment Authority . - The plaintiff in this sum brought in the County Court, the plaintiff had not
mons had for many years employed the defendant been guilty of actionable negligence in not advis
as his solicitor. In June 1888 he became dis ing that the proceedings should be commenced in
satisfied , and instructed other solicitors, and the County Court. (Barker v. Fleetwood Im
gave them a written authority to obtain and provement Commissioners.) ..... ... ...
. ... ... 831
receive from the defendants all deeds and docu .
ments in his possession , custody, or power
belonging to the plaintiff. The new solicitors SOLICITOR AND CLIENT.
wrote to the defendant asking for delivery of Solicitor acting for two parties in similar proceedings
documents, and added , “ If you claim to have - Rules of Court 1883 , Order LXV., r. 27 , sub-sect.
any lien upon the deeds, & c., of our client, we 8 - Appendix N . - Copies – Costs. — A ., B ,C .
request you will be good enough to deliver us full broughtseparate actionsagainst a company to have
particulars thereof without delay.” Defendant
wrote in answer, “ Does your client require my
the register of the company rectified by removing
their names from the register in respect of certain
bills of costs from the time when I became his shares therein . The same solicitor and counsel
sole agent?" To this the new solicitor replied acted for the plaintiffs in all three actions. A .'s
on the 26th June, “ Our client only requires yon action having been tried and decided in favour of
tocosts
deliver particulars of any unsettled bill of A ., it was arranged that the evidence taken in
you may have against him .” On the 4th that action should be used in the actions of B .
July 1888 the plaintiff took out this originating
summons, asking for the delivery and taxation of
and C . Both actionswere heard on the 16th Jan.
1890 , the plaintiffs in each case being represente :1
the defendant's bill of costs, and the delivery of by the same counsel, each of whom was supplied
all documents in his possession belonging to the with two copies of all the documents and evidence .
plaintiff. On the 31st July an order was made In both actions the Court ordered the register to
on the summons for delivery and taxation of the be rectified by removing the names of the
bill of costs. The taxing master had struck out applicants B . and C . therefrom , and ordered re
on taxation certain items without entering into payment of the deposits with interest at 4 per
the question of their propriety , on the ground cent. and costs (such costs to be taxed by the tax.
that they were barred by the Statute of Limita ing master ). After B .'s costs had been taxed , the
tions. The defendant objected to the taxation on taxing master in C .'s case disallowed certain items
the grounds (1) that he had a lien for his costs because the itemswere similar in every particular
which was not affected by the Statute of Limita
tions ; (2) that the letter of the 26th June and
in the bill relating to B ., such as correspondence,
the other correspondenceamounted to an acknow .
evidence, copies of thememorandum ,and articles
of association, & c., and he reduced counsel's fees
ledgment sufficient to take the case out of the because in his opinion the fees given were exces.
statute . North , J. held that the letter of the 26th sive and not justified by the circumstances ofthe
June was one from which , on the authority of case. On summons to vary tbe taxing master's
Quincey v. Sharpe (34 L . T . Rep. N . S . 495 ; 1 Ex. certificate : Held , that the client having retained
Div, 72), Skeet v. Lindsay (36 L . T . Rep . N . S. 93 ; a solicitor, was entitled to have his case taken into
2 Ex. Div. 314), and Banner v . Berridge (44 L . T . court in the best possible manner without regard
Rep . N . S .680 ; 18 Ch. Div. 254), a promise to pay
the amount when delivered must be inferred , and
to any other case . That the cases being cases of
fraud, evidence that was conclusive in the one was
was therefore a sufficientacknowledgment to take not necessarily conclusive in the other. Hald ,
the case out of the statute ; and that the new soli. therefore, that the solicitor was entitled to
citors had sufficient authority to write the letter . charge in both actions and also that council
Held , on appeal, without deciding the above were entitled to fees on both briefs . Order : Refer
points, that the object of the order was to ascer.
tain the amount for which the defendant had
the whole bill
direction
back for taxation with the
that, except as regards attendances
a lien on the plaintiff's documents, and that or other matters which were or ought to
Oct. 18, 1999.] THE LAW TIMES. [Index - lxsxis
SUBJECTS OF CASES.
have been done at one and the same STATUTE OF LIMITATIONS .
time in both actions the plaintiff's solicitor is Acknowledgment - Joint and several liability -
entitled to charge in this action as if he had not
been engaged in B .'s action .” Costs of applicant Release - Principal and surety -- Discharge of
to be paid to him in any event. (Re Metropolitan surety. - An acknowledgment must, in order to
Coal Consumers' Association Limited ; Grieb 's take a case out of the Statute of Limitations,
case.) ... ... ... ... ... ... ... ... ... ...page 561 contain an express or implied promise to pay.
Where persons are severally or jointly and sever.
ally liable for a debt, a payment by one does not
Omission
SPECIAL JURY.
to ask for certificate -Special Jury Act
prevent the Statute of Limitations from running
in favour of the others. The law in this respect
(6 Geo . 4 , c. 50), s. 34 — " Immediately after trial” was the same before the passing of the Mercantile
- Subsequent application - Refusal. - At the trial Law Amendment Act 1856. Apart from the law of
of a probate action in Jan . 1890 the plaintiff principal and surety , a release to one of several
obtained a verdict on every issue, including that persons jointly or jointly and severally liable is a
of forgery. The judge had left the building at release to all ; but where the alleged release is
the time the verdict was given , and the following informal and not under seal, it is a question of
morning, upon the application of the plaintiff's fact to be determined on all the circumstances of
counsel, be gave judgment in accordance with the the case whether a general release was intended to
findings of the jury, but counsel omitted to ask be given . Where one of several persons jointly
for a certificate for a special jury. Upon appli and severally liable had becomebankrupt, and the
cation, in April 1890, for the certificate : Held , alleged release was given to his trustee in bank
that the application must be refused. (Webster ruptcy : Held, that, as the joint liability had
1. Appleton .) ... ... ... ... ... ... ... ... ... 704 become several by the bankruptcy, and the bank
rupt's estate was severally liable only , the release
SPECIFIC PERFORMANCE.
Illegal consideration Compromise of indictment
could not under any circumstances be a release to
the other persons liable. Held also , that the facts
for nuisance. - An agreement to compromise an showed no intention to give a general release, but
indictment for a nuisance is notless illegal than an merely to compromise a right of proofagainst the
agreement to compromise & prosecution for any bankrupt's estate . Under the law of principal
other criminal offence. (Windhill Local Board of and surety a creditor must not (1) act in a manner
Health v . Vint.) ... ... ... ... ... ... ... ... 725 inconsistent with the contract under which the
obligation of suretyship was incurred ; (2) do
STAMP DUTY. anything to prejudice the right of contribntion
between the co -sureties . If he does, the soreties
Doty on personal property - Voluntary settlement
Next of kin taking under --Retrospective opera will be released eitherwholly or pro tanto. Where
tion of statate. - Sub -sect. 1 of sect. 11 of the the creditor had effected a compromise with the
Customs and Inland Revenue Act 1889 provides trustee in bankruptoy of one of several sureties,
that sub-sect. 2 of sect. 38 of the Customs and by which he precluded himself from receiving a
Inland Revenue Act 1881 - which imposes a stamp dividend against his estate : Held, that the co
duty upon all personal or movable property sureties were discharged to the extent of the
dividend which , but for such compromise, the
"settlement,”
passing under any past or future voluntary creditor mighthavereceived . (ReWolmershausen ;
perty whereby an interest in such pro
for life
perty for life is reserved toto the
is reserved boarha- descrip
the settlor shall be Wolmershausen v. Wolmershausen .) ... ...page 541
amended as follows : . . . “ The descrip . Contract in special terms to repay loan - Conditions
tion of property marked (c) shall be construed as precedent- Death of creditor intestate on day for
if the expression voluntary settlement' included repayment - Administrator - Accrual of cause of
any trust in favour of a volunteer, and, if con . action to - Onus of proof. - A . deposited 2001. with
tained in a deed or other instrument effecting the the defendants by way of loan, upon the terms
settlement, whether such deed or other instru that notice of withdrawal should be given , and
ment was made for valuable consideration or not that repaymentwould bemade upon production of
as between the settlor and any other person ." his book by the investor personally or by someone
Held, that sect. 11, sub -sect. 1, of the Act of 1889 with his written authority. Noticeof withdrawal
was given by A ., and the money became payable
is retrospective in its operation , and applies to to him on the 14th Jan. 1879, or on any subsequent
the case of next of kin taking under the pro
visions of a marriage settlement, even though day, between 10 a .m . and 5 p.m . A . died on the
kin became entitled , and all the 14th Jan. 1879, but there was no evidence to show
pleadings in an information to recover the duty at what time of the day he died . The money was
were closed, before the date of y the passing paid to some person unknown on the 16th Jan.
ral
of the Act of 1889. ( The Attorne -Gene v. 1879, on production of the book . Letters of
Theobald .)... ... ... ... ... ... ... ... ... ... 768 administration to the estate of A . were granted to
Marriage settlement - Contingent interests-- Defi. the plaintiff on the 3rd May 1889 , and the action
nite and certain amount of stock ” - Stock vested was commenced on the 13th May following. The
in trustees with power to vary investments-- defendants pleaded the Statute of Limitations.
Amount ofstamp duty on settlement. - A marriage Held , that all the termsas to repaymentwere con
settlement whereby certain contingent and rever ditions precedent to any liability to repay, and
that inasmuch as they were not all performed
sionary interests in varioussums of money, stocks, during the life of A ., no cause of action accrued
funds, and other property were vested in trustees until administration taken out by the plaintiff.
with discretionary power to vary the investments Held also , that if a creditor dies intestate on the
is a settlement of " a definite and certain prin day on which a debt becomes payable to him , and
cipal sum of money " and of “ a definite and cer there is no evidence to show whether he died
tain amount stock," stamp
able with an adof valorem and as such is charge
duty of 58. per cent. before or after the moment when the debt became
ander sect. 3 and the schedule " Settlement” of payable, the statute does not run against his
administrator until administration taken out.
the Stamp Act 1870, in addition to the ordinary (Atkinson v. The Bradford Third Equitable
deed stamp of 103. (Onslow and others, Benefit Building Society .) ...
apps., v. The Commissioners of Inland Revenue,
resps.) ... ... ... ... ... ... ... ... ""... ..... 461 Realproperty - Tenantin tail- Infant - Disability
Accruer of right- Real Property Limitation Act
STATUTE OF FRAUDS. 1874 . - The plaintiff'smother was tenant in tail by
Memorandum - Parol evidence - Grounds on which descentof certain property which was entailed by
the will of a testator who died in Jan. 1811, and
admitted. To establish a sufficient memorandum she became entitled to the possession of the pro
within the Statute Frauds parolwritten
admissible in order toof connect two evidence is perty on the death of R . W ., which took place in
docu Nov. 1871, at which time the plaintiff 's mother
ments together. (Oliver v. Hunting.) ... ... ... 108 was under no disability either of coverture or
Xc - Index.] THE LAW TIMES. [Oct . 18, 1890 .
SUBJECTS OF CASES.
infancy. She married in 1875, and died in 1882, Act extends the powers in respect of the kind of
without ever having acquired possession of the securities upon which trustees who already bare
property . Upon her death the plaintiff became limited power to invest may invest, but it does
entitled to possession as her issue in tail , and in not give power to trustees who have no power
1889 he commenced an action to enforce his right
O such possession . The point of law raised by
to invest independently of the Act. (ReNational
Permanent Mutual Benefit Building Society .) page 596
the pleadings in the action was set down for hear Corporation holding funds for charitable purposes
ing plaintiff,
before the trial, the question being whether - Power of investment – Trust Investment Act
the not baving claimed or taken posses. 1889. - A corporation incorporated by a special
sion until after the expiration of twelve years Act, and holding funds for charitable purposes, is
from Nov. 1871, and who was an infant on his a trustee within the meaning of sect. 3 of the
mother' s death , and also at the date of the action .
was entitled to the benefit of his infancy to pre Trust Investment Act 1889, and is entitled to
vent the Statute of Limitations from running . invest any trustmoneys in its hands on any of the
Held, that, as the plaintiff claimed through his securitiesmentioned or referred to in that section ,
mother , as a tenant in tail, the right to possession unless expressly forbidden to do so by the instru
first accrued to her ; that, as there had been no ment (if any) creating the trust. A trustee cannot,
possession by either of them for twelve years, however, sell existing securities for the purpose
the statute appliedentitled
; and that, therefore, property.
the plain of reinvesting the proceeds in the securities
tiff was not now to claim the authorised by sect. 3 , unless the instrument
(Murray v. Watkins.) ... ... ... ... ...page 796 creating the trust contains a power to vary
securities. (Re Manchester Royal Infirmary ;
TRADE NAME . Manchester Royal Infirmary v. Attorney-Gene
Sale of business — Assignment of goodwill to pur. ral.) ... ... ... ... ... ... ... ... ... ... ... 419
chaser - Right of purchaser to use vendor's name. Improper investment- Realisation by new trustees
- Option of investing trustee to take security on
- In the absence of special agreement, the pur repairing - Breach of trust - Liability notwith .
chaser of the goodwill of a business carried on standing realisation without notice. - An action
under the vendor's namehas the right to use the was brought by an assignee of the share of one
vendor's name in connection with that business of several beneficiaries to compel U ., a former
so long as he does not thereby expose
to liability . A . sold his business andthethevendor trustee, to make good a loss which had resulted
good from an improper investment. In 1881 U . (then
will thereof to B . The deed by which the pur the sole surviving trustee) invested 13001., part of
chase was carried out contained an assignment of
the premises on which the business was carried the trust money, upon the first mortgage of some
on , and also “ of all the beneficial interest and freehold cottages at Hull, which had been valued
goodwill " of A . in the business, but there was no at 17501. The will authorised the investment of
assignment of the right to use A .'s name. Held , the trust funds on the security of a mortgage of
that B ., by virtue of the assignment to him of the freehold houses. The cottages were at the time
unlet , and not completely finished , and were
goodwill of the business, was entitled to use the intended for letting to weekly tenants. The
name of A . for the purpose of showing that the cottages were afterwards let, but their value
business was that formerly carried
that he must
on by A ., but became depreciated by reason of some docks, near
not so use it as to expose A , to lia
bility , by holding him out as the real owner of the which theyretired
were situate, not proving successful.
business. (Thynne v. Shove.) ... ... ... ... ... 803 In 1884 U . from the trust andappointed
new trustees, to whom he made over the trust pro
TRADE UNION . perty , including the mortgage of the cottages. In
Friendly society - Society registered astrade union, 1887 the new trustees, in exercise of a power of
but providing for benefits to members - Illegality sale contained in the mortgage, sold the property ,
of societyat common law - Right ofmember to sue which realised about 8001. The action was
society for sick benefit - Jurisdiction ofmagistrate brought on the ground that U . had not acted
- Trade Union Act 1871 - Friendly.Societies Act prudently, inasmuch as a sufficient margin of
1875 . - A society was registered as a trade ucion value beyond the amount advanced was not left,
under the Trade Union Act 1871, and in addition even if the property was worth the value put on
its rules laying down the duties ofmembers with
toreference it, and that the property was of too speculative a
to trade questions, and imposing fines, character. Kekewich , J.,withoutdeciding whether
suspension,and expulsion upon members violating the investment was an improper one, dismissed
the rules as to trade matters, it also contained the action on the ground that the plaintiff was a
rules giving to members certain allowances out of party to the sale of the property in 1887, and that
the funds in cases of sickness, accident, infirmity , the sale having been made without any notice to
or want of employment, and other allowances U ., he was deprived of the right, which he would
similar to those of a friendly society. A member otherwise have had, of taking the mortgaged pro
sued in the Petty Sessions Court for one week 's perty on making good to the trust fund the
sick benefit which was refused to him by the amount lent on the security, and that as this could
society : the magistrates made an order for the not now be done the plaintiff was debarred from
any right to relief against U . Held , on appeal,
payment of the sum claimed , holding that the (1) (on the authority of Learoyd v. Whiteley,
society was substantially a friendly society , and 58 L . T. Rep. N . S. 93 ; 12 App. Cas. 727), that
that they had jurisdiction in the matter. Held no reasonably prudent man would have invested
(reversing the decision of the magistrates), that, his money in such a way, and that U . was
as some of the objects of the society were in liable for the resulting loss ; (2) that the plaintiff
restraint of trade, the society was at common law had had nothing to do with directing the sale , so
tiņ₂ /₂?Â₂ Ò₂ÂÂÂÒ§Ò₂ÂòÂ₂Ò►/m₂?Â₂Ò₂ÂòÂ₂Ò₂ÂòÂ§Â§Â§₂₂₂₂₂₂₂₂₂₂?Â? that independently of the question of law the
wasmade legal to a certain extent by the Trade plaintiff was not open to the objection taken to
Union Act of 1871, sect. 4 of that Act prevented
any court from entertaining or enforcing him ; (3) that the case was not like that of an
any investment upon property which was not within
agreement between the members to provide the terms of the trust, but that the property
benefits to members, and that consequently the was part of the trust property, and as such was
magistrates had no jurisdiction to make the order handed over to the new trustees with authority to
in question . (Old , app., v. Robson, resp.) ... ... 282 sell it when it should be necessary to realise the
TRUSTEES. security , and therefore the cestui que trust could
not dissent from the investment until it had been
Benefit building society - Trust Investment Act ascertained (by investigation in the action) that
1889. - The Trust Investment Act 1889 does not the trustee had uot acted with reasonable pru
apply to a building society whose funds are in . dence in making the investment, and was not
vested in their own name or in the names of. bound to elect whether he would accept or reject,
trustees who have no power of investment. That and that, notwithstanding the absence of notice
Oct. 18, 1890.) THE LAW TIMES. [In lex - ci
SUBJECTS OF CASES.
of the intended sale, U .was liable for the defi tenancy. Held, thatthe evidence was admissible,
ciency . (Re Salmon ; Priest v. Uppleby.) ...page 270 and that accordingly the purchasers mustbe taken
Investment- Appropriation to satisfy legacy - Sale to have had knowledge of the facts, and to have
known all the circumstances affecting the pro
of securities - Breach of trust-- Re-investment
Insufficient security -- Valuation -- Duties of trus perty for which they bid . Held , therefore, that the
tees - Trustee Act 1888. — The executors and purchasers were not entitled to compensation. (Re
trustees of a will continued an investment of tho Edwards to Daniel Sykes and Co. Limited.)...page 445
testator's, consisting of two bonds, to answer a Contract - Conveyance- Title - Trustees having po
trust legacy of 6001. The bonds subsequently immediate power of sale - Concurrence of tenant
increased in value ; the trustees sold them , and for life under powers of Settled Land Acts. - The
invested 12001., part of the proceeds, upon two trustees of a willwere directed to sell certain free
mortgages of freehold houses, to answer this holds after the death of the testator's wife, who
legacy of 6001, and another of the same amount.
The security afterwards proved insufficient. On
was tenant for life thereof. During the life
the occasion of the advance a valuation was made of the tenant for life, the trustees, with her con
of these two houses together with many others , sent, contracted to sell the freeholds as “ trustees
but such valuation was not made on behalf of the for sale." Upon investigation of the title the
trustees , nor did they know anything about the purchaser raised the objection that the trustees
had no power to sell. The vendors thereupon
valuer. Held , on the evidence , that there had offered to procure a conveyance by the tenant for
been an appropriation of the bonds to satisfy the
legacy : that the sale was unnecessary and the life of the land under the powers of the Settled
Land Acts. The purchaser declined to enter into
re-investment improper ; and that the trustees a new contract with the tenant for life , and before
were not protected by either the 4th or 5th the day fixed for completion repudiated the con
sections of the Trustee Act 1888,and must account tract. He then took out a summons under the
for the value of the bonds. (ReWalker ; Walker Vendor and Purchaser Act 1874 for rescicsion of
d . Walker.) ... ... ... ... ... ... ... ... ... 449 the contract, and return of his deposit with
Maintenance - Discretion of trastees - Assignment interest, and costs of investigating the title.
of interestby beneficiary - Notice of assignment to Held , that the vendors were not entitled to force
trustees - Payments by trustees after notice the purchaser to enter into a new contract with
Breach of trust. - By the will of a testator a share the tenant for life in substitution for the contract
of his estate was given to trustees upon trust with themselves ; and that therefore the pur.
during the life of one of his sons to pay and apply chaser was entitled to have the contract rescinded .
the whole or any part of the income or accumula Held , also, that the purchaser was entitled not
tions of income of the share for the support, only to have his deposit back , but to have it with
maintenance, or education, or otherwise for the interest at 4 per cent. from the time when it was
benefit of that son, his wife, or children , in such paid , and also to have the costs of investigating
the title. (Re Bryant and Callingford to Barning
manner in all respects as the trustees should in
their uncontrolled discretion think fit. The son ham .) ... ... ... ... ... ... ... ... ... ... ... 53
assigned his interest by way of mortgage to the Mortgage to building society --Statutory power of
plaintiff. Notice of the assignment was duly
given to the trustees of the will ; but, after sale “ Due" — Notice – Waiver - Contract for
receiving such notice, they made payments out of title under power of sale -- Confirmation by owner
the income of the share to or on behalf of the son. of equity of redemption - Specific performance
The plaintiff took out an originating summons Conveyancing and Law of Property Act 1881. - By
a mortgage, dated the 29th March 1889, to the
seeking to make the trustees liable in respect of trustees of a building society , the mortgagor
the payments so made. Objection was waived to covenanted to pay quarterly subscriptions and
the decision of a question of breach of trust npon fines, and conveyed certain leaseholds subject to
an originating summons. Held , that thebeneficial a proviso for redemption ; and it was declared
interest of the son under the will was that which that, in case of default in the performance of any
he was entitled to assign ; that money paid to him of the covenants, the total som for which the
or to any person on bis behalf was necessarily part mortgage should then be redeemable should be
of his beneficial interest ; and that it must be considered as actually dueand payable, and that
assumed that money paid by the trustees to him the power of sale given to the mortgagees by the
or to any person on his behalf was his in their Conveyancing Act 1881 should apply and be
irrevocable determination immediately before the exercisable by the trustees of the society. The
payment, at which period of time the trustang mortgagor
subscriptionbecame
due onbankrupt,
were affected with notice of assignment. Held , and 1889
the quarterly
therefore , that the trustees were liable for all the 4th July was not
sumspaid to or on behalf of the son after they had paid . The trusteesof the society ,with the consent
received notice of assignment. (Re Neil ; Hem of the mortgagor's trustee in bankruptcy, and of
second mortgagees, put up the property for sale
ming v . Neil.) ... ... ... ... ... ... ... ... ... DW by auction , butunsuccessfully. Afterwards,with
out the knowledge of the mortgagor 's trustee in
VENDOR AND PURCHASER . bankruptcy , or of the second mortgagees, the
Compensation - Misdescription in particulars of trustees of the society entered into a private con
sale _ " Annual rental" - Montbly tenancy - - Rates tract, dated the 25th Sept. 1889 , for the sale
and taxes payable by vendor --Admissibility of thereof. One of the conditions of sale provided
evidence to prove purchaser's knowledge of.-- The
particulars of sale of certain leasehold property
that, the vendors being mortgagees selling under
a power of sale , theassignment should beaccepted
described the same as being occupied at an without the concurrence of any other persons, and
* annual rental,” but omitted to state that the without any further covenants than the statutory
vendor as landlord paid the rates and taxes on covenants by mortgagees. The purchaser re
the property , the tenancy being a monthly one. quired the concurrence of the mortgagor's trustee
The purchasers alleged that they were thereby in bankruptcy, which was agreed to, as was also
led to infer that the tenancy was a yearly tenancy,
and that the tenant paid the rates and taxes
a draft assignment. The second mortgagees were
ready to concur, but the purchaser endeavoured
Accordingly they claimed compensation pursuant to avoid completion on the ground that the power
to the conditions of sale. The vendor asserted of sale in the Conveyancing Act 1881 could not
that the purchasers had knowledge of the true apply to a building society's mortgage, as the
facts of the case at the time of the sale, and evi. mortgage money never became “ due " within
dence was adduced to prove that in the auction sect. 19 ; that, if it could apply, it never became
room a question was raised by a person present at exercisable, as the trustees ought to have given
the sale on the words " annual rental,” and that the mortgagor three months' notice under sect. 20 .
in reply to an inquiry it was distinctly stated by sub-sect. 1, and at the date of the contract three
the auctioneer that the landlord paid the rates and months had not elapsed since default was made,
taxes , and that the tenancy was a monthly and that notice was not waived by the second
xcii - Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OF CASES.
mortgagees and by themortgagor's trustee ; and
that he could not be compelled to take an assign .
sworn by the widow of the deceased , the person in
question , and by the two witnesses to the will,
ment with the concurrence of all parties, as that that she did not sign as a witness, but merely at
was not the title he had agreed to take. Held , the wish of the testator to verify the contents of
that the power of sale was incorporated by the the document, which the testator did not consider
act of the parties,and that, on default, the whole would be in order unless her signature was
sum was to be considered actually
as due ; that appended
dec thereto. (In theGoods of John Smith ,
therefore it was applicable ; and that the want of ... ... ... ... ... ... ... ...page 183
notice did not prevent the vendors from exercising Bequest of all property - Exercise of power of
it. (Re Thompson and Holt's Contract.) ...page 651 appointment - Marriage after date of will - Wills
Act (1 Vict. c . 26 ), s. 18 – Partial revocation
WATERWORKS. Limited grantof administration with will annexed .
Prevention of waste — “ Apparatus for regulating - The testator by his will, made in 1885 ,devised
supply " - Water company, notice occupier and bequeathed all his realand personalproperty,
to lay down stop-valve under streetby- toInability to and all property over which he should at the time
of his decease possess a power of appointment by
comply with notice - Refusalby company to supply will, to Miss J . H . S . absolutely , and appointed
occupier with water - The Folkestone Waterworks her executrix of his will. In 1888 he married the
Act "1858 — Waterworks Clanses Act 1847. - The
11th section of the Folkestone Waterworks said J . H . S ., but did not re-execute his will. In
Act April 1889 he died. The widow now moved the
1858 provides that all persons supplied with court to grant to her probate of the said will, on
water by the company shall “ provide proper ball
or stop cocks, or other necessary apparatus of the ground that it came within the proviso to
approved construction for regulating such supply," sect. 18 of the Wills Act (1 Vict. c . 26) as being a
and in case any such person shall after being will made in the exercise of a power of appoint.
required by the company neglect to provide such ment. Held , that the executrix was not entitled
ball or stop cocks, or other necessary apparatus, to probate ; the fact that the will contained the
the company may cut off the pipes, or turn off exercise of a power of appointment not making it
the water from the premises of such persons , entitled as a whole to be admitted within the
respectively. By sect. 5, sub-sect. 2, "of the terms of the proviso to sect. 18 of the Wills Act :
Folkestone Waterworks Act 1888 , the company but Held , that the will was not wbolly revoked ,
were required to provide a constant supply of and that the widow was entitled to administration
water which prior to this Act was only inter with the will annexed, limited to the property
mittent. For the purpose of preventing waste the over which the testator had by his said will
company, after the passing of this Act, made exercised the power of appointment. (In theGoods
certain regulations by which (inter alia ) the con ofGeorge Brown Russell, deceased.) ... ... ... 614
sumers were required to provide and insert in
their communication pipes under the street out. Charitable bequest- Validity of Advancement of
education in economic and sanitary science in
side their premises
stop-valves, wherebysound and suitable screw -down
the water could be shut off Great Britain . - Testator by his will gave 200,0001.
to trustees, to be paid exclusively out of such
from any premises where it was being allowed to part of his personal estate as might by law be
run to waste. A notice was served on the appel bequeathed for charitable parposes, and he
lant requiring him to comply with these regula directed thathis trustees should stand possessed of
lations, and on his neglecting to do so the supply the said legacy upon trust to apply the same “ for
of water to his premises was cut off. Held , that the advancement and propagation of education in
aforscrew -down stop -valve was not an " apparatus
regulating the supply " within the meaning of economic and sanitary science in Great Britain ."
Held , that this was a perfectly valid charitable
the Folkestone Waterworks Act 1858, and that, bequest. (Re Berridge ; Berridge v. Turner.) ... 365
under the above circumstances, the company were Construction - Gift to daughter- “ Unmarried and
not justified in cutting off the supply of water to without leaving lawful issue." - By hiswill, dated
the appellant's premises. (Ward, app., v. The in 1838, a testator, who died in 1840, bequeathed
Folkestone Waterworks Company, resps.) ... ... 321 a fund upon trust to pay the income to his two
WEIGHTS AND MEASURES. daughters for their respective lives for their
separate use withont power of anticipation , and
Post-office - Postmaster carrying on other trade after their respective deceases the principal of
requiring weights and scales - Post-office scale
uninst - Right of inspector to seize Jurisdiction their respective shares was to be in trust for the
of justices. - A postmaster, who also carried on the children or child of each daughter, as she might
business of a bakery, was summoned ,under sect. 25 appoint, and in default of appointment equally :
ofin his
the possession
Weights andMeasures Act 1878, for having and if there should be no such child , then in trust
for use for trade an unjust scale ; for the executors, administrators, and assigns of
each of his said daughters respectively : but in
this scale was supplied by, and was the property case of the decease of either of his said daughters
of, the Postmaster-General, and was on the same “ unmarried and without leaving lawful issue,"
counter as that on which the bread was sold .
There were in the shop no weights or scales then the testator bequeathed the share of the one
suitable for the weighing of bread except the so dying unmarried and without issue to the sur.
Post-office weights and scales, though by statute viving sister. The plaintiff, one of the testator's
it was necessary to sell the bread by weight,and two daughters, had married, but had had no
children , and she was a widow over seventy years
to have weights for that purpose. There was no of age. The question was, wbether she was now
suggestion that the postmaster knew that the scale absolutely entitled to her share of the fand. Held ,
was unjust, or that he had nsed it for the pur that the plaintiff was not absolutely entitled, the
poses of his trade. Held (making absolute a rule words " unmarried and without leaving lawful
for a prohibition ), that Post-office weights and issue " meaning not under coverture at the
measures , supplied by the Post-office for post time of her death . (Re King ; Salisbury v.
office purposes,are not within
Act 1878the, and
operation ofthe Ridley.) ...
Weights and Measures that conse
quently the justices had no jurisdiction to enter on –of Tilegitimate child described as** danghter"
testator -- Residuary gift to " children." - A
the inquiry. (Reg . v. The Justices of Bromley.)... 114 testator, after appointing J. L. B. one of his
WILL . executors and trustees, describing him as “ my
Attestation - Signatures of three persons other than son-in-law ,” and making various devises and be.
quests of his property to his three sons nominatim ,
the testator- Order for probate to issue omitting gave other property to his trustees upon certain
one of the names. - The Court allowed probate to trusts for his two daughters respectively, describ
issue omitting the name of one of three persons
other than the testator, who had signed their
ing them as “ mydaughter M . A . M ., the wife ofthe
said J. L . B .," and " my daughter A ., the wife of
names at the foot of a will, in a case where it was W . W .” He then devised and bequeathed his
Oct. 18, 1890 .) THE LAW TIMES. [Index - xciii
SUBJECTS OF CASES.
residuary real and personal estate to his trustees all his real estate and the residue of his personal
upon trust for such of his “ children ”
his decease, and such of the issue then living of
living at estate to his trustee upon the trusts therein .
after declared , viz ., as to a specified leasehold
any child or children of his dying in bis lifetime. house upon trust to permit his daughter Elizabeth
M . A . M . B . was illegitimate. Held, that the will Jobson to receive the rent thereof for her life, and
showed a sufficient expression of intention on the “ from and after her decease the same premises
part of the testator to include M . A . M . B. under
the term " children ." and that she was therefore
shall be in trust for all the children of the said
Elizabeth Jobson , in equal shares as tenants in
entitled to a share in the residue. (Re Brown :
Walsh v . Browne.) ... ... ..
common on their respectively attaining the age of
... ... ...page 899 twenty-one years." There was a trust of the
Construction - Limitation to children - Omission of residue of the testator's estate, but the will con .
words in common form . - By his will,dated in 1860, tained no direction as to the application of the
atotestator, who died in 1861, gave certain property
trusteesupon trust to pay the income thereof to
rents of the leasehold house after the death of
Elizabeth Jobson and during the infancy of her
the widow of the testator's son for life , and after children . Elizabeth Jobson survived the testator ,
her death " in trust for all the children of my said married, and had one child , who survived her
mother and died under twenty -one. Held , that
son , who being a son or sons shall live to attain
twenty-one years, or being a daughter or daughters the child did not take a vested interest in the lease .
shall marry under that age with their mother's
consent, to be divided between them share and
hold house. (Re Jobson ; Jobson v. Richard
son .) ... ... ... ... ... ... ... ... ... ...page 143
share alike." The will contained powers of Debt — Legacy to creditor — Direction to pay
maintenance and advancement applicable to all debts only - Satisfaction . A testatrix , who died
children . Held , that daughters who attained in March 1889 . by her will. dated in Jan . 1887 .
twenty -one were entitled to share in the fund, devised and bequeathed a freehold estate, a legacy
although they had notmarried under thatage ; for of 30001., and certain chattels , to her nephew , to
even if the omission in the common form did not whom she was not in loco parentis. By a codicil
render the remainder of the clause meaningless. of the same date the testatrix directed that all her
still the intention dominating the form was the funeral expenses and all just and lawful debts
expression of the limitation of attaining twenty that she might owe should be paid at once. In
one, and the powers of maintenance and advance March 1878 she had executed a bond for securing
ment afforded some indiction that this was a payment to her nephew , his executors , adminis .
the testator's intention . (Re Hunt ; Davies ...v . trators, or assigns, of the sum of 10001. within
Hetherington .) ; ... 753 twelve calendar months after her decease, if he
- - Power of investment - Railway or other public skould beorthenassigns,
living,inor case
to hisheexecutors, adminis.
company. - A testator directed his trustees to trators, should have died
invest the residue of his estate upon the deben : leaving issue him surviving, but not otherwise,
tures or securities of any railway or other public together with interest for the same at 5 per cent.
company carrying on business in any part of the from the death of the testatrix. This bond was
United Kingdom . The trustees proposed to invest given to the nephew on the occasion of his marriage
in the securities of certain companies incorporated and was, to the knowledge of the testatrix ,
under the Companies Acts. Held , that the com assigned to the trustees of his marriage settlement.
panies being incorporated by public statute, the The question was, whether the bond had been
instruments forming their constitution being satisfied by the legacy . Held , that there was no
accessible to the poblic, and the shares being difference between a direction to pay debts and
transferable, they were public companieswithin the legacies and a direction to pay debts only : that
investment clause, and that the power was not the direction to pay debts was sufficient to rebut
restricted to companies incorporated by a special the presumption that the debt of 10001. was
Act
Sharpor.) by ...Royal
...
Charter. (Re Sharp ; Rickett r. satisfied hy the legacy of 30001. ; and that both
-to testator's
Precatory "trust — “ At his discretion " - Devise bond and legacy were therefore payable to the
father for his own use and benefit, nephew . (ReHuish ; Bradshaw v. Huish .) ... ... 52
and at his discretion for the further use and Exclusion of persons who were next of kin - Intes
tacy as to residue. - A testator, who died in 1889,
benefit ” of testator's daughter. - A testator,after
certain bequests to his widow . gave the residue by his will , dated in 1887 . gave various pecuniary
of his estate to his father “ for his own use and bequests to individuals and charitable institutions,
benefit, and at his discretion for the further use and ended his will thus : “ And now revoking and
and benefit ” of his (the testator's ) daughter, who hereby making utterly and for ever void and
powerless any and all wills by me at any time
was then a minor and his only child . Held , that, heretofore by me made, and hereby utterly and
under this clause, the father took the residne as
trustee for himself and the testator' s daughter as for ever excluding any and all relatives except
my two dear nieces aforesaid . . . from any
joint tenants, with a discretion in the father as to
the application of the daughter's share during and all advantages or benefit in this my last
her minority. (Atkinson and another v. Atkinson will and testament, I hereby lastly nominate, con
and another .) ... 735 stitute and appoint my said two dear nieces,” and
- Tenant for life - Power to resort to capital certain other persons executrixes and executors
for maintenance - Absolute or limited interest. of his will. The two nieces of the testator named
- Testator gave all his real and personal estate in his will were not his only next of kin, and the
question therefore arose, who were entitled to the
to his wife and J. H ., “ upon trust to allow residue of the testator's estate, of which no dis .
my said wife to have the full and entire use and position was contained in the will. Held , that
enjoyment thereof for her maintenance during her the residue of the testator 's estate was undisposed
lifetime; " and he declared that she might, " at of and devolved upon his statutory next of kin
any time during her lifetime, sell, lease, mort. without any person of that class being excluded .
gage, or otherwise absolutely dispose of all or
any part of the said estate for her maintenance, (Re Holmes ; Holmes v. Holmes.) ... ... ... ... 333
but not by way of testamentary disposition .” Investment - “ Railway or otber public com .
And he declared that after her death J. H . should pany.” — Testator, by his will, authorised as a
call in and convert all his said estate, or the mode of investment for his trust estate (inter
residue then remaining thereof,and stand possessed alia ) “ debentures or securities of any railway
thereof upon certain trasts mentioned in his will. or other public company carrying on business in
any part of the United Kingdom .” It was
Held , that the wife was not absolutely entitled to
the capitalof the estate, but only to a life interest, admitted that debentures of companies incor
with power to resort to the capitalduring her life porated by Act of Parliament were within this
for maintenance, but not for any other purpose. 702 power , and the question was whether debentures
(ReVested
Fox ; Fox contingent—
v. Fox.) ... From of companies formed under the Companies Acts
- or " and after ” the 1862 to 1886 were also within it. The F . company,
which was taken as typical of the other com
death of the tenant for life. - A testator gave
xciv - Index.] THE LAW TIMES. [Oct. 18, 1890.
SUBJECTS OP CASES.
panies upon the debentures ofwhich itwas desired
to invest, was a company formed under the Act of
were made. The next of kin and heir-at-law con
curred in the application of the sole executor for
1862, with a capital of 600,0001. of which 480,0001. probate. The Court admitted the will to proof.
had been issued in 30 ,000 shares of 161. each, with (Maule v. Maule and others.) ... ... ... ...page 702
111. paid up. The shares of the company had an Mortgage - Business debts - Other debts - Contrary
official quotation on the Stock Exchange, and the intention. - A testator by his will, dated the 23rd
dealt with there, though
debentures wereHeld they had Feb . 1885, appointed the plaintiffs executors and
no quotation . , without deciding whatwas in trustees, and devised and bequeathed all his pro
general a “ public company," that the debentures perty used by him in connection with his business ,
of this company were a mode of investment autho. and also any property recently purchased by him
rised by thewill. (ReSharp ; Rickett v. Sharp.)page 364 for the purpose of his business (subject as to such
Legacy to executor - Power to executor to select estate to any purchase or other moneys at his
beneficiaries - Renunciation of probate - Right to death payable in respect. thereof ; and as to lease
legacy - Right to 'exercise power of selection.-- hold estates, to the rents and covenants , including
Testator gave to each of his three executors & the burden of any unperformed covenants for
legacy for the trouble of carrying out his will, and building contained in any of the leases) to his son
also to mark his friendship and regard for them . R . N ., “ subject nevertheless to and charged in
He gave his residue
such others
among certain charities or
as my executors herein named may
exoneration of the rest of his estate, with the
select." One execator renounced . Held , that he debts and liabilities owing by him in connection
was entitled to the legacy, and also to join in the with the said business," and subjectto and charged
with certain annuities therein mentioned ; and he
selection of the charities. (Re Mainwaring, de devised and bequeathed all the residue of his real
ceased ; Crawford v. Forshaw .)... ... ... ... ... 63 and personal estate unto his trustees upon trust
Legacies - Charge on realty - Rents received after
death of testator and before sale of realty . - A
for sale and conversion , and upon trust out of the
proceeds and his readymoney to pay his funeral
testator who died in Jan. 1887, by his will dated and testamentary expenses and debts (other than
in Ang . 1879 gave his real estate at North and those thereinbefore provided for)," and to divide
South Collingham and his residuary real estate to the ultimate residue among his daughters. The
testator died on the 18th Aug. 1889. On his death
his nephew , he also paying thereout the follow there was due from the testator to one of his
ing legacies trustees
; that is to say , the legacy or sum of banks a large debt secured by three indentures of
10001. to my to beheld by them upon the
trusts hereinafter declared concerning the same; mortgage, and by deposit of deeds and documents
therein referred to . The loans from thebanks were
the like legacy or sum of 10001. to the four
daughters ofmy late niece Mary Holroyd in equal obtained for private purposes. On originating
shares ; and the legacy or sum of 2001. to my summons : Held , that the intention of the testator
niece Sarah Woodruff, to whom I give and be
queath the same respectively .” The testator
expressed on the face of the will was to make
R . N .,and the property given to R . N ., subject to
directed that such legacies should be paid at the business debts, whether mortgage debts or not,
end of six months after the death of his sister, including the vendor's lien, and that he gave to
and he directed his trustees to stand possessed of his residuary legatees nothing whatever except
the sum of 10001. thereinbefore directed to be
paid to them and “ charged on my Collingham
what might
personal estatebe after
left ofpaying
the allresiduary
the otherrealdebts
and;
estate," upon certain trusts. The question was, that is, the private debts,whether mortgage debts
whether the testator's nephew was liable to ac or other debts - simple contract debts. Held , that
count for the occupation rent of so much of the Locke King 's Act and the Amendment Acts did
testator's real estate at North and South Colling
ham as was in his possession or occupation at the
not apply. (Re Nevill ; Robinson v. Nevill.) ... 864
date of the testator's decease for the period be. Next of kin of person dead at date of will - When to
be ascertained. -- Testatrix , who died in 1888, by
tween that date and the completion of the sale of her will, dated the 20th Dec. 1881, gave a sum of
that estate by the direction of the court, and with money to such person or persons as would have
any profits made by him in respect of the crops become entitled to her late husband ' s personal
and other produce of the estate during such estate under or by virtue of the Statute of Distri.
period. Held, that the testator's nephew was not butions had he died intestate , and without leaving
athetrustee of the legacies for the legatees, butthat any widow bim surviving. Some of the persons
same weremerely charged on the North and entitled under the statute to the husband's per
South Collingham estate ; and that that being so , sonal estate at the death of the testatrix were
he was not liable to account for the back rents different from those so entitled at his own death .
and profits thereof. (Re Oliver ; Newbald v . Held , that the persons to take must be ascer
Beckitt.) ... ... ... ... ... ... ... ... ... ... 533 tained at the date of the death of the husband ,
Marriage with consent of trusteas – Gift upon
Consent inferred from circumstances. -- In cases
and the gift read as a gift to such persons as
would at the husband's death have become
where a benefit is given to a person with a con entitled to his personal estate under the statute ,
dition attached that the beneficiary is to marry had he died intestate without leaving
and a widow .
with the consent of certain other persons, but no Held , also , that, as regards the share of one of
particular form or manner in which the consent is such ' persons who had died in the lifetime of the
to be given is prescribed by the instrument con testatrix, there was a lapse, and such share fell
into and became disposable as part of the resi.
ferring the benefit, the court has from an early
period treated the consent as a matter of sub duary estate ofthe testatrix. (Re Rees ; Williams
stance, and not as a matter of form , and, if the v . Davies.) ... ... ... ... ... ... ... ... ... 362
consent is given substantially , it will not look Probate – Declaration of legitimacy - Writ- In
very minutely into the form in which it is given . dorsement-- Claim for probate and declaration
(Re Smith ; Keeling v . Smith .) ... ... ... ... ... 181 of legitimacy included Practice
in samewrit -prayer
Legitimacy
Material alterations - Probate. - A testator wrote Declaration Act 1857 – . -- A for a
out his will in 1885 and signed and dated it, but declaration of legitimacy cannot be included in a
did not have it attested . He subsequently de writ in a probate suit, but must be by petition .
(Warter v. Warter .) ... ...
stroyed all but the last sheet, and wrote out two .. ... 328
fresh sheets, which he attached to the said last - Will - Non -existe nt document- Proof
n of con
sheet. He then, in 1888, inked over his signature tents of destroyed will - Presu mptio - Evidence .
in the presence of two attesting witnesses,who - The plaintiff asked that probate might be pro
duly signed their names at the foot of the attesta nounced for a non -existent document as the last
tion clause. The testator died in 1889, and after will of her father, who
his death thewill was found with the name of the funeral his wife produced died in 1877. At his
a written paper in the
residuary legatee altered , and with several other form of a will, stating that it was the will of her
alterations, all being in the testator's own hand. deceased husband . By it she took a life interest
writing . There was no evidence as to when these i in her husband's property, which at her death was
Oct. 18, 1890.) THE LAW TIMES . [Index - XCV
SUBJECTS OF CASES.
to be divided among the children of the marriage. invested, and the dividendswere paid to the son 's
The document was subscribed with three names, wife during her life. Ather death questions arose
one of which purported to be that of the deceased , on the construction of the codicil, and it was
written in his own handwriting. The two other decided by Kay, J. that the request was a sub
names were signatures of the attesting witnesses . stitutionary gift to the descendants of those of the
The widow continued to occupy the freehold house daughters of the testator who died in the lifetime
and land where the deceased had lived (and which of the son 's wife leaving descendants ; that “ de
was the only property left by him ) until her own scendants ” included children , grandchildren , and
death , which occurred in July 1885 . She never great-grandchildren living at the timeof distri.
took any steps to prove what she had alleged to bution ; and that, although the daughters were to
be the will of her late husband, and at her death to take as tenants in common , the words “ in equal
the paper produced at the funeral was not forth proportions " did not apply as between the descen
coming. The plaintiff propounded thatdocument, dants themselves, such descendants taking as
and pleaded that, although it had disappeared , joint tenants. Subsequently the question was
the court ought to grant probate of it. No at. raised whether descendants of a daughter of the
tempt bad been made to show that the paper bore testator who might have survived such daughter,
any date whatever , or that it contained an attes but died in the lifetime of the son's wife, having
tation clause to the names of the two witnesses. severed their joint tenancy, were entitled to
Butt, J. pronounced for the paper , the contents participate in the gift. Held , that, notwithstand
of which had been proved in the course of the ing the order of the House of Lords in Pearson v .
trial. On appeal: Held, that the decision of Stephen (5 Bli. N . S . 203), the currentof anthority ,
Butt, J . was justifiable , having regard to the as instanced by Lanphier v. Buck (2 Dr. & Sm .
484 ; 34 L . J. 650, 659, Ch .) and Re Merrick's
circumstances. (Harris v. Knight.) ... ...page 507
Real estate in foreign country - Lex loci rei Trusts (L . Rep. 1 Eq. 551) was in favour of the
sita - Partnership property - Legacy duty - Con. view that it was not necessary that the descen
version . - J . M . Stokes, the testator in this action , dants who took a share should survive the tenant
who died in Sept. 1880, domiciled in England, for for life. (Re Flower ; Matheson v. Goodwin ,
many years previous to his death carried on the No. 2 .) ... ... ... ... ... ... ... ... ...page 677
business of sheep -breeding in partnership with his Testamentary documents — Belgian will - Domicile
brother R . Stokes in New Zealand. Part of the - Deeds-poll - Codicils - Probate. - The form of a
partnership property consisted of a freehold estate document does not affect its title to probate, pro
of 29,000 acres in New Zealand known as the vided it be executed in accordance with the
statnte (1 Vict . o. 26 ), and that it be clear that
Milbourne estate. Byarticles of partnership dated
the 14th Feb . 1879, made between the testator and the testator intended that it should operate after
R . Stokes, it was agreed thatthe Milbourne estate his death . Where a testatrix, an Englishwoman
should be forthwith sold in the manner which by birth , having acquired by marriage a Belgian
the parties shonld mutually agree upon, and the domicile, executed in Belgium , in accordance with
articles contained provisions for sale in case of no the law of Belgium , but not in accordance with
agreement and for carrying on the partnership .
R . Stokes died in Jan . 1880 . Tbe testator was
the Wills Act, a will appointing executors and
disposing of all her property , though not expressly
entitled to four-sevenths of the partnership pro referring to the property over which she possessed
perty. No sale of the estate was made in his a power of appointment under an ante -nuptial
lifetime or in that of the testator. By his will the settlement: Held , that this document was entitled
testator gave his four-seventh shares in the to probate,as a will, under Lord Kingsdown's Act.
said Milbourne estate to trustees upon trust to And where the same executrix , while still retain .
sell , with powers of management till sale , and ing the said Belgian domicile, subsequently
subject to the payment of an annuity , and of the executed a revocable deed-poll, attested hy two
income of one-seventh to the widow of Robert witnesses in accordance with the Wills Act,
Stokes during her life, to divide the proceeds and whereby she appointed the settled property upon
certain trusts therein mentioned to take effect
the produce till sale among thirteen charities.
An administration action was commenced in 1881. from and after her decease ; and afterwards,
The New Zealand property had never been sold , having in the meantime resumed her domicile of
but
into the income hadanfromordermade
time to intime
Aprilbeen1888paid
origin , executed another and similar deed -poll,
court. Under the whereby she varied the trusts in the former deed
funds then in court had been divided , and legacy poll,and the said trusts,as varied ,were expressed
duty had been paid upon the moneys arising from to take effect upon her death : Held , that as it
the New Zealand estate. The duty had been paid was clear that the deceased intended to convey
under an arrangement that it should be repaid if by these deeds-poll the benefits which would be
it was ultimately decided not to be payable. The thereby conferred if they were considered as testa
Governors of the London Hospital, who had been mentary documents ; and further, as her death
appointed to represent the other charities , pre was the event which was to give effect to the
sented a petition asking for distribution of the provisions therein contained , if not previously
fund which had accumulated in court since April revoked by her, the deeds-poll in question were
1888 withont payment of legacy duty, on the codicils to the will of 1884, and, as such , entitled
ground that, being proceeds of real estate in
New Zealand , it was not subject to English legacy to probate. (Milnes v. Foden.)... ... ... ... ... 498
daty. Held , that the testator's interest in the Trustees named - Direction to trustees to pay
property, whether regarded as a share in land specific debt - Only one other debt - Direction to
agreed to be sold by the articles of partnership or pay legacy, to invest residue, and pay one annuity
as a share in partnership property, was personal -- Gift of residue — Executors according to the
and movable property , and therefore subject to tenor-- Probate refused - Administration with will
legacy duty according to the law of the testator's annexed . - A testator by his will appointed his
domicil. (Re Stokes ; Stokes v. Ducroz.) ... ... 172 brother-in -law and son trustees thereof. He de
vised and bequeathed to his said trustees all his
Sabstitutionary gift – “ Descendants ” – Time of real and personal property, upon trust to pay to
Testing. - A testator, by a codicil to his will, a certain lady a certain amount due to her from
directed his son to insure his life for 50001., and the testator, this being the only debt owing by the
to bequeath that sum to his wife in case she should testator, with the exception of his doctor's bill .
survive him , to be invested in trust for her sole The trustees were then directed to pay one legacy
use and benefit during her life, and at her deceas3, of 501., and to invest the residue, and out of the
or at the decease of the son if he should be the income to be derived therefrom to pay to the
longest liver, the 50001, to be bequeathed to the housekeeper of the testator's son, for her life , the
testator's " daughters or their descendants in annual sum of 301, to be increased to 401. a year
equal proportions." The son duly insured bis in the event of her ceasing to be his housekeeper,
life, and after his death the sum of 50001. was subject to the foregoing directions. The testator
received by the trustees of the testator's will and gave the residue of his property to his son, but
xcvi- Index.] THE LAW TIMES . [Oct. 18, 1890.
SUBJECTS OF CASES.
directed that, in the event of his son not disposing the plea ofundue influence is established , and the
of it by deed or will, it was to go to the son's will ought to be pronounced against. The onus
children. This gift to the son amounted to an probandibeing in every case upon the person pro
absolute gift . The trustees moved the court to pounding a will , hemast satisfy the court and jury
grant probate of the will to them as executors that the instrument he is setting up is the true
according to the tenor. Held , that they were not last will of a free and capable testator. The
executors according to the tenor, and that probate person propounding the alleged last will of a
must be refused . (In the Goods of Samuel Arm . testatrix was the chairman of the board of
strong, deceased .) ... ... ... ... ... ... ...page 184 guardians of the union , in whose workhouse
Two wills - Later will not propounded - Revocation infirmary the testatrix was an inmate at the time
alleged and denied in pleadings - No evidence the alleged will was made , and in which she died .
offered as to execution - Earlier will admitted to The plaintiff obtained from a solicitor a form of
probate -- Refusal to pronounce against later will will, filled up in pencil ; he refused to allow the
- Form of decree. - A will of 1881 was propounded solicitor
th e testattorisgowithto hithe deceased
m we nt to th. e Having
on a friegotnd the
of
by the plaintiffs as execators. The defendants form of will, the plaintiff called on a friend of
pleaded that it was revoked by a will of 1884 ,which , his own , and with him went to the infirmary , and
in its turn, they alleged to have been revoked by the testatrix put her mark to the will in their
tearing, and said that thedeceased died intestate ; presence and that of a nurse. The learned judge
and they counter-claimed for a decree against both directed the jury as above, and, in the result,
wills. The plaintiffs, in reply , denied the revoca they found the plea of undue influence estab
tion,and joined issue upon the other parts or the lished . (Parker v. Duncan.) ... ... ... ...page 612
defence and counter-claim . No evidence was Will or codicil - Paper writing duly executed
Intention expressed on face of document - “ Not
offered to sbow that the later will had ever been meant as legalwill " - Invalidity. - The testatrix,
executed . The Court pronounced for the will of a married woman, having duly executed a will in
1881, butdeclined to pronounce against the will of
1884. (Grubb v. Grubb.) ... ... ... ... ... ... 644 1888, in the following year executed another docu
Undue influence - Direction to jury . It is the duty ment, the terms of which were talked over with
of any person who expects that a will is about to her husband, who embodied what he thought was
be made in his favour to see that the testator an expression of their joint desires therein . This
receives proper and independent advice , and he document dealt with certain powers of appoint
should take care that the testimony called in ment amongst the children of the testatrix and
support of the will should not be that of himself herhusband,and wasduly executed by the testatrix
alone, but that it should be independent and im in the presence of two witnesses, and would , if
partial. Themind of the testator should be left admitted to probate, form a codicil to the will of
perfectly free and untrammelled . The fact that 1888. At thehead of the paper.writing were these
words : “ This is not meant as a legal will, but as
afitsperson propounding a will under which he bene
largely is the person who alone took the guide." Held , that the documentwasnot entitled
instructions for it and either prepared or procured to probate , there being no authority cited in which
its preparation, isspecial
a circumstance vigilance
of grave suspi probate had been granted of a document bearing
cion and calls for care and on the upon its face a declaration that it was not intended
part of the court and jury in examining the evi. to operate as a will , (Ferguson-Davie and others
dence adduced in support of it ; and unless that v . Ferguson-Davie.) ... ... ... ... ... ... ... 703
suspicion is removed and the court and jury are WRIT.
judicially satissed that the terms of the document
actually express the true wishes of the testator, (See PRACTICE.)
THE
LAW TIMES REPORTS :

COMPRISING
All the Cases Argued and Decided

IN THE
HOUSE OF LORDS, THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL ,

THE SUPREME COURT OF JUDICATURE, IN BANKRUPTCY, AT
NISI PRIUS, THE CRIMINAL COURTS, IN IRELAND, &c.
FROM MARCH TO AUGUST 1890 .
H . OF L.] OWNERS OF THE LEBANON e. OWNERS OF THE CETO ; THE CETO . [H . OP L .
May 14 and 15 , 1888 .— The case came on for
House of Lords. argument before the Lord Chancellor (Halsbury ),
the Earl of Selborne, Lords Watson, Fitzgerald ,
May 14 , 15, 1888, April 1, 2, and July 1, 1889. and Macnaghten .
(Before the LORD CHANCELLOR (Halsbury ), the
EARL of SELBORNE, Lords Watson, BRAMWELL, | C . The Hall,
Attorney -General (Sir R . Webster, Q.C .),
Q .C .,and J. P. Aspinall appeared for the
FITZGERALD , HERSCHELL, and MacNAGHTEN .) owners of the Lebanon , the appellants.
OWNERS OF THE LEBANON v. OWNERS OF THE CETO ; Bucknill, Q .C. and Nelson for the owners of
THE CETO . (a ) the Ceto, the respondents.
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Their Lordships requiring further argument,
the case was re-argued on April 1st and 2nd, 1889 ,
Ship - Collision - Fog - Regulations for Preventing before
Collisions at Sea , art. 18. the same nobleand learned Lords, with the
If a steamship is approaching another in a dense addition of Lords Bramwell and Herschell.
The Attorney -General ( Sir R . Webster,
fog , withoutthe means of ascertaining, except by Q . C .)
fog signals ,the course which the other is pursuing , (J. P. Aspinali with him ) appeared for the ap
unless there are indicationsto convey to a seaman pellants.
of reasonable skill that they are in such a Finlay, Q .C . (Bucknill, Q .C . and Nelson with
him ) for the respondents.
position as to pass well clear of each other , it isher
duty not to continue on a course which may have At the conclusion of the arguments their
been originally correct, but to stop and reverse, Lordshipstook time to consider their judgment.
and (in the absence of other circumstancesmaking
it dangerous) she will be held to blame if shedoes July 1, 1889. — Their Lordships gave judgment
not do 8o and a collision takes place . as follows:
Judgment of the Court of Appeal rerersed, the Earl If The LORD CHANCELLOR (Halsbury). - My Lords:
dissenting. this were a question of nautical skill or of the
of Selborne and Lord Fitzgerald credit due to particular witnesses, I should be
This was an appeal from a judgment of the Court very reluctant to interfere with a judgment
of Appeal (Lord Esher, M .R ., Bowen and Fry, arrived at upon the advice of skilled persons, or
L .JJ.) affirming a judgment of Sir James differ from a court which had had the advantage
Hannen . of hearing and seeing the witnesses whose credit
The action arose out of a collision between two was in question . I am unable to acquiesce in the
steamships, the Lebanon of 595 tons and the Ceto view that the matter which your Lordships are
of 612 tons, which took place in a dense fog off called upon to decide is either a question of
Whitby on the 20th Aug. 1886. By reason of the nautical skill or of the credit to be attributed to
collision the Ceto and her cargo were totally lost. the witnesses. So far as the accuracy of the
The courts below , who were both assisted by
Dantical assessors, held that the Lebanon was witnesses is involved , I principally rely upon the
evidence of those called in support of the case
solely to blame for the collision , and he fact that against which I feel called upon to decide. As
she was to blame was not disputed on the appeal ;
the only question raised was whether the Ceto toit more the question of nautical skill, I must deal with
at large presently. Now , the question,
was also to blame. shortly stated , is whether two vessels approaching
The facts and arguments are set out fully in each other, and knowing thatthey were approach
the judgments of their Lordships. ing each other, in a dense fog, through which it
(6) Reported by C. E.MALDEN Esq., Barrister-at-Law . was impossible to see lights or signals, or any
Vol. LXII ., N . S., 1581.
2 - Vol. LXII., N . s.] THE LAW TIMES. [March 1, 1890.
H . OF L .] OWNERS OF THE LEBANON v. OWNERS OF THE CETO ; THE CETO. [ H . OF L .
part ofthe vessels by either of them , were not both altogether, entirely upon the inferences which he
to blame for not stopping and reversing until draws from the fracture of the Lebanon upon the
they had ascertained more distinctly their respec starboard side of her stem and the appearance
tive courses. I quite agree that the solution of of that fracture as indicated by the photographs.
that question must depend not upon the state of I do not think that inferences of that character
facts afterwards ascertained , unless there was can properly be described as questions of nautical
enough to tell both parties at the timewhat the skill at all. They are rather questions which
condition of facts was. The rule which is sup should be addressed to mechanical engineers; but,
posed to govern the decision of this case, though in order to place much reliance on them , I should
I am not quite certain that the existence or non think myself that they ought to have been sub
existence of that rule would necessarily be deci: mitted to some person who had with accuracy
sive, is that “ a steamship when approaching and minuteness examined the fracture and had
another ship so as to involve risk of collision shall been capable of stating to the proper tribunal
slacken her speed, or stop and reverse, if neces both the inferences he derived from the appear
sary.” As I have said , each of these vessels knew ances which he observed and the reason for such
that they were approaching another ship. Each inferences ; subject, of course, to the ordinary
of them was aware, or ought to have been aware, test of cross-examination , in which erent pro
that their approach did involve risk of collision , bably the rival theories presented in argument
and the question is whether the facts were such to your Lordships at the bar might have been
in the knowledge of each that as prudent and minutely discussed , and each hypothesis, namely ,
reasonable persons those responsible for the navi the blow from the starboard side, or the dragging
gation of the ship should bare stopped and of the stem itself after the vessels were in
reversed . As to the facts giving rise to the actual contact, might have been considered .
question , there is, in my judgment, very little But in truth no such question ever was discussed
conflict. The preliminary act of the parties at the trial. So far as I can see, the Master ofthe
seems to me to show that there is very little Rolls was the first to point out the nature of the
room for contradiction between the witnesses, blow as indicated by the photograph, which he
and the difference, so far as there is a difference, regarded as sufficient to decide the case without
is limited to questions of time and bearing. I do reference to the witnesses called on the one side
not mean to say that the facts that there was a or on the other. Under these circumstances it
fog and that the vessels were approaching so as appears to meto reduce itself to this : Two vessels
to involve risk of collision are necessarily con approaching each other in a dense fog, without
clusive. But the fog was of such a character the means of ascertainino the course which either
that it is admitted that, apart from the sound, no ship is pursuing, continue to approach each
conclusion could be arrived at as to the course of other, and when one of them which has pur
either vessel by the other, and, so far as those sued a correct course finds that the other is
facts raise a question of skill, it seems to me that pursuing a wrong one, which must almost
no more nautical skill is involved , nothing upon inevitably lead to a collision , she still continues
which nauticalmen would be better able to judge, a course which was originally right, but which on
than would occur if two carts were approaching these facts it appears to methrew upon her the
each other on an ordinary highway, and the sole duty of stopping and reversing. And ,inasmuch
method of judgmentwere the sounds of the cart as she did not pursue that course, I think she was
wheels. This is indeed understating the case, to blame. In the result, I move your Lordships
since on the open sea there is no road, the general that the judgment of the court below , so far as it
direction of which might be a guide. Not the acquitted the Ceto from blame, be reversed , and
slightest indication of what course either vessel both ships be declared to be in fault.
was on could be derived from the sounds, which The EARL of SELBORNE.— My Lords: At the end
were ultimately proved to have been made by the of the first argument in this case, the impression
fog signals. That the Lebanon did wrong is left on my mind was, that sufficient ground had
certain , and that the Ceto in the first instance not been shown for a reversal of the concurrent
did right is also certain . But it seems to me judgments of both the courts below , which held
that the master of the Ceto admits facts which to the Lebanon solely to blame for the collision which
a seaman must have shown that the Lebanon took place on the 20th Aug. 1886, by which the
had starboarded her helm . I confess I can Ceto was wholly lost (with her cargo), and the
not doubt that a reasonably prudent master, Lebanon slightly injured . The effect of the second
in order to avoid risk of collision, should have argument has been to confirm me in that impres
stopped and rerersed when to his mind at the sion ; and I think it due to the learned judges
time itmusthave been clear that, notwithstanding below that I should state the reasons for my
his persistent porting of the helm of his own opinion , though I cannot feel that confidence in
vessel, the approaching vessel remained steadily them which I should feel if they were shared by
four points on his bow - which condition of facts Į themajority of your Lordships. The question is,
was only reconcilable with what he admits he whether, under the circumstances appearing by
observed , and what we now know to be the fact, the evidence, the 18th sailing rule of 1884 made it
that the Lebanon was improperly starboarding the duty of the Ceto to stop and reverse ? It ap
her own helm . It is admitted on all sides that pears to me that, under the terms of that rule,
when the vessels came within sight of each other| the burden of proof was upon the Lebanon . The
it was too late to do anything but what was in Judicial Committee so held in the case of The
fact done to avoid or diminish the effect of the Rhondda (49 L . T . Rep. N . S. 210 ; 8 App.Cas. 549)
collision . I do not understand the judgment of The judgment of the Court of Appeal, in the case
the Master of the Rolls to be based upon a com - of The Beryl (51 L . T . Rep . N . S . 554 ; 9 P. Div .
parison of the witnesses of either side as to | 137), laid it down , I think correctly, that " the
their credit or accuracy, but almost, if not l application of the rule by the officer in charge of
lab
March 1, 1890.] THE LAW TIMES . [Vol. LXII., N . 8.- 3
H . or L.] OWNERS OF THE LEBANON v. OWNERS OF THE Ceto ; THE CETO. [ H . Or L .
& ship depends on whether the circumstances and reasonable officer ought to have understood ,
were such that he should , as a prudent and | and that these made it “ necessary ” for the Ceto to
reasonable officer, have come to the conclusion stop and reverse, within themeaning of the 18th
that, in order to avoid risk of collision , he should rule . So far as the testimony of the witnesses for
stop and reverse." That is matter , not for pre the Lebanon went, they endeavoured to make out
sumption, but for proof. The rule is : “ Every a quite different case against the Ceto, in which
steamship when approaching another ship so as they failed, namely, that she misled the Lebanon
to involve risk of collision shall slacken her by signalling that shewas starboarding when she
speed , or stop and reverse, if necessary .” There was porting. I do not say that this ought
is no obligation to stop and reverse unless it is necessarily to prejudice the argument on this
“ necessary ” to do so in order to avoid the risk appeal from the statements of the Ceto's wit
ofcollision ; and this is a question of fact, which nesses, but, at least, it does not help the appel
must in every case depend upon the whole cir lants' present case. The statements elicited in
cumstances, and is not solved by the 17th section cross-examination from Captain Gibson , the
of theMerchant Shipping Actof 1873 (36 & 37 Vict. master of the Ceto (on which the appellants'
C. 85 ). The Ceto , in the present case, was going reliance was mainly placed ), were to the effect
asslow as she possibly could ; she complied , there that, having ported his helm when the whistle of
fore, with the rule, unless the circumstances were the Lebanon was first heard on the Ceto's port
such as to make it " necessary ” for her to stop bow (the effect of which would naturally be to
and reverse. If it has not been settled by any “ bring the whistle of the Lebanon still broader
binding authority that a fog (such as existed in on the port side " ), the next whistle seemed to be
this case) always creates such a necessity when at the samedistance as the first - viz., four points
ships on opposite courses are approaching each on their bow , and that, instead of the distance of
other, as these ships did , I should not infer it , the sounds afterwards diminishing , they came
from the terms of the sailing rules, or from the nearer, and kept, coming nearer, in spite of the
reason of the thing. The 18th sailing rule does Oeto's porting. This evidence was compared
not refer to fog more than to any other state of with that which in the case of The John
weather, and in those rules which expressly MʻIntyre (51 L . T. Rep. N . S . 185 ; 9 P. Div. 135 ),
apply to the case of fog , there is nothing about under circumstances in many respects similar was
stopping and reversing. The 13th rule, which is held by Butt, J., and by Brett, M .R . and Bowen
that most nearly in point, only says " that every and Fry, L .JJ. in the Court of Appeal, to estab
ship, whether a sailing shipor steamship , shall in a lish the necessity of stopping and reversing ,
fog,mist, or falling snow , go ata moderate speed .” under the 18th rule ; and other fog cases were
And to stop and reverse blindly in a fog (unless also cited ( The Dordogne, 51 L . T. Rep . N . S. 650 ;
the other ship did the same thing at the same 10 P. Div .6 ;and The Ebor, 54 L . T. Rep . N . S. 200 ;
time) might, as it seems to me, be quite as likely 11 P . Div. 25), in the first of which Butt, J ., and in
sometimes to cause as to avoid risk of collision. second Sir James Hannen , and in both the Court
To establish contributory negligence against a of Appeal, arrived at a like conclusion. Of the
ship whose course would have been right if the Khedive (43 L . T . Rep . N . S . 610 ; 5 App. Cas.
other ship had not done whatwas wrong , it ought, 876 ) and Lutetia (9 App. Cas. 640), both cases
in my opinion , to be made out that she had of clear weather, I do not think it necessary to
sufficient knowledge of the wrong course which speak . There is danger, I think, in taking one
the other ship was taking, within sufficient time, particular part of a witness's evidence without
to enable her officer or officers in charge to per its qualifications, and treating such authorities as
ceive that they ought to alter or stop their own these as laying down an inflexible rule for every
course in order to avoid the risk of collision, and case in which similar evidence (however qualified )
that by doing so that risk would certainly be is found. I am the more impressed with that
diminished and might perhaps be avoided . The danger because those three judges in the Court
Lebanon was approaching the Ceto on her port of Appeal who decided the present case in the
bow , nearly " end on ; ” and, as she did so, Ceto's favour were the samewho held , in the case
sounded her whistle from time to time. The Cetolof the John M ' Intyre, that there was contributory
ported her helm , and kept porting it more, from negligence ; and Sir James Hannen , who in the
time to time, as she heard the Lebanon 's whistle. case of the Ebor came to a like conclusion , was
If the Lebanon had not improperly starboarded the judge of first instance who in the present
her helm , this would have kept her clear, and case decided for the Ceto. In both courts these
made a collision impossible. So far the Ceto was learned judges were assisted by competent
right,and the Lebanon wrong. When the helm nautical assessors. I have spoken of the danger
signal from the Lebanon , indicating that she was of separating from its context one particular
starboarding, was heard by the Ceto , the evidence / portion of the evidence given on cross -examina .
appears to me very clearly to show that the ships tion by the witnesses for the Ceto. The context
were already so close to each other as to make to which I refer, in the evidence of the witness
it impossible for the Ceto to avoid or diminish the Gibson, is to the effect that, as the sound of the
risk of collision in any other way than by re Lebanon 's whistle came nearer, he said — “ Port,
maining under her port helm , and going “ full and give him plenty of room ; he is well on our
speed ahead ," as she did, and as the people on port side ; " that he did not stop and reverse
board the Lebanon had called out to her to do. ** because he thought by the sound of his whistle "
It is not alleged that she could then have done that the Lebanon was " well clear of him ." The
anything better. The only question is, whether, sound " appeared to get broader, it might be a
before that time, she ought to have stopped and point, as it went amidships.” He “ could not tell
reversed. Theappellants' contention is, that there that the vessel must be coming towards him if it
were earlier indications of the approach of the did not get broader than that.” “ He could not
Lebanon under a starboard helm , which a prudent I tell that he ” (i.e., the master of the Lebanon )
4 - Vol. LXII., N . S.] THE LAW TIMES . (March 1, 1890 .
“ must be starboarding.” He “ never thought Lord Watson. — My Lords : On the 20th Aug.
about such a thing as theman starboarding when 1886 , between 2.30 and 3 a.m ., two steamships,
he was on a ship 's port side.” That it would not the Lebanon , of 595, and the Ceto, of 612 tons
have been right to stop and reverse at the last register, came into collision, in the open sea , off
moment was, as I understood the argument, con the Yorkshire coast. A dense fog had prevailed
ceded . To stop and reverse earlier (when there for some time, and the Lebanon bad reduced her
was no indication that the Lebanon was also speed to " easy," whilst the Ceto , which had
stopping or reversing) might (as far as I can already been crippled by another collision in the
judge) have been reasonably thought dangerous same fog , was going “ dead slow ; ” and both
rather than conducive to safety. If it might vessels kept repeating, at intervals, the signals
reasonably be thought safer to attempt to get out required by the 12th article of the regulations.
of the way than to lie in the way of the approach From first to last both ships had abundance of
ing vessel like a log upon the water, the 18th rule sea room , no signals having been heard by either
would not, in my judgment be broken ; and it of them except their own. At the time when the
appears to me as it did to the Master of vessels camewithin such a distance of each other
the Rolls (though I am better satisfied to look that their fog signals could be mutually heard ,
for that purpose to the fracture of the Lebanon the course of the Lebanon, according to the eri
just on the starboard side of her stem than to the dence of the chief mate , who was in charge of
mere displacement of her stem itself), that the her navigation , was south -by- east half east. On
impact took place in such a way as would | hearing the first whistle from the Ceto, about
not have been possible without some extraor two points on his starboard bow , he starboarded
dinary deviation by the Lebanon from her two points, and then steadied his helm on a
proper course very soon before. Of the whole south -east course. The course of the Ceto is
effect of this evidence, the nauticalassessors who stated by her master to have been north -by -west.
assisted Sir James Hannen , and saw and heard When he first heard the whistle of the Lebanon it
the witnesses, were much more capable judges | appeared to him to come from a distance, which
than I can pretend to be. They cannot have | he judged to be not less than a mile, and from a
thought it, taken altogether, sufficient to show direction which seemed to be four points upon
that the circumstances made it necessary for the his port-bow . The helm of the Ceto was there.
Ceto to stop and reverse under the 18th rule. upon ported , and she was gradually edged off to
The question was one of degree and of time. The starboard , in order to keep her clear of what was
Lebanon was moving much faster than the Ceto. conjectured to be the course of the Lebanon ;
The ships did not see each other until it was too but, owing to the slowness of her speed , the only
late to stop and reverse. The Ceto by porting and effect of the port-helm was to bring her head
continuing to port took in the meantime a proper round about two points to starboard before the
course, and one which " a prudent and reasonable Lebanon was sigbted . Up to that time, notwith
officer " might well believe to be the best course standing the Ceto 's change of helm , the sound of
for safety. If the distance between the ships, as the Lebanon ' s whistle steadily continued to draw
indicated by the sounds of the Lebanon 's whistle, nearer ; and it still appeared to bear, as when
appeared nevertheless to diminish rather than in first heard , four points on the port-bow of the
crease (except by about a point as it “ went amid . Ceto. When the two vessels, though still inri.
ships " ), I am not convinced that this was enough sible, were very close, the Lebanon starboarded ,
to prove the Ceto in the wrong, as long as a and also gave the signal that she was starboard .
prudent and reasonable officer might judge that he | ing, and in a few seconds they came into sight of
was at a safe distance. I think it easy to lay too each other. As stated in the preliminary acts ,
much stress upon impressions ofthis sort derived the Ceto, as observed at that moment from the
from sound only when the ships were approach Lebanon ,was two or three points on the starboard
ing, and could not see each other. To some extent bow , distant about a ship's length ; and the
the distance might naturally diminish under con Lebanon , as seen from the Ceto, bore three or
ditions of safety , as the courses of the two ships four points on the port -bow , distant about sixty
camenearer before they passed each other. In yards. The master of the Ceto says that he then
order to get rid of the weight of the decision of observed the white light of the Lebanon just in
Sir James Hannen, and his assessors, it was front of his port-beam , when he at once put
assumed that the question raised by the present his helm hard -a -port ; but the order was scarcely
appeal was overlooked , and not urged before that given before the engines of the Ceto were turned
learned judge. But it arose directly out of the full speed ahead , in obedience to a hail from
evidence then as much as now ; the cross-exami the Lebanon . At the same instant the engines
nation had been directed to that very point ; and, if of the Lebanon were stopped and reversed ; but,
it was not then raised by the appellants, I cannot having still way on her, she struck the port side
but infer that the appellants' own counsel did not of the Ceto , thirty feet from the taffrail, cutting
at that time take the same view of its importance her down below the water and sinking her. The
as that on which the appellants now insist. If | Lebanon sustained no injury from the collision
that is the explanation , I must confess that it except that her metal stem was crushed aside in
seems to me of bad example, that a party should the direction of the port-bow . At the trialbefore
succeed in your Lordships' House upon such a the Admiralty Court, the appellants endeavoured
point when it was not taken before the court of to cast the whole blame of the collision upon the
first instance, and has not been held to be estab . Ceto in respect of her having, as they alleged ,
lished by the Court of Appeal. Upon the whole, misled the Lebanon by a false signal into the
I am unable upon this question (which I regard as belief that she was starboarding, when , in point
one not of law but of fact, and of na :itical skill of fact, she was porting. They did not press
and judgment) to givemy voice for reversing the their alternative case that the Ceto ought to have
order appealed from . stopped and rerersed ; probably because that line
March 1, 1890.) THE LAW TIMES. [ Vol. LXII., N . 5. -
H . OF L.) OWNERS OF THE LEBANON v. OWNERS OF THE CETO ; THE CETO. (H . OF L .
of argument would necessarily have involved the | not only free from contradiction, but in strict
Lebanon in fault for not doing the same. The accordance with the particulars given by the
result was that the President negatived the alle. parties to the suit. I am unable to derive from
gation that the Ceto signalled she was going to the photograph , so much relied on by the respon
starboard , and found the Lebanon alone to blame dents, any good reason for disbelieving the
on the ground that she ought, like the Ceto , to witnesses, rejecting the preliminary acts, and
have reduced her speed to dead slow . In the accepting the theory which found favour with the
Court of Appeal, the learned judges were also majority of the Appeal Court. The condition of
of opinion that the Lebanon 's rate of speed was not the Lebanon 's stem after the collision is, to
“ moderate " within themeaning of rule 13 ; but the say the least, a very uncertain guide to the
point chiefly discussed before them was the duty of truth , in the absence of precise information
the Ceto to stop and reverse, and they all came as to the force of her impact upon the Ceto ,
to the conclusion that no such duty was incum or as to the time during which the two vessels
bent upon her. The Master of the Rolls and were engaged . The engines of the Lebanon were
Bowen, L .J. were of opinion , upon the evidence, at that time reversed , and the Ceto was getting
that the Lebanon was well abeam of the Ceto, on into full speed across her bows from starboard to
the port side ; that there was no danger of port. Assuming that the stem of the Lebanon
collision until the Lebanon starboarded ; and was started , as it well might be, by the first force
that the effect of her manæuvre was to bring her of the blow , it might naturally be crushed over
right round in the water, so that she struck the to her port side if the vessels remained for an
stern quarter of the Ceto with her starboard side appreciable time in contact, as they possibly , if
of her bow . Their opinion appears to be mainly , not probably, did . In the circumstances I am
if not wholly, rested upon the condition of the constrained to believe that, as the witnesses state,
Lebanon 's stem , as shown in a photograph taken the Lebanon struck the Ceto at nearly right angles,
after the vessel was docked . Fry, L .J. expresses and that before the collision the relative bearings
doubt as to their inference from that exhibit ; but of the two ships continued to be as they allege.
states his own opinion to be " that the whistling Your Lordships were not asked to disturb the
of the Lebanon was broad on the port side of the finding of both courts below , to the effect that
Ceto, and, that being the state of things , it was the Lebanon was to blame, but the appellants
not an imprudent course for the Ceto to advance maintain that the Ceto was also in fault. They
in the direction in which she was advancing." If admit that after the vessels were within sight,
I could agree with the conclusions of the learned the Ceto did not transgress the rulesby going full
judges as to the facts of the case , I should have speed ahead instead of stopping and reversing .
no hesitation in exonerating the Ceto . But the They could hardly escape from the concession,
view which they take appears to me to be irrecon because the Ceto was invited to take that course
cilable, not only with the eridence, but with the by the officer of the Lebanon ; but it does not
case made by both parties in their pleadings. follow that the Ceto was free from blame in
According to their preliminary acts, when the getting into a position which necessitated the
Tessels first saw each other the Lebanon was manæuvre. The appellants argued that it was
ahead and not abeam of the Ceto , the Lebanon 's the duty of both ressels to stop and reverse
bearing being not more than three or four before they came in sight, and that the Ceto,
points upon the Ceto's port bow , and the Ceto's haring failed in that duty, must be deemed to
two points on the Lebanon's starboard bow . No have been in fault. The point thus argued by
witness from the Ceto places the Lebanon at any the appellants is raised upon the pleadings as
time broad upon their vessel's port side. The well as upon the evidence,and was fully discussed
master, to whose evidence I shall have to refer in the Court of Appeal. That being so, I think
hereafter, places the Lebanon throughout “ about" . we are bound to consider it upon its merits.
four points upon his port bow . Wynpenny, the Rule 18 requires that every steamship , when
look -out of the Ceto , says that when she first approaching another ship so as to involve risk of
whistled the Lebanon was two points upon their collision, “ shall slacken speed or stop and re
port bow , and that her bearing had changed to verse, if necessary.” There is this distinction
about three points when her masthead light between the two alternatives which the rule
became visible ; and he also says that between enjoins, that the first is imperative, whereas the
these two periods of time the Lebanon 's whistle second is only required where there is necessity
“ gradually drew a little more aft,and seemed to for it . But as Lord Bramwell observed in the
be getting nearer.” The difference between the course of the argument, the necessity to which
master and his look -out as to the bearings of the the rule refers is that of avoiding, not collision ,
Lebanon when first heard is no doubt due to the but the risk of collision . In consequence of the
circumstance that, whilst both agreed she was shape in which the case was presented to the
on their port bow , the number of points was Admiralty Court,and the view which was taken
matter of estimate, or rather of conjecture. In of the facts in the Court of Appeal, there is no
delivering judgment, the Master of the Rolls is expression of opinion by their respectiveassessors
reported to have said : “ You can nerer try an upon the facts of the case as they appear to some
Admiralty case so as to get at the truth , unless of your Lordships and to myself to be established
you look with great scepticism on the evidence in evidence. That is a circumstance to be re
on both sides.” Unfortunately that observation gretted, and great stress was naturally laid upon
is too frequently justified by the conflict of it in the able argument of the respondents'
testimony which occurs in such cases. But I am counsel. At the same time I do not think that
not prepared on that account,and without very circumstance ought to interfere with our disposal
strong cause, to question the credibility of nautical of the case , because I agree with those of your
witnesses when their testimony relates to facts Lordships who think that the question which
which it was their special duty to observe, and is l arises upon the facts as we are prepared to find
6 – Vol. LXII., N . S.] THE LAW TIMES. [March 1, 1890.
them depends very much upon the construction But the direction from which the whistle comes
of rule 18, and involves considerations as much can afford no indication of the course of the
of common prudence as of nauticalskill. Whether approaching vessel unless the sound is repeated ,
it was, in a reasonable sepse, necessary for the and its hearing is, on each repetition , carefully
master of the Ceto to stop and reverse his engines observed . Even then the bearing of the vessel
before the Lebanon hove in sight is a question | and its course are more or less matters of specu
not of law but of fact. His duty in that respect lation , and cannot be ascertained with the same
must depend, not upon the result of the whole certainty as if her hull or lights were in view .
facts now disclosed in evidence,but upon his own When two steamships, invisible to each other by
observations of the Lebanon 's fog signals, and reason of a thick fog , find themselves gradually
the indications of the position and course of the drawing nearer, until they are within a few
Lebanon relatively to his own vessel, which these ship 's lengths, they are, in my opinion , within the
observations ought to have conveyed to a prudent second direction of rule 18 , and each of them
seaman of ordinary skill. I shall therefore limit ought at once to stop and reverse, unless the fog
my consideration of the evidence to such parts of signals of the other vessel have distinctly and
it as relate to what was heard and done by the unequivocally indicated that she is steered on a
officer who was navigating the Ceto. When the relatively safe course, and will pass clear, with
master first heard the signals of the Lebanon he out involving risk of collision . In the absence
seems to have come to the conclusion that the of such indications, it appears to me that to
vessels were approaching each other, and also to negative the necessity for stopping and rever
have formed the surmise that they might possibly | sing when the vessels are near to each other ,
be approaching so as to involve risk of collision . though still unseen , would be to thwart the
Having only heard a single whistle he had at that very purpose for which the rule was enacted . I
moment no data from which a trustworthy infe- do not think that the effect which , in my opinion ,
rence could be drawn as to the course which the ought to be given to the second branch of the
Lebanon was pursuing ; but he assumed that she rule, when approaching ships are enveloped in a
would pass on the port side of his vessel, and he fog, is at variance with the judicial construction
accordingly ported a little in order to give her which it has already received . In the case of The
room . Asthetwo ships advanced he heard several Frankland and The Kestrel, the opinion of the
signals from the Lebanon , each successive whistle Privy Council with respect to The Frankland was
sounding nearer than the preceding one. As the thus stated by Sir Robert Collier (27 L . T . Rep .
sounds grew closer, still assuming that the N . S. 633 ; L . Rep. 4 P C . 529) : “ That she was
course of the Lebanon would carry her to port of navigating in a fog at a moderate speed , that she
the Ceto, he gave a second order to his steersman. heard a whistle sounded many times, indicating
According to his own evidence, he said — “ Port, that a steamer was approaching her, and had
and give him plenty of room ; he is coming well come very near to her - so near, indeed , that if
upon our port side." I have already noticed the the vessels had stopped they would have been
fact that the effect of her port helm was to bring within hailing distance ; that at that point of
the head of the Ceto two points to starboard time it was necessary for the captain of the
before the collision . What appears to me to be Frankland, under the terms of the rule , not only
the most important part of the evidence of the to stop the motion of the engines, but to reverse
master is his distinct statement,more than once them so as to stop the motion of his vessel, and
repeated , that both before and after his second that he ought not to have waited until the vessels
order to port was given , or, in other words, from sighted each other." Sir Robert Phillimore, in
the time when the signalofthe Lebanon was first The Kirby Hall (48 L . T. Rep. N . S. 797 ; 8 P .
observed until she was just coming into sight, the Div . 71), explained the rule in terms even
sound of her whistle whenever it was heard con broader than I should consider necessary for the
tinued to bear steadily about four points on the purposes of this case. The doctrine laid down
port bow of the Ceto. He does, indeed , attempt by the Privy Council in The Frankland has been
to say that at one time (he does not say when ) it recognised by the Court of Appeal in The John
appeared to broaden a little, and on his being McIntyre (51 L . T . Rep . N . S . 185 ; 9 P . Div. 135) .
pressed to say how much , his reply was, “ It
might be a point." The circumstances in which
The Dordogne (51 L . T. Rep. N . S . 650 ; 10 P. Div .
6 ), and The Ebor (54 L . T . Rep . N . S. 200 ; 11 P .
he was placed , as detailed by the master of the Div. 25), all of which were cases of collision in
Ceto appear to me to involve considerations of dense fog . In the first of these cases, the present
general importance, touching the application of Master of the Rolls said : “ Itmay be laid down
the second alternative of the 18th rule. In broad as a general rule of conduct that it is necessary
daylight, or in the night time so long as ships' to stop and reverse, not indeed every time that a
lights are discernible at a moderate distance, I steamer hears a whistle or fog horn in a dense
do not think that it is within the meaning of the fog , but when in such a fog it is heard on either
rule “ necessary ” for twoapproaching steamers to bow and approaching, and is in the vicinity ,
stop and reverse until it becomes apparent that because there must be a risk of collision .” To
if they continue to approach they will in all like the proposition so stated I entirely assent. When
lihood either shave close or collide. When the the approaching vessel is nearly ahead, the duty to
approaching vessels are enveloped in fog, and stop and reverse is obvious ; but it appears to me
cannot see each other, the rulemust, in my to be equally imperative when the other vessel is
opinion , apply with greater stringency . Their drawing near upon either bow . It matters not
respective officers are, in that case, guidea whether the bearings of the approaching ship be
solely by their sense of hearing, which may one point or four ; either position is fraughtwith
enable each of them to speculate with more or danger of collision if it continues to advance
less accuracy as to the position of the other without change of bearing . The reason which
vessel at the time when its fog whistle is heard . I the master of the Ceto assigns for not stopping
March 1, 1890.) THE LAW TIMES. [Vol. LXII., N. 5.- 7
H . OF L . OWNERS OF THE LEBANON v. OWNERS OF THE CETO ; THE Ceto . [ H . OF L .
and reversing when the Lebanon came near is I cannot think I am differing from them . I
this: “ Because I thought by the sound of his refrain from going into the nice questions of
whistle that he was well clear of me." I regret where the Ceto might reasonably judge the
to say that I am unable to find in his evidence a Lebanon to be ; I purposely abstain . The Ceto
single circumstance which could justify the con. should not have judged , but have made sure .
clasion that the Lebanon was going clear of him . To discuss the probabilities is to do what I think
I need hardly say that if the Lebanon 's course the Ceto should not have done. 1 may, however,
had been such as would carry her clear of his say that I think that the Ceto mightwell have
ship on the port side, the sound of her whistle as judged without imputing too much stupidity to
the ressels drew nearer would have gradually the Lebanon (as was suggested in the argument),
broadened until it was a -beam of the Ceto. The fact, that it was nearing her. These are the grounds
which he did observe, that, notwithstanding their of my opinion. They are short, and I am unable
mutual advance and his own change of helm , to say more .
the Lebanon still continued to approach upon his Lord FITZGERALD. — My Lords : I concur in the
port bow with unaltered bearing, indicated that reasoning and in the conclusion of the Earl of
the two vessels were sailing on intersecting lines, Selborne, and, asmy opinion has not been changed
and that, unless there was a change in the bearing by the re-argument,I will read the judgment I pre
of the Lebanon , they would , as a matter of pared immediately after the first argument. The
mathematical certainty, meet at the point of question is resolved into one substantially of fact,
intersection. In these circumstances, I am of and is thus put in the appellants' case : “ On the
opinion that his continning to advance when he appeal the only question is, whether the Ceto was
knew that, in spite of his port, helm , the Lebanon to blame for not slackening speed, and stopping
was coming nearer without any appreciable and reversing.” The Ceto did slacken speed ; the
change of bearing, was a violation of the second order had been given in due time that she should
part of the 18th rule ; and I am of opinion that the go as slowly as she possibly could ; that order
Lebanon was equally within the rule, and was was acted on, and she had for some timebefore
also to blame for not stopping and reversing. I the collision been going as slowly as she could .
have for these reasons come to the conclusion That matter of fact is stated in all the judgments
that'the orders appealed from ought to be reversed , below , and was not controverted here. The 18th
and that it ought to be declared that both vessels article of the Orders in Council, on which the
were in fault. decision turns, points out that when approaching
Lord BRAMWELL.- My Lords: I am fully sen another ship so as to involve risk of collision a
sible of the strength of Mr. Finlay 's remark , steamship “ (1) shall slacken her speed ; (2) or
viz., that we are called upon by the Lebanon to stop and reverse if necessary.” The question , then ,
overrnle the judgments of two courts assisted is narrowed to this : Were the circumstances
by nautical advisers, and that without having such as to render it necessary for the Ceto to
ourselves the benefit of such experts. The latter stop and reverse ! or, as put in the appellants'
is a very weighty consideration . One may hope case, Had it become the duty of those in charge
with care and attention to come to a right con of the Ceto to do sop “ Necessary," as here used ,
clusion on matters of ordinary everyday life ; but is a word of flexible meaning, to be interpreted
this is not such a case. Weare not (at least, I according tothe surrounding circumstances.Were,
am not) familiar with nautical matters, and may then , the circumstances such as to convey to the
go wrong from sheer ignorance. I do not feel mind of a skilled mariner that the risk of col.
the want of such advice in the present case, for lision was so imminent as to make it indispensable
reasons which I will mention hereafter. The two to stop and reverse ? The action was instituated
vessels were approaching each other, and that by the Lebanon against the Ceto alleging that (1)
there was a risk of collision is certain , for there | a good look -out was not kept on board the Ceto ;
was a collision . But, as Mr. Finlay says, the (2) the helm of the Ceto was improperly ported ;
question is, Did the Ceto know that ? Now , (3) the Ceto improperly neglected to comply with
the captain of the Ceto says he knew that the articles 12 , 13, 18, 19, 22 ,and 24 of the Regulations
Lebanon was getting nearer. Then , was it for Preventing Collisions at Sea . In these alle
necessary for him to stop and reverse ? That gations the plaintiffs failed in the courts below ,
word " necessary ” does not mean that the situa and fail here unless your Lordships should be
tion was such that, without stopping and satisfied that there was a breach of duty on the
reversing, a collision would take place ; it means part of the Ceto within the concluding sentence
rather “ prudent or espedient." The answer of rule 18 . The case came before the President
seemsto meto be this : That he did not know of the Admiralty Division , aided by two naval
where the other vessel was, nor what she was captains,and on reading the evidence there given
doing; that he thought something ; that he it cannot be affirmed that the question on which
speculated ; and that he acted on his opinion , the appellants now rely was brought under the
instead ofmaking sureby stoppingand reversing . notice of the court, and it is quite certain that
There was no reason why he should not ; it was no decision was asked on it ; on the contrary , the
a calm ,and no other vesselwas near. The captain allegations appear to have been that the Ceto
does not give the reason of the second officer for had improperly ported , had not slackened her
not doing so - viz., that he would have been run speed , and had misled the Lebanon by an erroneous
into amidships ; and that reason is a bad one, for signal. Theresult has been that your Lordships
the reversing and going astern should have taken have lost, on the very question now before the
place in timeto prevent the collision at any part. House, the aid of that skilled tribunal. That
I think, therefore, that the Ceto was to blame. I court does determine, “ We are of opinion that
should think so if there were no statutory rule. the Lebanon was alone to blame.” The appeal
I cannot see what Mr. Finlay says is the question did not question the judgment, save on the word
that was pat to the nautical assessors. Therefore { " alone," and alleged that both vessels were to
8 - Vol. LXII., N . 8.] THE LAW TIMES. [March 1, 1890.
H . OF L .] OWNERS OF THE LEBANON v . OWNERS OF THE CETO ; The CETO . [ H . OF L .
blame. On this head the Master of the Rolls comes from Gauntlett on the part of the Lebanon
observes : “ Then the question arises whether the and Gibson for the Ceto. The former scarcely
Ceto broke the second rule. That the Lebanon | touches the question , and seems to be mainly
was in the wrong for breaking the first rule is directed to establish a false manæuvre by the
clear. If she broke the firstrule,and kept break “ porting ” of the Ceto, and that the Lebanon
ing it up to the moment of the collision, she not was misled by her signals. At the close of
only broke the first rule ,but she broke the second | Gauntlett's direct evidence he says he spoke to
also. Therefore her case is hopeless. In that the captain of the Ceto when he got aboard the
case the question is whether the Ceto , who Lebanon and asked him “ why he biew two blasts
obeyed the first rule, broke the second rule." of his whistle and ported ." “ When he ported ,
The Court of Appeal was also assisted by its why he gave the starboard signal for the port
nautical assessors, by whose opinion on a question helm .” That was then substantially his case,and
expressly put to them they were aided . That that case entirely failed . Gibson , on the other
question was, whether it was necessary in a hand, seems completely to meet and negative
nautical sense) for the Ceto to have stopped that case ; he heard the whistle of the Lebanon
absolutely dead on thewater, towhich theassessors apparently about a mile and a half off, and the
answered “ No." That court was unanimous, Ceto was then fairly “ dead slow , just merely
" that the Ceto did nothing to break the rule, turning over to keep the ship steering,” and gave
because there was nothing to show her that it the signal “ to indicate that I was going on my
was necessary to stop and reverse." She was regular course and keeping to port.” I hare to
ignorant of the false manoeuvre of the Lebanon in confess that I am ignorant on the subject of
starboarding. The noble Earl quoted a sentence navigation, but I gather from this appeal that to
taken from the judgment of the Master of the stop a ship dead, to take all the way off her so
Rolls in the case of The Beryl (51 L . T. Rep . N . S . that she would cease to be under command and
554 ; 9 P . Div. 137). I recall attention to it be. be as a log on the water, is a mancurre that
cause it has received the sanction of this House might often lead directly to calamity, and could
in Baker v. The Owners of the Theodore H . Rand only be excused by the existence of actual
(56 L . T . Rep . N . S . 343 ; 12 App. Cas. 247). Lord ) necessity . That is really what article 18 points
Herschell there gives the quotations more at out. If the Ceto had actually stopped and a
large, and includes this passage : “ Butwhen you collision taken place notwithstanding, an event
speak of rules which are to regulate the conduct by nomeans improbable, it would lay her open to
of people, those rules can only apply to circum the imputation that the calamity arose from her
stances which must or ought to be known to the stopping without necessity. It seems to me, on
parties at thetime. You cannot regulate the con the fullest consideration, that the position was
duct of parties as to unknown circumstances." not such as to show to a skilled seaman that
Lord Herschell adds: “ I entirely concur in the there was then that imminent risk of collision
view thus expressed , and adopt the language of which would create a necessity for stopping and
the learned judge.” The noble Earl now reversing. There was no such risk of collision
gives his approval of the judgment in The until the starboarding of the Lebanon , that
Beryl case, so far as it has been quoted . We mancuvre could not have been foreseen , and
have to consider this narrow question of fact, could not have been known to the master of the
and under circumstances not favourable to the | Ceto until the Lebanon actually hove in view ,
Lebanon . There is a finding not now contested and all parties agree that then the Ceto took the
that she was to blame, and there can be no doubt only step that might by possibility avert the
that her erroneous maneurres and breaches of danger, but it was too late. If there was an
the rules to prevent collision led directly to the error on the part of the officers of the Ceto it
calamity .which otherwise would not have hap does not appear to have arisen from negligence
pened . But for the error of the Lebanon in or want of skill. If an error was committed it
starboarding both ships would have passed each was an error of judgment under circumstances of
other in safety. The Lebanon undertakes to embarrassment and difficulty .
establish that the Ceto was also to blame, and Lord HERSCHELL. - My Lords : I have been
seeks the protection of the Admiralty rule in such somewhat embarrassed as to the course which
cases. The onus lies on the Lebanon on the your Lordships ought to take in this case. The
maxim Qui dicit non qui negat. The Lebanon sole question is, whether the Ceto should be held
undertakes to establish affirmatively from the to blame in respect of having disobeyed the
evidence that the circumstances in proof were requirements of art. 18 , which provides that
such as ought to have conveyed to the mind of every steamship when approaching another ship
the master of the Ceto at a time before the so as to involve risk of collision shall, if neces
collision became inevitable that it had becomehis sary, stop and reverse. This resolves itself into
duty to " stop and reverse.” From the prelimin the further question whether under the circum
ary acts it appears that the parties stated that stances, in a dense fog and with the indications
the time was 2.30 a.m . orabout 3.0, weather calm , which themaster of the Ceto bad of the position
dense fog . The fog was so dense, that when each of the other vessel, he ought by the exercise of
ship saw the masthead and side light of the reasonable care and prudence to have known that
other, and “ almost similtaneously ,” they were { it was necessary to stop. For I agree that the
not more than a ship's length asunder. The fog necessity must not be such as to becomemanifest
was so dense that " to see," in the sense of being only when all the facts are ascertained ; but must
guided by sight, was impracticable. The master be such as would be apparent to a seaman of
of the Ceto had nothing to guide him but his ordinary skill and prudence with the knowledge
sense of hearing ,and that sense certainly or pro- / which he possesses at the time. This may pro
bably rendered less acute, less to be relied on , by perly be said to be a question of navigation ; and
the fog . The evidence on which we have to act lif in such a case the four nautical assessors by
March 1, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8.- 9
H. OF L .] OWNERS OF THE LEBANON v. OWNERS OF THE CETO ; THE CETO. [H . or L .
whom the courts below were assisted had con. ) it more prudent not to stop. In the present case
curred in thinking that in abstaining from taking no such circumstance was suggested. The
the course suggested as the proper one, the weather was calm , and there was nothing to indi.
master had exercised reasonable care and pru . cate the presence of more than one vessel in the
dence, and the same view had been adopted by neighbourhood . Wehave, therefore, only to con
the courts, I think your Lordships ought to have sider whether the circumstances might properly
held the matter concluded , unless you saw that conrey to the mind of the master of the Ceto that
there had been some erroneous interpretation of the course of the other vessel was such that they
the law . Your Lordships have no nautical would pass clear of each other. This is the test
assistance. I have in a previous case expressed put by the Master of the Rolls in the court
my opinion that this is to be regretted , so long as below . He thought the Ceto was bound to stop,
the law permits such questions to be submitted unless the sound of the whistle showed that the
for your Lordships' consideration . But, being Lebanon was broadening on her port bow . He in
without this assistance, I think that in such cir. timated the opinion that a point or twowould not
cumstances as I hare indicated it would be better | suffice ; but that, to absolve her from the obliga
and safer that your Lordships should hold your. tion , the other vessel must have got broad off as
selves bound by the concurrent findings thus she approached . Now , what is the evidence ? The
arrived at upon a question of navigation , master states that he first heard the whistle
than that you should act upon the impression about five points on his port bow . He ported a
produced on your own minds by the evidence. little to give her more room . When he next
In the present case, howerer, you have not these | heard the whistle it was still four points on the
concurrent findings. The question whether the port bow . He continued porting, and altered his
Ceto ought to have stopped is not touched upon course under a port helm about two points. The
in the judgmentof the Presidentof the Admiralty utmost change in the bearing of the whistle of
Division , who says : “ Having come to the con . the other vessel to which he speaks is, that he
clusion that she was going at as slow a pace as thought it might get a point broader . None of
she possibly could , there was at the time when the other witnesses put the case more favourably
she came in sight nothing else for her to do for the Ceto. I quite agree with the Master of
than what she did on the spur of the moment at the Rolls that rigorous accurary is not to be
the instigation of those on board the Lebanon | expected in the eridence of seamen in cases
Fiz., to go full speed ahead . I am advised that of this description . It would be a mistake to tie
that was the best thing that she could do under them down too rigidly to the letter of their evi
the circumstances, and, therefore, that she is not dence as to the exact number of points that are
to blame." It is evident that neither the Pre mentioned, either in relation to the bearing of the
sident nor his assessors dealt with the question other vessel, or to the alteration of their course.
whether the Ceto ought to have stopped . It has I think we must treat the matter somewhat
been explained to your Lordships that this arose | broadly. But, allowing all this, I fail to see what
from the point not having been distinctly taken justification the master had for supposing that
before that tribunal. In the Court of Appeal, the vessels were approaching on such courses
however, it was definitely put forward by the that they would pass clear. When the second
present appellants, and the opinion of that court whistle was heard there was no broadening, and,
was pronounced upon it. It has been said that notwithstanding the fact that the Ceto had been
there was nothing to prevent this course being porting, the broadening never becamesubstantial.
pursued — that any question arising upon the | In taking this view of the evidence, I do not think
pleadings and evidence was open in the Court I differ from the Master of the Rolls. But he
of Appeal, even though not taken in the court thought that the direction and force of the blow
below . This is, no doubt, true as a general conclusively showed that the Lebanon only star
rule. I do not think it necessarily applies where, boarded at a very late period ; that shemust have
if the point had been distinctly taken , it might got very broad off the port side of the Ceto , and
kare suggested , either to counsel or to the court, that the whistles must have been heard by the
questions to the witnesses which were not put. | master broader and broader on his port bow , so
The matter, however, was entertained by the as to intimate to him that she was getting broader
Court of Appeal, without objection ,apparently, on and broader. I think it is a serious matter thus
the part of the respondents. That court,assisted to set aside the evidence of the witnesses, and to
by its nautical advisers, adopted a view adversel assume in favour of the ship that the facts were
to the appellants. Under all the circumstances, not as they represent them , and to find the
I should have felt well satisfied if your Lordships master justified on the ground that something
conld have seen your way to leave the judgment was observed by him very different from that
pronounced undisturbed . As, however, I under which he tells us he did observe. Nevertheless,
stand that a majority of your Lordships have come if such a fact were conclusively proved , I agree
to the conclnsion that the judgment ought to be that it might be sufficient to determine the case.
reversed , I feel bound to state the reasons why I | I frankly admit that I have approached this point
am by no means prepared to dissent from the with every desire to take the same view of it as
view taken of the evidence by those of your the Master of the Rolls, and to support the judg.
Lordships who have arrived at that conclusion . / ment of the court below . But I have found
I think that when a steamship is approaching myself unable to see that the circumstances
another ressel, in a dense fog , she ought to stop , relating to the blow , its position , force, and direc
unless there be such indications as to convey to a tion, do afford the conclusive proof which has
seaman of reasonable skill that the two vessels been attributed to them , and to justify the view
are so approacbing that they will passwell clear of which has been taken of the whole of the evi.
oneanother. I,of course,except a case where there dence.
is someother circumstance existing which renders | Lord MacNAGHTEN . - My Lords : I agree in the
10 _ Vol. LXII., N . S .] THE LAW TIMES. [March 1, 1890.
Priv. Co.] GOVERNORS OF Christ's HOSPITAL AND OTHERS v. CHARITY COMMISSIONERS. [Priv. Co.
result at which the majority of your Lordships | Charity Commissioners under the Endowed
hare arrived. Afrer the first hearing, I had the Schools Acts, all the endowments dealt with by
advantage of considering the opinion of Lord the scheme were, subject to the payment of
Watson , and concurring in it, as I do entire'y, I sums legally payable for " purposes not being
have not thought it necessary to trouble your purposes of Christ's Hospital,” to be applied,
Lordships with any further observations in this after providing a fund for exhibitions and a
case. building fund, solely in keeping up boarding
Judgment appealed from reversed . Respon - | schools for children not under ten years of age
dents to pay to appellants their costs below and day schools for children , partly free and
and in this House. partly paying, not under eleven years of age, and
Solicitors for the appellants, Botterell and in maintaining and clothing the children in the
Roche. boarding schools. Sect. 16 and subsequent
Solicitors for the respondents, Lowless and Co. thesections provided that all duties and powers of
present governors in relation to the foundation
and its endowmentswere, with certain exceptions
JudicialCommitteeofthe Privy Council. ofingoverning a formal nature, to be transferred to a new
body created by the scheme, consisting,
addition to the president of the foundation
June 18, 19, 20, 21,25,26, and Dec.CHANCELLOR and the Lord Mayor, of twenty -one persons to be
14, 1889. appninted on the recommendation of various
(Present: The Right Hons. the LORD
(Halsbury ), Lords SELBORNE, HOBHOUSE, and public ding to functionaries
the number and bodies, to whomgovernors
, accor
of the donation
MACNAGHTEN , Sir BARNES PEACOCK , and Sir and governors by special vote for the timebeing,
MONTAGUE Smith .) were to be added certain representatives of the
GOVERNORS OF Christ's HOSPITAL AND OTHERS v. | old governing body.
THE CHARITY COMMISSIONERS. (a ) The appellants contended that this scheme
SPECIAL REFERENCE . was not within the scope of the Act. The
foundation, was
Endowed Schools Act 1869 (32 & 33 Vict. c. 56 ), submitted of Christ's
not thatHospital, the appellants
of a school, but of a
88. 5, 14, 16, 19, 29, 39,42 — Educational endow hospital for the relief of the poor, it having been
ment- Religious eduration — Recent endowments established in pursuance of a scheme for the
- Governing body - Rights of patronage. general relief of every description of the poor of
Funds are applied for the purposes of education London , and not in pursuance of a design for a
at school so as to constitute an " educational school with eleemosynary relief as auxiliary to it.
endowment” within sect. 5 of the Endowed The endowments of Christ's Hospital subsist
Schools Act 1869, whether they be applied to ing at the date ofthe Endowed Schools Act 1869
teaching only, or to boarding and maintaining were as follows :- (1) Endowments given to the
the scholars as well as teaching them . Sect. 29 use of Christ's Hospital or for the relief of the
is not intended to cut down the definition of poor of the hospital, or for the poor children and
“ educational endowments” given in sect. 5. other poor generally, and without limitation
The amount of recent endowments spent in either as to the description of poor to be relieved
maintaining or improving the old property of a or as to the mode of application, the total
school cannot be removed from the operation of a estimated gross annual value of endowments of
ti₂/₂ řū₂ņēģ₂Ò₂ÂòÂ?Â₂ūtiffiūtiņģÂ?₂?Â► this class exceeding 23,0001. ; (2) endowments
Christ's Hospital is not a foundation specially given to Christ's Hospital for the relief of poor
attached to the Church of England within sect. children , no particular mode of relief being
19 of the Act. prescribed , or without mention of education as
A provision in a scheme for the administration , part of it , the estimated gross annual value of
of a school requiring persons in charge of a such endowments being upwards of 18,4001. — to
boarding-house to allow exemptions from prayers this class belonged funds arising from the gifts
and religious worship cannot be supported , not made by the donation governors of the hospital,
being in accordance with the provisions of sect. the usual form of acknowledgment of such gifts
16 of the Act. down to 1863 being “ for the use of the poor
A scheme which pays substantial regard io children harboured in this hospital;" (3) endow
existing rights of patronage cannot be successfully ments in which education is mentioned as one
impeached on the ground of not being in con of the purposes of the gift as a gift towards the
formity with the Act because it curtails such maintenance and education of the children of the
rights without giving any compensation . . hospital or the like, the estimated gross annual
A body corporate which is under an obligation to value of property classified under this head
pay a certain sum annually to an endowed together with such property of the fifth class as
school upon certain conditions is not a governing is given for special educational objects being
body within sect. 39 of the Act. 14 ,6991. 38. 5d . ; (4 ) endowments appropriated to
This was a petition by theGoverning Body of the relief of adult poor in the form of pensions,
Christ's Hospital and others against a scheme the estimated gross annual value being 10 ,3971.
138. 4d.; and (5 ) gifts,an application or appropria
for the future administration of the charity made tion of which was originally declared by the
under the Endowed Schools Act 1869 (32 & 33
Vict. c. 56 ) by the Charity Commissioners for donors for particular objects, educational or
England and Wales. otherwise.
Itappeared that, by sects. 3, 53, 55 ,62,and other the follows:- Themode of application of the endowments of
subsequent sections of the scheme, made by theer l as hospital from 1553 to
(l) The the present
barbouring, time was,
maintaining
(a ) Reported by C . E . MALDEN, Esq., Barrister-at-Law . T and relieving poor children , such relief extending
March 1, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 11
PRIV. Co. ] GOVERNORS OF CHRIST'S HOSPITAL AND OTHERS v , CHARITY COMMISSIONERS. [ Priv . Co.
to their entire charge from the time of admission granted to the corporation of the city of Lon
to the hospital until the time of leaving it ; (2) asdon the church of the late Grey Friars (thence
incident to such relief providing for the educa forth to be called Ohrist Church ) and the site of
tion of such of the children of the hospital as for their house and other property lately belonging
the time being have been of an age and in a to the Grey Friars and to the hospital of St.
condition to receive it ; (3 ) relief of infirm and Bartholomew . He also granted to them licence
other adult pnor by means of pensions and to hold lands to the extent of 1000 marks a year.
otherwise ; and (4) the performance of the terms The King's motive for the grant is thus described
of various bequests, & c., for specialand particular | in the recitals of the indenture : “ The Kinge
purposes. consideringe the myserable estate of the poore
There were at this time on the books of the aged sick sore and ympotente people as well men
hospital about 1200 pensioners and about 1150 as women lyinge and goinge about begginge in
children . the common streates of the saide cittye of
Rigby, Q .C . and Vaughan Hawkins appeared London and the suburbes of the same to the
for the Governing Body of the Hospital, and for greate paine and sorrow of the same poore aged
the Donation Governors, and argued that the sick and ympotente people to the greate infeccion
hospital was not essentially and in the main an hurte and noyance of his Grace's lovinge sub
educational foundation within the Endowed | jectes which of necessitie muste dailie goe and
Schools Act ; it was more in the nature of an passe by the same poore sick sore and ympotente
orphanage for the relief of distress ; it was part people beinge infected with divers greate and
of a general scheme for the benefit of the poor of| horrible sicknesses and disseases his highness of
London ,and only included education incidentally. his moste bountifull goodness and charitable
Though the educational work had become mynde moved with greate pittye for and toward
prominent of latter years, it was a mistake to the reliefe aide succour and helpe of the said
treat it as purely an educational foundation. Its poore aged sick sore and ympotente people and
general endowments were outside the scope of for thadyoydinge of the great daunger and
the Endowed Schools Act. In any case the infeccion which dailye dooth and maye ensue to
scheme was not in accordance with the Act in not his lovinge subjectes by reason of the greate
excepting recent endowments, as required by sicknesses and horrible disseases of the same
sect. 14, and in the provisionsmade with respect sick and sore people and for dyvers other good
to religions instruction. Due regard was not and godlie purposes and intentes.” By the in
paid to the rights of patronage which belonged denture the corporation covenanted that they
to the donation governors . would maintain certain clergy and almspeople
(with details not material for the present pur
Sir A. Watson, Q .C . (Tweedy with him ) for the pose ), and that besides the specified objects the
Lord Mayor and Corporation of London ; Howard
( Rigby , Q .C . with him ) for Guy's Hospital; and whole profits of the lands then granted or to be
Finlay, Q .C . (Methold with him ) for the Fish taken under the licence should go to the relief
and sustentation of the poor. In June 1553
mongers' Company, were also heard in opposition
to the scheme upon grounds which appear in the King Edward VI. executed an indenture and
letters patent by which he granted to the cor
judgment of their Lordships. poration of the city of London his manor house
Sir Horace Davey, Q .C ., Romer, Q .C ., and Ingle of Bridewell, and all the possessions belonging
Joyce appeared for the Charity Commissioners into the late hospital of the Savoy . He also
support of the scheme. granted to them power to hold lands to the
Rigby, Q .C. and Methold were heard in reply . yearly value of 4000 marks “ to the use and
At the conclusion of the arguments their | sustentation of the poor of the new erected
Lordships took time to consider their judgment. | hospital of Christ Church in London for the
time being , and to the use and sustentation of the
Dec. 14 . — The judgment of their Lordships poor of the new erected hospital of St. Thomas
was delivered by in the borough of Southwark in the county of
The LORD CHANCELLOR (Halsbury). — My Lords : Surrey for the time being, and to the sustenta
The scheme framed by the Charity Com tion of the poor from henceforth to be found and
missioners in this case has given rise to a great brought up in the said manor house or place of
number of appeals, five of which have been Bridewell.” The King's motive for the grant is
argued before your Lordships. They are as thus stated in the indenture : “ The King of his
follows : - (A ) an appeal by the Governors of mere mercy having pity and compassion on the
Christ's Hospital,as constituted by Act of Parlia miserable estate of the poor fatherless and
ment, 22 Geo . 3, c. 77 ; ( B ) eigbt appeals by motherless children and sick sore and impotent
donation governors of the hospital, now heard people and most graciously considering the good
as a single appeal; (C ) an appealby the Corpora and godly endeavours of his most humble and
tion of the City of London and by the Lord obedient subjects the mayor and commonalty
Mayor, aldermen ,and certain common councillors, and citizensof London who diligently by all ways
members of the acting governing body of the and means do travail for the good provision of
hospital; ( D ) an appeal by Guy's Hospital; and the said poor and every sort of them and that by
(E ) an appeal by the Fishmongers' Company. | such sort and means as neither the child in his
These appeals raise questions affecting the infancy shall want virtuous education and
general character and objects of the foundation bringing up neither when the same shall grow
as well as its governing body, and it will be unto full age shall lack matter whereon the same
convenient first to state the material parts of may virtuously occupy himself in good occupa
the instruments which determine those points. tion or science profitable to the commonweal
In December 1547 King Henry VIII. executed neither the sore nor sick when they shall be
an indenčure and letters patent by which he l healed shall be permitted nor suffer to wander as
12 — Vol. LXII., N . 8.] THE LAW TIMES . (March 1, 1890 .
Priv. Co. ] GOVERNORS OF CHRIST'S HOSPITAL AND OTHERS v. CHARITY COMMISSIONERS. [Priv. Co.
vagabonds in the commonweal but shall likewise | Thereby was established a separate gorerning
be put to labour and good and wholesomeexercise | body for Christ's Hospital, with full powers of
and so be made profitable members of the management over its possessions and affairs.
same.” In the record of this case are printed , That is the body whose appeal comes first in the
under the head of “ The Order of the Hospitals | list and raises the most important questions.
of King Henry , VIII. and King Edward VI.- The main objection in appeal A is one which
viz., St. Bartholomew 's, Christ's, Bridewell, St. | strikesat the very root of the scheme, for it is
Thomas's," certain ordinances made by the cor- | contended that the endowments which the
poration of London as governors of those Charity Commissioners hare treated as educa
hospitals. It appears that they established a tional endowments within the meaning of the
general body of governors for the joint affairs of Endowed Schools Act 1869 are not really such ,
the four hospitals, with separate bodies for the but are either excluded from the Endowed
separate affairs of each . And it is mentioned Schools Act, or, on the view most favourable to
that in Christ's Hospital there was a grammar: the interests of education , are endowments of a
school in which “ suche of the children as be mixed character, such as are dealt with by the
pregnant and very apt to learninge be reserved 24th section of the Act. This contention is
and kept . . . in hope of preferment to the supported on two grounds. First, it is pointed
universitie.” As early as 1557 different objects out that the grant of Henry VIII. contemplates,
of the foundations had been distributed to dif. not education specifically, but general eleemosy
ferent houses - viz., education to Christ's Hos. nary objects ; and that the grant of Edward VI.,
pital, the cure of sickness to St. Thomas's, and though it does contemplate education, does sa
correction of malefactors to Bridewell. This only among other objects equally important.
appears from a minute of a general court held at Therefore it is argued that the first governors,
Christ's Hospital on the 27th Sept. 1557, viz. : the City of London , being intrusted with tha
“ And it is further ordered by this generallassem - | application of these properties to various objects,
blye in consyderacon that as the good houses of might have applied the whole so as to exclude
Christ's hospitall hathe bene erected for the education . And so the endowments are, by the
vertuouse bringinge vp of the myserable youth , terms of sect. 8 of the Endowed Schools Act,
and St. Thoms hospitall for the releuynge of the excluded from its operation. Their Lordships
neadyne and deseased , and Bridewell for then . think that the answer to these arguments lies on
forcinge of the lewde and naughtie sorte to labor the face of the instruments above cited . They
and worke So for asmoche as the aforesaid do not agree that under the grant of Edward VI.
Christ's and St. Thoms hospitalls have hetherto education could have been wholly neglected by
had no perfeccon that is to saye anye directe or the administrators of the funds. But passing
plaine order for the maintenaunce of either of by any question as to what the first governors
the said hospitalls That therfore one generall might in their discretion have done, they did , in
Renter to be assigned sball yelde and paye ynto fact, take the reasonable and wise course of
the Treasaurer of St. Thoms hospitall for the separating, as regards locality and property and
furniture of the charges of the same all the management, the various public objects which
whole reuenewes and profects that shall come of they had to promote. This was done almost
the lands and rents in any wyse belonginge to the | immediately after the foundation . Ever since
said hospitall vntil other or further order shalbe that time the original site of Christ' s Hospital
taken for the same And that the Scruteners and and the large gifts made to it have been applied
gatherers of Legacies shallmake an Accompte of to education, and its governing body, acting
all their collecions at all suche tymes as they separately from 1557 onwards and placed
shalbe called vnto any generall courte And that separately upon an indubitably legal footing
the treasaurers and Scruteners of the said in 1782, has been concerned with educational
hospitalls shall receaue suche legacies and con - , funds. This long.continued application of these
teyne the same in their accomptes as from funds clearly brings them within sect. 5 of the
hensforth shalbe geven to anye of the said Act. But then it is said that a large portion
hospitalls. And that no Treisaurer of any (and calculations are made to show that it is
hospitall shall medle with the legacie in any much the larger portion ) of the funds have been
wyse that is bequethed to another. And also expended on the physical sustenance of the boys
that Christ's hospitall shall be stayed with the admitted to the school ; and it is argued that,
monethlye collecion graunted of the citizens and | funds employed in maintenance or clothing are
of suche yssues as shall aryse and growe of not within the Act, unless according to the terms
thoffice of Blackwell Hall.” The distribution of of sect. 29 they are endowments attached to a
functions and funds thus effected has never been school for that purpose. It appears to their
disturbed . It does not appear that Christ's Lordships that this argument attributes to sect.
Hospital retained any of the property granted by 29 an effect precisely the reverse of what was
the charter to the corporation of London except intended. If a donor has given property for no
the site of its buildings. The bulk of its other purpose than that of maintenance or
endowments is derived from subsequent dona clothing there might be a doubt whether it
tions. The arrangements made in 1557 with should be taken as a purely educational endow
respect to the government of the hospitals gave ment under sect. 5, though it be attached to a
rise to disputes between the city of London as school. Sect. 29 is adapted to remove this doubt,
governors of all the hospitals on the one hand, but not to cut down the definition of educational
and the officers and acting governors of the endowment given in sect. 5 . It certainly would
several hospitals on the other ; and in the year be a strange result if it were found that the Act
1782 the Act 22 Geo. 3, c. 77 , was passed for treats endowments for maintenance of scholars
the purpose of giving validity to a settle- | as being general educational endowments if only
ment agreed on by the disputing parties. I they are attached to a school, and yet treats
Varch 1, 1890.] THE LAW TIMES. (Vol. LXII., N . 8. - 13
Priv, Co.] GOVERNORS OF Christ's HOSPITAL AND OTHERS v. CHARITY COMMISSIONERS. [Priv. Co.
general educational endowments as being mixed | denomination.” The instruments of foundation
if, in fact, they hare been applied in maintaining contain no directions on the subjects to be
as well as teaching the scholars. Their taught. To bring the case within sect. 19 the
Lordships think that no such judgment
anomaly is to governors rely first on an injunction issued by
be found in the Act. In their funds Edward VI. to all schoolmasters of youth
are applied for the purposes of education at commanding them to teach in their schools the
school within the meaning of sect. 5 whether the catechism of a certain godly and learned man , pro
system followed be that of teaching only or that bably John Day ; but this injunction,whatever its
of taking in the scholars and maintaining as validity, is not a statute or regulation for Christ's
well as teaching them . Their Lordships there Hospital, nor is Day's Catechism a formulary of
fore are of opinion, with reference to the first the Church of England. The governors next rely
objection of the governors, that the scheme is on a number of minutes entered in their booksand
right in treating all the general endowments of | recording orders made by them from time to
Christ's Hospital as educational within the time. From these it appears that in the year
meaning of sect. 5 of the Act, and in treating 1570 the children were furnished with Dean
thosewhich have been given to it for maintenance Nowell's Catechism , that a person was appointed
of scholars as educationalunder the terms of sect. to give them instruction in “ the Catechisme,”
29. Some objections have been made to the and that attendance at the catechetical lessons
mode in which the commissioners have dealt with was required of the officers of the house and of
recent endowments, or endowments given sub - two governors. Nowell's Catechism never was a
sequently to Aug. 2, 1819, which by sect. 14 of the formulary of the Church of England . It is
Act are excluded from the operation of schemes doubtful whether orders of the kind produced ,
escept with the assent of the governing body. | for appointing an officer, for proriding books, for
Some of these objections were abandoned in the prescribing the places and times of instruction
course of the argument, because it was found and the persons to attend thereat,are statutes or
that the principles contended for by the appel. regulations of the kind contemplated by sect. 19.
lants would not yield results more favourable to It is certain that we cannot find in them any such
them than those adopted by the commissioners, express terms for requiring instruction in the
But Mr. Rigby still contended that where recent doctrines and formularies of the Church of
endowments had been spent in improving or England as arenecessary to fulfil the requirements
maintaining the old property the amount spent of that section . But this part of the scheme
should be ascertained and removed from the (sect. 80) contains a provision which , so far as
operation of the scheme. To this contention their Lordships know , is quite novel. It provides
their Lordships cannot assent. It may be that that when exemption from attendance on religious
some gifts have been taken by the governors and worship or teaching has been claimed for a scholar
brought into the year's expenditure, part of in the way prescribed by sect. 16 of the Act, every
which has been devoted to the maintenance of person in charge of a boarding house of any
the hospital property. But the accounts to which school of the foundation shall allow such
their Lordships have been referred do not show , exemption . To this the governors objected , and
and there is nothing else in the record to show , their Lordships think that it is not warranted by
that the governors have done anything except to the Act. In sect. 16 it is enacted that (when
apply, in the maintenance of their property, sect. 19 does not apply ) : “ In every scheme
fonds lawfully applicable for that purpose, as any | . . . the commissioners shall provide that if the
wise and prudent landowner might do. The parent . . . of any scholar who is about to
accounts are not very clear upon this point,and attend such school, and who, but for this section ,
probably were not made out with any such could only be admitted as a boarder, desires the
thought in the accountant's mind ; butassuming exemption of such scholar · . . but the persons
that general legacies have been brought in to aid in charge of the boarding-house of such school
the year's income, and have not been funded or are not willing to allow such exemption , then it
kept to any separate account, the result is that shall be the duty of the governing body of such
the money has been spent, and spent in legitimate school to make proper provision for enabling the
ways, and that to trace such money would be scholar to attend the school, and have such ex
impossible, and, if possible, would be wrong. emption as a day scholar.” The commissioners
Another important objection to the scheme rests are here ordered to insert in their scheme the
on what are commonly called the conscience exact provisions of the section . If exemption
clauses of the Act, sects. 15 to 18. The scheme is claimed for a boarder, and the persons in
embodies them with a modification to be men charge of the boarding-house are not willing to
tioned presently. The governors contend that | allow it, what is to be done ? The Act says that
their foundation is one of those which , by force provision shall be made " for enabling the scholar
of sect. 19, are partially excepted from the | to attend the school and have such exemption as
provisions of the preceding sections, being, as | a day scholar.” The scheme says that the persons
they say, specially attached to the Established in charge of the boarding-house shallbe bound to
Church . Sect. 19 excepts any educational allow the exemption . These two directions are
endowment the scholars educated by which are contradictory of one another, and in this respect
“ required by the express terms of the original their Lordships are of opinion that the scheme
instrument of foundation , or of the statutes or is erroneous. The case of the “ donation
regulations made by the founder or under his l governors ” (appeal B ) is that at the passing of
authority in his lifetime or within fifty years the Act of 1869 they were entitled to the right
after his death (which terms have been observed of presenting children for adoption into the
down to the commencement of this Act) to learn hospital in rotation with other governors, and
or to be instructed according to the doctrines or that opportunities for presentation occurred on
formularies of any particular church , sect, or an average every three and a half years. Sect 93
14 – Vol. LXII., N. S.] THE LAW TIMES. [March 1, 1890.
Priv. Co.] GOVERNORS OP Christ's HOSPITAL AND OTHERS v. CHARITY COMMISSIONERS. [ Priv. Co.
of the schemematerially curtails , this privilege, 1 A , and the additional objection that the scheme
for it provides that a donation governor shall not has not due regard to the educational interests
present a child as long as there is on the founda- | of the destitute poor of certain localities. So far
tion any child presented by him ; and also that as regards rights of patronage the case stands
one-third of the presentees shall be girls. The on the same footing as the case of the appellants
donation governors therefore object that the in appeal B , and the appeal must be rejected for
scheme is not in conformity with the Act because the reasons there assigned . As regards the
it has not had regard to their patronage as directed other objections, their Lordships consider that
by sect. 13. Their Lordships agree with the the appellants are not in those matters directly
appellants that they are persons directly affected affected by the scheme,and are not the governing
by the scheme, and are therefore entitled to be body to which , by sect. 39, the right of appeal in
heard on the question whether the scheme is in such matters is confined. It is true that the
or is not in conformity with the Act (sect. expression “ governing body ” is by sect. 7 of the
39 ) ; but on that question the decision must Act defined in wide terms, which , though not
be against the appeal. It is impossible to deny | strictly grammatical, may include persons who
that regard , and substantial regard , to the patro - have the right of holding any endowment
nage in question has been paid in framing the dealt with by the scheme. And it may be
scheme. The appellants contend that it is not that in some foundations there are more bodies
sufficient regard ; but they have not in their case than one, who for different purposes of the
or through their counsel suggested any measure | Act have to be considered as “ governing
of regard that should be paid except that the bodies.” But no such question arises now . In
patronage should be left wholly untouched or sect. 7 the meaning given to the term “ governing
that a full equivalent should be given in ex body " is expressly stated to be “ unless the
change for it. Their Lordships cannot put such context otherwise requires," and by sect. 39 the
a construction on the Act. Sect. 11 enacts that, governing body, which is invested with the
when a scheme abolishes or modifies the educa important power of appealing on several grounds
tional advantages of any class of persons the of general interest to the objects of the founda
commissioners shall have due regard to the tion,must be that body alone which is charged
educational interests of that class ; and sect. 39 with the power and the duty of general manage
is careful to provide an appeal to Her Majesty in ment. These appellants, therefore, have no locus
Council by the governing body on that very point. standi to be heard on appeal, except as regards
Sect. 13 first enacts that the commissioners shall their rights of patronage. The appeal of Guy 's
save or make due compensation for certain vested Hospital (appeal D ) has relation to a gift made
interests ; and sect. 39 expressly provides an in 1724 by Thomas Guy, the founder of that
appeal on that very point by the persons directly hospital, to Christ's Hospital. By that gift the
affected . Those vested interests do not include funds of Guy's Hospital were charged with the
the rights of patronage claimed by the donation payment of 2001. a year to Christ's Hospital upon
governors. They are dealt with by a separate condition thatGuy 's Hospital should have liberty
sentence in sect. 13, which directs the com - to put into Christ's Hosp tal every year four poor
missioners to have regard to them , and no children with a preference to founders' kin .
express mention of them is made in sect. 39. If From that time to the present the annual
the Legislature intended what the donation payment of 4001. has been made, and every year
governors allege, rights of patronage should four children ofGuy's family havebeen appointed
simply have been set down in sect. 13 as one of to Christ's Hospital by Guy's Hospital. In 1830
the vested interests to be saved or duly com - Christ's Hospital, finding that the charge of
pensated . But they are dealt with in different | maintaining and teaching Guy's children exceeded
terms and are clearly placed on a different the value of the annuity , endeavoured to renounce
footing, both from vested interests and from it, but was compelled to continue it by a decree
those educational interests to which due regard of the Court of Chancery. The annuity has been
is to he had. Their Lordships hold that this carried into and administered as part of the
scheme, which pays regard - not illusory , but ordinary incomeof Christ Hospital, and as such
substantial - to the rights of patronage in ques is operated on by the scheme. Guy's Hospital
tion , cannot be successfully impeached as not now complains of certain clauses of the scheme
being in conformity with the Act in that respect. | viz., of sect 85, which restricts the benefits of the
The position of the appellants in appeal C is a foundation to such as stand in need of assistance,
little complicated. They are a portion of the and requires contributions of those whose parents
governing body established by the Act of 1782. are able to contribute substantially ; of sect. 86 ,
They represent especially the Corporation of the which imposes certain conditions as to the
City of London , which was the original grantee ! character and health of the children , and more
of the endowments of Henry, VIII, and Edward , especially of sect. 99, by which only eight places
VI., and, as their Lordships understand, is still on the foundation are reserved for Guy's family ,
legally seised of the estates of the hospital, and those only for the period of twenty years
though without any powers of management. The from thedate of the scheme. Guy's Hospital claims
City has made gifts to the hospital, and there to be a governing body of Christ's Hospital so
bave been accorded to the governors who specially i far as regards the endowment in question , and
represent it certain privileges of presenting therefore to have the right of appealing under
children who are received upon the foundation . sect. 39 of the Endowed Schools Act on behalf of
They now complain of the scheme because it has Guy's family . The claim to be a governing body
not due regard to their rights of patronage. within the meaning of sect. 39 of the Act is
But they also assume the position of a governing inconsistent with the construction above placed
body, and take objections to the scheme of the on that section . Guy's Hospital is under an
same character as have been dealt with in appeal l obligation to pay 4001. a year to Christ's Hospital
March 1, 1890 .) THE LAW TIMES. [ Vol. LXII., N . 8.- 15
Priv . Co.] Re Cuno; MANSFIELD v. MANSFIELD. [ CT. OF APP.
upon the conditions of Guy's will. But the
governors of Christ's Hospital are the general
managers of that sum as of the other revenues Supreme Court of Indicature.
oftheir hospital. What remedy Guy's Hospital
may have against a breach of the conditions of COURT OF APPEAL
Guy's will by Christ's Hospital is a question of
law which can only be decided in a suit properly Friday, Nov . 1, 1889.
constituted for the purpose. For the purpose of (Before Cotton , Bowen ,and Fry, L .JJ.)
this appealGuy's Hospital can only be considered Re Cuno ; MANSFIELD V.MANSFIELD. (a)
as a body corporate directly affected
scheme, and objecting to it as not being in
by the APPEAL FROM THE CHANCERY DIVISION.
conformity with the Act because it does not pay | Married woman - Will- Married Women's Pro
regard to the rights of patronage. So far as that perty Act 1882 (45 & 46 Vict. c. 75), 88. 1 (sub
consideration goes, their Lordships think that sect. 1), 2, 5 .
this case does not substantially differ from that | By a settlement executed on a marriage in 1863 the
of the donation governors, and that the objection wife's property was limited, in default of issue,
to the scheme cannot be sustained . As regards upon trustbut,
for her absolutely if she survived her
the educational interests of Guy's children ,Guy's husband, if she should die in his lifetime,
Hospital have no locus standi under sect. 39. The then upon such trusts as she should by will appoint,
right of appeal on this point is given to the and , in default of appointment, for her next of
governors of Christ's Hospital alone. Theappeal kin . inThe1886wife,
ofthe Fishmongers' Company (appeal E ) relates dated , byduring
which , coverture, made
if she should die ain will
her
to a gift made by Mark Quested in 1642, and to a husband's lifetime, she appointed the fund to
compromise between the company and Christ's trustees upon certain trusts, and she bequeathed
Hospital in 1683. Under the compromise the to them upon the same trusts all the property she
company paid to Christ's Hospital the sum of could dispose of by will. She survived her hus
2001., and Christ's Hospital became bound to band,and died without republishingherwill,and
receive forthwith six poor children on the withouthaving had any issue.
appointment of the company. It was also Held (affirming the decision of Kay, J.), that the
arranged that the company should be entitled to will did not dispose of the settled property.
have six nominees always in Christ's Hospital, Sect. 1, sub -sect. i, of the Married Women 's Pro .
paying the sum of 41. 38. 4d . a year for each . perty Act 1882,must be read with sects. 2 and 5 ,
This arrangement has continned up to the and therefore a married woman has no power
present time. The company object to the under it to dispose of property which does not
scheme on the ground that it does not pay proper comewithin either of the sections.
two latter
regard to the rights of the company or to the
educational interests oftheir nominees. Probably By a settlement made on the marriage of Emily
the considerations which would govern this Mansfield with L . F . Cuno, dated the 29th Dec .
appeal on its merits are substantially the same 1863, certain personal property belonging to the
as apply to appeal D . But their Lordships are former was settled upon trust to pay the same
precluded from entering into such considerations, to her during her life for her separate use without
because the 42nd section of the Endowed Schools power of anticipation , and after her death upon
Act forbids appeals having relation only to trusts for her children and remoter issue as
endowments which , during the three years therein mentioned . And it was declared that, if
preceding the commencement of the Act, hare Mrs. Cuno should survive Mr. Cuno, and there
had an average annual gross income of not more should be no children of their marriage who
than 1001. The general result is that, in their | being a son should attain twenty -one, or die
Lordships' opinion , all the petitions of appeal under that age leaving issue, or being a daughter
should be dismissed, except the petition of the should attain twenty -one or marry under that
governors of Christ's Hospital. Upon that age, then , subject to the previous trusts, the
petition their Lordships think that the proper trustees should stand possessed of the funds in
course will be to remit the scheme to the Charity trust for Mrs. Cuno absolutely . But if Mrs.
Commissioners, with a declaration that it is Cuno should die in the lifetime of Mr. Cuno, and
erroneous, so far as it fails to embody the there should be no child who being a son should
provisions required by sect. 16 of the Endowed attain twenty-one or die under that age leaving
Schools Act . 1869, and so far as it requires issue, or being a daughter should attain that age
persons in charge of a boarding-house to allow or marry under that age, then the trustees were
exemptions from prayers and religious worship . directed to hold the funds in trust for such
They will humbly advise Her Majesty accord persons and for such purposes as Mrs. Cuno
ingly . should , notwithstanding corerture, by will or
codicil appoint, and in default of appointment
Solicitors for the Governing Body and the
Donation Governors, R . M . Beachcroft ; for the upon the usual trusts for her next of kin .
About the year 1870 Mr. and Mrs. Cuno
Corporation of London , The City Solicitor (H . H . separated , and there never was any issue of the
Crawford); for Guy's Hospital, Winter and Co.; marriage .
fortheFishmongers' Company, C . 0 . Humphreys . Mrs. Cuno made a will, dated the 1st May
Solicitors for the Charity Commissioners, 1886 , in which the above limitations in default of
Farrer and Co. issuewere recited, and she thereby appointed that,
if she should die in the lifetimeof Mr. Cuno, and
there should be such default of issue as aforesaid ,
the trust funds should be transferred to the
(a) Reported by W . C. Biss, Esq., Barrister-at-Law .
CT. OF APP.] Re Cuno ; MANSFIELD v. MANSFIELD. [CT. OP APP.
trustees named in her will, to be held by them gave it to her as her separate property, but that
upon the trusts therein mentioned . And she it gives her a power of disposing of it as if it were
devised and bequeathed and appointed all and her separate property. If that section applies to
singular other the estate and effects, both real this particular case, so as to make it disposable
and personal, of or to which she should at her as her separate property, the appellant is right.
decease be seised, possessed, or entitled as her But is that so ? We cannot look at sect. 1, sub
separate estate, or over or in relation to which sect. 1, without referring to the other sections of
she should have any general power of appoint the Act. That sub-section is this : “ A married
ment or disposition exercisable by will, to the woman shall, in accordance with the provisions
same trustees upon the trusts thereirafter de . of this Act, be capable of acquiring, holding , and
clared concerning the same. disposing by will or otherwise of any real or per
Mrs. Cuno died in September 1888 , and her will sonal property , as her separate property , in the
was duly proved . At the date of her death it was same manner as if she were a feme sole , without
believed that Mr. Cuno was still living, but it the intervention of any trustee.” What the
was subsequently discovered that he died in 1887. appellant asks us to do is to interpret that sub
Mrs. Cuno's will had not been republished. section without reference to the words “ in
An originating summons was taken out to have accordance with the provisions of this Act." But,
it decided whether the settled property passed by in my opinion , this is only a general section
the will. pointing out the provisions the details of which
Kay, J. held that it did not, and from that are to be worked out by the subsequent sections.
decision one of the legatees under the will now Sect. 2 deals with the case of women married
appealed . after the commencement of the Act ; sect. 5 deals
Warmington , Q .C . and Ribton for the appellant. with the case of women married before the com
- The case ofWillock v. Noble (32 L . T. Rep . N . S. I mencement of the Act ; and the two sections
give them different powers of disposing of pro
410 ; L , Rep . 7 E . & I. App. 580) is decisive against
theappellant,unless some alteration has been made perty . Wehave to deal with sect. 5 because this
by subsequent legislation. It was there held woman was married before the commencement
that effect would be given to the will so far as it of the Act, and what the section says is this :
was a will of property which a married woman “ofthis Every woman married before the commencement
Act shallbe entitled to haveand to huld ,and
could dispose of by will. The case of Earl of to dispose
Charlemont v. Spencer (11 L . Rep . Ir. 347) shows property, allof realin manner aforesaid as her separate
and personal property, her title
that the will of a married woman who had no to which , whether
separate estate at thetimewill pass afteracquired whether in possessionvested or contingent, and
, reversion , or remainder,
separate estate. Then the Married Women 's
Property Act 1882, s. 1 , sub-sect. 1, places all a shall accrue after the commencement of this Act."
married woman 's property on the footing of This section , therefore, applies only to property
which she acquired after the commencement of
separate estate. Though after the decision in Reid the Act. Sect. 2 , which relates to women married
v. Reid (54 L . T. Rep. N . S . 100 ; 31 Ch. Div. 402), after the commencement of the Act, is different.
it cannot be contended that this was property the In my opinion it would have been useless to insert
wife's title to which accrued after the passing of sect. 5 if sect. 1had the generaleffect which the ap .
the Act, yet under sect. 1, sub-sect. 1, she bad power pellant contends for. I cannot suppose that Parlia .
to dispose of it as separate property . That section ment in its wisdom , after giving by sect. 1 to all
is not restricted to property acquired after the married women , whether married before or after
passing of the Act. It cannot have been intended
to cut down sect. 1, sub-sect. 1, by sect. 5, for both the passing of the Act, the general power that is
are enabling
protect clauses.
the rights Sect. 5 was inserted
ofhusbandsmarried before theto contended for, would have introduced sect. 5
giving a limited power to " women married before
Act . the commencement of this Act.” It is said that
Renshaw, Q .C . and E . Ford for a respondent in sect. 5 was inserted in order to protect the
husband , but it might just as well be said that it
the same interest. was inserted to protect the next of kin . Although
Fischer, Q .C . and Rawlinson for the next of Bowen , L .J. in Reid v. Reid referred to the
kin . interest which the husband takes in all property
Stokes for the trustees. which this section did not give the married
COTTON , L . J. - This is an appeal against a woman a power of disposing of, he does not
decision of Kay, J. declaring that the will of Mrs. suggest that the section was either meant to
Cuno is inoperative , and that her next of kin take protect the next ofkin or to protect the husband ;
the property comprised in the settlement which he held that it gires a limited power to a woman
has been referred to. Under that settlement married before the Act, and that in cases not
the lady, in the evert which happened of her coming within the power the interest of the
never baving any child , took the property abso . husband could not be defeated by the testamentary
lutely if she survived her husband. " If she died in dispositions of the wife. In my opinion it would
his lifetime she had a power of appointment, and, be wrong to consider the words of sect. 1 without
in default of appointment, there was a limitation referring to those of sect. 5 which show how the
in favour of her next of kin . It is confessed here | power referred to in general terms by sect. 1 is
that, as she survived her husband, the will which given ,and over what property it extends. The
she made during his lifetime was inoperative main object of sect. 1, sub -sect. 1, appears to me
unless it can be made out that, under the Married to have been to introduce an entirely new right
Women's Property Act 1882, she acquired on the in married women , to relieve them from the neces
passing of that Act the power of disposing of sity of having a trustee, and to say that they shall,
this property as her separate property . Is that as provided in the subsequent part of the Act,
so ? What is contended for is not that sect. 1 l have power to acquire, hold , and deal with real
March 1, 1890.] THE LAW TIMES. (Vol. LXII., N . 8.- 17
CT. OP APP. ] EDEVAIN v. COHEN . [Ct. or App.
and personal property without the intervention | Dec. 3, 5, 6, and 7, 1889.
of a trustee. In my opinion the decision of the 1 (Before COTTON , Bowen, and FRY, L .JJ.).
court below was right, and must be upheld . EDEVAIN v. Cohen. (a)
Bowen, L .J. - I am of the same opinion. If
sect. 1, sub-sect. 1, had omitted the words “ in APPEAL FROM THE CHANCERY DIVISION.
accordance with the provisions of this Act," it | Practice - Omission from pleading - Judgment in
still would have been necessary to give some former action - Amendment - Ř . S. C . 1883,
operation to sect. 5 , and , in my opinion , even in Order XIX., r. 15 - Order XXVIII.,r. 1.
that case the two sections must have been read | An action wasbroughtagainst two defendantsclaim .
together, and taken as enacting that only such ing damages for the wrongful removal of certain
property as had been acquired after the passing furniture and delivery of such of the furniture as
of the Act was to be held and disposed of as had not been sold . The plaintiff had previously
separate property. But we are not driven to recovered judgment in another action against three
consider a section which contains only the words other persons in respectof the samematters. Atthe
" a married woman shall be capable of acquiring, trial, after had
the plaintif 's evidence and that ofasked
one
holding, or disposing by will or otherwise of any defendant been heard, the defendants
real or personal property ," for the words are, leave to amend their defence by adding a plea of
" A married woman shall in accordance with the merger of the cause of action in the previous
provisions of this Act be capable of acquiring , judgment. There was some evidence of acts by
holding, and disposing." These words of refer the defendants subsequently to the judgment
encemust refer to provisions which are to follow , which might give the plaintiff's a fresh cause of
and the words “ shall in accordance with the pro action .
visions of this Act ” therefore may be rendered Held , that the defence of the judgment in the pre
" shall as hereinafter provided ." The two subse vious action could not be raised unless pleaded ,
quent sections to which the words “ in accordance and that, astheitamendmentasked
was not possible tofor
with the provisions of this Act" seem to refer , so allowed shouldplaintif's
putthe not be
faras concerns the present case, are sects. 2 and 5 . in the same position as if the defendants had
Sect. 2 deals with a woman married after the pleaded it at first.
Act, and sect. 5 deals with a woman married Decision of North , J. (61 L . T . Rep . N . S. 168 ;
before the Act. Therefore we must read into 41 Ch. Div . 563) affirmed .
sect. I the limitations imported by sects. 2 and 5. | This was an appeal by Morris Cohen from the
Sect. 1 is a general section , which gives the key.
note to the subsequent sections to which it refers. judgment
N . S . 168
of North , J., reported in 61 L . T . Rep.
; 41 Ch. Div. 563.
That makes sense of sect. 5, which otherwise The plaintiffs were the owners of furniture,
would be superfluous ; and what ismore, it makes which they alleged that the defendants Morris
sense of sect. 2, which section , as it seemsto me, Coben and Fredk. Cook had wrongfully removed
could not, without the existence of sect. 5. be from a dwelling-house which at the time of the
construed along with sect. 1 so as to make sense. removal was unoccupied .
It is also to be remembered that sect. I does not
merely say " a married woman shall in accordance andThey claimed damages for wrongful removal
with the provisions of this Act be capable of not been sold ofin such
delivery part of the furniture as had
market overt.
acqniring , holding, and disposing by will or The plaintiffs had previously obtained judg
otherwise of any real or personal property as her ment
separate property ;" it goes on to say “ in the againstin three another action of Edevain v. Watmore
samemanner as if she were a feine sole without matters other persons in respect of the same
the intervention of any trustee,” which words solicitorsasofformed the subject of this action. The
give point to the section . I do not think the defendants inCohen were the solicitors for all the
Edevain v. Watmore.
criticism that has been made on Reid v. Reid is This judgment was not pleaded by the defen
borne out by the case. I do not undertand Reid dants as a defence to the present action .
T. Reid as having decided that sect. 5 was intro After all the plaintiffs' evidence had been
duced to protect the husband ; but the deci. heard , and the defendant Cohen had been
sion , which seems to me to be a correct deci. examined , his counsel asked leave to amend bis.
sion ,went on the principle that in the construc
tion of statutes you must not construe the words statement of defence by alleging that the cause
| of action was merged in the judgment of
so as to take away any rights which already existed Edenai y. Watmore. .
before the statute was passed unless you have There was some evidence of acts by the defen
plain words which indicate that such was the dants subsequent to the former action which might
intention of the Legislature. That seems good give the plaintiffs a fresh cause of action .
reasoning ; but I do not see how it helps the North, J. refused leave to amend .
defendants in the present case. The appeal was from the whole of the judgment
Fey, L.J.- I am entirely of the sameopinion. of North , J., who gave judgment in favour of the
Solicitors : Crawley, Arnold , and Co.; Surman plaintiffs for damages for the wrongful removal,
and Quekett ; Penley and Grubbe. but the case does not call for a report except on
the question of amendment.
Oswald for the defendant Cohen .- It was not
necessary to plead the judgment in Edevain v.
Watmore in bar of the present action , as it was a
matter within the knowledge of the plaintiffs.
Under the Rules of Court it is only necessary to
plead such matters as would take one's opponent
(a) Reported byA . J. SPENCER, Esq., Barrister-at-Law.
Vol. LXII., N . S., 1581*.
18 - Vol. LXII., N . S.] THE LAW TIMES. (March 1, 1890.
Ct. Of App.] TOMLIN v. LUCE . [CT. OF APP.
by surprise if not pleaded : (Order XIX ., r. 15.) | ment proved to be incorrect, and the purchasers
The court is bound to take notice of any valid declined to complete without compensation . The
objection to the claim : vendors ultimately allowed 8951. as a deduction
Coote v. Judd, 48 L. T. Rep. N . S. 205 ; 23 Ch. Div . from the original purchase money , which was
727. 20,8001., and claimed to be allowed that sum in
In any case, this is eminently a case in which their account furnished to the second mortgagee
leavo to amend should have been given : of the property . After satisfying the debt of the
Order XXXVII., r. 1 ; first mortgagees, the remainder of the proceeds
Collette v. Good, 38 L. T . Rep . N . S. 504; 7 Ch.
Div. 842 ;
of sale was considerably less than the amount
Steward v.'North Metropolitan Tramway Company , due to the second mortgagee. An action was
54 L . T. Rep. N . S . 35 ; 16 Q . B. Div. 556 ; brought by the second mortgagee against the
Laird v. Briggs, 45 L . T. Rep . N . S. 238 ; 19 Ch. first mortgagees for an amount of the moneys
Div. 22 ; received , or which but for wilful default might
Cropper v. Smith, 51 L . T. Rep. N . S. 729 ; 26 Ch .
Div. 700 .
have been received, by the first mortgagees in
respect of the sale.
Subject to the right of the plaintiffs to new Held, that the first mortgagees were answerable for
assign , the amendment should have been allowed . any loss caused to the second mortgagees by their
The defendant was willing to submit to any order misstatement, but that 8951. was not necessarily
as to costs if allowed to amend. Noinjury hasbeen the true amount to be allowed ; that an account
done to the plaintiffs by the defence not having should be taken whether , if the property had been
been pleaded in the first instance, which cou'd properly described , it would have sold for
be remedied by an order as to costs . more than 19,9051. (being the purchase money
Cozens-Hardy, Q .C . and Geo. Henderson , for the of 20,8001., after deducting the 8951.), and that
respondents, were not called upon. the first mortgagees should be charged with the
amount of loss (if any) which should be certified
Cotton, L .J. - This case has been argued with to have been caused by the misstatement.
considerable vigour, and I do not think any point The decision of Kekevich, J. (60 L. T. Rep . N . S .
has been missed . It is contended that the judg . 818 ; 41 Ch. Div . 573) varied .
ment in the former action of Edevain v. Watmore By an indepture of mortgage, dated the
could be raised in this action without having | 26th Oct. 1883, William Henry Gibbs mortgaged
been pleaded . I think that is not so, having certain hereditaments at West Kensington to
regard to Order XIX ., r. 15, which says that the the defendants in this action , Chas. Richard Luce ,
defendant " must raise by the pleading all W . H . Luce, and H . H . M . King, to secure
matters which show the action not to be main
tainable .” The judgment in the former action | 534,6651. and interest at 6 per cent., reducible to
per cent. on punctual payment.
comes directly within this rule, for it is contended By an indenture of the 27th March 1884 the
that it would be a bar to this action , and it is not
a mere matter of law . Then it is said leave hereditaments comprised in the mortgage of the
26th Oct. 1883 were, together with other here
should have been given to amend. North , J. ditaments, mortgaged by W . H . Gibbs (as trustee
refused leave after hearing all the evidence in the
case. That alone would make me very doubtful for Gibbs and Flew Limited ), and by the com
if leare should be given to amend. But there are pany to the plaintiff in this action to secure
other strong reasons against it. The point was 20 ,0001. with interest at 6 per cent.
one which was not taken at once by the defen . Notice of the indenture of the 27th March 1884
dant, so as to be insisted upon directly it was given to the defendants on the 5th April
appeared from the evidence ; but leave was only 1884.
asked when the plaintiffs' case had been finished , On the 26th Feb . 1886 the defendants , in exer
and the defendants' case gone into for some time.
cise of their statutory powers of sale as
I think it is not a case in which amendment mortgagees, caused the property comprised in
should be allowed . their mortgage to be put up for sale by public
Bowen and Fry, L .JJ. concurred. auction in four lots.
Lots 2, 3, and 4 were sold at the
Solicitors for the appellant, Nordon and 20,8001. to Messrs. Salaman and Co.,auction for
and lot 1
Lazarus. was afterwards sold by private contract for
Solicitors for the respondents , Morris and 19,5001.
Rickards. In preparing the particulars of sale Messrs.
Baker and Sons, the auctioneers, who were
employed by the defendants, inserted a statement
Dec. 7, 9, and 10 , 1889. that “ all the roads on the property are con
( Before Cotton, Bowen, and Fry, L .JJ.) structed in the best possible manner, are kerbed
Tomlin v. LUCE. (a ) and sewered , and there is perfect drainage."
APPEAL FROM THE CHANCERY DIVISION. The statement turned out to be incorrect , and
Mortgage - Sale - Misstatement in particulars the purchasers of lots 2, 3, and 4 claimed 20001.
Compensation to purchaser - Rights of second as compensation before they would complete the
purchase. The defendants discussed the amount
mortgagee-- Account. of compensation, and being advised that they
In Feb. 1886 the first mortgagees of a building ought not to allow the contract to be rescinded ,
estate sold under their power of sale. In pre and that they could not get so good a price on a
paring particulars of sale a statement was second sale, even with a deduction for compen
inserted by the auctioneers as to the roads on the sation , ultimately allowed the purchasers 8951. as
property being kerbed , sewered , c. This state compensation for themisstatement.
(a) Reported by A. J. SPENCER,Esq., Barrister-at-Law. The purchase was completed on the 27th July
March 1, 1890 . ] • THE LAW TIMES. [Vol. LXII., N.8.- 19
CT. OF APP.] TOMLIN v. LUCE. [Cr. OF APP.
1886 . On the completion of the sales the defen - | thedefendants are appealing as to the exercise of
dants delivered to the plaintiff a statement of a power of sale contained in their mortgage. They
their receipts in respect of the sales, and of the got for the property a bid , and a contract was
sums which they claimed to deduct. In this made for a sum of 20,8001. Unfortunately there
account they claimed to deduct (inter alia ) was a statement in the conditions of sale by the
the 8951. paid for compensation , and the account auctioneers of importance. It was this - it being
showed an ultimate deficiency of 391. 28. 7d . in building land, and to a certain extent prepared
respect of the amount claimed by the defendants for building — “ the roads on the property are con
as first mortgagees. The plaintiff,who as second structed in the best possible manner, are kerbed
mortgagee would thus get nothing, objected to and sewered , and there is perfect drainage.” The
the sum of 8951. being deducted , inasmuch as the purchaser found out that that was not correct,
misstatements were made by the defendants or and he contended that he was entitled to rescind
their agents, and were not authorised by the unless some allowance were made for the mig
plaintiff . He also asserted that the sum of 8951. statement. After some negotiation between the
was largely in excess of any amount to which the parties a sum of 8951. was allowed to be deducted
purchaser was reasonably entitled as compensa from the purchase money. Therefore the defen
tion for the alleged misstatement. dants did not get thewhole of the sum of 20 ,8001.,
The plaintiff brought this action , in which he but they got 19,9051., and the plaintiff, who
claimed an account of all moneys received by the is a second mortgagee, says that that 8951.
defendants, or whicb , but for their wilful default , ought to be struck out and disallowed . He
they might have received in respect of the sales puts it in this way, by his
of the hereditaments comprised in the plaintiff's suppose by the argument— thatpleadings — and I
the defendants,
mortgage of the 27th March 1884 , and payment the first mortgagees, were answerable for that
of what was found due. 8951. on the ground, that they were answerable
By their defence the defendants admitted that for what they received or what, but for their
there were some errors in the statement of wilful default, they might have received . The
account furnished to the plaintiff, and stated judge has found that that sum was a sum reason
that there was a balance of 1801. 4s. due to the ably and properly allowed by the first mort
plaintiff, which they offered to pay with costs of gagees in order to avoid any contest with the
the action up to date, The plaintiff declined purchasers. I do not see how on that footing,
this offer. and on the contention of the plaintiff , that sum
The case was heard by Kekewich, J., who held of 8951. could be disallowed to the first mort
that the defendants as first mortgagees must be gagees, as in fact it has been disallowed by
charged with the 8951, allowed as compensation Kekewich , J. by the judgment which he gave.
as between themselves and the secondmortgagees : | How he exactly disallowed it I cannot under--
(60 L . T . Rep. N . S . 818 ; 41 Ch. Div . 573.) stand. Probably he was led to the judgment
The defendants appealed . which he gave by the contention on the one
կլինի
Warmington, Q.C . and G . Harris Lea for the side and on the other - because the defence seems
appellants. — The defendants acted bona fide in really to have been very much directed , if not
the interests of all parties, and the compensation entirely , to this , that the mortgagees selling
allowed should was
not beone
charged against them . The under their power employed a competent
misstatement which increased the auctioneer, and were not answerable for any
proper selling price of the property, and has not blunder which the auctioneer committed . There
they were wrong, and that point I think was not
been the cause of any loss.
Neville, Q .C . and Charles Browne for the respon argued before us ; but I think probably that
dent. — The judge only decided that the first Kekewich, J. was led into the judgment he gave
by the grounds which were taken on both sides .
mortgagees were liable for the negligence of the Certainly we cannot agree with that judgment.
auctioneers in making the misstatement. It was as being a right statement of the law . What we
clear that the difference between the price think is this : That the mortgagees, when they
realised and the actual value of the property if sold ,and when there was thatblunder made by the
no misstatement had been made was not so auctioneer, became answerable for any loss which
much as 8951., and it was assumed in the court was
below that the plaintiff was entitled to the whole thereoccasioned by that blunder. It may be that
was none. It may be that there was con
of that sum or nothing. The contract was siderable loss occasioned by it, because, of
rescindible, and the bargain might have been course, asKekewich , J. says, and I think rightly ,
lost if compensation had not been allowed : in an estate like this,
Re Terry and White's Contract , 54 L . T . Rep . N . S. roads were properly the question whether the
made throughout, and
353 ; 32 Ch. Div . 14 .
Whether it was rescindible or not, the plaintiff been whether the things stated to have been done had
is entitled to the 8951. The onus lay on the defen as against done, was an importantmatter, and he finds
dants to show that anything less than 8951. should statement the mortgagees the value of the mis
to be 8951. I think the value of the
be allowed to the plaintiff, but we do not object misstatement may be ascertained by finding
to an inquiry as to the actual loss caused by the what would have been given by a purchaser
misstatement. They also cited for the property if it had been properly de
Re Chifferiel ; Chifferiel v. Watson , 60 L . T. Rep . scribed ; that is to say, if the fact that the
N . S. 99 ; 40 Ch. Div. 45. roads had not been kerbed and sewered had
G . Harris Lea in reply . We do not resist an been stated. That is, it is really the difference
inquiry as to the actual loss occasioned, if it be between 19,9051. and that which would have
directed at the plaintiff's risk as to costs. been given if the property had been properly
COTTON, L.J.— This is an appealby the defen - | described. The loss occasioned is a matter of
dants against a judgment of Kekewich, J., and i fact, and in my opinion therefore the judgment
20 — Vol. LXII., N .8.) THE LAW TIMES. (March 1, 1890.
CT. OF APP.] TOMLIN v. Luce. [CT. OP APP.
is not right in treating the defendants — themort. ! balance and interest let the costs of the said
gagees - as answerable for this 8951. as a sum inquiry be added or deducted, as the case may
which , but for their wilful default, they might require, and let the ultimate balance according
have received. That being so, we cannot affirm , to all the said declarations and directions be cer
butmust disaffirm , the judgment. The plaintiff, tified. Liberty to apply in chambers for payment
when he found tbat we intimated our opinion of such balance, and in respect to any costs not
against the view taken by Kekewich , J., asked dealt with by this order. No costs of the appeal.
for an inquiry as to what the damages were, and Bowen, L.J. - I am of the same opinion as
that was not objected to on the other side. What Cotton,
ought to be done is this, we think : to direct an by Fry, LL.J. I agree with the order as framed
.J. I do not agree with the judgment
inquiry . Fry, L .J. has prepared the termsof the of the court below or with the reasoning of it. I
order which we are prepared to make, and which
he will read. Wemust ascertain what really was do not think that reasoning is the proper line of
the loss occasioned by this misstatement. In reasoning to apply to the facts of this case ; and,
our opinion themortgagees exercising the power as the case below has been reported as an
of sale are answerable for that loss. The view authority with respect to themeasure of compen
sation , I think that that case and the reasoning
taken in the minutes prepared is, I think , a cor of it must be taken to be overruled, and to be no
rect view . The first mortgagees will have their longer
costs up to and including the trial. Then there recordsanofauthority so far as it stands upon the
the court. But this action has got
will be an inquiry directed, and the minutes into a tangle,
framed in such a way that it will not be necessary it was presentedowing. I think, to the way in which
to Kekewich, J. at the trial, and
for the matter to comeback to us ; but in accord by which he was led to adopt the line of reasoning
ance with the result of the inquiry, so the costs of which turns out really not to be applicable to the
the inquiry will be borne. case. I agree that the true measure of damages
Fry, L . J. - Bowen , LJ. has asked me to read or the true measure of allowance I ought to say
the minutes. These are the minutes we have is that which has been stated by Cotton , L .J., and
agreed upon : The plaintiff by counsel admitting embodied in the order. The only point upon
that the disallowance of 8951. cannot be main . which I have some hesitation is this : I am not
tained, and asking in lieu thereof for the inquiry
hereinafter directed , and the defendants not certain , if I had been deciding by my own
objecting to such inquiry, vary the judgment of unassisted — I will not say light but twilight
Kekewich, J., and as varied let the judgment that I should have come to the same conclnsion
stand as follows : This court doth order that the as to the costs of the trial below . It is a matter
following inquiry and accounts may be taken ; | with which my brothers are so much better fitted
to deal than I am , that I willingly yield my view
that is to say , first, an inquiry whether the about it to theirs.
lots 2, 3, and 4 would have sold for any (and if
any, what) sum in excess of the sum of 19,9051., FRY, L . J. - I am of the same opinion . It does
being the sum of 20,8001., less 8951., in case the not appear to me that the reasoning of
same had been sold without the misstatement | Kekewich , J . can be maintained . I am not able
contained in the particulars in the pleadingsmen . | myself to follow it. I think the learned counsel
tioned ; secondly, an account of what on the who appeared for the respondent were quite
5th May 1887 was due to the defendants under right in the course which they took in not insist
and by virtue of the indenture of mortgage, ing upon maintaining the judgment as it stands.
dated the 26th Oct. 1883 ; thirdly, an account of Then arises the question of inquiry, and as to
the defendants' costs of this action up to and this we were relieved of much difficulty by the
including the hearing before Kekewich , J . ; appellants' counsel not objecting to that inquiry .
fourthly , an account of the proceeds of sale of the The case was evidently in a very entangled con
hereditaments comprised in the said indenture of dition, partly by reason of the way in which it
mortgage received by the defendants, or by any had been conducted in the court below , and partly
other person or persons to the order and use of by reason of the admissions which seem to have
the defendants ; and this court doth declare been made on both sides ; but under the circum
that in case it shall appearupon the inquiry No. 1 stances of the case I think the minutes of the
that the said lots would have sold for any less judgmentwhich I have already read are the right
sum in excess of the sum of 19,9051., then the ones for this court to pronounce. With regard
costs of the said inquiry are to be borne by the to the question of costs in the court below , I agree
defendants ; but if it shall appear that the lots with Cotton, L .J., and for this reason : it
would not have sold for any sum exceeding the appears to me that the plaintiff came with an
sum of 19,9051., then the said costs are to be entirely false view ofhis case,his pleading stating
borne by the plaintiff. Let the smaller of the a claim to 8951. as a specific disallowance, and he
two following sums be deducted from the larger claimed to have an account taken as against the
one, and the balance thereof certified ; that is to first mortgagees upon the footing of wilful
say, first the amount of the proceeds of sale cer | default. He not only put that forward in his
tified on account No. 4, together with the sum , pleadings, but he seems to me to have put that
if any, which may be certified in answer to as his case before the learned judge, and I think
inquiry No. 1 ; and secondly, the sum due on the | he was entirely wrong in this respect until the
indenture of mortgage as certified in answer to moment when Mr. Neville asked for the inquiry
account No. 2. Let interest be computed upon in lieu of the disallowance of 8951. I think
the said balance at 5 per cent. per annum from that he was absolutely wrong at the hearing
the 5th May 1887, and certified accordingly ; and before the learned judge ; therefore I think he
let the plaintiff be charged with the amount of ought to pay the costs up to and including that
the account No. 3 (that is, the cost up to and hearing. T'he subsequent costs caused by the
including the hearing), and to or from the said I inquiry we deal with by making them follow the
March 1, 1890 .) THE LAW TIMES. ( Vol. LXII., N . 8. - 21
CT. OF APP.] THE ATTORNEY-GENERAL v. EMERTON AND OTHERS. [Cr. OF APP.
erent. Under the circumstances there will be which the court have made the order now asked
no costs of the appeal. for, and have said that it is usual. Now , with
Solicitors for the appellants, Lane, Monro, and regard to any expressions of that sort that may
Soutter. have been made use of before the rule came into
Solicitor for the respondent, F. J. Thairlwall. existence, they would be quite immaterial; as
soon as the rule was drawn up, the court could
not look beyond it. With regard to expressions
that have been used since the rule, I do not think
Wednesday, Nov. 27, 1889. that they were intended to convey what is sug
(Before Lord ESHER, M .R ., LINDLEY and LOPES, gested . The question must be what construction
L .JJ.) is to be put upon the words of the rule . The rule
THE ATTORNEY-GENERAL v. EVERTON AND says : “ An appeal shall not operate as a stay of
OTHERS. (a ) execution or of proceedings under the decision
ORIGINAL MOTION . appealed from , except so far as the court appealed
from , or any judge thereof, or the Court of
Practice - Appeal- Stay of proceedings as to costs | Appeal, may order." The expression “ may
- Undertaking bu solicitor to refund - Absolute | order " has been held to mean “ may or may not
discretion in court - Order LVIII., r. 16 . order," unless there is something to the contrary
There is no settled practice to stay proceedings as in the context of the section or rule where the
tonotcosts, pending an appeal, if the solicitor does words are used . If we were to hold that this
give an undertaking to repay them should | stay of proceedings as to costs, unless an under
the appealbe successful. Such a practice would taking is given , is an established practice, it would
limit the absolute discretion as to a stay given to alter the effect of the rule. In the absence of
special circumstances it would take away our
the court by Order LVIII., r. 16 ,and could not, discretion
therefore, be binding. to refuse & stay of proceedings as to
This was a motion on behalf of the Crown for alter costs. I think that the court has no power to
an order directing the defendants'solicitor, if the thing the effect of the rule. I decline to say any.
costs of the proceedings in the Queen 's Bench exceptasthatto the how the rule should be carried out,
Division and Court of Appeal still unpaid were each and every court has absolute discretion in
and that there is no settled
paid to him , to give an undertaking to repay practice under case, rule, and that there is no
them in tbe event of the appeal to the House of power to make athepractice contrary to the rule.
Lords being successful.
Upon an appeal by the defendants against a It is said that there is no reported case in which
judgment of the Queen 's Bencb Division in such an order has been refused. I am not
favour of the Crown on an information preferred answerable for the reports, but I do say that in
by the Attorney-General, the Court of Appeal many cases in this court we have refused to make
reversed the decision of the Queen 's Bench it. I do not accept the view that this conditional
Division , gave judgment for the defendants with stay has ever been laid down by any court as a
costs, and refused to stay execution pending an practice of the court ; but if any court bas erer
appeal to the House of Lords. laid down such a practice, it has exceeded its
The above motion was now made upon the authority . I think that the rule was made in the
ground that it was the invariable practice, where terms in which it is in order to get rid of the
an appeal was presented , and there was no stay former practice by which an appeal was a stay.
of execution as to costs, for such an undertaking In this particular case there are circumstances
to be required . The motion was also supported which seem to me to make it right that the order
by evidence that one of the defendants was in asked for should be made. It is a suit by the
such circumstances as to make it improbable that Crown against two defendants with respect to
he would be able to pay any costs if the appeal rights of foreshore, in which the defendants have
succeeded . succeeded. The Crown has appealed to the House
of Lords.
The Attorney-General (with him Ingle Joyce), the The costs amount to a large sum . If
Crown through their solicitor pay those coste,
for the Crown, referred to they would be entitled to recover them by execu
Merry v. Nickalls, L . Rep. 8 Ch. App. 205 ; tion if they are successful in their appeal. But
Morgan v . Selford , 4 Ch. Div. 338 ; in that case they ought to have the security of
Wilson v. Church , 39 L. T. Rep. N . S. 413 ; 12 Ch .
Div . 454 ; both defendants ; they ought to be able to issue
Ashbee v. Appleby, W . N . 1878, p. 20. execution against either, and it is no answer if
Stuart Moore for the defendants. they cannot go against one to say that they can
go against the other. With regard to one of the
Lord ESHER, M .R .- In this case an application defendants in this case , we are satisfied that the
is made to this court that a solicitor, who is acting
Crown could not recover their costs from him if
for the respondents in an appeal from a judgment they were successful. We therefore think that it
of this court, may be ordered to give an under is not unjust in this case that we should order, as
taking to refund the costs paid to him in the to such part of the costs as have not yet been
event of the appealbeing successful. That appli. paid , that they are not to be paid unless, the
cation is made under rule 16 of Order LVIII. It respondents' solicitor will givehis personalunder
must therefore be an application to the court to taking to refund them if the appeal should be
stay the proceedings as to costs unless the solici. successful.
tor will give the undertaking that is asked for. LINDLEY, L .J. - I am of the same opinion . I
It is said that a practice has arisen for the court protest against the notion that it is right on the
to make this order in every case in which notice part of the court to limit by an established
of appeal is given ; and cases have beenen cited
cited inin | practice the discretion that is lodged in the court
( ) Reported by A. 1 . BITTLESTON, Esq., Barrister-at-Law . I by a rule of court. I think that it is not compe
22- Vol. LXII., N .8.) THE LAW TIMES. [March 1, 1890.
Chan. Div .] Re RHODES ; RHODES v. RHODES. [CHAN. Div .
tent for the court to place a limit upon the future | Held , that it was not proved that the placing of the
exercise of its discretion under the rule by laying 1 lunatic in an expensive asylum was a necessary.
down a practice with regard to it. I am aware Held also, that it was not proved that the payments
that that is sometimes attempted to be done. It made by A . B. were not in the nature of a gift.
saves trouble. A judge, instead of considering Summons dismissed with costs.
the particular circumstances of each case, can This was an action brought by the next of kin of
then say that he must follow the established Eliza
practice. In my opinion that is wrong. With estate Charlotte Rhodes to have the personal
of the said Eliza Charlotte Rhodes adminis
regard to the present case, I think that there are tered
circumstances which make it just and right that Charlesby Rhodes, the court. The defendant, Arthur
was the administrator of the
the order should be made. estate of Eliza Charlotte Rhodes,who
intestate.died
The onintes
LOPES, L .J. - This is an application under 7th July 1881 a spinster and the
Order LVIII., r. 16 , for a stay of proceedings as tate was of unsound mind for many years before
to costs pending an appeal to the House of Lords, her death , but she was never so found by inquisi.
unless the solicitor will give his personal under tion . The defendant, a nephew of the intestate,
taking to refund the costs if theappeal is success took out letters of administration of the estate on
ful. I will not read the rule again. It confers a the 5th May 1884 . The defendant was also
discretion upon the court appealed from to order executor of his father, the late Charles Henry
that an appeal shall operate as a stay of proceed Rhodes, and he claimed to be entitled to retain
ings when and so far as the court shall direct. out of the intestate's estate a sum of about
It would be acting contrary to that rule, if we 10801. in respect of expenditure by his said late
were to say that there is a practice which limits father, Charles Henry Rhodes,and since his death
the discretion given by the rule to the court. by himself, for the maintenance or benefit of the
With regard to the present case, I think that intestate during her said unsoundness of mind.
there are facts which justify us in making the And the defendant also claimed to be entitled to
order asked for. It appears that, owing to the
circumstances of one of the defendants, the Crown pay various sums of money to other persons in
respect of similar expenditure. It appeared that
loses the security of that defendant for the repay the intestate was confined in a private lunatic
ment of costs ; and, as a plaintiff is entitled to asylum
have the security of both defendants where there 1855 till, at a yearly cost of 1401., from the 6th Nov.
her death in 1881. Her own incomewas
are two, that is a ground for requiring the defen not sufficient to defray this annual expenditure,
dant's solicitor to give an undertaking to repay and her brother Charles Henry Rhodes paid the
the costs if the appeal is successful. yearly deficiency until his death in July 1875,
Motion allowed . and the defendant Arthur Charles Rhodes and
Solicitor for the Crown, The Solicitor to the his brothers and sisters paid the annual sum
Treasury . required after their father's death . The action
Solicitor for the defendants, F. E. Goodhart. was commenced in 1885 , and on the 16th Jan.
1886 judgment was given , and, among other in .
quiries, an inquiry was ordered as to the mainten
ance of the intestate in the asylum , by whom the
HIGH COURT OF JUSTICE, expense of maintaining the intestate was borne,
and whether repayment of the sums expended
CHANCERY DIVISION . should be allowed out of the estate of the intes
Wednesday, Nov. 27, 1889. tate, or whether such payments were in the
(Before Kay, J.) nature of a gift. On the 17th July 1889 the chief
clerk made his certificate and disallowed all the
Re RHODES; RHODES v. RHODES. (a ) payments made by Charles Henry Rhodes, the
Lunatic - Maintenance - Necessaries-- Implied defendant Arthur Charles Rhodes and his brothers
contract. and sisters out of their own moneys for the main
A lady, a lunatic, not so found by inqui tenance of the intestate.
sition, had certain property of her own, which This summons was then taken out on the
produced a small income. Her brother A . B . 22nd July 1889 by the defendant Arthur Charles
placed her in an asylum at the cost of 1401. a Rhodes asking that the certificate of the chief
year, being more than the lady's private clerk might be varied or altered as follows,
income. A . B . died , and his son C . D . and other namely , that so much of the said certificate that
members of the family continued the maintenance said " that the estate of Charles Henry Rhodes is
of the lunatic at this sum . On the death of the not entitled to be repaid the sum of 7921. 108. 10d .,
lunatic intestate, C . D ., as excecutor of A . B . and and that no sufficient evidence has been laid
administrator of the intestate, claimed to retain before the chief clerk to show whether or not
so much of the lunatic's estate as would repay the Charles Henry Rhodes made any payments with
extra cost of the maintenance of the lunatic the intention of making a gift of the same, might
defrayed by these persons. In an administration be varied , and that it might be declared that the
action brought by the next of kin against said
C . D., the chief clerk refused to allow the pay . HenrysumRhodes
of 7921.
was108.not10d.
paidpaidwith
by the
the said Charles
intention of
ments made by these persons towards the main . making a gift of the same, and that the same may
tenance of the lunatic. 0 . D . then took out a be retained by the said Arthur Charles Rhodes as
summons to vary the chief clerk's certificate by | legal personal representative both of the said
allowing this extra expense to be repaid out of the Eliza Charlotte Rhodes and of the said Charles
lunatic's estate, on the ground that the payments Henry Rhodes ; and that the said certificate
were for necessaries. might be further varied so far as it stated that
(a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law . | the said Arthur Charles Rhodes was not entitled
March 1, 1890.) THE LAW TIMES . [Vol. LXII., N . 8. -23
Chan.Div .] Re RHODES ; RHODES V . RHODES. [Chan. Div.
to be repaid out of the estate of the intestate the contract being by implication of law . It is there
sumsof $81. 6s. 3d ., 551. 98. 4d., and 1731. 158. 9d . fore not an answer to say that a lunatic cannot
paid by him out of his own moneys or out of himself contract. An infant cannot contract so
moneys received from his father's estate or from as to bind himself, yet the law does bind him
his brothers and sisters ; and that it might be by a contract for the supply of necessaries. But
declared that the said Arthur Charles Rhodes is the question on that point has been considerably
entitled to retain the same sums out of the estate argued and discussed, and there is a considerable
of the said intestate Eliza Charlotte Rhodes.” body of anthority upon it which is of great
Renshaw , Q .C . and W . F . Phillpotts for the weight. Take, first of all, the case of Howard v.
defendant A . C . Rhodes. — The defendant is a son Digby in the House of Lords (2 Cl. & Fin . 634).
of Charles Henry Rhodes, the brother of the The lunatic had been so found by inquisition , but
intestate ; the intestate was confined in a private the claim madewas for necessaries supplied before
lunatic asylum from the 6th Nov. 1855 till her the lunatic was so found. Lord Brougham in that
death on the 7th July 1881. A . C . Rhodes took case said : “ Upon what ground are all these
out letters of administration , and is the legal allowances made ? Not from kindness, not from
personal representative of Charles Henry Rhodes. charity, not for the convenience of the parties ;
The action was commenced in 1885 ; the statement but because they are debts - because in the eye of
of claim was delivered on the 3rd June. A that court, be it a court of law or of equity,or the
sum of 10801, was retained for the maintenance Chancellor sitting in Lunacy , they are valid deots
of the intestate. The applicant claims to retain incurred by the insane person , and are discharged
as administrator of the estate of the intestate, by the justice of the court." The point camebe
and as legal personal representative of his father, fore Lord Jnstice (then V .C .) Knight-Bruce in
80 much of the estate of the intestate as would the case of Wentworth v. Tubb (1 Y . & C . C . Cas.
repay the sums expended by his father and by 171), where the bill was brought by the adminis
himself to maintain the intestate : trator and creditor of the lunatic against the
Howard v . Digby, 2 Cl. & Fin . 634. heir-at-law of the lunatic, who was also a lunatic,
[Kay, J. - Have I jurisdiction ! ] Yes, for neces and his committee, praying payment out of a
saries : certain real estate which had descended from the
Pe52Gibson, 25 L. T. Rep. N . S. 551; 7 Ch. App. being deceased to the defendant, the heir-at-law , there
; no personal assets. The claim was founded
Re Marman 's Trusts, 38 L. T. Rep . N . S. 797; 8 Ch. on a report made by themaster in the lunacy of the
Div. 256 . deceased, by which he found that the deceased had
[KAI, J. - If A . B . pays money out of his own been maintained and provided with necessaries
pocket in the case of a lady a lunatic not so found at the sole expense of the plaintiff from the issue
byThereinquisition , is the money so paid a debt P] lunatic. of the commission in lunacy to the death of the
is no direct authority : Knight-Bruce, V .C . said : “ The debt,
ReWeaver, 48 L . T . Rep . N . S. 93 ; 21 Ch . Div. 615 ; if it is one, became due from the lunatic by
Re Webster, 51 L. T. Rep. N , S. 319 ; 27 Ch. Div. operation of law ; or, in other words, upon a
710 ; contract raised by implication of law . If I were
Pope on Lunacy, p. 239 ; satisfied that there could be no such contract
Wentworth v. Tubb, 1 Y . & C . C . Cas. 171 ; that there could be no liability so raised - it would
Bazter v. Lord Portsmouth , 5 Barn , & Cr. 170. be my duty to dismiss the bill ; but I am not so
(KAY, J.- Chester v. Rolfe, 23 L. J. 233, Ch.] A satisfied ." He therefore directed an inquiry,
contract is implied : and the case came before Lord Lyndhurst, L .O .,
Nelson v. Duncombe, 9 Beav. 211 ; and is reported in 6 Jur. O . S . 980. The Lord
Manby v . Scott, 1 Sid . 112 ;
Vane v. Vane, 34 L T. Rep . N . S. 613 ; 2 Ch . Div . Chancellor said during the argument : “ If a
party applies money for the benefit of a lunatic
121.
There is power to allow these payments under with his consent and without fraud, it is a debt
the original jurisdiction of the court. [KAY, J. which can be enforced against the lunatic . The law
There is no proof that these extra payments constitutes itadebt for the benefitofthe lunatic,and
ifhe dies it is payable outof his estate. The ruleap
were necessaries ] : plies only to necessaries, and there are several
Wentworth v . Tubb , 2 Y . & C . 537 ; decisions to that effect, which have always been
Wentworth v. Tubb, 6 Jur. O . S. 980. acquiesced in .” Now , I comment on these words.
The administrator is not barred : The words " with his consent" can hardly have
Thompson v. Cooper, 1 Coll. 85. been used by the Lord Chancellor, because the
Villar, Q .C . and Curtis Price for the respon consent of a lunatic would have been a nullity .
dent. He is also reported to have said : “ Where neces
KAY, J. - In my opinion , the chief clerk's cer saries are furnished to a lunatic, and no fraud or
tificate is perfectly right. There is a question of imposition is practised upon him by the party
considerable interest and importance whether furnishing them , the lunatic is bound to pay for
any man who supplies necessaries for a lunatic them as being a debt due from him to such party ;
can recover the costs of those necessaries at law andif a debt upon his decease, his estate is charge
or in equity as a debt against the lunatic, on the able with it ." He then reads the words of Lord
ground of there being an implied contract on the Brougham which I have read , and says : “ Lord
part of the lunatic raised by implication of law | Brougham therefore considers them as debts due
that there should be such repayment. Now , I from the lunatic, and , if debts, they are a charge
confess for myself that I do not feelthe difficulty. upon the estate." And he dismissed the appeal.
The contract is implied on the part of an infant In the case of Williams v. Wentworth (5 Beav.
who cannot enter into any binding contract at all ; 315), thematter camebefore Lord Langdale, M .R .,
and yet a binding contract is implied on the part who said : “ It was argued in this case that
ofan infant where necessaries are supplied , the l however beneficial to the lunatic the expenditure
24 - Vol. LXII., 7. S.] THE LAW TIMES. (March 1, 1890 .
Chan. Div .] Re Rhodes; RHODES v. RHODES. [CHAN .Div .
may have been , yet,as the lunatic was incapable “ That is only an interlocutory observation . It is
of contracting, no debt could be constituted ; but difficult to see how there can be an implied con
I am of opinion that, in the case of money ex . | tract with a lunatic, if he is incompetent to make
pended for protection of the person and estate of an express contract. It is not always safe to
the lunatic , the law will raise an implied contract, | report interlocutory observations of judges ; they
and give a valid demand or debt, against the are very liable to be misunderstood .” If I may
lunatic, or his estate, and that under the circum . respectfully say so, the reporter ought to have
stances of this case a debt was constituted , and remembered that before he reported that inter
that payment of it may be obtained out of the locutory observation of the late Master of the
real estate, if the personal estate be insufficient | Rolls. In giving judgment, the Master of the
any other conclusion would , as it appears to me, Rolls said : “ It is not necessary to decide the
be extremely dangerous, as well as contrary to question whether there could be a legal debt in
the principles upon which several cases bave been this case ; for myself, I reserve my opinion on
decided. That wbich is necessary for the pro that point, which appears never yet to have been
tection of the person and estate of the lunatic distinctly decided ." * Brett, L .J. says : “ A ques.
may wellbe subject to question and consideration ; tion has been flushed - if I may use the word - in
but when a demand is made in respect of a neces. this case which it is not necessary to decide, viz .,
sary of that kind, I do not see how it is to be whether, if a person supplies necessaries to a
distinguished in principle from a demand arising lunatic, knowing of the lunacy at the time, a
in respect of the supply of food and clothing . A contract on the part of the lunatic to pay for them
debt is constituted by reason of a contract,which , | can be implied . I give no opinion on that point.
in such cases, the law will supply , and it rests, as It has not been fully argued to -day , and it
I conceive, upon a far better foundation than the appears to me to involve a very difficult point of
rule which has sometimes been referred to that law , which I do not think has ever been settied
a man shall not be allowed to stultify himself.” by authority. For my own part, I should doubt
Again the point came before Knight-Bruce, V .C . whether , in favour of a person who knows of the
in Wentworth v. Tubb (2 Y . & C . O . Cas. 537), lunacy , you can imply a contract to pay for a
where the costs on an unsuccessfultraverse of an supply of necessaries to a lunatic." But in a late
inquisition of lunacy were allowed out of the case (Brockwell v . Bullock , 22 Q . B . Div . 567) a
lunatic's estate. Then the affirmance of the de. medical man brought an action in the County
cision on the other point by the Lord Chancellor Court against a lunatic in respect of services
is noted . The Vice-Chancellor says : “ I appre. rendered in an inquiry into the state of the
hend the law to be, that if a man is alleged to be defendant's mind. The defendant, however,
a lunatic, whether truly or not, he may employ was found a lunatic , and then the medicalman ,
(as far as he can be said to exercise volition on not being a physician , brought an action for his
the subject) a solicitor, not only to resist the charges against the lunatic and his committee .
commission , but afterwards for the purpose of The County Court judge non-suited the plaintiff
traversing it, and that, although the proceedings because of sect. 11 of the Lunacy Act 1862, hold .
fail, the lunatic's estate is liable for the costs, ing that the action was not maintainable, and the
subject to this : that if anything fraudulent or Queen's Bench Division dismissed an appeal from
unfair - or perhaps I may go as far as to say the County Court. Then the case came before
frivolous or litigious - appearsto havetaken place the Court of Appeal, and Lord Esher, M . R . said
on the part of the solicitor, the court may say that sect. 11 did not take away any right of
that no debt arises.” Then in a later case of action which would otherwise have existed , and
Nelson v. Duncombe (9 Beav. 211) Lord Langdale ! then he says : " Under these circumstances, the
says : “ The objection is made to the jurisdiction .
It is said that, as no lunacy has been found, there
only question for us seems to be whether, assum
ing that the defendant was not a lunatic at the
can be no implied contract, and in the absence of time of the plaintiff's employment, or that such
contract the court has no jurisdiction to adjudi. employment of the plaintiff was a necessary, the
cate upon the claim . It is, I think, true that in action might be maintained . It seems to me that
all cases of implied contract which have been before the statute the action might in either of
decided there has been a lunacy actually found ; these cases have been maintainable.” That is a
but it has not been determined that this court distinct authority that an 'action could lie for
will not take notice of what is done in respect of necessaries supplied to a lunatic against the
the property of persons lunatic though not so lunatic and his committee. Then later on he
found, or that a contract may not be implied for says : “ If it be shown that the defendant Bul.
the supply of necessaries to such persons.” Then lock was a lunatic when the plaintiff was em .
there is the case of Re Gibson (25 L . T . Rep . ployed, then I think that, in order to succeed, the
N . S . 551 ; 7 Ch . App. 52), in which Mellish , L .J . plaintiff must show that his employment was a
says : “ A lunatic cannot contract for his main necessary - a matter which may give rise to diffi.
tenance, so whoever maintains him becomes a cult questions." I can only say of these authorities
creditor by implied contract." I have read a - I do not know whether there are others or not,
considerable body of authority in support ofthat no others are brought to my attention - the large
proposition, and, among others , the authority of preponderance is in favour of the principle that
Lord Brougham in the House of Lords, and the anyonewho supplies necessaries for a lunatic may
well-considered opinion of Lord Lyndhurstsitting maintain an action even at law for these neces.
as Lord Chancellor, besides the authority of saries, and that upon an implied contract with
Knight-Bruce, V .C , and Lord Langdale twice re the lunatic - a contract which the law will imply
peated . But in the case of Re Weaver (43 L . T . notwithstanding the lunacy. But in this case
Rep. N . S. 93 ; 21 Ch . Div. 615), the late Master the realquestion is, Arethese necessaries? What
of the Rolls sitting in the Court of Appeal, com happened is this : This lady was a lunatic, and
menting on that statement of Mellish , L .J. says : I she had certain property of her own which pro
March 1, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8. - 25
CAAN. Div.] Re Frost ; Frost v. Frost. [Chan . Div.
duced a small income, and her brother placed her will, dated the 19th March 1870,made the follow
in an asylum at 1401, a year. She might have ing devise in favour of his daughter Emma
been placed for very much less than that. But Frost and her children :
her brother thought it right to pay a larger sum , I give to my sons John Frost, Edwin Frost, and
and, after the death of her brother, his son , with Albert Frost all those my closes of land and heredita
other members of the family ,continued the main - | ments situate in the parish of South Brent aforesaid
tenance of the lunatic at this large sum . But which are described in the 7th schedule of thismywill,
now a claim is made before me that the extra to hold the same unto and to the use of my said sons
John Frost, Edwin Frost, and Albert Frost and their
expense was a necessary for the lunatic. It was heirs during the life of my daughter Emma Frost
very generous of her brother to place her in without impeachment of waste, upon trust so long as
this asylum ,and hemight,had he lived , have been she shall continue unmarried to permit her to receive
very likely to maintain her there ; but that the the rents and profits thereof to her own use, but in case
extra expense was a necessary is not proved at she rents
shall hereafter marry, then upon trust to receive
all to my satisfaction. Another thing is this : the and profits thereof, and pay the same to my
said daughter Emma Frost for her separate use , free
The allowance made by the brother and the other from the debts, control, or engagements of any husband
members of the family seems clearly to have been whom she may hereafter marry , and her receipt alone
an allowance which they never expected to be to be a good discharge for the same ; and after the
repaid . There is no evidence which satisfies me decease of my said daughter Emma Frost, then to the
that any of these parties expected any repayment. use of any husband whom she may hereafter marry and
How far a feeling of kindliness towards their his assigns during his life without impeachment of waste,
and from and after the decease of the survivor of them
relative may have actuated them , I do not know ; the said Emma Frost and of such husband to the use of
but there is nothing to show that they had the all and every or such one or more of the children of my
smallestexpectation of being repaid , or of making said daughter Emma Frost for such estate or interest
this & debt against the estate of the lunatic. and subject to such charges and in such manner without
prejudice to the executory devise over hereinafter con
This application must be refused with costs. tained as my said daughter Emma Frost shall by deed
Solicitors : Grover and Humphreys; Spence, ordefaultwill notwithstanding Coverture appoint, and in
of appointment, and so far as no such appoint
Gibson, and Co. ment shall extend, to the use of all and every the
children or child of my said daughter Emma Frost who
shall be living at the time of the death of the survivor
Wednesday, Dec. 4, 1889. of them the said Emma Frost and such husband of the
(Before Kay, J.) said Emma Frost or shall have previously died leaving
issue then living , their , his , or her heirs and assigns, if
Re FROST ; Frost v. Frost.(a ) more than one in equal shares as tenants in common ;
but in case no child of the said Emma Frost shall be
Contingent remainder - Possibility on a possibility living at the death of the survivor of them the said
- Rule againstperpetuities - Remoteness. Emma Frost and such husband or shall have previously
By his will, made the 19th March 1870, testator died leaving issue then living, then to the use of such
of my sons and
derised freehold land to the use of trustees and of my other daughters as shall be then
| living or shall have previously died leaving issue then
their heirs during the life of his daughter Emma | living, their, his, or her heirs and assigns, if more than
Frost, in trust for his daughter for her separate one in equal shares as tenants in common.
uge, and after her death to the use of any Emma Frost was unmarried at her father's
husband she might thereafter marry , and after death , but in 1872 was married to Robert Tyley ,
thedeath of the survivor of his daughter and her and
husband to the use of the children of his daughter issue.died in May 1872 without having had any
as she should appoint, and in default of appoint Robert Tyley died in Oct. 1888 .
ment to the use of the children of his daughter The will then made the following dispositions
who should be living at the death of the survivor of residue :
of his daughter and her husband , orwho should I give to my said sons John Frost, Edwin Frost,and
be previously dead leaving issue then living, their Albert Frost, their heirs , executors, administrators,
heirs and assigns, in equal shares, as tenants in and assigns, all the rest and residue of my real and
common ; but if there should be no such child , be
personal estate and effects, upon trust as soon as may
after my decease to collect and get in
then to the use of such of his sons or other such part of
daughters as should be then living,or should have my residuary personal estate as shall consist of money
previously died leaving issue then living, their and also my residuary real estate, and to apply the
heirs and assigns, as tenants in common . The proceeds to be received therefrom in payment of my
mortgage and other debts, funeral and testamentary
will contained a residuary devise. Emma Frost expenses and legacies, and upon trust to divide the net
survived the testator,and after his death married surplus of such proceeds which shall remain in their
Robert Tyley , and died in 1872 without issue. hands unto and equally between my said eight children,
Robert Tyley has since died . This was an origi. Wm. Bennett Frost, John Frost, Edwin Frost, Albert
nating summons, raising the question whether Frost, Thomas Frost, Ann Maggs, Betsy Amos, and
Emma Frost, their executors, administrators, and
the limitations after the death of the survivor of assigns , in equal shares as tenants in common ; but in
Emma Tyley and her husband were valid or case my residuary estate shall be insufficient to pay my
just debts, funeral and testamentary expenses, theen
not.
charge the deficiency in equal shares on the closes of
Held , that, as the daughter might have married a land
person unborn at the testator's death, the limita favourand hereditaments hereinbefore devised to or in
of my said eight children .
tions in default of appointmentafter the death of The testator died in 1872, leaving his eight
the daughter and her husband were void for children surviving him .
remoteness, and thatthe lands fell into the residue
This summons was taken out to ascertain
and were disposed of accordingly . whether, according to the true construction of
ORIGINATING SUMMONS. the will of the above-named Thomas Frost the
Thomas Frost,who died in April 1870,by his elder,dated the 19th March 1870 ,the land by the
(a) Reported by Francis E .ADY, Esq., Barrister-at-Law . I said will decised upon trust for the benefit of the
26 — Vol. LXII., N. 8.] THE LAW TIMES. [March 1, 1890.
CHAN . Div.] Re FROST ; FROST v. FROST. [Chan. Div .
said Emma Tyley, formerly Emma Frost, for her | E . Sugden says : “ A remainder may be pre
life had in the events which had happened vented from taking effect, but it can never lead
become subject to the trusts in the said will to remoteness." The House of Lords affirmed
declared concerning the testator's residuary real that decision , and Lord Brougham expressly says
estate, and what persons were in the events which that the law respecting perpetuities cannot apply
had happened then beneficially entitled to the to contingent remainders. [KAY, J. referred to
said land or the proceeds of sale thereof, and in Re Finch ; Abbiss v. Burney, 44 L . T. Rep. N . S.
what proportions respectively, the question being 267 ; 17 Ch. Div . 211.] In Abbiss v. Burney the
whether the limitations over after the death of limitations were all equitable, and the decision
Emma Tyley, formerly Frost, were or were not in that case has never been extended to legal
void for remoteness. remainders. [KAY, J. - Is not the limitation a
Badcock for the summons. — The gift over after possibility on a possibility ? His Lordship referred
the death of Robert Tyley in default of appoint to Whitby v. Mitchell, not then reported , since
ment by Mrs. Tyley is void for remoteness. The reported 61 L . T . Rep . N . S . 343 ; 42 Ch. Div.
case comes exactly within Re Harvey ; Peek v. 494. ] That doctrine only forbids a limitation to
Savory (60 L . T. Rep . N . S. 79 ; 39 Ch. Div. 289) ; an unborn person for life with remainder to the
Cotton , L . J. says, page 298 , Ch. Div. : “ The gift issue of such unborn person , and this is what is
is to a class not to be ascertained till the death meant by the rule against perpetuity applied to a
of the survivor of the daughter and her husband contingent remainder referred to in the autho
present or future," and the gift there was declared rities cited against me.
to be void. In this case the husband might not Badcock in reply. - Cole v. Sewell has never
|
have been born at the testator's death . No doubt boen extended to any case in which there was
Cole v . Sewell (4 Dr. & War. 1 ; 2 H . of L . C . 186)
no previous estate tail. From the remarks in
will be relied upon as establishing that the rule Sugden's Law of Property, page 120, it seems
against perpetuity does not apply to legal that Lord St. Leonards was relying on the pre
remainders ; but the decision in that case vious estate tail,and Lord Cottenham 's judgment
depends upon the fact that there was a previous in the House of Lords was entirely based on
estate tail, the barring of which at any time the fact that the contingent remainder was
would have destroyed the subsequent estate. always barrable . Fearne, 10th edit. 501, es
There is no estate tail here. In Catilin v. Brown presses the view that contingent remainders
(11 Hare, 327, 372), which was decided after Cole which tend to a perpetuity are void . [KAY, J.
v. Sewell, Page Wood , V .C . says : " I apprehend referred to Mainwaring v . Baxter, 5 Ves. 458 ;
that a contingent remainder cannot be limited as and Beard v. Walcott, 5 Taunt. 395 .] Cole F.
depending on the termination of a particular Sewell is discussed in Jarman on Wills, 4th edit.,
estate whose determination will not necessarily 1881, vol. 1, p. 258 ; vol. 2, Appendix, p. 845. He
take place within the period allowed by law ." fomed to
also referred to
These limitations come expressly within the • Humberston v. Humberston, 1 P. Wms. 332.
definition of a perpetuity quoted with approval
by your Lordship from Lewis on Perpetuities in KAY, J. - I believe it would not be at all adran
London and South -Western Railway v . Gomm tageous to reserve my judgment in this case,
because, as far as I know , theamountof authority
" A Lfuture
(46 . T. Rep . N . S.which
limitation 449 ; will
20 Chnot
. Div.
. . 562),as
. neces is not very extensive, and I have no doubt that
sarily vest within the period fixed and pre counsel have called my attention to the most
scribed by law . . . and which is not destruc important cases. The limitation under this will
tible by the persons for the timebeing entitled is in this form : [His Lordship read the limita
to the property subject to the future limitation.” tions to trustees during the life of Emma Frost.]
Cole v. Sewell has never been extended to a case toNowthemtheand
estate to trustees was specially limited
in which there was no estate tail. If the present their heirs during the life of Emma
gift is an executory devise, it is clearly void the Frost. Therefore it is a legal limitation only to
for remoteness. use of any husband she may afterwards
marry ; and after the death of the survivor of
Aldred Rowden for persons in the sameinterest. Emma Frost and such husband to the use of the
W . J. Lee for persons entitled under the gift children of Emma Frost as she shall appoint
over. - This is a good contingent remainder. without prejudice to the executory devise over
The limitation to the testator's sons and other hereinafter contained . [His Lordship read the
daughters was a good alternative contingent clause as above set out, and proceeded :] Now the
remainder, and was ready to vest on the death of question is, whether that limitation to the chil
Robert Tyley. In Butler's note to Fearne on dren of Emma Frost living at the time of the
Contingent Remainders, 10th edit., 1844, p . 565, '| death of the survivor of herself and her husband
the law is stated to be that the remoteness of a ' with the gift over in default to other persons is
remainder, however great, was no objection on its good . It is very clear that if it were a limitation
creation if the remainder would vest in posses of personal estate, or by way of executory devise ,
sion immediately on the determination of the it would offend against the rules against perpe
preceding estate. See also Williams on Real tuity , because Emma Frost was unmarried at the
Property, 13th edit. (271, 276 ). In Cole v. Sewell date of this will. She might have married after
(4 Dr. & War . 28 ) Sir E . Sugden says : “ Where a the death of the testator a person who was not
limitation is to take effect as a remainder remote born in his lifetime, and it might therefore have
ness is out of the question ." (KAY, J. - Remainder been a limitation to Emma Frost for life ,
to A . for life, remainder to his eldest son for life remainder to a person unborn for his life , with a
(A . having no son), then if A .'s eldst son die contingent remainder to the children of Emma
without issue living at his death, remainder over. Frost living at the death of that unborn person ,
Is that a good remainder ? ] Yes, on page 29 Sir i or such of them as should be then dead leaving
. March 1, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 27
Chan. Div . ] Re FROST ; FROST v. FROST . [Chan , Div.
issue then living, with an alternative limitation | never be such a person as an unborn person who
to other persons, still to be living at the death was to take for life. That was an obvious con
of that unborn person, or leaving issue then tingency . Besides that, there was another con
living. That clearly would be a limitation which tingency. There might never be issue of that
would offend against the rules against perpetuity , person . Therefore there was a double contin
because it would tie up the estate not merely gency or a double possibility . I quite agree that
during the life of Emma Frost, who was in exis. the contingency in this case is not of that kind
tence at the death of the testator, but during the precisely ; but is not the mischief the same!
life of Emma Frost's husband, who might pos There is the double possibility . There might
sibly not be living at the death of the testator. never be an unborn husband . - I mean a husband
But it is said : “ This is not an executory devise, of Emma Frost unborn at thedeath ofthe testator.
but simply a legal limitation by way of contin Then , if there were, the other contingency, which
gent remainder, and therefore the rule as to per is to take effect upon his death , might never
petuities does not apply to the case at all." Let happen . There you have a double contingency ,
it be so . No doubt contingent remainders were or a double possibility , as the old lawyers would
invented long before the rule against perpetuities, have said . I confess I think that this limitation
and they were not originally subject to any such would have been held to fall within the same doc
rule . But they were subject, before this rule was trine, and would most probably have been held
invented , to another rule, which was thus ex . void if the ingenuity of lawyers had ever imagined
pressed in the old legal language - that you could such a limitation . But if it is not void upon that
not limit a possibility upon a possibility ; and the ground, it is certainly void as a perpetuity, if the
familiar illustration is, that you could not limit rule against perpetuities applies to the case ; and
by way of legal devise or conveyance to A ., an I have to ask myself the question , whether the
existing person , for life, with remainder to his rule against perpetuity applies to the case or not.
unborn son for life, with remainder to the | Lord St. Leonards in Cole v. Sewell used
children of that unborn son . That last remainder | language which has been read as meaning that
was void , because, according to the phrase used | the doctrine of remoteness never could apply to a
by the old lawyers, it was a possibility upon a pos. contingent remainder ; and the same language, or
sibility. Now , I think there is no question that something like it, is also used in what I have
this is the law to this day , although the reason read from Butler's note. But in every one of
for it has been contested by modern lawyers, and these cases the language refers simply to the case
a learned argument on thepoint may be found in of an estate for life, or an estate tail, limited to a
that very valuable book, the late Mr. Williams's person in esse when the limitation takes effect.
Treatise on the Law of Real Property . I lately | If this is so, it is quite clear that no contingent
had to consider the case, and I decided that the remainder, to take effect upon the determination
rale exists to this day. I find in Butler's note to of that estate, could be exposed to any objection
Fearne on Contingent Remainders, at p . 565 of on the ground of being too remote. But none of
the 10th edit. (1844 ), this statement : First of all, that language contemplates the case of there
he deals with the doctrine of perpetuities or being interposed a possible estate for life to a
excessive restraint upon alienation, and he says : person not in existence, and a contingert
“ No question of perpetuity could arise at the remainder over on the death of that person .
common law , or under the statute De Donis. It However, I do not at all agree that, under the
has been shown thatafter the statute De Donis ,and law of this day, there cannot be any application of
before the introduction of executory uses, future the rule against perpetuities to remainders. I
estates could only be created by way ofremainder. find in Fearne on Contingent Remainders, in the
The remoteness of a remainder, however great, edition already referred to, on p . 502, this state
was no objection to it on its creation . If the ment of the law : “ Here, indeed , it may not be
erent upon which it was to rest took place during improper to remark , once for all, that any limita
the continuance of the preceding estate, or at the tion in future, or by way of remainder, of lands
instant of its determination , the remainder would of inheritance, which in its nature tends to a
rest in possession immediately on the determina perpetuity, even although there be a preceding
tion of the preceding estate ; if the event did not vested freehold so as to take it outof the descrip
take place during the continuance of the prece tion of an executory devise, is by our courts con
ding estate, or at the instant of its determi. sidered as void in its creation .” Here, then , is a
ration , the remainder would wholly fail of clear statement of the law , in a book of great
effect. During this period , therefore, of our law , authority , that the rule against remoteness will
all inquiry respecting perpetuity was out of the be applied to contingent remainders as well as to
question . The cases of a possibility upon a possi. | contingent remainders by way of executory devise,
bility may be considered as exceptions from this and I take the meaning to be this : There are
rule. They proceeded on a different ground, and limitations which would have been void under
gare rise to this important rule : that, if land is the old law ,because they would have been treated
limited to an unborn person during his life, a as possibilities upon possibilities, and the like
remainder cannot be limited so as to confer an limitations would now be void , but perhaps for a
estate by purchase on that person 's issue." There different reason - viz.,because they offend against
the rule is confined , no doubt, to that person 's what is known by our modern law as the rule
issue. I read the note, because it recognises that against perpetuity . I think , therefore, on the
the rule exists, and bas as much force in the pre | whole, that the balance of authority is, that this
sent day as when it was originally invented. limitation, although a legal limitation , is void ,
What was the reason of that rule ? Asexpressed because it offends against the rule against per
by the learned lawyers of that day, it was on the petuity . There will be a declaration accordingly ,
ground of a possibility upon a possibility. What and that the lands in question fall into the
does that mean ? It means that there might residue.
28 — Vol. LXII., N. 8.] THE LAW TIMES. [March 1, 1890.
Chan. Div.] Re DALE ; STUBBS v. DALE. [Chan . Div .
Solicitors : H . Queckett Louch, for Louch and | Gurdon for thewidow . — The delay has not been
Son, Langport; Prideaux and Sons, for J. R. caụsed by my client.
Poole and Son , Bridgwater. D . L. Alexander for the plaintiff.— The widow
hitherto has been represented by the same
counsel as the other defendant ; she now appears
Nov. 16 , 23, and Dec. 7, 1889. separately. There is no suggestion on the part of
(Before Kay, J.) the widow that the proceedings were unnecessary ,
and there is no evidence of improper conduct on
Re Dale ; Stubbs v. DALE. (a) the part of the trustee, nor any reason shown
Administration action - Inquiries — Unnecessary | why he shonld not have his costs :
and improper — Rules of Court 1883, Order
LXV., r. 38. Farrow v. Austin, 45 L. T. Rep. N . S. 227 ; 18 Ch.
Div . 58 ;
This case came before the court for further con Re29Love; Hill v. Spurgeon, 52 L. T. Rep . N . S. 398 ;
Ch . Div. 348.
sideration , and the defendants asked that the Cur. adv. vult.
plaintiff might be ordered to pay the costs of the Dec. 7. - Kay, J. delivered the following written
action . The plaintiff was the sole executor and judgment. — This case now comes before the
trustee of the will of George Dale, a grocer. The court for further consideration. The defendants
property had been realised in the action , and the ask that the plaintiff may be ordered to pay the
total amount of the proceeds was about 3701. The costs of the action . The plaintiff is the sole
testator died in 1878 , having by his will left all executor and trustee of the will of George Dale .
his property upon trust forhis wife duringwidow The testator was a grocer in a small way ofbusi
hood , with power to carry on the business, and on ness. His property has been realised in the action ,
her death or marriage, upon trust for sale , the and the total amount of the proceeds is about
residue to be divided among his children and the 3701. He died in 1878, having by his will left all
issue then living of any deceased . On the 30th his property upon trust for his wife during widow
May 1879, the writ was issued in this action . In hood, she maintaining and educating such of his
April 1880 the statement of claim was delivered , children as should be unable to maintain them
in which the number and names of the testator's selves for the timebeing ,and he empowered her
children were stated , the only reason given for the during widowhood to carry on his trade of a
action being that difficulties had arisen in the grocer, and to have the use of the stock - in -trade
administration of the trust. The widow and
Joseph Dale, an adult son , were the defendants. and effects employed in the business, she
On the 17th Nov , 1880 the plaintif applied for keeping up the same to the value at the time
of his death , and he gave power to bis trustees to
and obtained an order for accounts and inquiries. close the business if not profitably carried on . He
The certificate was not made until the 5th June also gave her all his furniture, plate, linen, china ,
1889. and effects in his dwelling-house during her life
Held , thatmany of the inquiries, particularly that or widowhood . On her death or second marriage
concerning the children , were unnecessary and he directed his trustees to sell and convert all his
improper. real and personal estate, and to divide the residue,
Held , however , that the suitbeing instituted, and, after payment ofdebts, among such of his children
the order for accounts and inquiries made before as should then be living as and when they re
the General Orders of 1883 came into operation , spectively attained twenty -one, and the issue then
the trustee, under the old practice, was not so livingofanydeceased children takingtheir parents'
much to blameasto be ordered to pay the costs. shares equally amongst them , and he directed
Held , that it was a case to which the new rule , that the shares of his daughters should be in
Order LXV., r. 38, of the Rules of Court 1883 trust for them during their respective lives for
applied . their separate use, with remainder to their
This was the further consideration of an adminis. children. The testator died on the 30th Jan .
tration action commenced in May 1879 by the 1878 . The executor and trustee issued the writ
sole executor and trustee of the will of George in this action on the 30th May 1879. In April
Dale, and the question was, whether the plaintiff, 1880 he delivered a statement of claim , which
having regard to the fact that the action was in . stated that the testator left eleven children , all
stituted before the General Orders of 1883 came of whom were living, and four of whom were
into operation , should or should not be ordered to minors, and giving the names of all such cbildren .
pay the costs of the action. The facts sufficiently It has a general statement that difficulties had
appear from his Lordship's judgment. arisen in the administration of the trust, but no
D. L. Alexander for the plaintiff. special reason for instituting the suit is given .
Mulligan for beneficiaries other than the On the 17th Nov. 1880 the plaintiff applied for
and obtained an order for accounts and inquiries,
widow . — The plaintiff should be ordered to pay including, amongothers,the following. An inquiry
the costs of the action. The action was absolutely whether the testator's wife, Emma Dale, is living
useless, and was not prosecuted with diligence, or dead , and, if living, whether she has married
and some of theinquiries were quite unnecessary : again , and, if so , when and with whom , and if
Re Ormston ; Goldring v. Lancaster, 58 L . T. Rep. she be dead , when she died, and whether she con
N . S. 74 ; confirmed on appeal, 59 L . T. Rep. tinued the testator's widow up to the time of her
N . S. 594 ; death . An inquiry what children the testator
Bartlett
817 ;
v.'Wood, 4 L. T. Rep. N . S.692 ; 9 W . R . had , and when they were respectively born , and
Rules of Court 1883, Order LXV ., r. 1 ; whether they are all now living, or, if any of them
Brown v. Burdett, 60 L . T. Rep . N . S. 520 ; 40 Ch. aredead, when they respectively died , and whether
Div . 244 . they left any, and if any what, issue respectively,
(a) Reported by FRANCIS E . ADY,Esq., Barrister- at-Law . T and whether such issue are living cr dead , and
March 1, 1890 .) THE LAW . TIMES. (Vol. LXII., N . S.- 29
Chax . Div.] Re DALE ; STUBBS v. Dale. [Chan. Div.
when they were respectively born, and if any of , must have been a costly one, were, I think, unne .
such issueare dead , when they respectively died . cessary and improper. Notwithstanding the
Then follow theusual accounts of personal estate. action, the widow was allowed to carry on the
An inquiry whether the testator was at the time business, to get in the debts due to it, and to pay
of his death carrying on the business or trade of a the debts of the testator and maintain the
grocer or provision dealer, and, if so, where, and children , all of which she seems to have faithfully
what was the value at the time of his death of done. It was the bounden duty of the trustee, if
the stock in trade and effects employed by him he was justified at all in commencing this action ,
therein, and whether such trade or business to prosecute it with all proper diligence, and to
has been carried on by the testator's wife put the parties out of the misery of a Chancery
since his death , and, if so, under what circum . suit as soon as possible. But the suit was insti
stances, and whether the same has been and is tuted and the order for accounts and inquiries
being profitably carried on and conducted i made before theGeneral Orders of 1883 came into
by her. Then follow accounts and inquiries | operation , and I cannot say that under the prac.
as to real estate. An inquiry whether any, and , | tice which then existed the trustee was so much
if so, which , of the testator's children are unable to blame that he should be ordered to pay the
to maintain themselves. An inquiry of the par . defendants' costs. Moreover, as I have pointed
ticulars of the furniture and effects in and about out, the suit has been adopted for some pur.
his dwelling -house at the time of his decease. poses by the family and the real estate has been
To this action the widow and Joseph Dale, one of sold since the widow 's marriage under the order
his adult sons, weremade defendants. The certi of the court. I think it is a case to which the
ficate was not made until the 5th June 1889 . I new rule (38a of Order LXV.)applies, and I direct
find that the first proceeding in chambers was a taxation of the costs of the plaintiff as between
on the 22nd Dec. 1880. In 1881 there were seven solicitor and client, and the costs of the defendant,
attendances and adjournments between January under that rule, and I request the taxing master
and August. In 1882 there were two. There to be so good as to have regard in making that
were three in each of the years 1883 and 1884 . | taxation to the small amount of the estate and to
On the 10th June 1884 the widow married . In the other matters mentioned in this judgment, a
1885 there were eight attendances, three of which copy of which should be supplied to bim . Under
were summonses. In 1986 there were four, in 1887 that new rule of Order LXV ., if he sees fit, he can
there were three, in 1888 there were twenty -two, award a lump sum for costs, and apportion it
and in 1889 there were five. Noone ever doubted among the parties. I must treat the daughter
who the children of the testator were, but the Mary Ann as having died without issue before
inquiry was nevertheless worked out, and on that the widow married again ; her share, if any,
inquiry six affidavits were filed, to which there would be so small that it would not pay the
were twenty-four exhibits. The result is that the expense of any further inquiry. The value of
children now living are those mentioned in the the stock - in -trade and effects of the business at
statement of claim , and those only . Mary Ann , the testator's death is found to be 741. There
one of them , it is found, went to Van Diemen 's was also some furniture, which it is said has been
Land in 1847, and has not been heard of since worn out. The certificate does not find that the
1867. All other children of the testator died 741. is part of the outstanding estate, and the
infants so young that they could not have left children do not seek to charge the widow with
issue. I have asked for the bill of costs of the this annount or in respect of the furniture. The
plaintiff's solicitors in this action. It has been costs allowed by the taxing master against the
supplied ,and I find that the costs claimed, includ . estate must first be paid . Three guineas found
ing disbursements, are 1591. 98. 73., but this does due from the plantiff must be set off against so
not seem to includeauctioneer's charges. Besides | much of his costs. The residue must be divided
this they claim 91. 198. 4d . for obtaining grant of into tenths, two of which must be carried to the
probate. That makes 1691. 98., and that amount, respective accounts of the two children who are
together with the auctioneer's charges and the still minors, subject to the trusts of the will as to
costs of the defendants and other parties attend. daughters' shares. The rest will remain to the
ing,will nearly exhaust this small estate. The credit of the widow for life, with remainder to
certificate finds that eight of the children - that the other eight children subject to the settlement
is, all who were adult except Mary Ann - made of daughters' shares. It must be invested and
an agreement on the 16th March 1882 with the the incomepaid to the widow for life with liberty
widow that she should pay to them 201., and should to apply. The two other shares of minors must
incur no forfeiture of her estate under the will be invested and the income paid to the widow for
if she married again . The agreement provided their maintenance during their minority, with
that the proceedings in this action should be con . like liberty to apply.
tinued until such accounts and inquiries should
SolicitorsStaffordshire
be taken as might be required by the court, and | Kidsgrove. : Lewis and Sons,for Thomas
: H . Tyrrell andSherratt,
Son .
a new trustee appointed in the place of the plain
tiff, who desired to retire ; that the costs and
expenses of and incidental to this action should
be charged on the estate, and an application made
to the court to raise them by mortgage. The
plaintiff was not a party to this agreement. I
have looked into the affidavits in this case, and
there seems to me to be no sufficient reason for
throwing this small estate into Chancery . The
inquiries which I have specially mentioned , par.
ticularly that concerning the children , which i
30 _ Vol. LXII., N . S.] THE LAW TIMES. [March 1, 1890.
Chan . Div. ] RO METROPOLITAN COAL CONSUMERS ASSOCIATION ; WAINWRIGHT' S CASE. [CHAN . Div .
July 23, Dec . 9, 11, 16 , and 19, 1889. Ipany to becomemembers of the council, and the
(Before KAY, J.) statement in the prospectus that they were
Re METROPOLITAN COAL CONSUMERS ASSOCIATION members of the council, which also involved their
being shareholders, was untrue. The applicant
LIMITED ; WAINWRIGHT'S CASE . (a ) is entitled to have his contract to take shares
Company — Shareholder - Prospectus - Misrepre rescinded on three grounds : (1) The persons
sentation Contract to take shares -- Rescission named in the prospectus as members of the
Interest on deposit - Special damage - Rate of council had given no authority to place their
interest . names on the prospectus; (2) the names were
Motion on behalf of W . asking that his name withdrawn before the allotment of shares to
might be removed from the list of shareholders Wainwright; (3 ) the council was not properly
of the company. Applicant alleged that he had appointed :
been induced to apply for shares on the faith of a Derry v. Peek , 61 L. T. Rep. N . S. 265 ; 14 App.
Cas . 346 ;
statement in the prospectus that certain gentle New Brunswick Railway Company v. Muggeridge,
men were members of the council of adminis 3 L . T. Rep . N . S.651 ; 1 Dr. & Sm . 362 ;
tration, which statement was untrue, and that Re The Life Association of England Limited ; Blake's
certain material facts were suppressed from the case, 34 Beav. 639 ;
prospectus. Re Scottish Petroleum Company ; Anderson 's case,
Held , that the statement was 80 materially untrue 43 L. T. Rep. N . S. 723 ; 17 Ch. Div. 373 ;
Re Scottish Petroleum Company : Wallace's case. 49
as to be calculated to deceive. L . T. Rep. N . S. 348 ; 23 Ch . Div. 413.
Held, that Wi's contract to take shares must be
rescinded ,and the deposits repaid to him . Sir E. Clarke, Q .C . (S .-G .), Sir Horace Darey ,
Held , that W . was entitled to interest on the Q .C ., and Henry Terrell for the company.
deposits paid by him from the date of such pay not [Kay, J. - I put three propositions : (1) Does
ment. the prospectus mean that these per
Heldfast, that the court was not bound by a hard -and sons were members of the council ? (2) Was
rule as to the rate of interest, and that, that true ? (3) What authority had the com
having regard to the present mercantile rate of the pany to publish the names of these persons to
interest, 4 per cent.was sufficient. public as being members of the council? ]
This was a motion on behalf of Mr. William TheyHallows referred to
v. Fernie, 18 L . T. Rep. N . S. 340 ; 3 Ch .
Wainwright asking that his name might be
removed from the list of shareholders of the [KAY,App. 471.
company. Wainwright alleged that he had been Rep . N .J.-S . Scottish Petroleum Company, 49 L . T.
348 ; 23 Ch. Div. 413.]
induced to apply for shares on the faith of a Portal v. Emmens, 35 L, T . Rep. N . S. 882 ; 1 C . P .
statement in the prospectus that certain gentle Div . 664 ;
men, and in particular Lord Brabourne, Rear Re North Kent Railway Company ; Kincaid 's case, 23
Admiral Mayne, and Sir Stuart Hogg were L. T. Rep. N . S. 460 ; 11 Eq. 192 ;
members of the council of administration of the Re Teme Valley Railway Company; Forbes's case,
company, which statement was untrue, and that 19 Eq. 353.
certain material facts were suppressed from the Marten , Q . C ., in reply, referred to
prospectus. London and Southern Counties Land Company, 54
The company was registered on the 31st. Jan. L. T. Rep. N . S . 44 ; 31 Ch. Div. 223 ;
1889 with a capital of 250,0001., divided into Re Homer District Gold Mines ; Ex parte Smith , 39
20,000 preference shares of 101. each , and 50,000 Ch . Div. 546 ;
ordinary shares of 11. each . A prospectus dated the Portuguese Consolidated Copper Mines Limited , 42
Cb . Div . 160 ; and
7th Feb . 1889 was sent to Wainwright on the Arts , 97 and 99.
11th Feb ., and the same day be applied for Cur. adv. vult.
twenty -five preference shares and fifty ordinary Dec. 16 . — KAY, J.delivered the following written
shares. The shares were allotted on or about
the 14th Feb., and Wainwright paid the deposits judgment. - A motion has been made by Mr.
upon them . Wainwright to remove his name from the register
The case came on on the 23rd July 1889,but was of shareholders in the Metropolitan Coal Con
adjourned until the Michaelmas sittings, on the sumers' Association Limited , on the ground of
ground that Wainwright was abroad, and counsel misrepresentation in and suppression of material
for the company wished to cross -examine him on facts from theprospectusof the company. There
his affidavit, Kay, J. permitting such adjourn are a number of similar motions by other share
ment upon terms as to costs. The remaining holders which are awaiting the result of this
facts are fully set out in his Lordship's judg . application . The prospectus in question is dated
ment. the 7th Feb . 1889. It states in red letters on the
Marten , Q .C .and George White for Wainwright. | 31st outside that the company was incorporated on the
- The persons named in the prospectus as seventeen Jan . 1889,and then in black type the names of
members of the council were not actual share administration gentlemen are given as the council of
holders of the company, nor had they been ap is stated in red. type On the top of the first page it
that a considerable portion
pointed members of the council in the manner of the capital has been
prescribed by art. 99 of the articles of associa subscriptions are invitedprivately taken up and
tion . [Kay, J . - You have not mentioned that material statement which isforsaidtheto balance. The
ground in your particulars.] The persons named is on the top of the second page. Itberuns inaccurate
in the prospectus had not consented to become thus :
members of the association . They consented “shall Extract from the articles of association : There
be a council of administration of not
provisionally before the formation of the com exceeding twenty-fivemembers of the association ,
(a) Reported by FRANCIS E .ADY, Esq., Barrister-at-Law . from whom shali be selected an executive and
March 1, 1890 .) THE LAW TIMES. [Vol. LXII., N . 8. - 31
Chan. Div .] Re METROPOLITAN Coal CONSUMERS ASSOCIATION ; WAINWRIGHT'S CASE . [CHAN. Div.
finance committee of not more than ten nor less , accounts, and were to meet formally once at least
than five of such members, which committee shall in every three months, some of them , not exceed
constitute the board and shall have and exercise ing ten , to be appointed an executive committee
all the powers commonly vested in directors. to perform the duties of directors. On the 11th
Themembers of the executive and finance com Jan . a long letter was written to him by Capt.
mittee also receive remuneration for their ser Barber, who had sent him those forms to sign ,
rices. Council of Administration .” Then follow and he seems to have been the most active
the same seventeen names which were printed on promoter of the company. This letter stated
the back . This prospectus was received by the that the company had not been incorporated ,
applicant on the Ilth Feb . 1889. He was struck but that a prospectus had been prepared ,and also
by the names of the council, especially ,as he says a memorandum and articles of association , and
in his evidence, with those of Lord Brabourne, that copies of them would be forwarded to Lord
Sir Stuart Hogg , and Rear-Admiral Mayne, and Brabourne, and asked to be informed if he
on the faith of their being members of the approved them . It also stated that to test the
council, he on the same day (the 11th Feb.) feeling of those who had authorised the addition
applied for twenty - fire preference shares, paying of their names to the list of patrons, the pro
a deposit of 121. 108., and for fifty ordinary spectus had been “ privately " 'issued , together
shares, on which he has paid 51. He received with a form of application for shares ; that to
his letter of allotment, he says, about the advertise the association and to solicit subscrip
14th Feb. It must have been on or after tions for shares from the general public would be
the 15th . The persons named in the pro expensive ; that the patrons were upwards of
spectus as members of the council were not actual 2000 ; that if a fair amount of capital should be
shareholders of the company, nor had they been subscribed through the private circulation of
appointed members of the council in the manner the prospectus the association would then be
prescribed by the articles, which, by clause 99, || registered ," and, if need be,advertised ; " and that
required an appointment in writing under the the writer would communicate the result of the
hands of four or more of the subscribers to the | private issue of the prospectus after a time. On
memorandum of association. What took place the 12th Jan . the memorandum and articles and
was this : On the 2nd Feb . 1889 there was a meet the prospectus containing the name of Lord
ing of the subscribers, who seem to have assumed Brabourne as one of the council were sentto him .
authority to act as a board, although by the On the 31st Jan. the company was registered .
articles Table A . to the Act of 1862 does not On the 11th Feb . the acting secretary wrote to
apply to this company. They,however, proceeded Lord Brabourne saying that the result of the
to allot shares to various persons, and it being printed issue of the prospectus was a subscrip
reported that no applications for shares had yet I tion for about 9000 shares, and calling attention
been made by several gentlemen whose names | to the necessity of the council qualifying by
appeared on the council of administration in a membership — " your election as member of the
prospectus which had then been issued, they post council will necessitate your becoming a share
poned the appointment of the council and of the holder, if only to a limited extent." The writer
board and directed the secretary to write to those asked whether Lord Brabourne would act upon
gentlemen , suggesting that they should apply for the committee, and stated that during that day
shares. Such a letter was accordingly written on additional applications for shares to the amount
the 11th Feb. On the 13th Feb. they met again of 18,0001. had been received. On the 13th Feb .
and elected as first members of the council the Lord Brabourne, having observed that the pro
seventeen gentlemen whose names were on the spectus had been published as an advertisement,
prospectus, and also three others, and they pro- | wrote asking what authority the secretary had to
ceeded to appoint a board of directors and a com - | advertise his nameas one of the council. On the
mittee of that board to allot shares. That com - | 14th Feb . Mr. Irving called by appointment, and
mittee met on the 15th Feb ., and allotted shares after some conversation, in which Lord Bra
to Wainwright amongst others, who , therefore, bourne says he stated to Irving that he supposed
could not have received his letter of allotment the council would meet before any further steps
before that day. A document, purporting for were taken , and that Irving assured him that the
mally to appoint the selected members of the council had met several times, Lord Brabourne
council, was afterwards prepared , but it seems says that he concluded he must have received
notto have been signed before the 19th Feb ., if so notice of these meetings, which he had not
soon. Then , or later, it was signed by four of observed , and he then signed applications for
the subscribers to the memorandum . With forty preference and 100 ordinary shares. Lord
respect to the three gentlemen on whose names Brabourne states that he afterwards caused some
asmembers of the council the applicant says he inquiries to be made as to the alleged meetings
relied, the facts seem to be these : Lord Brabourne ofthe council, and not being satisfied, on the 16th
early in November 1888 received some circular Feb. he wrote to Jeffry , the acting secretary,
as to a proposal to form this company, and on withdrawing his application for shares. Captain
the 14th Nov. he signed an assent to the addition Barber, he says, had an interview with him that
of his name to the list of patrons, and also the day and begged him to withhold a public with
following document : “ I am willing to become a drawal of his name from the council, and he
member of the council of administration of accordingly with held it until the 19th Feb ., when
the Metropolitan Coal Consumers' Association he formally withdrew from the council of adminis
Limited." This was appended to a printed state . | tration . Rear -AdmiralMayne signed a consent
ment that it was proposed that the association to be patron on the 6th Nov. 1888, and to be on
should be governed by a general council of the council on the 26th Nov. Hereceived a letter
administration , the members of which were at all of the 17th Jan. telling him that his name had
times to have access to the proceedings and I been omitted by an oversight from a copy of the
32 — Vol. LXII., N .8.] THE LAW TIMES. [March 1, 1890.
CHAN. Div.] Re METROPOLITAN COAL CONSUMERS AssocIATION ; WAINWRIGHT'S CASE. [Chan. Div.
prospectus which had been sent to him , but with respect to the formation and launching of
would be included in the revised prospectus, | the company. I gather that no proper meeting
which might possibly be issued to other persons of the council or of those who were willing to
than the patrons. A copy of this revised pro - | act upon the council was ever called , and I quite
spectus was sent to him , and on the 21st Jan ., in understand the surprise which some of these
answer to a suggestion that he should take shares, gentlemen expressed when they found their
he wrote saying that he was not able to assist in names advertised to the public as actual
the way of raising capital, and could do nothing members of the council. With respect to the
beyond ordering coal from the association . He gentlemen upon whose names Mr. Wainvright
went abroad two or three days afterand returned particularly relied, the proper statement in the
in March . He never applied for any shares in prospectus would have been that before the for
the company. He withdrew his consent to be on mation of the company they had provisionally
the council, and his letter of withdrawal was consented to become members of the council.
acknowledged on the 12th March 1889. Sir But even this statement ought not to have been
Stuart Hogg signed assents to be patron and a issued to the public without their permission .
member of the council, and received the letter of All that they had really assented to was the
the 11th Jan . and copies of the prospectus, private issue of the prospectus before registra
memorandum , and articles ; he received the letter tion of the company to the patronsof the intended
of the 11th Feb ., and on the 12th applied for fifty company, with their names as proposed members
preference and 100 ordinary shares, and stated he of the council. Mr. Wainwright was not one of
should be happy to act on the executive and such patrons ; there was no authority to issue the
finance committee. On the 14th Feb . he with : prospectus to him . This is not an action of
drew his application for shares unless he was so deceit. The question is not whether in pub
elected, and on the 19th Feb. he withdrew abso . lishing this prospectus the promoters were guilty
lutely from the concern . The statement in the pro of fraud. The only question is, Was the repre .
spectus of thenames ofnoblemen and gentlemen of sentation substantially untrue ? If it was, it is
position as the council of administration from | no answer to the applicant's claim for rescission
which the board of directors was to be chosen was of his contract that an untrue statement was
undoubtedly a strong, and probably the chief in made in good faith and without any intention
ducement to the public to take shares. I have no to deceive, or that in making it the promoters
doubt that any intending shareholder who read the | were not guilty of any moral delinquency. All
prospectus would understand from it that those that may be admitted. The question remains,
seventeen gentlemen had been duly appointed ; | Was it as materially untrue as to be calculated
also he would understand that they weremembers 1 to deceive ? It my opinion it was. I have come
of the association . The extract from the articles to the conclusion that the obvious meaning of
which precedes their names states distinctly that this prospectus was contrary to the facts, and
the council of administration is to consist of not that the misstatement was material. I have no
exceeding twenty -fivemembers of theassociation , doubt that the applicant understood that the
and that fire to ten of them would be the board gentlemen named were members of the associa
of directors and an executive and finance com tion and members of the council of administra
mittee. Neither of these statements as to the tion . They were not members of the association
council of administration was true. To deal with nor members of the council. At most, as I have
the three names which are now in question , none said, they had only provisionally consented before
of them was a member of the association , nor the formation of the company to becomemembers
had any of them , at the time when the applicant's of the council. They ought to have had ample
shares were allotted to him , been duly appointed opportunity ofmeeting and considering,and they
a member of the council. In fact, such an ought to have become shareholders before they
appointment was impossible,because no one could could be duly appointed on the council. Their
be so appointed who was not a member of the authority to publish to the world this statement
company. But it is argued that, as they had would not have made it true : but, in my opinion ,
consented to become members of the council, the they did not give such authority. I must order
statements in the prospectus were justifiable. that Mr Wainwright's contract to take shares
That cannot excuse the statement if it wasuntrue. be rescinded and the deposits repaid to him .
If B .makes an untrue statement concerning A . The company must pay the costs of the motion ,
which induces C . to enter into a contract, it is no except such costs as were caused by the adjourn
answer to C ., when he seeks to rescind the con ments from the 23rd July.
tract, that the untrue statement was made with Dec. 19. – By special leave the question was
A .'s consent. But the attempt is to show that argued whether Wainwright was entitled to in
the alleged consent made the statement true. I
do not agree with the argument. A statement terest on the deposits paid by him , and, if so, at
what rate .
that certain persons are members of the council, Marten , Q..C . and George White for the appli
which involves their being shareholders also , is cant. — The applicant is entitled to interest on his
a very different thing from a statement that deposit, having sustained special damage from
persons who are not shareholders have consented being deprived of his money. Reference is made
to become members of the council, which is the in Palmer's
utmost that ought to have been stated in the p . 527, to GibbCompany Precedents (4th edit.),
v. Great Southern Mysore Gold
prospectus. Moreover, the evidence satisfiesme Company, an unreported case. There are other
that the signatures of the consents before the cases :
company was formed were not intended to be Kent v . Freehold Land and Brickmaking Company,
advertised to the general public without an 17 L. T. Rep . N . S. 77 ; 4 Eq. 588 ;
opportunity being given to the personswho had Central Railway Company of Venezuela v. Kisch ,
so asserted of meeting in council and advising ! 16 L . T . Rep . N . S. 500 ; 2 H . L . 99 ;
Varch 1, 1890.] THE LAW TIMES. (Vol. LXII., N . S.- 33
Chan . Div ] Re ROBERTS ; Evans v. ROBERTS. [Chan. Div.
As to the rate of interest, it should be 5 per be paid for business done by him in relation to
cent. : such mortgage money or the mortgaged premises
Capel and Co. v. Sim 's Composition Company, | in like manner as if he were not himself in
58 L . T. Rep . N . S. 707 ; 36 W . R . 689 ;
Ross v. Estates Investment Company, 15 L. T. Rep . , terested therein
solicitor for , andperson.
another as if he were acting as
| N , S. 272 ; 3Eq. 122 ; Onthe 26th March 1889 Evans obtained an order
Henderson 'v. Lacon ,'
5 Eq. 249 ;
17 L. T. Rep . N . S. 527 ; for delivery of Roberts's bill of costs and taxation
De Bernales v. Wood , 3 Camp. 258 ; thereof. Thereupon Roberts delivered a bill of costs
Farquhar v. Farley, 7 Taunt. 592. made out according to the system of charging
Henry Terrell for the association . - The matter before the General Order under the Solicitors'
is in your Lordship 's discretion. You have the Remuneration Act 1881, and comprising all the
power to allow interest on this deposit by way of work connected with both the mortgages.
special damage, but the applicant has not shown Upon taxation the taxing master allowed the
special damage. At any rate, 4 per cent. is quite charges for preparing the 12001. mortgage, but
as much as he would have got if he had employed disallowed, amongst other items, the whole of the
themoney . profit costs of preparing the 9001. mortgage to
Kay, J. - I think the applicant is entitled to Roberts, although he allowed certain items for
interest by way of special damage, as it has work done after the execution of the mortgage,
been the course of the court to give interest in holding that such work came within the power
similar cases, and the case is one in which the of charging contained in themortgage. disallow
court may now give interest if it thinks fit, I Roberts carried in objections to the
quite agree that there ought to be evidence of ance of the items for the preparation of the mort
special damage ; but I cannot help inferring gage to himself, alleging ashis grounds of objec.
special damage from the fact that the applicant tion that the work charged for had been under
has been deprived of his money, which has re taken upon Evans's own instructions ; that the
mained in the coffers of the company — therefore work was for Evans's bcnefit in enabling him to
I think it is clearly a case for interest. I do not, borrow money ; and that he (Roberts) was pro
however, agree that I am bound by a bard -and fessionally responsible to Evans for the proper
as to the rate of interest. Interest at negotiation of the terms of the entire loan of
5 per rule
fast cent. has been allowed because that was 21001., and also for the proper preparation and
considered to be the mercantile rate of interest. completion of the second mortgage for 9001.
But it is very hard to say now that that is the (part thereof) to himself.
mercantile rate of interest when from , real bona The taxing master, however, overruled the
fide good security you cannot get more than 3 per objections, on the ground that a solicitor could
cent. I think , therefore, 4 per cent. is quite suffi . not make a profit out of his position asmortgagee.
cient,and allow interest at that rate on the sums Roberts then took out this summons to have
paid by the applicart. his objections allowed , and for a reference back
_ Solicitors : W . A. Colyer ; Claxton and to the taxing master to vary his certificate
Hamilton . accordingly.
Marten, Q .C . and Maidlow for Roberts. — There
is no authority upon the question whether or not
Monday, Aug. 5, 1889. a solicitor who prepares a mortgage to himself
(Before Kay, J.) from his client is entitled to profit costs ; but, in
Re ROBERTS ; Evans v. ROBERTS. (a ) the absence of any authority to the contrary , we
Solicitor and client- Mortgage to solicitor - Solici. | submit that the solicitor is so entitled . It seems
tor's remuneration – Right to charge profit to unreasonable that when a clientasks his solicitor
costs. advance him money on mortgage, the solicitor
A solicitor who advances money to a client on should not be entitled to charge for his time and
mortgage is not entitled to charge the mortgagor trouble in preparing the mortgage. [KAY, J.
profit costs for the preparation of the mortgage | In Sclater v. Cottam (29 L . T. Rep . 0 . S . 309 ;
3 Jur. N . S. 430) Kindersley, V .C . says that a
from themortgagor to himself . solicitor-mortgagee acting for himself in a suit in
ADJOURNED SUMMONS. defence of his own title cannot, as against a
In 1880 John Miles Evans applied to his
solicitor, Thomas Roberts, to procure him a loan
second mortgagee, claim more than his costs out
of pocket.] That case is overruled by The London
of 21001. upon property which he was about to Scottish Benefit Society r. Chorley (50 L . T . Rep .
purchase at Great Malvern . N . S . 265 ; 51 Ib . 100 ; 12 Q . B . Div. 452, 454 ;
Roberts endeavoured to obtain themoney from 13 Ib . 872 ), which decides that where a solicitor
various persons, but, finding that he could not defends an action in person and obtains judgment
procure the whole amount, he arranged to obtain he is entitled to the same costs as if he had em
12001. uf it at 4 . per cent. from a third person on ployed a solicitor. Again, where one of a body
first mortgage, and to lend the remaining 9001. of mortgagces is a solicitor, acting as solicitor
himself on second mortgage at 5 per cent. To in enforcing the security, he is entitled to profit
this arrangement Evans acceded . costs :
The purchase was accordingly carried out, and Re Donaldson , 51 L. T. Rep. N . S. 622 ; 27 Ch. Div .
both mortgages were prepared by Roberts, the 544 .
solicitor, and duly executed . Levett for Evans. - A mortgagee cannot, in the
The mortgage to Roberts contained a clause absence of express contract, affix to the mort
enabling him , and any other person interested in gaged property any burden clogging the equity
themortgage money as a solicitor, to charge and of redemption ; neither can he impose a personal
(*) Reported by E . A . SCRATCHLEY, Esq., Barrister-at-Law , I burden on his mortgagor. Themortgagee stands
34 — Vol. LXII., N . S.] THE LAW TIMES. [March 1, 1890.
Chan. Div .] BOURKE v. Davis. [Chan. Div.
in a quasi- fiduciary relation towardsthemortgagor. 1 it as a waterway ; that there had been a con
Here the mortgagee was preparing the mortgage siderable amount of boating on the reach by
in his own interest and for his own benefit, and riparian owners and by others in boats brought
therefore he is not entitled to charge for it as from a distance, chiefly for fishing, but that no
solicitor. The mortgagee can only charge the right to fish was claimed ; and that persons boat.
mortgagor for the preparation of the mortgage ing had hardly ever been interfered with .
by his (the mortgagee's) solicitor ; but here the Held, that the user had been permissive,and notof
mortgagee had no solicitor, for he did the work right, and that the defendant must be restrained
himself. I therefore submit that Evans cannot from removing the obstruction .'
be charged with any profit costs for the prepara Observations on themanner in which affidavits are
tion of this mortgage. sworn before cammissioners to take oaths.
Marten in reply . - Profit costs were allowed to TRIAL OF ACTIOX .
a solicitor -mortgagee in a redemption suit of This action was brought to decide whether
Price v. M Beth , 33 L . J. 460, Ch. there was a public right of boating on the river
Kar, J .- In this case the solicitor notonly pre Mole between Esher and Cobham .
pared the mortgage to the third person , the costs i The action was commenced by the plaintiff as
of which , being mortgagee's costs, the mortgagor riparian owner of both banks ; but he subse
has admitted his liability to pay , and therefore quently bought the bed of the river from persons
allowed them to be included in the bill, but he who had obtained it by grant from the Crown,
has also charged profit costs for the preparation and was permitted to issue a new writ relying
of the mortgage to himself. The reason why these upon the title thus acquired .
costs should not be allowed is not that of any Adjournment under Order XXXVI., r. 34, of
fiduciary relation between the solicitor and the the Rules of Court 1883 was waived , the actions
mortgagor, but that they are not mortgagor's were consolidated , and the hearing proceeded
costs at all. They are mortgagee's costs, and the with , reserving the question of costs.
only way in which they could be allowed is , if A large number of witnesses were examined ;
there is a mortgagee against whom they could and the facts as found by Kay, J. appear from
be charged , and who would have to pay them to his Lordship 's judgment.
his own solicitor, and could then charge them to Riabu . 0 .0 .. Rensham 0 .C . and Lenett for
themortgagor. But here there was nomortgagee the plaintiff , referred to Hargreaves v. Diddams
who had to pay to any solicitor. The mortgagee (32 L. T. Rep. N . S .600 ; L . Rep. 10 Q . B . 582).
has no solicitor to prepare the mortgage, for he Richard Harris, Q .C ., David Nasmith , Q .C ., and
does the work himself, and thereîore he cannot Oswald , for the defendant, contended that as the
charge any costs, because they never existed at public had access to the river at various points,
all. I therefore disallow these costs. and had boated on it as of right for many years,
Solicitors : Taylor, Stileman, and Underwood,
agents for T. and T. Roberts, Worcester; Ellis, they they
had acquired a right of way by user even if
could not land on the banks or get out at
Munday, and Bartrum , agents for William Lam the other end without trespassing. Other ri
bert, Worcester. parian owners used the whole of the river, and
they could only dothat as representing the public.
The bed of the river was in the Crown, so the
Nov . 11, 12, 13, 18, 19, 20 , 21, 25, and Dec. 3, 1889. public had the right of navigating it, and the
(Before Kay, J.) Crown could not interfere with that right. They
BOURKE v. Davis. (a ) referred to
River-- Trespass - Rightofway - Boating - Recrea Hargrave's Tracts pp. 6, 8 ;
tion - Public highway - Culde sac - Dedication , Orr-Ewing v. Colquhoun , 2 App. Cas. 839 ;
Evidence - Affidavits — Commissioner to adminis Miles v. Rose, 5 Taunt. 705 ;
ter oaths— Duty of - Rules of Court 1883, Order Murphy v. Ryan , 2 L . Rep. Ir. C. L . 143 ;
Phear on Watercourses, pp. 90 , 95 ;
XXXVI., . 34 . Blundell v . Catterall, 5 B . & Ald. 268 :
An action was brought to restrain the defendant Macpherson v. Scottish Rights of Way and Recreation
Society , 13 App. Cas. 744, 750 ;
from interfering with posts and chains which the Mercer v. Woodgate, 21 L. T. Rep. N . S. 458 ; L .
plaintiff, the owner of the bed of the river under Rep . 5 Q . B . 26 ;
a title derived from the Crown, had placed in the Mann v. Brodie, 10 App. Cas. 378 ;
river Mole to stop the waterway. There was a Marshall v . Ulleswater Steam Navigation Company,
counter -claim by the defendant, who was not a 25 L , T. Rep. N . S. 793 ; L . Rep. 7 Q . B . 166 ;
riparian owner, for an injunction to restrain any Young v. Cuthbertson , 1 Macq . 455 ;
hindrance to the passage of his boats. He based Rugby Charity v. Merryweather, 11 East, 375 , n. ;
Arnold v. Blake, L . Rep . 6 Q . B .433 ;
his claim on a public right of highway over part Trotter v . Harris, 2 Y . & J . 285 ;
of the river, noton a rightof recreation by custom . Goddard on Easements, 3rd edit. 355 ;
The evidence showed that the reach in question Mayor of Colchester v . Brooke, 7 Q . B . Rep . 339.
was not tidal; that it could not beapproached by [KAY, J. referred to Dickens v. Shaw , Hall on
boats from below ; that its depth was artificial, the Seashore, 2nd edit., app., p . 45.]
and depended onmill dams ; that it had never been Rigby in reply : - No right of way from one
used for purposes of commerce, or as a way from
one public place to another ; that there was no place to another has been proved . The riparian
owners have at most acquired private rights
public access to it at one end, and it was doubt attached to their tenements, but we say that all
ful whether there was any public access to it for boating was permissive ; there was no dedication
boats at any points ; that no one except the mill to the public :
owners had done anything towards maintaining Dyce v. Lady James Hay, 1 Macq. 305 ;
(a ) Reported by E . A . SCRATCHLEY, Esq., Barrister-at-Law . Campbell v. Lang, 1 Macq. 451 ;
March 1, 1890.) THE LAW TIMES. (Vol. LXII., N. S.- 35
Caax. Div.] BOURKE v. Davis. [Chan. Div.
Since 1820 there has never been an owner against rails, and across a narrow strip of land between
whom dedication could be presumed. the rails and the river. Again , at a place called
Cur. adv. rult. the Shrimper the road is railed off in likemanner,
leaving, however, a space through which cattle
Dec. 3.
delivered by
— The following written judgment was can be taken to the river to water . This place,
however, does not seem to have been used much ,
KAY, J. - The river Mole runs under Cobham - | if at all, as an access for boats. There is a lane
bridge and some miles further on under Esher running down to the river called Water -lane,
bridge into the Thames near Hampton Court. It which it is suggested led to a ford in former
is not tidal. Estraordinary high tides have been times before a bridge was built at Esber . There
known to affect the Thames as far as Hampton is no evidence that any one ever brought a boat
Court,but the highestknown tide would not,as the by this road and put it on the river at this place.
lepels show , if there were no obstruction , raise A great effort has been made to prove that there
the water of the Mole much beyond its mouth , was a public access to the riverside at Cobham
and not nearly so far as Esher bridge. But there bridge. This has entirely failed . The road to
are obstructions. Somedistance from the Thames that bridge cannot be reached from the river
the Mole divides into two streams, one of which without crossing the land of private owners, over
takes the name of the Ember. Across the Mole, which there is no right of way. The result is
at a point where these two streams again ap that the river Mole from Cobham bridge through
proach one another , about 800 yards from the Esher bridge to the dam at the paper mill is a
Thames, is a mill which completely stops the natural stream , whose depth , if the dam were
waterway. Higher up is another obstruction , removed , would not be sufficient even for a canoe
and again before reaching Esher bridge the river to pass between the two bridges. Its depth is
is dammed by some mills which formerly were entirely artificial, and upon this depends its
paper mills, which were burnt about 1853, and capacity for boating traffic. It is not, and never
remained unoccupied for many years until they was, a way from Esher to Cobham , or from any
were used for the manufacture of linoleum . It one public place to another. It is, in fact, a long
is proved that if the sluices at these mills were pond approachable by a high road at one or more
drawn the river between Esher and Cobham points along its course. It has never been used
bridges could not be used for boating, except in as a waterway, except for purposes of pleasure
times of flood . It would be merely a string of and recreation. The defendant has let boats for
pools united by a shallow stream . But thus hire for about eight years. He is not a riparian
dammed up there is water enough to float canoes, proprietor. The house he occupies is at some
pants, and skiffs nearly up to Cobham bridge. little distance from the river. He keeps his boats
For 100 yards or thereabouts below that bridge, by the river at the place I have described, which
however, the river is very shallow , and occasion does not belong him . He has no right of occu .
ally it is difficult to get up further. Above Cob pation there. The plaintiff is owner of an estate
ham bridge, I understand, the river is dammed which lies on both sides of the river,and for some
up again . This waterway has not been used for distance includes the opposite banks. He has
purposes of commerce. Once when a railway | recently stopped the waterway with posts and
bridge was being built somebricks were brought chains. These the defendantbroke down . Hence
down over part of it, and on another occasion arose this litigation . The plaintiff sues to pre
some poles cut by the side of the stream were vent his obstruction being interfered with . The
floated down on a punt ; but except these in defendant counter-claims for an injunction to
stances there has been no traffic on it other than restrain any hindrance to the passage of his boats.
boats for pleasure, with occasional fishing. There Originally the plaintiff sued as riparian proprie
isno access for boats from the Thames without tor, claiming as his property the bed of the river
taking them out of the water and carrying them where his land comes down to it on both sides,
over the land of private persons past the mill and half the bed where his land comes down to
dams I have mentioned. An attempt has been | it only on one side. At the hearing this claim
made to prove a right of access for boats from was abandoned and a new one set up by purchase,
the road over Esher bridge by the side of that since the commencement of the action , of the
bridge. That attempt has not been successful. soil and bed of the river all the way from Cob
I am satisfied that there is no public right of ham bridge downwards from persons who had
access for boats from the road to the river at that obtained it by grant from the Crown in 1820.
point. At the paper mills lower down a road Since that timethe property so granted has been
leads under a railway arch and thence parallel in settlement, and has practically belonged to
with the railway on the Esher side of the river successive tenants for life till the last few years.
to the paper mills. At this point boats have As the real question is the public right of using
occasionally been brought on trolleys and the river, the plaintiff was permitted to issue a
launched into the mill dam . It is disputed new writ relying upon the title to the bed of the
whether this road is public for vehicles. A foot river thus acquired derivatively under the Crown
path crosses the river, but the cart road stops at grant in 1820, the question of costs being left to
the mill. There is no evidence of any wayfarer the court. The defendant justifies his acts as one
haring used the river as a continuation of this of the public. His case is that the river from
road. Higher np the public highway approaches Cobham bridge through Esher bridge to the
the river at two points. One is where the de paper mills is a highway. He makes no claim
lendant keeps some boats. The road is separated for a right of recreation by custom . Such a
from the river by posts and rails having at one claim is known to our law , but is carefully
end a space two feet wide through which a man restricted . It cannot exist as a right in the
can pass, but boats can only be got from the road public generally , but must be confined to the
to the river by passing them over or under the inhabitants of a particular district : (Fitch v.
36 - Vol. LXII., N . S .] THE LAW TIMES. [March 1, 1890.
Chan . Div. ] BOURKE v. Davis. [CHAN . Div.
Rawlings, 2 H . Bl. 393 ; Earl of Corentry v. was suggested that by the law of Scotlard there
Willes, 9 L . T . Rep . N . S. 384.) For all the pur- | might be a public right of way from a given
poses of this case the right claimed is similar to public place, but neither terminating in a public
a right of highway on land not covered by water. place nor leading to a public place. I doubtwhether
In Orr-Ewing v. Colquhoun (2 App. Cas. 839), that can be the law of Scotland any more than it
Lord Hatherley , L .C ., speaking of the river | is the law of England." The only portion of the
Leven , a non -lidal river in Scotland, say3 : way in dispute in that case was across the park
“ There are two totally distinct and different of the appellant to the confluence of the rivers
things — the one is the right of property and the Clyde and Cart. But the Lord Chancellor said :
other is the right of navigation. The right of “ The abstract question whether the confluence
navigation is simply a right of way ." Lord of two rivers can be a terminus a quo or a terminus
Blackburn in the same case says : “ There was ad quem of a public right of way does not in the
evidence of user in this waterway by vessels , present case arise. The question here is as to a
such that similar evidence, if the question had public right of way up to , and which may ex
been as to the user of a land -way by carriages, tend beyond, the confluence — & right to go
would have established the public right." I must further on so as ultimately to reach a good
treat the claim of the defendant, therefore, as if terminus ad quem .” I have referred to the report
it were a claim to establish a right of highway on of the case in 13 Sess. Cas. (Second Series, 1180 )
dry land. Now , in the case of such a claim , a where it is stated that the claim was to a foot.
very material consideration is, by whom has the path to the confluence of the Clyde and Cart,
roadway been metalled , repaired , and maintained * and communicating with a path along the east
in order ? In a dispute as to the alleged right, bank of the Cart leading to Inshinuan bridge."
the answer to this question may be decisire. Here In Young v. Cuthbertson (1 Macq. 455) the ques .
therehas been no maintenance of the waterway tion arose upon an issue directed whether there
by anyone, except that themill owner, I suppose , existed a public right of way through the appel
to insure the flow of water to his mill, seems to lant's land to Starleyburn , and the appeal was
hare employed men to dredge out the silt or from the disallowance of exceptions to the direc
ballast as it is called . The width 'and direction tions of the Lord Justice Clerk who tried the
are defined by the banks of the river. I asked case. Lord Cranworth , L .C ., said : “ It was said
during the argument if there was any authority that the issue was objectionable for this reason ,
for saying that a lake in private grounds, touched that Starleyburn is not a public place ; but even
at one part only by a public road, could be sub. supposing that Starleyburn is not a public place,
jected to a right which would make it a highway still if the right of way went beyond it, that
by persons launching boats from the road and would be sufficient. If, indeed, Starleyburn had
boating on it for pleasure. No such authority been a mere private house to which the public
has been produced . But reference was made to had been in the habit of going from Burntisland
Marshallºv. The Ulleswater Steam Navigation and returning back again , I believe the case
Company (25 L . T. Rep. N . S . 793 ; L . Rep. would not hare properly come within the
7 Q . B . 166). That case, however, was one in description of a public right of way ; for the
which the right of navigation in the Ulleswater owner might destroy the house and shut up the
lake was admitted , although the soil of the bed way, and then there would be an end of it. But
of the lake was said to be vested in the plaintiff. here the right of way extended further. It had
How the right was acquired does not appear, nor a public terminus at each end. If Starley burn
does the actual decision touch any of the ques. were not a public place, then , in order to prove a
tions which have to be decided in this case. The public right of way, the party must prove
nearest analogy in the case of a way claimed on that the road to Starleyburn and beyond
dry land would be to suppose a tract determined Starleyburn on to Aberdour was a public road.
by an avenue of trees some miles long in the park So held the learned judge, and I quite agree."
or other land of a private owner, to which there The right claimed by the defendant in the present
was no pablic access save from a road crossing it action does not, as I have pointed out, fulfil this
at right angles, and to suppose that persons condition. There is no public access to the river
driving along that road had been accustomed, at Cobham bridge or navigable waterway beyond.
when they pleased , to turn into one or other part | Nor do I think there is any public access at
of this arenue and drive up and down it for Esher bridge, and it is doubtful if there is at the
pleasure. Would that user, however long con . paper mill. The right claimed is therefore a
tinued , make that avenue a highway, or would right of boating up and down in a part of a river
the legal inference be that such use being merely | which has no public access at one end at any
for amusement had always been permissive, rate. But it is argued that a culde sac may
which , of course, could not grow into a right ? be a highway. That is so in a street in a town
When it is sought to establish a right by evidence into which houses open and which is repaired ,
of user it is not enough to say tbat such a right sewered, and lighted by the public authority at
might be the subject of an actual grant. Lord the expense of the public. Lord Cranworth
St. Leonards, L .C ., said, in Dyce v . Lady Hay instances Connaught-place, which opens into the
(1 Macq. 312), " that it does not follow because a Edgware-road : (Young v . Cuthbertson , 1 Macq .
right may be granted - i.e., because it is grant 456 ; and see Rugby Charity v. Merryweather,
able by law - therefore it may be prescribed for." 11 East, 375 .) But I am not aware that this law
Another important fact is that the way claimed has ever been applied to a long tract of land in
is not a way from one public place to another. In the country on which public money has rever
Campbell v. Long (1 Macq . 451), Lord Cranworth , been expended . This is one obvious objection to
L .C ., said , that speaking generally “ A public the defendant's claim . I have examined the evi
right of waymeans a right to the public of passing | dence in this case with care . Many of the wit .
from one public place to another public place. It I nesses were labourers, many were very old
March 1, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8. - 37
Char . Div. ] BOURKE U. DAVIS . [CHAN Div.
persons, speaking from obviously defective andan interference will do very little barm to
recollection . Very many broke down completely anyone except to the defendant in his business
under cross-examination. The true result of the of letting boats. I cannot overlook these con
evidence is this : As far back as anyone can siderations, though they do not determine the
recollect there has been boating on this part of questions of law involved in this dispute. Upon
the river Mole. Originally it was only by the these questions my opinion is against the defen
owners and occupiers of land on the banks who | dant. His claim is to impose on land a new
kept punts, and then some few boats for the use servitude, or rather to establish a highway under
of themselves and their workmen , and lent them conditions which are inconsistent with a right of
occasionally to friends. Then by degrees and at that kind. I think the true inference from all the
first quite secretly a few persons occupying land evidence is that the use made of the river has
on the river bank began to take remuneration been permissive, and not of right. It ismaterial
for lending their boats. They did notmake any to that question that much of the evidence shows
charge , but received what the borrower chose to that those who boated on this river did so in
give. In one case , it is said , a shoulder of many cases for the purpose of fishing. There
mutton was given by a butcher for the use of a is no pretence that there is any public right
boat, though the alleged recipient denies it. In of fishing, nor any evidence that could establish
another case the boatowner, meeting a man who such a right. The fishing, then, must have
bad borrowed it, suggested to him that he had been permissive, and it is difficult to say
made no payment, and apologised for the sug- / that boating for that purpose could have
gestion by saying that it was a perquisite for his been of right. Moreover, the mode in which
son , who took care of the boat. The persons who those who let boats took remuneration shows
so began to let boats were chiefly the successive they were aware it would probably be
occupants of a cottage near Esher bridge. This objected to, if known, and that they clearly
cottage had a garden which went down to the understood that strangers only boated there
river, and within the garden was a creek leading by tolerance. It is possible that the riparian
from the river next to the bridge road, in which proprietors may be able to establish a private
boats were kept. These cottagers were intrusted right of way, or a right of boating for recrea
with the care of boats belonging to private tion for themselves and their friends by custom .
owners ; and by degrees acquired one or two I do not give any opinion on the question
boats of their own, and let or lent these in the whether there is any such right or custom .
manner I have described . Besides this, adven - | Neither would entitle the public to boat on the
turous persons from the neighbourhood of river or support the claim that it is a highway .
Walton or Thames Ditton , and sometimes from Even if the boating of the public, so far as they
London , have hired canoes and sometimes boats have used it , was not permissive, I am of opinion ,
from boat builders on the Thames, and sent them for the reasons I have given, that the defendant
on to the Mole,generally by the road to the paper has not proved that this part of the river Mole
mill, for a day 's excursion in the summer time, is a highway, and, as his claim is that and nothing
and this practice has been more frequent of late else, I dismiss his counter-claim with costs. As
years till somewhat interfered with by the the defendant is not a riparian proprietor, and
defendant's letting of boats. This growing only claims as one of the public, he has no right
practice of boating for pleasure, including fishing, to remore the obstruction placed by the plaintiff
has not been effectively interfered with till the in the river. But I must take it to be clear that
plaintiff put his obstruction across the stream . the plaintiff, when he placed that obstruction in
There is some evidence that Mr. Spicer, who the river, was acting under a supposed right to
owned land below Esher bridge, made objection the bed of the river as riparian proprietor
to persons who were not landowners on the river. which he now admits he had not. Under
One of these owners, Sir Richard Frederick , also the grant from the real owners, he has since
made objection , and since 1864 there has been a obtained the soil of the river bed, and may now
notice fixed up near the river, in one part of this maintain that obstruction against the defendant
section of it, warning persons against trespassing at any rate. There must, therefore, be an
in boats for fishing or otherwise. Probably the injunction to restrain the defendant from
riparian owners did not care to interfere with interfering with it. I give no costs of the plain
one another in boating, if they had the right tiff's action, but order him to pay the defendant's
to interfere, and it was not easy to distinguish costs of it, up to the timewhen the new writ was
strangers. The real owners of the bed of the issued . I think the evidence should all be treated
stream under the Crown grant in 1820 had no as taken on the counter-claim , except the proof
land on this part of it. They did not interfere. of the plaintiff 's title ; and the costs of the evi
Now does this evidence establish that the river dence, with that exception, must be paid by the
is a highway ? On the one hand the courtwould defendant. The summons by the defendant to
be reluctant to interfere with a healthy recreation have this action tried by a jury I refuse with
for the people, especially in a populous district | costs. There must be the usual directions for set.
like Esher , and within reach of such a city as off . I desire to call the attention of the Profes
London. On the other, care must be taken that sion to a matter of importance which has been
private property is not unduly invaded . If the forcibly brought to my notice in this case - I
defendant is right, he or any other person in mean the duty of commissioners to administer
England may launch any number of canoes, oaths where a witness is swearing to the contents
boats, barges, steam launches, or the like upon of an affidavit . In this case certain witnesses
this river, fill it with a crowd of pleasure-seekers, contradicted the statements made by them in
and utterly destroy the privacy of those who affidavits sworn in this cause in such a startling
have houses on the stream . The use at present mauner that I reqaired an explanation of the
made of it by the public is very inconsiderable ; ' mode in which those affidavits were sworn . The
38 - Vol. LXII., N . 8.] THE LAW TIMES. (March 1, 1890 .
Chan. Div.] Re ROBERTSON (a Solicitor). [Chan . Div.
commissioner before whom they were sworn
attended in court, and in answer to questions
party was obtained by the purchaser ,the petition
containing the allegation that the solicitor had
from me he informed me that he went with a “ delivered unto the petitioner hisbill of fees and
solicitor in the cause to the houses of the several disüursements ."
witnesses ; that the affidavits were not read over On motion by R . to discharge the order and stay
in his presence, and that he took no means to all proceedings thereunder :
ascertain whether the witnesses knew to wiat Held , that the allegation in the petition as to the
they were swearing. I was told by counsel that delivery of the bill was a material allegation
this mode of performing the duty of a commis. which wasnot satisfied by a constructive delivery ,
sioner to administer oaths was not uncommon . I and that there had not in fact been any delivery
must express my strong disapproval of such a of the bill to the petitioner , and that the order
practice. The commissioner's duty before he must be discharged .
administers the oath is to satisfy himself that the In Sept. 1888 certain copyhold property at Han
witness does thoroughly understand what he is well, in the county of Middlesex, one-third of
going to swear to ; and he should not be satisfied
on this point by anyone but the witness himself. which belonged to Mrs. Mary Pemberton and the
remaining two-thirds to Messrs. Burton and Bird
For this reason it has been the rule since the jointly, were put up for sale, and were purchased
time of Lord Hardwicke that the court does not
accept an affidavit sworn before the solicitor in | by Mr. Frere. Mr. Robertson and Mr. W . A .
the cause, nor his clerk , although he may be a BirdRobertson acted jointly as the solicitors in the sale,
commissioner : (Re Hogan , 3 Atk . 812 ; Wood v. Mr. acting for Mrs. Mary Pemberton
Harpur, 3 Beav. 290 ; Hopkin v. Hopkin , 10 and Mr. Burton ,and Mr. W . A . Bird for the other
joint owner of the two-thirds. Mr. W . A . Bird
Hare, App. 2 ; Duke of Northumberland v . Todd , had the conduct of the sale, and his name only
38 L . T. Rep . N . S . 746 ; 7 Ch. Div. 777, 780.) The appeared
court requires the security of an independent solicitor. on the contract as the vendors'
commissioner, and it is olvious that he ought not
to take only the statement of a solicitor in the W Mr. Frere wrote on the 19th Oct. 1888 to Mr.
. Bird , believing then that he was acting as
cause that the witness knows what is in the affi the. Asolicitor for all the vendors, as follows :
davit. Where, as in this case, many of the
witnesses are in a humble position of life , I do “time I am much obliged to you for extending the
not see how the commissioner can be satisfied day orforso.requisitions, which will be sent in a
Subject to these, I shall be glad if
without having the affidavits read over in his you will arrange
presence. If an educated man says to him , “ I | lot, so as to be ablefortotheconvey enfranchisement of this
have read over this affidavit, to the truth of I will pay your charges and theitexpenses." as freehold , and
which I am going to swear," and all the state Mr. W . A . Bird informed Mr. Robertson of the
ments are accurate, that may in some cases be purchaser's
sufficient. But I confess I wish that it wasmade was necessaryrequest, and asked him to do what
on behalf of his clients to carry out
incumbent upon the commissioner in every case
to go through
refuse to take theaffidavit with the witness,and to the enfranchisement, but did not furnish him
his oath until he was satisfied that | with a copy of the letter .
the witness understood and intended every state . Mr. Robertson accordingly took the necessary
ment in it . A greatdeal of false swearing would steps for the enfranchisement of the property so
be prevented if this were done. far as bis clients were concerned .
Solicitors for the plaintiff, Lewis and Lewis. On the 28th May 1889 Mr. Robertson was
Solicitor for the defendant, Thomas Noton . requested by Mr. W . A . Bird to send in all his
costs to him , and Mr. Robertson accordingly made
out his bill of costs relating to the enfranchise
ment addressed to his clients, Mrs. Pemberton
and Mr. Barton , and amcunting to 171. 78., which
July 19 and Aug. 2, 1889. he sent to Mr. W . A . Bird ,who subsequently sent
(Before Chitty, J.) it on to the purchaser.
SON
Re ROBERT (a Solicit or).(a) In sending this bill of costs to Mr. W . A . Bird ,
Mr. Robertson wrote saying that he was not
Practice - Costs— Taxation — Third party — Deli
very of bill - Petition of course— Attorneys and aware of the nature of the undertaking as to
Solicitors Act (6 & 7 Vict. c. 73), 8. 38. costs between the purchaser and the vendors, and
was therefore
Copyholds belonging to three vendorswere put up properly includeddoubtful what costs could be
, and he also on the 29th May
for sale, two solicitors, B . and R ., acting jointly wrote to Mr. Frere stating that he had sent his
in the sale on behalf of their respective clients, bill of costs to Mr. Bird , but that, as he did not
but B . having the conduct of the sale, and his know the terms of the undertaking, he feared
name alone appearing on the contract as the someof the costs might prove incorrect.
vendors' solicitor. The purchaser, desiring to Mr. Frere disputed the bill of costs, and
have the property enfranchised ,wrote to B .,asking Robertson
him to carry out the enfranchisement,and under out a fresh then bill
offered to withdraw it and make
strictly
taking to pay his charges and the expenses. or to obtaiu payment ofashisagainst costs
the purchaser ,
from Mr. W . A .
B . requested R . to do what was necessary on Bird , leaving him to obtain them from Mr.
behalf of his clients to carry out the enfranchise under the terms of his letter of the 19th Oct.Frere 1888 .
ment. R .made out his bill of costs as against his This was declined byMr. Frere,and a long corre
own clients, and sent it to B ., who sent it on to spondence passed between them with a view to
the purchaser. An order for taxation of this a settlement, but to no purpose, and ultimately ,
bill on the usual petition of course by a third on the 13th June 1889, Mr. Frere obtained an
(a) Reported by G .WELBY KING, Esq., Barrister-at-Law . I order for taxation of this bill on the usual
March 1, 1890.) THE LAW TIMES . [Vol. LXII., N . 8.- 39
Chan . Div .] Re ROBERTSON (a Solicitor). [CHAN . Div.
petition of course by a third party containing the is entitled to stand in the position of the mort
usual allegation , that on or about the 28th day of gagee himself. Now , delivery in the ordinary
May the said solicitor “ delivered unto the practice by themortgagee's solicitor of his bill of
petitioner his bill of fees and disbursements, which costs is not to his own client, but it is to the
the petitioner is liable to pay,” under which, in mortgagor or to the mortgagor's solicitor, and
Robertson's absence, the bill was taxed down to consequently one finds that in the common form
51. 38. in the orders there is an allegation that themort
Mr. Robertson alleged that he had never been gagor has had the bill delivered to him by the
served with the order to tas, though it was | mortgagee's solicitors. I think, for reasons which
admitted that notice of two appointments for the I am now about to state, that that is a material
27th June and the 6th July had been sent to him allegation , because there are cases in which the
by post from the tasing master's office,according bill which the solicitor delivers to his own client,
to the usualpractice. the mortgagee, is a bill which would beabsolutely
A motion was now made on behalf of Robertson right as between himself and the mortgagee ,
that all further proceedings under the order though possibly not so between himself and the
might be stayed , and that the order might be mortgagor. The mortgagee might have told his
discharged as irregular. solicitor to do certain things; the solicitor might
Oswald in support of the motion . — Robertson have explained , in his ordinary course of duty ,
was never served with the order. (CHITTY, J. “ I will do that for you ; but recollect, if it is
The order itself, which I have before me, contains done, you cannot charge the mortgagor.” The
no direction as to service. The practice, I mortgagee might say, " Well, I will have it done,"
believe, in such a case as this is that the taxing and then the solicitor delivers his bill to the mort
master should send notice of the appointment as gagee, which is a proper bill as between the two.
he did here.] The proper course is for the order That bill is not delivered , I will assume, in point
toceeding
be served by the .party obtaining it before pro of fact, to the mortgagor or his solicitor. " Can
to taxation [CHITTY, J. - The registrar, the mortgagor obtain taxation of it upon an
who has been to make inquiries of the taxing allegation that the bill has been “ delivered to
masters, informs me that the practice is that, him " ; In my opinion he cannot. I think the
where an order to tax is obtained by a solicitor delivery of the bill cannot mean a constructive
against his client, the usual form of order shows delivery of the bill, and there would be no con
that service is necessary, but that,where the client structive delivery of the bill in the case which I
getsproceeded
an order with
against the solicitor, taxation may have just put. So, also, in the case of a trustee
be without service of the order and cestuis que trust, where the trustee employs his
on the solicitor.] The allegation in the petition | own solicitor. That is an ordinary typical case.
that tbe bill was delivered to Frere, which is a In that case the trustee may have given special
material allegation, is not true, and is not satisfied | instructions to the solicitor which would warrant
by a constructive delivery , and the order is him and justify him as between himself and his
irregular on that ground : individual client, the trustee, in making certain
Re Carven , 8 Beav. 436. charges. Upon that the solicitor might draw
He also referred to out his bill and send it in to the trustee, but I
think that that could not be called a “ delivery ."
Re Becke and Flower, 5 Beav . 406 ; Certainly it cannot be said in point of fact to be
ReGrundy, Kershaw , and Co., 44 L . T . Rep. N . S . a delivery to the cestuis que trust ; and I think, in
541 ; 17 Ch. Div . 108 ; the case I am putting, it would not be right to
Ex parte Docker, 26 W . R . 633 .
hold that constructively it was a delivery of the
Farvell, for Mr. Frere, contended that the
order was properly obtained under the third bill to the cestuis que trust. There may be cases
of course in which the bill has been paid , as was
party clause by the person liable to pay, and that the case of Re Brown (L . Rep . 4 Eq. 464), a case
theallegation as to delivery in the petition was in which the bill had been paid out of the trust
satisfied by
W . A. Bird.
constructive delivery through Mr. estate . I am not putting that case at all. I am
putting the case of the unpaid bill ; but I think
Oswald in reply. justice would be done to the solicitor in such a
CHITTY, J. (after stating the facts) proceeded : case as that, and that he would be entitled to
Under these circumstances Mr. Frere has obtained charge his own individual client with the work
the common third -party order to tax, and the which he had done, though he would not have a
order contains, what seems, from the various right to charge, and could not charge, the same
forms that I have been able to look at, to be the bill as against the estate. I am not prepared to
usual and common allegation in a third -party | assent to the proposition of constructive delivery .
order, that the solicitor has delivered the bill to Of course there may be upon the facts such a
the petitioner - the person whose right to tax | case as I am going to state, that the bill is sent
of course arises under the 38th section . The to the mortgagee simply for the purpose of his
facts in the present case,however, show no direct handing it over to the mortgagor in such a way
delivery to Mr. Frere. Now , I am going to that upon the facts the court might fairly hold
decide this case on what, after all, may well be that it was a delivery ; and upon the particular
rather a narrow ground, but what I am satisfied facts before me there is certainly some ground
in point of law is the correct ground. There are for saying, in the first instance, that this bill
sereral ordinary , or what I may call " typical," of Mr. Robertson 's was sent with that view . But
third -party cases - cases where the mortgagor is then I must look at all the circumstances of the
liable to pay the costs of his own mortgagee. In case, and it appears to me that there was a right
such a case as that, where the bill is taxed as on the part of the solicitor in this case,as between
between the mortgagor on the one hand and the himself on the one hand and Mr. Frere on the
mortgagee's solicitor on the other, the mortgagor I other, to withdraw the bill and to recast it . That
40 _ Vol. LXII., N . S.] THE LAW TIMES . (March 1, 1890 .
· Chan. Div .] FRANCESCO v . BARNUM . [Chan . Div.
is , of course,one of the points in dispute. Where | Fellows v. Wood (59 L. T. Rep. N . S. 513) dis.
there has been a delivery of a bill, the solicitor cussed and explained .
cannot withdraw it for the purpose of escaping By an indenture dated the 6th Dec. 1886, and
taxation. That is the established law on the made between the defendant Helen Maude Parnell
(an infant of the age of fourteen years), therein
matter, and, if the billhad been actually delivered
to Mr. Frere, Mr. Robertson could certainly not after called the said apprentice, of the first part,
have withdrawn thebill; but in the circumstances the defendant Elizabeth Parnell, widow (the
of this case I think the allegation in the petition mother of the infant), thereinafter called the
is not made out in point of fact, and that, as I parent, of the second part, and the plaintiff (a
have explained , it is a material allegation , and teacher of stage dancing) of the third part, the
therefore, though I wish to make no unnecessary said apprentice, with the parent's consent, put
reflection on either side, the case is, in myopinion , herself apprentice to the plaintiff to learn his art,
one in which I ought first to discharge the order and with him (after the manner of an apprentice)
on the ground that there was thatmistake in the to serve from the 6th Dec. 1886 until the end and
allegation as to delivery ; and, secondly, I think , term of seven years from thence next following,
having regard to all the circumstances of the and she covenanted with the plaintiff that during
case, and to what I consider the trumpery and the term she would her said master faithfully
trifling nature of the whole thing, the justice of serve, his secrets keep, his lawful commands
the case will be met if I discharge the order with everywhere obey, that she would do no damage
out costs. to her said master, nor see it to be done of
Solicitors : Harold A . Farman ; Frere and Co. others, but that she to the utmost of her power
would forthwith give warning to her said master
of the same; that she would neither contract pro
fessional engagements nor accept such unless
Friday, Nov. 22, 1889. with the written consent of her said master ; and
(Before CHITTY, J.) that she would not absent herself from her said
FRANCESCO v. BARNUM. (a ) master's service unlawfully, but in all things
Infant - Apprenticeship deed — Covenant- Injunc. | as a faithful apprentice she would behave herself
towards her said master and all his during the
tion to restrain breach by infant. said term ; and the plaintiff, in consideration of
By an apprenticeship deed made in Dec. 1886 the faithful services of the said apprentice, core .
between a female infant of the age of fourteen nanted that he would teach and instruct the said
years of the first part, the infant's mother, a apprentice as therein mentioned . The deed also
widow , of the second part,and the plaintiff, a contained covenants by the plaintiff with the
teacher of stage dancing, of the third part, the parent that the plaintiff, in conjunction with
infantwas apprenticed to the plaintif for a term qualified assistants, would instruct the said
of seven years, to be instructed in stage dancing, apprentice in the higher branches of the
the apprentice to be paid certain sums for engage chorographic art for the term of seren years,
ments, not exceeding in any case 18. per night, and would pay the said apprentice for all choro
and the apprentice covenanted that she would not
during the term enter into any professional graphic engagements
9d . per night in London
and 6d. for and the
each matinée suburbs
during the
engagements without the consent in writing of l first three years of the term , and 18. per night
the plaintiff, and the deed provided that on and 6d. for each matinée during the remainder
failure of compliance by the apprentice with this of the term . And the deed provided that,
and other provisions of the deed , the plaintif in the erent of the non-fulfilment by the
might determine the apprenticeship, and the parent of any of the terms of the deed , or if
mother was to pay the plaintif 501. a8 liquidated (amongst other things ) the said apprentice should
damages. There was no provision in the deed misconduct herself in or out of school, or decline
binding the plaintif' to procure engagements for the plaintiff 's engagements, or should accept any
the apprentice, or to provide her with food , engagement without having previously obtained
clothes, or lodging. There was a similar the written consent of the plaintiff, or practice
apprenticeship deed in the case of another the art of stage dancing under the direction of
daughter, who was twelve years of age. The | any other teacher, the plaintiff might, by notice
apprentices having entered into engagements to | in writing to the parent, determine the appren
perform as stage dancers for the defendant B.,
each receiving one guinea per week , without the ticeship , and the parent should thereupon pay to
the plaintiff the sum of 501. as liquidated
consent of the plaintiff, he brought an action and damages.
moved for an interim injunction to restrain them Another indenture of even date, containing
from dancing, and the defendant B . from allow similar provisions, was made between the defen
ing them to dance, without the written consent of | dant Ada Parnell, an infant of the age of twelve
the plaintiff'. years, of
Held that, as the case of Gylbert v. Fletcher Parnell ofthe first part, the defendant Elizabeth
the second part, and theplaintiff of the
(Cro. Car. 159) had established that the master third part.
could not sue the apprentice on the covenants in There was no provision in the deeds binding
the apprenticeship deed purported to be entered the plaintiff to procure engagements for the
into by the apprentice , it would be wrong on a apprentices,or to provide them with food,clothes,
motion to throw any doubt on that case, and to or lodging.
grant the injunction asked for, which might leave In Aug. 1889 the apprentices, without the
the apprentices without any employment or consentParavicini,
of the plaintiff, arranged
remuneration until the trialof the action , and dant as agent for with the defen
the defendant
motion refused . Barnum , to perform as stage dancers at Olympia,
( ) Reported by G . WELBY KING , Esq ., Barrister-at-Law . each receiving one guinea per week .
March 1, 1890.) THE LAW TIMES. [ Vol. LXII., N . S. - 41
Chan . Div.] FRANCESCO v . BARNUM . [Chan , Div.
The plaintiff having become aware of this ¡ He is also compellable, by the statute of 5 Eliz.
arrangement in Nov. 1889, he commenced this C. 4, to be bound out as an apprentice. But all
action against Barnum and his agent Paravicini, the court resolved that, though an infant may
and Elizabeth Parnell, Helen Maude Parnell,and voluntarily bind himself apprentice, and, if he
Ada Parnell, for an injunction restraining the continue apprentice for seven years,may have the
defendants Helen Maude Parnell and Ada Parnell benefit to use his trade, yet neither at the
from performing , and the other defendants from common law nor by any words of the 5 Eliz . c. 4 ,
permitting or allowing them to perform , without | shall the covenant or obligation of an infant for
the plaintiff's consent. his apprenticeship bind him . Ifhemisbehave him .
The plaintiff now moved for an injunction self the master may correct him in his service, or
until the trial of the action or further order complain to a justice of the peace and have him
restraining the defendants Barnum and Paravi. | punished according to the statute ; but no remedy
cini from inducing or allowing the defendants lieth against an infant upon such a covenant;
Helen Maude Parnell and Ada Parnell to per therefore it was adjudged for the infant.” There
form as stage dancers at Olympia without the were sitting in the King's Bench when that case
written permission of the plaintiff ,and to restrain wasdecided Sir Nicholas Hyde, C .J., Sir William
the infant defendants from performing, and the Jones, Sir James Whitelock , and Sir George
defendant Elizabeth Parnell from allowing them Croke. That case has never been questioned
to perform , at Olympia or elsewhere without the from that time to this,and the case is cited in the
consent of the plaintiff. various text-books as an authority. It is in
Romer, Q.C . and Kalisch , for the plaintiff, refer Simpson on Infants,and it is in Burn 's Justice (I
referred to to the edition of 1841) treated . as an
Gilbert v . Schwenck, 14 M . & W . 488 ; authority,and no question whatever raised . Other
Fellows v. Wood , 59 L . T. Rep . N . S. 513 ; cases are cited in Burn 's Justice as being to the
Lumley v . Wagner, 5 De G . & Sm . 485 ; same effect. So that ever since the time of
Tood v. Fenwick , 10 M . & W . 195 . Charles I. it has been established that you cannot
T. L.Wilkinson for the defendant Paravicini. purportssue an infant even upon the covenants which he
Byrne, Q .C . and Lemon, for the other defen apprenticeship to enter into during his infancy in an
dants, referred to deed . Now , the covenant on
which the plaintiff is relying for the present pur
Gylbert v . Fletcher, Cro. Car. 179 ; pose is a covenant on the part of the infants that
Argles v. Heasman , 1 Atk . 518 ; they, during the apprenticeship, which is for a
Flight v. Bolland, 4 Russ. 298. term of seven years- one of the young ladies was
CHITTY, J. - In this case the plaintiff asks for fourteen and the other was twelve when they
an injunction against Mr. Barnum , two young entered into the apprenticeship - shall neither
ladies, and their mother, and in substance the contract professional engagements nor accept
injunction asked for is to prevent the young sucb , unless with the full written permission of
ladies dancing at Mr. Barnum 's entertainmentat their said master. That is , therefore, on the face
Olympia . It appears that they and their mother of it, a covenant on the part of the apprentice
(they are still infants, and the mother, being a | during the apprenticeship. That is the only part of
widow , is by law their legal guardian) have the indenture which purports to bind her, to which
entered into a contract with Mr. Barnum for I will now refer, and it follows, from what I have
certain performances to be given there. The read , unless that authority can be overruled, that
plaintiff's claim for an injunction is based upon the infant, without inquiring into the question
two indentures, one relating to one infant and the whether the contract is for the benefit of the
other to the other infant, each relating separately | infant or not, cannot be sued. That being so, if
to one of the infants, and each infant has executed the infant cannot be sued on the covenant, how
the apprenticeship instrument, and the mother can the infant be sued for an injunction ? Because
also. The plaintiff is the master of an establish the right to an injunction depends upon the legal
ment of high reputation . Each indenture is right to sue, and if there is no legal right to sue,
separable into two parts. The first part con . which appears to be the result of the authority
tains the contract on the part of the master with which I have cited, there can be no right to an
the apprentice, and the apprentice in terms with injunction. Injunction in cases of this kind to
the master ; and the second part of the instru restrain a breach of a negative clause in a contract
ment contains an agreement between the master for service is granted because, first, it is a nega
and the mother, who was, I think, in 1886 , but it tive clause ; and, secondly, because damages are
is quite immaterial, the legal guardian of the | not an adequate remedy, and it is considered
children the parent, in fact, she being the only | right in cases of that kind to interfere directly
parent at the time. Now , the deed is an appren - | by preventing a breach which the person has
ticeship deed , and it was decided in the time of bound himself not to make. Therefore, as there
Charles I. that no action would lie on an appren is no right to sue for damages, there can be no
ticeship deed against the apprentice himself. The right to an injunction . That is the case, therefore ,
statement in the case (Gylbert v. Fletcher), which against the infants. But the case with regard to
is reported in Cro. Car., p . 179, is this : “ Cove the infants does not rest there for the purpose of
nant against an apprentice for departing from his this injunction , for,without criticising the terms
service without licence within the time of his l of this instrument, the present state of things
apprenticeship. The defendant pleaded that at appears to be this : The plaintiff is not under
the time of making the indenture he was within any obligation to provide employment or wages
age, and thereupon it was demurred . It was or remuneration for the infants, and it may be
argued at the bar that the indenture should bind for I see nothing whatever to affect the good
the infant, because it was for his advantage to be | faith of the plaintiff in this case - it may be, or it
bound apprentice to be instructed in his trade. I may not be, that between this and the hearing of
42– Vol. LXII., N . 8.] THE LAW TIMES. March 1, 1890.
Chan . Div .] KING v. THE CHARING CROSS BANK. [ Q .B . Div.
this action , if it ever should be heard, he will avoiding this contract not to serve the plaintiff's
provide some employment for the young ladies. customers as being an unlawful restraint of trade.
But at the present moment there is none, and Apart from this being an apprenticeship deed ,
they have come to that age when their services, there would be ground at any rate for saying
and very likely from the training that they have that this general stipulation not to contract any
received from him ,are of value, and at the present professional engagement whatever without the
moment they have this engagement with Mr. | licence of the plaintiff was a restraint of trade,
Barnum , under which they will receive their 218. seeing that there is not a continuous employment
a week . But now , exercising a discretion , as I on the part of the plaintiff. I have only added
am entitled to do with regard to an interlocutory | this to show that I have proceeded on the footing
injunction , I think it would not be fitting to that the instrument was an apprenticeship
grant an injunction which might leave these two instrument.
young women until the trial without any remu . Solicitors : Brandon and Nicholson ; Campbell,
neration or without any employment whatever. Reeves,and Hooper ; H . Levy.
I think on the balance - for I am now going to
put it in a legal form - of convenience and incon
venience it would be wrong to act adversely to QUEEN'S BENCH DIVISION .
the infants at present. Therefore, leaving the
various questions as to the reasonableness or Wednesday, Nov 12, 1889.
unreasonableness of the terms of some parts of (Before MATHEW and WILLS, JJ.)
this apprenticeship indenture open , I think I KING v. THE CHARING CROSS BANK. (a )
ought not to grant, and I decline to grant, any | Practice - Prohibition to County Court- Applica .
injunction against these young women . That tion atchambers- County Courts Act 1888 (518-52
being so, for similar reasons I ought not to inter Vict. c. 43), s. 127 — Rules of Supreme Court
fere with Mr. Barnum . I ought not, for the 1883, Order LIX ., r. 8a - Costs — Claim exceeding
reason that I have last given on the question of 201., less than 201. recovered _ County Courts Act
convenience, to interfere as against Mr. Barnum , 1888, 88. 119 and 164 – County Court Rules 1889,
because, if I restrain Mr. Barnum from employ . Order L ., r. 20 .
ing the young women , they will be just in the
same position as if I restrained the infants from | An application for a prohibition to a County Court
going on with their performance at Olympia. may, notwithstanding Order LIX., r . 8a, of the
Rules of the Supreme Court 1883, be made, at
Then it would be idle , as I refuse the injunction
against the infants, to restrain the mother. I the option of the applicant, either at chambers
think it better to leave the rest of the case with under the provisions of the 127th section of the
as little prejudice from any judgment ofmy own County Courts Act 1888 , or to a divisional court,
at the present moment as can be. I am acting as but if made to a divisional court itmust now be
I ought to act with reference to the immediate made by notice of motion , instead of, as formerly ,
by motion for an order nisi .
motion which is before me, and I think, under Order
the circumstances of the case, I ought not to L ., r. 20 , of the County Court Rules 1889,
grant, and I refuse to grant,any injunction . But by which a County Court judge is empowered to
as there may be some matters to be tried, I will give costs on the higher scale in actions where the
make the costs costs in the action . I ought to say claim exceeds 201. and the plaintiff recovers a
a word about the case of Fellows v .Wood (ubi sup.), sum not exceeding 201., is not rendered ultra vires
which was cited as an authority for an injunction by , nor is it inconsistent with , the 119th section
against an infantwhere the infant had entered of the County Courts Act 1888, which allows
into a contract. On carefully reading the report, a County Court judge to award costs on the
I am persuaded that the defendant was not an higher scale in the three classes of actions there
theactinjunctionntice
infanted at the time whencontr was specified .
grant , and it was not a of appre APPLICATION by summons at chambers for a pro
ship ; it was a mere contract of service . There hibition to a County Court, referred by Wills, J.
is ground for thinking (I am not sure whether I to the court.
am right) that after the infancy had terminated The action was brought in the Clerkenwell
the defendant did continue to serve ; and then , County Court to recover a sum of 291., and the
although he might have vacated the employment plaintiff having obtained a verdict and judgment
at a fortnight's notice , what he did was to go for 161. 58. applied under Order L ., r. 20 , of the
away , and then , in breach of an article to be found County Court Rules 1889, for costs on the higher
in the contract of employment, he served the scale applicable to actions where the claim exceeds
plaintiff 's customers for his own benefit. That is 201. and does not exceed 501. The County Court
what he was doing , and that is what he was | judge, in the exercise of his discretion , allowed
restrained from doing. As I say, having given costs on the higher scale . The defendant then
that case considerable attention , I think as a fact applied by summons at chambers for a prohibition ,
that the injunction was not granted against an on the ground that the learned County Court judge
infant, but it was granted against a man of age, had no jurisdiction to allow costs on the higher
who, to a certain extert, appears to have acted scale unless he certified in writing under the 119th
upon the contract- whether he adopted it or section of the County Courts Act 1888 (51 & 52
ratified it afterwards I cannot say - after the Vict. c. 43), that the action came within one of
infancy had terminated . But that is a contract the classes there mentioned . The summons came
of service, and, in order that I may show what I | before Wills, J . at chambers, who referred the
have decided on the present motion clearly , I matter to the court.
have decid ed this caseupon the footing of it being Order L., r. 20, of the County Court Rules
an apprenticeship deed . In the case of Fellows | 1889, provides as follows :
V. Wood there could have been no ground for (a) Reported by ALFRED H . LEFROY , Esq., Barrister-at-Law .
March 1, 1890.) THE LAW TIMES. [Vol. LXII., N . S. -43
Q .B. Div .] KING v. THE CHARING CROSS BANK. [Q .B. Div.
In actions where the claim exceeds 201. and the plain- r. 8a, is to provide that if such applications be
tiff recovers & sam not exceeding 201. he shall, if the ì made in court they must be made by notice of
jadge shall so order, be entitled to recover costs accord motion , and not by motion for an order nisi as
ing to the higher scale in the appendix applicable to
actions where the claim exceeds 201. and does not exceed under the old practice.
501., and the defendant, if successful, shall be entitled Wills, J. concurred .
to recover costs according to the scale applicable to
the amount claimed , unless the judge shall otherwise
order.
A. Pr. Cluer for the defendants on the appli
cation for a writ of prohibition . The plaintiff in
By Order LIX ., r. 8a , of the Rules of the this case only recovered 161. 58., and the learned
Supreme Court 1883 (rule 13 of the Rules of the County Court judge exceeded his jurisdiction in
Supreme Court, Dec. 1888 ), which came into allowing him costs on the higher scale. Order L .,
operation on the 11th Jan. 1889, it is provided r. 20 , of the County Court Rules 1889, which
that empowers a judge to allow costs on the higher
Every application for a prohibition to a County Court, scale where the claim exceeds 201. and the plain
other than an application by the Attorney -General, shall tiff recovers a sum not exceeding 201., is ultra,
be brought by notice of motion served on the parties to vires, as the 119th section of the County Courts
the proceedings in the Connty Court, or such of them Act 1888 limits the power of the judge to award
as may not be applicants for the probibition . costs on the higher scale to three cases: (1) Where
The County Courts Act 1888 (51 & 52 Vict. the action involved some novel or difficult point
C. 43 ), which came into operation on the let Jan . of law ; (2) where the question litigated was of
1889, provides as follows : importance to some class or body of persons ;
Sect. 119. The judge may award costs on any scale (3 ) where it was of general or public interest.
higher than that which would be otherwise applicable The section further provides that costs can only
to the plaintiff on any amount recovered, however be awarded on the higher scale by the judge
small, or to a defendant who successfully defends an giving aa written certificate that a case comes
action
that thebrought for anycertifies
said judge amount,however
in writing small, provided
that the action | within
8 . ng the section . The rule was inserted per
involved some vovel or difficult point of law , or that the incuriam , it being overlooked that the only power
question litigated was of importance to some class or given by statute to a County Court judge to
body of persons, or of general or public interest.
Sect. 127 . It shall be lawful for any judge of the High award costs on the higher scale was in the cases
Court, as well during the sittings as in vacation , to hear there mentioned . (WILLS, J. - If the judges
and determine applications for writs of prohibition to appointed under the 1645h section can frame
any court, and to make such orders for the issuing of orders for regulating the scales of costs, cannot
such writs as might have been made by the High Court, they give County Court judges power to over
and all such orders so made by any such judge of the ride them ? ] By the section they are only
High Court, shall have the same force and effect as empowered " to frame rules and orders for regu
heretofore.
Sect. 164. The Lord Chancellor may appoint five lating the practice of the courts and forms of
judges, and from time to time fill up any vacancies in proceedings therein , and scales of costs to be
their number, to frame rules and orders for regulating paid to counsel and solicitors.” When they have
the practice of the courts and forms of proceedings done this, their powers under the section are
therein , and scales of costs to be paid to counsel and . (Wills, J. - The same section pro
solicitors, and from time to time to amend such rules, exhausted vides that the rules in force at the commencement
orders, forms,
forms, and scal and scales. . . . The rules, orders,
is in force at the commencement of that Act, of which this is one, shall continue
of this Act shall continue to be in force, unless and until to be in force unless and until otherwise pro
otherwise provided . vided . Do not those words give the rule statutory
R . T . Williams Q .C . ( E . W . Hansell with him ), authority ? ] The only object of that provision
for the plaintiff , took the preliminary objection was to keep the old rules in force until new rules
that, by Order LIX ., r. 8a , of the Rules of the should be made. He cited
Supreme Court 1883, every application for a Lumb and Co . v. Teal, 60 L . T . Rep . N . S . 451 ;
prohibition to a County Court other than an 22 Q . B . Div . 675.
application by the Attorney-General must be Mathew , J. - It is contended that Order L .,
brought by notice of motion , and that the appli. r. 20, of the County Court Rules 1889,and sect. 119
cation having been made by summonsat chambers, of the County Courts Act 1888 are in conflict. I
was wrongly made, and must fail. cannot assent to this contention . The two pro
A. R . Cluer for the defendants.— The 127th visions deal with different subjects. The rule
sertion of the County Courts Act 1888 provides applies to cases where the claim exceeds 201. and
that an application for a writ of prohibition may a less sum is recovered , and gives the judge
be made, aswell during the sittings as in vacation , power in his discretion to give costs on the scale
to a judge at chambers, and this section cannot applicable to actions where the claim exceeds
be overruled by Order LIX ., r. 8a. There is an 201, and does not exceed 501. The section applies
apparent discrepancy between the Act and the to cases of an entirely different class,and allowsthe
rule, but the latter was made for the purpose of I judge in certain specified cases to award costs on
any scale higher than that which would be other
abolishingout
carrying the policy for
applications of orders
the rulenisi,committee
and merelyin
wise applicable,however'small the amount claimed
means that applications for writs of prohibition , or recovered . Mr. Cluer contended that Order
if made in court shall be made by notice of L ., r. 20 , was ultra vires, as the judges appointed
motion , instead of, as heretofore, by an applica under sect. 164 had no power to make such a rule,
tion for an order nisi. but the rule is not a new one, and it is expressly
provided by that section that the rules in force
R. V. Williams, Q.C. in reply . at the commencement of that Act should continue
MATHEW , J. - I am of opinion that applications to be in force unless and until otherwise pro
for writs of prohibition to County Courts may be vided . New rules have been made since the
made in chambers. The object of Order LIX ., I passingof theAct,and this one hasbeen re-enacted .
44 - Vol. LXII., N . S.] THE LAW TIMES. [March 1, 1890 .
MAQ +.B.YADir..)1 ,8.6] _ THE LAW TIMES
Reg . v. BARNARDO. [Q . B. Div .
The argument therefore assumes the form that defendant received the following letter from the
if the rule had not been re-enacted it would have mother :
been ralid, but having been re-enacted , is bad ; I shall be pleased if my son is kept in Dr. Barnardo's
but this , I think , is a reductio ad absurdum . home, as I cannotafford to support him myself .
Wills, J.- I am of the same opinion . It is On the 9th Nov . an agreement was sent by the
quite clear that under the old County Courts Acts defendant to the mother which was returned
as well as under the present one County Court unsigned, and on the next day Mr. Newdigate
judges have power to make rules for regulating wrote to the defendant from Leamington , in the
costs. I am unable to see why the judges who following terms:
have power to apply certain scales of costs to About a month ago Mrs. Gossage called on me to
certain amounts recovered ,may not also say that express her desire to find a Catholic home for her boy ,
whom
the judge shall have power in his discretion to I am happy you kindly received as a waif from Folkestone.
vary in some cases the scale applicable. As to Harrow to inform you that St Vincent's Home,
-road , London , are prepared to receive him , and
the 119th section of the County Courts Act 1888 , I am writing to the Rev. Douglas Hope to effect the
I am unable to assent to Mr. Cluer's argument, transfer.
that where a new statute contains words which Six daysafter receiving this letter Dr. Barnardo
do not appear to harmonise exactly in every handed over the child into the custody of a Mr.
particular with an existing state of things the Norton, who wished , if he liked him , to adopt him
presumption is that the existing state of things
is repealed. It seems to me that we ought to as his son. This Mr. Norton resided in Quebec,
in the Dominion of Canada, and was to take
look at the general course of legislation and | Harry
practice, and that when we find that County that is Gossage back with him to his residence,
to say, out of the jurisdiction of the court.
Court judges have for many years been intrusted After
with the power to use their discretion in the of Mr.handing Norton,
over Harry Gossage to the custody
the defendant had no communi
manner provided by this rule , the Legislature cation with the child orwith him , or furtherknow
did not intend to take away that power by a ledge of his address than that he lived in Quebec.
section which does not repeal the rule in terms. In Dec. 1888 an application was made for the
I find it impossible so to read the sectiun, because transfer of the child to St. Vincent's Home, in
it applies to a subject-matter to which the rule
does not apply . The rule only applies to cases reply to which the secretary to Dr. Barnardo's
where the claim exceeds 201.; tbe section on the Home, on the 31st Dec., wrote the following
other hand applies to cases where, for instance, letter: Dr. Barnardo desires me to say that, in making the
the plaintiff seeks to establish a right, and application you have made for the dismissal of the boy
claims it may be, no more than 18. To such cases to his mother, you have forgotten that we never admit
the existing rule did not apply, and therefore the children on sectarian grounds. These homes are not
section was passed with the object of enlarging, designed for prosyletising purposes, and children are
and not of restricting as the defendant's conten never admitted unless they are believed to be in circum
stances of great necessity , under which circumstances
tion is, the power of the County Court judge. they would be admitted ' irrespectively of religious
Application refused . denominations, but having once been admitted there is
a formal agreement with the institution, formally
Solicitor for the plaintiff, W . T. Boydell. fied by the parent or guardian, and our rules do rati
Solicitor for the defendants, C . E . R . Preston . permit not
us to send a boy or girl away on religious
grounds. As, therefore, we understand that the ground
on which the application was made for the return of
the boy was that his mother desired to place him in a
Saturday, Nov. 30, 1889. Roman Catholic home, Dr. Barnardo felt himself unable
to comply with the request, and the more so as in this
(Before Lord COLERIDGE, C.J. and Bower, L.J.) case the boy 's father was a Protestant, and the boy had
Reg . v. BARNARDO.(a ) been brought up a Protestant at his father's desire.
Dr. Barnardo felt that in all probability these facts had
Habeas corpus— Issue of writ — Answer to appli not come under your notice when you applied for the
child .
cation for - Inability to obey writ. In March 1889 the disappearance of the child
Where the defendant has unlawfully parted with having become known or suspected, application
the custody of the person with respect to whom was made on behalf of the mother to Mathew , J.
an application for a writ of habeas corpus is at chambers,
made, his inability to obey the terms of the writ refused by theforlearned a writ of habeas corpue, but was
judge.
is no answer to the application for the issue of A rule nisi having now been obtained ,
the writ. C . C . M . Baker, for Dr. Barnardo,
Cock , Q .C . and
was an application for a writ of habeas corpus | showed cause. This writ will only be issued
Thisbehalf
on of the mother of Harry Gossage, the where there is a detention of the body by the
infant child of the applicant.
Thalacts of the case were as follows : In Sept. defendant. Here Dr. Barnardo has not either
1888 Harry Gossage, a child of eleven years the actual or virtual possession of the child . He
parted with the custody of the child before any
of age, was found in the streets at Folkestone, request
in a -destitute condition , and was on the 28th months from before
themother for his return,and many
this application , and Eis conduct
Sept, in the same year placed under the charge cannot be construed
of the defendant, who received him into one of obedience to the orderintoof antheattempt to avoid
his homes for destitute children, and wrote to answer to an application for a writ ofIt habeas court. is an
his mother, who was a Roman Catholic, asking corpus that the person against whom the writ is
her whether she was willing that her child should
be received into his home. On the 1st Oct. the sought to be issued cannot obey it. In Reg v.
Barnardo (61 L . T. Rep. N . S. 547 ; 23 Q . B . Dir .
(a) Reported by ALFRED H .LEFROY,Esq., Barrister-at-Law . | 305) Cotton , L .J. suggested that the facts there
March 8, 1890.] THE LAW TIMES. ( VOL LXII., N . S. - 45
Q.B . Dir. THE RIVER DERWENT. [CT. OF APP.
brought before the court might have been an the less admissible, because,according to the old
answer to the issue of the writ though they could practice in habeas corpus and mandamus, instead
not be relied upon as affording a good return to of the argument taking place substantially on
the writ when issued . In the case of Re Matthews the rule for the writ to issue, the courts used to
(12 Ir. Com . Law Rep. N . S . 233), decided in issue the writ in the first instance, and the argu
Ireland, the impossibility of performance was ments were taken on the return . But, as there
considered to be a good answer to the issue of the was an element of discretion involved in the
writ. The conduct and character of the mother issuing of writs of habeas corpus and man
ought to be taken into consideration by the court damus, and as after the writs ofbadthebeen issued all
on such an application as this : discretion of
argument as to the exercise
Re Turner, 25 L , T . Rep . N . S . 907 ; 41 L . J. 142, the court was out of place, a practice was intro
Q. B . duced to hear the arguments on the rule for the
Joseph Walton and Lankester, in support of the issue of the writ. That practice allows the court
rule,were not called upon . to give decisions based on wider considerations,
to terminate disputes more speedily , and also
Lord COLERIDGE, C .J. - In this case a rule nisi and
saves expense. The argument seems to me quite
has been granted calling upon Dr. Barnardo to contrary to all principle and practice. And not
show cause why a writ of habeas corpus should only is the argument bare of authority, but it is
not issue commanding him to have the body of contrary authority. It is contrary to the
Harry Gossage beiore us, and there to undergo decision into the of Re Matthews (12 Ir. C . L .
and receive " all things the court shall then and Rep. 233), decidedcase Court of Queen 's Bench
there consider concerning him on this behalf," in Ireland in 1859, in the
by
which , upon the application
according to the terms of the writ. That is the for the writ, the point was taken that the body
rule which has been issued against him ,and against
that rule Mr. Cock on behalf of Dr. Barnardo has for the production of which a writ of habeas
now shewn cause. Now , it is plain that this corpuswas sought wasnot in the actual possession
court must proceed entirely apart from all of the person against whom the writ was applied
religious considerations; and although it may be, for, and yet the writ was issued . Although it
and probably from someexpressions in the letters afterwards turned out that the defendant had
is, a case which has been influenced on both sides actual possession of the corpus, that case is a
by religious considerations, these are considera distinct authority in the present case. There is
tions with which the court has absolutely nothing
also the judgment of this court and of the Court
wbaterer to do except to say that the same of Appeal in the previous case of Reg. v. Barnardo
principles and no others are laid down and acted (61 L . T. Rep . N . S. 547 ; 23 Q . B . Dir . 305),
upon in cases of persons of every form of and although the decision in that case is not
religion or no religion at all. And I take the technically in point, the whole line of reasoning
liberty of saying (in a sense which will be under adopted by the learned judges shows that they
stood ) that, though this court is, 1 trust, not would have deemed it a bad reason for not
irreligious, it is certainly non -religious, and ought issuing the writ that the party had endeavoured
not in the smallest degree to be affected by such to put it out of his power to obey it . I think
considerations. Now , then , what are the facts of therefore that, as the facts of the case leave Dr.
this case ? For on consideration of those facts Barnardo's position indefensible, and as the point
of law raised by his counsel cannot be supported ,
certain consequences appear irresistibly to follow . that this writ must go.
Here his Lordship stated the facts and con BOWEN, L .J.- I entirely agree. Rule absolute.
tinued :] The question in this case is not whether
the mother is a fit person to obtain the custody
of her child , but whether this writ should go Solicitors for the applicant, Leathley and
against Dr. Barnardo, who has illegally parted Phipson .
with the custody of the child , and whether the Solicitors for the defendant, H . C. Nisbet and
pressure of this court should be brought to bear Daw .
upon him to produce before the court the child
with whom he has illegally parted. It has been
urged by counsel that,if the writ be issued , it will
be no answer on the part of Dr. Barnardo to say
that he has not got the child in his possession ,
Supreme Court of Judicature.
because that has been decided by the Court of
Appeal,(a ) and it is said that the fact that Dr.
Barnardo cannot obey the writ if it is issued is a
COURT OF APPEAL
sufficient reason why the writ should not go . Tuesday, Dec. 3, 1889.
The argument indeed comes to this, that if a good (Before Lord ESHER, M .R ., LINDLEY and LOPES,
return cannot bemade to the writ, that is a reason L . JJ., assisted by NAUTICAL ASSESSORS.)
why it should not be issued . If there were the
smallest authority for this it might be proper to THE RIVER DERWENT. (a )
consider it, but I cannot find a fragment of ON APPEAL FROM THE PROBATE, DIVORCE , 'AND
authority to support it. It is also contrary to ADMIRALTY DIVISION (ADMIRALTY).
good sense, for a person would break the law with Collision - River Thames- Vessel crossing minore
impunity if he took care, before the writ issued , Rules and Bye-laws for the Navigation of the
to put it out of his power to obey it. If this River Thames, arts. 24, 25 .
argument were yielded to it would allow of any. any. A steamship ceases to be “ crossing from one side of
thing being done without redress. It is,however, the river towards the other side ” within the
(@) In Reg. v. Barnardo,61 L . T.Rep. N . S.547; 23 Q . B .
Div . 305.
a) Reported by J. P. ABarristers-
SPINALL and BUTLER ASPINALL, Esqrs.,
at- Law .
Vol. LXII., N . S., 1582.
46 - Vol. LXII., N . S.] THE LAW TIMES. [March 8, 1890.
Cr. OF APP.] THE RIVER DERWENT. [CT. OP APP.
meaning of art. 24 of the Rules and Bye-laws for The River Derwent was at the top of Woolwich
the Navigation of the River Thames when her Reach , on the north side of mid -channel. She
stem has got so far across that it can go no was making about two knots through the water,
further, although she is still athwart the stream ; following nearly in the wake of a steamship
butwhere a vessel is swinging for the purpose of called the James Sothern, and being followed by
turning in the river with her anchor down but not another steamship. In these circumstances those
holding, she is not a crossed ship if she is still on board the River Derwent observed the Allendale,
moving towards the shore, although she may have which had previously passed the River Derwent,
gotmore than athwart, and although her stern distant about a quarter of a mile, about two to
may be swinging to the tide. three points on the port bow of the River Der.
The steamship A ., having come up the Thames as went, and lying well over on the south shore
far as Bugsby's Reach on the flood tide,was about apparently stationary. At about this time the
to turn head down, and,having whistled , her helm James Sothern was observed to begin to swing
was ported and anchor let go so that it might with her head to the north shore, and theengines
dredge, and she began to swing round. Mean of the River Derwent were stopped and her helm
while the steamship R . D .,which had been coming starboarded so as to pass under her stern. When
up the river astern of the A ., instead of taking the River Derwent had answered her helm about
any steps to keep out of the way of the A ., a point, the helm was steadied and the engines
although she saw that the A . was doing nothing set ahead dead slow . The River Derwent was
to keep out of her way in obedience to art. 24 of then in a position to pass astern of the James
the Thames Rules and Bye-laws, came on and Sothern and well clear of the Allendale, when the
collided with the A . latter was observed to be coming rapidly ahead
Held , that both vessels were to blame, the A . because, across the river, and across the course of the
being a crossing ship, she neglected to keep out of River Derwent. The engines of the River Derwent
the way of the R . D ., and the R . D . because, after were at once reversed full speed , her helm was
she saw that the A . was neglecting her duty to | starboarded , and her whistle was blown three
keep out of the way , she failed to take any steps short blasts. The Allendale and the steamer
in sufficient time to avoid the collision . following the River Derwent were hailed to go
This was an appeal by the defendants in & col. her astern , but the Allendale was now seen to have
lision action in rem from a decision of Butt, J. anchor down, and, instead of doing anything
finding their vessel, the River Derwent, solely to to keep out of the way of the River Derwent, she
came on and with her starboard side struck the
blame. stem of the River Derwent.
The collision occurred between the piaintiffs' It appeared that the Allendale's anchor was not
steamship the Allendale and the defendants' let go for the purpose of holding, but merely in
steamship the River Derwent in the river Thames order to check her round by its dredging over the
on the 19th Dec. 1888. ground.
The facts alleged by the plaintiffs were as
follows : - Shortly before 10 .20 a .m . on the 19th Themain allegation against the River Derwent
Dec. the Allendale, a steamship of 569 tons regis was, that she came up the river without keeping
ter, laden with a cargo of coals, was, whilst on a a good look-out, and that, instead of acting with
voyage from Newcastle -on -Tyne to London , in her engines, they were only stopped about two
Bugsby 's Reach in the river Thames. The Allen minutes before the collision. It appeared from
dale , which had been on the south side of mid her own engineer's log that her engines were
channel, had received orders from the coal stopped and reversed only two minutes before
derricks to bring up, and accordingly her whistle the collision , and that previously to that they
was blown three blasts, her engines were moved | had been going ahead for seven minutes.
easy ahead , and her helm was ported , and when The main allegation against the Allendale was,
she had got across mid -channel and her stem was that she had broken art. 24 ofthe Rules and Bye
eighty feet from the north shore,her engines were | laws for the Navigation of the River Thames in
stopped and her anchor was let go to swing her neglecting to keep out of the way of the River
round head down stream . Before the Allendale Derwent, whose duty it was, under art. 25, to
had finished swinging and was still heading keep her course. The defendantsalleged that the
towards the north shore, the steamship River Allendale began to turn and cross the river when
Derwent (which had been previously seen from a the she was only one and a half ship' s lengths above
half to three-quarters of a mile lower down the River Derwent, and that she was still moving
river) was observed six or seven ship 's lengths off across the river at the time of the collision . The
on the starboard quarter, and coming up the river plaintiffs alleged that she had begun to turn some
at considerable speed . Instead of going under the four to six minutes before the collision, and had
stern of the Allendale, the River Derwent was got over as far as she could to the north shore,
suddenly seen to cometo starboard,and, although and had ceased to be moving towards the shore
the engines of the Allendale were at once reversed for some appreciable time before the collision.
full speed, the River Derwent came on and with her Burt, J., having taken time to consider, gare
stem struck the Allendale on the starboard side judgment in favour of the plaintiffs , stating that
just before the engine room . the Elder Brethren differed as to the time it
The facts alleged by the defendants were as would take the Allendale to turn in the river. He
follows :- Shortly after 10 a .m . on the 19th Dec. found that at the time of the collision the Allen
the River Derwent, a screw steamship of 504 tons dale had begun to tail up the river ; that she had
register, laden with a general cargo, was in the begun to turn abont fire or six minutes before
river Thames, in the course of a voyage from the collision ; that the River Derwent was a con
Terneuzen to London . The weather was fine | siderable distance below the Allendale when she
and clear, and the tide was first quarter flood . ! turned ; that the Allendale had in fact crossed the
March 8, 1890.) THE LAW TIMES . [Vol. LXII., N . 8. - 47
CT. OF APP.) THE RIVER DERWENT. [CT. OF APP.
river before the River Derwent was so close as to when the navigation rules are to begin to apply ?
involve any risk of collision ; and that in the It is at the moment when if both vessels con
circumstances the River Derwent was alone to tinue to do what they are doing there will be
blame. danger of collision. That is the time when these
The following Rules and Bye-laws for the rules invariably begin to apply . Rule 24 is,“ steam
Navigation of the River Thames were referred vessels crossing from one side of the river
to and are material to the decision : towards the other side shall keep out of the
Art. 24. Steam vessels crossing from one side of the way of vessels navigating up and down the
river towards the other side shall keep out ofthe way of river.” That rule fixes the duty of a steam
vessels navigating ap and down the river. vessel which is crossing from one side of the
Art. 25. Where by the above rules one of two river towards the other side. The reciprocal
vessels is to keep out of the way, the other shall keep her rule which takes immediate effect and lasts just
course.
Sir Walter Phillimore and Dr. Raikes, for the as long as the other says, “ where by the above
defendants, in support of the appeal. — The Allen rules one of two vessels is to keep out of the way,
dale was alone to blame for the collision . She the other shall keep her course.” That rule fixes
was crossing from one side of the river towards the duty of the River Derwent. But, now , when
the other, and it was therefore her duty to keep is the application of these rules ended ? That
out of the way of the River Derwent. The duty of depends upon the true construction of art . 24 .
the River Derwent was to keep her course, and There is no difficulty about the construction of
the Allendale did wrong in putting herself in the art. 25 . The question is when does art. 24 end,
way of the course of the River Derwent. The because immediately it ends art. 25 ends. The
mere fact that the Allendale had stopped her words are “ steam vessels crossing from one side
engines and was being checked round did not of the river towards the other side," that is the
entitle her to treat herself as outside art. 24 .
time when the rule is to apply. One question to
Barnes. Q . C . and J. P . Aspinall for the respon consider is whether the word “ crossing ” as used
in the rule is to have a nautical meaning, differ
dents, contra . — The words of art. 24 cast a duty ent not
from; I itsthink
ordinary
it is anmeaning. In my view
ordinary English phraseit
upon & regsel to keep out of the way only when has
she is " crossing from one side of the river to of crossing a given space, and that it ought to
wards the other side.” The Allendale had ceased be construed so as to have its ordinary meaning .
to be doing this . She had got as far across the But we are not all agreed upon that point, and
river as she wished, and was at the material therefore we have asked this question of our nan
time straightening down the river, not crossing tical advisers : “ In nautical language, is a ship
towards the north shore. Assuming her to have which is crossing the river still a crossing ship when
been in motion , it was only the motion incidental her head has got as far across the river as it can
togines
straightening in the river. In fact, her en
were stopped , and she had already begun goThey , while her stern is still athwart the river "
to swing with the assistance of her anchor. tell us in nautical language in their opinion
under such circumstances she would be a crossed
Lord ESHER , M .R . - The decision in this case | ship. I must, however, give vent to my own
depends mainly upon the true construction of view much as I respect theirs, and I think that
arts. 24 and 25 of the rules and bye-laws for the is a wrong and most dangerous interpretation of
navigation of the river Thames, whether they the rule. I should have thought that, as long as
are applicable, and if so what is their applica a ship is in the course of performing the
bility to the facts of this case. The first thing manæuvre of crossing, as long as she is in motion
to be observed about these two rules is that their performing the manquvre, she is still a crossing
applicability in conterminous ; they must both ship. Take this example : when a ship lets go
begin to apply to a given case at the same an anchor for the purpose of checking herself
moment, and they must both cease to apply at round she is still in motion , and when she is still
the same moment. Art. 25 is applicable to a bodily moving towards the north side, as in the
case while art. 24 is, and neither of them is present, case, I should have thought that she con
applicable unless both are. Therefore the ques tinued to be a crossing ship until the whole of
tion in this case is, were these two articles her was at the place across the river where she
applicable at any time, and if they were did their intended to be. ' I myself think that if you fall
applicability end before the collision took place ? short of that, that if you say that whilst her
Now we are advised that from the timewhen the stern is athwart the river, as in the case of a long
Allendale finally made up her mind to cross until ship it may be up to mid -channel, she may be
the time she and the River Derwentwere in the regarded as a crossed ship, such interpretation
position in which they were when the collision will be very dangerous. I know that my
took place would be about four minutes ; and of learned brothers differ from me, and think that
course more than four minutes would have when a vessel' s head has got as far across
elapsed before the Allendale would have got head the river as it can go she is a crossed
on tide. Therefore four minutes passed from ship although her stern is still athwart the river .
the time when the Allendale finally made up her But I do not think either of them would say
mind to cross to the time of collision . During this, that if a ship stops while crossing at a place
those four minutes the River Derwentwas coming short of that, for any purpose you please, but in
up the river at a moderate speed. It seems to tending to go on further, she is to be regarded as
me to follow as an irresistible inference that a crossed ship . Therefore, assume the interpre
from the moment when the Allendale began to tation of the rule to be as they suggest, the
Cross, that if she continued doing so and the question is, has this ship fulfilled that condition
River Derwent continued coming up the river so as to be a crossed ship ? Of course on my
there must bave been danger of collision . Now | interpretation there can be no doubt that she was
what is the governing principle as to the time I not a crossed ship. If you adopt my brothers'
48 — Vol. LXII., N . 8.] THE LAW TIMES. [ March 8, 1890 .
Cr. OF APP.] THE RIVER DERWENT. [CT. OP APP.
view it comes to be a question of fact whether | fact that she would have had to go up a consider
she was a crossed ship . If she was not, the rule able distance. On the whole, therefore, I think she
was still in force, and it was her duty to keep out broke art. 24 , but she also broke another rule in
of the way. She is also bound not to put herself not giving the proper whistle signal. I abjure
in such a position that she cannot keep out of the absolutely and entirely what has been urged on
way. Now , was she in such a position that the that point in her defence, that though a rule
rule did not apply P Before I state the result of existed she is to be excused for not obeying it on
the evidence, let me say this, that we are not the ground that she did not know it. Were that
bound down to say that one set of witnesses has so it would make these rules a farce. Therefore
told the exact truth , and that the other has told she broke that rule, but inasmuch as the collision
the contrary of the truth . We are bound to con happened in daylight, and those on the River
sider, taking all the evidence together, what we Derwent had an opportunity of seeing what the
think is the true state of the facts. When the Allendale was doing, her disobedience to that
Allendale put her anchor down, had she deter : rule is immaterial. The River Derwent had all
mined not to go nearer towards the north shore, the notice, all the knowledge that she would
or was she still, in fact, going towards that shore ? have had even if the Allendale had given the
She had put her anchor down, not for the purpose signal. With regard to the River Derwent, there
of coming to anchor, but in order to check her. is a governing rule of navigation applicable to all
self round. When she put her anchor down to vessels which come into close proximity with one
do that she was not stopped in the water. She another. It is a rule of navigation which does
was still going on. We are all agreed as to that. not require any statutory force. Those who have
Now , if she was still going on , she was going command of a ship have intrusted to them the
on towards the north shore, though, no doubt, at property of anoiher, and the lives of those on
the same time trying to get round. She was board the ship. Therefore they must not do that
making a circle as it were, and we are told that which is unreasonable ; that is to say, that which
for the purpose of performing the manquvre of is unskilful and negligent, which will put in
turning it would be to her advantage to get near jeopardy the property and lives intrusted to
to the north shore. The nearer she got to the | them . They also owe this duty to other ships
north shore the less the difficulty in bringing navigating near them . Did the River Derwent
her head to tide, because the flood tide would not obey that rule ? She was coming up the river,
have so much power on her starboard bow to pre- she saw that the Allendale was crossing the river ,
vent her coming round. Therefore, she was in and, in my opinion , she must have seen that the
fact stillmoving towards the shore, in a circle if Allendale intended to continue crossing the river ,
not in a straight line. I know her engines had and that she did not intend to take any steps to
been stopped, but that does not at once stop the keep out of her way. I think there had come a
way of the ship , and was not intended to stop the time when she must have seen that the Allendale
way of this ship . It was not intended that she had gone so far that she could not get out of the
should then be still in the water. She was check way. The officer in charge of the River Derwent
ing herself round by her anchor, which was ought to have seen that if he kept on there would
moving on the ground. It was not intended to be the greatest danger of collision . I am of
hold . Had it been a great dealmore chain would | opinion that he showed a want of due care and
have been paid out. Therefore, if the Allendale skill in not stopping his way, and perhaps also in
was still moving towards the shore she does not not starboarding sooner. I think , therefore, that
bring herself within the meaning of a crossed wemust hold both these vessels to blame, with
ship, because her head had not got as far across the usual consequences as to costs, both in the
as it could go, not even so far across as it was court below and here.
intended to go. Therefore art. 24 was still ap LINDLEY, L . J. - With respect to the want of
plicable. If the rule wasapplicable her duty was care on the part of the River Derwent, it is un
to keep out of the way . In my opinion , she has necessary to say much . I do not think anyhody
not done so. She had got into such a position who takes the trouble to master the evidence is
that she could not get out of the way, a thing likely to come to the conclusion that the River
which she had no right to do. If she had taken Derwent was not to blame. Therefore it is not
proper notice of the River Derwent she ought to necessary to enlarge upon that point. But the
have seen that if she, the Allendale, persisted in other question is a much more difficult matter
going across she would certainly bring about a I mean the question whether the Allendale is to
collison unless the River Derwent stopped . But blame. That depends on the construction of
shehad no right to act so as to throw the obliga. | art. 24, as applied to the two vessels in this case .
tion on the River Derwent to stop. She ought Up to a certain point, anyone can understand
to have got out of the way, but she did nothing what is meant by a crossing ship ; but there is or
to do so. She persisted in doing what she wished may be a point of time when it is extremely
to do. It has been said that if she did not do difficult to say whether a ship which had been cross
that, grave mercantile inconvenience would ing has ceased to cross. I for one had very grave
result - viz ., that she would have to go up the doubt about it, and we have consulted the gentle
river a very considerable distance before she men who assist us as to whether a ship which has
could turn . In my opinion that signifies nothing. I got so far across the river that her stem cannot
This regulation is not made with regard to get further across with safety can still be con
mercantile convenience. It is made for the sidered a crossing ship because her hull projects
safety of lives and property on the river Thames, athwart the stream . It struck me that the true
and if it were true that a ship would have to go construction of the rule, apart from scientific
a mile up the river before she could turn in evidence, is that, in such circumstances, a Fessel
safety , in my opinion she would be bound to go ought not to be considered as a crossing vessel.
that distance. But I do not believe it to be a ' That is my opinion , and I am glad to say that
March 8, 1890.) THE LAW TIMES. [ Vol. LXII., N . S.- 49
CT. OF APP.] THE CITY OF LINCOLN. (CT. OF APP.
thatopinion is confirmed by the gentlemen who | ble from thewrongdoer in the absence ofnegligence
assist us; that is to say, men skilled in naviga or want of ordinarg skill on the part of the
tion and seafaring life are of opinion that a master, provided such mistake was one which
vessel in such circumstances would not be a might reasonably have been made in consequence
crossing vessel. Therefore, if the Allendale had of the damaged condition of the vessel.
got into that position, I should have said that A collision between the Swedish barque A . and the
her crossing had ceased, and that she was no steamship C ., about 6 p .m . on the 7th Nov ., about
longer a crossing vessel. But I do not think twelve miles N . of the Hinder Lightship, was
that she had got into anything like that position . solely caused by the negligent navigation of the
If she had gou her head up or down the river, steamship . In consequence of the collision the
then of course her crossing had ceased . But it barque's starboard quarter was cut off, and her
appears to me that a vessel which is short of steering compass, log glass, and gear for rudder
that, and was actually coming round as this was, and wheel were lost. The steering compass hav
is not so near the other side as to incur the ingbeen replaced by a spare compass and tackles
benefit of the construction I have referred to, so having been rigged on to the rudder, the master
as to be no longer a crossing vessel within the of the A ., with a view to saving the vessel, sailed
meaning of the rule. I think that from first to up the Thames, but between three and four p.m .
last shewas a crossing vessel, and neglected the next day the A .went ashore in consequence of her
duty cast upon her as such . I therefore think master mistaking the Tongue Lightship for the
that both these vessels are to blame. Kentish Knock . The owners of the barque (inter
LOPES, L.J. — This case depends upon the con alia ) claimed for the loss occasioned by the strand
struction of art. 24 , and how far it is applicable ing :
to the circumstances proved by the evidence. I Held, that the stranding was due to the master of
throughout have entertained a strong opinion the barque being deprived by the collision of the
as to what the true interpretation of the rule ordinary means of navigation , and that in the cir
is; I was not able to interpret it in its nautical cumstances the owners of the steamship were
meaning, if it had a nautical meaning , but I was liable.
prepared to interpret it according to the ordinary | This was an appeal by the plaintiffs from a
meaning of the language used . We have had decision of Butt, J. in a collision action .
advice from the assessors as to the nauticalmean. 1 The collision occurred on the 7th Nov . 1888
ing of the rule, and it is satisfactory to find that between the plaintiffs' barque the Albatross and
it agrees with my view . Giving an ordinary the defendants' steamship the City of Lincoln .
meaning to the language used , I think that a ship The defendants having admitted liability, the
crossing has crossed when she approaches the assessment of damages was referred to the
other side as near as she safely can, though she registrar and merchants. At the reference the
be angling to the bank and athwart the stream . | plaintiffs claimed (inter alia ) for the loss of their
Applying the rule so interpreted to the present barque subsequently to the collision , when she
case, how does it stand ? . At the time of the was making for a port of safety in a damaged
collision the Allendale had not approached the condition .
other side as near as she could . Indeed , we are The registrar allowed this claim . His report
told by the assessors that, having regard to the was as follows :
purpose for which she had gone towards the north On the 29th Oct. 1888 the Swedish barque Albatross
shore, she mightwith advantage have approached of 483 tons left Sundswall for Cardiff with a cargo of
nearer. At the time of the collision she was, in battens, and with a crew of ten hands all told . On the
my opinion , still nearing the northern side of the 7th Nov., at about 6 p .m ., the defendants' steamship
river. If that is so, the article was applicable City of Lincoln of 2103 tons, bound to Bremerhaven
collided with her about twelve miles north of the North
to this case, and the Allendale at the time of the Hinder Light, cutting The
off mate
her starboard
of the Cityquarter
collision was still a crossing ship . Under these doing other damage. and
of Lincoln
circumstances I am of opinion that the judg . came on board her and remained whilst the steamship
ment of the learned judge below must be varied barque,proceededsheon was
her voyage. With the view of saving the
taken , though difficult to manage ,
by holding both ships to blame. towards the English coast, and between 3 and 4
Solicitors for the appellants, W . A . Crump and p .m . a lightship was discerned , which those on board
SonSolicitors
. the barque, as well as the mate of the City of Lincoln ,
for the respondents, Botterell and supposed to be the Kentish Knock , and thereupon, after
Roche. sounding , the barque's course was altered to the north ,
and the vessel almost immediately grounded on what
proved to be the Long Sand , and it became necessary for
those on board to abandon the vessel, and to make for
Tuesday , Dec . 10, 1889. the lightship , which turned out to be the Tongue Light.
ship instead of the Kentish Knock . On the following
(Before Lord ESHER, M .R ., LINDLEY and LOPES, morning they were landed at Gravesend , while the
L .JJ.,assisted by NAUTICAL ASSESSORS.) barque was found by salvors and taken into Harwich.
Under these circumstances, which it is not necessary I
TIE CITY OF LINCOLN . (a) should state more fully , counsel on both sides have
OF APPEAL FROM THE PROBATE, DIVORCE , AND requested me to report at this stage solely on the ques
ADMIRALTY DIVISION (ADMIRALTY). tion whether the grounding of this vessel under the
Collision - Stranding - Consequential damage circumstances stated in the evidence is to be considered
Remoteness. as damages consequential on the collision, and for
which the defendants, the owners of the wrong-doing
ship , are liable . Having heard counsel on this point, I
In an action for damages by collision , a claim for am of opinion , and the merchant assessor concurs in it,
consequential loss, caused by a mistake of themaster that the grounding of the barque was not due to any
of the injured vesselafter the collision, is recovera calpable negligence or want of skill of those on board
(a) Reported by J. P. Barristers-at
ASPINALL andLawBUTLER ASPINALL, Esqrs., her, and that the defendants are liable for all additional
. I damages which may have resulted from such grounding .
50 _ Vol. LXII., N .8.] THE LAW TIMES . [March 8, 1890 .
CT. OF APP.] THE CITY OF LINCOLN . (CT. OF APP.
The defendants appealed from this finding. i Sir Walter Phillimore and J. P. Aspinall,for the
defendants, contra . - The judge was right in find .
Barnes, Q .C ., H . Stokes, and Dr. Stubbs for the ing
plaintiffs. that the stranding was occasioned by the
Sir Walter Phillimore and J. P. Aspinall for negligence of those in charge of the barque .
Assuming them to have been guilty of no negli.
the defendants. gence, the plaintiffs are not entitled to recover
BUTT, J.- A question of more or less nicetv has these damages. There is no connection between
been discussed in this case, and authorities as to the collision and the stranding. The stranding
what damages are recoverable and what are too is the result of a mistake by the master of the
remote have been cited . I do not think it is barque :
necessary to go into that, because, if the view I The Flying Fish , Br. & L . 436 .
take of this case, under the advice of the Elder Thetrue testis,thatwherevertheact of man comes
Brethren , is right in point of fact, no nice ques . | in the chain of consequence is broken , so as to
tions of law arise. I have asked the Elder
Brethren this question : " Was the stranding of l relieve
liability,theunless
original
thewrongdoer
claimant from subsequent
has no time to
the Albatross, having regard to the condition in deliberate, and in consequence of the position in
which she was, the result of accident alone, or
was it brought about by want of ordinary care
which he has been placed by the wrongdoer be
has to act on a sudden emergency. (LOPES, L .J.
and skill on the part of those in charge ? ” They referred to Jones v. Boyce, 1 Stark . 493.] That
advise me that there are several respects in case refers only to a sudden emergency, and not
which those in charge of the barque were want to a case like the present where there was ample
ing in the exercise of ordinary care and skill ; a time for deliberation. The distinction between
cast of the lead would have shown them that the the case of Jones v. Boyce (ubi sup.) and the pre
lightship they saw could not have been the sent is pointed out in Adams V. Lancashire and
Kentish Knock , and the neglect to take that pre Yorkshire Railway Company (L . Rep . 4 C . P . 742).
caution in itselfwas want of ordinary care. Again , l In The Argentino (59 L . T . Rep . N . S . 914 ; 13 P .
they had set their course from the position indi. Div. 198 ; 6 Asp . Mar. Law Cas. 348), the Master
cated to them as the position in which they were of the Rolls
by the officer of the City of Lincoln , and were | brought to besaid that ifofthe
the result damage
the act “ is onlyof
complained
steering with a compass which , I believe, they got by reason of some intermediate act or circum
up from the hold , and was in fact a make-shift stance which might or might not have happened
compass. That in itself was a matter which between the act complained of and the result
ought to have induced rather more than ordinary relied on ," then the damage is not recoverable.
care . They set a course, andd on that
that course they | Those words are applicable to the present case.
ought to bave known that they should pass close The master mistook the lightship and so brought
by the Galloper lightship, and the fact of their about an accident, and this is an accident which
not making that lightship ought to have told might have happened to a ship in perfect con
them that they were not in the position they dition just as well as to this ship , and the condi
imagined they were. The Elder Brethren advise tion of the ship has no connection with its loss.
me tbat all these matters amount to want of Conseqnently the cause is not the collision but
ordinary care and skill, and so far as I am able something
to form an opinion upon such a subject I entirely and this is else, to wit, the mistake
an intermediate of themight
act which master,
or
agree with them . Therefore the conclusion to might not have happened between the act com
which I have come is, that the damages arising | plained of, the collision , and the result relied on ,
out of the stranding of the Albatross are not the the stranding.
direct consequences or result of the collision . Barnes, Q.C . in reply.
That being so, the plaintiffs are not entitled to
recover in respect of the stranding . Lord Eszer, M .R .- In this case it seemsto us,
The plaintiffs appealed . after having carefully considered all the eri
dence, that the wrongful act of the defendants
From the evidence given before the registrar it did
appeared that the Albatross had her starboard not merely damage the barque, but had this
§Â₂âÒâ ēņēmēģētiņ₂₂m₂₂/₂ūņēmēģ₂Ẹņēmēģ₂₂–₂–₂ņēmēģētiņ₂?Â₂Ò₂Â₂ Ò§§ further effect, that it deprived the captain of
à considerable quantity of water, that she lost her his best charts,ofhis best compass,and his best log
line. It was very difficult for him to know where
steering compass, log, glass, and gear for rudder he was. In these circumstances he resolved , and
and wheel. “ After the collision the steering it is not contended wrongly, to make for the
compass was replaced by a spare one from below , Thames. But he had to make for the Thames
and tackles were rigged on to the rudder. | not exactly knowing his place of departure,
Barnes, Q .C ., H . Stokes, and Dr. Stubbs for the without having the usual means of marking
plaintiffs in support of the appeal.-- The learned off his conrse on a proper chart, and with
judge was wrong in finding that the stranding out having the usual means of calculating
was occasioned by the negligence of those in his speed. We are advised by the gentlemen
charge of the Albatro88. Assuming them not to who assist us that in those circumstances he was
have been negligent, then these damages are re not guilty of any want of skill in not krowing
coverable : whereabouts on the sea he was. It almost neces
The Pensher, Swab. 213 ; sarily follows from that that he was not guilty
The Countess of Durham , 9 Monthly Law Magazine, of any want of skill in not knowing what the
_ 279 ; light was which he saw ; i.e., in other words in
The Notting Hill,51 L . T. Rep. N . S. 66 ; 5 Asp. Mar.
concluding that the light was the Kentish Knock
Law Cas. 241 ; 9 P . Div . 105 ; when , in fact, it was not. Now , if that be true,
Hadley v. Barendale, 9 Ex. 341 ; 23 L . J. 179, Ex. ; comes this question : If he was not wrong
Wilson v. Newport Dock Company, 14 L . T . Rep . inthen
assuming the light to be the Kentish Knock,
N . S . 230 ; L , Rep . 1 Ex. 177.
March 8, 1890.) THE LAW TIMES . [ Vol. LXII., N . 8. - 51
CT. OF APP.] THE CITY OF LINCOLN. [Cr. OF APP.
did he, upon that assumption , do anything which of the Albatross. We cannot therefore accept
waswrong ? Was he wrong in not going up close the view that it was his negligence or want of
to the lightship to see its name, as it is suggested skill which led to the ultimate loss of this ship .
heoughtto have done? It is the first time I ever On that point we differ from Butt, J. But that
heard such a suggestion advanced . Whether it does not dispose of the case, because assuming
may be right in some circumstances, although to there was no negligence on the part of the master
me it seems a strange thing, is immaterial for of the Albatross, the question arises whether her
the present purpose. In this case his omission ultimate loss is not too remote a consequence of
to do so was not a want of care and skill. Taking the collision to render the defendant liable for it .
into account the various assumptions I have That depends on the application to this particular
referred to, there next comes the question whether case of the general rule applicable to damages,
the master of the barque was wrong, when he and for that I refer to Mayne on Damages. He
sounded and got five fathoms, to port his helm says : “ Damage is said to be too remote when ,
for the purpose, as he thought, of going round although arising out of the cause of action , it does
these sands ? We are advised that he was not not so immediately and necessarily follow from it
wrong in so doing. The result is, that he was as that the offending party can be made respon
guilty of no want of ordinary care and skill, sible for it.” Later on he says : “ The first and
unless it is established that he ought to have in fact the only inquiry in all these cases is,
sounded as the barque sailed along. Consider- whether the damage complained of is the natural
ing how and where the barque was sailing, I and reasonable result of the defendants act. It
doubt whether , until she camenear the lightship , will assume this character if it can be shown
her master could be said to be guilty of any want to be such a consequence as in the ordinary
of care or skill in not sounding as she came along. course of things would flow from the act."
There is this much to be said that if he had sounded That is a general method of stating the rule
it would have told him nothing. He did sound which as I understand was applied by Lord Her
when he saw the light, and that was at a time schell in the case of The Argentino (ubi sup.), and
when, assuming it to be the Kentish Knock,it was a without criticising it, I take it to be sufficiently
proper thing to do. On the whole, the result is accurate for the purpose. What wehave to con
that we have come to the conclusion , assisted by sider is, what is meant by “ the ordinary course
advice from our assessors, that this captain was of things." Sir Walter Phillimore has asked us
not guilty of any want of care and skill. I do to exclude from the “ ordinary course of things ”
not think that the mere fact of a master being all human conduct. I cannot do anything of the
put into the position this master was by the kind. I take it that reasonable human conduct
wrongful act of the defendants, and his not is part of the “ ordinary course of things."
acting negligently necessarily concludes such a So far as I can see, the ordinary course of
case as this , and makes the defendants liable for things, so far from excluding human conduct,
all the damage which occurred after their wrong- | includes the reasonable conduct of those who,
ful act. I agree that there may be intermediate | having sustained damage, seek to save them
circumstances which prevent the ultimate selves from further loss. Let us see what are the
damage being regarded as the result of the facts. What was the real cause of the mischief !
wrongful act of the defendants so as to make | It seems to methat it was the deprivation of the
tbem liable . But in this case it seemsto me to barque's master of the means of ascertaining his
be the inevitable conclusion that the ultimate position, and properly navigating his ship . He
loss of the ship was caused by her master being was deprived of his compass, his logline, and his
deprived of the means of calculating where he | charts, and his vessel was practically water
was, such deprivation being the direct result of logged . I do not say that the barque was utterly
defendants ' wrongful act. Where defendants do unmanageable, for she was, as weknow ,navigated
a wrongful act which deprives the plaintiff or | a considerable distance, but in any event I do not
those for whom he is responsible of themeans think that her master was to blame for making
of averting that which ultimately happens, I the mistake he did . In these circumstances it
think it follows, as a matter of course, that that appears to me that this case is one of those in
which ultimately happens is the result solely of which the ultimate loss was within the rule I
the wrongful act of the defendants. Therefore, have stated as to the “ ordinary course of things,"
without considering cases in which the damage and that therefore the defendants must pay for
may be too remote, I think that in this case it is the damages incidental to the stranding of the
clear that the ultimate damage is not too remote. barque .
Under those circumstances, I think the registrar LOPES, L .J. - Wehave been advised that,having
and merchants must assess the damages upon the regard to the condition of the Albatross, her loss
principle we have indicated. I do not think that was not caused by a want of proper care or skill on
any of the cases cited are contrary to what I have the part of those in charge of her. That being so,
said . it appears to me that the case may be stated thus :
LINDLEY, L .J. - I am of the same opinion . As By the misconduct of the defendants the plain
regards the evidence of the officer from the City tiffs' ship was placed in a position of the utmost
of Lincoln , who was on board the sailing vessel, peril. The plaintiffs, to save their ship and mini
it is obvious that it was given with a view to mise as far as possible the loss to the defendants,
minimise the loss to his owners. I think that endeavoured to reach a place of safety. Whilst
the view of the facts taken by the registrar who so endeavouring, without any negligence on the
saw the witnesses was correct, and having regard part of those in charge of her or any want of
to what the Master of the Rolls has said , it will skill, and without any intervening irdependent
not be necessary for me to go over them again . cause, the Albatross ran ashore. In those circum
We are advised that there was nothing negligent l stance are the defendants liable for the strand
or unseamanlike in the conduct of the master | ing ? In any opinion they are. The original fault
52 _ Vol. LXII., N . S .] THE LAW TIMES. [March 8, 1890.
Chan . Div.] Re Huish ; BRADSHAW v. HUISH . [Chan . Div.
being the defendants', they are broadly speaking debt of 10001. was satisfied by the legacy of 30001.;
responsible for what follows. They are responsi and that both bond and legacy were therefore
ble for all the natural consequences occasioned payble to the nephew .
by their originalmisconduct ; when I say original
misconduct, I mean not only the collision but ADJOURNED SUMMONS.
On the 15th March 1878 Margaret Huish
also the deprivation of the Albatross of the executed and gave to Marcus Bourne Huish a
usual means of navigation . If those conse bond in the sum of 20001.conditioned to be void if
quences were caused by any want of skill on The executors or administrators of the said M . Huish
the part of those in charge of the Albatross, no shall within twelve calendarmonthsnextafterher decease
liability would attach to the defendants. If the pay to the said M . B . Huish , if he shall be then living ,
consequential loss had been brought about by or to his executors, administrators, orassigns, in case he,
the independent act of a third party no liability the said M . B . Huish , shall have died leaving issue him
would attach . If the consequential loss bad surviving , but not otherwise , the sum of 10001., together
with interest for the same after the rate of 5 per cent.
been caused by anything which those on board
the Albatross by the exercise of proper skill and per annum from the day of the death of the said M . B .
Huish .
care could have prevented , no liability would
attach . But in this case we are advised that M .ByB . his marriage settlement of the same date
Huish assigned the bond to trustees upon
there was no want of skill on the part of those
on board the Albatross, and it is not suggested certain trusts.
There was evidence that Margaret Huish
that there was any interposition or act of a third intended that the bond should be included, and
party . In these circumstances I am clearly of
opinion that what happened to the Albatross sub knew that it had been included , in the settlement.
Margaret Huish made a will, dated the 11th
sequently to the collision was the natural result Jan . 1887, and
of the wrongful act of the defendants, and I to M . B . Huish , thereby devised a freehold estate
bequeathed to him & legacy of
think , therefore, that the decision of the learned 30001.,left certain articles as heirloomsto trustees
judge should be reversed.to A
Appeal allowed. for him for life, with remainders over, and gave
him various pictures and ornaments absolutely .
Solicitors
and Stokes.
for the plaintiffs, Stokes, Saunders, All legacies were to be paid free of legacy duty .
Solicitors for the defendants, Hill, Dickinson, On the same day the testatrix made a codicil
Dickinson , and Hill. to her will, which contained this direction :
I wish all my funeral expenses and all just and lawful
debts that I may oweto be paid at once.
Margaret Huish died on the 21st March 1889.
HIGH COURT OF JUSTICE. She was the aunt of M . B . Huish , but not in loco
parentis towards him .
An originating summons was taken out on
CHANCERY DIVISION . behalf of the Rev. William Bradshaw , one of the
Dec. 6 and 7, 1889. trustees and executors of the will of the testatrix ,
(Before KAY, J.) against M . B . Huish and others, asking (inter
Re Huish ; BRADSHAW v . Huisa. (a ) alia ) that the following question ormatter arising
in the administration of the estate of the testa
Will- Debt- Legacy to creditor - Direction to pay trix might be determined under the rules of the
debts only - Satisfaction . Supreme Court, Order LV ., r. 3, sub -sects. (a )
A testatrix ,who died in March 1889, by her will, and (g ), and relief given in respect thereof with
dated in Jan . 1887, devised and bequeathed a out an administration of her estate :
freehold estate, a legacy of 30001., and certain Whether in the events which had happened the
chattels, to her nephew , to whom she was not in legacy of 30001. by the testatrix bequeathed to
loco parentis. By a codicil of the same date the M . B . Huish , or any and what part thereof, was
testatrix directed that all her funeral expenses given in satisfaction of the whole or any part of
and all just and lawful debts that shemight owe the debt of 10001., payment whereof to M . B .
should be paid at once. Huish was secured by the bond in the penal sum
In March 1878 she had executed a bond for secur of 20001. entered into by the testatrix on the 15th
ing a payment to her nephew , his executors, ad- | March 1878 .
ministrators, or assigns, of the sum of 10001. The summons was adjourned into court , and
within twelve calendarmonths after her decease, now came on to be heard .
if he should be then living, or to his executors, W . M . Cann, for the plaintiff, stated the facts
administrators, or assigns, in case he should have of the case, and submitted the question to the
died leaving issue him surviving, but not other
wise, together with interest for the same at 5 per court.
Methold for the defendants, the residuary
cent.from the death of the testatrix . This bond legatees. The debt is satisfied by the legacy of
was given to the nephew on the occasion of his 30001. A — direction to pay debts alone is not
marriage, and was, to the knowledge of the tes. enough to rebut the presumption
tatrix , assigned to the trustees of his marriage and the direction in this case onlyof refers satisfaction ,
to the
settlement. time of payment. It was not intended to alter
question
Thesatisfied was, whether the bond had been the rights of the parties :
by the legacy.
Held , that there wasno difference between a direc Wathen v. Smith , 4 Mad. 325 ;
tion to pay debts and legacies and a direction to Cole v . Willard,
Montagu v. Earl25ofBeav . 568 ; , 51 L. T . Rep. N . S .
Sandwich
pay debts only ; that the direction to pay debts 502 ; 32 Ch . Div . 525.
was sufficient to rebut the presumption that the [KAY, J. referred to Edmunds v. Low , 3 K . & J.
(n , Bpported by E . A . SCRATCHLEY, Esq., Barrister-at-Law . 318 .]
March 8, 1890.] THE LAW TIMES. (Vol. LXII., N . 8.- 53
Chan . Div.] Re BRYANT AND CULLINGFORD TO BARNINGHAM . [Chan. Div.
Renshaw , Q .C . and Grosvenor Woods, for the \ I find that the balance of authority is against it.
defendant M . B . Huish. — There is no satisfaction . Indeed, the same learned judge, in a later
The testatrix knew of the settlement, and she case of Dawson v . Dawson ( L . Rep . 4 Eq. 504),
has not given the legacy to the persons to whom after referring to several other decisions,
the bond is payable under the settlement. The seems to have come to the conclusion that
bond bears interest from her death ,and the legacy a direction to pay debts only was sufficient to
does not. There is a direction that all legacies rebut the presumption of satisfaction . I think it
shonld be paid duty free. She gave him several better to abide by that broad rule, which is easy
legacies, so no intention can be inferred that one to understand. If the testatrix knew anything of
was a satisfaction more than another. A direction law , shemay have put in the direction on purpose.
to pay debts is sufficient: It was not necessary to insert a direction to pay
Atkinson v. Littlewood , 31 L . T. Rep . N . S. 225 ; L . debts at all, and it may have been done in order
Rep . 18 Eq. 595 ; to prevent any suggestion of satisfaction of this
Chichester
LordL. Rep v. Coventry, 17 L. T. Rep. N . S. 35 ; debt which she owed to Marcus Bourne Huish .
. 2 E . & I. App. 71 ; I hold that there was no satisfaction of the debt,
White and Tudor's Eq. Cas., vol. 2, 6th edit. 408 ; and that the debt and the legacy must both be
Rorce v . Rowe, 2 De. G . & S. 294 ;
Hales v. Darell , 3 Beav . 324 ; paid to hini.
Pinchin v . Simms, 30 Beav. 119 ; Solicitors : Frith Needham , agent for T. Hamil
Charlton v. West, 30 Beav. 124 ; ton Urry, Ventnor ; W . E . Tyer ; Rowcliffes, Rawle,
Dawson y. Dawson , L . Rep . 4 Eq. 504 ; and Co.
Paget v . Grenfell, L. Rep . 6 Eq. 7;
Carr v. Eastabrook, 3 Ves. 561.
Marten, Q.C. and Butcher for parties not inte Thursday, Dec. 19, 1889.
rested in this question .
Methold replied. (Before Kay, J.) .
KAY, J.- I think it is most expedient to abide / Re BRYANT AND CULLINGFORD to BARNINGHAM . (a)
by broad general rules in cases of this kind. By Vendor and purchaser - Contract - Conveyance
making fine distinctions in every case the law is Title > Trustees having no immediate power of
left in an embarrassed and doubtful condition . I sale - Concurrence of tenant for life under powers
Here is the case of a lady who in her lifetime of Settled Land Acts.
gave a bond to Marcus Bourne Huish for 10001. The trustees of a will were directed to sell certain
payable to him in certain events which have freeholds after the death of the testator's wife,
happened . After the date of bond, she made a who was tenant for life thereof. During the life
will and gave M . B . Huish various different of the tenant for life, the trustees, with her con
benefits, real estate, chattels, and a legacy of sent, contracted to sell the freeholds as “ trustees
30001. She said nothing in her will about the for sale." Upon investigation of the title the
bond. The bond was really given to him to purchaser raised the objection that the trustees
be made the subject of his marriage settlement had no power to sell. The vendors thereupon
which was then about to be executed , as she knew . offered to procure a conveyance by the tenant for
She made a codicil to her will, and thereby life of the land under the powers of the Settled
directed that her debts should be paid after her Land Acts. The purchaser declined to enter into
death . That is a direction to pay debts at once , a new contract with the tenant for life, and before
but it affects this particular debt because the the day fixed for completion repudiated the con
bond would not otherwise be payable for twelve tract. He then took out a summons under the
months after her death . She may have had the Vendor and Purchaser Act 1874 for rescission of
terms of the bond in her mind when she gave that the contract, and return of his deposit with
direction ; but, however that may be, there is, interest, and costs of investigating the title .
what is not strictly necessary , a direction for pay Held , that the vendors were not entitled to force the
ment ofdebts. It has long been settled that in cases purchaser to enter into a new contract with the
wbere a debt is owing by a testator, and the tenant for life in substitution for the contract
testator afterwards makes a will, and gives a with themselves ; and that therefore the pur
legacy of the same or a greater amount to the chaser was entitled io have the contractrescinded .
creditor, and then in his will directs that his Held , also, that the purchaser was entitled notonly
debts and legacies should be paid, that direction have his deposit back, but to have it with
rebuts the presumption of the satisfaction of the ' tointerest at 4 per cent. from the time when it was
debt by the legacy . What is thedifferencebetween paid , and also to have the costs of investigating
a direction to pay debts only , and a direction to the title.
pay debts and legacies ? There is none, for the ADJOURNED SUMMONS.
gift of a legacy is in itself a direction that the This was a summons taken outunder the Vendor
legacy shall be paid . So all that is material for
this purpose is that the will should contain a and Purchaser Act 1874 to determine a question
on a contract for sale dated the 22nd Oct.
direction that debts should be paid. If after arising
giving a legacy to his creditor a testator says, “ I 1889, and made between Walter Grenville Toker
direct my debts to be paid ,” thatmeans that he Bryant and Frederick James Cullingford ay
thinks he has given a legacy to the creditor , and vendors, and William Barningbam as purchaser .
be directs that the debt to him should be paid The facts of the case were as follows :
likewise. It adds nothing to that, that he directs By his will, dated the 12th March 1884, Walter
his legacy to be paid . Accordingly, I think that John Bryantappointed executorsand trustees,and
Edmunds v . Low (3 K . & J. 318), which appears | after bequeathing certain pecuniary and specific
to have drawn a distinction between a direction legacies he devised and bequeathed his freehold
to pay debts and legacies and a direction to pay residence called “ Highwoods,” with the lands
debts only , was not sufficiently considered , and I (a) Reported by E. A . SCRATCHLEY, Esq ., Barrister-at-Law .
Chan . Div.] Re BRYANT AND CULLINGFORD TO BARNINGHAM . [CHAN . Div.
and hereditaments thereto belonging, unto and to answer to the first requisition thatMessrs. Bryant and
the use of his trustees upon trust to permit | Cullingford , with whom alone “ as trustees for sale”
his wife to reside therein during her life, she the purchaser has contracted , are unable to make
a title to the property . It is saggested that Mrs.
keeping the same in tenantable repair and Bryant can make a title under the Settled Land Act.
adequately insured against loss or damage by This, however, she cannot do at present, being as yet
fire, and after her decease he directed that the incapable of entering into a contract under the Act,
same should fall into and form part ofhisresiduary there being no trustees to receive orwaive the necessary
real estate and beheld upon thetrusts thereof; and preliminary notice ; and , even if this were otherwise ,
she could not sell except under a fresh contract. The
he devised and bequeathed all the residue of his purchaser declines to enter into any fresh arrangements
real and personal estate whatsoever or whereso or to purchase the property from Mrs . Bryant, and
ever unto and to the use of his trustees accord therefore requires the vendors to return his deposit of
ing to the tenure thereof respectively, upon 11251. with interest thereon at 5 per cent. per annum
trust that they should call in , sell, and con from the 22nd Oct. 1889, until payment, and his costs of
vert into money such parts thereofas should not investigating the title.
consist of money , and after payment of his On the 28th Nov. 1889 an order was made
funeral and testamentary expenses and debts whereby W . G . T . Bryant and F . C . Johnson were
and legacies should invest the residue as therein appointed trustees for the purposes of the Settled
mentioned ; and subject to the payment of an Land Acts .
annuity thereout should pay the income of such On the 29th Nov. 1889 the vendors' solicitors
residuary moneys to his wife during her life for applied as follows :
her sole and separate use, and without power We have your letter of the 25th inst. We cannot
of anticipation , she thereout maintaining and sup admit the position taken in that letter. Before Messrs .
porting his unmarried daughters, and after her Bryant and Cullingford accepted the parchaser's offer
they obtained Mrs. Bryant's written authority to do sa ,
death should standpossessed of the same moneys and she at the same time undertook to execute all
and the income thereof in trust for all his necessary documents to give effect to the sale, and, as
children as therein mentioned . they are prepared to procure the concurrence of all
The testator died on the 14th May 1888 , and necessary parties (as provided in condition 10 ), we give
| you notice that they insist, both on their own behalf and
shortly after his death it was considered by the i on behalf of Mrs. Bryant, the tenant for life, that the
trustees of the will, as well as by the testator's purchaser must complete his contract.
widow , desirable that Highwoods should be sold . We also give you notice that Mr. Bryant and Mr.
Accordingly that property was, with the approval FrederickforCharles Johnson . . have been duly appointed
of the widow , on two occasions offered for sale trustees the purpose of the Settled Land Acts, and
that they have by writing under their hands waived the
by public auction .
The property was not sold at either of the statutory notice of and consented to the sale.
The vendors stated that they entered into the
auctions, but on the 22nd Oct. 1889 the contract contract
for sale thereof above mentioned was entered trustees ofin the the bona fide belief that they, as
into. Such contract, so far as it related to the perty , and, with will, had power to sell the pro
the concurrence of Mrs. Byrant,
title to be shown to the property sold , was in the to make a good title thereto in accordance with
form of the particulars and conditions of sale
used at the auctions. the terms of the contract ; and that the contract
The date fixed by the conditions of sale for the was entered into with the entire approval of
completion of the contract was the 2nd Dec. 1889. Mrs. Bryant, and on her written undertaking to
The purchaser paid a deposit of 11251. execute all necessary documents to give effect to
It was provided by the conditions of sale that : the sale .
Upon paymentofthe remainder of the purchasemoney, to Mrs. Bryant and F . C . Johnson were willing
do all acts and execute all deeds necessary
with such interest (if any) as shall have becomepayable ,
the vendors and other necessary parties (if any) will for the purpose of carrying out the sale .
convey the property to the purchaser. The conveyance Nevertheless this summons was taken out
and every assurance, act, matter and thing (if any) on behalf of the purchaser asking that it might
which shall be required by the purchaser for tracing, be declared that a good title to the hereditaments
getting in or releasing any outstanding estate, right or comprised in the above-mentioned contract of
interest,
title , or or for other
completing or shall
perfecting the vendors' sale had not been shown in accordance with such
and doneforbyany
and at thepurpose,
expense of thebe purchaser.
prepared , made
The contract ; and that the vendors might be ordered
vendors, being trustees for sale, shall not be required to to pay the costs of this application , and to
enter into any covenant, except the ordinary implie repay to the purchaser the deposit of 11251. paid
statutory covenant that they have not incumbered . by
On the 14th Nov . 1889 the purchaser's solicitor perhim to them with interest at the rate of 41.
centum per annum from the 22nd Oct. 1889,
made a requisition on the title as follows : until the time of payment of the same, and the
Under thewill of W . J. Bryant the trust for sale does purchaser's costs of investigating the title, to be
not arise until after the death of the testator's widow ; ascertained by the judge in chambers in case
but her death is not abstracted , and if she is still living the parties differed.
the trustees cannot make a title . If she is dead , when The summons was adjourned into court, and
did she die, and where was she buried ? Have the
vendors a certificate of her burial? now cameon to be heard.
The following Marten , Q . C . and J. G . TVood for the pur
requisition made bywas
the the reply solicitors
vendors' to the :above
chaser, in support of the summons, referred to
Mrs. Bryant is still living and will make a title as
tenant for life under the Settled Land Act. An applica
Hatten v. Russell, 58 L . T. Rep. N . S. 271; 38 Ch .
Div . 334.
tion to the court to appoint the trustees of the will Renshaw , Q .C . and Frederic Thompson , for the
trustees for the purposes of the Act is in fact pending. vendors contra , referred to
On the 25th Nov. 1889 the purchaser's solicitor Murrell v. Goodyear, 1 De G . F . & J . 432 ;
wrote to the vendors' solicitors as follows: Duke of Marlborough v. Sartoris, 55 L . T . Rep .
It appears from and is indeed admitted by the N . S. 506 ; 32 Ch . Div.616 ;
March 8, 1890.) THE LAW TIMES . [ Vol. LXII., N . 8. - 55
Chan . Div .] Re YERBURY's Estate ; Ker v. Dent. [Chan. Div .
Salisbury v. Hatcher, 2 Y . & Coll. Ch . Cas.65 ; mary jurisdiction given by the 9th section of the
Chamberlain v. Lee, 10 Sim . 450. Vendor and Purchaser Act 1874 , the court has
Kay, J. - I am clearly of opinion that this con power, not only to answer the question submitted
tract cannot be enforced . It appears that trustees, to it, but to direct such things to be done as are
who at the time had no power to sell whatever, the natural consequence of the decision. There
but who would have at a future time and upon a fore, where the court decided that the vendor
future event power to sell, entered into this had not shown a good title or answered the requi
contract. The purchaser, when he came to look sitions, the court ordered the vendor to return
into the title , raised the objection . Thereupon the the deposit with interest at 4 per cent. from the
trustees admitted that the objection was valid day when it was paid , and to pay the purchaser's
that is to say, that they had no power to contract costs of the investigation of the title. I ask ,
at all; but they said that there was a tenant for further, for the purchaser's costs of investigating
life, and under the Settled Land Act the tenant the title , as were given in Re Hargreaves and
for life would make a new contract with the pur Thompson 's Contract.
chaser, and sell to him under that new contract.
What right has a vendor to say to a purchaser, KAY, J.- In Re Hargreaves and Thompson 's
“ Somebody else will make a good contract with Contract, Lindley, L .J. said : “ I have no doubt
yon , and I will compel you to enter into that con myself that the purchaser is entitled , not
tract ? ” What possible power have I to say to the only to have his deposit back , but to have
purchaser, “ You shall substitute for this contract it with interest at 4 per cent. from the time
which cannot be carried out a contract by the when it was paid , and also to have the costs of
investigating the title. I do not think that was
tenant for life, which he can carry out under the seriously
Settled Land Act ? ” I have no power to do any. disputed . But a doubt was raised
thing of the kind. You mightputmany analogous whether this was the proper method of asserting
cases ; but it is sought to make this case out in his rights, and whether the court had jurisdic.
this way : It is said that if a vendor, who at the tion to make an order to the above effect under
the provisions of the 9th section of the Vendor
time has only a partial interest in an estate, and
affects to sell the fee simple , the court will en Purchaser Act 1874." Hall, V .C ., in
force the contract if, before the time fixed for Re Higgins and Hitchman 's Contract (21 Ch.
completion , he can get in the fee simple . That is Div. 95 ), thought the court had the power, and
Pearson , J ., in Re Yeilding and Westbrook 's Con
quite right. Then he acquires the power of tract (54 L . T. Rep. N . S . 531; 31 Ch. Div. 344 ),
carrying out his contract literally . He then can
took the
conrey the fee simple , and of course the court in the case same view . The same order was made
would not put the parties through the idle form (60 L . T. Rep.ofN .ReS . 841;
Ebsworth and Tidy's Contract
HUT
of conveying to the vendor, and then the vendor Re Hargreaves and Thompson 42Ch. Div. 53), following
conveying to the purchaser, when the very same 's Contract, and
thing might be accomplished by getting the directing the vendor to return the deposit with
person who was interested in the outstanding interest at 4 per cent., and to pay the costs of
investigating the title and the costs in the court
estate or part of the estate to convey direct to below and the Court of Appeal. There was,
the purchaser. I agree that there are cases of that however,
kind. But whoever heard that a man who could one case in which , according to my
not contract at all, and could not obtain the recollection , Cotton , L .J. doubted whether there
was any power to rescind the contract. But I
conveyance of the estate to himself before the have
time fixed for completion of the contract, could there ample authority here. In the first place ,
compel the purchaser to accept the contract of before arePearson the cases before Hall, V .C ., and
, J ., which are Re Higgins
somebody else ? I have illustrated it during the
argument in this way : Suppose there were under a and Hitchman 's Contract and Re Yielding and
settlement a power of sale in the trustees of the Westbrook's Contract. Then comes the case of Re
settlement, during the life of A . B . who was a the Hargreaves and Thompson 's Contract, and, lastly ,
living person , and that under a will there was a everycaseoneofofRethose
Ebsworth and Tidy's Contract. In
cases the contract was treated
power of sale after the death of A . B . of thewhole as rescinded , and the
fee simple by other trustees, and that the trustees the deposit with interestvendor was directed to pay
under the will, who had no present power of sale, purchaser's costs of investigating at 4 per cent., the
contracted for the sale of the whole estate, and the costs under the Vendor and Purchaser the title, and
the purchaser raised the objection , “ You have no Act.
power of sale in anything but the reversion ." That is the order I make here.
Could they in such a case say, “ We will compel Solicitor for the purchaser, Alfred Henry
you to accept a sale by the trustees of the settle Holmes.
ment" . They have no such power. They have Solicitors for the vendors, Simpson and Culling
no power to compel the purchaser to contract | ford .
with anybody else but themselves , and their
own contract they are utterly unable to carry out. Dec. 3 and 4, 1889.
Accordingly I think the purchaser is quite right
in his objection , and this summons must be (Before CHITTY, J.)
allowed with costs. Re YERBURY'S ESTATE ; KER v. DENT. (a)
Marten , Q . C .-- I also ask that the deposit may be Charities – Gift by will to - Interest in land - Rail
ordered to be paid to the purchaser with interest. way company - Mortgage debentures - Charge on
[Kay J. - That has been done ; but the Court of “ the undertaking " - Mortmain Act (9 Geo. 2,
Appeal, in one case lately has suggested a diffi c . 36 ).
culty as to that.] In Re Hargreaves and Thompson 's
Contract (55 L . T. Rep . N . s . 239 : 32 Ch . Div . | A mortgage debenturemade by the North -Eastern
454) it was laid down that, in exercising the sum - | (a ) Reported by A. COYSGARNE SIM, Esq., Barrister-at-Law .
56 - Vol. LXII., N . 8. ] THE LAW TIMES. [March 8, 1890.
Caan. Div.] Re YERBURY'S Estate ; Ker v. Dent. [Chan . Div.
Railway Company by virtue of a special Act of girls for service ; also, 5001. in promoting the
Parliament of 1854 (17 & 18 Vict. c. ccxi.), and knowledge and practice of the homeopathic
not in the form given in schedule C . of the Com system ; also, to pay the sum of 10001. into court
panies Clauses Consolidation Act 1845, being in for the benefit of the incumbent for the time
form a grant and assignment by the company to being of St. Mary's Church , Cheltenham .
the mortgagee, “ her heirs, executors, administra The testatrix declared it to be her particular
tors, and assigns, of the North -Eastern Railway
and undertaking, and all branch railways, lands,
will and desire that her property should , by
her trustees, be divided immediately after her
and hereditaments connected therewith and decease into two classes. First, that which was
belonging thereto," may be validly bequeathed to disposable by law to charitable purposes, and
charities, and does not fall within the Mortmain second, that which was not disposable. That out
Act (9 Geo. 2, c. 36 ). of the first class should be paid all the legacies
The “ undertaking ” of a railway company, which or trusts by her will given or declared in favour
is pledged in such a mortgage, is the going concern of charities or for purposes which could not
of the company, and does not give the right to legally be paid out of class 2 , and should there
ang specific charge on the surplus lands, or the be any surplus of class 1 after answering all
proceeds thereof if sold. those purposes her trustees should divide the
Gardner v. London, Chatham , and Dover Rail | same equally between the British and Foreign
Bible Society, Church Missionary Society, and
way Company (15 L. T. Rep. N . S. 494 ; L. Rep. Church Pastoral Aid Society, to be applied as
2 Ch. App. 201) followed . aforesaid . Should there be a deficiency in class
ADJOURNED SUMMONS. 1 to answer such purposes a deduction should be
Rebecca Yerbury, by her will dated the 23rd made pro ratâ from all the charitable legacies.
Oct. 1862, devised , and bequeathed unto Sarah payable after the death of S . Lewis, but not from
Lewis, Katherine Elizabeth Cowan , Alfred Har those payable previously . That out of the second
ford Hartland, the Rev. Edward Walker, and the class should be paid all the testatrix 's debts,
plaintiff Claudius Buchanan Ker, all her free. | whether on mortgage, simple contract, or other
hold and copyhold messuages, lands, heredita - | wise, funeral and testamentary expenses, all the
ments, and real estate, and all her stocks, funds, expenses attending the carrying on and winding
mortgages, securities, and other personal estate of up of her trust estate, and all the legacies and
which she should die seised or possessed npon the sums of money thereby given to individuals, and
trasts set out in numbered paragraphs in the other dispositions, charges, and payments not
will, which , so far as material for the present within the Mortmain Act. Should there be any
report, were in substance as follows: To pay surplus of class 2 after answering all the pur
debts, funeraland testamentary expenses. Within poses, the trustees should pay the same unto
twelve calendar months after the decease of the W . Y . Dent and the Rev. E . Walker for their
testatrix to pay to the treasurers of the institu absolute benefit as tenants in common share and
tions in Cheltenham therein mentioned certain share alike. Should there be a deficiency in class
legacies, and to appropriate certain sums for 2 to answer such last-mentioned purposes,a deduc
charitable purposes. To pay certain pecuniary tion should be made pro ratâ from all the legacies
legacies therein mentioned . To permit s . Lewis to individuals payable after thedeath of S . Lewis ,
to have the use , during her life, of the testa but not from any of those payable previously.
trix's dwelling-house, and to pay to her, for her The will contained a power of appointing new
life, all the rents, interests, dividends, and trustees and other usual clauses, and the testatrix
profits of the testatrix's undisposed -of real and appointed her trustees executors of her will.
personal trust estate. During the life of S. Lewis, The testatrix died on the 23rd Nov. 1864 ,and her
if requested by her in writing, or as soon after her | will (together with a codicil which did not con
death as circumstances would admit, to sell the tain any provisions material to this report) was
dwelling-house , and all other the real estate, and duly proved on the 22nd Dec . 1864 by S . Lewis,
all the personal estate of the testatris, in its | A . H . Hartland, E . Walker, and C . B . Ker, power
nature saleable , and to stand possessed of the pro being reserved to make a like grantto C . E . Cowan .
ceeds of such sale, and of any rents of her real In pursuance of the directions in her will the
estate upon the trusts of her will. As soon after estate of the testatrix was divided by the
the decease of S. Lewis as conveniently might be | trustees immediately after her death into two
to pay to the treasurers of the respective institu classes. The interest on the above stocks and
tionsnextmentioned and appropriate the sums of sums out on mortgage accruing at the testatrix 's
money following , that was to say : to the British death was paid over to the tenant for life. The
and Foreign Bible Society, but with a special charitable legacies and the duty thereon were
view to the benefit of the African race, 10001.; to paid by the trustees within twelve months after
the Church Missionary Society , also with the like the testatrix 's decease out of property comprised
special view to the benefit of the African race, in class 1. The pecuniary legacies, together with
10001.; to the London Missionary Society, 3001.; the expenses of probate and administration and
to the Wesleyan Missionary Society, 5001.; to the the debts of the testatrix, were paid by the trus
London Society in aid of Moravian Missions, 3001 ; tees,as to part out of themoney on mortgage and
to the Church Colonial and School Society , 10001.; the proceeds of the shares in Christ Church ,
to the Church of England Pastoral Aid Society, Cheltenham , comprised in class 2 ; and as to other
5001. ; to the Society for the Better Observance of part out of property comprised in class 1. No
the Lord 's Day, 5001. ; to the Malta Protestant strict division and appropriation of the pure
College, 10001.; to the Church Patronage Society , . personalty and impure personalty and realty
5001.; to the Asylum for Idiots, instituted 1847, I was made by the trustees, but after making the
at Earlswood , near Reigate, 10001.; also, to apply payments hereinbefore mentioned they retained
10001. for the protection and training of young I unconverted , in addition to securities belonging
March 8, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 57
Chan . Div .] Re YERBURY'S ESTATE ; KER v. DENT. [Chan . Div.
to class 1, a sum of60001. secured by mortgage to j charge on the lands belonging to the railway com
the North-Eastern Railway Company. pany, and therefore conferred upon the testatrix
The annual proceeds of the securities repre an interest in land within the meaning of the
Mortmain Act (9 Geo. 2, c. 36). The limitations
senting the trust estate were paid to S . Lewis,
the tenant for life under the will, until her death
being to the testatrix , “ her heirs, execntors, ad .
on the 7th May 1828 , and she was permitted to ministrators, and assigns," support this conten
occupy the dwelling-house. tion , and distinguish the present case from that
Of the trustees named in the will, E . Walker of Gardner v . The London , Chatham , and Dover
died on the 3rd July 1872 ; K . E . Cowan died on Railway Company (15 L . T. Rep . N . S. 494 ; L .
the 2nd Jan. 1879 without baving proved the Rep. 2 Ch. App . 201) , and also that of Myatt v .
will; A . H . Hartland died on the 8th Feb . 1886 ; The St. Helen 's Railway Company ( 2 Ad. & Ell.
and S. Lewis died as above mentioned on the 7th N . S. 364), in which " heirs ” werenot mentioned.
May 1888 . Romer, Q .C . and L . T. Dibdin for the charities.
By an indenture, dated the 20th July 1888,
J. B. Winterbotham was appointed a trustee of - We submit that this is a good charitable be
the will jointly with C . B . Ker, the surviving quest. The undertaking ofthe railway company
as a whole is charged generally , and nothing is
trastee. The trustees were proposing to dis actually specifically charged ,and on this ground
tribute the estate between the charities mentioned the
in the will, and the several legatees entitled to judgmentscomes
case within the ratio decidendi of the
the property of the testatrix not disposable by Myatt's case (ubiinsupGardner's
both case (ubi sup.) and
.) One effect of the conten
law to charitable purposes, when the present tion on behalf of the residuary legatees would
question was raised with reference to the North
be to give to the debenture-holders a right to
Eastern Railway mortgage for 60001. A claim claim a charge on any surplus land belonging to
had been made on behalf of the Church Mission the company, or , if sold , on the proceeds. This,
ary Society for Africa and the East, and the it is clear, was not intended . The words " con
Wesleyan Missionary Society, that the money nected therewith and belonging thereto ” (that is
secured by the mortgage was disposable by law to the undertaking ) make the case plain . [ They
to charitable purposes, and ought to be applied
primarily in payment of the legacies or trusts by were stopped by the Court.]
the will given or declared in favour of charities. Byrne replied.
The mortgage was dated the 28th June 1861, and CHITTY, J. — The question I have to determine
was made by virtue of the North -Eastern Rail. | in this case is, whether a certain instrument can be
way Companies Act 1854 (17 & 18 Vict. c. ccxi.), | validly disposed of by will to charities, or whether
and of the powers and authorities contained in such disposition is precluded by the Mortmain
the Acts of Parliament therein recited or referred Acts. The instrument purports to be a mortgage
to, and was in form a grant and assignment by | by the North -Eastern Railway Company for
the North -Eastern Railway Company to R . | 60001., and to be made under an Act of Parlia
Yerbury ,her heirs, executors, administrators, and | ment of 1854. This Act of 1854 is an amalga
assigns, of the North -Eastern Railway and mating Act, and embodies substantially the terms
undertaking, and all branch railways, lands, and of several other Acts. Now , the residuary lega
hereditaments connected therewith and belonge | tees admit that they cannot point out any section
ing thereto ; and all and singular the rates, in these Acts which would render a mortgage by
tolls ,and sums of money arising or wbich might the railway company of its undertaking as a
be demanded and taken by virtue of the several whole necessarily a grant of an interest in land.
Acts or any or either of them , and all the estate, They allege, however , that, reading themortgage
right, title , and interest of the railway compary itself, the only right conclusion to be gathered
in and to the several premises respectively ; to therefrom is , that it was intended to include any
hold unto R . Yerbury, her heirs, executors, ad superfluous lands belonging to the company, and
ministrators, and assigns, until the sum of 60001. I that it must not be confined to a grant of a general
together with interest at 41. 108. per cent. | charge upon the undertaking as a whole. The
per annum should be paid as in the mortgage mortgage runs thus: [His Lordship read the in
mentioned . By the North Eastern Railway Com . strument of the 28th June 1861, and continued
pany's Act 1854 a previous Act, namely, the as follows: The form of debenture set out in
York and North Midland Victoria Dock Railway schedule C . of the Companies Clauses Consolida
Act 1852, was incorporated so far as related to tion Act 1845 (8 & 9 Vict. c. 16 ) has not been
debenture stock to be created under the North - | adopted . The question of the true construction
Eastern Railway Company's Act. of a mortgage debenture under this Act was the
The summons asked (inter alia ) for the deter subject of very learned judgments in the Court
mination by the court of the question whether of Appeal in the case of Gardner v. The London ,
the sum of 60001.at the date of the death of the Chatham , and Dover Railway Company (ubi sup .)
testatrix, secured to her by the mortgage from The difficulty of the present case, however, arises
the North - Eastern Railway Company, dated the from the difference in form between the debenture
28th June 1861 hereinbefore set out, was money in the case before the court and the one in that
disposable by law to charitable purposes, or case. There the assignmentwas to themortgagee,
whether such mortgage was an interest in land | his “ executors, administrators, or assigns ;" here
within the provisions of the Mortmain Act (9 the “ heirs ” are mentioned. Still, I think that
Geo . 2, c. 36 ). the same principle applies to both cases. Cairns,
N . Micklem , for the trustees, stated the facts of L .J . and Turner, L .J ., in Gardner's case (ubi sup.)
the case, and submitted the question to the laid down the principle according to which in
court. | struments of this kind should be interpreted. It
Byrne, Q .C . and George Williamson for the is unnecessary to refer to their judgments at
residuary legatees. - The mortgage gave a specific l length , though I think the ratio decidendi is ap
58 - Vol. LXII., N . 8 .] THE LAW TIMES. (March 8, 1890.
Chan. Div.] Jones v. Watts. [Chan . Div.
plicable to this case. I hold that the mortgage ! The statement of claim contained allegations to
was confined to the undertaking of the railway the following effect : The plaintiff M . M . Jones
company as a whole, and as a going concern , and was the owner of a piece of land adjoining
that themortgagee would have no right to break Mainder Hall, and the plaintiff R . H . Jones was
up the concern on any specific charge on any par- the owner of a house, land, and premises known
ticular property. Although there is an enumera as Mainder Hall, in Monmouthshire. Prior to
tion of someof the things which go to make up the the 16th Aug. 1888 negotiations took placebetween
undertaking, this is only a mode of describing the the plaintiffs and the defendant with a view to
whole. The words are, “ The North -Eastern the letting by the former to the latter of the
Railway and undertaking ;" what follows,namely, 1 piece of land, together with Mainder Hall land
when lands and hereditaments are mentioned , and premises, for a term of years. Several letters
does not refer to the lands and hereditaments of passed between the parties which were not set
the company, but to branch undertakings belong | out in detail. By the said letters it was mutually
ing to the railway. The words " lands connected agreed by and between the plaintiffs and defen
therewith ” are the very words used by Cairns, dant as follows : That the plaintiffs should grant
L .J. in Gardner's case (ubi sup.). Some unneces. and the defendant would forthwith accept and
sary words may possibly have been used, but they execute a lease of the said piece of land, together
are not sufficient to create a charge on any with the said Mainder Hall and the land and
specific property , and do not affect superfluous premises thereto belonging and therein defined ,
lands. Í hold , as a matter of construction, that for the term of seven years from the 1st Oct.
this instrument does not include superfluous 1888 , with the option to the defendant to deter .
lands, and therefore that the well -established mine such lease at the expiration of the first five
principle relating to ordinary debentures in a years of such term by giving to the plaintiffs
railway company applies. The result is, that the twelve calendar months previous notice in writing ,
charities named in the will ofthe testatrix are en possession to be given on the 1st Dec. 1888, at the
titled to this sum of 60001. and interest, so far as annual rental of 2501., to commence to accrue
may be necessary to discharge the bequests made when possession was given and the stables herein
in their favour. after mentioned were completed , and to be pay.
Solicitors : Waterhouse, Winterbotham , and able half-yearly. It was further mutually agreed
Harrison , agents for Winterbothams and Gurney, (inter alia ) that the lease should contain stipula
Cheltenham ; Williamson , Hill, and Co. ; Bridges, tions for the free use of the drive to the defen
Sawtell, Heywood , Ram , and Dibdin . dant, and a covenant by the plaintiffs as regards
obstructing branches to keep the drive in a fit
and proper condition . It was alleged that the
defendant refused to perform the agreement.
Saturday, Dec. 7, 1889. Theplaintiffs claimed specific performance ofthe
(Before NORTH , J.) agreement contained in the several letters, and
in the alternative damages. By his statement
JONES v. Watts. (a ) of defence the defendant denied that he had
Practice - Discovery – Production of documents entered into any agreemeut with the plaintiffs,
Agreement to grant a lease - Specific perform and , in thealternative, he said that, if any agree
ance - Vendor and Purchaser Act 1874 (37 & ment was come to as alleged , the agreement was
38 Vict. c. 78), s. 2. not correctly stated in the statement of claim .
The owners in fee of a freehold estate commenced Paragraph 10 ofthe statement of defence was as
an action for the specific performance of an follows :
agreement by the defendant to accept a lease of The only access to the premises comprised in the said
the estate for a term of years. The agreement agreement
certain
from the high road is over a drive through
gates standing at the entrance to the drive. It
provided (inter alia ) that the plaintiffs should was a term of the said alleged agreement that the plain
enter into a covenant 107 the free lise bymedejen tiffs should grant to the defendant an easement of the
dant of a certain “ drive ” as a means of access free use of the said drive, and should covenant to keep
Heldto the estate. the said drive in a fit and proper condition, and to clear
,that, by virtue of sect. 2 of the Vendor and away all obstructing branches. The said drive and the
Purchaser Act 1874 , the defendantwas not en said gates at the entrance thereof, and the land on which
titled to discovery from the plaintiffs of the they stand , are not the property of the plaintiffs, who
have no right or title thereto or power to demise the
documents in their possession relating to their same, nor any easement of way or otherwise over the
freehold title. same, nor any right, title, or power to grant any such
Held also, that, as the covenant contained in the easement over the same, nor any right or power to keep
agreement was not “ a covenant to grant or assign the drive in a fit and proper condition , or to regulato
a term of years," sect. 2 of the Vendor and the same. The plaintiffs are, in fact, unable to give to the
Purchaser Act did not apply , and that conse defendant a right of access to the house and grounds
comprised in the alleged agreement from the public road
quently the plaintiffsmustproduce the documents or to perform their agreement with respect to the said
in their possession relating to their right to grant drive.
the use of “ the drive.” The plaintiffs joined issue on paragraph 10 of the
ADJOURNED SUMMONS. defence, and stated as follows :
This was a summons taken out by the defen The plaintiffs will also rely on 37 & 38 Vict. c. 78, s 2,
dant that he might be at liberty to inspect the by way of answer to the allegations contained in the said
plaintiffs' title deeds. paragraph . The plaintiffs have a perfect right, title , and
ower to demise the said premises, and to grant the free
The action was brought for the specific per use of the drive, and to covenant as regards obstructing
formance of an agreement by the plaintiffs to branches to keep the drive in a fit and proper condition.
grant a lease to the defendant. The plaintiffs, on the application of the defen
(a) Reported by J. E . JEFFERY, Esq., Barrister-at-Law. I dant, were ordered to make an affidavit of docu
March 8 , 1890 .) THE LAW TIMES. [Vol. LXII., N . S. - 59
Chan . Div.] JONES v. Watts. [CHAN. Div.
ments in their possession relating to the matters I am not enforcing a right arising out of contract,
in question in the action. In pursuance of this but a right which the rules of procedure confer
order the plaintiffs made an affidavit. By this on meas a litigant. The Act was never intended
affidavit the plaintiff M . M . Jones said : to alter the rules of procedure between litigants.
I have in my possession or power the documents relat The Act throws the burden of proving a defect
ing tomyfreehold title to the property adjoining Mainder in the lessor's title on the lessee. When once the
Hall. The said documents are set forth in the first parties have raised an issue in an action the
schedule hereto . ordinary rules of procedure as to discovery
The plaintiff R . M . Jones said : apply. At any rate there is nothing in sect. 2 to
I have in my possession or power the documents rela deprive the defendant of the right to the pro
ting to my freehold title to the Mainder Hall estate . The duction ofthe plaintiffs' title to the drive. They
said documents are set forth in the second schedule have not agreed to grant a term of years, but
hereto .
only to covenant in respect of the use of it.
And both the plaintiffs said :
We are advised and believe that all the documents I doLush Wilson for the plaintiffs. - [NORTU, J.
before mentioned respectively relate only to our not wish to hear you as to the title deeds of
freehold title to the property over which the lease, the the freehold estate. I do not understand, how
subject-matter of this action , was to be demised . ever, why you should not produce the documents
The plaintiffs objected to produce these docn numbered 2 and 3 in schedule 2 which relate to
ments . the drive.] The agreement to covenant for the
The first schedule to the affidavit contained the use of the drive is part of the contract to “ grant
following documents : Copy deed of covenant a term of years." The grant of the drive will
relating to title and deeds relating to the freehold be derived out of the freehold estate, the right
title of the plaintiff M . M . Jones, the owner in to the drive will be demised ; therefore sect. 2 of
fee of the piece of land adjoining Mainder Hall. the Act applies.
The second schedule contained , (1) Conveyance NORTH , J. - The plaintiffs have entered into an
in fee, dated the 28th Oct. 1873, to William Jones, agreement with the defendant. The agreement is
of the freehold property known as Mainder Hall ; contained in someletters, the result of which I will
(2) Indenture dated the 29th Oct. 1873 containing take to be as it is stated in the pleadings. The
a signed and executed covenant by the owner in agreement is, first, that the plaintiffs will grant,
fee of the soil over which the drive, mentioned in and the defendant will accept, a lease of certain
paragraph 5 of the statement of claim , passes, property for a term of seven years. The agree
and in favour of the said William Jones, his
heirs and assigns, and to the effect that the ment contains no condition respecting the right
said owner in fee, his heirs and assigns, of thethe defendant
property ; historight
call for
to dothethisplaintiffs' title to
must therefore
will at all times thereafter repair and main depend upon the law , which for this pur
tain at his and their cost the entrance gates pose is containedgeneral in sect. 2 of the Vendor and
in the Newport and Chester -road and the said Purchaser Act 1874 . This section deals with con
drive, and that the owners or lessees or others | tracts to grant or assign a term of years, and, in
the occupiers of the said Mainder Hall,and their my opinion , it applies as between lessors and
respective agents and servants, shall at all times lessees, as well as between vendors and pur
thereafter have full and free access for them chasers in the ordinary sense of the words. That
selves, their horses, carriages, and carts, through being so, the contract contains by virtue of the
the said entrance gates, and along and over the section a provision that the lessee shall not be
said drive, and all other reasonable use of the entitled to call for the lessor's title to the freehold
same as an approach to the plaintiffs' estate ; (3) | out of which the term is to be derived . This pro
Conveyance, dated the 16th July 1881, from the vision is extended ,by sect. 13 ofthe Conveyancing
said William Jones to the said H . Jones of the Act 1881, to contracts for the grant of an under
fee simple of Mainder Hall aforesaid , with the lease. It is said that it is open to a purchaser
appurtenances thereto belonging, and also with who is resisting a claim for specific performance
the fullbenefit and advantageof the covenants and of his contract to show aliunde that the vendor
agreements thereto relating contained in the said has no title to the property. No doubt the pur
indenture of the 29th Oct. 1873. chaserthat,
is entitled
The defendant took out this summons asking said if he tois do that if aheclaim
resisting can . forBut it is
specific
that he might be at liberty to inspect the plain
tiffs' title deeds, notwithstanding their objection performance,
lessor has no he has the right to show that the
title by compelling the production
to produce tbem . of the documents of title which are in the pos
Upjohn for the defendant. - The plaintiffs session of the lessor, and that in so doing he will
rely on sect. 2 of the Vendor and Purchaser Act not be “ calling forthe title to the freehold .” In my
1874, and say that it relieves them from the opinion he will. I think that a lessee who is not
obligation to produce the deeds relating to their entitled to call for the lessor's title to the free
freehold title. That Act, however, only applies to hold, is not entitled as a litigant to compel the
vendors and purchasers, not to lessors and discovery by the lessor ofhis title deeds. That is
lessees. Sect. 2 does not alter the law as to dis the very thing which he is prevented by sect. 2
covery. A litigant has a right to compel his from doing ; he would be calling for the title to
opponent to give discovery of all documents in the freehold . But the agreement provides, in
his possession relating to the matters in issue. | the second place, that the plaintiffs shall enter
There is no analogy between the right of a into a covenant for the useby the defendant of a
purchaser to call for the vendor's title under a certain drive as a means of access to the house
contract for sale and purchase, and the right of and land. This, in my opinion, is not a contract
one litigant to call for the production of docu - to “ grant or assign " to the defendant a term of
ments in the possession of the other litigant. Il years in the drive, and the fact that it is contained
60 — Vol. LXII., N . S.] THE LAW TIMES. (March , 1890.
Chan. Div.] POSTLETIWAITE v. PORT PHILIP AND COLONIAL GOLD MINING COMPANY. [CHAN . Div.
in the same document as the contract to grant a 1 On the 12th April the meeting took place,
term of years in the house does not make it a con - and resolutions differing slightly from those
tract to grant a term of years. That there is a clear || proposed by the liquidator were passed. These
distinction between the two agreements is shown were confirmed at a meeting held on the
beyond question by the language of the plaintiffs 29th April.
in reply , which asserts that the plaintiffs have a 1 The material parts of theresolutions so passed
right “ to demise the said premises, and to grant | were as follows :
the free use of the drive." Sect. 2 does not 1. That the liquidator be and he is hereby authorised
operate to protect the plaintiffs from the pro and directed to sell and transfer to a new company to
duction of their title so far as the contract is a be incorporated . . . (6 ) The consideration for the
contract to do something besides granting a term said sale and transfer shall be the payment of the
of years. The plaintiffs must therefore produce sum of 20,0001 by the allotment to the liquidator or
to his nominees of 200 .000 shares of 58. each in the
the second and third documents mentioned in the new company credited with 28. paid thereon and having
second schedule to their affidavit, both of which & liability of 38. per share and no more, and the pay.
relate to the right of way, as regards which there ment and satisfaction by the new company of any
is no contract to “ grant or assign ” a term of gums which may become payable to any shareholders
years. of this company who have dissented under the Com
panies Act 1862.
Solicitors for plaintiff . Clark , Woodcock , and 2. That the liquidator be and he is hereby authorised
Ryland, agents for Vaughan and Hornby, Cardiff . and directed to procure to be allotted to every member
Solicitors for defendant, Watson , Son , and under
of the company requiring the same, as his nominee
the contract hereinafter mentioned, two shares
Room , agents for L. Overstone Jones, Newport, in the new company with 2s, credited as paid thereon
Monmouthshire. for and in respect of every share held by him in this
company. Provided always that to entitle the members
of this company to an allotment of such new shares
Nov. 29, Dec. 13 and 22, 1889. application must be made for the same in writing in the
form and manner prescribed by the liquidator, accom
(Before STIRLING , J.) panied by a payment of 6d. per share on thenumber of
POSTLETHWAITE v. Port PHILIP AND COLONIAL GOLD shares applied for within ten days next, after notice
MINING COMPANY LIMITED . (a ) requiring him to apply for the same shall have been
given in the manner in which notices are required to be
Company , Voluntary winding-up- Reconstruction
- Sale of assets for shares - Limit of time for
given to members under the articles of association of
this company.
taking shares— Companies Act 1862 (25 & 26 Vict. The resolutions then proceeded to direct the
c. 89), 8. 161. liquidator to dispose of so many of the 200,000
A company being in voluntary liquidation , rosolu. | shares in the new company as should not be taken
tionswere passed for the transfer of its assets to a | up by shareholders in the old company, and they
new company in consideration of shares in thenew further provided that any premium which should
company to be allotted to the liquidator of the be obtained for shares in the new company for
old company or his nominees, each member of | which shareholders in the old company (other
the old company being entitled to a proportionate than dissentient shareholders) would have been
number of shares in the new company, provided entitled to apply should be paid to such share
he applied for the same within ten days after holders, less the cost of realisation.
the receipt of notice requiring him so to apply . In pursuance of the above resolutions a com
In accordance with the resolutions a new com - | pany was on the 8th June incorporated under the
pany was incorporated , a contract for the transfer name of the Port Philip Gold Company Limited ,
of the assets was entered into,and a circular was and a contract was entered into for the purpose
issued by the liquidator to the members of the of carrying theresolutions into effect,to which the
old company informing them of the timewithin Port Philip and ColonialGold Mining Company ,
which application for shares in the new company the liquidator,and the Port Philip Gold Company
must be made. The plaintiff, who was a share were parties.
holder in the old company, sent in his applica The liquidator thereupon issued a circular to
tion for shares somemonths after the time limitedthe shareholders of the Port Philip and Colonial
had elapsed . Gold Mining Company offering them shares in
Held , that there was power under sect. 161 of the the Port Philip Gold Company in accordance
Companies Act 1862 to fix a reasonable time for with the resolutions. The material parts of this
the exercise of the option to take shares in the circular, which was issued on the 12th June, were
new company ; that the time fixed by the resolu as follows:
tions was reasonable, and that the plaintiff, not I have now the pleasure to inform you that the new
having applied within that time, was not entitled company called the Port Philip Gold Company Limited
to have shares in the new company allotted to has been incorporated under the Companies Acts
him . 1862-1886 , with a nominal capital of 50 ,0001, in 200,000
shares of 58. each , every shareholder in this company
In the early part of the year 1889 the Port Philip being entitled to apply for and have allotted to him two
and Colonial Gold Mining Company Limited shares of the new company of 58. each (credited with 28.
went into voluntary liquidation with a view to per share as paid thereon , and leaving a liability of 3s.
reconstruction , and a liquidator was appointed . per share) in respect
old company. of each
I have also share
much held by
pleasure him in that
in stating the
The liquidator on the 2nd April issued a n pursuance of the powers and instructions given meat
circular convening an extraordinary meeting the above-mentioned meetings, I have entered into an
of the shareholders for the 12th of the same arrangement with theGold Trust and Investment Com .
month for the purpose of considering certain pany Limited , who for a payment of 3d . per sbare have
guaranteed to find subscribers for the whole of the
resolutions with regard to the reconstruction of shares (if any) which may not be taken by the share
the company. holders.
(a) Reported by A . PULLING, Esq., Barrister-at-Law . The circular then proceeded to offer the share
March 8, 1890. ) THE LAW TIMES. (Vol. LXII., N . 8. - 61
Chan. Dir.] POSTLETHWAITE v. Port PuiLIP AND COLONIAL GOLD MINING COMPANY. [Chan. Div .
holders of the old company shares in the new sect. 161 of the Companies Act 1862, which
company, and continued as follows : enables the liquidator in a voluntary liquidation ,
If no application is received from you on or before under certain circumstances, to accept shares asa
the 25th day of June inst., or so far as any appli. | a consideration for the sale of the assets of
cation may not extend, you will be deemed to have company. That section does not authorise the
refused an allotment of shares in the new company, to
which you are entitled under the special resolutions and liquidator to impose a limit of time within
draft contract, and you will be excluded from an allot which the shareholders of the old company are to
ment accordingly . Any shares unapplied for will be exercise their option of taking shares in the new
disposed of by me as liquidator to such person or company :
persons, and at such price and on such terms and con Griffith v. Paget, 37 L. T. Rep. N . S. 141 ; 5 Ch.
ditions (if any ) as I may think fit. Div . 894 ;
A form of application accompanied this cir Alexander v. Simpson ,61 L. T . Rep. N . S. 708 :
cular, and a further circular was also subse Clinch v Financial Corporation , 19 L . T. Rep. N . S.
quently issued containing instructions for filling 334; L. Rep. 4 Ch. 117.
up the form of application . The application by the plaintiff for shares was
The plaintiff, who was a member of the London accordingly not too late.
Stock Exchange, was the holder of 1978 shares in Grosvenor Woods and Kerly for the liquidator.
the old company. He did not attend any of the - If a shareholder fails to exercise his option he
meetings of the company, but he expressed no loses his interest in the shares, but remains
dissent from the above -mentioned resolutions. bound by the resolutions:
It was proved that notices of the meetings of the Higgs' case, 12 L . T. Rep . N . S . 669 ; 2 H . & M .
12th and 29th April and the circular of the 657.
12th June were duly sent by post to him at the ItThefollows that theremust be insome limita limit
of time.
Stock Exchange, which was bis registered text-books give schemes which of
address, in accordance with the articles of asso - | time has been sanctioned. They referred to
ciation of the old company. The plaintiff, on the Palmer's Company Precedents, 4th edit., p. 587;
other hand, stated that he had no recollection of Chadwyck Healey on Company Law and Practice,
having seen any of the circulars except a notice p . 377.
and formsof application , which were posted with If under sect . 161 a sale may be made for shares
the circular of the 12th June. It was admitted, | at all, then some time for taking up the shares
however, that on the 17th June the liquidator must be limited. The option must be exercised
called on the plaintiff at the door of the Stock within a reasonable time:
Exchange and asked him how many shares he Zuccani v. NacupaiGold Mining Company, 61 L. T.
would be willing to take up , and that the plaintiff Rep. N . S. 176 .
told him he intended to take up his proportion , The time fised by the liquidator in the present
and no more. case was reasonable , and was therefore proper.
The plaintiff was away from business from the
17th June to the 4th Aug., and on the 24th TheySouthall also referred to
Aug. be filled up the form of application and v. British Mutual Life Assurance Society,
23 L . T . Rep . N . S . 682 ; L . Rep . 6 Ch .614 ;
returned it to the liquidator. At that time, how Re European Assurance Society Arbitration ,
ever, the arrangement with the new company 17 Sols . Jour. 403.
had been carried into effect, and the liquidator Buckley, Q .C . and G . F . Hart for the new com
was consequently unable to allot any shares to pany.-- Unless a limit of time for taking shares in
the plaintiff. the new company can be fixed, sect. 161 is
The plaintiff then issued the writ in the present totally unworkable. If such a limit may not be
action against the old company, the new com - fixed it follows that a shareholder may wait until
pany, and the liquidator. By it the plaintiff | he sees whether the new company will be suc
claimed a declaration that the agreement between cessful or not before applying for the shares, thus
the old company and the new company was reaping the advantages of success while at the
ultra vires the old company and void ; and he same time standing to lose nothing :
further claimed an injunction to restrain the old Weston v. New Guston Company, 60 L . T. Rep .
company and the liquidator from carrying into N . S. 805 ; and on appeal,Megone's Company Cases,
effect the agreement except upon the terms of vol. i., p . 352 ;
allotting or causing to be allotted to the plaintiff Zuccani v. Nacupai Gold Company (ubi sup.).
shares in accordance with the scheme sanctioned The judgments of the Court of Appeal in these
by the resolutions. cases proceed on the footing that a limit may be
The plaintiff now moved for an interlocutory imposed.
injunction, and it was agreed that, so far as Graham Hastings, Q .C ., in reply, referred to
related to the points now decided , it should be Nicholl v. Eberhardt Company Limited , 61 L . T .
treated as the trial of the action. Rep . N . S . 489.
The notice of motion as originally served was Dec. 22.- STIRLING , J. stated the facts and con
for an injunction in accordance with the second tinued : — The object of the present motion is to
claim on the writ. It was, however, amended by test the validity of an agreement for sale by the
leave during the hearing of the motion , and as old company to the new company, purporting to
amended was for an injunction to restrain the have been entered into under the provisions of
old company and the liquidator from parting sect. 161
with the assets of the old company and to restrain parties areofwilling the Companies Act 1862, and all
that I should dealwith the
the new company from dealing with any such case (so far as I can properly do so) as if this
assets already transferred to them otherwise than were the trial instead of being merely an inter
in the ordinary course of business. locutory application. The plaintiff is a stock .
Graham Hastings, Q .C . and Farwell for the broker on the London Stock Exchange, and
plaintiff. — The question in this case depends on 1 appears to have regularly attended to his business
62 - Vol. LXII., N . 8.] THE LAW TIMES. (March 8, 1890.
Chan . Div.] POSTLETHWAITE v . PORT PHILIP AND COLONIAL GOLD MINING COMPANY. [Chan. Div.
down to the 17th June. From the 17th June to | 13 Ch . Div. 475) before the Court of Appeal, as
the 4th Aug. he was compelled to absent himself well as by other cases, that a sale may be made
by domestic affliction. The plaintiff did not for shares to which a liability attaches ; and
attend any of the meetings of the company, but further, that in such a case the new shares may
he did not dissent from the resolutions passed at be given directly to the shareholders of the old
them . It is proved that the notices of the meet company, and need not in the first instance go to
ings of the 12th and 29th April and the circular the liquidator, the reason being, as is stated by
of the 12th June were duly sent by post to the the late Master of the Rolls, that " it is perfectly
plaintiff at his registered address at the Stock well known that the liquidator will not take
Exchange in accordance with the provisions of shares which are not fully paid up .” On the
the articles ofassociation of the old company. In other hand, it was decided in Higgs' case that a
answer to this the plaintiff states that he has no shareholder , even although he has not expressed
recollection of having seen any of the circulars | his dissent from the special resolution sanctioning
except a notice and forms of application , which the sale, cannot be compelled to accept the shares
are proved by the evidence to have been posted in the new company against his will. How then ,
alongwith the circular of the 12th June, and that are shares to which a liability is attached , which
to the best of his knowledge and belief no other the liquidator will not take, and the shareholders
circular was ever received at his office. The cannot be compelled to accept, to be distributed
plaintiff, however, admits that in June 1889, and among them pursuant to sect. 161 ? The answer
shortly before the 17th thereof, the liquidator is by giving to every shareholder who does not
called on him at the door of the Stock Exchange dissent what in substance amounts to an option
and asked him how many shares he would be to take shares in the new company , and if the
willing to take up, and that he told him he scheme under consideration had been framed in
intended to take up his proportion and no more. this simple form , I conceive its validity would
Under these circumstances, I think it must be not (regard being had to the decisions to which
assumed that the notices and circular were duly | I have referred ) have been open to question .
received at the plaintiff's office, and that pre If the shareholder fails to exercise his option the
viously to the 17th June he was, or with reason result is that he loses all interest in the shares
able diligence might have been , aware of the which he might have taken, but is bound by the
obligation which lay on him under the special resolutions which have been passed . This is laid
resolutions to send an application for shares by down by Lord Hatherley in Higgs' case, and also
the 25th June. He did not, in fact, send any in Clinch v. Financial Corporation . This being
application by that date ; but on his return to so , it is next to be considered within what time
business on the 24th Aug.he filled up the form of the option is to be exercised . It seems clear that
application and sent it to the liquidator. At this it cannot remain open for ever. The distribution
time, however, the liquidator had carried into contemplated by sect. 161 must take place before
effect the arrangements mentioned in the circular the close of the winding-up, in the course of
of the 12th June, and consequently was unable to | which the sale is made. It is said that the option
give him any shares. After some correspondence ought to remain open until the liquidator has
between the solicitors of the plaintiff and the obtained , under sect. 138, the direction of the
liquidator, this action was commenced on the court as to any shares which a shareholder who
2nd Oct. by writ asking a declaration that the has not dissented has abstained from accepting.
agreement entered into between the old company The liquidator may, no doubt, if he sees fit, pro
and the new company is ultra vires the old com tect himself by an application to the court in
pany, and inoperative and void , and ar. injunc reference to the distribution of the shares ; but
tion to restrain the old company and the liqui. I see nothing which renders it obligatory on him
dator from carrying into effect the said agree to take such a course. All that seems incumbent
ment, except upon allotting or causing to be on him to do is to take care that each share
allotted to the plaintiff shares in accordance with holder has afforded to him reasonable opportu
the scheme sanctioned by the resolutions of April. nities of obtaining, if he is so minded , the shares
Notice of motion framed in accordance with the intended for him ; and if, having done this, the
second of these alternatives was given , but it has | liquidator is able to wind up the affairs of the
since been amended ,and is now to the effectwhich company and close the liquidation without
I have stated . The new company have allotted recourse to the court, he appears to me to be
all their capital, in accordance with the agree entitled to do so. The question , however, affects
ment with the old company , and have been put in not only the selling company, but also the pur
possession of the property of the old company, chasing company. Every company is interested
though a legal conveyance has not actually been in knowing who constitutes the body of its own
made. Two objections are urged against the shareholders, more particularly when a liability
plaintiff's title to relief- first, it is said that the attaches to the shares. In the present case the
resolutions and agreement are within the powers company, having been formed to work a gold
of the old company, and are valid ; and secondly , mine, was of a highly speculative character , and
that even if they are not, the plaintiff is debarred the liability attached to the shares was intended
from relief by delay and acquiescence. In sup to furnish the means of obtaining the capital
port of the first of these objections it was urged necessary for working the mine. Under these
that the shares to be received in compensa circumstances it was only reasonable for the pur
tion for the sale to the new company were not for chasing company to stipulate and for the liqui.
the purpose of distribution among the members dator and shareholders of the selling company
of the old company within the meaning of to agree that a limited timeshould be fixed within
sect. 161. It was not disputed before me, and it which alone the option should be exercisable ;
is shown by the case of Re City and County and I see nothing in sect. 161 (as interpreted by
Investment Company (42 L . T. Rep. N . S . 303; I the decisions to which I have referred ) to prevent
March 8, 1890.) THE LAW TIMES . [ Vol. LXII., N . S.- 63
Chan . Div . ] Re MAINWARING , deceased ; CRAWFORD v . FORSHAW . [Chan . Div.
this from being done. In my opinion therefore 1 of realisation . No loss or liability is thrown on
the schemewas not vitiated by the insertion of a the old shareholder, for by clause 3 of the agree
limit of time within which the option was to be ment any expenses incurred by the liquidator are
exercised, provided the limit was such as to leave to be borneby the new company, while anybenefit
the option available for a reasonable time. I am which may result from the dealings of the
confirmed in this conclusion by such authority as liquidator comes to the shareholder. In my
is to be fonnd on the point. In the first place , opinion the scheme is, in substance, one for the
schemes containing similar clauses are shown to distribution among the shareholders (who do not
have been repeatedly sanctioned by the court. It dissent) of shares to which liability attaches
is true that in no case does the point appear to | within the terms of sect. 161 of the Companies
have been formally adjudicated upon . Neverthe Act 1862. In coming to this conclusion I conceive
less, I cannot think that it entirely escaped obser . that I am not departing from anything decided
ration , and it appears to me that some weight is or laid down in Griffith v. Paget. In that case
due to the circumstance that such clauses were there was an attempt to distribute the shares
passed without objection by Sir G . Jessel and which constituted the consideration for the sale
Hall, V .C . Next, I have said that if the scheme in a different way from that in which a money
had been formed so as simply to give each share consideration would have been divided, so that
holder an option without limiting any time for some of the shareholders would have been
its exercise, it is difficult to see how objection deprived of property to which they were entitled.
could have been taken to it. Now , in the case of That was held to be invalid . In this case there
Zuccani v. Nacupai Gold Mining Company is not in the resolutions, as I read them , any
Fry, L .J . said that, no time being limited by the such attempt. There is no interest conferred on
scheme then under consideration for the exercise assenting shareholders of which non -assenting
of the option , it must, as a matter of law , be exer shareholders are attempted to be deprived . On
cised within a reasonable time. The reasoning the contrary , the utmost appears to have been
which led the Lord Justice to that conclusion done for their benefit . I think it unnecessary to
appears to me to beapplicable to the presentcase , express an opinion on the second point beyond
and to show that here also the option, if no time | this , that I think it appears to be open to
had been prescribed for the exercise of it, must | serious doubt whether a shareholder who pre
have been exercised within a reasonable time. viously to the 17th June expressed his willingness
If this be so , it seems to me that the scheme to take up his proportion of shares,who on the
cannot be vitiated merely by the circumstance 24th Aug. sent in an application for those shares,
that the scheme itself fixes that reasonable time. and who did not previously to the 2nd Oct. chal
It was said, however, that in Nicholl v. Eberhardt lenge the validity of the resolutions, is not pre
Company the Court of Appeal had expressed cluded from claiming relief founded on their
doubt as to the validity of such stipulations. In | invalidity in a case where those resolutions have
that case, however, the limit of time was left to been acted upon to the extent which here appears.
be determined , not (as here) by the liquidator of Themotion must be dismissed.
the old company, but by the directors of the new
company, and it was provided that all shares Green Solicitors for the plaintiff, Snell, Son, and
ip .
which should not be applied for within such time
should be at the disposal of the new company, and Verden . for the new company, Kerly, Son ,
Solicitors
the latter being a ditferent provision from that Solicitors for the liquidator, Michael Abrahams,
which is found in the present case. Even there, Son,and Co.
however, as I read the judgments delivered in
the Court of Appeal, no great weight appears to
have been given to the objection which was raised Saturday, Jan . 11.
to the limitation of time for the exercise of the (Before KeKEWICH , J.)
option ; the objection which was felt to be Re MAINWARING , deceased ; CRAWFORD v .
serious being that to the second of the provisions
I have mentioned . In the present case it is not FORSHAW . (a )
suggested , or at all events it is not proved , that Legacy to executor — Power to executor to select
the limit of timewhich was ultimately fixed by beneficiaries — Renunciation of probate - Right
the liquidator was unreasonable, and in my to legacy - Right to exercise power of selection .
opinion the first and second resolutions were not Testator gave to each of his three executors a legacy
beyond the powers of the company. Then is the for the trouble of carrying outhis will, and also
third resolution invalid : I think not. It to mark his friendship and regard for them .
appears to me, when carefully examined, to be He gave his residue among certain charities or
really for the benefit of a shareholder who does such others " as my executors herein named may
not exercise the option given to him . Such a select.” One executor renounced .
shareholder not exercising the option reserved to Held , that he was entitled to the legacy, and also to
him wonld,according to the decision of the Court join in the selection of the charities.
of Appeal in Weston v. New Guston Company, This was a summons taken out in the Liverpool
lose all his interest in the shares of the pur District Registry by J. D . Crawford and w .
chasing company ; but instead of this, a further Jones, the acting executors of the will of John K .
chance of benefit is given to him by the provisions Mainwaring, John Forshaw , to determine
ofthe third resolation . This resolution , in effect, whether the against
provided that the liquidatorshall (without coming been appointeddefendant Forshaw , who also had
an executor of the will, but had
under any legal obligation so to do) be at liberty renounced probate thereof, was entitled to take
to make the most of the option on the share
holder 's behalf, accounting to him for any part with the acting executors in the selection of
premium he receives, less the costs and expenses 1 (a) Reported by F .GOULD, Esq., Barrister-at-Law.
64 - Vol. LXII., N . 8.] THE LAW TIMES. [ March 8, 1890.
Chan. Div.] AMERICAN BRAIDED WIRE COMPANY v. THOMSON AND Co. [Chan. Div.
the charitable institutionsamongwhich thetesta - to me that it does. It seems to me that the point
tor's residuary estate available for such purposes | there decided was not the point now before me.
was to be distributed . I do not think that the court meant to decide
Thewill, which was dated the 12th Oct. 1877 , that a power vested in “ my said executors here
was so far as material for this report as follows : inafter particularly named ” could not be exer
To my executors herein named the sum of 501. each cised by an executor who did not prove. Now , is
for the trouble they have in the execution of this my this power of selection given to the executors as
will, and also to mark my friendship and regard for them , part of their office of executor ? because, if it is
and I hereby appoint Joseph D . Crawford . . . John not, the Probate Act which has heen cited has no
Forshaw . . . and William Jones . . . executors application . I think it is not so given . I appre
of this my will. I also give . . . to the several chari
table institutions hereafter named the respective hend that directly you have a residue or an
amounts written opposite each institution . . The appropriated fund clear of debts and legacies, it
residue of my estate I leave and bequeath to the above.
named charitable institutions, or such others and addi becomes a trust fund, and the trust of it becomes
part of the duty of the executor as trustee, and
tional as my executors herein named may select, to be not as executor. I do not think the power of
divided in such proportions as they may approve of.
The testator died in 1888 , and his will was selection can be part of the defendant's duty as
proved by Crawford and Jones, Forshaw having executor. I have already held that he is entitled
renounced probate. In July 1889 an originating to the legacy , but I do not think the present
summons was taken out in the Liverpool District question is controlled by that : my reason for
Registry in order to determine (inter alia ) whe that decision was, that there were other motives
ther Forshaw was entitled to the legacy of 501. for the legacy besides the trouble of executor
under the will. This summons having been ship . My opinion is, that this power of selection
adjonrned to be heard before Kekewich, J., his is not part of the executorship duty, but in the
Lordship decided in chambers that Forshaw nature of a trust, and I think the general
was entitled to the legacy notwithstanding his law aids me in that direction. I think the
renunciation . The present summons which was defendant Forshaw is entitled to join with the
subsequentlv taken out was adjourned into court, acting executors in selecting the charities which
and now came on for hearing. are to take the residuary estate. If I were to
Neville, Q .C . and Crawford for the plaintiffs, decide otherwise, the testator's " executors herein
the acting executors. — The proving executors named ” would not be the persons to make the
are alone entitled to select the charities which selection, inasmuch as the defendant Forshaw is
are to take the residuary estate. As soon as one of those named .
Forshaw renounced , his rights in respect of the Solicitors for the plaintiffs, Miller and William
executorship ceased by virtue of sect. 79 of the son , Liverpool.
Probate Act (20 & 21 Vict . c . 77), and by the same Solicitor for the defendant, Forshaw , Liver
section the “ administration of the testator's pool.
effects ” devolved on the plaintiffs alone. It is
part of the executors' duty to hand over the
residue to the charities, and it is part of the Jan . 18 and 20.
“ administration of the testator's effects." In (Before KEKEWICH , J.)
Keates v. Burton (14 Ves. 434 ), where the three AMERICAN BRAIDED WIRE COMPANY V. THOMSON
executors who survived the testator renounced , AND Co. (a )
a fourth having died in his lifetime, it was held
that the executors who survived had lost a dis Patent - Infringement - Underselling — Reduction
cretionary power given to them by the will. of prices — Loss of profits - Damages - Remote
The view of the learned author of Williams on ness.
Executors is, that it is doubtfulwhether renounc Where a patentee had obtained an injunction with
ing executorsmay exercise a power given to them a reference as to damages against an infringer
unless given to them in their proper names, and who was underselling him , the referee found that
without reference to their office. The power in the plaintiff had, in consequence of thedefendant's
this case is given to them quâ executors. competition , been compelled to reduce his original
Warmington , Q . C . and P . 0 . Lawrence for the prices, and that, but for such competition , the
defendant. The defendant Forshaw was named plaintiff would himself have sold all the articles
in the will for other purposes besides the duties wrongfully sold by thedefendant aswell as those
of executor. The power to select the charities is sold by himself, and all at the original prices.
not restricted to the office of executor. Where Held , that the plaintiff could not charge as damages
you find an office of trust distinct from that of the loss of profits consequenton his having been
executor, the executormay renounce the executor . compelled to reduce his prices,but only the profits
ship , and yet accept the trust. Both as regards made by the defendant on his sales. This held to
the legacy and the power of selection , the three be the effect of the decision in United Horseshoe
persons are named in exactly the same terms,and and Nail Company v. Stewart and Co. (59
your Lordship has already held that the defen . L . T. Rep. N . S. 561 ; 13 App. Cas. 401),
dant Forshaw is entitled to the legacy. They although the plaintif had never reduced his
referred to Sugden on Powers, 8th edit. 125 . prices below those of the defendant.
Neville , Q .C . in reply . - As regards the legacy, In tbis case the plaintiffs had obtained an injunc
the testator gives an additional reason for it, tion restraining the defendants from manufac .
namely, his friendship and regard for his exe turing or selling bustles or dress improvers in
infringement of the plaintiffs' patent, and an
cutors personally .
KEKEWICH , J. - If I thought that the case of order had been made referring it to the official
Keates v. Burlon (ubi sup.) decided the question I referee to assess the damages sustained by the
should of course follow it, but it does not seem i (a) Reported by F. GOULD, Esq., Barrister -at-Law .
March 8, 1890.) THE LAW TIMES. [Vol. LXII., N . S. - 65
Chan. Div .] AMERICAN BRAIDED WIRE COMPANY v. THOMSON AND Co. [Chan. Div .
plaintiffs by reason of the infringement already | undersells the patentee he makes the remedy of
committed . The official referee reported that i merely taking his profits useless.
between June 1886 and Feb . 1888 , the space of
time covered by the infringement, the plaintiffs Cohen , Q.C. in reply.
had from time to time reduced their prices to KEKEWICH, J.- In this case the official referee
those of the defendants ; that the plaintiffs had has reported two substantial results : First, that
never reduced their prices below those of the the sales by the plaintiffs of their patented
defendants, and that the plaintiffs' reductions in article during the period to which the report and
prices were made in consequence of the defen - litigation refer, namely, nineteen months, were
dants' competition, and their selling at lower decreased in exact proportion to the quantity of
prices than the plaintiffs, and in order to prevent sales effected during the same period by the
the plaintiffs being driven out of themarket ; he defendants, who are now prored to have sold
also found that, but for the defendants' competi- | articles in derogation of the plaintiffs' patent
tion ,and their selling at lower prices, the plain rights. I should be extremely unwilling to
tiffs would (subject to certain allowances , differ from the official referee on such a point
namely, reasonable reductions on account of in | after he has had all the witnesses before him ,
creased sales caused by the reductions in price, | and a full opportunity of examining all the
and on account of the connection and exertions documents, and also had theassistance of counsel
of the defendants) have made not only the sales on each side to criticise the facts and figures ;
made by themselves, but also those made by the | I have therefore not examined the evidence on
defendants, and at the plaintiffs' original prices. that point with that minuteness with which I
The official referee accordingly assessed the loss should be bound to examine it if I had to come
suffered by the plaintiffs in respect of the articles to a conclusion myself. It seems to methat, if
sold by themselves at the reduced prices at the official referee may fairly come— and as far
58061. 38. 4d ., and their loss in respect of the as I can form an opinion he has fairly come- to
articles sold by the defendants at 28191. 168.'6d., i the decision on this point at which he has
and certified the damages as 86251. 198. 10d. He arrived , I should accept it as a correct conclusion ,
found further that the profits made by the defen - and I do so all the more easily because, though
dants on their actual prices amounted to in the case in the House of Lords to which I
1654 . 188. ld . The defendants now moved to shall refer presently it was said that the sales
vary the certificate in regard both to the facts | by the appellants and respondents there, who
found and to the amount of damages. There was were patentees and infringers, could not have
also a motion by the plaintiffs to confirm the been precisely the same, yet it was held that they
report. might have been reasonably near one another. In
Aston , Q.C., Cohen , Q .C. and Lawson for the this case, having regard to that possibility of
motion to vary . - [ As regards the findings of difference, the official referee, in estimating the
fact it is unnecessary to give the arguments.] damages, has made an allowance which I think
The referee, in awarding as damages the loss would fairly meet any argument on that point.
of profits to the plaintiffs by reason of the Then he has further found that the reduction of
reduction in price, has proceeded on a wrong prices was made by the patentees, the plaintiffs,
principle,and contrary to the opinion expressed | in consequence of the sales by the defendants ;
by Lord Macnagbten in United Horseshoe and that is to say, he has found that the plaintiffs
Nail Company v. Stewart and Co. (59 L . T. might have sold all that they did sell plus all
Rep. that the defendants sold, at their old original
also N . S. 561; 13 App. Cas. 401). They cited prices ; that those original prices, in other words,
might have been maintained if the defendants
, 17 L. T. Rep . N . S. 407 ; L. Rep . 5 had not been the rivals of the plaintiffs in the
PennEq. 81v. ;Jack,
Smith v. London and South -Western Railway, 1 market,letters
Macrory's Pat. Cas. 209.
and selling articles in infringement of
patent. That, again , seems to me
their
Moulton, Q.C . and R . W . Wallace (Sir R . to be fairlya matter justified by the evidence. He has
Webster, A .-G ., with them ) for the plaintiffs, were found it as of fact, and for the purpose
called upon only with respect to the question of of my judgment I accept it as a fact. The much
reduction of price by the plaintiffs. The House more serious question , and one though which was not
of Lords, in the case relied upon by the defen necessarily before the referee, he has
dants, did not mean to lay down a general rule, assessed the damages on a particular footing, is ,
but to decide that in that particular case the whether that reduction in pricesmay be properly
damages given in consequence of the patentees regarded as an element in assessing the damages ;
having been compelled to reduce their prices | whether in fixing the prices of the articles sold
were too remote. Lord Macnaghten did not mean by the plaintiffs as well as by the defendants, for
to say that a patentee was bound to accept ruin the purpose of assessing damages, the prices
to his business by keeping up his original prices ought to be taken which the plaintiffs originally
in the face of competition ; and the official fixed , or whether those prices only ought to be
referee finds, as a matter of fact, that the plain taken which were in the result fixed by the com
tiffs had to ieduce their prices in order to save petition . Mr. Aston urged upon me to consider
themselves from being driven out of the market. that prices must have been reduced ; that it was
In the case relied upon by the defendants, the not known in the history of patents that the
course adopted by the patentees was not a reason patented article should maintain its original
able one. In that case the patentees had re price in the market for any lengthened period ..
duced their prices below those of the infringers. I am not disposed to accept that proposition
Not so here ; the plaintiffs have never sold at | This period was a short one, some nineteen
less prices than the defendants. They were com - | months; it is proved that the particulararticle was
pelled to protect themselres. When an infringer I one of some novelty, and early obtained fashion
66 - Vol. LXII., N . S.) THE LAW TIMES. (March 8, 1890 .
Chan. Div.] AMERICAN BRAIDED WIRE COMPANY 0. THOMSON AND Co. [Chan . Div.
able notoriety, and commanded a considerable coverable, that is to say, the profit which he
market ; and I do not think that there is anything mentioned there asbeing the measure of damages,
before me to prove that the fashion , though or the means by which the damages were to be
proved to have dropped off later, still had in any assessed , was to be the “ difference between the
way fallen during the particular period , so as, on cost of manufacture and the prices at which the
that score, to have prevented the plaintiffs from appellants were at the time selling to their own
maintaining theiroriginal prices. Butwhat is said | agents." He therefore determined that the
is this : that this consequence of competition is original prices were not to prevail ; that the
not the direct natural result which the law appellants, the patentees, were not to have
regards in estimating damages ; that, to use a damages in respect of the reduction of prices,
technical phrase, the damages arising from such but that the profit which would have been made
a result are too remote. I do not intend to by them if they had sold was to be considered
express any opinion of my own on that abstract with reference to the prices which they were
proposition , because I think I am bound to foliow actually charging - prices which were not only
the decision of the House of Lords in United much below their original prices, but also lower
Horse Shoe and Nail Company v . Stewart and than those which had been charged by tbe in
Co. (59 L . T . Rep . N . S . 561 ; 13 App. Cas. | fringing defendants. When the case camebefore
401), and, whatever that decision may be, to the Inner House on the reclaiming note that
fellow it loyally without, in the slightest degree, point of course was open , there having been what
pausing to inquire whether I myself should on in substance was an appeal on either side ; but I
the facts of this case or on the facts of the other do not find in the report in the Appeal Cases any
case bave arrived at another conclusion or not; particular reference to the point in hand . On
I must not be understood as intimating an appeal to the House of Lords it was referred to
opinion one way or the other. The point cer- in the argument on behalf of the appellants, and
tainly was discussed at considerable length in I suppose it must have also been referred to on
that particular case, and it is asserted on the one behalf of the defendants, the respondents, but
hand, that is to say , on behalf of the defendants, there are a very few words at the end of the
that that case governs the present. On the argument which are sufficient in the report for
other hand, it is asserted that the broad language disposing of it. I do not find that the Lord
used by one of the learned Lords was not in Chancellor, in moving the judgment of the House
tended to apply to all cases of a similar charac of Lords, really refers to the point at all - he goes
ter, but intended to apply only to the particular upon the other part of the case ; but Lord Watson ,
case. I find myself in a position of somelittle diffi I think , evidently bad it in his mind, because at
culty , because, on the one hand, I am bound to | the bottom of p . 410 he notices the allegation of
observe that in all cases in all courts,whoever the the plaintiffs that they were compelled to dis
judgemay be, the necessity of his position obliges pose of their own nails at lower prices than they
him to regard the particular facts of the particu would otherwise have obtained ; so that the point
lar case before him , and that all a judge says, of the reduction of prices was present to his
whether in a judgment delivered at the conclu mind. Beyond that he does not in any way deal
sion of the argument, or more deliberately after with the substantial question with which I have
consideration , must be more or less referred to deal here, namely whether the damages were
to the particular facts under consideration, and too remote. He notices again on p. 414 towards
nothing can be more dangerous than to construe the bottom , the conclusion or inference to
general statements as general when they have which he came, that “ even in the absence of
really only a particular application . On the other competition by the respondents, the appellants'
hand, it is the duty of judges occasionally, and sales would not have exceeded the limit they
especially, if I may venture to say so , in the had attained in 1882, and that their average
Supreme Court of Appeal, to lay down princi. could not have been maintained without a reduc
ples and to state what they conceive to be the tion of price ;" pointing rather to his view that
settled law , and to apply thatlaw to the particular the reduction of price was not the necessary
facts of the case ; and if they lay down principles, consequence of competition . But Lord Mac
or state what they conceire to be settled law , naghten takes up the point de novo as if it had
one must regard that, even though the particular not been , as I think it had not been , fully dis
application may not be apposite to the case in cussed by the other learned Lords, and deserved
hand. I have to steer as well as I can between those thorough consideration . He mentions it at the
two difficulties. I turn to the report of the case. bottom of page 415 , and he states there: “ As
That, like this, was a patent action : the rights | regards the claim in respect of reduction of
of the patentee had been decided , and what we price, the learned judges," meaning as I under
call an injunction - an interdict — had been stand, the judges of the Inner House, “ did not
granted , and damages had to be assessed . For | reject it as being too remote, but they thought
that purpose there was a new action , and the that it had not been proved that the competition
relief claimed in that new action is stated at of the respondents was really the cause of bring.
13 App. Cas. 402. The second head of relief ing down the prices. They considered thereduc
specifying wbat damages were claimed , is “ by tion attributable in a great measure to the com
the reduction of their prices which they alleged petition ofother nail manufacturers.” In the next
was necessary , and the direct result of the un paragraph he says, “ I am unable to agree with
lawful acts of the respondents.” That was this view ;" but I do not understand that passage
therefore before the court as one of the issues in as referring to the one which I have already
the action . The Lord Ordinary , according to read ; I think that that refers to the second
the report, did not devote any particular atten : I part of the preceding paragraph, in which he
tion to that point, but he is stated on p . 404 to says that the judges in the result seem to have
have held that the profit which was to be re- | been of opinion that the appellants were entitled
March 8, 1890 .] THE LAW TIMES. [ Vol. LXII., N . S.- 67
Chan . Div.] AMERICAN BRAIDED WIRE COMPANY v. THOMSON AND Co. [Chan . Div.
to only nominal damages. That is theview with prices so low that the infringers could not sell
which I understand him to say he is unable to at all, and not to apply it to a case where the
agree. I do not think that first entire paragraph reduction of prices only goes so far that the
on p. 416 has anything whatever to do with the patentees and infringers may sell on equal terms,
reduction of price. To that he goes in the second and the patentees get the full benefit of such
paragraph beginning, “ The sole question is ." advantages as they have by being large manu
Therehe considers what the loss must be — the loss facturers, and so forth . It seems to me that Lord
with regard to which damage is to be assessed, and Macnaghten has intended to lay down this :
he says, " The loss must be the naturaland direct 1 that in the case of an action by a patentee against
consequence of the respondents' acts.” That is an infringer for damages, although the patentee
stating an elementary proposition as the guide may be entitled to the benefit of all sales made
to what follows : " In the first place, I think the by theinfringer as if they were made by himself,
claim for loss of profit , by reason of the reduction so that he will get all the profits so made by the
ofprice, must be rejected." So far, if nothing more, infringer, yet, if he thinks fit to reduce the
I should suppose he is stating that,having regard | price, he is not entitled to recover the difference
to all the evidence in the case, that was the con - in price, because it is not the natural and direct
clusion at which he arrived ; but he goes on to consequence of the irfringer's acts, and is there
say, “ I do not think that was the natural or fore too remote. That seems to me the con
direct result of the respondents' acts." He is clusion at which he arrived. It may be that is,
there meeting the proposition which he had laid in some respects, hard upon the patentee, as it
down before, that the loss must be the naturaland is suggested . It may be that, on the other
direct consequence of the respondents' acts, and hand , it obliges a patentee to take more prompt
espresses his opinion that it was not. Still, that action, and to either have faith in his patent or
might possibly be with reference to the par- 1 give up the claim for damages altogether ; but
ticular case ; but he goes on to illustrate what he those consequences I do not think it would be
means by stating facts which no doubt were right for me to enter into. I consider that Lord
proved in that case, and came before him for Macnaghten , one of three judges giving judg
the purposes of that case, but which seem to me ments in the House of Lords in a case in pari
to be facts equally applicable to this , and facts | materiâ , bas laid down the law from which
which are intended not so much to illustrate the neither of the other learned Lords has in the
application of the principle to that particular slightest degree dissented, but to which I think
case, as to limit and expound the nature of the I must take them to have assented , because the
principle as applicable to these cases in general. judgment was given in their presence, and they
He points out that the patentees might, if they did not deal with the particular matter. Atany
had the courage of their faith in their own raté, it is the considered opinion of one of the
patent,have maintained their prices, and if they Lords of Appeal, given in a judgment in the ulti
could not sell at those prices they would thereby mate Court of Appeal, and I think it is binding on
enlarge their damages against the defendants me. Therefore I think I must adopt the alter
when ultimately their claim for damages native which the official referee has conveniently
was established. The language upon which presented to me, so as to prevent any necessity
Mr. Moulton relies is this : Lord Macnaghten for referring it back to him . Of course, if the
says, that, “ it was not a reasonable course plaintiffs are not entitled to any claim in respect,
on their part to reduce the price so as to of reduction of prices, they get nothing at all
injure their own trade ;" and Mr. Moulton says as regards those articles which they themselves
that here there was no injury to the trade of the sold . Then , as regards those articles which the
patentees as there was there, because in this case defendants sold, they get damages in respect of
the patentees never lowered their prices below them , but calculated , not with regard to the
what the infringers were demanding, whereas original prices, but with regard to the prices
there they did , so that it would seriously injure actually charged. Those have been assessed at
the trade which they would otherwise have the sum of 16541. 188. ld. I think that sum must
obtained ; but I canrot think that Lord be substituted for the larger sum , which is the
Macnaghten meant to distinguish between aggregate of the two sums mentioned in the
lowering prices below those charged by others, official referee's report. The ultimate sum found
and lowering prices so as to be in excess of those | due from the defendants to the plaintiffs is a
charged by others. I think he meant this : they | large substantial sum , and I do not see that the
reduced the price so as to realise less than they costs before the official referee would have been
would have realised if they had maintained their materially decreased if these wrongdoers had
own prices, and they injured their own trade been held liable on the lower rate instead of the
when they sold a dozen articles for less than the higher. I think the defendants must pay all
price which the articles ought to have fetched the costs before the official referee, but they
in the market. I think that the language applies have substantially succeeded in varying the
to such a case as I have before me, as to the case report here, and I think they ought to have the
which was then before the House of Lords. costs before me on this occasion , and that those
Again , he says : “ In lowering their prices they costs should be set off. The plaintiffs' notice
seem to me to have been prompted by a desire of motion asks that those costs may be taxed
to provide for the contingency of their failing in on the higher scale. Of course, this being a
their action" - which might equally be the case patent case, the costs of the original trial were
here , " and by an anxiety to drive their rivals taxed on the higher scale, but I do not see any
from the field whether they were right or reason for applying that rule to a case of inqury
wrong." It would be straining language byper as to damages before the official referee, and I
critically to say that an anxiety to drive their think the costs must be taxed in the ordinary
rivals from the field only pointed to reducing the way.
68 - Vol. LXII., N . 8.) THE LAW TIMES. [March 8, 1890.
Q .B . Div.] Smith (app.) v. Thomasson (resp.). [ Q .B. Div.
Solicitors for plaintiffs, Burn and Berridge. who shouted “ knobsticks," and threw refuse.
Solicitors for defendants, Witham , Lambert, The respondent was frightened. When near the
and Roskill. end of John-street the respondent got ahead of
the appellant, who rushed round the corner into
the next street and cameup to therespondent,and
QUEEN 'S BENCH DIVISION . followed him down two streets. The appellant
Saturday, Jan . 11. kept close behind the respondent, to whom , how
ever, he did not speak . When the respondent
(Before POLLOCK, B . and HAWKINS, J.) crossed the street he crossed the street after him .
Smith (app.) v. THOMASSON (resp.). (a ) Eventually the respondentwas taken into a dog.
Criminal law — Conspiracy and Protection of cart belonging to the master of the mill ; at
Property Act 1875 ( 38 | 39 Vict. c. 86), 8. 7 – that time the appellant was close behind him .
“ Persistent following." The appellant lived in a street in an opposite
By sect. 7 of the Conspiracy and Protection of direction to that in which the parties were pro
PropertywhoAct ceeding.
person with 1875,
a viewit to iscompel
enacted that “person
any other every The appellant contended : That the following
tosuchabstain of the respondent by the appellant without
other from
persondoing
has ora tolegal
do right
any act whichor
to do, speaking under the above circumstances was not
abstain from doing,wrongfully and without legal a persistent following from place to place within
authority . . . persistently follows such other the meaning of the Act.
person about from place to place shall ” be liable The justices found as & fact : That the appel
to a penalty. The respondent,who lant did persistently follow the respondent about
was posted outside works at whichwas he onhadstrike,
been from place to place with a view to compel him to
engaged as a picket, and when the workmen who abstain from doing an act which he had a legal
had taken silently
the placefollowed
of the strikers came out right to do, viz., to work for Messrs. Crook and
the works the respondent at ofa Co., and they fined the appellant 2s. 6d . and
short distance down two streets . A crowd which costs.
had been waiting outside the works also followed The question for the opinion of the court was,
the respondent with hostile words and gestures . Was there evidence on which the appellant could
The justices convicted the appellant under the be convicted that he did persistently follow the
above section . On appeal : respondent about from place to place with a view
Held , that the justices were right in their decision . to compel the respondent to abstain from doing
Case stated by justices for the borough of Bolton, an act which he had a legal right to do, namely ,
under the Summary Jurisdiction Act 1879 to Sect. work for Messrs. Crook and Co. ?
7 of the Conspiracy and Protection of
(42 & 43 Vict. c. 49), for the purpose of obtaining
the opinion of the court on questions which arose Property Act 1875 (38 & 39 Vict. c. 86 ), provides
as follows :
before them on the 8th June 1889, on the hearing Every person who with a view to compel any other
of an information laid and signed by J . Thomasson, person to abstain from doing or to do any act which
of Markland Hill, Heaton, in the county of sach other person has a legal right to do, or abstain
Lancaster, cotton operative (hereinafter called from doing, wrongfully and without legal authority ,
the respondent),against J. Smith ,of 9, Claughton . : . . persistently follows snch other person about
street, in the said borough (hereinafter called the from place to place . . . shall on conviction by a
appellant). court of summary jurisdiction, or on indictment, . . .
The facts of the case were, so far as material, be liable either to pay a penalty not exceeding twenty
as follows :- The information was laid under pounds, or to be imprisoned for a term not exceeding
threemonths, with or withouthard labour.
sect. 7 of 38 & 39 Vict. c. 86 , for that on the J. H . Tickell for the appellant. — The justices
3rd June 1889, at Great Bolton , in the county of werewrong. It is true that the appellant followed
Lancaster, the appellant did , with a view to the respondent, but that in itself was a lawful
compel the respondent to abstain from doing an act , and not intimidation ; pickets do nothing
act which he had a legal right to do, viz., to
work for Messrs. Crook and Co., wrongfully and wrong in attempting to persuade other men to
join a strike. There was no “ persistent follow
without legal authority, persistently follow the re ing " here. The term implies much more than
spondent about from place to place contrary to the appellant did in this case, and even if there had
the form of the statute in such case made and been
provided . The evidence given before tbe justices was nosuch a following of the respondent there
evidence that it was done with a view to
was to the following effect : A strike had occurred compel him to abstain from working .
at the mill of Messrs. Crook and Son , and the
respondent was engaged in the place of one of Henn Collins, Q .C .,for the respondent,was not
the hands who was on strike. The appellant was called upon .
one of those who had struck , and on the night of POLLOCK, B . - I bave no doubt that what the
the 3rd June he with five or six other pickets was defendant did in this case infringed the provision
seen standing outside the main entrance to of the Act of Parliament. The section which
Messrs. Crook 's works ; when the men who were treats of the offence deals with several Acts, the
at work there came out of the mill, a cry was description of which are of assistance in con
raised “ They are coming," and a crowd which struing the statute. The offences in the section
had collected received them with slight hooting. are defined as follows: Every person who with a
The appellant and the crowd followed the respon view to compel any other person to abstain from
dent at a quick pace down the street into which doing or to do any act which such other person
the main gate of the mill opened, called John has a legal right to do or abstain from doing,
street. The crowd consisted ofabout 300 persons wrongfully and without legal authority : (1) Uses
(a) Reported by ALFRED H. LEFROY,Esq ., Barrister-at-Law . | violence to or intimidates such other person , or
March 8, 1890.) THE LAW TIMES. (Vol. LXII., N . S.- 69
Q.B. Div.] GUARDIANS OF WAYLAND UNION v.GUARDIANS 0% MITFORD UNION. (Q .B . Div.
his wife or children , or injures his property ; | The father of a pauper legitimate child had
or (2) persistently follows such other person about acquired by long residence a settlement and a
from place to place ; or (3 ) hides any tools, clothes, status of irremovability in a parish in the M .
or other property owned or used by such other (the respondent) Union . He then , on the 11th
person , or deprives him of, or hinders him in the Oct. 1887, removed into a parish in the W . (the
use thereof; or (4 ) watches or besets the house appellant) Union , where he has since resided .
or other place where such other person resides, The pauper always up to the time of her becoming
or works, or carries on business, or happens to chargeable and subsequently resided with her
be, or the approach to such bouse or place ; father as part of his family, but she received
or (5 ) follows such other person with two or more the relief in her own name. When the father
other persons in a disorderly manner in or through removed from the M . Union , the child , being then
any street or road . The Legislature does not nnder the age of sixteen , removed with him .
intend in the 2nd sub- section to deal with intimi. She became sixteen in Feb. 1888, and became
dation by a crowd of people. The act of one chargeable to the W . Union on the 13th Aug.
person is sufficient to constitute an offence. 1888, being then over the age of sixteen . On the
Further, it is very clear that the Legislature 24th Oct. an order was made by justices for the
intended to preventmere acts, though done with pauper's removal to the M . Union on the ground
out any expressed intention. It was for the that the child , when she attained the age of
magistrates to say whether the act complained sixteen , became emancipated and took a deriva
of was in fact an act of intimidation . There was tive settlement from her father in the M . Union .
here plenty of evidence that the defendant in At the date of this order the father had resided
silently dogging the footsteps of the workman in the W . Union for twelve months so as to render
committed the act which the statute defines as him irremovable therefrom .
* persistently following." There were the further Held ,that, as the proviso in sect. 1 of 11 & 12 Vict.
facts before the magistrates that many other C. 111, was left unrepealed by the Divided
personswere pursuing a common course with the Parishes and Poor Law Amendment Act 1876,
äppellant. I think the magistrates were right, the child , notwithstanding sect. 35 of the latter
and that the appealmust be dismissed . Act, being unemancipated and living with her
HAWKINS, J.- It is impossible to define generally the father, though over the age of sixteen ,camewithin
what is “ persistent following ” within the mean operation of sect. 1 of 11 | 12 Vict. c. 111,
ing of the Act of Parliament. I will confine and was therefore irremovable from the W .
myself to the evidence which the justices had Union , as the father was irremovable therefrom .
before them , and which was enough to justify Case stated by the Chairman of the Quarter
their decision . It seems that some of Messrs. Sessions for the county of Norfolk :
Cooke's men were out on strike. The respondent At the general quarter sessions of the peace,
had gone in to supply the place of one of the holden for the county of Norfolk at Norwich on
men . The appellant with other pickets was the 2nd Jan . 1889, an appeal against an order of
stationed opposite a gate, out of which the re . two of Her Majesty's justices of the peace for
spondent had to come. When the men got out the county of Norfolk for the removal of a
of the gate, there was a cry raised “ They are pauper from the Wayland Poor Law Union to the
coming.” The men then went down the street Mitford and Launditch Poor Law Union , both
followed by the defendant and a crowd. Now the in the said county , was heard and determined .
defendant was not accidentally mixed up in this The said order was dated the 24th Oct. 1888 .
crowd, but had been with the pickets watching | The grounds of removal set up a derivative
the door. This crowd followed the workmen with settlement from the pauper's father, who was
bostile action and gestures, and the respondent
was frightened . Whichever way the workmen therein stated to have acquired a settlement by
residence in the parish of Shipdham ,in theMitford
went the crowd and the appellant followed . and
Under these circumstances I have no doubt but TheLaunditch
grounds Union .
of appeal set up that the pauper's
that the justices were right in the conclusion at father was irremovable from the Wayland Union ,
which they arrived . and that she was so also, inasmuch as she was
Solicitors for the appellant, Chester, Mayhew , unemancipated and had no other settlement than
and Broome. her father's,and was therefore not removable from
Solicitor for the respondent, R . Winder. Hockham .
The following facts were proved or admitted :
The pauper is the legitimate child of her father,
and was born on the 29th Feb . 1872. She became
Wednesday, Nov. 20 , 1889. chargeable to the Wayland Union on the 13th
(Before Lord COLERIDGE, C .J . and MATHEW , J.) Aug. 1888, being then over sixteen years of age,
THE GUARDIANS OF THE WAYLAND UNION (apps.) sickness and she so became chargeable in consequence of
V. THE GUARDIANS OF THE MITFORD UNION ability. The (paralysis) producing permanent dis
(resps.).(a ) relief given was given to her in her
own name.
Poor law - Removability - Emancipation - Deriva Her father resided in the parish of Shipdham ,
tive settlement from father - Pauper child over in the Mitford and Launditch Union , from July
age of sixteen , unemancipated and living with 1874 to Oct. 1887, without a break and without
father — Removability of - 9 & 10 Vict. c. 66,
88. 1 and 3 — 11 & 12 Vict. c. 111, s. 1 - Divided relief, and thereby acquired a settlement by
Parishes and Poor Law Amendment Act 1876 11th Oct. in1887residence the parish of Shipdham . On the
he removed to the parish of
(39 & 40 Vict. c.61), 8. 35. Hockham , in the Wayland Union , in which parish
(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law. I he has since resided and is now residing .
70 _ Vol. LXII., N . S.] THE LAW TIMES. (March 8, 1890.
Q .B. Div.] GUARDIANS OP WAYLAND UNION v.GUARDIANS OP MITFORD UNION. (Q .B. Div.
The pauper always up to the time of her | her own, such wife and children shall be removable when
becoming chargeable as aforesaid resided and is ever he or she is removable, and shall not be removable
when he or she is not removable .
now residing with her father as part of his family. Sect. 3. That no child under the age of sixteen years,
At the date of the order for removal the pauper's whetber legitimate or illegitimate , residing in any parish
father had resided in the parish of Hockham , in with his or her father or mother, stepfather or step
the Wayland Union , for twelve months in such mother , or reputed father shall be removed , nor shall
manner as to render him irremovable from the any warrant be granted for the removal of such child
said union . from such parish , in any case where such father ,mother,
For the Mitford and Launditch Union it was stepfather, stepmother, or reputed father may not law
contended that the pauper, being an unemanci fullyThebe 11removed
& 12
from such parish.
Vict. c. 111, s. 1, repeals the above
pated child residing with her father and suffering mentioned proviso in sect. 1 of 9 & 10 Vict. c. 66 ,
from permanent disability and having no settle and enacts in its place as follows :
ment but her father's, was irremovable under Provided always, that whenever any person should
the provisions of 11 & 12 Vict. c. 111, s. 1, not have a wife or children having no other settlement than
withstanding that she was over sixteen years his or her own, such wife and children should be
of age, and Reg. v . St.Mary Arches, Exeter (5 L . T . removable from any parish or place from which he or
Rep . N . S. 637 ; 31 L . J. 77, M . C .), Reg. v. St. shewould be removable , notwithstanding any provisions
Olave's Union (29 L . T. Rep .' N . S. 426 , s. c. L . of the said recited Act, and should not be removable
from any parish or place from which he or shewould not
Rep. 9 Q . B . 38 ; nom . St. George's Union v. St. be removable by reason of any provision in the said
Olave's Union ), and other cases, were cited , and recited Act.
it was further contended that there was no 39 & 40 Vict. c . 61 (the Divided Parishes and
express enactment to deprive her of her right Poor Law Amendment Act 1876 ), provides as
of irremovability .
For the respondents, the Wayland Union, it follows:
Sect. 35. No person shall be deemed to have derived
was contended that the pauper, when she & settlement from any other person , whether by parent
attained sixteen years of age, had and took her age, estute, or otherwise, except in the case of a
father's settlement in Shipdham , in the Mitford | wife from her husband, and in the case of a child under
and Launditch Union ; that the common law the age of sixteen , which child shall take the settlement
doctrine of emancipation , as it existed prior to of its father or of its widowed mother, as the case may
the passing of the Divided Parishes Act 1876 , be , up to that age, and shall retain the settlement so
eould no longer prevail- that the pauper, who taken until it shall acquire another.
An illegitimate child shall retain the settlement of
had attained the age of sixteen and received its mother until such child acquires another settlement.
relief in her own name, was emancipated at that If any child in this section mentioned shall not have
age, and was removable to her settlement though acquired a settlement for itself, or being a female shall
her father might not be removable ; and in support itnotcannot have acquired a settlement from her husband, and
be shown what settlement such child or female
of that view were cited sect. 3 of 9 & 10 Vict. derived from the parent, without inquiring into the
c. 66, and the cases of Highworth Union v . West derivative settlement of such parent, such child or
bury -on -Serern Union (a ) (58 L . T. Rep . N . S . 839 ; female shall be deemed to be settled in the parish in
20 Q . B . Div. 597) and Dorchester Union v . Poplar which he or she was born .
Union (59 L . T. Rep . N . S . 687; 21 Q . B . Div. 88). H . D . Greene, Q .C . ( Thorne with him ) for the
The Court of Quarter Sessions determined that appellant(theWaylandUnion). — The child became
the pauper, being unemancipated , was a child sixteen in Feb . 1888, and at that time her father
within the meaning of sect. 1 of 11 & 12 Vict. had a settlement in Shipdham , in the respondent
c. 111; that she had no other settlement except union , and therefore she was settled there too .
that of her father with whom she resided, and In Aug . 1888 she became chargeable, and the
that she was therefore irremovable, and that the order for removal was made in October, and it is
order for removal must be quashed . clear that at that time the girl had not acquired
The order was accordingly quashed with costs. a status of irremovability in the appellant union.
The question for the opinion of the court is In the proviso in sect. 1 of 9 & 10 Vict. c. 66, the
whether the pauper is or is not removable from words “ any person " are general, and have no
the Wayland Union . If she is not, the judgment reference to age ; this proviso was repealed by
of the Court of Quarter Sessions is to be affirmed . 11 & 12 Vict. c. 111, s. 1, and the proviso in
If she is, it is to be quashed with such order as the latter section wassubstituted for it. Reading
to costs as to the court may seem fit . together the provisoes in 9 & 10 Vict. c. 66 , s. 1,
and 11 & 12 Vict. c. 111, s. 1, we see the meaning
The following provisionsoftheunder-mentioned of the word “ child.” “ Child ” in those sections
statutes relating to the removal of the poor are means a child under the age of sixteen , so that
material :
9 & 10 Vict. c. 66 : the proviso in sect. 1 of 11 & 12 Vict. c. 111,
having reference to children under the age of
Sect. 1. That from and after the passing of this Act, sixteen
no person shall be removed , nor shall any warrant be over the , has no reference here, as the child here is
granted for the removal of any person , from any parish by sect. 3 age of sixteen . This view is confirmed
of 9 & 10 Vict.c. 66 , which says that no
in which such person shall have resided for five years
next before the application for the warrant. . . . child under the age of sixteen shall be liable to
Provided always that whenever any person shall have a be removed . The effect of the recent legislation
wife or children having no other settlement than his or under the Divided Parishes Act 1876 has been to
(a ) In this case the Queen's Bench Division had given prodnce thisstate ofaffairs — that a child of sixteen
judgment for the Highworth Union and quashed the becomes emancipated and attains its own status
order of removal, which decision was reversed in the and a capability of acquiring a settlement in its
Court of Appeal ; and subsequently, in August last, the own right (per Lord 'Watson in Reigate Union
House of Lords' reversed the decision of the Appeal v . Croydon Union, in H . of L ., 61 L . T . Rep. N . S .
Court and affirmed and restored the original decision 733, at p. 735 ; 14 App. Cas. 465, at p. 483).
and order of the Queen 's Bench Division . See 14 App .
Cas. 495 . | Here is an emancipated child of seventeen years
March 8, 1890.] THE LAW TIMES. [Vol. LXII., N . S. - 71
Q. B. Div .] GUARDIANS OP WAYLAND Union v. GUARDIANS OF MITFORD UNION. ( Q.B . Div.
of age, and why should she not be removed to her acquired by long residence a status, possibly a
own settlement ? The case of Reg. v. St. Olave's settlement, but at any rate a status of irre
Union (29 L . T. Rep. N . S. 426 ; s. c. L . Rep. 9 Q . B . movability in the respondent parish , and he then
38 ; nom . St. Olave's Union v. St. George's Union ) moved into the appellant parish , and at the time
was a totally different case from the present, as of the order being applied for he had acquired a
that was the case of a pauper who was unemanci- status of irremovability , although not a settle
pated , and who therefore had no settlement of her ment in that parish . The settlement was a settle
own . ment in the respondent parish . The status of
Poland, Q .C . (Morton Smith with him ) for the irremovability had been acquired in theappellant
parish , and he had a child , the subject-matter of
respondents (the Mitford Union). - In Oct. 1887 the present order and appeal. That child , having
the pauper was under the age of sixteen , and
therefore there is no question that the settlement lived with the father during the whole time that
of the father gave a settlement to the child . The he was living in the respondent parish , had
father and child then moved into the appellant acquired a settlement, if it was necessary for her
union, and the father there acquired a status of to acquire a settlement, in that parish , and at all
irremovability by industrial residence for one events by her father's residence she had acquired
year, but the child did not reside there for a suffi his settlement, and, if he was settled there, she,
cient time to give her a status of her own, and it having done no other act to acquire a settlement,
is submitted that she acquired her father's i was also settled there ; and by the Acts of Parlia
status of irremovability . The length of residence ment 9 & 10 Vict. c. 66, and 11 & 12 Vict. c. 111,
required to give a status of irremovability has | status it is perfectly clear that she had also acquired a
of irremovability in the respondent parish .
been reduced successively from five years to three Then she
years, and now to one year. The proviso in sect. 1 parish , andleaves with her father the respondent
of 9 & 10 Vict. c. 66 , was a little obscure ; it was comes to live with him in the appel
repealed,and the proviso in 11 & 12 Vict. c. 111, and lant parish , and before the order is applied for,
8. 1, was substituted for it, and the words of that movability before he had acquired a status of irre
proviso are clear so far as this question is con in the appellant parish , she attained
cerned . Whatever be the status of the head of are the age of sixteen . These are the only facts that
the family such is the status of the child ; the material, I think , to consider in this case .
settlement being the same, these two persons are Now , it is not disputed that, if this matter had
to have the same status. There can be no ques arisen before the Act of 1876 , to which our atten
tion that that was the state of the law up to the tion has been directed , and upon one provision
time of the passing of the Divided Parishes Act of which the judgment of the House of Lords
1876 , as is seen by the case of has lately proceeded , she would have been irre
Reg. v. St. Mary Arches, Ereter, 5 L . T. Rep. N . S. movable, because the course of legislation has
been to substitute for five years in the 9 & 10
637 ; 31 L . J . 77, M . C .
But it is said that the state of the law has been Vict. (I pass over the intermediate enactment as
changed by that Act ; it is said that emancipation to three years ) a single year's residence, and to
confer the status of irremovability which five
(which is a word not in the statute) takes place years' residence conferred under the statute
at the age of sixteen ; it does take place then for 9 & 10 Vict. Therefore it could not have been
some purposes, but not for all purposes. That I disputed . if this matter had taken place prior to
Act of 1876 was passed to remove doubts as to 1876 , that the child would have been irremovable
questions when the child became emancipated , because
and the Act said that we shall make a hard -and . enacted the father was. But the statute of 1876
for the first time that which has not
fast line that sixteen is to be the age, but this hitherto been described in Acts of Parliament by
does not oust the operation of the proviso in the term " emancipation ," but it is perfectly well
sect. 1 of 11 & 12 Vict. c. 111. Up to the age of known in the courts, and there is no doubt it is
sixteen the child (as in this case) takes the settle
common knowledge that by the term " emanci
ment of the father, and after sixteen it keeps thepation " is meant that legal consequence or legal
settlement of the father. These two statutes, the status, whichever is the proper description , which
11 & 12 Vict. c. 111, and the Act of 1876 , may be is to take place from and after the passing of the
perfectly well read togetber, and the child in the Act of 1876 , at the age of sixteen . Heretofore it
present case, being unemancipated and residing might have taken place at any age ; it might have
with her father , came under the operation of the taken place before sixteen ; it might have taken
proviso in sect. 1 of 11 & 12 Vict. c. 111, and wasplace after sixteen , and no doubt very difficult
therefore irremovable as her father was irre and embarrassing questions often arose as to
morable. The object of the legislation has been whether emancipation had taken place, depending
to keep families together : in point of fact on the facts of each case. There
Adamson v . Barbour, 1 Macq . 376 . fore in 1876 it was enacted that at the age of
The law is established that at the time of the sixteen persons should be emancipated . The old
passing of the Act of 1876 this child could not be poor law , no doubt, unless it was altered by
separated from her father ,and that Act has caused statute, would have been that a person with a
no change. [He was stopped . ] settlement of her own under the 9 & 10 Vict.
and the 11 & 12 Vict.would be removable,whether
Greene, Q.C. replied. the father or mother was removable or not ; the
Lord COLERIDGE, C . J.- I am of opinion in this
moment she became cbargeable to the parish in
case that the respondents are entitled to our which she could not acquire a settlement herself,
judgment. The facts are clearly stated in the she would be removable into her own parish .
case submitted to us by the learned Chairman of Thatwas in the case when removals were common ,
the Quarter Sessions of the county of Norfolk , and when it was every -day practice to remove
and they are shortly these : The father had persons, even if they were of tender years, if they
72 – Vol. LXII., N . 8.] THE LAW TIMES. [March 8, 1890 .
Q .B . Div.] GUARDIANS OF WAYLAND UNION v .GUARDIANS OF MITFORD UNION. ( Q . B . Div.
had acquired a separate settlement - to remove Newcastle, or any other distance, and I am bound
them the moment they became chargeable to the to say that,according to my recollection, that not
parish of settlement. As has been pointed out, unfrequently happened . In order to remedy that
there were many modes of acquiring a separate state of things, very rightly and decently the
settlement, which might give a person a settle. status of irremovability was created, and in the
ment long before the age of sixteen . Upon that statutes creating the status of irremovability the
state of the law these two statutes 9 & 10 Vict. provisoes occur with which we have to deal, not
c. 66 , and 11 & 12 Vict. c. 111, are enacted to dealing with the question of settlement which is
operate, and they operated , as it seems to me, one thing, but with the status of irremovability
broadly and clearly to enact that, where the head which is quite ancther, and wbich does not in
of the family, whether father or mother, was many cases affect the question of settlement at
removed , there the children should be removable, all. The proviso applying to the status of irre
as long, of course, as they were living together. movability enacts that children sball not be
Upon that statute divers decisions have taken removed , except where the head of the family is
place. I think I should agree with what Lord removed and shall be removable, and not other
Macnaghten said in the House of Lords recently wise. It seems to me therefore that when we
(Highworth v. Westbury -on -Severn , 14 App. Cas.), are dealing with statutes which for the first
that perhaps a little too much has been said time create a status, and annex as an incident
against the wording of these two statutes. I to that status that which shall affect the children
should have thought the provisoes were perfectly whatever their settlement may be, and whatever
clear if one brought a willing mind to them , and the father 's settlement may he, and when we
that the object of them waswhat Ihave described know that at that time (and this seems to me to
that children should not be, or a child should not be the answer to the argument derived from
be, removed unless the father or mother were sect. 3) a child might very easily acquire & settle
removed . That was the state of the enactments | ment long before he was of an age to be really
furthering thatwhich had been the generalbearing able to live apart from his father, and where
of the courts and of the Legislature too ,namely ,to consequently , having acquired a separate settle
keep families together, and although there might ment, he might nevertheless be a member for all
be necessary removals, and there must be neces practical purposes of his father's family , when
sary removals sometimes, those removals should we remember that, then we see upon that state
be made as few as possible,and that they should of things that the 3rd section had a complete and
always be as far as possible of whole families useful operation , and that it carried the matter
together or not at all, so that families should not so far as to make him irremovable not only from
be divided when it was necessary to remove them . | his father or mother but from his step - father or
That has been the general broad policy of the law step -mother, and still more from his reputed
to be gathered from statutes,and to be gathered father, which , as I pointed out in the course of
from decisions of judges laying down over and the argument, was as the law then stood a very
over again that it was the policy of the law . strong step, because the settlement of an illegiti.
Upon that state of the law it has been argued by mate child was always the settlement of the
Mr. Greene that the statute of 1876 has produced mother, and not of the father. So far as the
this consequence , that it has at once in the case illegitimate child was concerned , it was supposed
of children of sixteen repealed the whole of to have had nothing whatever to do with the
that law , and gone counter to the whole of the father in point of law , and it was treated simply
principles which had been laid down by these as the mother's child . When one recollects all
courts over and over again . Now , of course, if that, and when one sees that those sections and
Parliament deliberately said so in plain terms, we those provisoes are left entirely unrepealed by
should have nothing to do but to give effect to the statute of 1876, which deals simply and solely
the words of the Act of Parliament, but I think with the question of emancipation , I come to the
it has been very satisfactorily pointed out that conclusion without any difficulty that they may
these statutes may well stand together. The well stand together, and that this child is within
statute of 1876 does put an end to questions not the 9 & 10 Vict. because that has gone now
arising upon emancipation , and does fix for the - but within the re-enacted provisoes of 11 & 12
purpose of emancipation , and for that purpose Vict.,and that the Court of Quarter Sessionswere
only , a time at which as a general rule the quite right in holding under these circumstances
emancipation shall be held to take place, and that she was irremovable, and the judgment must
where no other unrepealed Act of Parliament therefore be affirmed .
intervenes it is plain that an emancipated child, Mathew , J. - I am of the same opinion . The
if he or she becomes chargeable, will and must construction of sect. 35 of the Act of 1876, which
be sent back (if living out of the parish of settle Mr. Greene invites us to adopt would involve us
ment) to the parish of settlement. That is quite in the renunciation of the old established rule
plain no doubt. But then the Act of 1876 does that a family is not to be scattered . The earlier
not repeal those earlier Acts. Those earlier Acts statutes plainly indicate that intention of the
create for the first time that which had not Legislature, and nothing would have been easier
heretofore existed in the poor law , namely , the than to have repealed those statutes if that rule
status of irremovability . Formerly if you could was intended to be rescinded . The statute of
show a settlement you at once showed a case for 1876 is silent on the subject of repeal. We ought
removal, and however long a person might have therefore to construe the earlier statute and this
resided in another parish , if he had not fulfilled statute together if we can do so consistently . It
the necessary requirements of the law and gained seems to me that there is no difficulty whatever
a settlement in the other parish he might be as to that, if you treat the statute of 1876 as
torn up by the roots and sent, as has been said , | relating to a settlement in the strict sense of the
from London to Liverpool, or from Penzance to ' term . As regards the earlier statutes they are
Q .B . Div .] STARCY v. THE CHILWORTH GUNPOWDER MANUFACTURING COMPANY. ( Q . B . Div.
confined to thequestion of irremovability. Reading contrary to the statute 50 & 51 Vict. c. 28,
the statutes in that way it seems to me that the s. 2.
argument of Mr. Poland is right, and this judg. Sub -sect. (1) of sect. 2 of the Merchandise
ment must therefore be affirmed . Marks Act 1887 (50 & 51 Vict. c. 28) provides that
Judgment for the respondents. Order of every person who (amongst other things ) applies
sessions affirmed with costs. or causes to be applied any false trade description
Solicitors for the appellants, Whites and Co., to gnods shall, subject to the provisions of that
Act, and unless he proves that he acted without
for Grigson and Robinson , Watton. intent to defraud, be guilty of an offence against
Solicitors for the respondents, Harrison and that Act. By sub-sect. (2) of sect. 2, every person
Powell, for Barlon and Vores, East Dereham . who sells or exposes for, or has in his possession
for, sale or any purpose of trade or manufacture,
any goods or things to which any forged trade
Thursday, Dec. 5, 1889. mark or false trade description is applied or to
which any trade mark or mark 80 nearly re
(Before Lord COLERIDGE, C.J. and Mathew , J .) sembling a trade mark as to be calculated to
STARCY V. THE CHILWORTI GUNPOWDER MANU . deceive is falsely applied , as the case may be,
FACTURING COMPANY. (a ) shall , unless he proves (inter alia ) that he acted
Merchandise Marks Act 1887 (50 & 51 Vict. c. 28), innocently,be guilty of an offenceagainst the Act.
8. 2. sub-sects. (1) and (2), sect. 3, sub-sect. (1) (6) By sub- sect. (1) of sect. (3) trade description
- False trade description — “ Intent to defraud " means any description , statement, or other indica
- Jurisdiction of magistrates. tion , direct or indirect ( inter alia ) as to the place
A gunpowder manufacturing company had con pro or duc
country
ed in which any goods were made or
tracted with Her Majesty 's Government to supply .
5000 barrels of a certain class of powder known At the hearing the following facts were proved ,
in the trade as R . L. G . 4. There were no stipula andThe were set out in the case stated :
respondents were an English company,
tions in the contract that the gunpowder should limited by shares and registered under the
be of the company's own manufacture, or that it
should be of English manufacture. The com were Joint Stock Companies Acts 1862 to 1886 . They
pany being unable, through no fault of their own, manufacturers of gunpowder, and had mills
to fulfil their contract, imported gunpowder from at Chilworth in the county of Surrey , and at
Fermilee in the county of Derby , and they
Germany. This
in quality to , and
gunpowder—
accurately
which
described
was
as, R .
equal
L . G had general offices in the city of London . In
was on its receipt by the company taken out the month of May 1888 the respondents entered
of the cylinders in which it was imported and into a contract with Her Majesty 's Government
which were labelled “ manufactured in Ger. for the supply of 5000 barrels of gunpowder, of
many,” and was placed and supplied to the a description known as R . L . G . 4 " (Rifle Large
Government in barrels to each of which was Grain , No. 4). The said contract contained
officed the following label, “ Gunpowder, 110lbs. be stipulations that the said gunpowder should
Chilworth Gunpowder Company Limited , R . L . in default delivered on certain specified dates, and that
G . 4 ; ” which was the label prescribed by the dents should of delivery on such dates, the respon
Government. On a prosecution being instituted, be liable to a fixed penalty of 2 , per
under the Merchandise Marks Act 1887, against cent., and to be charged with the difference in
the company on the above facts, the magistrates price if Her Majesty 's Government should buy in
the said gunpowder elsewhere. There were no
found that the label was not a " false trade de. stipulations in the said contract that the said
scription " within themeaning of the statute,and gunpowder should be of the respondents' own
that there had been no “ intent to defraud ,” and manufacture, or that it should be of English
they accordingly dismissed the case.
Held, on appeal, that the label was a " false trade manufacture, and it was proved that in other
description " within the meaning of sect. 2 of the contracts between the respondents and Her
Merchandise Marks Act 1887 (50 8:51 Vict. c. 28 ), Majesty 's Government such express stipulations
and that there had been an “ intent to defraud," were inserted .
in the sense of an intention to mislead the pur kind The respondents were manufacturers of the
chaser, and that therefore themagistrates ought to and atofthegunpowder mentioned in the contract,
time of making such contracts they
have convicted . intended to manufacture the gunpowder which
This was a case stated by magistrates on the they had agreed to supply. They were prevented,
application of the appellant,who was dissatisfied however,
with their determination as being erroneous in explosionsfrom carrying out such intention by two
which took place at their mills on the
point of law .
From the case it appeared that, on the 4th 5th June and 31st Aug . 1888, whereby the said
mills were for the timebeing rendered useless for
April 1889, an information was laid by John the manufacture of gunpowder,
Starcy, the appellant, against the Chilworth
Gunpowder Company Limited, charging them Her Majesty 's Government pressed for the
that they, on the 7th and 11th Feb . 1889, and on delivery of the said gunpowder, and, in order to
other days, at Purfleet in the parish of West fulfil their contract, the respondents made
Thurrock, in the county of Essex, did unlawfully arrangements with a German " firm and im
ported the whole of the said gunpowder from
apply or cause
scription, to be applied a false trade de
to wit, the letters, figures, and words, Germany in cylinders which bore labels marked
"Gunpowder, Chilworth Gunpowder Company " manufactured in Germany." By reason of
Limited, R . L . G . 4,” to goods- viz., gunpowder | their having to import the said gunpowder for
the purposes of the said contract the respondents
(6) Reported by R . M . MINTON-SENHOUSE, Esq., Barrister-at-Law . I sustained a loss of 38. or 4s. a barrel.
74 - Vol. LXII., N . 8.] THE LAW TIMES . [March 8, 1890.
Q .B . Div.1 STARCY v. THE CHILWORTH GUNPOWDER MANUFACTURING COMPANY. [ Q . B . Div .
Upon receiving the said gunpowder at their the magistrates have found further that there
mills at Chilworth the respondents took it out was no intent to defraud. There was no stipula
of the cylinders and placed it in the barrels | tion in the contract that the powder should be of
supplied to them by Her Majesty 's Government, their own manufacture ; that is material as to
according to a provision in the said contract that the intent to defraud. Besides that, the respon
the said gunpowder should be delivered in barrels dents did not seek any pecuniary benefit or seek
supplied by the Government for that purpose. to palm off an inferior article. This is a penal
The respondents affixed or applied to each of such Act, and the existence ofmens rea is essential to
barrels the following : “ Gunpowder 110lbs., Chile constitute the offence :
worth Gunpowder Company Limited , R . L . G . 4." Gridley v. Swinborne, 52 J. P. 791.
This label is in the form which the Government
prescribe fortheir barrels containing powder ; the Lord COLERIDGE, C .J. - in this case, which is
words “ Chilworth Gunpowder Company Limited " one of considerable importance, a large firm of
being inserted in the place where the name gunpowder manufacturers had contracted with
of the contractor is required to be inserted . the Government,which approved of their powder,
There was no indication upon the said label or to deliver to them a quantity of gunpowder
otherwise on the said barrels that the said gun known as R . L . G . 4 . The manufacturers unforta
powder was of German mannfacture, but the nately bad an explosion at one of their factories
description of the said gunpowder was accurately which prevented them from fulfilling their
stated as R . L . G . 4 , and it was equal in quality contract. They were, however, tied down to
to powder of that description mannfactured by | deliver the powder by a certain date under
the respondents. The said gunpowder was certain penalties, and it is admitted that at the
accepted by the Government in fulfilment of the time they would have had very great difficulty
contract without complaint that it was inferior in obtaining in this country powder of the kind
in quality, or that it did not answer the descrip required , in sufficient quantities. Accordingly ,
tion of the gunpowder contracted for, but it was they had recourse to a large German firm of
admitted that no communication was made to manufacturers, and obtained from them a large
the Government, upon delivery or otherwise, | quantity of powder which was just as good in
that the said gunpowder was ofGerman manu quality as their own . This powder they put in
facture . barrels and delivered to the Government, and it
On these facts the magistrates found that the is upon the labels attached to these barrels that
said label was not a false trade description an important question in this case arises. The
within themeaning of the statute, and that there labels had upon them these words : “ Gunpowder,
had been no intent to defraud on the part of the 110lbs, The Chilworth Gunpowder Company,
respondents. They therefore dismissed the case. R . L . G . 4 ." That was a label as to which the
The question for the opinion of this court was, magistrates have found that “ it is in the form
whether upon the above facts the magistrates prescribed by the Government for all barrels
ought to have convicted therespondents. containing powder, and the words ‘ Chilworth
Maidlow (M *Kenna with him ) for the ap Gunpowder Company ' were inserted in the place
pellants. - This case is within the Merchandise towhere the nameof the contractor is required
Marks Act 1887, for it is a case of false descrip maybemean inserted .” Now the word “ contractor "
tion as to the place or country in which this facturer whooneisofnotthree things : either a manu
otherwise a vendor ; or a
gunpowder wasmade or produced : (50 & 51 Vict. vendor who is not a manufacturer ; or a person
c. 28, s. 3, sub-sect. (1) (b). The respondents who is both vendor and manufacturer ; and
professed to be manufacturers of, and not therefore, where it is important to ascertain
merely dealers in , gunpowder. They put the whether the parties were only manufacturers
German powder in barrels marked with their or what, the word “ contractor ” is obscure
own label which described it as manufactured
by themselves. The German label, describing it and ambiguous. If therefore there had not
as manufactured in Germany, was a trade mark been in the case itself the means of deciding
on the sense in which the term is used, we could
within the meaning of the Act, and the label put have remitted the case to the magistrates. The
on by the respondents was a false mark . As to
the “ intent to defraud," the whole scope of the case does, however, supply the means of deciding
this. The Chilworth Gunpowder Company are
Act shows that the offence is committed if the manufacturers, and in a sense manufacturers
parties knew that a false impression would be only. It is indeed said that in this case they
conveyed to the customer by the description . were vendors ; but it is admitted that, except in
Poland, Q .C . (R . S. Wright with him ) for the this instance, they never sold any gunpowder
respondents. The magistrates were right in which they had not themselves manufactured .
refusing to convict. The company had intended Therfore, when they used this label, the respon
to manufacture this gunpowder themselves, and dents meant to convey to their customers that
were prevented by the explosions which had they were the manufacturers of the powder
taken place. The Government required that the contained in the barrels so labelled . But they
gunpowder should be delivered in barrels were not themanufacturers of that powder,and
supplied by them , and all that the company had it is clear to me therefore that they were using &
done was to affix their own mark to those barrels. false trade description within themeaning of the
The magistrates have found in our favour that Act. This conclusion is strengthened by reference
this was not a false trade description within to the case of Johnson v. Raylton (45 L . T . Rep .
the meaning of the Act. The magistrates have N . S . 374 ; 7 Q . B . Div. 438 ), in which it was held
found that the label of the contractor was to be that where a person buys goods from a person
put on the barrels ; and here the word “ con - who is a manufacturer, but who is not otherwise
tractor " is synonymous with “ vendor." Then l a dealer in them , there is an implied warranty
March 8, 1890.] THE LAW TIMES. [Vol. LXII., N. 8. — 75
Q. B. Div .] PARNELL v. WALTER AND ANOTHER. [ Q . B . Div .
that the manufacturer supplies goods of his own powder was of their own manufacture. As to
manufacture. That case has been acquiesced in , the expression “ intent to defraud,” I do not
and is therefore good law , and is a strong believe that there was any such intent in the
authority in confirmation of the view I take. sense of attempting to palm off inferior goods
We come therefore to the conclusion that the upon the Government. But there was an obvious
magistrates were wrong in holding that there attempt to escape the consequences of failing to
was no offence against the Act. But, although perform their contract. The words “ intent to
on this point there has been an offence against defraud ” are not to be construed as meaning
the Act, that does not conclude the case, because with intent to cheat. The offence created by the
both in the 1st and 2nd sub-sectionsof 50 & 51 Act is the using of a false trade description , and
Vict. c. 28 , s. 2, it is a defence if the accused can it is not the less committed because there is no
prove that he has acted in the one case without intent to defraud in that sense. In my opinion
“ intent to defraud ” and in the other case the magistrates ought to have convicted .
“ innocently.” It is not necessary to go elabor Solicitors for the appellants, M 'Kenna and Co.
ately into the provisions of theabove sub -sections; Solicitors for the respondents, Bircham and Co.
they are pointed at different offences, and there
fore the language naturally varies, though in
substance the language is the same. But we
have to decide the sense in which the words Saturday, Jan. 11.
" intent to defraud " are used in this Act, and it
is obvious that in arguing about themeaning of (Before Denman and WILLS, JJ.)
& phrase one ought to begin by defining it . PARNELL v .WALTER AND ANOTHER. (a )
Now , I entirely agree that, in the sense of in Practice - Discovery – Interrogatories — Libel
tending to put off upon him something less valu . Payment into court - Issue as to damages
able than the purchaser agreed to take, there was Negligence of defendants. .
here no intent to defraud in any money sense of In an action for libel against a newspaper , where
the word . That, however, does not conclude the the only issue is the amount of damages to which
Case here. What is pointed at by this Act is the the plaintiff is entitled, the courtwill not allow
wrongful use of trade marks or descriptions, and interrogatories to be administered to the defen
the putting off upon a purchaser an article which dants with the object of eliciting that the defen
is not perhaps worth less money but which the dants published the libel negligently.
purchaser is less inclined , and which he has not THIS was an appeal from the order of the master,
stipulated, to buy. It may be that there is not
much difference between Ai's fish sauce and B .'s., referred to the court by Field , J., that the defen
bat if A . uses B .'s mark he thereby gets orders dants do give further and better answers to
which he otherwise would not get ; and if he does interrogatories.
so there is an intention to mislead purchasers The plaintiff brought an action for libel
into buying an article which they had no against the defendants for publishing four letters
intention ofbuying. It is in some such sense as in the Times newspaper, and alleging that
this that the word “ defraud " is used in this Act, they were written by the plaintiff. The defen
and in that sense, and in that sense alone, I think dants paid 40s. into court, and alleged that that
there was an intention to defraud in the present sum was sufficient to satisfy the plaintiff's claim .
case. It is clear that the respondents wished to This the plaintiffs denied . Upon the amount of
save their contract and to escape the penalties damages to which the plairtiff was entitled issue
which their failure to fulfil it would have entailed was joined .
upon them . With this object, and in order to Theplaintiff administered the following interro
deliver the powder in time, they went to a gatories to the defendants :
German manufacturer, they changed the barrels 1. From what person or persons, and at what date or
in which the stuff came over, and they inserted dates, did you , or some other and what persons repre
the label which in my judgment is a false trade senting the Times, obtain the originals of each of the
fonr alleged letters of the plaintiff set out in the state
description . It is said that the magistrates have ment of claim , and purporting to be dated respectively
found that there was no intention to defraud ; | the 15th of May 1882, the 9th of Jan . 1882, and the 16th
but they have so stated the case as to leave to us June 1882 ?
the question whether on the facts they ought to 2. What sum or sums of money , and at what date or
have convicted the respondent, and therefore dates, and to whom , did you, or any other and what
they cannot have intended that their finding person representing the Times, pay for each of the said
four alleged letters or for all of them ?
should be taken as negativing any intent to 3. State precisely what inquiries you , or any other
defraud in any sense, or the leaving of the case toand what person representing the Times, made of the
us would have been absurd . I come, therefore, | person or persons from whom the said four alleged
to the conclusion that they were wrong in not letters and each of them were obtained , (a ) as to the
convicting the defendants, and the case must be person or persons to whom the said letters were re
remitted to them to deal with accordingly. spectively addressed , or (b ) as to the person or persons
from whom , or the place in which , or the means by
MATHEW , J. - I am of the same opinion. One which , the person or persons from whom the Times
of the evils intended to be struck at by this Act obtained the same hadandgot possession of the said foar
is the doing of what has been done in this case, alleged letters, or any which of them .
viz., misstating or concealing the place of manu 4 . State precisely what information , if any, was given
factore. That is an offence created by the Act; to you , or any other and what person representing the
that is the offence of which the respondents are personsand
Times, fromatwhom datesaidor four
what the dates,alleged
by theletters
personweror's
guilty. Considering the acts of the respondents
the labels.
affixing the
obtained, and whether in answer to the inquiries
sag .
I gested in the fifth interrogatory or otherwise, (c ) as to
o the
init ischanging the barrels and
barrels and in affixing
in labels,
impossible to avoid the conclusion that they the person or persons to whom the said letters were
intended to conyey the impression that the I (a) Reported by R. M . MINTON-SENHOUSE, Esq ., Barrister at-Law .
76 _ Vol. LXII., N . s.] THE LAW TIMES. (March 8, 1890.
Q .B . Div.] PARNELL v. WALTER AND ANOTHER . [ Q . B . Div.
respectively addressed , (b) as to the person or persons ! Denman, J. - I think this question has been
from whom , or the place in which , or the means by properly referred to the court, as it requires
which, the person or persons from whom the Times
obtained the same had got possession of the said four | some consideration of the cases that have been
laid before us to decide whether the order of the
alleged letters, or any and which of them .
5 . State precisely , with dates, the steps, if any , taken master was right or wrong. We have, however ,
by you , or by any other and what person representing | come to the conclusion that these interrogatories
the Times, to test or verify the information , if any, cannot be allowed. The action was brought by
given by the person or persons from whom the said the plaintiff for the publication of a libel that
four letters were obtained as to the several matters imputed to the plaintiff that he was the writer
any of them .
mentioned in the sixth interrogatory , orand
6. State precisely what steps, if any, whether by of four letters that were published in the Times.
the comparison of handwriting or otherwise, and how , The defendants do not deny the publication, nor
were taken by you , or any and what person representing do they raise any defence except that they have
the Times, between the date when the said alleged paid a sum of money into court, and that that
letter of the 15th of May 1882, was obtained by the sum is sufficient to satisfy the plaintiff's claim .
Times, and the 18th of April 1887, to ascertain or test
the genuineness of the said alleged letter. That raises the question , the only question in
7. Stateprecisely whatsteps,if any,andwhetherby the this action , what should be the amount of
comparison of handwriting or otherwise, how and , were damages ? I think that possibly , if this question
taken by you, or any and what person representing had come before me for the first time, I should
the Times, between the date or dates when the said
alleged letter of the 9th of Jan . 1882, and the said two have been inclined to allow some of these interro .
alleged letters of the 16th of Jane 1882,were respectively gatories as to the conduct of the defendants with
obtained by the Times, and the 6th' and 7th of July reference to the libel ; but certainly not such
1888 . or either of the two last mentioned dates, to ascer. interrogatories these, which seem to be rather
tain or test the genuineness of the said three alleged in the nature ofascross-examination of the defen
letters, or any and which of them . before the trial than to have reference to
8. When did you, orlearnany and what person represent dants
ing the Times, first , and how , that the said four the plaintiff's evidence. But the court is not
alleged letters, or any and which of them , had been without guidance in this matter. The prece
obtained by the person or persons from whom the Times dents that have been cited before us show that
obtained the same from or through orRichard Pigott ?
What inquiries, if any, did you then subsequently , we cannot allow such interrogatories, or require
the defendants to answer them . It was argued
and when , maké, and of whom , and how , as to the ante that those cases do not govern the present one,
cedents or character or repute of the said Richard
Pigott ? because in none of them was the issue of
The master ordered the defendants to answer damages raised . From those cases, one of which
these interrogatories. was in the Court of Appeal, I gather that the
Field , J. referred theappeal to the court. law is that in an action for libel against a news
Lumley Smith , Q .C . and W . Graham for the paperdefendant it is not competent for the plaintiff to ask
defendants. The master was wrong in ordering the “ from whom did you get this
the defendants to answer these interrogatories. impossible information ? ” Whatever the issue might be it is
The plaintiff is not entitled to interrogate except interrogatories to consider those cases and allow such
as to matters involved in the issue : as we have here without dis
Hennessy v. Wright,59 L . T. Rep . N . S. 323 ; 21 Q . B . i regarding those decisions. It is not enough to
Div . 509 ; on appeal, 59 L . T . Rep . N . S. 795 ; say that such questions might be asked in cross
Gibson v . Evans, 61 L . T . Rep. N . S. 388 ; 23 Q . B . examination, for that is provided for by Order
Div . 384. XXXI., r. 1. Obviously it was not the intention
In this case the issue is simply whether the of the framers of that rule that such interroga
plaintiff has suffered more damage than is repre | tories should be allowed before trial. This is
sented by 21. It therefore differs from Marriott | just the sort of case that that rule was intended
v . Chamberlain (54 L . T . Rep . N . S . 714 : 17 Q . B . to meet. These interrogatories are directed to
Div . 154), where the issue was as to the existence matters not in issue in the action , and we cannot
of a certain letter. The amount of damage must therefore require the defendants to answer them .
be reversed .
depend upon the injury done to the plaintiff, and The decision of themaster must opinion
that injury cannot be increased by the negligence WILLS, J .- I am of the same . I think
of the defendants : the case is decided by the authorities that have
Kelly v. Sherlock, L . Rep. 1 Q . B . 686. been cited to us. It cannot be supposed that
in all those cases the court overlooked the fact
Asquith (Sir Charles Russell, Q .C . with him ). that
These interrogatories are directed to show that in every action for libel the amonnt of
the letters were published without reasonable damages is in issue. One of the most important
issues in every libel action is damages. The
inquiries as to their genuineness and through question
the negligence of the defendants, and they are has suffered , logically, is what injury the plaintiff
therefore admissible : ; not what the conduct of the defen
Smith v. Harrison , 1 F . & F . 565. dant has been . Though it is impossible in many
cases exclude thetodefendant's conduct, that is
The cases cited for the defendants do not affect ratherto concession a what could not practically
this case, as the question of damages was not be avoided than a logical deduction from the
raised in any of them . nature of the cause of action . The practice of
Lumley Smith , Q .C . in reply . — The issue as to administering interrogatories has now existed
damages must have been before the court in those for thirty - five years since the Common Law
cases, because it is in every action for libel. We Procedure Act 1854, and during that period no
object to answer these interrogatories, because case has been before the court where interroga
they are not directed to obtaining evidence for tories such as these have been allowed . The
the plaintiff , but are in the nature of adverse master's decision must be reversed .
cross-examination, which is not permissible before | Solicitors: for the plaintiffs, Lewis and Lewis ;
trial. for the defendants, Soames, Edwards, and Jones.
March 15, 1890 .] THE LAW TIMES. (Vol. LXII., N . S. - 77
H . or L .] Lyell v. KENNEDY ; KENNEDY v. LYELL. [ H . OF L.
| Miss Duncan died on the 5th Nov . 1867, intestate
House of Lords.
. as to this property and also as to some of her
28, 31, June 4, and Aug. 1, ofScotch
May 20, 21, 23, 24, 27, 1889. personalty. After her death a good deal
litigation took place, and advertisements were,
by the direction of the Court of Session , inserted
(Before the LORD CHANCELLOR , (Halsbury ) the in various Scotch newspapers calling on her
EARL of SELBORNE, Lords FITZGERALD and heirs to come in and prove, but they remained
MACHAGHTEN.) unanswered . The three ladies from whom the
LYELL v. KENNEDY. plaintiff had an assignment of the property were
KENNEDY v. LYELL. (a) the co -heiresses of the paternal grandmother of
Miss Ann Duncan - Ann Cunningham , who
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. married George Duncan , of Fingask , the son
Evidence - Admissibility - Pedigree- Scotch parish of George Duncan , of Walltree. The defence set
registers - Proceedings in Sheriff 's Court - Action up was, that the plaintiff had not proved his title,
to recover land - Statute of Limitations - and that his claim was barred by the Statute of
Receipt of rents by agent - Possession of heir-at. Limitations. The defendant contended that the
law . three ladies were not the co -heiresses of Ann
Scotch parish registers, or certified extracts from Duncan , and alleged that the true heir was
them , receivable as evidence in Scotland, are Charles Richardson Lyell, who traced his descent
admissible as evidence in English courts , subject from George Duncan, of Walltree, the paternal
to just exceptions as to particular entries in great-graudfather of Miss Ann Duncan , and had
them . assigned all his rights to the defendant. The
In a question of pedigree proceedings in a Sheriff's who case was tried without a jury before Stephen , J .,
Court in Scotland are admissible as evidence as gave judgment for the plaintiff upon both
to the facts of the pedigree incidentally stated in points.
them , intestate
the pedigree The litigation had lasted for a considerable
D .died as tonot being real
certain then estate,
in dispute.
of which time, and two previous appeals had been taken to
she was owner in fee , in 1867. During her the House of Lords upon interlocutory points.
lifetime the property was managed by K ., who See Lyell v . Kennedy (1 ) (48 L . T . Rep . N . S. 585 ;
continued to do 80 after her death, receiving the 8 App. Cas. 217) ; and Iyell v. Kennedy (2) (50
rents and paying them into a separate account at isL . also
T. Rep. N . S: 277 ; 9 App. Cas. 81). It
3 bank. There was considerable difficulty in 50 L . T.reported on an interlocutory point in
ascertaining who was the heir-at-law of D ., but Rep. N . S . 730 ; and 27 Ch . Div. 1 ;
K . stated on several occasions that he was acting and an action brought by Kennedy against
for the heir whoever he might be. In 1881 the Lyell arising out of the same matter is re
heir-at-law commenced an action against K ., to ported in 53 L . T. Rep. N . S. 466 ; and 15 Q . B .
recover possession of the land , and for an Div . 491.
account.
Held , that the acts of K . could not operate to andSirRobertC . Russell, Q .C ., Rigby , Q .C ., A . T. Lawrence,
Wallace appeared for Dr. Lyell, the
dispossess the heir, and that they were capable appellant in the first appeal, and argued that
of ratification , and were in fact ratified , by him , sect. 8 of the Statute of Limitations (3 & 4
and that K . had constituted himself a trustee Will. 4 , c. 27), upon which the Court of Appeal
of the accumulated rents and profits, and that decided the case, had no bearing on it. The
the action was not barred by the Statute of question is how and in what character was the
Limitations. rent received by Kennedy. The construction of
Judgment of the court below reversed . the statute is settled by the decisions in
These were cross-appeals from a judgment of the Grant v. Ellis, 9 M . & W . 113 ; and
Doe v . Angell, 9 Q . B . 328 .
Court of Appeal (Lord Esher, M .R ., Bowen and
Fry, L .JJ.), who had reversed a decision of Here Kennedy never professed to change his
Stephen , J. The case is also reported below in character, but received the rents for Ann
56 L. T. Rep. N . S. 647 and 18 Q . B . Div. 796 .Duncan 's heirs, whoever they might be, as he
The action was brought by Dr. Lyell for the had done for her, withoutmaking any change. In
recovery of real estate situated in Manchester, order to succeed the respondent must bring his
consisting of a mill and about seventy cottages
let to weekly tenants. The plaintiff claimed this case within sect. 2 or 3 of the statute. The
statute could not begin to run till the respondent
property as the assignee of three ladies, whom he had taken some steps to dispossess the heir and
contended were the co-heiresses-at-law of Miss assert his own right. Sect. 8 has no application ,
Ann Duncan, of Balchrystie, in Fifeshire. By as he was not in the position of a tenant. ( The
the will of Lawrence Buchan , who died on the LORD CHANCELLOR referred to Blunden v. Baugh ,
21st July 1859, the property in question was left Cro. Car. 302 .] Kennedy did not seek to alter
to Ann Duncan in fee simple, and she and the his relation to the property, and if he did enter
defendant, John Lawson Kennedy , wereappointed on the land the entry would enure to the benefit
executrix and executor of the will. The of the true heir : (Co. Litt. 258 a.) To alter the
defendant, who resided near the property at possession he must make an entry on his
anchester, gratuitously managed the estate for own behalf. It is a question of intention .
Miss Duncan during her life , and still continued Sanders v . Sanders (45 L . T . Rep. N . S . 637 ; 19
to receive the rents of it after her death . He Ch. Div. 373), which was relied on in the court
opened a separate banking accountat Manchester below , is really an authority in favour of the
in the name of " Buchan's executors," into which appellant, that ratification of an agency is
all moneys connected with the estate were paid . unnecessary. But bere there was a ratification
(3) Reported by C. E. MALDEN, Esq., Barristor-at-Law . I by bringing this action . It is a question of fact,
VoL LXII., N . S., 1583 .
H . OF L .] LYELL v. KENNEDY ; KENNEDY v . LYELL. [ H . Or L .
as to what was said and done at the time. The Sir C . Russell, Q ..C ., Rigby , Q . C ., A . T . Lawrence,
heir has never been dispossessed in fact. See and Robert Wallace, for the respondent, con
Doe v. Beckett, 4 Q . B. Div. 601. tended that the parish registers were not
It has been held in many cases that a person admissible. There is no evidence as to how they
who is in possession by a fiduciary title must get were kept, and even if they are receivable in
rid of the fiduciary position before he can set up Scotland they are not in England, where the
a title in himself : rules of evidence are stricter than in Scotland .
Williams v. Pott, L . Rep ., 12 Eq. 149 ; See Abbott
Re Fitzgerald , 2 Sch . & Lef. 431 ; v . Abbott, 4 Swa. & Tr. 284 ;
Stone v. Godfrey, 5 De G . M . & G . 76 ; Doe v . Bray , 8 B . & C . 813 ;
Moore v. Doherty , 5 Ir, L . Rep . 449 . Chambers v. Bernasconi, 1 Cr. & Jer. 451.
Kennedy was bailiff to Miss Durcan , andd after after | The proceedings in the Sheriff's Court are not
her death was in the position of bailiff de son tort, admissible, being res inter alios actæ . See
and therefore liable to account : TheGardner
Banbury Peerage case, in Le Marchant's
Peerage Claim , appendix , p .410 ; 2 Selw .
Gawton v. Lord Dacres, 1 Leon . 219 ; N . P . 10th edit. 756 :
Viner's Abr. tit. “ Account” c . 7. Boileau v . Rutlin , 2 Ex. 665 ;
They also cited Gee v. Ward , 7 El. & Bl. 517 ;
Attorney -General v. Kohler,'9 H . of L . Cas. 685 ;
Bushby v . Dixon, 3 B . & C . 298 ;
Taylor v, Horde, 2 Smith 's L . C . ; Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 777 .
Davies v . Lowndes, 5 Bing. N . C . 161 ; 6 M . & G . | The pedigree set up by the other side is not made
471 ; out.
Baron de Bode's case, 8 Q . B . 208 ;
Smith v. Bennett, 30 L . T. Rep . N . S. 100 ; Sir H . Davey , Q .C. was heard in reply.
Doe v. Groves, 10'Q . B . 486 ;. At the conclusion of the arguments their Lord
Pelly v. Bascombe, 4 Giff. 390 ; ships took timeto consider their judgment.
Shaw v. Keighron , Ir. Rep . 3 Eq. 574 ;
Agency Company v. Short, 59 L . T. Rep. N . S. 677 ;
13 App . Cas. 793 ;
Aug. 1, 1889.— Their Lordships gave judgment
as follows:
Smith v. Lloyd , 9 Ex. 462 ;
Leigh v. Jack, 42 L . T. Rep. N S. 463 ; 5 Ex. Div. tionThefirst Earl of SELBORNE. — My Lords : The ques
in order in this case is that of title,
264 ;
Sagden ’s Real
8. 4 , para . 12 ;
Property Statutes, 2nd edit., c. 1, raised by the cross-appeal. I shall throughout
speak of Dr. Lyell as appellant, and of Mr.
Shelford 's Real
Coke, 2 Inst. 413. Property Statutes, 8th edit., 177 ; appeal
Kennedy as respondent, though in the cross
those positions are reversed . I do not
Sir H . Davey, Q.C . and Smyly , for the respon
dent, argued that there was nothing to take think that all the evidence which the courts
the case out of the Statute of Limitations. The below thought inadmissible (though in the court
of first instance it was received de bene esse, and
action was not brought within twelve years after its effect was considered ) ought to be rejected .
the right accrued. Kennedy's statements did Foreign registers of baptisms and marriages,
not make him trustee or agent, or establish any
relation between him and the heir. To hold or certified extracts from them , are receivable
in evidence in the courts of this country, as to
otherwise makes sect. 14 of the Act a nullity . those matters which are properly and regularly
The Court of Appeal put the right construction recorded in them , when it sufficiently appears
on sect. 8 , which must be read with sect. 35 . The (in the words of Mr. Hubback 's learned work
cases cited by the appellant were all cases where on Evidence) that they “ have been kept under
an estoppel was raised. the sanction of public authority, and are recog.
Rigby, Q .C. was not called on to reply . nised by the tribunals of the country ” (i.e . of
The cross-appeal on the question of pedigree the country where they are kept) “ as authentic
was then heard . records.” I am of opinion that this does suff
Sir H . Davey, Q .C . and Smyly, for Mr. Ken ciently appear, as to the Scottish parocbial
registers, speaking generally, from Mr. Dick .
nedy, the appellant, argued that the
of descent were not exhausted , and that the the
earlier lines son 's work , from Mr. Bell's Principles, and from
burden of proof was upon Dr. Lyell to show now admission of registers, exactly like those
that the Cunninghams, under whom he claimed , Peerage in question , by this House in the Airth
were the true heirs. The Scotch parish registers 519, 526 case and other cases (see Hubback , pp .
kept by the sessions clerk are admissible in ). Certified extracts from Scottish
evidence, as being public documents kept in the parochial registers have been produced in this
case from theGeneralRegister Office in Scotland,
performance of a public duty , and admissible in where they are now kept under the statutes
the Scotch courts. c. 80, 18 Vict. c. 29, and 23 & 24
Sturla v. Freccia , 43 L . T. Rep. N . S , 209 ; 5 App. Vict. c. Vict.
17 & 18
85 . Those statutes do not make
Cas. 623 ; anything evidence, either here or in Scotland ,
Wilson
12 ,700v.;
Aitken,Morison'sDictionary of Decisions, which without them would not have been 80 .
Thomson v . Stevenson , Ib . 12,701 ; But, if your Lordships may act upon that judicial
Davis v . Lloyd , 1 C . & K . 275 ;
Watson v . Glass, 15 Court Sess. Cas. 1st series, 753 ; knowledge of Scottish law appeal which you possess, as
from all parts
Hutton v . Harper, 2 Court Sess. Cas., 4th 'series, 893 ; the court of ultimate
Goldie v. Christie, 6 Court Sess. Cas.3rd series, 541 ;
Lovat Peerage case in 1827 ;
ofperience
the United Kingdom (and within my ex
you have so acted upon your knowledge
Airth Peerage case in 1839. of English law when questions of English law
Theproceedings in the Sheriff's Court are also have arisen in Scotch appeals), it is certain that
admissible. See also these registers would be receivable in Scotland,
Greaves v . Greenwood, 36 L . T . Rep. N . S. 1 : 2 Ex. | subject to just exceptions as to particular
Div . 289. | entries in them , as parochial registers kept under
March 15, 1890.] THE LAW TIMES. (Vol. LXII., N . S. - 79
H . OF L .] LYELL v . KENNEDY ; KENNEDY v. LYELL. įH . or L .
the sanction of public authority , for whatever afterwards indwelling in Perth ," upon a bill of
they may be worth ; anything imperfect or exchange accepted by that Elspeth Duncan in
unsatisfactory , in the way in which they were 1764 for arrears of rent in Glencarse, due by her
generally kept, affecting only their weight in re to Lady George Murray ; and that James Martin
dubia , and not their admissibility . Nor do I (not disputing any of those matters), by his
think it less certain that they were kept in defence in the last stage of those proceedings
Scotland under public authority from a time not spoke of that Elspeth Duncan as his mother ; and
later than the first half ofthe seventeenth century, that a decree passed against him for the annount
because there is some obscurity about the origin claimed , on proof of service of summons upon
of the legal obligation to keep them . Entries of him in Cottarstown, the validity of which
matters not properly finding place in the parti service he did not in the subsequent proceedings
cular registers (as for instance the entry of a call in question . It was urged , that to make the
baptism in the parish of St. Madoes in the statement of that James Martin (that Elspeth
register of births and baptisms of the parish Duncan was his mother ) evidence in favour of
of Kinfauns, which is among the extracts the pedigree set up by the respondent, it was
tendered in the present case) may be properly necessary, by evidence aliunde, to connect him
rejected , although entries appearing to have | or his mother with the family of George Duncan,
been regularly made in the proper registers of Walltree ; and to this I agree. But all that
may be received . The interests of justice was necessary , in my opinion, was to give such
would not be promoted if such evidence as primâ facie evidence of that connection as might
this, receivable in Scotland, could not be be sufficient, if not met by evidence on the other
received in England in a question of Scotch
pedigree, relating to persons and families always
side. This, I think, the respondent, did, by proof
aliunde of themarriage of Elspeth , daughter of
resident and domiciled in Scotland . If the law George Duncan , of Walltree, to John Martin of
were so, it must prevail; but I am glad to be the Mill ofGlencarse, on the 1st Nov. 1728, and
able to come to the conclusion that it is not so . of the baptism of James, son of John Martin , of
For the decision of that question the courts Glencarse, on the 24th Aug. 1729, little more than
below had not equal advantages with your Lord ninemonths after that marriage. If the matter
ships; though, for my own part, I think it might had stood upon the respondent's evidence only ,
have been possible to come to the same conclusion I should probably have thought the agreement of
on Mr. Ritchie's evidence, referring as he did to names and descriptions, in the protest and
Mr. Dickson 's bock as of authority in Scotland. proceedings of 1766 , enough to show the identity
With respect to the proceedings in 1766 , in the of the Elspeth of those proceedings with the
Sheriff's Court of Perthshire (which were pro daughter of George Duncan, of Walltree, and of
duced from the proper custody), I consider them the James Martin of those proceedings with tha
also admissible, on the same principle on which person of that name baptized in 1729 . That,
answers and decrees in Chancery have been however, is not the state of the evidence before
admitted by this House in peerage cases, as to your Lordships ; and I proceed (treating thə
matters of pedigree, “ when the facts of the respondent's evidence, with some exceptions not
pedigree were not in dispute, but only inciden necessary to be particularly mentioned , as admis
tally stated :” (Phillips on Evidence, vol. . 1, sible) to consider its value and effect, in
8th edit. p . 232 ; Hubback , p . 682.) This has conjunction with that on the other side. The
been done since, as much as before, the opinion appellant proved that there were in and near
of the judges in the Banbury Peerage case (2 Selw . Perth many Duncans and Martins, and not
N . P. 10th ed . p . 756 ), with which , and with the unfrequently the names Elspeth Duncan and
judgment in Boileau v. Rutlin (2 Ex. 665) it James Martin ; many Dowies also, of whom &
does not seem to me inconsistent. The question John and George, “ fileshers in Perth," were son
in those cases was as to statements in bills ; and in -law and grandson of George Duncan, of
the latter case was not one of pedigree. In the Waltree,and another John and George Duwie (also
Shrewsbury Peerage case (7 H . of L . Cas. 32) this fleshers in Perth , and father and son, the son
House received an Irish answer as to matter of | baptized in 1723) might also have been living in
pedigree, though the answer was without oath or 1766. The parishes of Kinfauns and St.Madoes in
signature ; Lord Wensleydale (the same judge that neighbourhood adjoin each other ; Glencarse
who decided Boileau v . Rutlin ) saying : “ It” (the is in Kinfauns; Pitfour, with its hamlet of Cot
answer ) “ must be received as the statement of toun , or Cottarstown, is in St.Madoes. An Elspeth
the party making it ; and being found on the Duncan , “ daughter of Patrick Duncan, of
files of the court, it must be presumed that it Cottoun in Pitfour," was baptized in St Madoes
got there by proper authority.” To make an parish on the 20th July 1703. There is nothing
answer evidence, the bill to which it was an to show that she intermarried, or lived as if
answer must always be put in ; but the bill married , with a person named Martin, or had a
itself is not evidence, unless made so by the son called James Martin ; if, however, she had
answer . In the present case, I regard the such a son, it would be consistent with the whole
notarial protest of 1764, and the proceedings in | evidence that he might have been the defender
the Sheriff's Court in 1766, as admissible for the in the Duke of Athol's suit. In Scotland ,
purpose (and only for the purpose) of showing marriage may be irregular, as well as regular : if
that at that time, when there was no question of irregular, it would not be likely to be registered ;
pedigree in dispute, one James Martin , described , and the parochial registers, both of marriages
as “ in Cottarstown of Pitfour," was sued by the and of baptisms, were too loosely kept to give
Duke of Athol ( claiming by assignment from weight to any presumption from their silence.
Lady George Murray of Glencarse), as represen - | It does not appear that John Martin , t
tative , by right or by wrong, of an Elspeth of Glencarse, ever held land under Lady George
Duncan , described as " late in Glencarse, and i Murray ; or that Elspeth Duncan , named in the
80 _ Vol. LXII., N . 8.] THE LAW TIMES. [March 15, 1890.
H . OF L .] LYELL v. KENNEDY ; KENNEDY v. LYELL. ( H . OF L .
notarial protest of 1764, lived at the mill of bered and talked about at least on their part.
Glencarse. As to the Dowies, the only relation She was nearly of the same age with John
between them and Elspeth Duncan , mentioned in Moncur, son of Christian Martin baptized in
the proceedings of 1766, was that of debtor and 1772, who lived in Perth at the same time
creditor. The residence in Cottoun , in 1766, of a with herself, in the respectable position of
son of Elspeth who was a native of Cottoun , rector of the academy 'there, and died in
might perhaps bemore probable than that of the circumstances which attracted public notice .
son of the miller of Glencarse ; at all events it In the course of the numerous suits relating to
would be as likely that an Elspeth Duncan, born the succession of Ann Duncan, advertisements
in Cottoun , might have lived for a time and held for the discovery of her relatives were repeatedly
land in Glencarse, as that the son of the miller of published in the local and other papers ; and the
Glencarse should , when thirty-seven years old, searches and inquiries for them (particularly
be found living in Cottoun. I do not think there those of the respondent and his agents) were so
is any force in the appellant's argument from exhaustive and unremitting as to make it clear,
Elspeth Duncan , the miller's wife, not being with more than usual certainty, that everything
named in her mother's will, dated the 17th Aug. which was possible has been discovered con
1747. I have endeavoured to give due weight to cerning her family. Under those circumstances ,
all these considerations, which show that it is I agree with the conclusion of the court below ,
possible that James Martin , the defender to the that the respondent's case in the cross-appeal
Duke of Athol's suit, may not have been the fails ; and that the title of the coparceners in the
grandson of George Duncan of Waltree ; and Cunningham line, under whom the appellant
after having done so , I still think it probable claims, has been sufficiently made out - a con
that, if it were necessary to decide that point,my clusion at which it is, to me at all events, much
opinion upon it would not be against the respon more satisfactory to arrive, after admitting and
dent. But this would do the respondent no good considering the weight of the respondent's
unless he could also identify with that James evidence generally, than it would have been if I
Martin the person of the same namewho married had found myself obliged to exclude it. Then
Mary Ducat in 1771, or could otherwise connect there arises the question raised by the first
the husband of Mary Ducat with the family of
George Duncan ofWaltrce. He has not attempted
appeal, of the Statute of Limitations ; as to
which Stephen , J.'s judgment in favour of the
any other mode of connection ; and for the appellant has been reversed , as to two-thirds of
identification of Mary Ducat's husband with the the property claimed , by the Court of Appeal.
defender to the Duke of Athol's suit, he relies The action was brought on the 4th Jan . 1881 ;
only on the St. Madoes baptismal register of and, if the appellant is entitled to say that, down
1772, describing James Martin and Mary Ducat, to a time less than twelve years before that date,
the parents of Christian Martin , then baptized , the rents of the property at Manchester were
as “ in Cottoun." From this the inference is received by the respondent as agent, bailiff,
sought to be drawn that James Martin, the father receiver, or trustee for the heirs-at-law of Ann
of Christian, was the party to the proceedings of Duncan , it appears to me to follow that the
1766 ; which , if proved , would be subject to the statute (3 & 4 Will. 4 , c. 27) is no bar, either as
question already discussed as to the family to to the land which has been ever since Ann
which the James Martin of those proceedings Dunoan 's death in the possession of tenants from
really belonged . But the identity of the James year to year whose rent has been regularly paid ,
Martin who married Mary Ducat with that or as to the rents and profits which the respon .
person cannot be shown by the mere fact dent received . Ann Duncan was entitled at law
that the one in 1766, and the other in 1772, in fee simple , for her own absolute use and
were described as “ in Cottarstown " or in benefit, to the property in question , under the
““ Cottoun.” It is proved that there were at will of a testator named Lawrence Buchan, who
least two other persons named James Martin died in July 1859. She and the respondent were
baptized in the parish of St. Madoes, in which executors of that will; but, as such executors,
Cottoun is situate, in 1733 and 1746 respectively ; they had neither interest in , nor duty with
either of whom , for anything that appears, may respect to, the English real estate. Ann Duncan,
have been living in Cottoun in 1772, and may however, lived in Fifeshire, and the respondent
have married Mary Ducat in 1771. If the case lived at or near Manchester ; and by arrange
rested there the cross-appeal would , in my ment between them , for her convenience, the
opinion , fail; but besides this there are weighty respondentmanaged that property in the name
grounds for the conclusion that the persons of " the executors of Lawrence Buchan," under
whom the respondent has so failed to connect by which designation he received and gave
satisfactory evidence with the family of George acknowledgments for the rents paid by the
Duncan of Waltree, were really not related to tenants, and paid them into an account, SO
that family . There was neither knowledge nor entitled , kept by him with bankers at Manchester,
reputation of such relationship in the line separate and apart from his own private and
represented by these persons; nor was there on personal account. That designation , and that
the part of Ann Duncan . Ann Duncan was form ofaccount (though the land was vested in
living in Perth down to 1836 ; and Christian , the Ann Duncan alone, and not in Lawrence Buchan's
daughter of that James Martin who married executors) was indicative of some sort of trust ;
Mary Ducat,and her descendants,also lived there it was certainly not indicative of a personal
or in the immediate neighbourhood. The relation right, claim , or interest on the part of the
ship, if there had been any, was not so distant as respondent. After the death of Ann Duncan ,
to be likely to be forgotten ; and, if Ann Duncan on the 5th Nor. 1867, no break or change was
was in better circumstances than her supposed made in that course of management. Ann
relations, it was all themore likely to be remem - | Duncan left a will, in Scotch form , as to her
March 15, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. – 81
H . Or L .] LYELL v. KENNEDY ; KENNEDY v. LYELL. [ H . OF L .
personal estate only ; of that will a gentleman | and, until he claimed a right to change his
named John Todd was executor . It was part of position , and to be in receipt of the rents and
his duty to ascertain the persons entitled to her | profits as for himself (which he never did till
undisposed -of personalty, who would be sought 1880 ), I do not see how there could be a right of
for, according to Scotch law , preferably in the action against him for recovery of that land.
paternal line; and, though Mr. Todd,as executor, How the matter stood as to the rents which he
had no duty to perform as to the English real received I shall presently consider. Lord Coke's
estate, it appears from what is stated in the doctrine as to the effect of entry by an unautho
letter of Messrs Drummond and Nicholson rised stranger on behalf of the true owner seems
(Mr. Todd's solicitors at Edinburgh ) of the 2nd to me applicable, in reason and principle, to such
Dec. 1867, to the respondent, and not denied or a receipt of rents as that of the respondent in
disputed in the reply of the respondent's this case down to 1880 : “ If an infant, or any
solicitors, Messrs. Earle, dated the Ilth Dec. man of full age, have a right of entry into any
following, that he took sufficient interest in the lands, any stranger, in the name and to the use
care and management of the English real estate of the infant or man of full age,may enter into
to communicate on that subject with the respon. the lands; and this regularly shall vest the lands
dent ; and that the respondent “ promised him in them , without any commandment, precedent,
to look after the English estates.” The course or agreement subsequent:" (Co. Litt. 258 a.) The
of management which had been established law in this case vested not only the lands but
in Ann Duncan 's lifetime enabled the respon. the actual possession of them in the heirs, unless
dent to go on receiving the rents as before, something was done to displace or interrupt
and he did so . The tenants paid him on the that possession ; and that which , in the case of
same footing as before. It does not appear entry , would have the effect ascribed by Lord
that they were aware of Ann Duncan 's death ; Coke to the act of a stranger in the name and to
the probable inference from the facts in evidence the use of the true owner, could not (as it seems
appears to me to be that they were not. Receipts to me), in the case of receipt of rents , put the
continued to be given by the respondent, as for true owner to his action under the statute ; but
" the executors of Lawrence Buchan ; " and the must, on the contrary, operate to confirm and
rents continued to be paid by him to the separate strengthen his legal possession. If there was no
account with the bankers, entitled as the account interruption of the legal possession of the land by
of those executors. For whom , and on whose the true owner for more than twelve years before
behalf, were those rents received after Ann action brought,no acknowledgmentunder the 14th
Duncan's death ? Not by the respondent for section of the statute was necessary . As to the
himself, or on his own behalf, any more than rents and profits received by the respondent, and
during her lifetime. Heknew ,and down to 1880 the accumulated fund which arose from them in
frequently acknowledged , that they belonged to the bankers' hands, there was a series of declara
her heirs. He was, indeed , disappointed that tions, oral and in writing, by the respondent
she had not made a will in his favour; but to me sufficient, in my judgment, to establish against
it is clear that he knew there was no such will. him , by his own admission , a fiduciary character.
Taking upon himself so to receive the rents of A man who receives the money of another on
property which to his knowledge belonged to his behalf, and places it specifically to an account
others, though to persons unascertained , and with a banker earmarked and separate from his
whom it might take time to ascertain a circum own moneys, though under his control, is in my
stance which disabled them from looking after opinion a trustee of the fund standing to the
their own interests — I should have said , if there credit of that account. For the constitution of
had been no authority, that he was chargeable in such a trust no express words are necessary ;
a fiduciary character with the rents which he anything which may satisfy a court of equity
received ; just as I should have said the same that the money was received in a fiduciary
thing of any solicitor or other agent receiving character is enough. It is not requisite that
rents under a power of attorney , and continuing any acknowledgment of such a trust should be
to receive them after the death of his client or made to the cestui que trust or his agent : to
principal; the tenants being ignorant of the whomsoever made, it is evidence against the
revocation , and taking receipts as before from trustee. Ofthe respondent's declarations in the
the attorney . These are questions of fact and present case I will mention some. On the 15th
of equity, unaffected by anything to be found Jan . 1869, in reply to a letter from the appellant
in any Statute of Limitations. The respondent's who then asserted that he was Ann Duncan's
acts, in so receiving the rents, could not, in my heir (which in fact he was not), the respondent
opinion , dispossess the heirs of Ann Duncan, so wrote : “ I am in receipt of your letter, and can
as to put them to their action , either under assure you that, if you are Miss Duncan's heir,
the 2nd and 3rd , or under the 8th section of you will have no difficulty with me. Messrs.
the statute 3 & 4 Will. 4 , c. 27. If he Drummond and Nicholson have all the particulars
received on behalf of the heirs , and if they of Miss Duncan's estate, and the rents are all
could and did adopt and ratify his agency, they placed in bank as they accrue, and regular
were in , and never out of, possession. I find accounts kept.” Again , on the 18th of the same
nothing in the statute to displace or disturb , month , “ As an old friend of Miss Duncan 's and
under such circumstances, the actual possession Mr. Buchan 's, I should advise those concerned to
by their tenants, which (apart from the effect avoid litigation as much as possible. The
of the statute in the cases to which it applies) property will be given up to the rightful owners
the law would ascribe to them , according to as soon as it can be satisfactorily settled who
Bushby v. Dixon (3 B . & C . 298 ) and other they are.” In the same month the respondent
authorities. The respondent had no title to the saw Colonel Tulloch , who deposes: “ When I
land ; he was never in actual possession of it ; I spoke with him about Mr. Lyell's claim to the
82_ Vol. LXII., N . 8.) THE LAW TIMES. (March 15, 1890 .
H . OF L .) LYELL V . KENNEDY ; KENNEDY v . LYELL. ( H . OF L .
property, Mr. Kennedy said ,' Don't let him make | Assurance Society of Scotland v. Siddall (3 De G .
any fuss or claim on the tenants, or the whole & J. 69), seem to me to be authorities, as high as
thing will go to ruin . I am taking care of the any can be, shortof a decision of this House . The
place for the heir, whoever he may he. He principle of those decisions, as stated by Turner,
handed me a large book of account and several | L .J . in the latter case, was, that a person who
other books which he said were all in order for had assumed to be a trustee " could not be heard
examination when the heir ,whoever he might be, to say, for his own benefit , that he had no right
turned up. He said , ' Leave everything in my to act as a trustee.” Mr. Lewin , in his learned
bands ; ' and ' I will take care of everything till and accurate treatise upon the Law of Trusts ,
the right heir turns up ; everything is safe in my | thus puts it (7th ed . p. 191) : " If a person , by
bands. " In Feb . 1870 the defendant wrote | mistake or otherwise, assume the character of a
to Messrs. Drummond and Nicholson : “ When trustee when it really does not belong to him ,
the claimants to Miss Duncan's estate are and so becomes a trustee de son tort, he may be
ascertained, the property will be found in good called to account by the cestuis que trust for the
repair , the money ready, and the accounts in moneys he received under colour of the trust."
order.” In 1872 (within twelve years of the Other authorities were cited by the appellant's
commencement of this action ) he made claims counsel at your Lordships' bar, which , though
against Ann Duncan 's personal estate in the not decisions, have the weight due to opinions
Scotch administration suit, on the footing of his of eminent judges, reasonable in themselves and
being manager of this property after her death , with nothing against them . In Gawton v . The
and those claims were partly allowed . On the Lord Dacres (1 Leon . 219) Anderson, J . said :
16th April in that year he wrote to Mr. Buchan , “ If one become my bailiff of bis own wrong,
of Toronto (a relative of Ann Duncan, and a without my appointment, he is accountable to
possible heir ) : “ I am acting for the heir-at-law | me." In Shaw v. Keighron (Ir. Rep . 3 Eq. 574)
whoever he may be . . . I claim , on the part Walsh , M . R . of Ireland (that case being under
of the heir -at-law , that the repairs on the mill the 9th section of the Statute ofLimitations), said :
property should be charged on the personal “ I think it is necessary to go beyond the mere
property.” It was suggested in argument for circumstance that some one not entitled to the
the respondent that all this might be explained rent has received and kept it. The section
by his legal liability for rents received by him requires not only that the rent should have been
until the statute had run. But (not to insist on received by a person other than the person
his letter of the 29th Oct. 1879 , in which he rightfully entitled , but that it should have been
assented to the proposition that he was not | received under some claim of title, and that a
capable of setting up the Statute of Limitations wrongful one. For example : if rent were re
against the parties entitled to the property ) the ceived by a person falsely pretending to be agent
declaration to Colonel Tulloch , and the letter of to the rightful owner, who never accounted for
the 16th April 1872 (with which all his other letters it, this would not bar the rightful owner. The
and acts down to 1880 were consistent), appear mere fact that the rent was received and kept by
to mę to repel that explanation. In order a person other than the right owner, no doubt
to test the effect in equity of these acts and raises a presumption that it was received under
declarations of the respondent, I will suppose a wrongful claim of title ; but this is only a
the case of his having become bankrupt at any presumption, and may be negatived by the
time before 1880. Would the accumulated fund circumstances." Under the 9th section, a lessee
which had arisen from the rents received after for years, paying rent to a person " wrongfully
Ann Duncan 's death, and was standing to the | claiming to be entitled,” is supposed to be in
account of " the executors of Lawrence Buchan ," possession , and a title can only be acquired
or any part of it, have passed to the respondent's against the true owuer by a wrongful receipt
trustee in bankruptcy , as against a claim by Ann of rents. The samewords are not elsewhere used :
Duncan ' s heirs-at-law ? The account was ear - but I am of opinion that what was said by the
marked ; none of themoneys credited to it were, learned judge is equally true ofany other case in
or had ever been , the property of the respondent; which the statute is set up as a bar to the true
it did not stand in his name ; it was under a owner by virtue only of the receipt of rent from
title, both primâ facie and when explained by tenants in possession . I think that such receipt of
tracing it to its origin , significant of trust. I rent, in order to exclude the true owner , must
am of opinion that such an account, even if it | always be by a person wrongfully claiming, and
had stood in his name, would be within the not receiving, or claiming a right to receive, on
principle of Pennell v. Deffell (4 De G . M . & G . , behalf of the true owner. When the true owner
381) ; and that no part of it, neither that part can and does ratify an agency undertaken on his
received more han six years before the bank behalf, though without his antecedent authority .
ruptcy, ncr what was received since, would have the case is the same as if he had himself received
passed in the case supposed to the respondent's the rents. It is unnecessary to consider how
trustee in bankruptcy . No authority was cited the matter would stand, towards either the self
for the respondent to show that he was not constituted agent or the tenants who paid rent
chargeable in a fiduciary character under these to him , if the agency were (as it might be)
circumstances, or that as long as he acted as repudiated . The true owner must either appro
agent and receiver for the heirs (though unascer- bate or reprobate ; he cannot do both . That (aswas
tained ) any Statute of Limitations would run said of the option of a cestui que trust to take to or
against them in his favour. In the absence of reject an improper mode of dealing with trust
authority, I should have been content to decide moneys by a trustee, in Pennell v. Deffell (ubi sup.)
such a case on principle ; but, for the principle is a different matter, with which your Lordships
which I consider applicable to it, Rackham v | hare not now to deal. Here the agency has been
Siddall (1 Mac. & G . 621), and its sequel, Iife i ratified if, when the action was brought, it was
Varch 15, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8.- 83
H . OF L .] LYELL v. KENNEDY ; KENNEDY v. LYELL. [ H . OF L .
capable of ratification , as in my opinion it was. ' Lord FITZGERALD . - My Lords: I have read
The Court of Appeal seems to have considered with care and studied the judgment which has
that, in a case in which the assumed agency for just been delivered, expressed in such carefnily
the management and receipt of the rents and considered and measured language by the noble
profits of land was unauthorised by the true and learned Earl, and I entirely concur with that
owner, it must be adopted and ratified within judgment and with its conclusions. I have
twelve years from its commencement; and that nothing to add save this, that the judgment
otherwise the true owner would be barred under expresses the conclusions at which I, speaking
the 8th section of the statute, as if no rent at all for myself personally, had arrived at the close of
had been received during those years from the the full and lengthened hearing of this cause at
tenants (in this cace tenants from year to year) in your Lordships bar, after listening to, and
respect of their tenancies. These propositions having had a full opportunity of considering in
appear to me to assumethemain question as to the the course of the case, the very learned argument
statute running during the continuance of the self addressed to us, an argument so learned , so full,
constituted agency between the true owner and and so elaborate as to leave nothing to be
the person taking upon himself to act as agent. desired .
I find nothing to support them in the Statute of Lord MacNAGUTEN . My Lords: I too have
Limitations itself; and I do not think them well had the advantage of reading and considering
founded in principle. It is enough , in my the opinion of the noble and learned Earl on the
judgment, if the agency is ratified within such appeal and cross-appeal. I desire to say that
& time as is reasonable under the circumstances I entirely concur in that opinion . I would only
between the true owner and the assumed agent. venture to add, with regard to the appeal, that
In this case the ratification took place as soon as it seems to me that the principle which must
was reasonably possible after the co -heiresses had govern the case may be stated concisely in the
been ascertained , and hardly more than a year words of the late Giffard , L . J. In Burdick y.
after the last ofan uninterrupted series of acts by Garrick (22 L . T . Rep . N . S. 502; L . Rep . 5 Ch.
the respondent upon the footing of agency . 233) that learned judge expressed himself as
That in my opinion was enough . The present follows: “ I do not hesitate to say that, when the
question is not with the tenants ; they have
regularly paid rent in respect of their tenancies, duty of persons is to receive property and hold
it for another and to keep it until it is called for,
and they cannot have any claim , under the 8th they cannot discharge themselves from that trust
or any other section of the statute, against the by appealing to the lapse of time. They can
reversioner, if he is entitled to take, and does only discharge themselves by handing over that
take, the benefit of their payments. Whether he property to somebody entitled to it." I think
is or is not entitled, as against the respondent, to that is a sound proposition. I do not think it can
an account of those rents, and to receive future make any difference what the nature of the pro
rents, is a question with which the tenants (so
long as they are protected against a double claim ) | perty may be,whether it is a lump sum or whether
bare no concern . There is not here a jus tertii, time it is collected in the shape of rents accruing from
complete before ratification , as there was in Lord difference to time. I do not think it can make any
Audley v. Pollard (Cro. Eliz. 561), and Bird v. the property whether the person on whose behalf
Broun (4 Ex. 786). Those cases are good law , under disability is professedly received is or is not
but I think them inapplicable to a question do I think it can or unborn or unascertained. Nor
between the self-constituted agent and the the duty arises from make any difference whethor
contract or previous request,
ratifying principal. I am not sure that the form or whether it is self-imposed and undertaken
of Stephen , J 's order, so far as relates to the
recovery of the possession of the land,may not without any authority whatever. If it is
require amendment so as to show that the established that the duty has in fact been under
taken and that property has been received by a
possession to be recovered by the appellant is person assuming to act in a fiduciary and
subject to the exising tenancies ; and I think that, representative
in taking the account directed ,all just allowances must, I think , incharacter,
every
the same consequences
case follow .
must be made to the respondent. That would be The LORD CHANCELLOR (Halsbury ). - My Lords :
the rule in equity (which since the Judicature
Actsmust prevail), however the case might have I have had an opportunity of reading the
stood in the old action of account at law . Subject | judgment of the noble and learned Earl, and
to such formal variation , I think that the order only desire to say that I entirely concur both
of Stephen , J. was right, and ought to be in with the conclusions he he has arrived at and with
substance restored ; and that the respondent the reasons by which has arrived at them .
ought to pay all the costs of this litigation , which , Order appealed from reversed , and order of
Stephen , J. restored subject to a declaration .
in my opinion , nothing but the controversy as to
the true heirship to Ann Duncan could at all The cross -appeal of the defendant Kennedy
excuse. I therefore move your Lordships to dismissed with costs ; the defendant Kennedy
declare that the recovery of possession adjudged to pay all costs here and in the courts below .
to the plaintiff Lyell is to be subject to the existing Cause remitted to the Queen 's Bench Division .
tenancies ,and that in taking the account directed Solicitor for Lyell, J. Balfour Allan.
all just allowances are to bemade to the defendant Solicitors for Co.,
Kennedy, Rooke. and Sons, for
Kennedy ; and with that declaration to reverse | Earle, Sons, and Manchester
the order of the Court of Appeal and restore the
order of Stephen, J., and dismiss the appeal of
the defendant Kennedy with costs ; the defendant
Kennedy
bel
to pay all costs here and in the court
ow .
H . of L.] THE MEMNON . [ H . OF L .
July 9 and 11, 1889. i ordinary common sense, it could be ascertained
(Before the LORD CHANCELLOR (Halsbury ), Lords that the stopping, or the reversing, or the slacken
FITZGERALD , HERSCHELL, and MACNAGHTEN .) ing would itself produce or increase the danger
LIVERPOOL, BRAZIL , AND RIVER PLATE STEAM approach of collision which would be incurred by the
NAVIGATION COMPANY v. CAMPANHIA BAHIANA DE should think of the two ships to each other , I
NAVEGACIO A VAPOR. myself that it would be impossible
THE MEMNON. (a) to say that, upon the true construction of the
words in that rule “ if necessary," such facts
ON APPEAL FROM THE COURT OP APPEAL IN ENGLAND . would show that in the particular case wbich I
Ship - Collision - Crossing ships- Regulations for have supposed it was necessary to do either the
Preventing Collisions at Sea ,arts. 16, 18, 23. one or the other of those thingswhich , upon the
When two steamships are approaching 80 as to supposition I have made, would either create or
increase the danger of collision. I cannot
involve risk of collision, and it is the duty of one understand how any court could suppose that
to 1:eep out of the way , and of the other to keep
her course, the latter is bound to comply with struedthose words “ if necessary " should be so con
art. 18 of the Regulations as to slackening her hypothesis as to apply to a case where upon the
spred or stopping and reversing if necessary, and injurious; and it is not only not necessary but
if she does not do 80 the onus lies upon her to could find out either if in the whole of this case I
show that to continue her speed was in fact the the argument that that from the evidence or from
best and most seamanlike manoeuvre under the put before the court, so case had been made and
circumstances. that we could review it ,
Judgmentof the Court ofAppealaffirmed on thefacts. I myself should certainly preserve an indepen .
dent judgment as to what the decision of the
This was an appeal from a judgment of the Court court should be. But I have looked with some
of Appeal (Lord Esher, M . R ., Lindley and Bowen , care at the evidence,and I cannot find that that
L .JJ.), reported in 59 L . T. Rep. N . S. 289, who question, though ably and powerfully urged at
had affirmed a judgment of Butt, J. your Lordships' bar, was ever really the subject
The ce se arose out of a collision between the of discussion in the court below . It may have
British steamship Memnon and the Brazilian been argued in the court below - that I cannot
steamship San Salvador, which took place on the say ; but so far as the evidence is concerned I
20th Aug. 1885 off the coast of Brazil. The cannot find a trace of it. What was argued
court below held that both ships were to blame. apparently was this, that the captain of the San
The owners of the Memnon appealed . Salvador had so acted as to mislead the Memnon ,
Sir W . Phillimore and J. P. Aspinall appeared and to place her in a considerable difficulty as to
for the appellants. what course the should pursue ; and I think it
Myburgh , Q .C . and Raikes, who appeared for was established that the San Salvador bad
the respondents, were not called upon to address exhibited bad and reckless seamanship. Then ,
there being no doubt that the San Salvador was
the House .
· At the conclusion of the arguments for the beento blame, the question which appears to have
appellants their Lordships gave judgment as so misled, debated was, whether the Memnon had been
follows : and had so acted in pursuance of her
duty to keep on her course, that she was
The LORD CHANCELLOR (Halsbury).— MyLords:
In this case I am anxious not to be supposed to entirely blameless ; and that which was argued ,
and that which the nautical assessors appear to
be placing any particular construction on the have affirmed , is this, that she did observe the
rules, such as they are, which have been quoted bad seamanship of the San Salvador at such a
as applicable to circumstances not identical with time and under such circumstances that she
those which your Lordships have now under must have known that, if she kept on her course ,
review . I do not believe that mere words, 1 if there would not be actual collision there was
necessarily in relation to a set of facts to be so serious a risk of collision that the rule became
ascertained at the time, can ever be so precisely immediately applicable, and that she ought to
construed or expounded as to be applicable to all have slackened her speed , and if necessary
cases alike. Therefore, when we are dealing stoped and reversed . Well, now , it cannot be
with such a rule as that when two ships “ are said as an abstract proposition that that must
approaching so as to involve risk of collision ," necessarily either create or increase the risk of
it shall be the duty of one of them , I do not say. collision . Thatmust depend upon circumstances ,
which at the moment, to " slacken speed or stop and what the nautical assessors have found as a
and reverse if necessary ," however those words matter of nautical skill (and certainly without
may be construed , whether distributively, that is evidence on the other side I should feel myself
to say that the words “ if necessary ” are to be bound
applied to each of them in turn , or collectively, was notbyjustified
it) is, that the captain of the Memnon
in supposing that if he went on
that is to all of them in combination - whatever as he was going he would not incur risk of
is the true construction of it, it is impossible to collision .nutsTo put it as the Master of the Rolls
lay it down as applicable to all cases and all himself himself it : there is plenty of sea room , you
circumstances that that rule is to be so obeyed | are on puts the open sea, and if you see that an
as, with all submission , the Court of Appeal
seem to have assumed , without reference to the approaching vessel is not skilfully navigated, and
is being navigated in such a way that you may
necessity which is raised by the circumstances | anticipate that a slight deviation from what she
under which the rule is to be obeyed. If there . is doing may
fore in this particular case it could be suggested are not justifiedinvolve the risk of collision , you
that, as a matter of seamanship , or as a matter of exact in her irregularity that that
in supposing she will be so
you can calculate
(a) Reported by C. E.MALDEN, Esq., Barrister-at-Law . upon it that the vessel will go under your stern at
March 15, 1890 .) THE LAW TIMES. [Vol. LXII., N . S.- 85
H . OF L .] THE MEMNON. [ H . Or L .
a distance of a length and a half, when she may Lord FITZGERALD concurred .
by a decrease or variation of her irregularity . Lord HERSCHELL. — My Lords: I am , Iofthink the
come within half a length, and if so no one can sameopinion . Themain question - indeed
doubt, says the Master of the Rolls ,that that will the only question - is, whether the Memnon has
involve a risk of collision . Therefore, the Court been properly held to have been to blame on the
of Appeal and Butt, J. all find the Memnon guilty ground of disobedience to a statutory rule, the
of disobedience to the rule in such 2 way as that rule which provides “ that every steamship , when
they think that her master did not take that approaching another ship so as to involve risk of
course which the Act of Parliament prescribed collision , shall slacken her speed or stop and
when the facts were to his mind such that if he reverse if necessary .” Now it has been held, in
did not obey that course there must be risk of the case of The Beryl (51 L . T. Rep. N . S. 554 ;
collision . So far, in that condition of things, I 9 P . Div . 137), and the view taken there has
assent to the judgment at which they have been adopted by this House, (a ) that the rule only
arrived . Mr. Aspinall has made a very powerful becomes applicable where the circumstances are
attack upon the reasoning of some parts of the such as to bring to the mind of themaster who
judgments of the Court of Appeal. It appears is navigating a vessel that they involve risk of
to me that it is very difficult to say, if that is collision. Once it is proved that the circum
right, that it is also right to say that the person stances were such as would show a seaman of
who was responsible for the navigation of the reasonable skill that there was risk of collision
Memnon did no wrong, and was not guilty of owing to the course in which , and the circum
anything which a seaman ought not to have been stances under which
guilty of. One can understand, no doubt, the one another,then it ,isthe vesselswere approaching
clear that it was imperative
sympathy which Butt, J. and the learned judges upon him to slacken speed or stop and reverse if
in the Court of Appeal feel for a sailor who has necessary
been placed in a very difficult position by the imperative. upon Now , although I have said that it is
him to do so , yet it must be borne
misconduct of another, that other representing in mind that thestatute only provides that his ves
a rival ship which comes into collision with his, sel, if it does not take that
and being certainly, if one might take degrees | in fault unless it be shown tocourse, shall be deemed
the satisfaction of the
in this matter, very much more to blame than i court that the circumstances of the case made
himself. But the question which we have to
consider is, whether both vessels were to blame, departure from the regulation necessary ; and
and not to apportion the degree of blamewhich there is also another regulation which provides
is to be attached to each ; and though I confess that, in must obeying and construing the rule, “ due
myself that I have great difficulty in following regard be had to all the dangers of naviga
tion and to any special circumstances which may
the initial portion of the judgment of the Master exist
of the Rolls and reconciling it with the con from intheany particular case rendering a departure
above rule necessary in order to avoid
clusion and any part of the judgment of Lindley, immediate danger.” But it appears to me that,
L.J., yet with the result I am content, namely ,
that they affirm the judgment of Butt, J., in when once it is shown that it was brought home,
or ought to have been brought home, to the mind
which they have the assent of both sets of of the master of a ressel that the courses upon
Dautical assessors. I am not quite able to see which the ships were approaching, and the
what the question put to the nautical assessors in circumstances, involved risk of collision, the
the Court of Appeal was, but I gather that, if the
question which was put was not in the terms onus is thrown upon him of justifying his not
doing that which the rule prescribes. If under
which I think the Master of the Rolls uses, those circumstances he does not slacken speed ,
namely , “ that the best thing as a matter of
simple navigation for this officer to have done and does not stop and reverse, he cannot be held
was what he did do,” it was something like it; | tothanbe toexcused,
butwhether or not, notwithstanding that, apart was
he cannot be held to be otherwise
blame. The question whether a departure
from the Act of Parliament, his conduct as a by the necessary or not must no doubt be determined
sailor could not be complained of, yet considering tñe pointcourt ; butraised
being it must
, and beupon
determined upon
some evidence
that the rule had informed him of the course being tendered to the court to show that to have
which he was to pursue,namely to slacken speed,or followed the rule would either have created that
stop and reverse, he disobeyed that rule, and very risk of collision which it was the purpose
having disobeyed it, and the Act of Parliament of the rule to avoid , or have increased instead of
having provided that in such a case that rule is diminished the risk of collision . If either of
to be obeyed , the nauticalassessors take that as those things were shown,
part of a sailor's duty , and therefore they agree that the courts would holdthenthat Ithe
cannot doubt
rule which
that under those circumstances the facts were applies to the course to be taken in order to
sufficiently present to his mind to make that rule avoid risk of collision could not justify holding a
operative upon him , and that he disobeyed it. I master to blame who had only omitted to do
am not quite certain that even that is a very that which would of itself either have created or
satisfactory explanation of what theMaster of have
the Rolls does mean ; but, as I say, it is enough no caseincreased
in which thetherisk
law ofhascollision. I can find
been differently laid
for methat both sets of nautical assessors assent down. But in the present the nauticalassessors
to the blame being cast upon the Memnon , and I below . who assisted the court in both courts,
under these circumstances, entirely disclaiming have found that, as a inatter of seamanship, the
any notion of laying down any abstract applica master of the Memnon ought to have seen that
tion of this rule to facts which are not before me, I the vessels were so approaching as to involve risk
am content with the judgment of Butt, J ., and
think that this appeal ought to be dismissed with (a) In The Theodore H . Rand (56 L . T. Rep. N . S. 343 ; 12
costs, and I so move your Lordships. App. Cas. 247).
86 - Vol. LXII., N . 8.] THE LAW TIMES . [March 15, 1890.
H . OF L .] PAILLIPS v . CAYLEY. [CT. OF APP.
of collision. That is the finding which is
distinctly to be inferred in both courts, and the
learned judge who presided in the Admiralty Supreme Court of Judicature.
Division, and all the judges in the Court of
Appeal, have adopted that view . Therefore I COURT OF APPEAL
think it would be out of the question that your
Lordships should take any other view here. We Thursday, Dec. 19 , 1889.
start with this, that the master of the Memnon (Before COTTON, BOWEN, and Fry, L.JJ.)
ought to have known and seen that the vessels
were so approaching as to involve risk of PHILLIPS v. CAYLEY. (a)
collision . That heing so, we have it as an APPEAL FROM THE CHANCERY DIVISION.
admitted fact that, at the time when he ought | Power of appointment - General power - Execution
to have seen and known it, he did not do by general bequest - Reference to power - Wills
that which the rule prescribes, he neither Act (1 Vict. c. 26 ), 88. 10 , 27 .
slackened speed nor stopped . Primâ facie, there Under a settlementdated the 4th June 1884 per.
fore, he has broken the rule, and must be held sonal property was settled in trust for such
to have been to blame. Has he shown any person or persons and for such purposes as P .
reason for not taking that course ? It is should at any time or times, or from time to
suggested that, if he had slackened speed , it time by writing under his hand codicil
(not being a will
would have increased and not diminished the or codicil) or " by a will or expressly
risk of collisicn . I do not see the slightest referring to this power ” appoint, and in default
evidence to support such a contention . No of appointment over . P . died in 1886 , having
question upon that point was ever put to the bequeathed all his personal estate by his will and
master of the vessel, and it would be impossible, codicils,none of which referred to the power of
as it seems to me, for your Lordships, without appointment or to the settled property .
any such evidence , to arrive at any such con Held , that the settlement did not give P . a power
clusion . As I have said ,the circumstances throw to appoint “ in any manner he might think
the burden upon the master of excusing himself, proper,” and that consequently sect. 27 of the
and he bas not given any evidence which Wills Act did not apply , so as to render P 's
stipports any such excuse as has been suggested will and codicils an execution of the power.
for him here to -day . Mr. Aspinall, on behalf of The decision of Kekewich, J. (61 L. T. Rep. N . 8.
the appellants, has argued that if the master of 195 ) affirmed .
the Memnon had slackened speed it would in one Re Marsh ; Mason v. Thorne (59 L . T. Rep. N . S.
particular event, namely, in the case of one 595 ; 38 Ch . Div. 630) overruled.
inanæuvre being taken by the master of the By a settlement dated the 4th June 1884,after
San Salvador, have increased the risk of collision, reciting that H . R . Phillips had transferred into
namely, if the master of the San Salvador had the names of trustees 70601. railway stock , it
ported . Well,supposing that to be true, suppos was witnessed that the trustees should hold the
ing also that it had been made out that if the same “ in trust for such person or persons, and
master of the San Salvador had continued his in such manner as the said H . R . Phillips shall at
dotirse there would have been some increase to
the risk of collision by the master of the Memnon any timeor times or from timeto time by writing
slackening speed , yet there was a third alterna under his hand (not being a will or codicil), orby
tive, and it may be that, in spite of that, and will or codicil expressly referring to this power,
looking at the circumstances altogether, the appoint," and in default of and subject to any
total risk would have been less by the master appointment, upon trusts in fayour of certain
persons as therein mentioned . H . R .
slackening, even if in the case of a particular other
Phillips died in 1886 having by his will dated in
mancuvre being taken by the San Salvador it
would have caused some increase of the risk . 1879, after certain specific and pecuniary bequests,
bequeathed all his personalestate upon the trusts
What must be looked at is the risk as a whole . therein
In order to excuse the master for his non his power mentioned, but the will did not refer to
compliance with the rule you must show that or specifically of appointment under the settlement,
under all the circumstances, and considering all The testator toexecuted the property thereby settled .
the possibilities, the total risk would have been 7th June 1884 , revoking aa legacy codicil, dated the
given by a
greater if he had slackened speed than it would
previous codicil, but not otherwise altering or
bave been if he had not complied with the rule. revoking
Even if there be ground for the suggestion that in his will.the general bequest of personal estate
in certain events there might have been an A summons was taken out, under Order LV..
increase of risk , I do not see the shadow of a r. 3a, by the persons entitled under the settlement
case for the suggestion that as a whole the risk in default of appointment, for a declaration that
of collision would bave been increased rather
than diminished by the master slackening speed, by the testator's will did not operate as an exercise
and so obeying the rule. Under these circum thehim of the power of appointment contained in
settlement.
stances it seems to me that the decision of the This was adjourned into court, and Kekewich , J.
court below was right. decided that H . R . Phillips had not a power
Lord MacNAGATEN concurred . to appoint " in any manner he might think
Order appealed from affirmed , and appeal proper,” and that sect. 27 of the Wills Act did
dismissed with costs. not render his will an execution of the power :
Solicitors : For the appellants. Pritchard and I (61 L . T . Rep . N . S. 195 .)
Sons, for Thornely and Cameron , Liverpool ; for The executors of the will appealed .
the respondents, Waltons, Bubb,and Johnson . (a ) Reported by A . J. SPENCER, Esq., Barrister-at Law .
March 15, 1890.] THE LAW TIMES, [Vol. LXII., N . 8.- 87
CT. OF App.] PHILLIPS v. CAYLEY. [Cr. OF APP,
E . W . Byrne, Q .C . and Allen for the appellants. ) to, we cannot say that there is an exercise of the
- This case turps upon the 27th section of the power. In express terms, the Act only pre
Wills Act. “ In any manner " in that Act vents any conditions being imposed as regards
means in any manner as to the devolution of the the mode of execution . If there be any such con
property : dition in the settlement,that cannot be regarded ,
Re Marsh ; Mason v . Thorne, 59 L . T. Rep . N . S. and the will will be-- if there is nothing elsea
595 ; 38 Ch . Div. 630. due execution of the power ; but here in this case
The section applies where there is power to we have got this : The settlor says, “ My settle .
appoint by will in any manner the appointor may mentmay be put an end to, and the property may
think proper. Where a power is equivalent to be disposed of only in theway provided by the
property the settlor cannot contract himself out settlement;" that is, by a will expressly referring
of the provisions of the Wills Act. “ In any to this power. Any other willmawill not expressly
manner ” refers to the objects, not the manner of referring to the power is not within that power
execution. They referred to of appointment, as there is nothing in the settle
Sagden on Powers, 8th edit., ch . 7, sect. 47, p. 306 ; ment of the settlor himself to affect the power .
Airey v. Bouer, 56' L . T . Rep . N .' s. 409 ; 12 App . I cannot see how , under sect, 27 , this can be
Cas. 263 ; said to be a good execution of the power. In
Re Clark's Estate ; Maddick v. Marks,43 L. T . Rep . my opinion this decision is right.
N . S . 40 ; 14 Ch. Div. 53 ; Bowen, L .J. - I am of the same opinion. The
Harothorn v . Shedden , 3 Sm . & G . 303 ;
Re Porcell's Trusts, 18 W . R . 228 ; scope of the two sections - sects. 10 and 27. is
Re Phillips ; Robinson v. Burke, 60 L . T. Rep . N . S. totally distinct. Sect. 10 provides that appoint.
808 ; 41 Ch . Div . 417 ; ments by will shall be exercised in the manner
Charles v. Burke, 60 L. T . Rep . N . S. 380. pointed out in a previous portion of the statute,
Warmington , Q .C . and Warrington for the and shall be valid , although the formalities
respondents. - A man may reserve to himself a or forms of execution may not be observed .
power of appointment followed by any con Sect. 27 has nothing to do with forms of execu .
ditions except as to execution : (Wills Act, tion or other solemnities. It provides that
sect. 10 .) general gifts under a will are to include property
Allen replied. over which the testator has a general power of
appointing. In this case we have to construe the
Bramwell Davis appeared for the trustees of words which occur in the second branch of
the settlement. sect. 27, and which provides that " a bequest of
COTTON, L . J. - This is an appealon a point on the personal estate of tne testator,or any bequest
which there are contrary opinions of the learned of personal property described in a general
judges ; but, in my opinion, the decision appealed manner, shall be construed to include any per.
from here was a right one. The question is, sonal estate, or any personal estate to which such
whether the will which has been made by the description shall extend (as the case may be),
testator in this case is a good execution of a power which he may have power to appoint in any
contained in a settlement executed by him on manner he may think proper." The first thing
the 4th June 1884. I quite agree that you cannot that seems to me to be clear is, that the words
look ior a contrary intention, having regard to " he may have power to appoint in any manner
sect. 27 of the Wills Act, except to the will itself ; hemay think proper " are equivalent to the words
but then there is something more than that. The “ he may have power to appoint by will, in any
question is, whether there is a power which enables manner he may think proper ." And secondly ,
thiswill to operate. So far as intention goes, inten I think that the words " he may have power to
tion is presumed unless a contrary intention appoint " mean more than " appoint by will " and
appears on the face of the will. Butthen we have | extend and are equivalent to “ appoint by the
to consider this : will this be a good execution of will in question ,” and you get that colour from
the power over property which the testator had the context. The sections only deal with wills ;
* power to appoint in any manner he may think therefore you are not doing any violence to this
proper " ? It is conceded that, if there was only section by reading those words in here. Now it
a power to appoint by deed , an appointment by appears to me that, as soon as you find that that
Will would not do, even although there is no is the true construction of those words, it is
limitation of the objects in favour of which the obvious that in the present case the will does not
power could be exercised . That I think is reason. answer to the description of the power, and that
able enough . The section deals with wills, and that is a fatal reason why the section does not
enables persons to appoint by will, and gives their apply . The statute is not intended to cure dis.
wills effect where there is a power to appoint in similarities between wills and powers except so
any manner the testator thinks fit, where the far as sect. 10 applies. That is not this case.
will does not expressly show that there is an | This is a dissimilarity between a will and a power
intention to execute that power. That does not i which goes directly to the form of the will itself.
go quite far enough. Although a power to | It has been argued ,indeed and a prejudice is thus
appoint by will is sufficient, yet, in my opinion , l endeavoured to be cast upon theargument for the
When we come to see whether the testator's will respondents by the appellants - that it is not
has exercised that power, we must look first to right to allow a man to escape from the inten
see whether on the will there is a contrary inten tion of the statute by requiring particular
tion. That is out of the question here . But then expressions in the will. The section in question
one must see whether it is such a will as is within which we have to interpret is not a prohibitory
the power, and, in my opinion , if there are any section . It is an enabling section , and I cannot
conditions or limitations imposed by the settle- see any reason why a man should not so frame
ment that creates the power which the Act of his settlement as to exclude from the operation of
Parliament does not prevent effect being given that section all kinds of wills which afterwards
88 - Vol. LXII., N .8.] THE LAW TIMES. [March 15 , 1890 .
CT. OF APP.] Re PORTUGUESE CONSOLIDATED COPPER MINES LIM .; Ex parte STEELE. [CT. OF APP.
may be made. Why may not a man impose upon Friday, May 31, 1889.
the will the condition that the will shall (Before Lord Esher, M . R ., Cotton and FRY, L .JJ.)
expressly name the source of the power ? Sup Re PORTUGUESE CONSOLIDATED COPPER MINES
pose for a moment that a man were to go a little LIMITED ; Ex parte STEELE. (a )
further than the settlor does in this case, and to APPEAL FROM THE CHANCERY DIVISION .
say that the property is only to be appointed by
a will in which the testator shall nominatim refer Company – Allotment of shares — Directors,
to the settlement. If he chooses to make rather . Quorum - Confirmation of allotment.
a strange condition like that, he surely may The articles of association of a company, which
do so , and you could not escape from the obliga was incorporated on the 20th Oct. 1888, provided
tion of that condition by neglecting altogether that there should be not more than ten nor less
reference to the matters which he insisted upon than three directors ; that the first directors should
as necessary to mention before the will is to be be appointed by the subscribers of the memoran
an exercise of the power. It seemsto me, there dum of association ; that the directors should
fore , when this matter is argued out, that it is hold meetings for the despatch of business at
really quite clear. Iagree with the view expressed such times and places, and might adjourn and
by Cotton, L.J., and that this appeal must be
dismissed with costs.
otherwise regulate such meetings as they thought
fit, and might determine the quorum necessary
FRY, L .J. - I am of the same opinion . The for the transaction of business , and that a reso
words we have to construe are, that the will lution in writing signed by all the directors
referred to shall extend to any property “ which should be as valid as if passed at a meeting duly
he may have power to appoint in any manner he called and constituted . They also provided that
may think proper.” Now , does that mean “ any the shares should be allotted by the directors to
power to appoint in any manner he may think such persons at such times and on such terms as
proper " ? It does not, because, if it did , it would they should think fit. On the 22nd Oct. 1888 the
enable a person to exercise by will a power of subscribers of the memorandum of association
appointment confined to deeds. Therefore it duly appointed five directors, one of whom was
cannot mean “ any power to appoint in any not to take his seat at the board until after allot
manner he may think fit." Does it mean “ by ment. On the 24th Oct. a meeting was held at
any will ” p I am of opinion it does not,and for which only two directors were present. The two
this reason , that if it did , it would frustrate, or directors passed a resolution that two directors
might frustrate , the intentions of the person who should be a quorum , and proceeded to allot a
created the power. For instance, supposing a number of shares. Among others, they allotted
father on the 1st June guve a power to his son to to S. one hundred 51. shares, for which he had
appoint by will to any person whom he might applied . On the 25th Oct. S .withdrew his appli
think fit - in any manner he might think fit cation . On the same day a third director signed
provided that the will was executed after the a resolution appointing two directors a quorum ;
1st Jan. next, and on the 2nd June the son had and on the 26th Oct. a fourth director handed in
made his will, and on the 3rd June he died, his written assent to the same resolution . At the
according to the arguments of theappellants that meeting on the 26th Oct. the previous allotments
will would have executed that power, and the were confirmed . S. applied to have his name
fetter which the father had a right to impose struck of the register , and North, J. held , that
upon the power he was creating would be frus there was no properly appointed quorum of
trated . Of course, if the Legislature had said that directors present at the meeting of the 24th Oct .
no such fetter should be imposed by the person when the allotments were made ; that the allot
who created such power, the court must have ment of S . was therefore invalid , and the
yielded to it ; but we are not to invent fetters confirmation on the 29th Oct. would only take
upon the powers of disposition of property . In effect as a fresh allotment on that date, which ,
the first place, I entirely agree with what was being after withdrawal,was ineffectual. Si's name
said by Bowen , L .J., that this clause is not was therefore removed from the register : (60 L . T.
intended to deal with any relation between the Rep. N . S . 857 .)
power and the instrument executed . It is Held , on appeal,without deciding the other points,
that there was no evidence that Lord 1. la
intended to deal only with the exercise of the
power by the will. In the second place, the director, who was not present at the meeting of
expressions contained in the 10th section , which the 24th Oct., but who signed the document on
do put a fetter upon the conditions which may the 26th Oct.) received proper notice of themeet
be required in exercise of the power , seem to me ing ; that he had not waived his right to the
strong to show that where that section does not notice which he ought to have received ; that the
apply, any fetter imposed by the creator of the meeting was a bad one ; and that the decision of
power would still be valid . I think , therefore, North , J.must be affirmed .
that the true meaning of the words “ may have THE Portuguese Consolidated Copper Mines
power ” is “ may have power by the will in ques. Limited was registered under the Companies
tion.” Consequently the appeal fails. Acts on the 20th Oct. 1888 with a nominal
Solicitors for the appellant, Allen and Son . capital of 100,0001., divided into 20,000 shares of
Solicitors for the respondents, Potter, Sandford, | 5 . each.
and Kilvington . Art. 3 of the articles of association confirmed
and adopted an agreement dated the 17th Oct.
1888, and the other articles were, so far as
material, as follows :
1. The regulations contained in the table A to the first
(a) Reported by Frank Evans, Esq ., Barrister-at-Law.
March 15, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. -89
CT. OF APP.] Re PORTUGUESE CONSOLIDATED COPPER MINES LIM . ; Ex parte STEELE . {CT. OF APP.
schedule to the Companies Act 1862 shall not apply to beginning the 21st Oct.; and that he had gone
this company, except so faras the samemay be repeated, to Ireland, and was there when the meetings were
embodied , or contained in these articles . held .
4. The business of the company may be commenced as No allotment was made to any of the directors
soon as the directors shall think fit after the incorpora
tion of the company, notwithstanding that the nominal till the adjourned meeting on the 25th Oct.
capital may have been only partially subscribed . Steele received notice of the allotment toonhim
self on the 24th Oct., in the evening, and the
70. Subject to the agreement of the 17th Oct. 1888, the
shares shall beallotted by the directors to such persons,
at such times, and on such terms as they shall think 25th Oct. his solicitors wrote on his behalf to the
company withdrawing his application for shares,
proper.
74. The directors shall not be more than ten or less | and asking for a return of his deposit.
than three in number. The adjourned meeting was held on the
75. least
ofat The qualification
forty shares .of a director shall be theholding 25th Oct., Mr. Wood and Captain Skewis being
present. After the minutes of the previous
80. The first directors shall be appointed by the meeting
majority of the subscribers to the memorandum of had been read and confirmed , further
association. allotments were made, including an allotment of
91. The business of the company shall bemanaged by forty shares to each of the directors, and the
the directors.
96. The directors shall hold meetingsfor the despatch meeting was adjourned until the 26th Oct.
On the 26th Oct. the directors present were
of business at such times and places, and may adjourn Mr. Wood (chairman), Mr. Loam , and Captain
and otherwise regulate such meetings as they think fit ,
and may determine the quorum necessary for the trans Skewis. After the minutes of the 25th Oct.
action of basiness. Questions arising at any meeting meeting had been read and confirmed , and
shall be decided by a majority of votes, and in case of Steele's withdrawal letter bad been read , Mr.
an equality of votes the chairman shall have a second or Loam signed and handed in a memorandum ,
casting vote.
98. There shall be a chairman of the board. The first addressed to the directors, as follows : “ I hereby
chairman and all subsequent chairmen shall be elected concur in and approve of the following resolution
by the board from their own body. passed by you at your first meeting, viz., ' Re
100. If at any time there shall be no chairman , or the solved , that two directors form a quorum .'”
chairman is not present at the time appointed for hold . Some more allotments were then made, and a
ing a board meeting, the directors present shall choose resolution was passed that all the previous allot
one of their number to be chairman of such meeting .
101. The directors shall have full power to delegate ments should be confirmed .
all or any of their powers to a committee of one or more Lord Inchiquin on the same day signed a
of their number. similar memorandum , and this was sent to the
104 A. All acts done by any meeting of the directors,
or of a committee of directors, or by any person acting secretary of the company on the 27th Oct.
as chairman , or as a director, shall, notwithstanding On the 2nd April 1889 Mr. Steele moved before
that it be afterwards discoveredsuch
defect in the appointment
thatdirec
there wasperso
some North , J ., on notice , under sect. 35 of the Com
tor or n panies Act 1862 , for rectification of the register
acting as aforesaid , or that they or any of them were of members of the company by removing his
disqualified , be as valid as if such person had been duly nameas the holder of 100 shares, on the ground
appoin an ., and was qualified to be a director or
chairmted that no formal and binding allotment of shares
106. A resolution in writing signed by all the directors had been made to him .
shall be as valid and effectual as if it had been passed North , J . held that, as the two directors could
atstituted
a meeting
.
of the directors duly called and con not appoint themselves a quorum , the allotment
to Steele
On the 22nd Oct. 1888 a meeting of all the seven after was invalid
withdrawal of his, and could .not be ratified
application
subscribers to the memorandum of association Hishad
Lordship held,byhowever,
was held , at which a resolution was unanimously ment been made all the that
four ifdirectors,
the allotit
passed : would not have been invalid on the ground that
That the following gentlemen be appointed directors they had not_ previously qualified by taking
of the company : Lord Inchiquin , Captain Skewis, shares : (60 L . T. Rep. N . S . 857.)
Matthew Loam , Richard Wood , and J. H . Hoyle. The The company appealed .
latter gentleman will take his seat after allotment.
On the 24th Oct. 1888 the first meeting of Rigby, Q.C ., Buckley, Q.C., and W . Baker for
directors was held at which only Mr. Wood and the appellants. - Notice having been given to all,
Captain Skewis were present. Captain Skewis ing themajority of those attending could pass bind
had in his possession a letter from Mr. Loam , resolutions :
authorising Captain Skewis to act on behalf of Attorney-General v. Davey, 2 Atk . 212.
and in the name of Mr. Loam in matters requir Under art. 96 the directors could hold meetings
ing his signature. as they thought fit, and as Lord Inchiquin had
The two directors who were present (Mr. Wood intimated that he could not come, the others
acting as chairman) passed a resolution that two were competent to act :
directors should be a quorum . They then York Tramways Company v. Willows, 46 L . T. Rep.
appointed Lord Inchiquin chairman of the com N . S. 496 ; 8 Q . B . Div . 685.
pany, proceeded to allotment, and allotted a con It was unnecessary, after Lord Inchiquin 's state
siderable number of shares, including 100 shares ment, to give him formal notice. He had waived
to W . J. Steele , and adjourned the meeting till his right to receive notice. Even if Loam 's
the following day . assent wasnecessary, its being subseqnently given
Lord Inchiquin did not receive any formal was sufficient,as the ratification related back :
notice of themeeting of the 24th Oct., but there Bolton Partners v. Lambert, 60 L . T. Rep. N . S.
was some evidence that shortly before the meet 687; 41 Ch. Div. 295.
ing he was told that it was intended to hold it, | They also cited
and that he said he was going to Ireland and
could not attend any meetings in the week i RexHardwicke, v. Corporation of Shrewsbury, Cas. temp.
p . 147.
90 - Vol. LXII., N. S.] THE LAW TIMES. (March 15 , 1890.
CT. OP App.] LISTER v. LISTER. [Cr. OF APP.
Napier Higgins, Q .C . and Farwell, for Steele, Nov. 7 and 19, 1889.
were not called upon . (Before Cotton and Fry, L .JJ.)
Lord ESHER , M .R . - I will assume— but with LISTER v. LISTER.(a )
out deciding that every point taken by Mr. APPEAL FROM THE PROBATE, DIVORCE, AND
Rigby and Mr. Buckley ought to be decided in ADMIRALTY DIVISION (DIVORCE).
their favour except one. That one is this, that | Permanent maintenance - Registrar's report -
according to their own argument it is necessary
that all the directors should have had notice of Amount recommended to be secured to wife " for
the meeting of the 24th Oct. If they had not, I her life, or until shemarry again " - Order " for
then thatmeeting was not a valid meeting, and, her life," omitting limitation — Divorce Act 1857,
being an invalid meeting, could not adjourn 8. 32.
itself to the 26th ; so that the meeting of the A wife, who had obtained a decree absolute for the
26th falls if the meeting of the 24th was not valid , dissolution of her marriage, on the ground of
and the only ground on which it can be contended her husband's cruelty and adultery, and who had
to be valid is, that all the then qualified directors afterwards married again , moved before Butt, J.
had notice of it. Now , what happened with to confirm that part of the registrar's report chich
regard to Lord Inchiquin ? In the first place, recommended that the respondent be ordered to
there is no legal evidence of his having said or secure to the petitioner 1951. a year,by way of
done anything about themeeting. What is sug permanentmaintenance for her life, but to vary
gested as having been said by him is mere hear. the report by omitting the further words, “ until
say . But suppose there had been evidence that she marry again .” The marriage which was
Lord Inchiquin had been told that the directors dissolved had taken place in 1876 , the wife at
were going to hold a meeting or meetings during that time being about seventeen years of age. On
the next week , and had then said , “ I cannot be behalf of the respondent it was urged that, if the
there." It is said that he did so, and that is now court should order the omission of the sourds of
relied on as a waiver of the right to notice. In limitation , the amount ought to be reduced in the
my opinion , he could not waive his right to event of the petitioner's re-marriage. Butt, J.
notice, as he was within reach ; and it was per doubted the power of the court to make an order
fectly possible to give him notice, and it was the giving her two sums, one now , and another if she
duty of the directors to give him notice of the married again ; but held that the matter as to
meeting. The circunstances existing at the the words of limitation was in the discretion of
time when he used the words relied on as a the judge ; that the exercise of that discretion
waiver might bave been wholly altered , as he must in each case depend upon the particular
might have taken a different view if he had had facts ; and that in this case the amount would be
notice of the time and object of the meeting . ordered to be secured by the respondent for the
That notice ought to have been given to him , and maintenance of the petiticner during her life.
there was no such notice. The meeting of the Held, on appeal, (1) that, under the particular cir
24th Oct. was therefore invalid , and I think that cumstancesofthe case, thediscretion of Butt,J.had
is sufficient to determine this case without not been improperly exercised ; (2 ) that in such
deciding any of the other points. cases, notwithstanding the discretion , an appeal
COTTON, L .J. - I am of the same opinion . Lord lay from the decision of the court below ; (3) that
Inchiquin only went to Ireland, and there is a the court ought not to lay down any general rule
post daily to Ireland, so there was no want of that the allowance should be secured for thewife's
means of communication . There is no evidence life absolutely, or that it should be secured only
whatever that any notice was sent to him of the during the joint lives and the period while she
meeting to be held on the 24th Oct., which was remained chaste and unmarried .
the origin , as it is said , of the meeting of the The petitioner , Rosa Caroline Fredericka Lister,
26th , and in my opinion, assuming that notice to was married to the respondent, George Leopold
all would have made the meeting held on the Greville Lister, in Dec. 1876 . At that time the
24th a good meeting, yet, if in point of fact notice petitioner was only seventeen years of age. There
was not given or sent to all the directors when it was no issue of the marriage.
could have been given to all or sent to all, the On the 3rd Aug. 1888 the petitioner obtained a
meeting was a bad one, and the whole foundation decree nisi for dissolution on the grounds of the
of the argument breaks down. The appeal, there adultery and cruelty of the respondent, and on
fore, fails. the 12th Feb . 1889 that decree was made
FRY, L .J. - The proposition which has been absolute .
very clearly argued before us by Mr. Buckley is On the 1st March 1889 the wife filed a petition
this, that when a select body of persons are for permanentmaintenance.
appointed to do an act, half of them may do the The registrar reported that the petitioner was
act if the other half have notice of the meeting. without
I say nothing about the validity or invalidity of sessed ofmeans ; that the respondent was pos
securities from which he derived an
that proposition in point of law , except that I am incomeamounting to 5671. 108. per annum , after
not satisfied of its accuracy . It is not necessary deducting income tax. The registrar recom
to decide it, for the facts do not raise the ques mended that the respondent be ordered to secure,
tion , because there is nothing to show that notice upon the securities named in the report, for the
of the meeting of the 24th Oct. was given to Lord permanent maintenance of the petitioner, the
Inchiquin , who was one of the appointed persons. sum of 1951. per annum “ for her life, or until she
Appeal dismissed . marry again ."
Solicitors: for the appellants, Stretton, Hilliard , On the 23rd July 1889 a motion, on behalf of
Dale, and Newman ; for the respondents, Burn (a) Reported by H . DURLEY-GRAZEBROOK and FRANK EVANS,
and Berridge. Esqrs., Barristers-at-Law .
March 15, 1890.] THE LAW TIMES. (Vol. LXII., N . 8. - 91
CT. OP APP.] LISTER v. LISTER . [CT. OP APP.
the petitioner, was made to Butt, J. to vary the lady got, as a third ofthe jointincomes, say 20001.
report by omitting the limitation " until she a year, that would be an element in the case
marry again ." which I might be disposed to take into considera
Inderwick , Q .C . and Searle in support of the tion , and if, under those circumstances, she wished
motion . — The amount appears to be about one the dum sola clause to be eliminated, I should have
third of the admitted income. The limitation is to consider whether the amount ought or ought
& matter purely and entirely within the discre not to be rednced in the event of her re-marriage.
tion of the court. The Act of Parliament which It is not my wish to lay down any hard -and - fast
confers upon the court power to make the order rule upon this point. I confirm the registrar's
gives no limit to the term of the allowance. report as to the amount to be paid by the respon
(BUTT, J. - It says “ not exceeding the term of dent to the petitioner by way of permanent main
her natural life.” ] These people were married tenance, but I order that the words of limitation,
very young, and the wife was obliged , shortly " until she marry again ," be struck out.
after her marriage and when still a mere girl, to The husband appealed , and the appeal was
leave her husband on account of his ill-treat argued on the 7th Nov . 1889.
ment.
C . A . Middleton for the respondent. — Unless
Finlay, Q .C. and H . Stokes for the appellant. -
The order of Butt, J. is contrary to the well
there is some special reason for the contrary , it established practice of the court. In 1861, where
has not been the practice to give a substantial the wife had obtained a decree of dissolution on
allowance to the wife out of the husband's income the ground of her husband 's adultery and cruelty ,
without the limitation “ until she marry again ," the Court ordered permanent maintenance to be
The matter has been discussed in a former case secured only so long as she remained chaste and
in the Court of Appeal, but it was not decided , unmarried :
as the appeal was out of time. It is unreason Fisher v. Fisher, 5 L . T.Rep . N . S. 364 ; 2 Sw . & Tr.
able if the petitioner should find another husband, 410 .
whose business it would be to maintain her, that Sir Cresswell Cresswell there said : “ If hereafter
her former husband should still be called upon to thepetitioner should become guilty of immorality ,
make her an allowance. [BUTT, J. - Each case it would be unreasonable to call upon the former
must depend upon its own particular facts. If husband to maintain her . Again , if she avails
å man marries a young wife and commits adul. | herself of the freedom conferred by the decree of
tery, and treats his wife with abominable this court, and marries again , it would be
cruelty, and drives her from his home, and she | unreasonable to compel the former husband to
obtains a divorce and marries again , I think it | maintain her.” [FRY, L .J. - The question seems
only fair and right that some penalty should be to be whether the statute 20 & 21 Vict. c. 85 ,
inflicted on the first husband, and some compen s. 32, does not give the court a discretion as to
sation be made to the wife.] If the court is of the period during which the allowance shall con
opinion that the words of limitation should not tinue.] The uniform practice has been in accord
be inserted in the order for permanent mainte- ance with Sir Cresswell Cresswell's decision. In
Dance in this case, it is submitted that theamount Chetwynd v. Chetwynd (13 L . T . Rep. N . S . 474 ;
ought, at any rate, to be reduced in the event of L . Rep. 1 P . & M . 39) Lord Penzance, after a
the petitioner's re-marriage. Nothing can be decree on the ground of a husband's cruelty and
said against the petitioner, and therefore no adultery , ordered a sum to be paid to the
dum costa clause has been recommended for petitioner annually during the respondent's life,
insertion in the order. [BUTT, J. - I have set my and added : “ This sum will be payable as usual,
face against the dum casta clause.] But that dum casta et sola vixerit.” In a third case of a
stands upon quite a different footing from the | husband's adultery and cruelty, the same form of
dum sola clause. The practice is only to secure order was adopted, and the Judge Ordinary evi.
the allowance to the wife so long as she remains dently assumed such a form of order to be in
single . [Butt, J. - I am told that the practice is accordance with the practice :
not invariable, but that the dum sola clause is
Sidney v . Sidney , 12 L . T . Rep . N . S . 827 ; 4 Sw .
more often inserted than not.] & Tr. 178.
Inderrick , Q . C. in reply . In 1876 Sir James Hannen pointed out that very
BUTT, J. - I doubt whether I have the power to different considerations applied to a case where a
make an order giving the wife two sums, one husband was ordered to make the allowance out
now and the other if she marry again . The case, of his own private means and the case (then
therefore, resolves itself into the question whether before the court) where he was only deprived of
the words " until she marry again " ought to be his interest in his wife's property ; and he says :
included or omitted . I think the judge who has “ I think it is perfectly reasonable in those cases
to decide such a matter ought to have absolute where the husband is called upon to sacrifice a
discretion ; otherwise, why leave it to the judge | portion of his own means that the conditions
at all ? If I am to exercise my discretion, I must dum sola et casta vixerit should be imposed " :
do so upon the facts. In this case of a mere girl Gladstone v, Gladstone, 35 L . T. Rep . N . S. 380 ;
marrying, and the husband possessing himself of 1 P. Div. 442, 446.
this young wife and then behaving in such a way In a case before the Court of Appeal in 1882 these
that he forces her to leave his home, I do not conditions were treated as usual and proper , the
think that the amount ought to be limited to her only question being whether the words should be
remaining single. Therefore I shall strike out inserted in the order or in the deed :
the words of limitation . Subject to that altera Medley v.Medley,47 L . T. Rep. N . S. 556 ; 7 P. Dir.
tion,the report must be confirmed . The amount, 122 .
in my opinion , must be the same, whether the Sect. 32 of 20 & 21 Vict. c. 85 , only gives the
words are included or omitted. Supposing the court a discretion as to the amount of the allow .
92— Vol. LXII., N . 8.) THE LAW TIMES. (March 15, 1890 .
CT. OP APP.) LISTER v. LISTER. [CT. OF APP.
ance. In the present case thewife married again Butt, J., had laid down a general rule that the
shortly after the decree was made absolute , and clause " so long as she remain unmarried " shonld
her new husband ought to maintain her . be left out of orders for permanent maintenance,
Inderwick, Q .C . and Searle for the petitioners. and that the allowance should be made to the
- Prior to the passing of the Divorce Act the wife for her life absolutely . If he had laid down
House of Lords invariably required a provision l any such general rule fixing the practice of the
to be made for the wife. Sect. 32 of 20 & 21 Vict. court, I think I should have desired to have had
c. 85 , gives the court an absolute discretion , both the case re-argued before the full Court of Appeal.
as to the amount of the allowance and the period But it appears from his judgment that Butt, J.,
during which it is ordered to be secured . In the did not lay down any such general rule , but
earlier cases judges leaned to the practice of under the particular circumstances of the case
inserting the clause dum sola et casta vixerit, but considered that he had an absolute discretion to
of late years the practice has been to omit it. It | make the order now appealed from . I think he
has been held that a dum casta clause does not had such a discretion under the Act of Parlia
come within the term “ usual covenants " in a ment. Sect. 32 of 20 & 21 Vict. c. 85, provides
separation deed : that “ the court may, if it shall think fit, on any
Hart v. Hart, 45 L . T. Rep. N . S. 13 ; 18 Ch. such decree, order that the husband shall to the
Div . 670 . satisfaction of the court secure to the wife such
Butt, J., in a recent suit for divorce on the ground gross sum of money, or such annual sum of
of a husband's cruelty and adultery, said that he money, for any term not exceeding her own life,
gathered from the cases cited that it was not as, having regard to her fortune (if any), to the
usual for the court to insert in the order for ability of the husband, and to the conduct of the
permanent maintenance any direction as to the parties, it shall deem reasonable." In myopinion,
dum sola et casta clause : the section leaves thematter entirely within the
Harrison v. Harrison , 57 L. T. Rep. N . S. 119; discretion of the judge, though I do not say that
12 P . Div. 130. it is a discretion the exercise of which is not
They also cited subject to an appeal. I think an appeal does lie
Curbett_ v. Corbett, 60 L . T. Rep. N . S. 74 ; in such a case. But I see no reason in the present
14 P . Div . 7 ; case for differing from the learned judge as to
Gladstone v.Gladstone (ubisup.). how his discretion should be exercised . Hemust
Stokes in reply. -- The conduct of the parties have knownmore about the facts of the case and
ought only to be taken into account in assessing the circumstances of the parties than we can
the amount of maintenance. The practice has possibly do. In my opinion , it would be wrong
been to insert the clause, and there is no excep to interfere with his discretion , and the appeal
tionalmisconduct in the present case justifying must therefore be dismissed.
a departure from the general rule. The order is FRY, L .J. - The discretion to be exercised by
not made for the punishment of the husband,but the judge in allowing permanent alimony is a
for the benefit of the wife. It is reasonable that, discretion given by the section of the statute
as his conduct has driven her to apply to the referred to by Cotton , L .J. By that section the
court for dissolution , he should maintain her, but court may order the husband to secure to the
when she marries again the duty of maintaining wife either such gross sum of money or such sum
her falls on her new husband. The cases cited ofmoney as, having regard to the circumstances
by the petitioner's counsel do not support their of the case and the conduct of the parties, it shall
contention . Hart v . Hart was a suit for specific deem reasonable . It was said that Butt, J. had
performance of an agreement to execute a separa laid down the general rule that permanent main .
tion deed with the “ usual covenants," and of tenance ought to be secured during the life of the
course a dum casta clause is not strictly a cove wife obtaining the divorce ; but a reference to
nant at all. That case turned simply on the con his judgment shows that he laid down no such
struction of a particular agreement. In Harrison rule. It was also said that the rule ought to be
V . Harrison the only question was whether a to give the wife the annual sum allowed as
direction as to the clause should be inserted in the alimony only until her second marriage. In my
order, not whether it should be inserted in the opinion , that proposition is equally untenable.
deed . In Corbett v. Corbett the point was not The Act empowers the judge to give the wife an
argued or decided in the Court of Appeal. In annual sum for any period not exceeding her life,
Gladstone v. Gladstone the clause was omitted or, in the alternative, to give her a gross sum of
because the allowance was made out of morey money , and it could not be said that the enjoy .
settled by the wife. Such an order as Butt, J., ment of the latter could be taken from her on her
has made is contrary to public policy. second marriage. Therefore it must be inferred
that the Legislature was clearly not unfavourable
Cur. adv.vult. to the grant of the alimony being for the whole
Nov. 19. - COTTON, L .J. - This is an appeal by a life of an innocent wife. It appears to me that
husband from an order of Butt, J., directing the the effect of the section is to leave an unfettered
appellant to secure payment to his wife of an discretion in the judge in each case, and it would
annual sum as permanent alimony. The wife had be wrong to lay down any primâ facie rule
obtained against her husband a decree for dissolu . whether the annualsum should be payable during
tion of the marriage on the ground of his cruelty the wife's whole life or until her second mar
and adultery, and the appeal was brought on the riage. It is the duty ofthe judge to exercise his
ground that the learned judge had excluded from discretion according to the particular circum
the order the clause which was for a long time stances of each case, and the only question there
usually introduced into such orders , limiting the fore in the present case is whether the learned
allowance to the period during which the wife judge has exercised his discretion in a proper
should remain unmarried . It was said that I manner. The facts of the case are these : l'he
CT. OF APP.] Re French ; Eæ parte FRENCH . [CT. OP APP.
wife was married at the age of seventeen . She l of an appeal which he considered to have no
had no property of her own, but the husband had chance of success.
property producing an income of about 5601. a By the Bankruptcy Act 1883, s. 7, sub-sect. 4 :
year. The appellant has been a cruel husband When the act of bankruptcy relied on is non-com
and an unfaithful husband, and he has made the
life of his wife unbearable. His conduct has compoundwithfor aa bankruptcy
pliance notice
judgment debt, pay , may,
thetocourt secure,if orit
driven her from his home and compelled her to thinks fit, stay or dismiss the petition on the ground
seek the aid of the Divorce Court. That is as that an appeal is pending from the judgment.
great a wrong as it is possible for a man to inflict Sect. 95 provides :
on his wife. She is now about thirty -two or (1) If the debtor against or by whom a bankruptcy
thirty -three years of age, and under these cir petition is presented has resided or carried on business
cumstances the judge has allowed her an annuity within the London bankruptcy district, as defined by
of 1951.- about a third of her husband's income this Act, for the greater part of the six months im
-out of his property for life. Can it be said that mediately preceding the presentation of the petition, or
this is an unreasonable compensation to be paid for a longer
district period
of any during those six months than in the
County Court, or is not resident in Eng
by a man who has violated his maritalduties in land, or if the petitioning creditor is unable to ascertain
this manner ? I think the amount of the allow the residence of the debtor, the petition shall be pre
ance is not excessive , and that the term for which sented to the High Court. (2) In any other case the
it is given is not unreasonable, and I agree that petition inshall
district be presented
which the debtorto has
the County
resided Court for the
or carried on
the appeal must be dismissed. business for the longest period during the six months
Appeal dismissed with costs. immediately preceding the presentation of the petition.
Solicitors for the appellant , Smith , Fawdon , by Nothingof its
(3) reason beingsection
in this taken shall invalidate
in a wrong a proceeding
court.
and Low , for Wright, Williams, and Wright,
Leicester. By sect. 97 :
Solicitors for the petitioner , Roche and Son . (1) Subject to the provisions of this Act, every court
having original jurisdiction in bankruptcy shall have
jurisdiction throughout England. (2) Any proceedings
in bankruptcy may at any time, and at any stage thereof,
and eitherwith or without application from any of the
Friday, Oct. 25, 1889. transferred any prescribed autho
parties thereto , be by
rity , and in the prescribed manner, from one court to
(Before Lord ESHER, M .R ., LINDLEY and LOPES, another court, or may by the like authority be retained
L .JJ.) court which
in the proceedings were commenced
in the ,
Re FRENCH ; Ex parte FRENCH . (a) although it may not be the court in which the proceed
ings ought to have been commenced.
APPEAL IN BANKRUPTCY .
Bankruptcy - Jurisdiction — Petition presented in By rule 25 ofthe Bankruptcy Rules 1886 :
wrong court - Receiving order - Appeal pending When any bankruptcy proceeding has been com
from judgment on which petition founded menced in court which
menced , thea judgeinof that itcourt,
should ornotthehave been ofcom
judge the
Bankruptcy Act 1883 (46 8. 47 Vict. c. 52), 88. 7, High Court, may order that the proceeding shall be
sub-sect. 4 ; 95, 97. transferred to the court in which the same shall have
According to the true construction of sects. 95 and been commenced , or that it be continued in the court in
97 of the Bankruptcy Act 1883, where bank - | which it was commenced ; but unless and until a transfer
is made under these rules, the proceeding shall contin
ruptcy proceedings have been inadvertently com in the court in which it was commenced .
menced in the court of a district other than that Morton Daniel for the appellant.
in which the debtor has been residing , a receiving Bartley Denniss, for the petitioning creditor ,
order may bemade by that court. not called upon.
Ex N parte (51 L. T. Rep. wasLord
May ; Re Brightmorefollowed. ESHER, M .R . - It is first said that the
. S. 710 , 14 Q . B. Div. 37), registrar had no jurisdiction to make this order ,
When a bankruptcy petition is presented founded because the debtor had not resided for the greater
-upon a judgment as to which notice of appeal
has been given by the debtor, the probability or part of the six months preceding the presenta
improbability of the appeal being successful is to tion of the bankruptcy petition within the London
betaken into consideration in deciding whether bankruptcy district. That depends on the true
the bankruptcy proceedings shall be postponed construction of sects. 95 and 97 of the Bankruptcy
pending the appeal. Act 1883. Those sections were considered in
This was an appeal against an order of Mr. | Ex parte May ; Re Brightmore (ubi sup.), and the
Divisional Court in Bankruptcy said that, read
Registrar Linklater appointing a receiver. those two sections together, the fact that the
One of the grounds of the appeal was, that the ing receiving order had been made inadvertently in
High Court had no jurisdiction to make the the court was not sufficient to establish
order because the debtor had not for the greater thatwrong court had no jurisdiction to make the
part of six months before the presentation of order,that but that, on the contrary, it was a neces
the petition , resided or carried on business within inference from sect. 97 (by which proceed
the London bankruptcy district, and had , to the sary ings in bankruptcy may be transferred at any
knowledge of the petitioning creditor, during stage
that period resided at Southsea , in Hampshire. tained from onecourt
in the courtin to another,
which or may
they have beenbecom
re
A second ground of appeal was, that the order menced , although it is not the right court), that
ought not to have been made because an appeal the jurisdiction to make a receiving order is not
was pending from the judgment upon which the ousted because the proceedings have been com
petition was founded . in the wrong court. I think that that
The registrar held that he had jurisdiction ,and menced was rightly decided , and we agree with it.
that he ought not to stay proceedings on account case Then it is said, in the second place, that this re
(4)Reported by ADAM II. BITTLESTON , Esq., Barrister-at-Law . i ceiying order could not be made because an
Vol. LXII., N . S., 1583*.
94 - Vol. LXII., N . S.] THE LAW TIMES. (March 15 , 1890.
CT. OF APP.] THE DUKE OF BUCCLEUCH . [CT. OF APP.
appeal had been entered against the judgment lights, the court was bound to consider the evi
upon which the bankruptcy pitition was founded . dence as to whether such infringement could in
The question is, whether the mere pending of an fact have contributed to the collision , and that,
appeal prevents, as a matter of right, the re as in the circumstances the infringement could *****
ceiving order being made. The cases seem to not possibly have contributed to the collision , the
show that it is a matter of discretion only. An owners of the sailing ship were not to blame.
expression used by Baggallay, L .J., in the case of This was an appeal by the plaintiffs in a collision
Eæ parte Keyworth (52 L. T. Rep.N . S.201; 14 Q . B.
Div. 49), was said to show that a receiving order action from a decision of Butt, J . holding both
ships to blame.
should not bemadeonajudgment debtwhen a bona The collision occurred in the English Channel
fide appeal from the judgment is pending, what on the 7th March 1889 between the plaintiffs'
ever the probable result of the appeal may be.
I think that he must havemeant that the ques. full-rigged sailing ship the Vandalia and the
tion would depend upon the circumstances of defendants' steamship the Duke of Buccleuch ,
each case. One circumstance is, whether the whends. the Duke of Buccleuch was lost with all
appeal is a hopeful one or not. The case of Ex hanThe
parte Keyworth seems to decide that, where the follows:facts alleged by the plaintiffs were as
At about 10.45 a.m . on the 7th March
registrar has exercised his discretion in holding 1889 the Vandalia
an appeal not to be frivolous, and the court are 1422 tons register,, a was full-rigged sailing ship of
on a voyage from New
of opinion that it is not frivolous, the court will
affirm the registrar's order adjourning the York to London , laden with a cargo of petroleum .
She was in the English Channel, the Owers light
further hearing of the petition ; but that they ship bearing about N . by W ., distant thirteen
will only do so where they are clear that it is not miles, sailing close-hauled on the starboard tack ,
frivolous. In the present case the registrar heading about E . I S. magnetic, under three
refused to postpone the bankruptcy proceedings,
thinking that the appeal was frivolous. I think whole
two
topsails, courses, foretopmast staysail , and
jibs.
so too . The discretion ofthe registrar was there hibited andHer regulation lights were duly ex .
Hil
fore rightly exercised. burning brightly, and a good look-out
was being kept on board of her. In these circum
LINDLEY, L . J. - I am of the same opinion . The stances those on board saw a bright light, which
point as to jurisdiction is really decided by sects. proved to be the masthead light of the Duke of
95 and 97 of the Act. As to the second point, Buccleuch, about one and a half points on the
MilliIl
the registrar thought that the appeal looked port bow , and distant about four or five miles.
hopeless, and I think so too. Soon afterwards the green light of the Duke of
Lopes, L .J. - I agree . Buccleuch came into view on about the same
Appeal dismissed . bearing. The Vandalia was kept on her ccurse
Solicitor for the appellant, T. S. Ashwin . close by the wind. The Duke of Buccleuch
rapidly approached , still on the same bearing,
Solicitors for the respondent, Newman, Hays, and,
and Co. although loudly hailed , she came on appa
rently under a starboard helm ,and with her stein
struck the port bow of the Vandalia .
Saturday, Dec.7, 1889. In consequence of the Duke of Buccleuch
(Before Lord Esher, M .R ., LINDLEY and LOPES, having been lost with all hands, the defendants
gave no evidence as to the circumstances of the
L .JJ., assisted by NAUTICAL ASSESSORS.) collision . They proved that the Duke of Buccleuch
THE DUKE OF BUCCLEUCH. (a ) was a screw steamship of 2023 tons net register ,
Collision - Lights — Obscuration — Regulations for and that at the time of the collision she was on a
Preventing Collisions at Sea , art. 6 - Merchant voyage from Antwerp to India , laden with a
Shipping Act 1873 (36 & 37 Vict. c. 85),s. 17. general cargo. They also gave evidence, from
In a collision action where either party has in measurements taken subsequently to the collision ,
fringed the Regulations for Preventing Collisions to show that the port side light of the Van
at Sea, he is deemed to be in fault unless he can dalia was obscured by the foresail, and con
establish that the infringement could notpossibly tended that therefore the Vandalia was to blame
have caused or contributed to the collision ; and for a breach of the Regulations for Preventing
it is the duty of the judge to determine upon the Collisions at Sea .
evidence whether or not the party committing the At the close of the case Butt, J. stated that he
breach has satisfied the burden of proof that the had determined to send his assessors to inspect
breach could not possibly have occasioned or con the Vandalia, giving liberty to the parties to be
tributed to the collision . represented at such inspection by one surveyor
The steamship A . collided with the sailing ship each . This was accordingly done, and the effect
B ., striking her on the portbow . The red light of the inspection appears in the judgment.
of the sailing ship was obscured by the foresail to The judgment of Butt, J., so far as is material,
a vessel substantially right ahead . The steam - was as follows : - Coming now to this case, I have
ship approached the sailing ship on a bearing had the advantage of a consultation with the
never less than one point to two and a half points Elder Brethren , who have been down and in
on the port bow , and the red light of the sailing spected this ship , and I will state the result of
ship was in fact always open to the steamship . their observations. They tell me that these
Held , that, on the proper construction of sect. 17 of observations have convinced them of this : that
the Merchant Shipping Act 1873, although the | with the yardsabsolutely sharp -braced ,and with
sailing ship had infringed the regulations as 10 out allowing for any bellying of the sails, the line
(a)Reporte l hy J. P. ASPINALI. of light shows outside the foresail, but that the
and BUTLER AEPINALL, Esqrt., line
Barristers -at-Lar. of light is abore the bottom of the foresail ;
March 15, 1890 .) THE LAW TIMES. [Vol. LXII., N . S.- 95
CT. OF APP.] THE DUKE OF BUCCLEUCH. [CT. OF APP.
that is, the horizontal line of light. They also | right ahead, in the existing state of the weather,
tell methis : that if the yards, instead of being the lights of the Vandalia must certainly have
sharp-braced, were checked , or, stillmore, if they been visible as she rose and fell in the seaway.
were square,the line of light parallel with the Therefore a vigilant look -out on the Duke of
keel of the vessel would be considerably inside Buccleuch would have informed her, long before
the outer edge of the sail,and would also be above she came into close proximity , of the approach of
the bottom of the sail. In other words, it would the Vandalia . I therefore hold that there was
be seriously obscured from forward . I have now an infringement of art. 6 of the Regulations for
to consider what the result of that information Preventing Collisions at Sea, for which I must
must be. Now , assuming that the yards were under sect. 17 of the Merchant Shipping Act
absolutely sharp -braced , I am advised that, apart | 1873, hold the Vandalia to blame. On the other
from the bellying of the sail, there would be no hand, I think it impossible to acquit the Duke of
obscuration of the lights even right ahead ; but | Buccleuch from blame, inasmuch as, upon any
that it is impossible to say with a little bellying view , we think they ought - at intervals, at all
the obscuration might not happen . Are the events — to have seen theside lightof the Vandalia .
owners of the Vandalia to be held to blameby In the result, I pronounce both vessels to blame.
virtue of the 17th section of the Merchant Ship From this decision the plaintiffs now appealed .
inping
anyActcase1873
of ?collision
That section is as follows: “ If
it is proved to the court
The Merchant Shipping Act 1873 (35 & 36
before which the case is tried that any of the | Vitc. c. 85), s. 17 :
regulations for preventing collisions contained in If in any case of collision it is proved to the court
before which the case is tried that any of the regula
or made under the Merchant Shipping Acts 1854 tions for preventing collisions contained in or made
to 1873 has been infringed , the ship by which under the Merchant Shipping Acts 1854 to 1873, have
such regulation has been infringed shall be | been infringed , the ship by which such regulation has
deemed to be in fault, unless it is shown to the been infringed shall be deemed to be in fault, unless it
satisfaction of the court that the circumstances is shown to the satisfaction of the court that the
of the case made departure from the regulations circumstances of the case made a departure from the
regulations necessary.
necessary ." Now , it follows from what I have Cohen , Q .C . and Myburgh, Q .C . (with them
stated that, in consequence of this ship 's lights Dr. Raikes) for the appellants. — The breach
being placed where they were, she was guilty of of the regulations did not in fact contribute
a breach of the regulations. Whether the in to the collision . It is also submitted that it
fringement of the regulation operated at the time
| could not possibly have done so. The obscu .
in question is another matter ; but I cannot hesi. ration of the light was only to a vessel right
tate to say , upon the advice I have received , ahead, whereas the Duke of Buccleuch was
and the evidence, that these side lights were im always one or two points on the bow of the Van
properly placed . How am I to apply the Act of
Parliament ? It may be that, if the yards were dalia. The learned judge was wrong in refusing
braced absolutely sharp up at the time, the lights tofined
inquire into those facts. His finding is con
to the fact that the obscuration of the light
would not have been obscured by the sail from was only to a vessel right ahead . The evidence
ahead. Here let me state what I had forgotten showed that the Duke of Buccleuch was always
to do before that the Elder Bretbren satisfied from one to two points on the bow of the Van
themselves that with the foresail carried as a dalia . It is submitted that the learned judge
mainsail, that sail on the mainyard would cause ought to have inquired into the truth of this
no obscuration . It is the foresail proper of which alleged fact, and also whether the light would be
I have been speaking , and with which I have been obscured to a vessel approaching on such a
dealing. Am I to take it that this vessel had her bearing. If it would not in fact have been
yards absolutely sharp -braced ? I do not think | obscured to the Duke of Buccleuch, then the in
I can . I think the Act of Parliament was passed to fringement could not possibly bave contributed
prevent me going into those nice questions of fact, to the collision , and therefore sect. 17 of the
and I think that the decisions upon this section Merchant Shipping Act 1873 is not applicable to
have gone upon that view . That being so, I must
hold that there was an infringement of art. 6 of this The case :
Fanny M . Carvill, 32 L . T. Rep. N . S. 646 ; 2
the Regulations for Preventing Collisions at Sea, Asp . Mar. Law Cas, 565 ; 13 App . Cas. 455 , n .
which " might possibly ” - I am using the words Sir Walter Phillimore, Barnes, Q .C ., and F .
which I think were used in the Privy Council Laing,
and also in the Court of Appeal " have con of Butt,forJ. the respondents, contra . — The decision
is right. The Act of Parliament was
tributed to or caused this collision.” That being meant to cast liability upon parties infringing
so, I must hold the Vandalia to blame. The next the regulations unless
question I have to consider is totally different it is clear that the upon the undisputed facts
viz., whether the violation of the regulation did , possibly have caused orinfringement could not
contributed to the col.
as a matter of fact, cause the collision. I think lision . It was never intended
it clear that, if the evidence from the Vandalia is should inqnire into nice questions that of
the court
fact, about
to be accepted as accurate ,there would have been which it might come to an erroneous conclusion ,
no obscuration at all to the Duke of Buccleuch ap
proaching as she was, because the evidence is as to whether it was possible that the infringe
that the witnesses saw the Duke of Buccleuch at ment could have contributed to the collision :
The Fanny M . Carvill (ubi sup.);
a bearing which they describe as a point to a The Dunelm , 51 L . T. Rep . N . S. 214 ; 9 P . Div .
point and a half on their bow . At that breadth 164 ; 5 Asp . Mar. Law Cas, 304 ;
of bearing there would be no obscuration . I am The Arklow , 50 L . T. Rep. N . S. 305 ; 9 App. Cas.
not quite certain that I am safe in taking that 136 ; 5 Asp . Mar. Law Cas. 219.
bearing — I doubt whether I ought to take it ; but Lord ESHER , M .R . — The law applicable to
the Elder Brethren tellme this - that,even from ! this case is that which was laid down in The
96 - Vol. LXII., N . s.] THE LAW TIMES. (March 15, 1890.
CT. OF APP.? THE DUKE OF BUCCLEUCH. [CT.OF APP.
Fanny M . Carvill (ubisup.). It hasbeen suggested butnot to do so to a vessel approaching about
that the case has not, as to the point for which abeam . If that is proved, it is as clear as in the first
it has been used before us, been approved by the two cases that the defect in the light could not
House of Lords. I think it has been approved by any possibility affect a collision with a vessel
as to the very point by the House of Lords. I coming up on the beam . It may not be so easy to
think that tribunal has expressed approval of it prove, but that is immaterial. Assumethat state
as a whole ; but, whether that is so or not, I am of things to be alleged , what must the court do ?
of opinion that I should , even without the There may be a dispute of evidence as to the
authority of the House of Lords, adopt the judg. quarter from which the other ship approached ,
ment in The Fanny M . Carvill (ubi sup.). I think and if at the end of the case the evidence leaves
the decision was a right and wholesome one, and the court in doubt whether the other ship was
one to which the judgeswho decided the ca semust coming up on the beam or not, then the vessel
inevitably have come. They could not construe which has infringed the regulations has failed in
this stringent Act of Parliament literally, for, if | the burden of proof which the law casts upon her.
they did , it would lead to manifest absurdities. I She has not shown that the defect in her light
think their rule of construction was right. They could not by any possibility have affected the
in effect say : “ Wemust construe it literally as collision , because, if there is any doubt whether
nearly as possible ; wemust construe it as strictly the other vessel was coming towards her from
as is possible, but so as not to lead to the nearly ahead , there is still a doubt whether the
various absurdities which have in argument defective lightmay not haveaffected thecollision .
been pointed out to us ; short of that we must Therefore, if the evidence leaves in doubt the
construe it to its full extent." On referring to position of the ships, the burden of proof is not
the judgment, I find they say this : " Their Lord satisfied . But if, there being a conflict of evi.
ships are so far from dissenting from this finding, dence, the court in the result is of opinion that the
that they are prepared to go beyond what is approaching vessel was coming towards the other
directly expressed by it, and to hold on the evil on the beam , and that the light would only be
dence before them , and for the reasons next to obscured to a vessel approaching one or two
be stated , that, in the circumstances in which points on the bow , the burden of proof is satis
these vessels were placed , the green light of the fied , because the vessel on whom the burden lies
Peru could not by any possibility have been seen has proved beyond all reasonable doubt that the
by those on board the Fanny M . Carvill.” Later defective light could not have had any effect on
on they say : “ They conceive that the Legisla the collision. That is a broad case ; but the prin
ture intended at least to obviate the necessity for ciple is applicable to any other analogous case .
the determination of this question of fact- often If there is a dispute as to how a vessel is approach
a very nice one- upon conflicting evidence.” ing, the evidence on one side showing that the
They again say : " The presumption of culpability defect could not possibly have any effect on the
may bemet by proof that the infringement could collision, and the evidence on the other side show
not by any possibility have contributed to the ing that it might, then the court must try the
collision .” They then lay down the rule in these | question of fact of now the ship was approaching .
words : “ It gives effect to the statute by exclud If, as I said before, the court is left in any doubt
ing proof that an infringement which might have | at all, the ship which has infringed the regula
contributed to the collision did not in fact do so ; tion fails in the burden of proof. But, though
and by throwing on the party guilty of the in there is a conflict of evidence, if the court, after
fringement the burden of showing that it could | having heard it, comes to a clear conclusion that
not possibly have done so." I take it that that case the vesselswere so approaching one another that
decides this : that if it can be shown that a vessel the defect in the light could not possibly affect
- I will confine my remarks to lights - has not the collision , the court must say so, and the defect
complied with the regulations as to lights, she then becomes immaterial. Therefore I say that the
must be held to blame, unless she can prove that burden of proof lies on the ship whose lights are
the defect as to her light or lights could not by shown to be defective, and she must satisfy the
any possibility have contributed to the collision . court clearly of this, but if she leaves it in doubt
The whole burden of proof lies upon her ; but she has failed in the burden of proof. Let us
the courtmust try the question of fact, whether | see how that will apply to the present case. There
the defect could by any possibility have con - is a defect in the Vandalia 's light. If there had
tributed to the collision . That may sometimes been any doubt as to the extent of that defect,
be a very easy matter to decide. For instance, wemusthave taken the worst view of it as against
if an approaching vessel is always broad on the her. If it had been in doubtwhether the obscu
port side of a vessel which has a defect in her ration was point or 23 points, we must have
starboard light, it does not take a moment's con taken it as being 2 points. But in this case we
sideration to see that the defect in the green have had notmerely the evidence of witnesses,
light could not by any possibility have contri but also the result of an inspection of the vessel
buted to a collision with this vessel which ap- | by two Trinity Masters, who had an opportunity
proached on the port side. Another example of of judging exactly of the nature and extent of
the absurd consequences of construing the section the obscuration - what did they report to the
strictly would be this : Assume a ship which has a learned judge ? I have seen him personally , and
defective foghorn on board collides in clear | he has told me exactly what his assessors re
weather with another ship . Must the breach of ported to him . After the most careful examina
the regulation as to the foghorn force the court tion , they came to the conclusion that, if the sails
to hold her in fault ? Those are simple cases. Let of this vessel were braced absolutely sharp , there
us consider a less simple one. Assume a defect would beno obscuration of the lights,even to a ship
in a light the effect of which is to obscure it straight ahead ; but that if they were not braced
to another ship approaching end on , or nearly so , I absolutely sharp, there was - not a continuous
March 15, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. - 97
CT. OF APP.] THE DUKE OF BUCCLEUCH . [CT.OP APP.
obscuration - a casual and occasional obscuration collision . Where I venture to differ from Butt, J .
of lights to a ship coming end on , or nearly end is, that I think he narrowed the case too much
on , and this obscuration would only take place if from The Fanny M . Carvill (ubi sup.). He came
theship was pitching, and then only for a short
time. But a vessel approaching end on has a
to the conclusion that he ought not to inquire
into the position of the vessels. I think he was
right to have the full extent of the lights open to bound to inquire, and, had he done so, I think he
her continuously during the time she is called would have come to the same conclusion as we
upon to act. If, therefore, a vessel were approach have done. Therefore the point of law on which
ing her end on or nearly end on , the question I differ from him is this : He said he ought not
would not be whether the partial and momentary to inquire into the position of these two vessels.
obscuration of the light prevented her from see. I think he ought. I have endeavoured to show
ing the Vandalia . The question would be whether that the whole burden of proof rests on the
it might not prevent her seeing the Vandalia vessel whose lights were defective, and that she
during any part of the time during which she must show that that defect could not have any
might have to act, and so affect her conduct. If effect on the collision . I think the Vandalia has
that were so , the Vandalia would fail, because satisfied that burden , and that therefore she is
the court could not say that by no possibility not to blame. If the defect as to her light could
could the obscuration have any effect on the con not have obscured it from the steamer, nobody
duct of the other vessel. I may say that the can have any doubt but that the steamer was
gentlemen who assist us have made calculations solely to blame. The judgment of the Admiralty
from the measurements, and, from the drawing Court must be varied , and the finding must be
they have made, I at first thought that they were that the steamer was solely to blame.
going to tell us thatthis light was never obscured LINDLEY, L .J . — There are, as I understand,
at all. The obscuration is as fine as that. But, three questions in this case two of fact, and one
as a matter of fact, they agree with the report of of law . The first is, whether the rule relating to
the Trinity Masters, and give us the same advice the red light has been infringed. That depends
as was given to the learned judge. If that is so , upon the wording of the rule, and the evidence
the question is, are we satisfied that these vessels relating to the red light. Itmust be taken from
were approaching each other so that such an the report of the assessors in the court below
obscuration could not possibly have affected the that in certain circumstances the red light would
conductof the steamer in thethen existing circum be, or might be, obscured by the sails in the
stances ? That depends on how the steamer was ordinary course of navigation . If that is true,
approaching the Vandalia . We are satisfied then it appears to me to follow that the rule as
on the evidence that the Vandalia was kept close to the red light has been infringed . Unless the
hauled on the starboard tack , heading as nearly rule has been infringed, there is no ground for
as possible east by her compass. Now , how was applying sect. 17 of the Merchant Shipping Act
the steamer approaching her ? We know pretty 1873. But when you get it as a fact that the red
well where the Vandalia was with regard to the light was not what it ought to be - was not so con
Channel and the coast, and we know that the structed as to give the unbroken range of light
steamer was coming out from the lard towards required by the regulations-- then arises the ques
her, and showing the green light to her . It is tion , wbat must be the legal consequences of that
argued that those on the Vandalia might see the infringement? That question of law appears to me
steamer's green light nearly ahead at a distance to be satisfactorily and rationally settled in the
of two miles and yet come into collision with her. | case of The Fanny M . Carvill (ubi sup.). Weare
That I think impossible ; if that bearing and dis- | not to construe the Act of Parliament so as to
tance were true the steamer must have crossed . reduce it to absurdity. We are not to attribute
Therefore I do not think she was ahead of the to general language used by the Legislature a
Vandalia at a distance oftwomiles, or at any time. meaning that would not only not carry out its
On the whole, I have come to the conclusion that object, but produce consequences which to the
it is satisfactorily proved that the steamer never ordinary intelligence are absurd . Wemust give
was ahead of the Vandalia — when I say ahead, I it such a meaning as will carry out its object.
do not limit myself to a quarter or half a point. The construction put on this section by the
I say she never could have been within 12 points | Privy Council is, in my opinion , based on the
of being ahead of her. Now , the steamer was soundest principles. Wemust next consider the
approaching showing her green light, the bearing 1 question of fact. Could this departure from
ofwhich gradually diminished to 1) points. There the requisites of the rule as to lights have any
fore we have got these facts : The light is only effect in this case upon the collision ? It is for
obscured to a vessel approaching ahead or nearly the infringing ship to prove that it could not - a
ahead, and cannot have any effect on a vessel very difficultburden sometimes,and at other times
which is approaching on a bearing of 11 points, a very easy burden to discharge, as in the cases
and the steamer is never less than 17 points on put by the Master of theRolls. In some certain
the bow . What is the conclusion ? It is that the burden becomes impossible. In this case it
the obscuration of this light could not possibly is not impossible. To investigate the question of
have been apparent to this steamer, as she was fact, we must ascertain where the ships were,
in fact approaching her. If that is so , the decision what they were doing, and what'the surrounding
in The Fanny M . Qarvill (ubi sup.) applies. Those circumstances were. Now , having regard to the
on whom the burden of proof rested have made fact that all the evidence comes from one side, it
out all that they need establish . Therefore I think is necessary to be very cautious, and therefore
that the defect in this light ought not to have we must look at it with care. It appears to
the result of making me declare the Vandalia to me to be established that this steamer was at
be in fault, being perfectly convinced that in least a point or a point and a half on the port bow
point of truth it never had any effect on the l of the sailing vessel. I do not believe that she
98 – Vol. LXII., N . s.] THE LAW TIMES. [March 15, 1890.
Chan. Div.] MACKENZIE v. CHILDERS. [Chan . Div.
could have been less, for if she had I am satisfied with the several other purchasers and the vendors
that she would have crossed . The steamer was to build only one or two houses of a particular
never narrower on the sailing ship 's bow than I class on each plot. The deed contained no cove
have said . " It therefore follows that the obscura nantby the vendors. Sixty-six purchasersbetween
possibly have had any the years 1868 and 1889 executed the deed . On
tion of the light could not Under
effect on the collision . these circum the 4th Sept. 1889, the vendors, the trustees of the
stances it appears to me that the plaintiffs' appeal building estate, offered unsold land, part of the
is successful, and that the steamer is alone to building estate, for sale for the erection of con
blame. tinuous rows of artisans' cottages. The plain
LOPES, L .J. — The Merchant Shipping Act 1873 tiffs brought this action to restrain the trustees
(35 & 36 Vict. c. 85), s. 17, provides : “ If in any from selling any part of the land except upon the
case of collision it is proved to the court before terms of the deed .
which the case is tried that any of the regula Held , that the vendors were bound by the deed ;
tions for preventing collisions contained in or the intention of the vendors had been expressed
made under the Merchant Shipping Acts 1854 to in the deed in order to induce the purchasers to
1873 have been infringed , the ship by which such buy, and the vendors were not at liberty to alter
regulation has been infringed shall be deemed to that intention .
Held, that, if not bound by covenant, the vendors
be in fault unless it is shown to the satisfaction
of the court that the circumstances of the case were bound by implied contract.
made a departurefrom theregulations necessary." Injunction granted to restrain the defendants from
authorising any purchaser from them of land
The object of the statute is to enforce the obser included in the scheme to build on any plot more
vance of the regulations ; but if the infringe than one house or two semi-detached houses in
ment is one which has no possible connection
with the collision , and could not by any possi. accordance with the terms of the scheme,the defen
bility have contributed to it, then the section dants to pay the costs of the action .
does not apply . That, as I understand , ie the This was an action to restrain the defendants
decision in The Fanny M . Carvill (ubi sup.). I from selling any of the remaining plots of a
entirely agree with that decision and the law laid building estate except upon the terms of a deed.
down. I think it is sound, reasonable, and right. poll dated the 13th Feb . 1868. In that year the
plaintiffs bought part of the estate under con
Now , apply that decision to the present case. In ditions
the first place, there are certain facts to be deter of sale, which provided that no purchaser
mined in order that we may apply it, and we should erect more than one house or two semi
have to inquire into the facts in such cases and detached honses on each plot, and the houses
consider the surrounding circumstances. In the should be of a certain value ; then it was stated
All the plots are sold subject to the annexed general
present case the court has specially to consider stipulations . . . contained in two deeds-poll of
and inquire into the relative positions of these mutual covenants which have been or are intended to
vessels. Now , I am of 'opinion, and we are so be executed by the vendors , and shall be respectively
advised , that the green light of the steamer was executed by each of the purchasers to whose purchase
at least a point or a point and a half on the port such deed-poll relates.
bow of the Vandalia , and if so, it appears to me The deed referred to was executed by the
that by no possibility could there have been any trustees of the building estate, and the various
obscuration of light to the steamer . In these purchasers, to the number of sixty -six , between
circumstances, therefore, I agree with the rest of the years 1868 and 1889. The deed recited the
the court that the steamer was alone to blame. scheme of the estate, that the vendors proposed
Appeal allowed . to sell building lots, and had sold some,
Solicitors : for the plaintiffs, Thos. Cooper and And it is intended that the respective purchasers
Co.; for the defendants, Gellatly , Son,and Warton . shall set and subscribe their respective names and seals
to this deed.
And whereas it was a part of the various contracts,
and it is intended to be a part of all future contracts
for sale of the said plots or parcels of land respectively
that the several purchasers respectively should execute
HIGH COURT OF JUSTICE. this deed and should thereby be severally and respec
tively bound by all the stipulations hereinafter con
CHANCERY DIVISION . tained .
Dec. 10, 11, 12, and 19, 1889. Thedeed then witnessed that “ in consideration
of the premises ” each of the purchasers coven
(Before Kay, J.) anted with the several other purchasers and the
MACKENZIE v. Childers. (a ) vendors, among other things, to build only one
Building estate - Restrictive covenant — Implied house or two semi-detached houses on each plot.
contract — Intention - Vendors — Unsold land The deed contained no covenant by the vendors .
Injunction . On the 4th Sept. 1889 the vendors, having sub
The plaintiffs in 1868 bought plots of land under divided fifteen lots into 101 lots, offered them for
conditions of sale which provided that no pur sale for the erection of continuous rows of arti
chaser should erectmore than one house or two sans' cottages, and the action was brought to
semi-detached houses on each plot, each house to prevent their doing so .
be of a certain value. All the purchasers were Millar, Q .C . and Kenyon Parker (Sir Horace
to execute a deed , which recited the scheme of the Davey , Q .C . with them ) for the plaintiffs. - The
estate, and thot all purchasers should execute the vendors are bound by the deed -poll :
deed , and be bound by the stipulations contained Spicer v. Martin, 60 L. T. Rep. N . S. 546 ; 14 App .
Cas. 12 ;
in it. The purchasers covenanted in the deed Sayers v. Collyer, 51 L . T. Rep. N . S. 723; 23 Ch.
(a) Reported by FRANCIS E. ADY, Esq.. Barrister-at-Law. Div . 103.
March 15, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. - 99
CHAN . Div. ] MACKENZIE v. CHILDERS. [Chan. Div.
[KAY, J. - Is there any case where an injunction | 7501. for a pair, with certain specified exceptions.
was granted against vendors restraining them Thatno public-house should be erected oropened on
from selling ? ] any part of the estate, with many other regu
Whatman v . Gibson , 9 Sim . 206 : lations obviously intended to insure that the pro
Keates v. Lyon , 20 L . T. Rep. N . S. 255 ; 4 Ch. App. perty should only be used for a superior class of
223. villa residences. The 12th condition ran thus :
Renshaw , Q .C . and Onslow for the defendants. “ All the lots are sold subject to the general
- The vendors entered into no covenant ; they stipulations on the particulars and to certain
only expressed their intention at the moment : covenants for regulating the building upon ,
Jordan v. Money , 5 H . of L . C . 185 : fencing, and mode of using the land, the repair
Maddison v. Ålderson , 49 L . T . Rep . N . S. 303 ; of roads, construction of cesspools, and for avoid
8 App. Cas. 473. ing nuisances contained in a deed -poll of mutual
[Kay, J. referred to Tulk v. Moxhay, 2 Ph. 778.] covenants which has been or is intended to be
Re Railway and Electric Appliances Company, executed by the vendors and shall be executed by
59 L . T . Rep . N . S. 22 ; 38 Ch. Div. 597 : each of the purchasers. No objection or requisi
Aspdin v . Austin , 5 Q . B . 671 ; tion shall be made to or in respect of such deed
Piggott v. Stratton , 1 De G . F . & J. 33 ;
German v. Chapman , 37 L . T. Rep. N . S. 085 ; 7 Ch. or anything therein contained . Copies of the said
deed - poll (without the plan and signatures and
Div. 271 ;
Nottingham
Div. 268 ;
Brick ,fc., Company v. Butler, 15 Q.B . attestations) having been printed , it shall not be
included in the abstract, but one of such copies
Western v. Macdermott, 15 L. T. Rep. N . S. 641 : shall be delivered to each purchaser, and in the
2 Ch. App. 72 ; meantime a copy thereof may be inspected on
Child v. Douglas,5 De G . M . & G .739 . application to the auctioneer, the solicitors,
If the vendors did enter into a covenant, it is or at the estate office, Belvedere. A short
void for remoteness : memorandum or notice of such deed kaving
London and South -Western Railway Company v. been executed by the purchaser shall be
Gomm , 46 L . T. Rep . N . S. 449 ; 20 Ch . Div. 562; indorsed on the conveyance to each purchaser, and
Maclean v, Mackay, 29 L . T. Rep. N . S. 352 ; 5 Pr: shall be signed by him or her at the time of the
C . 327. completion of his or her purchase." The deed
There is no authority for restraining vendors poll
of building estates from selling to purchasers free was referred to is dated the 13th Feb . 1868. It
executed by the vendors and by fifteen pur
from restrictive covenants. chasers in 1868, four in 1869, two in 1870 , one in
Millar, Q .C . in reply . Cur. adv. vult. 1871, one in 1872 ,two in 1873, one in 1874 , three
in 1875, two in 1876 , two in 1877, two in 1878 ,
Dec. 19.— KAY, J. delivered thefollowingwritten one in 1879, one in 1880, three in 1882, three in
judgment :- The question in this case is simply 1883, one in 1886 , seven in 1888 , and fifteen in
whether the vendors of land laid out upon a build . 1889, in all sixty -six purchasers of different por
ing scheme have covenanted or agreed , expressly tions of the estate. T'he deed had upon it a plan
or by implication , with the plaintiffs, who arepur which was practically identical with the plan on
chasers of part of the land under that scheme, the particulars of sale. It recited that the
not to authorise other purchasers to use the rest vendors had laid out the property for building
of the land in violation of the building scheme. purposes, and divided it into building plots and
If they have so contracted , either by negative formed roads, which plots and roads were de
words or by affirmative words which imply a lineated in plans thereto annexed and coloured
negative, there is no doubt the court would green and brown ; and it contained these further
restrain them from breaking sucha contract. The recitals : “ And whereas the said vendors propose
facts are these : In 1867 the then trustees of the to sell the said building plots or parcels of land,
will of Sir Culling Eardley, with the assistance and have already sold some of them , and it is
of Mr. Habershon, an architect, and Strickland, intended that the respective purchasers shall set
a builder, in the words of Mr. Habershon's affi and subscribe their respective names and seals to
davit, " adopted ” a schemewhich the builder and this deed , and that the distinctive numbers of the
architect had “ elaborated ” for the laying out building plots or parcels of land so purchased by
portions of the trust property, called the such persons respectively as numbered on the
Belvedere Estate, for the purposes of building. | said plan shall be set opposite the respective
The scheme “ so elaborated ,” says Mr. Haber- signatures and seals to this deed of such pur
shon, was for the first time “ delineated and chasers respectively after the said several plots
shown in its entirety " on the plan annexed to or parcels so purchased by them respectively
certain particulars of sale prepared for the pur. | have or shall have been conveyed to them re
pose of the sale by auction of the land shown on spectively in fee. And whereas it was a topart of
such plan which took place on the 3rd June 1867. the various contracts and it is intended be a
At this sale only a few of the lots were sold . part of all future contracts for sale of the said
Those particulars and conditions are exhibited toplots or parcels of land respectively that the
the affidavit. They contain a large plan of the several purchasers respectively should execnte
estate as laid out in building plots. The land is this deed and should thereby be severally and
coloured green , the plots are marked out with respectively bound by all the stipulations herein
lines and numbered and the sites of the houses after contained .” . The deed then witnesses that
intended to be erected, one upon each plot are “ in consideration of the premises," each purchaser
clearly shown. The particulars state that the for himself, his heirs, executors, administrators,
property has been laid out with the greatest care ; and assigns, as to his particular plot covenants
that no purchaser was to erect more than one and grants with and to each of the other pur
single or two semi-detached villas on his or their chasers, his heirs and assigns, and with and to
lots,nor of a less value than 5001. for single ones and I the several other persons, including the vendors,
100 - Vol. LXII., N .5.) THE LAW TIMES . [March 15, 1890.
Chan. Div.] MACKENZIE v. CHILDERS. [Chan . Div.
who at the time of his executing should be | so . They had bought under the conditions to
entitled to any part of the land coloured green which I have referred , which expressly mention
on the plan , their respective heirs and assigns the deed, and this deed, executed under these
amongst various stipulations for carrying out circumstances by the vendors, states that “ it is
the building scheme- not to build any house or | intended ,” not only that the actual purchasers
other building,except appurtenant offices, the cost should execute, but that it should “ be a part of
of which should not amount to the sum mentioned | all future contracts for sale of the said plots or
in the succeeding conditions, nor to do anything | parcels of land (respectively that the several pur.
in breach or violation of or contrary to the fair chasers should execute this deed and should
meaning of such conditions. The 6th of these thereby be severally and respectively bound by
conditions is,that, with certain exceptions not now all the stipulations hereinafter contained."
material, no more than one single or two semi Counsel for the trustees have argued that this
detached houses should be erected on any one plot. | only means that such was the intention of the
This deed was executed by the vendors, and , trustees for the moment, but that they might
although called a deed -poll, it was admitted in alter it at pleasure. They did not enter into any
argument that it must be treated as a deed inter covenants, it is said , because they did not wish to
partes. It is dated, as I have said , eight months bind themselves in any way. And the phrase
after the sale by auction. Many of the persons “ it is intended ” was adopted , no doubt, to induce
who have purchased have spent very large sums persons to buy on the faith of the building
of money in building upon their land upon the scheme- that could not be denied — but to leave
faith of this building scheme, which has always the trustees free to depart from it if they chose
been observed and acted upon down to the at any rate,as to land not actually sold . That, it
month of September 1889, that is , for more is urged , is the meaning according to what is
than twenty years since the date of the deed . sometimes called " the good faith and honour ” of
poll. It seems that some change has taken place this deed of contract. Now , I will apply to that
in the trustees of the will, and that recently | argument a very simple test. Suppose in a
the trustees and their architect, finding that part building scheme like this a purchaser of one or
of the land included in the building scheme could more lots was required to covenant that he would
not easily be disposed of on the terms of that pot build more than one house on each lot, and
scheme, but that it might be sold if differently that, there being no such deed as this ,he inquired
lotted for the building of cottages for artisans by letter of the vendors whether all past and
employed in factories in theneighbourhood of the future purchasers would be bound by like cove
estate, on the 4th Sept. last put up this part of nants, and that the vendors answered in writing,
the land for sale by auction in different lots, and “ It is interded that all past and future pur
under conditions which would be a breach of the chasers shall be bound by a like covenant."
originalbuilding scheme by allowing the erection Would that be a mere expression of intention
of more than one of such cottage dwellings upon which the vendors might alter at any time, or
each of the plots on the original building plan. would it be a binding contract not to use or
The plaintiffs,who are purchasers of plots under authorise the use of theremaining land otherwise ?
the first building scheme, and have built at con I should think that no lawver or man of business
siderable expense upon their respective plots upon would hesitate for a moment to say that would
the faith of it, have brought this action to restrain be a binding contract. The question is, not what
the trustees from authorising the new purchasers the vendor might mean — not whether in his own
to depart from that scheme. Some correspon | mind be intended to reserve a power of departing
dence has passed in which the plaintiffs required from the bargain - but what the purchaser would
to be furnished with the names of such recent understand by the words — what effect they were
purchasers,that they might add them if necessary intended or calculated to produce upon him . If
as defendants to the action . The answer was, in that would be the meaning of these words in
substance, that it was not necessary to supply such a letter, can they have any less or other
them then , as the trustees were only desirous meaning in such a deed as this ? These recitals
to have their rights determined . If any ob were inserted in thedeed asone of themain induce
jection were taken on the ground that none of ments to purchasers to buy. It was obviously
such purchasers was a party, I have intimated supposed that better prices could be obtained for
that, after that correspondence, I should think it the lots if each purchaser was assured that every
my duty to allow the case to stand over to add other would be bound by like stipulations, and
the purchasers,or someof them as parties ; but the that the building scheme under which he was
defendants have agreed that the case should be buyingwould be honourably carried out in respect
treated for the purpose of this action as though of all the land coloured green on the plan . Another
the purchasers, or some of them , were defendants mode of testing the argument is this : If this was
to the action . Notice of the building scheme merely a statement of intention which the vendors
was given at the auction last September. The were not bound to abide by, they might change
contracts then made are , I am informed , in a form it at any time. If they sold half the estate at
which enables the vendors to rescind them if the once to one or many purchasers, who bought
objection now raised should be maintained . and built houses on the faith of this statement,
Now , the first question is,What is the true intent they might then immediately break up the
and meaning of this deed ? A building scheme building scheme and sell the rest for a manu
has been carefully elaborated. It had been factory , for artisans' cottages, or for any purpose
embodied in an estate plan to which all pur. however inconsistent with a scheme for a residen
chasers were referred by this deed . The deed tial property. Nay more, if it wasmerely an inten .
recites that some purchasers had already bought tion which they might alter, they might change it
lots according to this scheme, in respect of which as to any of the jots they had actually sold ,
they were bound to execute the deed . That was i and absolve any one or more purchasers from
March 15, 1890.) THE LAW TIMES. [Vol. LXII., N . S.- 101
CHAN . Div .] MACKENZIE v. CHILDERS. [ Chan. Div.
the necessity of covenanting at all. The lapse of and more recently by the Lords of Appeal in
time before their change of intention is not in Spicer v . Martin (60 L . T . Rep . N . S . 546 ; 14
the least in their favour. For twenty years App. Cas. 23). That statement in effect is, that
they have acted as though the expressed inten every purchaser of a plot of land under a building
tion was binding upon them . If the deed be scheme is entitled to the benefit of a covenant
ambiguous, that conduct shows what they them . with the vendor by another purchaser, “ where
selves understood it to mean. I am clearly of the court is satisfied that it was the intention
opinion that the recitals in this deed do not that he should be bound by a like covenant, and
mean that the intention was one which the trus should have such benefit." This right exists not
tees were at liberty to change, but that the only where the several parties execute a mutual
meaning is, that the land coloured green, whether deed of covenant, but wherever a mutual contract
sold or unsold, should not be used in a manner can be sufficiently established . A purchaser may
contrary to the building scheme, or, to take the also be entitled to the benefit of a restrictive
very point now in controversy, that none of the covenant entered into with his vendor by another
lots marked on the building plan should have or others where his vendor has contracted with
more than one house built upon it. Then , if that him that he shall be the assign of it — that is ,have
is the meaning of this deed, what is its effect ? It the benefit of the covenant. And such covenant
is a deed inter partes, the severalpartiesbeing the need not be espress, but may be collected from
vendors and the purchasers who execute. No the transaction of sale and purchase .” To apply
formal words are necessary to make a covenant that language, I should in this case, if there were
in such a deed . A statement of a binding inten - | no express covenant,“ collect from the transaction
tion on the part of the vendors who executed the of sale and purchase " an implied agreementby the
deed, made, on the face of it, for the purpose of in vendors with every purchaser that none of the
ducing the several purchasers to buy, is as good a unsold lots should be built upon in a manner
covenant as could be made by the more formal inconsistent with the building scheme, or at least
words. In my opinion , the effect of this deed is, that they would not authorise such a departure
that the vendors thereby enter into a covenant not from the scheme. In Spicer v. Martin (60
to authorise the use of the unsold land coloured | L . T. Rep. N . S .546 ; 14 App .Cas. 12), Spicer by
green on the plan in a manner inconsistent separate conveyances had acquired the fee simple
with the conditions of the building scheme as in seven houses in Cromwell- gardens, South
therein expressed ,and in particular- with respect Kensington . Each conveyance contained a
to the present dispute - not to authorise the covenant by him restricting his use of each house
building of more than one house upon each plot for anything but a private dwelling . He let one
ofthe land coloured green on the estate plan an of these houses to Martin . He did not enter
nexed to the deed . But, if the deed did not bind | into any express covenant with Martin restricting
them by such a covenant, what would be the effect the use of the other houses. But the lease to
of the whole transaction ? A more perfect ex Martin had upon it a plan showing all the seven
ample of a building scheme, on the faith of which houses, and Martin was informed before taking
persons have been induced to buy land and to ex his lease that the leases of Spicer's other houses
pend money in building, there could hardly be. contained this restrictive covenant, and that
In the leading case of The Duke of Bedford v. there was a like covenant by Spicer in the
The Trustees of the British Museum (2 M . & K . conveyances to him . Martin thereupon in his
572),the covenant sought to be enforced specifi lease entered into a like covenant as to thehouse
cally in equity against the defendants had been he hired . Afterwards Spicer and his vendors
entered into in 1675 .by their predecessor in title arranged to authorise one Brett to convert five
to build a mansion and offices , and no other build of the other six houses into an hotel, three of
ings, on the land where the British Museum now these houses being bought directly from Spicer
stands, and the Duke was held not to be entitled for this purpose. The Lords Justices (55 L . T .
to equitable relief by injunction to prevent the Rep. N . S. 821 ; 34 Ch. Div. 1) restrained Spicer
defendants from building contrary to this cove from " authorising " this to be done. On appeal
nant, because of the use which had in the mean to the House of Lords, this decision was con
time been made of the adjoining land , which at firmed . The House of Lords expressly dis
the date of the covenant was occupied by another claimed proceeding upon the doctrines of
mansion or unbuilt on. Sir T. Plumer said : “ By | Piggott v. Stratton (1 L . T. Rep . N . S. 111 ; 1 De G .
the letter of the contract, the Duke is under F . & J. 33) — viz ., that there had been a representa
no positive engagement to leave the northern tion to Martin that Spicer was bound by a
boundary open ; but the question is, whether, restrictive covenant as to the use of the houses
according to good faith and the true under from which he could not depart. Lord Mac
standing of the parties at the time when this naghten , in a speech which had been read and
contract was entered into , the terms of the en was approved by Lord Fitzgerald and Lord
gagement had not reference to the property while Watson, says this : “ As regards the appellant ”
it remained in its then state .” Since that deci. | that is , Spicer - " the case, I think , is doubly clear.
sion many cases have occurred in which , espe It seems to me that when Spicer put his houses
cially where land has been purchased on the faith in Cromwell-gardens on the market, he
of a building scheme, an agreement has been invited the public to come in and take a portion
implied between the several purchasers, or of any estate which was bound by one general
between them and the vendor, not to depart from law - a law perfectly well understood , and one
the scheme. In Renals v. Cowlishaw (38 L . T . calculated and intended to add to the security of
Rep. N . S. 503 ; 9 Ch. Div. 129 ) there was a state the lessees and consequently to increase the price
ment of the general doctrine by the late Hall, of the houses. The benefit of that increase, what
V .C., which was approved by James, L .J. on ever it was, Mr. Spicer got. Can he or his
appeal (41 L . T. Rep . N . S . 116 ; 11 Ch. Div . 866 ), I representative be permitted to destroy the value
102 – Vol. LXII., N . S.] THE LAW TIMES. [March 15, 1890.
Chan. Div.] FIELD v. HOPKINS. CHAN . Div .
of the thing he sold by authorising the use of use of land reserved or sold is within the rule
part of the estate for a purpose inconsistent with against perpetuity . Another argument was this :
the law by which he professed to bind the whole ? | The vendors, it was,urged , were trustees, and,
That is, Spicer was bound to Martin by an though they had power to sell, a sale with
implied contract - implied from the whole trans restrictive covenants would not be a proper
action - not to authorise a departure from the rule exercise of that power. Counsel admitted that
restricting the use of those seven houses for any- | the sales which were made in September last were
thing butdwelling-houses. I borrow the very words just as bad in this respect, because they were
of that judgment. The defendants in this case made subject to conditions similar in kind though
are attempting to authorise the use of part of the not the same. Under such circumstances the
estate “ for a purpose inconsistent with the law | argument is rather surprising. I am of opinion
by which ” they or their predecessors as trustees that the building scheme was within the powers
professed to bind the whole. The only possible of the trustees. I have no doubt that it was the
distinction between the act they propose to do best and most lucrative mode of dealing with the
and that of Spicer is, that they are proposing to estate, and that they have received much more
authorise the new purchasers without com : under it than could have been made by sale of
pelling them to enter into a covenant. Spicer the land in any other way. I have no reason to
was about to do the same as to three of suppose that the conditions imposed were depre
the houses which Brett was to take ; as to ciatory. I should infer just the contrary , even if
others, he was going to release the covenants, the land now in question remained unsold . There
which former lessees from him had entered must be an injunction against the defendants
into. If there is any difference in this dis restraining them from authorising any purchaser
tinction , I am not able to appreciate it. from them of any of the plots of land comprised
Therefore , if in the present case the trustees were in the building scheme, and coloured green upon
not bound by a covenant, as I think they are, the plan annexed to the so -called deed -poll, to
I should hold they were bound by an implied build upon each plot more than one house con
contract restricting their dealing with the land in trary to such building scheme. The defendants
question in violation of the building scheine. must pay the costs of the action .
Purchasers with notice of such an agreement are Solicitors : Parish and Hickson ; Frere, Foster,
as much bound as the parties to the agreement. and Co.
Lord Cottenham , in Tulk v. Moxhay (2 Ph . 778 ),
says : “ That the question does not depend upon
whether the covenant runs with the land is Tuesday, Jan. 14 .
evident from this, that, if there was a mere agree (Before Kay, J.)
ment and no covenant, this court would enforce Field v. Hopkins. (a )
it against a party purchasing with notice of it ; | Mortgage' - Recital - Covenant - Solicitor - Auc
for if an equity is attached to the property by the tioneer - Costs.
owner, no one purchasing with notice of that By a mortgage deed made in 1885 between two
equity can stand in a different situation from the
mortgagors and twomortgagees (one of the latter
party from whom he purchased .” The purchasers being a solicitor, and the other an auctioneer
who bought in September last with notice of this and valuer ), after reciting that the mortgagees
contract are bound by it also. Two other points took over the transfers of certain mortgages at
were raised on behalf of the defendants which I the request of the mortgagors on the terms that
must notice. Mr. Renshaw faintly, but his junior
with much earnestness,argued that, if there were they should advance the necessary money at the
any contract restricting the number of houses on rate of 41. 108. per cent. per annum , and that,
the unsold plots, it would be void for perpetuity . on the other hand , they should be entitled to
The argument was attempted in Coles v. Sims (5 make the same charges and receive the same
De G . M . & G . 1), and it was expressly decided that remuneration respectively for all business done
such a contract was not obnoxious to the rule. by them respectively in or about those presents
But the case which is most against this view is as they would have been entitled to make and
that upon which the argument was founded receive if they had not been mortgagees, the
The London and South Western Railway Com mortgagors covenanted with themortgagees to pay
pany v. Gomm (16 L . T. Rep . N . S . 449 ; 20 Ch. Diy . the principal moneys stated to be advanced by
562). In that case the Court of Appeal overruled them out of moneys belonging to themmight
on a there
joint
two cases which had decided that a limitation of account, and every other sum which
property was not obnoxious to the rule if the after be advanced or paid by the mortgagees or
person to take under that limitation could release either of them , or become owing to them or him by
it. But it also decided that mere contracts, the mortgagors or either of them , with interest.
whether by deed or not, are not within the rule, The stamp on the mortgage deed was sufficient
which only applies to limitations of property . to cover a further 1001. The chief clerk by his
The judges expressed an opinion that a contract certificate under a foreclosure order disallowed
by Å . to sell land to B . or his heirs at a fixed two sums, 131. 68. 1d. and 171. 38.5d.,for certain
price upon notice in writing given by B . or costs incurred by the mortgagors to the solicitor
his heirs created an interest in land, and that mortgagee after the date of the mortgage and not
there was no real distinction in equity between connected therewith , and a sum of 51. 58. remu.
such a contract and a limitation by which upon neration paid to the auctioneer -mortgagee for
such payment the estate would vest in B . and his valuing the property on the occasion of the
heirs. No doubt that doctrine is entirely novel. mortgage.
But there is notbing in the case which gives On summons by the mortgagees to vary the chief
the smallest ground for the contention that a clerk 's certificate :
covenant by a vendor or purchaser restricting the (@) Re orted by FRANCIS E. ADY,Esq., Barrister-at-Law ,
March 15, 1890.] THE LAW TIMES . [Vol. LXII., N . S. - 103
Cuan . Div.] FIELD v . HOPKINS. [Chan. Div. ;
Held , that the mortgage was not intended to cover | executors, administrators, and assigns, for pay .
future costs incurred to the solicitor, except such ment to the mortgagors of the said three several
as were mentioned , and that these items were sums of 10071. 188. 9d ., 91. 53. 6d .,and 2821. 158. 9d .,
properly disallowed . amounting in the aggregate to the sum of 13001.,
Held , that the 51. 58. would certainly not be allowed with interest for the same in the meantimeat the
in the absence of special contract, and as between rate of 41. 108. per cent. per annum , and would on
mortgagor and mortgagee such a contract wasan such of the quarter days therein mentioned as
attempt to obtain a collateral advantage from should happen next after the same respectively
themortgage which the court would not allow . should be advanced or paid or become owing pay
Held , therefore, that that item was properly dis to the mortgagees “ every other sum which
allowed , and the summons must be dismissed may hereafter be advanced or paid by the
with costs. mortgagees or either of them to or become owing
By an indenture made the 11th Sept. 1885 to them or him by the mortgagors or either of
between Mary Ann Hopkins, widow , and them " with interest thereon from the time “ of
Elizabeth Andrews, widow (thereinafter called the same respectively being advanced or paid or
the mortgagors) of the one part, and John Mack becoming owing." And it was also witnessed
Leeder, auctioneer, and Henry Harrison Field , that the mortgagors thereby charged the mort
solicitor (thereinafter called the mortgagees) of gaged hereditaments with the payment to the
the other part, intended to be read as supple mortgagees of the said principal sum of 13001.
mental to an indenture dated the 13th day of and interest, and of “ any other sum which may
June 1881 made between Elizabeth Davies of the hereafter be advanced or paid or become owing
first part, William John Rees of the second part, as aforesaid, and the interest thereon .” The
the said M . A . Hopkins of the third part, the deed bore a stamp covering 1001. beyond the sum
said E . Andrews of the fourth part, and David actually advanced .
Thomas of the fifth part, being a mortgage for The transfers and further charge were prepared
securing the payment of the sum of 9601. and by the plaintiff Field , who had been consulted by
interest to the said David Thomas to an inden - | Mrs. Andrews and Mrs. Hopkinsupon the subject
ture made the 9th June 1885 between the said of the land which was covered by them .
David Thomas of the one part and the mort The money secured by the transfers and
gagees of the other part, being a transfer ofthe further charge was advanced by Messrs. Leeder
said mortgage to the mortgagees, and to an in and Field out of a fund of which they were
denture made the 30th May 1857 between Allen trustees for a lady, and on behalf of the lady and
Lloyd Grove of the one part und Clara Cook , for the purpose of the investment a valuation was
spinster, of the other part, being a mortgage for made by Leeder. Mrs. Andrews died on the
securing the payment of the sum of 7001. and 2nd Jan. 1888 , and Mrs Hopkins on the 17th Feb .
interest at 5 per cent. per annum to the said 1888 . Leeder ceased to have any interest in the
Clara Cook, and to another indenture made the mortgage securities, and they became vested in
7th Sept. 1885 between John William Jenkin of Field and one Tucker, who, as mortgagees in
the first part, the said Elizabeth Andrews of the possession, received the rents of the mortgaged
second part, and the mortgagees of the third property . Mrs. Andrews was under the will of
part, being a transfer of the said mortgage for her husband, tenant for life of the mortgaged
7001. to the mortgagees, after reciting that property, and was also under the will of her son
" Whereas the mortgagees took over both trans entitled absolutely to his share in reversion on
fers of the said mortgages at the request of the her death.
mortgagors and on the terms that they should . On the 18th June 1888 Messrs. Field and
advance the money necessary therefor at the rate | Tucker issued an originating summons against
of41. 108.per cent.per annum ,to be paid quarterly, the parties interested in the equity of redemption
and that, on the other hand, they should be for an account and foreclosure, and on the
entitled to make the same charges and to receive 3rd Dec. 1888 the usual order for accounts was
the same remuneration respectively for all busi- | made in chambers.
ness done by them respectively in or about these 1 The plaintiffs having carried in their accounts
presents as they would have been entitled to under the order, the chief clerk by his certificate
make and receive if they had not been mort disallowed the following items: (1) a sum of
gagees,” and reciting that the sum of 10071. 188. 9d. 131. 68. ld . charged by the mortgagees as the
remained owing to the mortgagees on the security costs of obtaining an order in 1887 appointing
of the said mortgage of the 13th June 1881 trustees under the Settled Land Act 1882 for the
and of the transfer thereof, and the sum of | purpose of leasing part of the mortgaged pro
7091. 58. 6d . on the security of the said mortgage perty ; (2) a sum of 171. 38. 5d., charged for costs
of the 30th May 1857 and the transfer thereof, said to have been incurred by Mrs . Andrews to
but all interest on the said sums had been paid , • Field as her solicitor, but in respect of matters
and also reciting that it was part of the arrange- subsequent to and unconnected with the transfers
ment between the parties that the mortgagees and further charge ; (3 ) a sum of 51. 58. paid to
shonld lend to themortgagors the further sum of | Leeder, the auctioneer, for his report and valua
2821. 158. 9d. , it was witnessed that, in considera - tion of themortgaged property upon the instruc
tion of 10071. 188. 9d . and the sum of 91. 58. 6d., tions of Field , made on the occasion and for the
part of the said sum of 7091. 58. 6d. then owing purpose of the mortgage.
to the mortgagees, and of the further sum of This was a summons by the plaintiffs to vary
2821. 158. 9d . then advanced by the mortgagees to the chief clerk 's certificate by allowing the above
the mortgagors out of moneys belonging to the items.
mortgagees on a joint account, the mortgagors Renshaw , Q.C . and George Williamson for the
did and as a separate covenant each of them did plaintiffs. - As to the first two items, these are
thereby covenant with the mortgagees, their | included in the covenant under the words “ which
104 - Vol. LXII., N . S.] THE LAW TIMES. (March 15 , 1890.
Chan. Div.] FIELD v. HOPKINS. [Chan. Div.
may become owing to ” the mortgagees or either | the mortgagors or either of them .” It is said
of them . A solicitor can take a security for his | that included future costs incurred by one of
future costs under the Attorneys and Solicitors these mortgagors to one of the mortgagees,
Act 1870 (33 & 34 Vict. c. 28), s. 16 . As to the who happens to be a solicitor. I should be
auctioneer 's charge, that was a proper expense very reluctant to come to that conclusion in the
incurred for the purpose of the mortgage, and absence of authority . Where a solicitor means
the recital entitled themortgagee to charge profit | that his mortgage security shall cover future
costs : costs, he is bound to say so , and none the less
Re Roberts, 43 Ch. Div. 52 ; where he is the person who prepares the
Cradock v. Piper, 1 Mac. & G . 664. mortgage. I do not read these words as having
[KAY, J. referred to Broughton v. Broughton , any such meaning as the solicitor contends.
5 De G . M . & G . 160.] The real object of the covenant was to secure
Mainland v. Upjohn , 60 L . T. Rep. N . S. 614 ; 41 future advances. The covenant was put in
Ch . Div . 126 . probably on account of the recital. The recital
[KAY, J. - James v. Kerr, 60 L . T. Rep. N . S. was that it was intended that the mortgagees
212 ; 40 Ch . Div . 449.] might recover from the mortgagors “ the same
Ashton Cross for the defendants. There is no charges and the same remuneration for all busi
contract that can be enforced under the Attorneys mortgagees ness done in and about these presents” as the
and Solicitors Act 1870. The mortgagor is only had not beenwould have been entitled to if they
liable for principal, interest, and costs, and these these presents”mortgagees. By “ in and about
costs are not covered by therecital and covenant: “ this deed .” Inis meant not the " property," but
my opinion the meaning of
Gregg v . Slater, 25 L. J. 440 , Ch. this covenant was, that it included , and was in
Renshaw , Q .C. in reply. tended to include, any charge of this kind to
KAY, J. - Although the amount involved in this which the mortgagees were entitled under the
contention is not large, the principle appears to contract mentioned in the recital to charge
me to be very important. A mortgage is made against the mortgagors. The covenant, taken
to two persons, who in fact are trustees for a lady by itself, is certainly ambiguous, and we are
for whom they advanced the money. As stated entitled to look at the recital to see what is
on the face of themortgage, one ofthemortgagees meant ; and, reading the two together, I take the
was an auctioneer and the other was a solicitor. covenant to have only the meaning I have
The mortgage is in this form ; it contains this stated . There is no limit to the amount to be
recital : “ Whereas themortgagees took over both come due under the mortgage except such as is
transfers of the said mortgages at the request of implied by the stamp, which is for the amount
themortgagors" - [His Lordship read the recital advanced, and 1001. more. Therefore we may
as above stated and continued :] Then, following conclude that the meaning was that the future
on that recital, there is a covenant by the mort advances and expenses were to amount to not
gagors to pay to the mortgagees part of the more than 1001. Accordingly it appears to me
principal mortgage debts which had been that the chief clerk was right in disallowing,
transferred to them , and also the further advance, under this covenant, these costs which were
which is stated to be advanced by the mortgagees incurred by one of the mortgagors to one of the
out of moneys belonging to them on a joint mortgagees, and which had nothing to do with
account,with interest at 41. 108. per cent.,and also this mortgage in any way. That disposes of the
to pay to themortgagees “ every other sum which claims 1 and 2. Then another claim is this : an
may hereafter be advanced or paid by the mort | item of five guineas is claimed by the solicitor.
gagees, or either of them , to or become owing to mortgagee as having been paid by him to his
them or him by themortgagors or either ofthem ," co -mortgagee, the auctioneer. He says it was
with interest. Now the question is, what is the for a valuation made on behalf of a lady , their
meaning,or rather the construction of this deed ? cestui que trust, prior to and for the purpose of
Let us try it in this way : One of the mortgagees this mortgage, and that it comes within the
was, as I have said , a solicitor. The other mort recital. That raises this important question,
gagee was an auctioneer, who has since ceased to Can a mortgagee stipulate for more than his
have any interest in the matter either as mort | principal, interest, and costs by a recital of this
gagee or otherwise. This solicitor claims, in this kind, it being clear that this remuneration
foreclosure action , to be allowed in his accounts not have been payable but for this recital? would It is
costs incurred by one of the mortgagors, who was said by Lord Romilly in Gregg v. Slater (25 L . J.
tenant for life of the mortgaged property, in | N . S .440, Ch.) and by myself in the recent case
matters which have nothing to do with this mort Re Roberts (43 Ch. Div . 52), that where a solicitorof
gage at all, and which were incurred subsequently mortgagee tries to charge against his mort
to themortgage, his claim being that they are gagor professional costs in connection with the
“ owing to him ” within the meaning of the cove preparation of the mortgage, such a charge has
nant. The law used to be, that a mortgagee- | been disallowed , because he is not claiming costs
solicitor could not charge for future costs at all ; paid to another person , but he is claiming them
but that has been altered by the Attorneys and for himself, and as the mortgagor is only liable
Solicitors Act of 1870 (33 & 34 Vict. c. 28), s. 16 , to pay outgoings he is not bound to pay anything
and he now may do so , but if he means to do so charged by the solicitor for his own benefit .
he should make it very clear that he does mean | Therefore, this sum charged by the auctioneer
to do so . The only words here under which | as incidental to the preparation of this mortgage
the solicitor can charge what he now claims is not a proper charge, unless it is covered by
are, “ every other sum which may hereafter be the recital I have read. Then comes the question ,
advanced or paid by the mortgagees , or either can a mortgagee contract for payment to himself
of them , to or become owing to them or him , by l of a profit payment to which, but for such a con
March 15, 1890 .) THE LAW TIMES. [Vol. LXII., N. 8.– 105
Chan . Div .] Van GeldER, APSIMON, & Co. v. SoWERBY BRIDGE, & c., Flour SOCIETY. [Chan. Div .
tract, he would not be entitled ? Thematter has l mortgage to the bank , dated the 31st Dec. 1885,
been considered in many cases. It is orly neces was what is termed a banker's mortgage for the
sary for me to refer to my own judgment in purpose of securing the plaintiffs' current account.
James v. Kerr (60 L . T . Rep . N . S . 212 ; 40 Ch . By this indenture the plaintiffs, as beneficial
Div . 449), where I quote the language of the owners, assigned to the banking company the
Master of the Rolls in Jennings v. Ward (2 Vern . letters patent in question , to hold the same subject
520), that " a man shall not have interest for his to redemption on payment by the plaintiffs of the
money , and a collateral advantage besides for the balance of their account. And it was declared
loan of it, or clog the redemption with any by . that it should, subject as thereinafter mentioned ,
agreement." That decision has since been fol be lawful for the banking company at any
lowed in a great many cases ; and I go on in my time, without the consent of the plaintiffs, to
judgment to state that, “ In Broad v. Selfe (9 grant licences and use the premises thereby
L. T. Rep. N . S. 43 ; 11 W . R . 1036 ) Lord Romilly assigned as they should think fit, and also to sell
decided that this rule was not affected by the the same, and out of the moneys arising from any
repeal of the usury laws, and he disallowed a such sale or licences to satisfy the moneys owing on
commission for which the mortgagee had stipu the security, with a proviso that the powers of
lated in addition to his principal and interest." granting licences and of sale should not be exer
Until those decisions are reversed I shall feel cised unless default should bemade in payment of
bound to follow them . Accordingly the five the balance of the said account current or other
guincas taken by theauctioneer -mortgagee, which the moneys due from the plaintiffs as therein
he could not possibly haye claimed without a mentioned . Provided also, that upon any
special contract, could not be the subject of a licence or sale thereunder the licensee or pur
valid contract. According to the mortgage law chaser should not be bound to inquire whether
recognised in this country , a mortgagee cannot any such default in paymenthad been made.
make such a contract ; he cannot contract to get There were other mortgages subsequently made
anything beyond his principal, interest, and and registered , which may for the present purpose
costs ; therefore profit charges which he is not be taken to have been in similar terms.
entitled to be paid stand on the same footing as The action now came on for trial, and after the
commission , which he clearly cannot charge . plaintiffs' case had occupied a considerable time
Accordingly the chief clerk was quite right on the objection was taken by the defendants that
this point also . I dismiss the summons with the plaintiffs were not now the registered pro
costs. prietors of the patent, and therefore were not
Solicitors : Williamson , Hill, and Co., for J. H . entitled to sue without joining their mortgagees
Field , Cardiff ; R . White, for J. A . Thomas, as co-plaintiffs , and this question was accordingly
Swansea . argued .
Aston , Q . C . and Bousfield for the plaintiffs.
Jan . 16, 17, and Feb . 1. The defence is, that the plaintiffs are not the
proprietors of the patent because there are
(Before KEKEWICH , J.) registered assignments to various mortgagees.
VAN GELDER , APSIMON , AND Co . v. SOWERBY We submit, however,that we are for this purpose
BRIDGE UNITED DISTRICT FLOUR SOCIETY. (a ) the proprietors and entitled to sue. We are
Patents, & c. Act 1883, 88. 23, 46, 85, 87 — Mortgage assignees of the patent and mortgagors in
possession with interests to defend. If necessary
of patent— Registration of mortgage - Assignee we shall ask for leave to amend by adding the
- “ Proprietor " - Action by patentee - Parties to mortgagees as parties, but we submit it is not
action . necessary. It is the plaintiffs who are working
The mortgagees of a patent under a registered the patent, and are the substantial owners of it,
assignment are necessary parties as co-plaintiffs the defendants have no power to sell it or grant
in an action by the mortgagor against an in licences under it, unless and until default is
fringer claiming damages and the ordinary made by the plaintiffs.
relief,themortgagees being the “ proprietors ” of Sir R . E . Webster (A .-G .), Moulton , Q.C.,
the patent within sect. 87 of the Act. Warmington, Q .C ., Carpmael, and Roskell for
The statement of claim alleged that the plaintiffs
were the assignees of certain letters patent the defendants. The patent has, by the mort
granted to one Van Gelder for an invention of are gage, been absolutely assigned to persons who
" improvements in apparatus for separating not the plaintiffs, and the sole right the
substances by means of sieves and in the mode plaintiffs have is an equity of redemption. The
of operating parts of the same," and that the plaintiffs therefore are not the proprietors, and are
defendants had infringed . The plaintiff claimed not entitled to sue alone in respect thereof.
an injunction,an account and payment of profits, Sect. 87 of the Act provides that “ where a person
and delivery up or destruction of all infringing becomes entitled by assignment . . . to a
machines. By their statement of defence the patent . . . the comptroller shall, on request
defendants alleged that the plaintiffs were not and on proof of title to his satisfaction , cause the
the proprietors of the patentand were not entitled name of such person to be entered as proprietor
to sue in respect thereof. They alleged also want of the patent." It does not go into any question
of mortgage, legal or equitable, or of a charge. It
of novelty and various other defences. is impossible to say that the banking company
The plaintiffs were registered as the assignees are not the assignees of the patent under their
of the patent on the 22nd Feb . 1886 , and on the mortgage. The subsequent mortgages may be
same day the Halifax Joint Stock Banking taken to be in the same form . We submit, there
Company were registered as mortgagees. The fore, that all the mortgagees are necessary parties
(a) Reported by F . GOULD, Esq., Barrister-at-Law . | as plaintiffs. The defence is taken on the plead
106 _ Vol. LXII., N .8.) THE LAW TIMES . [March 15, 1890.
Chan . Div.] VAN GELDER, APSIMON, & Co. v. SOWERBY BRIDGE, & c., FLOUR SOCIETY. (Chan . Div .
ings that the plaintiffs are not the proprietors, which would enable such questions to be tried.
and we submit the action ought to be dismissed . But, secondly , I think it right to add that, under
[ The clerk in charge of the register at the the system at present existing, there would have
Patent Office having been called with reference been not the slightest difficulty in trying the
to the practice at the office, stated that on the question long before any expense had been
assignment of a patent the original document incurred , that is to say, immediately after the
was brought to the office, together with a cop defence had been delivered . This first objection
thereof. The copy, after being examined , wa which I am now considering is in limine. It is
filed in the office. The requests for registry the objection which the defendants put forward
were also filed . In cases when the assignment | as the first to be tried, and which they say
was by way of mortgage it was the practice to prevents the necessity for any other question
put in the words “ as mortgagees.” In the being tried . It was not for them to bring it
present forward , though they might have done so . I
plaintiffs'instance the register
mortgage to the with regardcompany
banking to the think the plaintiffs might at once have brought
was as follows, dated the 22nd Feb . 1886 : “ By forward the question by summors or application
request received and filed . Halifax Joint Stock to this court and asked the court to decide it
Banking Company Limited, Princes-street , irrespective of any other question in the action ,
Halifax, York , registered as mortgagees. Mort and if so we should have been saved all this time
gage, Van Gelder, Apsimon , and Co. Limited , to to -day and all the costs of to -day. Without
the Halifax Joint Stock Banking Company wishing to unduly blame anyone, I cannot forbear
Limited, produced and copy thereof filed.” ] adding that I think it would have been more
Sir R . E . Webster (A .-G .).- Sect. 46 of the Act satisfactory if I had been told yesterday after
provides that, “ Patentee means the person for noon, “ Before we go into any other questions,
thetime being entitled to thebenefit of a patent ;" before we consider the details of this patent, the
that is, the whole body of persons who are for the machinery and so forth , there is a question of law
time being so entitled take the place of the which , if it is decided against the plaintiffs, will
person whose name was originally on the register make all further consideration unnecessary."
as being the grantee of the patent. Here the However that course has not been taken , and
body of persons are the plaintiffs and their great costs have been consequently incurred
mortgagees. Sect. 85 provides that there shall which must more or less, according to my view
not be entered on the register or received by the of the law , fall on the plaintiffs, who, it is sug.
comptroller any notice of any trust. Suppose in gested , are not particularly well able to bear them .
this action the defendants were to make terms Now , as regards the real question , it is simply
with the plaintiffs, that would not prevent the this : the plaintiffs sue as patentees, that is to
mortgagees from bringing another action the say, they sue as assignees of the patent which
next day. was not granted to them originally, or if you will,
Aston , Q .C . in reply. - As regards sect. 87, if it as proprietors of the patent; that is their title,
and they sue for the ordinary relief in a patent
had been intended that an assignee by way of case. To that the defendants say in the plainest
mortgage should be recognised as a proprietor,
and thatlanguage,
possible “ You are nottried
the.proprietors ;”
nothing could have been easier than to say so in is the question to be What is the
the Act . It cannot be said that there is no result if they are not the proprietors is a subordi.
residuum of right left in the plaintiffs. An nate question ; the first question is, are they
equitable mortgagee, or a man possessed of an proprietors ? There is produced to me a mortgage
equitable lien or a mortgage by assignment of properly executed and properly registered , I say
an equitable chose in action, may obtain an mortgage because, though I do not forget that
injunction for protection ofhis security; à fortiori there are severalothers behind it, it is convenient
agagee
mortgagor who fettersthat
by providing the rights of the mort
they shall not be for the present purpose to bear in mind only the
mortgage of the 31st Dec. 1885, registered on the
exercised except on default of payment. It 22nd Feb. 1886 , to the Halifax Joint Stock
may be that the court will not entertain the Banking Company. That is a mortgage in a form
question of damages, but we submit that there with which all conveyancers are familiar ; &
is a sufficiently important interest remain mortgage to a banking company to secure an
ing in the plaintiffs to entitle them to sue account current, modified according to the later
to protect the patent from being wrongfully form of the Conveyancing Act by making the
used . patentees, the plaintiffs, assign as beneficial
KEKEWICH, J.- The question falling for decision owners so as to abbreviate the parchment. There
is oneof considerable importance,though I confess, is a covenant to pay, and then there is an
to my mind, it is free from all reasonable doubt. absolute assignment of the patent subject only
Before expressing my opinion upon it I wish to to redemption . The redemption is on pay
make two preliminary observations closely con - ment of the amount secured by the covenant,
nected . In the first place, I desire to take the that which the plaintiffs from time to time owe
opportunity of repeating my regret that there is to their bankers; but in the meantime and until
not some better way and better means than there redeemed the banking company are the
is at present under our practice of trying these owners by assignment of the patent. That is no
preliminary questions before trial of the action , new law ; a patent has alwaysbeen assignable,and
before all the expense has been incurred at the has been one of those things which , not being
cost of great labour and trouble in bringing the | land or interest in land, have always by force of
case to trial. I have heard other judges say the the patent law been assignable at law as well as
same, particularly the late Lush , L .J., who I in equity. The legal estate, as conveyancers have
know someof us at the time hoped intended to it, passes by the deed , which of course has to be
give his personal attention to making some rules properly registered . The Attorney -General says
March 15, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8.- 107
CHAN . Div .1 VAN GELDER, APSIMON, & Co. v. SOWERBY BRIDGE, & c., FLOUR SOCIETY. [Chan. Div .
that there is some little inaccuracy in speaking of the mortgagee has full power under this deed to
the mortgagor in possession of a patent. That is grant licences ; he has full power under this
sc ; there is a little inaccuracy ; but I cannot help deed to sell, fettered of course by the provision
thinking it is a convenient phrase nevertheless, between the two that those powers shall not be
because we all know what a mortgagor in pos exercised unless and until certain defaults have
session is, and a mortgagor, I think,may be in occurred and until certain notices have been
possession of a patent for some purposes. What given , but not so as to prevent a good title being
exactly it means is, I admit, not so easy to define, | made to the purchaser or licensee, who is not
but there it is on the register. It is registered bound to inquire whether the provided events
in the manner which the rules provide. The have happened or the provided notices have been
deed professes to pass, and does pass,what I call given . It follows that the mortgagors, the
the legal estate in the patent for want of a better plaintiffs, are really in the position , so far as they
phrase, and it seems to me, though as between have any estate at all, of strictly fettered owners,
the parties there are rights which interfere with persons who are not able to act for themselves,
the absolute ownership — the power of redemp and they are not in possession of - to use a
tion , the right to an account and so on - that still doubtful phrase again - the estate, so as to assert
the “ proprietor " is the mortgagee who has had any rights of ownership over it. They may have
the patent assigned to him . Then does the | some rights and they may have a right to sue for
register in any way interfere with that ? The some purposes, and Mr. Aston says : “ Surely I
bank have been registered as mortgagees. It am entitled to sue for damages and to have the
may be convenient so to register them , and there damages assessed though they may not be payable
cannot in my view be any injury done by so to me." As regards the assessment of damages,
registering them , because the deed is necessarily and equally as regards much else, how can the
referred to. The deed is on the file , which must damages be assessed when the damage is not to
I think be taken to be part of the register, and the plaintiffs but to some other person whose
any person having notice of the assignment patent is infringed ? An injunction is a wide
that is to say, of the mortgage - from the register term . Whether they can sue for an injunction or
has notice also of course and is told of the deed , not I am not called upon to determine ; but to
and it is his fault if he does not ascertain the talk of damages and an injunction as if that were
exact nature of the deed ; but it deserves great the object of the action is to put the subordinate
consideration at the hands of those whose duty | relief first and to forget the substance . What is
it is to look after such things, whether any the substance ? The substance is, that the plain
assignee ought to be registered as a mortgagee tiffs say that they are entitled to the benefit of
simply and not as an assignee by way of mort certain letters patent. They ask the court in
gage. With that, however, I have nothing now substance to declare that they are entitled to
to do. Now , it seems to me that if I find an those letters patent. The court would be
assignment by the proprietor reserving some stultifying itself to make any declaration of the
rights in it, still, there being an absolute kind, either in form or in substance. They ask
assignment, and that assignment registered , I the court to decide that the letters patent are
am bound to regard the person to whom the valid. The court might decide that, according
assignment is made as the owner of the legal to the plaintiffs' contention , in the presence of
estate, unless the Act says something to the the plaintiffs and defendants and have to try it
contrary. Mr. Aston endeavoured to prove that over again the very next day between the
there is something in the Act to the contrary. plaintiffs and one of their mortgagees who
To my mind, if the Act be looked into, these would not be bound by any such decision. The
sections having been canvassed by both Mr. | question of validity of course involves novelty ,
Aston and the Attorney -General, they all point and therefore all these questions of anticipation .
the other way. The 85th section , which excludes Someone of these mortgagees may have satisfied
trusts, must not be forgotten ; the 87th section , | himself that he has an excellent title because he
which only speaks of " assignment, transmission , is able to give an answer to some claim of
or other operation of law ," does not speak of any anticipation which may not be known to the
such rights as those of a mortgagor with an equity ingenious counsel or the solicitors who instruct
of redemption . They all point, to my mind, to them . Any of these mortgagees would be
good,and thatmay
theordinary rule oflaw holdingalthough an entitled to say the next day, “ ,True, the court
assignment is an assignment there has held this patent to be invalid because it was
be an equity of redemption behind. Therefore, anticipated by such and such a patent or such
as regards that, it seemsto me that the plaintiffs and such a publication , but I have got a complete
cannot pretend to be proprietors of this patent answer to that, and you must try the question
which they have assigned to the banking over again with me." To ask the court in the
company. But then Mr. Aston says, “ Notwith presence of the mortgagors to decide all these
standing that, I am entitled to sue ; I am a questions without any power of binding the
mortgagor in possession and I am entitled to mortgagees would be contrary to the whole
protect my rights." That, no doubt, is the course of judicial practice, and to mymind would
reason why the inaccurate expression “ mort be a monstrous absurdity. I think that it is
gagor in possession ” is objectionable. What impossible for the plaintiffs to maintain this
rights has he ? I do not say he has none, and I action standing alone, and that the first objection
am not called upon to decide the question is a fatal one.
whether under this particular mortgage he can Aston , Q .C .- Under these circumstances we
grant licences for his own benefit, nor how far ask for leave to amend by adding themortgagees
the mortgagee can control a power of granting as co -plaintiffs. Under Order XVI., r. 11, it is
licences without so to speak taking possession - an necessary to get the consent of the parties to be
inaccurate expression again of the patent: but I added . Webelieve this consent will be given, and
108 — Vol. LXII., N . 8.] THE LAW TIMES. [March 15, 1890.
Chan . Div.] OLIVER v. Hunting . [Chan. Div.
therefore make the application now subject to menced this action, claiming specific performance
getting the requisite consent. on the ground that the memorandum of the 7th
KEKEWICH , J. decided that the plaintiffs should and the letter of the 12th Sept. 1888 formed a
first obtain the consent of the various mortga valid and binding contract sufficient to satisfy
gees, and if they should consent to be joined as the statute.
co- plaintiffs the application for leave to amend Neville, Q . C . and Dunning appeared for the
should be made on a future day : the plaintiffs to plaintiff. — There is complete identification of the
pay in any event the costs which had been property in the two documents, and parol evi.
already thrown away, such costs to be taxed on dence is admissible to connect them :
the higher scale. Baumann v. James, 16 L. T. Rep. N . S. 165 ; 6 H . of
Feb . 1. - On the case coming on again on the L . Cas. 238 ;
motion for leave to add the mortgagees as co Long v. Millar, 41 L. T. Rep. N. S. 306 ; 4 C . P.
Div . 450 ;
plaintiffs, it was stated that the requisite Studds v. Watson , 52 L. T. Rep. N . S. 129 ; 28 Ch.
consents could not be obtained , and the action Div. 305 ;
was thereupon dismissed with costs. Cave v. Hastings, 45 L . T. Rep. N . S. 348 ; 7 Q . B.
Solicitors for the plaintiffs, Walker and Div. 125.
Whitfield , for Humphreys and Hirst, Halifax. In the present case also there is a distinct and
sufficient reference in the letter of the 12th to
Solicitors for the defendants, Wilson , Bristows, the
and Carpmael. memorandum of the 7th . The reference to
the purchase is equivalent to a reference to an
agreement for purchase. Having got that, there
Jan . 31, 1889, and Feb . 3, 1890 . was a valid agreement for the purchase of this
property.
(Before KEKEWICH, J.) [ The plaintiff was then called and gave evi.
OLIVER v. Hunting .(a) dence as to the total purchase money ; the pay .
Vendor and purchaser - Specific performance ment of the cheque for 3751. ; and that no other
Sufficient memorandum within Statute of Frauds | purchase money was payable under the memo
- Parol evidence- Grounds on which admitted . randum .]
To establish a sufficient memorandum within the l Warmington , Q .C . and Swinfen Eady for the
Statute of Frauds parol evidence is admissible defendant. - There is no case , as there is no con
nection between the two documents. The refer
in order to connect two written documents ence to the purchase money in the letter is not a
together.
This was an action by Emma Oliver against reference to the agreement for the purchase , and
the cases show that there must be a reference to
Joseph Hunting for the specific performance of another document. Besides, there is no ambiguity
an agreement to sell freehold hereditaments. It here, and therefore no parol evidence is admis
was alleged by the statement of claim that for
some two months prior to the 7th Sept. 1888 sibleWarner to explain it. They referred to
v. Willington , 3 Dr. 523 ;
negotiations had been entered into between the Boydell v . Drummond, 11 East, 142 ;
plaintiff and the defendant for the sale to the North Staffordshire Railway Company v. Peek , E .
plaintiff of the Manor House estate at Fletton , B . & E . 986 , 1001 ;
in the county of Huntingdon , for 23751. On the Blagden v. Bradbear, 12 Ves. 466 ;
7th Sept. 1888 the following memorandum was and distinguished the cases referred to on the
signed by both parties : other side.
Memorandum of terms of agreement between Mr. Neville, Q .C . in reply .-- The moment you have
Hunting andMrs.Oliver Price 23751. Vendor to make it established that there was only one purchase
good title. Purchaser to pay for her own conveyance. between the plaintiff and the defendant, then you
Fixtures included in purchase. Purchase to be settled have documents signed by the party to be bound,
as soon as possible. Possession on 25th Sept. Time
allowed up to 1st Jan , next to clear bricks. Deposit to which , between them , contain the whole contract .
be paid on the 10th . Stamped. 7th Sept. 1888 , JOSEPH KEKEWICH , J. - The elementary proposition of
HUNTING . Sept. 7, 1888, E . OLIVER . law , about which there is no doubt, is this : A
In pursuance of this contract the plaintiff , on memorandum , signed by the party , sought to be
the 10th Sept. 1888, paid a deposit of 3751. charged so as to bring a particular case within
On the 12th Sept. 1888 the defendant wrote a
letter to the plaintiff containing the following the Štatute of Frauds need not be on one piece of
paper, nor need it be a complete document signed
passage : by the party at one and the sametime. Itmay be
I beg to acknowledge receipt of cheque - value 3751. contained on two or more pieces of paper, but they
on account of the purchasemoney for the Fletton Manor must be so connected together that you can read
House estate, for which I thank you .
The defendant subsequently delivered an ab them of , and from them make out a singlememoran
stract of his title. Requisitions were made, and dum get
contractbetween the parties. Directly you
beyond
on the 5th Dec. 1888 the plaintiff took out a trate that inthat a
you get into difficulties. To illus
simple manner , I will put this : An
summons under the Vendor and Purchaser Act intending purchaser accepts the offer made by an
1874, asking for a declaration that a good title opposing vendor, thus: “ In reply to yours of the
had not been shown. On the hearing of the sum 14th inst.” Can you annex to that reply
mons before Stirling, J., it was objected by the of the 14th inst.? Surely you cannotthe letter
without
vendor that there was not a memorandum in inquiring what letter it is, unless the purchaser
writing of the contract to satisfy the Statute of has, with unusual prudence, completed his refer .
Frauds, and the summons was ordered to stand
over. On the 5th Feb . 1889 the plaintiff com ence to the letter by saying, " a copy of which is
on the other side.” In the absence of any further
(a) Reported by G .MAOAN, Esq., Barrister-at-Law . evidence, you must inquire what the letter of
March 15, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8. - 109
Chan . Div.] OLIVER v. HUNTING . [ Chan . Div.
the 14th inst. was, because non constat there may | L . J. ; that is to say, I am unable quite to under
have been half a dozen other letters of that day . stand what he means by some passages in his
And so, from that very simple illustration , you judgment at p. 456 (4 C. P . Div.),which , it seems
can get a very large variety of cases of a more to me, are inconsistent. But seeing that I have
complex character. It is not for me to say that the judgments of Bramwell and Baggallay,
the old rule was better or worse than the L .JJ., which are without the slightest doubt or
present rule, but that it was a different rule, embarrassment, and that Thesiger, L .J. concurred
notwithstanding the criticism of the cases in those judgments. I think that I may put
which Mr. Neville has given me, I do not doubt. any difficulty of that kind aside. Bramwell, L . J.
I take the old rule from Lord Blackburn 's book on gives a judgment which, beyond its reference to
Contract of Sale, which is cited by Williams, J. in the particular case, is exceedingly useful as illus.
North Staffordshire Railway Company v . Peek trating this branch of law , because he gives an
(El. Bl. & El. 1001), where, after referring to illustration which seems to me to go to the very
Hinde v. Whitehouse (7 East, 558), and Ken root of the matter. The illustration is this (4
worthy v. Schofield (2 B . & C . 945 ), he says, C . P . Div . 454) :. “ Suppose that A . writes to and B .,
“ The principle of these cases seems to me to be saying that hewill give 10001. for B .'s estate,
well stated in the same work by my brother at the same time states the terms in detail; and
Blackburn , as follows : If the contents of | suppose that B . simply writes back in return , I
the signed papers themselves make reference accept your offer. In that case there may
to the others 80 as to show by internal be an indentification of the documents by parol
evidence that the papers refer to each other ' evidence, and it may be shown that the offer
as in the case which I have mentioned — they alluded to by B . is that made by A . without
may be all taken together as one memorandum in infringing the Statute of Frauds, s. 4, which
writing ; but, if it is necessary , in order to con required a note or memorandum in writing.” If
nect them , to give evidence of the intention of that is sound , which I take it to be, then accord .
the parties that they should be connected, shown ing to the other cases, and according to the
by circumstances not apparent on the face of the modifications which those cases have introduced
writings, the memorandum is not all in writing, into the old law , it is difficult perhaps to say
for it consists partly of the contents of the wri. where a reference is to stop ,and substantially it
tings, and partly of an expression of an intention never stops short of this, that wherever parol
to write them , and that expression is not in evidence is required to connect two written docu
writing.' ” I observe that the learned editor of ments together, then that parol evidence is ad .
Lord Blackburn 's book , a usefulwork in its pre missible. It seems to me that you cannot
sent form , omits any such passage as that when exclude, though you are not bound to introduce,
he refers to Hinde v. Whitehouse (ubi sup.), the notion that there is something, either in
Blackburn on Contract of Sale, p. 47, and evi. writing or conversation, which oughtto be proved .
dently avoids this difficult question , which he You are entitled to rely upon there being a
considers, and I have no doubt with truth , to be written document which requires explanation.
too difficult a subject for a digression . Of Perhaps the rule, or rather the you principle upon
are always
the older cases, Boydell v. Drummond (11 which it is based is this, that
Est. 142) might be consistent within that entitled in questions of this kind to inqure
rule , but certainly a later and different rule into the circumstances under which the written
has been introduced , and it is a rule which , document was written, not in order to find any
to say the least of it, is consistent with the objection by the writer of the language, nor for
intentions of mankind generally, because if in any other purpose than to ascertain from the
the illustration I have given of a reference to surrounding facts and circumstances with refer
a letter of the 14th instant one was to exclude all ence to what, and with what intention it must
parol evidence respecting that letter, the result have been written . I think myself thatmust be
might be to cause gross injustice. In a case of the principle upon which parol evidence of this
that kind you may give parol evidence to show kind is admitted . Turning to the case before
what the document was. I take it you may go me, I find a letter of the 12th Sept. 1888,written
further than that, and if you find a reference to by the defendant Joseph Hunting to Mrs. Oliver ;
something which may be either a conversation or and in that letter he says, “ I beg to acknowledge
another written document, then you may give receipt of cheque , value 3751. on account of the
evidence to say whether it was a conversation, or purchase money for the Fletton Manor House
& written document, and, if the latter, you estate, for which I thank you .” Now , I have two
may pat chat document in evidence, and so con things there which are perfectly clear. First,
nect it with one which is already admitted or that there was a property called the Fletton
proved . So far there is no difficulty. That was Manor House, and suggesting the ofsubject of
applied in the case of Ridgway v. Wharton (6 purchase, and therefore the subject the sale .
H . of L . Cas. 238 ), where the question was Then, I have also the fact that 3751. is part of the
as to the meaning of the word “ instruction ," purchase money for that house. But beyond
which did not by any means necessarily that I have no terms of the contract. I am
point to a written document. But later cases entitled to consider the circumstances under
have gone further than that, and it seems which that letter was written in order to give
to me that the case of Long v. Millar (41 L . T. anymeaningto which I properly can to that, not to
Rep . N . S . 306 ; 4 C . P . Div . 450), followed by add terms it, but to find out what the meaning
Field , J. in Cave v. Hastings (45 L . T. Rep. N . S . must necessarily be, having regard to the facts
348 ; 7 Q . B . Div. 125), does establish a very much and circumstances. Having got that evidence, the
larger series of exceptions to the old rule. In conclusion is unavoidable that it refers to the
Long v. Millar (ubi sup), I confess to have felt previous memorandum of terms of agreement
rather embarrassed by the judgment of Thesiger, i under which Mrs. Oliver became the purchaser of
110 - Vol. LXII., N . S.] THE LAW TIMES . [March 15, 1890 .
Q .B . Div.] USHER AND OTHERS (apps.) v. LUXMORE (resp.). [ Q .B. Div.
this particular property for 2375l.,on account of | CASE stated by justices of the peace for the
which the cheque for 3751. was signed . Having county of Berks.
got that evidence in , and the connection thus | Upon the hearing of a certain complaint pre
established between the two documents, I have ferred by the respondent against the appellants
enough to enable me to read the two documents | under the 52nd section of the Act 24 & 25 Vict.
together , and then I have a distinct memorandum c. 97, intituled “ An Act to consolidate and
of the contract satisfying all the required terms, amend the Statute Law of England and Ireland
the second document supplying all which the relating to Malicious Injuries to Property ," that
first omitted to give, namely , the property | they the said William Usher, Charles Carter,
intended to be purchased and sold . That being and James Harding , on the 10th April 1889 , at
so, the objection that there is no memorandum the parish of Cookham , in the county of Berks,
fails. I have not referred to the late case before | did unlawfully and maliciously commit damage,
North , J ., of Studds v. Watson (52 L . T . Rep . | injury, and spoil to and upon a certain wooden
N . S . 129 ; 28 Ch. Div . 305 ), because I am not post the property of Maria Stuart Luxmore,
quite sure how far the learned judge intended to thereby then doing injury to the said property to
go. If I am right in the view which I take of the amount of 38., the appellants were convicted
his judgment, namely, that he only regarded the and fined in the sum of 6d . each , together with
parol agreement in order to see whether it con the sum of 88. for costs, and a sum of 8d . for the
nected the two written documents , and then hav. | damage to the property.
ing found that it did, he was so able to read the The respondent's wife, the said M . S . Luxmore ,
two documents together ; if that is the right is the owner of the land on either side of a certain
view ofthe judgment,which Ibelieve to be all that footpath leading from Winter Hill to Bisham , in
he intended , then it merely follows Long v.Millar the respective parisbes of Cookham and Bisham ,
and Cave v. Hastings (ubi sup.). Therefore , in the county of Berks, and is also the owner of
under these circumstances , I think that the the land over which the said footpath passes.
plaintiff is entitled to judgment for specific per The land on either side of the footpath is sepa
formance, and to the costs of the action . rated therefrom by a fence and communicates
Solicitors for the plaintiff, Law and Worssana therewith by gates.
The public have a right of way or passage on
for W . F . Law , Stamford .
Solicitors for the defendant, Hatchett, Jones, foot only over and along the footpath .
and Co., for Ackers, Peterborough . The respondent's servants have been in the
habit of driving cattle backwards and forwards
from the land on one side of the footpath over
the footpath into and upon the land on the other
QUEEN'S BENCH DIVISION . side of the footpath , and on certain occasions
Friday, Nov. 29, 1889. when this was being done, some of the animals
(Before Fry, L .J. and Mathew , J.) have bolted down the footpath , and have thereby
caused some inconvenience to the respondent.
USHER AND OTHERS (apps.) v. LUXMORE (resp.).(a ) In order to prevent the respondent's cattle
from bolting as aforesaid , and to prevent other
Malicious injury to property - Pulling up post in cattle
public footpath - Tonviction for — “ Fair and woodenfrom straying, the respondent placed two
reasonable supposition of right " - Jurisdiction post (postposts in the middle of the footpath, one
of justices - Malicious Injuries to Property Act A .) being placed at the entrance to the
1861 ( 24 & 25 Vict. c. 97), 8. 52. footpath , and the other (post B .) some distance
along the footpath , to show people coming along
Theon respondent's wife was the owner of the land
each side of a public footpath and also of the the footpath that there was another post further
up the footpath at A .
land over which the footpath passed . To prevent The point where post B . was placed in the foot
his cattle straying along the footpath , the respon . path was the end of the said M . S . Luxmore' s
dont erected in the middle of the footpath two property.
wooden posts, one at the entrance to the footpath , Post B ., which was placed in the middle of the
the other some distance further down the path . footpath by the respondent, was so placed be
There was a space of about two feet on either tween two iron standards which had formerly
side of these posts through which foot passengers carried a gate which was formerly closed by the
could but cattle could not pass . The appel. respondent once a year,to show an alleged right
lants, with a number of others, inhabitants of to stop people using the footpath , and the space
the district,considering that these posts interfered between the two standards was four feet six and
with their use of the footpath , pulled up one | a half inches.
of them and threw it over the fence. They The post was four feet six inches in height
were convicted , under sect. 52 of 24 & 25 Vict. from the ground, and was about four inches
c. 97, of having committed wilful damage to the square, and was tarred when it was first placed
post : there, and the tar cameoff upon its being touched
Held (quashing the conviction ), without deciding !
deciding
the question uchether theuction
post );in without on the 10th April 1889.
the footpath was There waspost
a space of about
an obstruction or not, that, even assuming it not | side of the between it andtwothe
feet iron
on either
gate
to be an obstruction, the appellants had acted standards, through which foot passengers could
under a fair and reasonable supposition that pass, and the footpath was inclosed by the re
they had a right to do what they did , and that spondent on the north side with a barbed wire ,
they therefore rame within the proviso of the and on the south side by an oak fence.
section , and ought not to have been convicted , as On the 10th April 1889 the appellants, with
the jurisdiction of the justices was ousted . some thirty others, in the presence of the respon
(a) Reported by HENRY LEIGE, Esq., Barrister-at-Law . Ident, and against his will, palled up the post,
March 15, 1830 .] THE LAW TIMES. [Vol. LXII., N . 8.- 111
Q.B. Div .] USHER AND OTHERS (apps.) v. LUXMORE (resp.). ( Q .B , Div .
and put it over the fence on to the adjoining , yet it is certainly a public highway.” In Reg. v.
land. Mathias (2 F . & F . 570 ) Byles, J. left it to the
On the part of the appellants, it was contended jury to say whether the use of a perambulator on
that the respondent had no right to put up a post à public footway was a nuisance to the footway.
in the footpath , and that such an erection was a Where there is a publi, footway, the public have
nuisance to the personshaving theright to pass and a right to the entire space, and there can be no
repass orer the footpath ; that in pulling up the permanent obstruction . Such an obstruction is
post the appellants had acted under a fair and a nuisance at common law : (Hawkins' Pleas of
reasonable supposition that they had a right to the Crown, vol. 1, p . 701.) So in James v . Hay
do the act complained of ; and that the injury | ward (Cro . Car. 184 ) it was held that a new gate
done to the said post was not malicious and that | erected across a public highway is a common
the jurisdiction of the justices was therefore nuisance, and any of the king 's subjects passing
ousted . that way may cut it down and destroy it. That
On the part of the respondent, it was con case laid down the principle that nothing can be
tended that the right of passing along the foot placed orer or on a highway which can make it
path claimed by the appellants and admitted by less commodious to the personsusing it . The ques
the respondent had not been interfered with ,and I tion was carefully considered in 1862, in the case
that they could not therefore have reasonably of Reg. v. The United Kingdom Electric Telegraph
believed that they were justified in doing the act Company (6 L . T. Rep. N . S . 378 ; 31 L . J. 166 ,
which caused the injury. M .C .), where the same principle was followed .
The justices, being of opinion that the respon [MATHEW , J. - In that case it was found thatthere
dent was in law justified in putting up the post was an obstruction .] On the authority of these
in question ,and that the right of passing along cases, it is not enough to show that the public
the said footpath had not been in any way im | have a means of passing, but they must have the
paired by the acts of the respondent, and that the means of passing over the whole and entire of the
appellants, in removing the post, had not acted highway. Any log placed on a highway must be
under a fair and reasonable belief that they had an obstruction . The respondent here had no right
a right to do so , gave their determination against to place this obstruction in the path :
the appellants. Reg. v. Towgood, 35 J. P. 791.
The questions for the opinion of the court were, Here was a question between the persons using
whether the justices were right in their determina the path and the person putting up the alleged
tion against the appellants on the question of law obstruction , and that comes within the proviso as
raised before them , and whether they had juris
diction to hear and determine the matter, or " aHon. fair and reasonable supposition of right."
whether they acied in excess of their jurisdic heard as Bto. the Coleridge, for the respondent, was
second point, whether there was
tion. If the court should be of opinion that the “ a fair and reasonable
justices were right and had jurisdiction , then the There was no evidence ofsupposition of right."
conviction is to stand, otherwise the complaint is persons had found itmore obstruction , or that any
difficult to pass after the
to be dismissed .
Sect. 52 of 24 & 25 Vict. c. 97 (Malicious In postwas erected . Where a right which is claimed
juries to Property Act, 1861), provides : is one which cannot exist in law , that ousts the
Whosoever shall wilfully or maliciously commit any Here idea of a bona fide claim of right. [FRY, L .J.
it is not a question of a bona fide claim of
damage, injury, or spoil to or upon any real or personal right,but
property whatsoever . . . shall , on conviction thereof | whether there was a fair and reasonable
before a justice of the peace, at the discretion ofthe jus supposition of right. ]
tice be imprisoned for a term uot exceeding two months Bagshaw v. The Buxton Local Board of Health , 34
with cr without hard labour, or shall pay a finenot exceed L . T . Rep . N . S. 112 ; 1 Ch. Div . 220 ;
ing five pounds, and also a sum not exceeding five pounds Mussett v. Burch , 35 L . T . Rep . N . S. 486 ;
As a reasonable compensation for the damage so com White v. Feast, 26 L , T. Rep. N . S. 611 ; L . Rep . 7
mitted ; and the section containsthis proviso : Q . B . 353.
Provided thatnothing herein contained shall extend to
The question is whether the claim itself is a
any case where the party acted under a fair and reason
reasonable one, not whether the appellants had a
able supposition that he had a right to do the act com
plained of, & c. bona fide belief that it was reasonable. Here the
Dale Hart for the appellants. — There are two claim toput forward was that the public had a
questions in the case : First, whether the respon right go over every part of the footpath ,
including the four inches taken up by this post- a
dent was or was not justified in placing the post claim which does not exist in law , and therefore
in this public highway ; and , secondly, whether, there can be no fair or reasonable supposition of
even supposing that the respondent was so justi right in such a case. I admit that if there had
fied, the jurisdiction of the justices was or was not been an obstruction the case might have been
ousted , on the ground that the appellants, in different. The justices acted on their discretion ,
removing the post, acted inder a fair and reason and I submit the conviction was right.
able supposition that they had a right to do what
they did. As to the first point, the public foot FRY, L .J.- This conviction comes urder sect. 52
path was a public highway , as we see from the of 24 & 25 Vict. c. 97, which imposes penalties
judgment of Lord Ellenborough in Rex v. The l on any person who shall wilfully or maliciously
Inhabitants of the County of Salop (13 East, at | commit any damage to any property ; but that
p. 97), where he says, “ There is no doubt that a section is followed by a proviso which exempts
public footway or bridleway is a highway ; it is a from the operation of the section persons who
highway for foot passengers, & c.” So in Rex v. have acted under a fair and reasonable suppo
The Severn and Wye Railway Company (2 B . & sition that they had a right to do the act com .
Ald . at p.648 ) Holroyd, J. says, “ A footway can plained of. [ His Lordship then stated the facts,
be used only by foot passengers and notbyothers, I and proceeded :] Some time ago the owner
112 - Vol. LXII., N . 8.] THE LAW TIMES. (March 15, 1890 .
Q .B . Div.] Reg . v. THE JUSTICES OF Upper GOLDCROSS. [ Q .B . Div.
erected two wooden posts in the middle of the Tuesday, Dec. 10, 1889.
path , one at the point B , another further up the (Before Lord COLERIDGE, C.J. and Mathew , J.)
path at the point A ; and it was suggested that
at the point A cattle belonging to the respon Reg. v. Tue JUSTICES OF UPPER GOLDCROSS. (a )
dent were in the habit of straying down the foot- | Licensing - Mandamus - Application for transfer
path , and to preventthe cattle so straying the post of licence - Refusal of transfer to one tenant
was erected . The defendants, who are inhabi Application for transfer by subsequent tenant
tants of the district, pulled down the post at the Res judicata .
point B ; the respondent remonstrated, and they The holder of a licence for the sale of intoxicating
said the post would have to come away, and the liquors left his house during the currency of the
post was accordingly pulled away. In that state licence. Somemonths afterwards a new tenant
of things, the three defendants are brought before entered , and applied at a transfer sessions for a
the magistrates, and it was charged against them transfer of the licence. The justices refused the
that they had wilfully or maliciously damaged transfer, and suggested an application for a new
the post. Now , I shall not express any opinion licence. A new licence was subsequently applied
on the question whether this post was an obstruc for and refused . Before the expiration of the
tion of the footpath or not, but I shall, for the original licence, another tenant entered and
purposes of this case, assume that the post was applied for a transfer, but the justices refused ,
not an obstruction . Then comes the question on the ground that they had already gone fully
whether the facts before us do not show that the into the matter on the application by the previous
defendants had a fair and reasonable supposition tenant, and that the natter was res judicata .
that they had a right to do what they did . For . Field (making absolute a, rule for a mandamus),
merly the owner had a right to shut the gate that the justices were bound to hear the latter
once a year, and she does not appear to have
the ground ,that
application as they
they could not refuse to hear itofona
abandoned that right. The defendants proceeded had heard and disposed
to remove the post at the point B .,but they never similar application in the case of a previous
interfered with the post at the point A , and it is tenant.
evident that they thought that they had a right to RULE for a mandamus, calling on certain justices
remove the post, as they appeared before the of the peace for the West Riding of the county
magistrates with a great cloud of witnesses to of York , acting at a special sessions holden in
prove that there was a public footway at the pursuance of the statute 9 Geo . 4 , c. 61, for the
place in question, but these witnesses were not Jicensing division of Upper Goldcross, to show
called , as the public right of way was admitted. cause why the said justices should not proceed to
I think , under the circumstances, we are entitled hear and determine an application by one John
to assume that the defendants had a fair and
reasonable supposition that they had a right to Wilson for a transfer of a licence of the Castle
do the act they did , namely , to remove the post, Hotel, Castleford , pursuant to sect. 14 of 9 Geo . 4 ,
c. 61.
and, that being so, the case comes within the
proviso of the section , and the conviction was as The a
Castle Hotel, Castleford , had been licensed
public-house ever since 1847. The licence
wrong. had been renewed in 1888 to one John Gibson ,
MATHEW , J. - I am of the same opinion . The who left the premises on the 17th April 1889, and
jurisdiction of the magistrates is limited in cases who did not apply for a renewal at the general
ofguage
this inkindthe byproviso
the very clear and precise lan
of the statute. The first annual licensing meeting in 1889. Owing to
certain disputes between the owners as to the
inquiry of themagistrates would be as to whether
what was done was done under a fair and reason possession , a new tenant did not enter for some
three months, until one Thomas Fletcher entered
able supposition of right, and the magistrates into possession, and be (Fletcher) duly made an
cannot give themselves jurisdiction in cases of application to a transfer sessions sitting on the
this kind where what was done was done under a 31st Aug. 1889, uuder 9 Geo . 4, c. 61, s. 4 , for
fair and reasonable supposition of right. For the
reasons given by the Lord Justics, I think the alicence transfer ; but the justices, holding that the
had lapsed and become void by Gibson 's
jurisdiction of the magistrates was ousted . leaving the premises, refused to hear the appli
Attention ought to be called to the fact that the cation , and suggested that Fletcher should apply
defendants came with a body of witnesses, who for a new licence at the then next generalmeet
were not called, as the right of way was admitted . ing, on the 28th Sept. following .
It seems to me that the magistrates ought to Fletcher acted on this suggestion, and accord .
have come to the conclusion that what was done ingly applied for a new licence at this meet
was done under a fair and reasonable supposi. | ing, without prejudice to his other rights, but
tion of right, and that the conviction must be the justices refused it, chiefly, as was sup
quashed . Conviction quashed. posed , on the ground that the applicant was too
old . Thereupon John Wilson entered into pos
Solicitors for the appellants, G . Thompson and session on the 7th Oct., during the currency of
Son . Gibson 's licence, which was not to expire till the
Solicitors for the respondent, Field , Roscoe, 10th Oct. Wilson applied to the next transfer
and Co., for Ford , Harris, and Ford, Exeter. session for a transfer under sect. 14 of 9 Geo. 4 ,
c. 61. This application was the first application
for a transfer made under sect. 14 of the Act, the
previous application for a transfer made by
Fletcher baving been under sect. 4 of the Act.
The justices, considering thatthe licence had been
(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law .
March 15, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 113
Q.B. Div.] HICKMAN (app.) v . BIRCH (resp.). [ Q . B . Div.
abandoned by Gibson , and that the application by | made by the justices was on hearing Fletcher' s
Fletcher was for a transfer in respect of the same application, when they thought that Gibson's
house, came to the conclusion that they had fully licence had lapsed by his going away. The
considered , heard, and determined the matter of difference between an application for a new
the transfer in Fletcher's case ; that the matter licence and for a transfer, is that in the case of a
of the transfer was therefore res judicata , and transfer, if the application is refused , there is an
they refused to hear Wilson's application . It was appeal to the quarter sessions,
contended before the justices, on behalf of Wil Thornton v. Clegg, 60 L . T. Rep . N . S. 562 ;-59 L . J.
son,thatWilson had nothing to do with Fletcher's Rep . 6, M .C . ;
application, and that the refusal in Fletcher's whereas in the case of a new licence there is no
case ought not to preclude Wilson 's application such appeal, the justices by the course they
from being entertained ; but the justices refused have taken here have prevented the applicant,
to hear the witnesses brought forward for Wil. Wilson, from appealing to the quarter sessions,
son's application . A rule for a mandamus was because, as the application was for a transfer, he
then obtained .
The justices filed an affidavit stating that they would have had the right of appeal if they had
heard his application ; but they refused altogether
had refused to hear Wilson 's application , as the to hear his application , and he has no remedy
house had been shut up for somemonths after except by mandamus. This rule , therefore, for å
Gibson had left, and that they had fully heard mandamus ought to be made absolute.
the previous application of Fletcher, and had Atkinson replied .
refused it as the house was not needed , and they
thought that the whole matter had been gone into Lord COLERIDGE, C .J. - The justices no doubt
in Fletcher's application , and that the application here acted with the best intentions, but the result
by Wilson was an attempt to get a re -hearing of ! is not right. They refused the new licence, and
the case which had been fully heard. they cannot now say that they will hear no
C . M . Atkinson , for the justices , showed cause . other application for a transfer. What is an
- The justices have already fully heard and objection to one applicant may not be an objec
determined the whole matter. There was an tion to another applicant. The rule must be
application made by Fletcher : first, for a transfer, made absolute.
and then for a new licence in respect of this MATHEW , J. - I am of the sameopinion .
house,and the justices had fully heard all that Rule absolute.
could be said on thematter, and they came to the Solicitors for the justices, Emmet, Son , and
conclusion that no licence was required in the dis Stubbs, for Leatham , Pontefract.
trict . They had jurisdiction to refuse the licence
on that ground : Solicitors for the applicant, F . A. and A . C.
Sharpe v. Wakefield , 60 L . T . Rep. N . S. 130 ; 22 Doyle, for Binney and Son , Sheffield.
Q . B . Div . 239.
Fletcher could have appealed , but he did not do
80. Wilson did not apply until after Gibson 's Tuesday, Dec. 10, 1889.
licence had expired by effluxion of time, and if it (Before Lord COLERIDGE, C .J . and Mathew , J.)
were allowable for Wilson to apply after the
transfer was refused in Fletcher 's case, then any Hickman (app.) v. BIRCH (resp.). (a )
number of such applications might be made. | Inland Revenue - Omnibus - Proper licence for
[He was stopped.] Hackney carriage _ “ Standing or plying for
J. Paterson in support of the rule.- The jus. I hire ” - Customsand Inland Revenue Act 1888
tices have never yet heard Wilson's application An(51omnibus
8.52 Vict. c. 8), in8. 4,sub-sects.
the ordinary(1)way
(3). for the
for a transfer, and they have exercised no discre plying
tion whatever as to his application - a course of conveyance of passengers for payment along a
proceeding which they are not entitled to adopt. fixed route,carriage
comes "within the definition
The person whoheld the licence wentaway in April, • hackney in sub-sect. 3 of sect. of
4 ofa
and the licence ran on in the natural course until the Customs and Inland Revenue Act 1888 as
October. A new tenant, Fletcher, entered and being a carriage " standing or plying for hire,”
applied for a transfer, but the justices refused it, and therefore the Excise licence at 158., as for a
as they said the last tenant had gone to America “ hackney carriage,” is a sufficient licence for
and the licence had gone with him , and there was such omnibus.
no licence to renew , which was not a correct CASE stated by James Sheil, Esq., metropolitan
Fiew of the matter. The present application is
the application by Wilson , and has no reference police magistrate.
1. The respondent, John Manley Birch , was
to Fletcher 's application . [ Lord COLERIDGE,
C.J.- By sect. 40 of the Licensing Act of 1872, in summoned to answer an information exhibited ,
the case of a transfer, the tranferor of the licence by order of the Commissioners of Inland Revenue,
is to give a notice before he can transfer. The by the appellant, George Hickman, an officer of
Inland Revenue, which charged the
justices may have had that section before them , respondent
and may have thought that as Gibson was the with keeping , on the 3rd July 1889, a carriage,
transferor, and as he was not present, there was such carriage having four wheels and being
nothing to transfer.] It is not necessary for the adapted and fitted to be drawn by two or more
transferor to apply at all for the transfer ; a horses or mules, and not being a hackney car
“ transfer ” is defined in sect. 74 of the Act of riage within the meaning of the Customs and
1872 to be a transfer made under the 9 Geo . 4 , Inland Revenue Act 1888 , without having a
C. 61, and the present application is for a transfer proper licence in that behalf, contrary to the
under sect. 14 of that Act. The first mistake (a) Reported by HENRY LEIGH, Esq., Barrister-at-Law .
Q . B. Div .] Reg . v. THE JUSTICES OF BROMLEY. [ Q.B . Div.
form of the statutes 32 & 33 Vict . c. 14, s. 27, and Sir E . Clarke, S.-G . (Sir R . E . Webster, A .-G .
51 & 52 Vict. c . 8 , s. 4 . with him ) for the appellant.-- Here is a vehicle
2. The learned magistrate, after hearing the travelling on a fixed route for a particular
case, dismissed the information , and ordered the journey, and there is no time at which a pas,
appellant to pay to the respondent the sum of senger can be said to hire the omnibus. (Lord
11. 1s. for costs. COLERIDGE, C .J . - Could you not hire the whole
3. By sub-sect. (1) of sect. 4 ofthe Customs and of the omnibus, and pay thewhole fare in respect
Inland Revenue Act 1888 the present duties in thereof ? ] In respect of an omnibus there can
respect to carriages are imposed as follows : be no hire as there can be no hirer, and conse
For every carriage as hereinafter defined £ 8. d . quently an omnibus cannot be said to be a
If such carriage shall have four or more carriage “ standing or plying for hire." There
wheels, and shall be drawn,or be adapted or is an old case in 1824 - the case of Cloud v .Turfery
fitted to be drawn, by two or more horses or (2 Bingh. 318 , 3 L . J. Rep . 0 . S . 16 , C . P .) — which
mules, or shall be drawn or propelled by
mechanical power ... ... ..... ... ... ... 22 22 0 1 has somebearing on the question , but there is no
... ...
If such carriage shall have four or more case exactly in point.
wheels, and shall be drawn or adapted or Channell, Q .C . and Courthope Munroe, for the
fitted to be drawn by one horse ormale only 1 1 0 respondent, were not called upon .
If such carriage shall have less than four
wheels ... .... .... .... ... . 015 0 Lord COLERIDGE , C .J. - There is no doubt in
Fordefined
every...hackn ey carriage as hereinafter this case. It seems clear that an omnibus both
... ... ... ... ... ... ... ... 0 15 0 stands and plies for hire, and therefore the
4 . By sub -sect. (3 ) of sect.4 of the last-mentioned learned magistrate was quite right in his deci.
Act, after giving the definition of a “ carriage,” sion . The attempt to make out that an omnibus
a “ hackney carriage ” is defined to mean “ any is not a “ hackney carriage " I think fails. The
carriage standing or plying for hire." information was, in my opinion, rightly dismissed,
5. By sect. 27 of the Act 32 & 33 Vict. c. 14, a and our judgment ought to be that this appeal
penalty of 201. is imposed in respect of the should also be dismissed with costs.
keeping a carriage without a proper licence. MATHEW , J. - I am of the same opinion. If the
6 . At the hearing of the information the fol- | Legislature had intended to tax omnibuses
lowing facts were admitted by the respon otherwise than as “ hackney carriages," they
dent : (a ) That the respondent was, on the would have said so in distinct terms, and the
3rd July 1889, a person keeping a vehicle having word “ omnibus ” would have been used in the
four wheels, and adapted and fitted to be drawn Act.
by two horses, and that the said vehicle was on Appealdismissed with costs.
that day in use and drawn by two horses. Solicitor for the appellant, The Solicitor of
(6 ) That the said vehicle was an omnibus plying Inland Revenue.
in the ordinary way for the conveyance of pas. Solicitors for the respondent, Close and Co.
sengers, on the route between the railway stations
at King's Cross and Victoria , and was licensed
as a public stage carriage, under the Metropolitan Wednesday, Dec. 11, 1889.
Public Carriage Act 1869. (c) That each pas.
senger conveyed in the said carriage was charged (Before Lord COLERIDGE, C .J. and MATHEW , J.)
a separate and distinct fare for his seat therein , Reg . v. THE JUSTICES OF BROYLEY. (a )
which fare varied according to where the pas. Weights and measures — Post- office --- Postmaster
senger was taken up. (d) That on the 3rd July carrying on other trade requiring weights and
1889, the respondent had not in force any Excise scales - Post-office scale unjust- Rightof inspector
licence at the 21. 28. rate authorising him to keep to seize- Jurisdiction of justices — Weights and
a carriage, but had in force an Excise licence Measures Act 1878 (41* $ 42 Vict. c. 49 ),
authorising him to keep a hackney carriage. 88. 25, 59.
(e) That the respondent had been requested to
obtain a licence at 21. 23. in respect of the said A postmaster, who also carried on the business of a
carriage, and had refused to do so. bakery, was summoned, under sect. 25 of the
7. It was contended , on behalf of the appellant, Weights and Measures Act 1878, for having in
that the respondent required a licence for the his possession for use for trade an unjust scale ;
said carriage at the 21. 28. rate, and that the this scale was supplied by , and was the property
expression " standing or plying for hire ” was of, the Postmaster-General, and was on the same
only applicable to a carriage which stood or plied counter as that on which the bread was sold .
as an ordinary cab for hire by a person who was There were in the shop no weights or scales
the hirer of the vehicle, and who, during the suitable for the weighing of bread except the
hiring, had the control thereof, and had no refer Post-office weights and scales, though by statute
veyence to an omnibus, which plied for the con it was necessary to sell the bread by weight, and
ance of passengers at separate fareson a fixed route. to have weights for that purpose. There was no
8 . The respondent contended that the said suggestion thatthe postmaster knew that the scale
expression included an omnibus plying as afore was unjust, or that he had used it for the pur
said . poses of his trade.
9. The learned magistrate dismissed the infor. Held (making absolute a rule for a prohibition )
mation , being of opinion that the respondent's that Post-officeweights and measures, supplied by
the Post-office for post-office purposes,
contention was good in law . are not
10. The question for the opinion of the court is within the operation of the Weights and Measures
whether the definition of a " hackney carriage ” Act 1878 , and that consequently the justices had
in sect. 4 , sub-sect. (3),of the Act of 1888 includes no jurisdiction to enter on the inquiry .
the respondent's omnibus. (a) Reported by HENRY LEIGH, Esq., Barrister-at-Law .
Q.B . Div .] Reg . v. THE JUSTICES OF BROMLEY. (Q .B . Div.
RULE nisi, calling on the justices of Bromley and i Sect. 59 provides :
the inspector of weights and measures for the Where any weight,measure, scale,balance, steelyard ,
district of Bromley, to show cause why a writ of or weighing machine is found in the possession of any
prohibition should not issue, to prohibit the person carrying on trade within themeaning of this Act,
jastices from hearing and determining an infor. or on the premises of any person which . . . are
used for trade within the meaning of this Act, such
mation against Alfred Nicholls charging him , person shall be deemed for the purposes of this Act,
under sect. 25 of the Weights and Measures Act until the contrary is proved , to have such weight, & c .,
1878, with having a false and unjust scale for use in his possession for use for trade.
in his trade. Poland , Q .C . and R . S . Wright, for the County
Mr. Nicholls was the master of the post-office Council of Kent, showed cause. - This court will
at Down, Beckenham , Kent, and he also carried not grant a prohibition when the subject-matter
on, in the same shop as the post-office, the busi- | is within the jurisdiction of the justices. [ The
ness of a bakery , and by the Act, 6 & 7 Will. 4, Attorney -General. - I admit that the prohibition
C. 37 , he was bound to sell his bread by weight, ought not to go , if on the affidavits it was found
and by sect. 6 of that Act he was also bound to that these scales were used in the way of busi
hare in his shop proper scales and weights for ness ; here they were found to be Post-office
the weighing of the bread , under a penalty not weights and scales. MATHEW , J.-- The Act con
exceeding five pounds. As postmaster he had in templates the confiscation of the scales which are
his possession scales and weights supplied by the the property of the man who uses them ; here
Postmaster General, which were used for the you admit that they cannot be confiscated.]
weighing of parcels for the parcels post. These | Whether these scales were used for the purposes
Post-office weights and scales were subject to of the trade or not, is a question of fact to be
Gorernment inspection , and they had been so dealt with by the justices. [Lord COLERIDGE,
inspected and checked by the Post-office surveyor C . J. - Is the Crown to have its own property
of the district. An inspector of weights and taken away by its own magistrates ? ] The autho.
measures for the district went into Mr. Nicholls' | rities are clear that prohibition will not go if the
shop , and inspected the weights and scales used matter to be inquired into is within the jurisdic
by Mr. Nicholls in the way of his business, and tion of the justices. Here they have jurisdiction
found them to be correct. These were small over the subject-matter ; that is to say, they have
weights and scales used for weighing small things, jurisdiction to inquire whether this man used
but not suitable for weighing bread , and they these Post-office weights or scales in the course
were Mr. Nicholls' own property . Except these of his trade. This offence is laid under sect. 25
small weights and scales, the inspector saw no of the Act, and it is one which the justices have
other weights or scales which would have been jurisdiction to hear and determine, and there
suitable for weighing bread except the Post-office fore it is a case in which there ought not to be a
weights and scales,which were lying on the same prohibition . Though the justices may have no
counter as that on which the bread was sold . power to order the scales to be forfeited , that is
The inspector was informed that these were Post no reason for the prohibition, if they have juris
office weights and scales, and that they were diction to enter on the inquiry. It is not con
never used for the purposes of the trade, but he tended by the County Council that they have a
proceeded to test them , and he found the scales right to seize the Post-office weights or scales ;
to be incorrect and false by about a quarter of but if such weights or scales are used in a person 's
an ounce, and he seized and removed the scales. business in his shop , the justices have jurisdic
A summons was then taken out, under the tion to inquire into the matter. [Lord COLE
above section , against Mr. Nicholls for having in RIDGE, C .J. - According to your view sect. 59
his possession scales and weights " false " within puts on every postmaster in the kingdom the
the statute. The summons had been issued by onus of showing that he was not using Post-office
the justices, but the hearing was adjourned , and weights for the purposes of his business.] Not
Mr. Nicholls and his wife made affidavits to the necessarily . On the question of prohibition
effect that the weights and scales in question sect. 59 is not material ; sect. 25 is the important
were never used by them for the purposes of section ,and the sole question is under that section .
their business, but were only used by them for There is a question here, and the County Council
Post-office business in the weighing of parcels. have a right to go before the justices and have
The scale so seized was supplied by the Post that question inquired into. If the justices go
office,and was the property of the Crown, and wrong, they can be set right by prohibition,
certiorari, or mandamus, and there is no instance
there was no suggestion that Mr. Nicholls knew
that it was unjust, or that he had used it in his of a case of this kind being determined on pro
business . hibition :
A rule for a prohibition was obtained to pro. Reg.v.Herford, 2 L . T. Rep. N . S. 459 ; 29 L . J. 249,
hibit the justices from proceeding with the infor Q. B.
mation , on the ground that the weights and A prohibition does not lie where the matter is
scales supplied by the Postmaster -General were within the jurisdiction of the court :
the property of the Crown, and did not come Re Appledore Tithe Commutation , 8 Q . B. 139.
within the statute . The Attorney -General and Casserley, for the
Sect. 25 of the Weights and Measures Act
1878 provides :
Crown in support of the rule . - Post-office weights
are not within the Act at all. On the face of the
Every person who uses, or has in his possession for affidavits, it appears that the inspector went into
use for trade , any weight, measure, scale, balance, this post-office and seized these weights. He
steelvard . or weighing machine which is false an
unjust, adopted the wrong remedy, as, under 6 & 7
pounds .shall. .be and
liable to a fine& c.,not
theweight, exceeding
shallbe liable tofive
be 1 Will. 4 , c. 37, the postmaster could have been
forfeited . summoned and would have been liable to a
116 - Vol. LXII., X. 8.] THE LAW TIMES. [March 15 , 1890 .
Q .B. Div .] REG . v. THE JUSTICES OF BROMLEY. [ Q.B . Div .
penalty for not having proper weights on his , department- in this case by the Post-office - seen
counter forweighing bread . There was no evidence and certified and kept correct from time
that the Post-office weights or scales were used to time by Government inspection , should be
by the postmaster for his business ; on the con within the contemplation of the Act,and should
trary, on the three occasions on which the be within the jurisdiction of the inspector of
inspector visited the shop he was distinctly told weights and measures, either created under or
that these weights were never used for the pur recognised under the Act. I am clearly of opinion
poses of the trade. This Act was not intended to that it was not so intended . The consequences
and does not apply to any weights or scales of holding the contrary have been very forcibly
belonging to the Postmaster-General. The section | pointed outin the arguments. It is to be observed
says that they must be in the possession of the thatthis is an information under sect. 25 for having
person for the use of trade, which was not the in his possession unjust scales. In the other
case here, and that shows that the section only section (sect. 59), if a person has in his possession
applies to weights and scales which can be for. false and unjust scales he shall be deemed to have
feited ,as we see by the words " and may seize and them for the purpose of trade until the contrary is
retain the same." It would require express prored . It is enough to say that in this case the
words in a statute to enable an inspector to seize defendant is not charged with any fraudulent
Crown property . It ought to be added that in our use of the scales ; such , as has been suggested ,
affidavits we have negatived any idea of an might by possibility , if that were the case , be a
improper use of the scales . matter for the justices to inquire into , although
Lord COLERIDGE, C .J. - I am ofopinion that this I do not think it would be. That question , how
prohibition must go. I entirely admit that, ever, is not before us. The question is,whether
although magistrates cannot give themselves they have jurisdiction to enter upon this inquiry,
jurisdiction by finding a fact wrongly, yet, never whether, when a postmaster has weights and
theless, if the subject-matter is one upon which scales supplied to him by the Post-office for Post
they have jurisdiction , there is nothing to pre office purposes, the having them in his possession
vent their entering upon it, and they may, can by possibility give jurisdiction to the justices
as it seems, by a finding contrary to the fact, i to inquire into the falsity or otherwise of such
thereby proceed to hear the case. That is inhe- scales so in his possession , and so supplied to
rent in the law , though I do not pretend to him by the Post-office. I think clearly not. I
understand it. I know perfectly well that, if think it never could have been intended for an
there is jurisdiction to enter upon the inquiry , instant, with regard to Government officials ,
it is not because they may decide wrongly that having and being obliged to have in their pos.
they are to be prohibited from entering upon it. session weights and scales supplied by the
The principle is too well established and too Government for public purposes in thematter of
firmly rooted in the jurisprudence of the courts revenue, that the magistrates should enter into
for anybody now to attempt to shake it . But it an inquiry as to that possession so undoubtedly
is, and must be, necessarily a condition precedent legal and so necessary for the conduct of the
to the entering upon the inquiry, that the inquiry business of a public department, or that the
itself is within the scope of the magistrates' having such articles in his possession should be
jurisdiction , and, if it is not within their juris made the subject-matter of inquiry by two jus
diction , then the prohibition will go. Now , in tices in petty sessions on the complaint of an
this case an information was laid before the inspector of weights and measures. Such a
magistrates, under the Weights and Measures proceeding is not within the meaning of the Act.
Act 1878 , and the only material sections to con The postmaster has, and can have, these things
sider in this Act are the 25th and the 59th . I in his posseseion only from the Post-office , and it
need not read the sections again ; it is enough to is admitted that they were supplied by Govern .
say that this Act is directed broadly against the ment authority . This seems to me to be an
use of unjust weights and measures, and that attempt on the part of the inspector to assert a
with regard to the use of unjust weights and jurisdiction for which there is no pretence, and
measures very strong and very sweeping which might be used oppressively . Because, as
terms are employed . " Every person who was pointed out in the argument, in answer to a
uses or has in his possession scales and question by my learned brother , in an information
weights which are unjust ” - that is the 25th of this kind, in which , if it is within the Act, the
section — that is to be followed by certain penal. presumption is that these weights and scales are
ties. Under the 59th section , “ where any weight, used for the purposes of his business, it is sup
measure,” and so forth , “ is found in the posses posed to be the law and indeed must be - it is the
sion of any person carrying on trade," then presumption that a postmaster has Post-office
certain results follow . As I pointed out during weights and scales for the purposes of his trade
the argument, so I say now in the judgment, one until he proves the contrary , and it is admitted
cannotlook at the 25th section without looking at that he cannot be examined . To refuse this pro
the 59th . They are both directed to the same hibition would be to bring within the jurisdiction
point, they are both portions of a code- a very of the magistrates a subject -matter which was
proper code - upon the subject, and the 25th never intended , and would be extremely incon
section cannot be taken and dealt with by itself, venient to be brought before them , and which , if
but for the purpose of seeing what is within the it could have been so brought, would undoubt
whole Act both sectionsmust equally be looked at. edly render a change of the law in that respect
This being the general purpose of the Act, and necessary.
the stringent provisions of the Act being what I Mathew, J.- I am of the same opinion . It
have pointed out, then comes the question seems to me clear and manifest that Parlia
whether it was ever intended by Parliament that ment never intended to treat the weights and
weights and scales supplied by any Government ! measures supplied by a public department as
March 15, 1890 .) THE LAW TIMES . [ Vol. LXII., N . 8 .- 117
Q .B . Div . ] REG . v . THE VICE -REGISTRAR OF THE OFFICE OF LAND REGISTRY. ( Q . B . Div .
within the operation of this Act. It is a highly I discharging the rule, that such charges, arising
penal statute It substitutes, in the modern under the Public Health Act 1875 , were not
fashion , presumption for eridence. The charge “ land charges ” within the scope or meaning
in this particular case is the charge of possession. of the Land Charges Registration and Searches
I am not at all pressed with the consideration Act 1888,and were not intended or required to
that the conclusion that Gorernment weights be registered under it.
were not contemplated will create a difficulty Rule for a mandamus on behalf of the corporation
in the prosecution of a postmaster for the of Nottingham , directing
use of those weights, because, when no other the Office of Land Registry tothe vice-registrar
register of
two charges
weights are used , there are othermeans by which upon lands in theborough of Nottingham , arising
the public can be adequately protected . We under sect. 257 of the Public Health Act 1875
must see what would be the necessary conse (38 & 39 Vict. c. 55).
quences of holding that such weights as these The corporation of Nottingham , as the sanitary
come within the purview of the Act. The authority , had carried out certain channelling,
first consequence would be, that the per paving, and drainage works in respect of certain
fectly innocent use of the weights would be premises in the borough of Nottingham , some
criminal ; the second consequence would be, that before the passing of the Land Charges Regis
the weights might be removed from the post tration and Searches Act 1888 , and someafter
office, and the business of the post-office be wards. These expenses were, by virtue of
stopped ; and the third consequence would be , sect. 257 of the Public Health Act 1875 , re
that justices would have the power to confiscate coverable from the owners of the premises in
the property of the Crown. Mr. Poland is com | respect of which the expenses were incurred , and
pelled to say, it would be preposterous to ask the by virtue of the same section they were, until
justices to do anything of the sort. We have to recovered , a charge upon the premises.
see what weights and measures are intended to It was sought to have two such charges regis
be dealt with , and, if that power is conferred tered under the 10th section of the Land Charges
opon the justices, it is an indication that other Registration and Searches Act 1888, the first
weights and measures than these are those with (dated the 31st July 1888 , before the passing of
which the Act was dealing . For these reasons, the Act) as " a charge upon lands in the parish of
and the reasons given by my Lord , I think the Swinton , in the borough of Nottingham , namely ,
prohibition should go . T'he postmaster would numbers 10, 12, and 14, Blake-street, Nottingham ,
have no right, as it appears to me, to interfere | by virtue of the Public Health Act 1875 , s. 257,
with the weights and measures supplied by the amount of the charge 61. 168. 4d ., together with
Post-office, or to correct any error in them . interest thereon at the rate of 5 per cent., due
Rule absolute for prohibition ,with costs. to the mayor, aldermen, and burgesses of the
Solicitor for the Postmaster · General, The borough of Nottingham ; " and the second (dated
the 20th Feb . 1889, after the passing of the Act)
Solicitor to the Post Office.
Solicitors for the County Council of Kent, on
Latter and Willett, Bromley.
“ lands in the parish of Lenton , in the borough
of Nottingham , namely, numbers 12 and 14 ,
Montpelier-road , Notingham .”
On these charges being tendered for regis
tration , the vice-registrar of the Office of Land
Tuesday, Dec. 10 , 1889. Registry considered the question , whether they
came within the scope of the Act, to be so doubt
(Before Lord COLERIDGE, C .J. and Mathew , J.) ful that he refused to make the registration , so
Reg . v. THE VICE -REGISTRAR OF THE OFFICE OF | that the matter might be dealt with by man
LAND REGISTRY. (a ) damus and the point be settled .
Land charges - Expenses incurred by sanitary A rule for a mandamus was accordingly ob
authority - Registration of such expenses as “ lană tained by R . S. Wright at the instance of the
charges "i - Public Health Act 1875 (38 | 39 | town clerk of Nottingham .
Vict. c. 55), s. 257 — Land Charges Registration By sect. 4 of the Land Charges Registration
and Searches Act 1888 (518 52 Vict. c. 55), and Searches Act 1888 ,
88. 4 , 10 — Mandamus to compel registration of “ Land charge ” means a rent or annuity or principal
such charges - Resultof rule for. moneys payable by instalments or otherwise, with or
interest charged , otherwise than by deed , upon
The corporotion of N ., as the sanitary authority, without
had carried out certain paving and draining land, under the provisions of any Act of Parliament, for
securing to any person either the moneys spent by him
works in respect of pertain premises, and the or the such
costs, charges, and expenses incurred by him
expenses so incurred became, by virtue of sect.257 under Act, or the moneys advanced by him for re
of the Public Health Act 1875 , charges on the paying the moneys spent, or the costs, charges, and
premises , one of such charges arising before and expenses incurred by another person under the authority
one after the passing of the Land Charges Regis ofsectionan Act of Parliament, and a charge under the 35th
ofthe Land Drainage Act 1861, or under the 29th
tration and Searches Act 1888. On the charges section
being tendered for registration under sect. 10 of butdoesnot of theinclude
Agricultural
a rate orHoldings
scot. (England) Act 1883,
the last-mentioned Act, as being “ land charges ”
within the meaning of that Act, the vice -registrar | charges)
Sect. 10 (dealing with registration of land
enacts :
of the Office of Land Registry , doubting whether A register,
they came within the scope of the Act, refused to charges, shall inbe this
keptAct calledOffice
at the theof register of land,
Land Registry
register them , and on a rule for a mandamus to and land charges may be registered therein in the pre
Heldcompel
, by himLordto register
Coleridge,themC.J.it was
and Mathew , J., | scribed manner : (1) In the case of freehold land, in the
nameof the person beneficially entitled to the first estate
of freehold at the timeofthe creation ofthe land charge ;
(a) Reported by HENRY LEIGE, Esq., Barrister-at-Law. | (2) in the case of copyhold land, in the name of the
118 _ Vol. LXII., N . S.] THE LAW TIMES . (March 15, 1890.
Q . B . Div. ] Reg . v . THE VICE -REGISTRAR OF THE OFFICE OF LAND REGISTRY. ( Q . B . Div .
nature
tenant on the court-rolls at thetimeof thecreation of the the charges onRegistration
the property coming under
land charge. Provided that where the person by or on Landof Charges Act . In sect. 214
behalf of whom the application was made pursuant to
which the land charge was created was beneficially are provisions as to recovery by the occupier ; in
entitled to a lease for lives or a life at a rent or to a sect. 215 for redemption of private improvement
term ofyears, the land charge shall be registered also in rates ; and in sects. 233 and 234, which are
the nameofthat person . important, borrowing powers are given to a local
The Attorney-General (Sir R . E .Webster, Q .C .) authority. Then, by sect. 257,under which these
(with him R . Griffin ) showed cause. - The object charges arise, instead of the expenses incurred
of this rule is to determine a very important being treated as a private improvement rate,
matter of practice under the Land Charges they cannumber be treated as a special payment spread
Registration Act 1888. That Act was passed in over aof years. Although this payment
order to put upon certain land registries any is intended to be a charge in the sense that the
charges that were a charge upon the property owner or occupier is liable to repay it , it is not a
under, undoubtedly, in the first instance, certain charge contemplated by the Act of 1888 . In
private Improvement Acts, Acts whereby the cases where charges, such as "rentcharges,” are
landlord could make advances, or the owner of intended to be created and registered under
property could obtain money from certain drain the Act of 1875 , proper provisions are con
age commissioners ; and there are other Acts tained in sects. 240 and 241 for the same
under which the owner of property could agree to being evidenced and registered . It would be
repay an advance by annual instalments and difficult to apply the rules as to registration
make the amount a charge upon the land. But framed under the Act to such charges as these,
these particular charges, under the Public repayable by private improvement rate or
Health Act 1875 , do not seem to have been con by instalments. No doubt the money expended
templated by the Act of 1888, and the registrar becomes a charge upon the property, as it can be
refused to make the registration . The short recovered by instalments from the owner or
pointtherefore is, whether they are charges which occupier ; yet it is not la ' charge which is the
are intended and which require to be registered subject of registration , or which could according
under the Act of 1888 . It is contended , on the to the forms be registered , nor was the Act
part of the vice-registrar, that they are not intended to deal with charges coming upon the
charges contemplated by the Act , and that the land against the will of the owner. This rule
only charges which can be registered under it should be discharged on the ground that there is
are charges created at the instance of the owner no machinery applicable to the case, and that the
of property upon his applying to expend money charges in question are not contemplated by the
upon the property . By sect. 4 of the Act of Act.
1888 " land " and " land charges ” are defined . It R . S . Wright for the corporation . Though I
may be that, taking the general words of this appear in support of this rule, I am somewhat
definition of a “ land charge," the words are embarrassed , because I adopt the arguments of
large enough to include the charges here sought the Attorney -General,and am desirous that the
to be registered - viz., charges under the Public mandamus I applied for should be refused. This
Health Act ; but the difficulty arises on the later rule was obtained , because it was pointed out that
sections of the Act of 1888. Sect. 10 , providing mandamus was the only way in which the ques
for the registration of “ land charges," contem tion could be raised and determined . The case is
plates charges which have been created on the one of extreme importance to all the sanitary
application of some person , but the charges authorities in the country, because, if they ought
arising under the Public Health Act are not to register, and do not do so , all these charges
charges created on the application of any will be evaded as against purchasers for value.
person , but such as arise from default , as, If, on the other hand, they register in order to be
for instance, when an owner, called upon by on the safe side, the consequences will be serious.
the local authority to make certain improve For instance, in the corporation of Nottingham ,
ments opposite his land , has not done so , for whom I appear, thereare above eleven hundred
then the localauthority has power to make the ofthese charges outstanding,many ofthem for very
improvements and to recover the sum expended small sums, and the cost of registering them
either by instalments, or by a private improve would be enormous, and this would take place all
ment rate, and the expenses are made a charge over the country . The first difficulty in registering
under the section . The language of sects. 11 and these charges is, that the owner, as defined in the
12 also shows that these are not charges which Land Charges Registration Act, is a different
can be registered. It is not likely ,when a public person from the owner under the Public Health
authority , in carrying out a public duty, spends Act. This Act is merely the sequel and supple
money recoverable in one of two ways, that that ment of about a hundred different Acts, which
would result in a void transaction unless the may be described as Improvement Acts. Under
charge were registered as provided by sect. 12. these Acts a limited owner, desiring during his
The same consideration applies to sect. 13 ; and tenancy to benefit the estate to a larger extent
it seems doubtful whether there conld be an than corresponds with his own life interest, gets
assignment inter vivos of such charges as these. the money from some public body, and a charge
Again , in order to see whether these are land is created upon the land. We suggest, first, that
charges within the Act of 1888, certain sections the intention of the Act is to create a charge upon
of the Public Health Act 1875 must be con the land in respect of the persons interested ; and ,
sidered. Sect. 213 of that Act gives power to secondly, that the language is not “ charges by
levy on the occupier of the premises a private virtue of the Act of Parliament,” but “ charges
improvement rate ; the word “ charge ” in that under the provisions of the Act of Parliament,"
section being used for something which the owner | which must mean instruments other than deeds
is liable to pay, but not for anything in the • which create a charge upon land . No doubt
March 15, 1890 .) THE LAW TIMES . ( Vol. LXII., N . S. - 119
Q.B. Div .] Lang v . THE WHITECROSS COMPANY LIMITED. [ Q .B . Div .
sect. 4 is sufficient to cover these charges, but it I reject the last clause of the section , which
is clear that it was not so intended , because the describes a “ land charge," and which says it
machinery is wholly inapplicable. Sect. 10 refers does not include a “ scot or rate.” I think that
to an “ application ” to be made. Now, under the the intention not to apply it to such charges as
Public Health Act there is no “ application ” at these is clearly indicated by the use of that pro
all. I have looked into abore hirty of these viso, and that this rule must be discharged.
Acts, and all but one contain " applications;" but
there is no " application ” of any kind under the Ruledischarged.
Public Health Act, but only default. Solicitor for the vice-registrar, The Solicitor to
Lord COLERIDGE, C . J.- Mr. Wright having, on the Treasury .
bebalf of the corporation of Nottingham ,obtained Solicitors for the Corporation of Nottingham ,
this rule for a mandamus, has delivered an argu Sharp, Parker, Pritchards, and Sharpe, for The
ment which appears conclusive against it, whilst Town Clerk of Nottingham .
the Attorney -General, though in form opposing
the mandamus, has given us some reasons why it
should go. In this curious state of the argu
ments and contentions on either side, we have Thursday, Oct. 31, 1889.
come to the conclusion that this rule should be
discharged . It seems to me that, under the Land (Before HUDDLESTON, B. and STEPHEN, J.)
Charges Registration and Searches Act 1888 Lang v. The Whitecross COMPANY LIMITED. (a )
(51 & 52 Vict. c. 51), the definition of " land Patent- Action for infringement- Application for
charge ” in the 4th section is certainly wide liberty to apply to amend specification - -Terms
enough, by some little straining, to include these of order - Discretion - Patents , Designs, and
charges,and to bring them therefore within the Trade Marks Act 1883 (46 & 47 Vict. c. 57),
scope of the Act. The interpretation clause 88. 19 & 20 .
(sect. 4) might possibly be so construed ; but The owners of a patent brought an action for
when we come to look at the subsequent sections infringement against the defendants . After
relating to the kind of “ land charges ” that delivery of the defence the plaintiffs sought for
are to be registered , and excluding of course all leave to apply at the PatentOffice to amend their
which they do not include, it seems to me clear specification by way of disclaimer under sect. 19
that such charges as those in the present case are of the Patents, Designs, and Trade Marks Act
not to be registered . They are in a certain 1883. The judge at chambers gave leave to
sense, no doubt, charges upon the land, in the apply and to put the amended specification in
same sense as rates and other imposts of that evidence on condition that no damages be
kind are , but they do not appear to me to be recovered , or claim for injunction founded on
such charges as are contemplated by the Act, anything done before disclaimer, the costs of the
and this the more so from the words of the pro action up to the time (if disclaimer used ) to be
viso in sect. 10, to which Mr. Wright's atten defendant's costs in the cause ; the costs of the
tion was directed , “ provided that where the application and the costs caused in the action
person by or on behalf of whom the application by the disclaimer to be defendant's in any event,
was made pursuant to which the land charge proceedings to be stayed pending the disclaimer.
was created was " in a certain position , then in On appeal from this order to this court :
such a case registration is enacted by the proviso . Held , that under sect. 19 of the Patents, Designs,
But the words , ™ provided that where the person and Trade Marks Act, the judge had the widest
by or on behalf of whom the application was possible discretion as to the termson which leave
made pursuant to which the land charge . was to apply for amendment should be granted , and
created , & c ." would certainly to any person of that that discretion should not be interfered with
ordinary intelligence imply , as Mr. Wright cor unless ithad been exercised on absolutely wrong
rectly observed , that no land charge was within grounds, and that in the present case it seemed to
Sect. 10 (which is the section that requires regis have been exercised properly.
tration) except a land charge that had to be This was an appeal from an order made by
created in pursuance of an application , and these Wills,
are clearly notbesuch charges. Although, there action J.forininfringement
chambers. The action , which was an
of a patent, was brought
fore, it may that the first impression one
would derive from the wide words of the 4th | by the plaintiffs as patentees of a patent “ for
section would be that these charges might be againstimprovements in the construction of wire ropes "
within it, yet when the 10th section is looked at, the defendants in Sept. 1888 . In July
to which after all the 4th section applies, and 1889, after the delivery of the defence and parti
which is itself to be applied to the 4th section , culars of objection , the plaintiffs took out a sum
and when I come to expound what is meant by mons for liberty to apply at the Patent Office
the expression “ land charge," and see that the to amend their specification by way of dis
" land charges ” which are to be registered under claimer. This application was made under
sect. 10 are of a totally different kind from those sect. 19 of the Patents, Designs, and Trade
in this case, the conclusion at which I arrive is Marks Act 1883, which provides that in an action
that these charges are not within the scope or for infringement of a patent, and in a proceeding
meaning of the Act of Parliament, and are not for revocation of a patent, the court or a judge
may at any timeorder that the patentee shall, sub
intended or required to be registered under it.
ject to such terms as to costs or otherwise as the
For these reasons, therefore, I am of opinion court
that this rule for a mandamus should be dis apply at or a judge may impose, be at liberty to
charged. the Patents Office for leave to amend his
MATHEW , J. - I am of the same opinion . In specification by way of disclaimer,and may direct
interpreting the Act I do not think we ought to 1 (a) Reported by R. M .MINTON-SENHOUSE, Esq., Barrister-at-Law
120 _ Vol. LXII., N . S.] THE LAW TIMES. [March 15 , 1890 .
Q .B. Div.] LANG v. THE WHITECROSS COMPANY LIMITED. ( Q .B . Dir .
that in the meantime the trial on hearing of the | Doulton (4 Rep. Pat. Cas. 377) the remarks of
cation shall be postponed . Day, J. support my contention that a patentee
The application was referred by the master to ought to be allowed to get an injunction , other
the judge at chambers, who made an order that wise the section has no object ; and the Court of
plaintiffs should be at liberty to apply to dis Appeal in that case in no way dissents from his
claim ; that the amended specification , if allowed , | view . He also referred to
might be given in evidence, on condition that no Singer v . Stassen , 1 Rep . Pat. Cas. 121 ;
damages should be recovered or claim for injunc Vesta Company v. Bryant and May, 56 L . T. Rep .
tion founded on anything done before disclaimer ; N . S. 116 ; 34 Ch. Div. 458 ; 4 Rep . Pat. Cas. 71 ;
Bray v . Gardner, 56 L . T. Rep. N . S. 292 ; 34 Ch .
that the costs of the action up to date (if the dis Div . 668 ;
claimer used ) should be defendant's costs in the Goulard v. Lindsay, 59 L. T. Rep. N . S.44 ; 38 Ch .
Div . 38.
cause, and that the costs of and occasioned by the
application and in the action by disclaimer be Macrory, for the defendants ,was not called on .
defendant's in any event; that the trial and all
proceedings in the action be stayed until dis HUDDLESTON, B .- This is an appeal from an
claimer or until disclaimer abandoned , plaintiffs order made by Wills, J. at chambers in a patent
undertaking to proceed with diligence. action, in which he decided that the amended
The plaintiffs appealed to this court that the specification might be given in evidence upon
certain conditions, viz., that no damages should
above order might be reversed or varied . be recovered or claim for injunction founded on
A . J. Walter (W . R . Bousfield with him ) for anything done before the disclaimer, and that the
the plaintiffs. - We appeal from that part of the costs of the action up to the disclaimer should
order which commences at the words " on con be the defendant's costs in the action. It is said
dition .” The amendmentwe seek is not in the that my learned brother had no authority to make
nature of a disclaimer of a specific claim , but in this order, and that the only authority he had
the nature of an explanation of an ambiguity was conferred by sects. 19 & 20 of the Patents ,
which arises from our specification . Sect. 20 of Designs, and Trade Marks Act 1883. Now ,when
the Patent Act 1883 must be read in connection we cometo look at the words of the Act, it is to
with sect. 19 . Sect. 20 provides that where an me quite clear what the intention of the Legisla
amendment by way of disclaimer, correction , or ture was. Prior to the passing of this Act, where
explanation has been allowed under this Act, no . a patentee desired to amend his specification he
damages shall be given in any action in respect could not do so . Then sect. 18 of this statute
of the use of the invention before the disclaimer, lays down certain rules on which the specification
correction , or explanation , unless the patentee may be amended ; and sect. 19 provides that the
establishes to the satisfaction of the court that court or judge may (subject to such termsas to
his original claim was framed in good faith , and costs or otherwise as he may impose) give leave
with reasonable skill and knowledge. “ The to apply for leave to amend the specification . I
court ” in this section referred to is the court cannot imaginewords giving larger power and dis
before which the action is tried , that being the cretion to a judge than those. Mr. Walter argued
only court which can have before it the materials that these words would not extend to give a
on which to decide as to “ good faith ," & c. It is power to prevent the plaintiff recovering damages
the clear intention of the Legislature, no matter or obtaining an injunction. I, however, cannot
how the amendment has been made, that the see that argument, or why we should confine the
court before which the action is tried is the words “ or otherwise " to the termshe suggests.
tribunal to decide whether the patentee is entitled Under sect. 19 the court or a judge is to have
to damages and an injunction or not. The judge the widest possible discretion, and it seems per
at chambers had , therefore, no power to make an fectly clear from the judgment of the Master of
order on such termsas these, for the terms to be the Rolls in Allen v . Doulton (ubi sup.) that that
imposed under sect. 19 are expressly limited by is the construction to be put upon the section .
sect. 20. Again , prior to the Patent Act of 1883, The Master of the Rolls says at p . 383 : “ There is
it was not competent to the patentee to put in , in only one point that I particularly care about in
an action , an amendment made subsequent to the this case, and that is the attempt on both sides
commencement of tbe action he must have dis to fix cast-iron rules upon the exercise of that
continued bis action and commenced a fresh one ; which , to mymind, the Act of Parliament says is
but by enabling a patentee to disclaim pending to be an open discretion on the part of the judge
the action the Legislature must have intended to in each particular case.” Then he goes on - speak
confer some benefit on him . I submit, therefore, ing of Bray v. Gardner (ubi sup.) : “ Now , I bare
that it was intended that he should get either read that case with all the care possible during
damages or an injunction , and that it did not this long and interesting discussion ; but I pro
intend that terms should be imposed on him | test that, after having read it, I am clear that
which would prevent him getting either ; for if there is no authoritative rule laid down by the
the order stands, we must begin de novo, for we court as the decision of the court which can bind
can derive no benefit from taking advantage of this or any other court ; and that after that
sect. 19. It is true that by sect. 19 termsmay be decision it is open to this court to say that the
imposed as to costs “ or otherwise," but I submit discretion given by the 18th and 19th sections of
that the discretion conferred by those words the Act of 1883 is a discretion open to the court
should be confined to the question whether or not or a judge in each particular case upon the par
the amended specification should be used . In ticular circumstances of that case, and that there
Haslam Foundry Company v. Goodfellow (57 L . T . is no other rule to be laid down. If that be so ,
Rep. N . S . 788 ; L . Rep . 37 Ch. Div. 118 ) Kay, J. whenever the court or a judge exercises a discre
allowed so much of the previous costs as might tion upon the particular facts of the case, if there
be utilised in the amended action. In Allen . I is an appeal to this court, this court will not inter
Yarch 15, 1890.) THE LAW TIMES. [Vol. LXII., N . S. - 121
Q.B . Drv .] JACOBS v. SCHMALTZ. ( Q .B . Div.
fere with the exercise of that discretion , unless 1 (ubi sup .) show , if anything can be shown about
they can clearly come to the opinion that in their | any legal matter whatever, that the judge in
view that discretion was exercised absolutely cases of this sort hasan unlimited discretion , and
wrongfully.” Fry , L .J.speaks to the same effect, that it ought not to be interfered with unless
and Lopes, L .J. says : “ The terms upon which the court before whom that decision comes is
the court may give liberty to amend by disclaimer distinctly satisfied that the discretion was exer
are entirely for the discretion of the court, having cised wrongly. I cannot see myself that there is
regard to all the circumstances of each particular any reason whatever for supposing that this dis
case." Thus you have an authoritative decision cretion was exercised wrongly. The part of the
of the Court of Appeal that, under the argument that struck memost was that in which
19th section, there is the widest possible power the different consequences apprehended , and
given for the judge to exercise his discretion , and which might follow from the terms here imposed ,
that the court will not interfere unless it is clearly were pointed out. That must be a matter for
brought home to them that the discretion has future discussion when the question arises. If
been wrongly exercised . Now what has been they do follow , then so it must be. If they do
done here : My brother Wills, having heard the not follow , the question will not arise. On the
case, says in substance this : “ You , the plaintiff, whole, we think that the order must stand , and
have opened your mouth too wide. You have the appeal be dismissed with costs.
claimed things by your patent which you are not Solicitors for the plaintiffs, Vincent and
entitled to ; yon became aware by the pleadings Vincent.
in the case that the defendant has hit a blot in Solicitors for the defendant, Walker, Son , and
your patent, and you cannot go on. Before this Field .
Act you would have had to discontinne and
paid all the costs and begun a fresh action. Now
you come to me and ask me to exercise my dis Monday, Jan. 20.
cretion . I will do so. You may use the amended (Before STEPHEN , J.)
specification if you like, but you shall recover no
damages for anything done beforedisclaimer, and Jacobs v. Schmaltz. (a )
get no injunction for anything before disclaimer, Slander-- Innuendo- Sufficiency of.
and inasmuch as you were wrong in thebeginning, In an action for slander the statement of claim
and were obliged to come and ask meto save you alleged that the defendant falsely and maliciously
the expense of having to pay all the costs and spokeand published the following of the plaintiff :
beginning de novo, I shall make you pay all the " Did he (meaning the plaintif ) have a fire
costs incurred up to this time." This seems to me twice ?” (meaning thereby that the plaintiff had
to be reasonable. Take the analogous case of a upon two occasions set his business premises on
person who brings an action, and the defendant fire or caused them to be set on fire). “ He (mean
pays a sum of money into court. If the plaintiff ing the plaintiff ) has had two fires, and is a
takes that money out of court he must pay the dangerousman to have on your premises,” (mean
expenses incurred up to that moment. That is ing thereby that the plaintif had upon two
always the case . This seems to be a most reason . occasions wilfully set on fire his business pre
able order, and I think there is nothing to be mises, or caused them to be set on fire, and was
said against the way in which Wills, J. exercised likely to do so again ).
his discretion. A good deal has been said as to Held , that the plaintiff must be nonsuited on the
the effect of sect. 20 . I do not know that I am ground that the innuendo was insufficiently
bound to say anything about it, but it seems to alleged to give a good cause of action .
me that if you take sects. 19 and 20 together, it | This was an action for damages for slander. The
amounts to this : The judge may, when a matter plaintiff in his statement of claim alleged that :
is brought before him by a plaintiff who seeks to 1. In the month of June 1888 the defendant
disclaim , impose any terms he pleases. If he falsely and maliciously spoke and published of
does not impose any terms, the court, when the the plaintiff
case comes on to be tried , is, under sect. 20, to sale furrierin the respect of his business of a whole
decide whether it will allow any damages in (meaning the plaintiffwords following, “ Did he
) have a fire twice P" mean .
respect to matters prior to disclaimer. It may | ing thereby that the plaintiff had upon two occa
be that the object of this was to allow the judge sions set his business premises on fire, or caused
at the trial to say , the law prevents you from them to be set on fire.
getting any damages for anything before this 2. In the month of Aug. 1888 the defendant
disclaimer, unless there is a further term ; that again falsely and maliciously spoke and published
is, unless you show that the original claim was of the plaintiff in respect of his said business to the
framed in good faith , and with reasonable skill then landlords of the plaintiff and to others the
and knowledge. If you do that you may perhaps words
obtain an injunction. However, that is not the therebyfollowing , tha : is to say, “ He (meaning
the plaintiff) has had two fires, and is a
question on which I decide this case. I decide dangerous man to have on your premises,”
this case on this ground, that the judge had
discretion to deal with the matter, and that meaning thereby that the plaintiff had upon two
occasions wilfully set his business premises or
that discretion is one that we will not interfere
with . caused them to be set on fire, and was likely to
STEPHEN, J. - I arrive at the sameconclusion on do go again .
very much the same grounds. It seems to me dant, Kemp, Q .C . and J . D . O 'Flynn for the defen
at the close of the plaintiff's case, submitted
that both the words of the Act itself - which are | that the
really the important things to look at - and the statement of claim disclosed no cause of
strong authority which has been referred to of action . The words alleged to be libellous are not
The Haslam Foundry Company V. Goodfellow I (a) Reported by R. M . MINTON-SENROUSE, Esq., Barrister-at-Law .
IN Bank.] Re MCGRATH; Ex parte THE CHIEF OFFICIAL RECEIVER. [ In Bask.
actionable per se, and the innuendo does not | On the 7th Oct. an order was made for substi
allege that they mean that the plaintiff was | tuted service of the petition by a copy inclosed
guilty of a criminal offence. It is not criminal in a registered envelope addressed to the debtor
to set fire to one's own house. The criminal | at 78 , High Holborn .
offence must be pleaded , and not left to be implied On the 23rd Oct. a receiving order was made
from the surrounding circumstances : against the debtor, and a copy of the order was
Cox v. Cooper, 12 W . R . 75. sent to him inclosed in a registered envelope.
Laing for the plaintiff.— The allegation that On the 28th Oct. the debtor attended before the
the meaning of the words spoken was that the official receiver for the purpose of examination
into his affairs , and he thereupon stated that he
plaintiff had upon two occasions wilfully set fire
to his premises admits of only one interpretation , resided at 78 , High Holborn .
On the 3rd Dec. a notice of the timeand place
viz., that the plaintiff was guilty of arson. That
is a sufficient pleading . at which the first meeting of creditors would
STEPHEN, J.- This statement of claim does not take place, by and also a notice ofthe time and place
disclose any cause of action. The words alleged appointed the court for the public esamina
to have been spoken were in themselves innocent. tion of the debtor, were sent in a registered
Therefore to make them slanderous the innuendo envelope by the official receiver to the debtor
must allege that they bore a meaning imputting at his last known residence - i.e., 78 , High
to the plaintiff some criminal offence. Here the Holborn
Neither
.
of these notices was returned to the
innuendo is that the plaintiff set his business official receiver.
premises on fire; but it is not a crime merely to The debtor failed to attend the first meeting of
set fire to one's own property. Neither the
slanderous words nor the innuendo accuse the his creditors held on Dec. 11, and also failed to
plaintiff of a crime, and therefore the pleading is attend at the public examinaticn appointed to be
held on Dec. 20. In neither case was any satis.
defective, and I must nonsuit the plaintiff , with factory reason given to account for his absence.
costs to the defendant. Application for a warrant for the arrest of
The learned Judge refused leave to amend the debtor was made to the registrar of the
except on the terms that the plaintiff would pay County
all costs incurred to the date of the trial, on the Act 1883Court
and
under sect. 25 of the Bankruptcy
rule 185 of the Bankruptcy Rules
ground that the amendment asked for was a sub 1886 .
stantial one. The registrar being doubtful whether or not
Solicitors for the plaintiff, Davis and Co. this order ought not to have been served per
Solicitors for the defendant, E . J. Mocran. sonally upon the debtor, referred the matter to
the judge.
Spyer (solicitor) for the official receiver.
QUEEN'S BENCH DIVISION , IN Sect. 25 of the Bankruptcy Act 1883 enacts :
BANKRUPTCY. “ (1) The court may, by warrant addressed to any
Saturday, Jan . 18 . constable or prescribed officer of the court, cause
a debtor to be arrested , and any books, papers,
(Before CAVE, J.) money , and goods in his possession to be seized ,
ReMCGRATH ; Ex parte THE CHIEF OFFICIAL and him and them to be safely kept as prescribed
RECEIVER .(a) until such time as the court may order under the
Bankruptcy - Order fixing public examination of following circumstances : (d ) If,without good cause
! shown,
debtor - Service of copy on debtor by registered he fails to attend any examination ordered
letter-- Bankruptcy Rules 1886, r. 186. by the court.” Rule 185 of the Bankruptcy Rules
By rule 186 of the Bankruptcy Rules 1886 , “ Where 1886 : “ If the debtor fails to attend the public
any order is made appointing the timeand place examination at the timeand place appointed by
for holding the public examination of a debtor, any order for holding or proceeding with the same,
the official receiver shall serve a copy thereof on and no good cause is shown by him for such
the debtor." failure, it shall be lawful for the court, upon its
Notice of the time and place appointed by the being proved to the satisfaction of the court that
court for his public examination was sent to a the order requiring the debtor to attend the
debtor in a registered letter. The debtor failed public examination was duly served, and without
to attend the examination, and gave no reason any further notice to the debtor, to issue a war
for his absence. On application for a warrant rant for his arrest as provided by sect. 25 (1) (d ) of
to arrest him for non -compliance with the notice : the Act, or to make such other order as the court
Held , that the document which by rule 186 is shall think just." Rule 186 : “ Where any order is
required to be served on the debtormay be sent to made appointing the time and place for holding
him by registered prepaid post letter, and that, the public examination of a debtor, the official
as that had been done, the warrant might be receiver shall serve a copy thereofon the debtor,
issued . and shall give to the creditors notice of such
This was an application by the official receiver
order and of the timeand place appointed thereby.
The official receiver shall also send a notice of
for a warrant to arrest the debtor under sect. 25 such order to such local paper as the Board of
of the Bankruptcy Act 1883 for failing to attend Trade may from time to time direct, or, in
his public examination . default, of such direction as he may think fit , and
On the 1st Oct. 1889 a petition was presented shall forward notice of such order to the Board
against the debtor, the act of bankruptcy alleged of Trade to be gazetted .” Then sect. 142 enacts
being non -compliance with the requirements of a that, “ All notices and other documents for the
bankruptcy notice. service of which no specialmode is directed may
(a) Reported by WALTER B. YATES, Esq., Barrister-at-Law .. I be sent by prepaid post letter to the last known
March 15 , 1890 .) THE LAW TIMES. [Vol. LXII., N . 8. - 123
Div.] BUTLER v . BUTLER . [Div.
address of the person to be served therewith ;” | kept from the court and jury , and that the wife
and rule 92 : “ Where notice of an order or other had been guilty af adultery. At the trialof these
proceeding in court may be served by post it issues the jury found that the collusion was
sball be sent by registered letter.” established , but they disagreed as to the wife's
The respondent did not appear, and was not alleged adultery. Upon this, the Court rescinded
represented . thedecree nisi. The wife gave notice of appeal
CAVE, J. - I think that the service in this case against the rescission of the decree. The husband
was sufficient. Rule 186 requires that where any ceased to pay alimony after the conclusion of the
order is made appointing the time and place for trial of the Queen 's Proctor's case . The wife
holding the public examination of a debtor, the applied for a fi. fa. to compel the payment of
official receiver skall serve a copy thereof upon arrears. The registrar declined to issue the
writ.
the debtor. It does not say that the order shall Held,
be served upon him personally , but “ shall serve that the registrarwas right, but thatan order
a copy thereof on the debtor.” Then sect. 142 should be made directing the husband to pay to
says: “ All notices and other documents for the his wife, pending the appeal, alimony atthe same
service of which no specialmode is directed may rate as had been allotted to her pendente lite in
be sent by prepaid post letter to the last known the first instance, but that the husband should
address of the person to be served therewith .” have liberty to apply to have the order discharged
The words “ all notices and other documents ” in theevent of any undue delay on thewife's part
mast include a copy ofan order such as this. The in prosecuting the appeal.
debtor is “ the person to be served," and " no | This was an application on behalf of Emma
special mode [of service ] is directed .” One way Butler, by way ofappeal from the registrar, who
of testing whether a special mode of service is had declined to issue a writ of fieri facias for the
directed is to add to rule 186 the words of recovery of arrears of alimony.
sect. 142, when the words will run, “ the official The application had been before the court on
receiver shall serve a copy on the debtor by send- | the 19th Nov . ex parte, and the learned judge
ing it by prepaid post letter to his last known then directed that the husband should have notice
address.” There is nothing inconsistent in that of the application .
language, and the service would be such as is The notice was accordingly served , and the
directed by the section . If, on the other hand, motion was now renewed , Mr. Butler appearing
the rule had run, " The official receiver shall serve in person .
a copy personally on the debtor," and the words | The trial was, in the first instance, before the
were added " by sending it by post,” there would court and a jury upon cross - petitions, and a
be an obvious contradiction in terms- a special decree nisi was granted upon the wife's peti
direction inconsistent with sect. 142. I am of tion , no evidence being offered upon the husband's
opinion that the document which by rule 186 is petition , which was accordingly dismissed with
required to be served on the debtor may be sent costs.
to him by registered prepaid post letter, the The Queen 's Proctor subsequently intervened ,
registration being prescribed by rule 92 ; and as and upon the bearing of that suit , which took
that appears to have been done in this case, the | the
place in Aug.
found 1889
that before the court
andand
wifea jury,
warrant may be issued. A
issued. Application allowed . beenlatter the husband had
guilty of collusion, in that they had agreed
Solicitors for the official receiver, Spyer and together to withhold material facts from the court
Son . and jury upon the first trial. Upon the question
of the alleged adultery of the wife, however, the
PROBATE , DIVORCE, AND ADMIRALTY jury disagreed and were accordingly discharged
without giving a verdict upon this issue.
DIVISION . Upon these findings the learned judge (Butt, J.)
DIVORCE BUSINESS . rescinded the decree wie
nisi.
Nov. 19 and 26 , 1889. From that rescission of the decree the wife
(Before Butt, J.) lodged an appeal to the Court of Appeal, the
BUTLER v . BUTLER. (a ) hearing of which was still pending .
Upon the rescission of the decree the husband
Dirorce- Cross-petitions- Finding by jury in wife's ceased payment of alimony which had been
favour - Decree nisi — Intervention by Queen 's i allotted and paid by him up to that time pen
Proctor - Finding by jury of collusion — Dis | dente lite. It was for the recovery of alimony
agreement as to wife's adultery – Rescission of since August that the wife sought for the issue
decree — Notice of appeal - Discontinuance of 1 of a fi. fa .
payments of alimony on rescission of decree nisi
.
-of Application Bargrave Deane for the wife. — The question
arrears.
for writ of fieri facias in respect first raised before the registrar was whether the
order for alimony pendente lite was a continuing
At the trial of cross-petitions for divorce no evi order which could be enforced , or whether that
dencewas offered on behalf of the husband, and order did not come to an end as soon as the suit
the jury found for the wife and against the in this court was at an end. The practice has
husband on all the issues, and the Court pro- | been to make a continuing order if the court
nounced a decree nisi upon the wife's petition , thought fit :
and dismissed the husband petition . The Queen 's Wells v. Wells, 10 L. T. Rep. N . S. 696 ; 3 Sw . &
Proctor subsequently intervened and filed his plea Tris. 544 ;
alleging that the husband and wife had been Jones v. Jones , 25 L . T. Rep. N . S. 856 ; L . Rep.
guilty of collusion , that material facts had been 2 P . & D . 333 ;
(a)Reported by H . DURLUY-GRAZEBROOK,Esq., Barrister-at-Law . i Dunn v. Dunn , 59 L. T. Rep. N . S. 385 ; L. Rep.
13 P . Div. 91.
124 - Vol. LXII., N . 8.) THE LAW TIMES . [March 15, 1€90.
Div.] REG . v. WHITCHURCH AND OTHERS. [CR. Cas. Res.
The ruling of the court is now asked as to CROWN CASES RESERVED .
whether a writ of fieri facias ought not to issue.
BUTT, J. - Ithink the registrar was quite right Saturday, Feb . 1.
in refusing to issue a fi. fa . upon the order for (Before Lord COLERIDGE, C .J., POLLOCK, B .,
alimony pendente lite .
Bargrave Deane. Then the court should con HAWKINS, GRANTHAM , and CHARLES, JJ.)
tinue the order or make a fresh order for payment REG. v.WHITCHURCH AND OTHERS. (a )
of alimony pending the appeal at the same rate Criminal law - Conspiracy - Combination to do
as the allotment pendente lite was formerly made. unlawful act - Act not criminal if effected by
He again referred to prisoner alone, but criminal if done by others
Dunn v. Dunn (ubi sup.). Conspiracy to procure abortion of woman not
Mr. Butler in person. — The order for alimony with child - Criminality ofwoman operated upon .
pendente lite became void at the conclusion of the A combination of a person with other persons to
Queen 's Proctor's suit. The costs were 7831. up commit a felony, renders every one of the persons
to the time of that case coming on , and now an taking part in such combination guilty of con
application is pending that I should also pay the spiracy. A person can therefore be convicted of
costs of the Queen 's Proctor. I am on the verge conspiracy with other persons to do an act, the
of bankruptcy . I ought not to be called on to doing of which by such other persons amounts to a
support a wife who, I am morally certain ,hasbeen felony, notwithstanding the fact that the doing of
guilty ofadultery. (Butt, J. - You did not choose the act by such person alone would not have been
to get into the box , and swear to that at the first criminal.
trial. ] A woman was convicted upon an indictment which
Butt, J. - I regret having to make the order charged her with conspiringwith two men to pro
which I consider I ought to make in this case, cure her miscarriage by unlawful means. The
namely , an order to continue the alimony for a men had previously been convicted of the felony
reasonable time, pending the appeal, at the same of administering drugs and using instruments for
rate as it was made in the first instance, My the purpose of procuring the woman 'smiscarriage,
own opinion on thequestion of thewife's adultery who, however, was not in fact pregnant at The
was, and is, a very strong one, but the jury were time the felony was committed .
not able to agree on the point. The fact remains Held , that the woman was rightly convicted ,
that, at the first trial, the jury , acting, as I think although her acts would not have been criminal
now appears, under the influence of collusion on had they been effected by herself alone and with
the part of the husband and wife, found that the out the help of themen , inasmuch as the doing of
wife bad not committed adultery , no evidence the acts to her by the men constituted a felony on
being offered upon the husband's petition . On their purt.
the second trial, the jury being summoned to This was a question reserved by Wills, J. for the
decide, amongst other things, whether the wife consideration of the court at the assizes held
had or bad not been guilty of adultery, were un . | for the county of Northampton on the 28th Nor.
able to agree upon that point. As the jury, and 1889.
not the judge, are the constituted judges of | The case stated that Thomas William Whit
matters of fact, I must treat the case in the light church , John Howe, and Elizabeth Cross were
of the fact that there never has been a finding of indicted in the following terms: The jurors, & c.,
adultery against her. I do not think, under those present that Thomas William Whitchurch , John
circumstances, that I am entitled to allow any Howe, and Elizabeth Cross believing that the
feeling or opinion ofmine on the matter of fact to said Elizabeth Cross was then pregnant, and that
weigh on the present occasion . I therefore con : | in due course of nature she would be delivered
tinue the order for alimony. In doing so, how . of a child begotten by the said Jobn Howe, and
ever, I intimate that I shall limit the time during wickedly intending and contriving to conceal
which the order shall continue, for I do not intend such pregnancy and to prevent such her delivery
that this or any other appellant shall take advan in due course of nature, on the 1st June 1889 did
tage, by delaying the appeal, of getting alimony amongst themselves unlawfully, knowingly, and
for an unreasonable time. The payment of the ali wickedly conspire, combine, confederate, and
mony will be until further order . If there is any agree together feloniously and unlawfully to pro
delay on her part in taking the matter to the cure the miscarriage of the said Elizabeth Cross
Court of Appeal, the husband may apply to stop by unlawfully administering to and causing to be
the alimony . taken by her certain noxious things, and by un.
Solicitors for the wife, Clinton and Buckby. lawfully using certain instruments and other
Mr. Butler in person . means with intent to procure the miscarriage of
the said Elizabeth Cross.
The indictment then set out a number of acts
done in pursuance of the conspiracy , but it is
unnecessary for the purposes of this case to set
out more of the indictment than I have already
given .
The evidence established that the prisoners all
believed that Elizabeth Cross was pregnant, and
that for the purpose of procuring abortion White
church and Howe, with her consent and by her
procurement, both administered to her noxious
(a) Reported by B. CUNNINGHAM GLEN , Esq., Barrister-at-Law.
March 22, 1890.) THE LAW TIMES. ( Vol. LXII., . 8. - 125
Cr. Cas. Res.] REG . v . WHITCHURCH AND OTHERS. [CR. Cas. Res.
drugs and used or caused to be used upon her to attempt to procure her own miscarriage , and
instruments, but there was no evidence that she it is only where she is with child that it is made
was in fact pregnant, and for the purpose of the an offence by that statute . In order , therefore , to
present case it must be taken that she was not support this conviction it must be held to be an
in fact pregnant. offence in a woman to combinewith others to do an
Mr. Hammond Chambers then objected that act to herself which it would have been no offence
for a woman not being pregnant to do or cause on her part to commit. In order to coinstitute the
to be done acts upon herself for the purpose of offence of conspiracy it is necessary that the con
procaring abortion was no offence either at com spiracy should be to do something which will be
mon law or by statute, and therefore she could to the injury of some one other than the con
not be convicted of conspiracy with other per spirators. Here there was no elementof injury to
sons that they should do upon her and she should any other person than the prisoner, and therefore
suffer the same acts. the necessary element was wanting to constitute
I was of opinion that, whether or not it was the offence of conspiracy . If a person can be held
no offence for a woman not pregnant to do acts guilty of conspiring with others to do a thing to
to herself intending thereby to procure an abor. herself which it is not an offence on her part to
tion , which was actually impossible , it would none do to herself, a girl under sixteen with whom an
the less be criminal in her to conspire to commit offence against the Criminal Law Amendment
a felony (which the administration of drugs and Act 1685 had been committed could be convicted
the use of instruments would have been in her of conspiring with the person by whom the offence
as well as in the men if she had been pregnant : was committed to commit the offence. In Rex r .
see 24 & 25 Vict. c. 100 , s. 58 ) because the com Turner (13 East, 228 ) it was held that an indict
mission of the felony was rendered impossible by ment would not lie for conspiring to commit
circumstances unknown to her. whatmerely amounted to a civil trespass. Lord
I was further of opinion that for the woman COLERIDGE, C .J. - In Reg. v . Rowlands 18 L . T . Rep.
to conspire with the men to have certain things N . S. 347 ; 17 Q . B. 686 ; 2 Den . C . C . 388 ; 5 Cox
done to her the doing of which constituted a C . C . 490) Lord Campbell, C . J. said that he had
felony on the part of the men was criminal, no doubt whatever that Turner's case was wrongly
although the object to be attained if effected by decided.] Assuming it to be wrong, there
herself alone and without the help of the men i was in it, and in Reg. v. Kowlands, a conspiracy
might not have been criminal, and I directed the to do a wrong to another person. [HAWKINS, J.
jury if they believed the evidence, to convict the - In Reg . v. Warburton (23 L . T. Rep. N . S . 473 ;
prisoners . L . Rep . 1 C . C . R . 274 ; 11 Cox C . C . 584 ; 40
The jury convicted all the prisoners. L . J. 22 , M . C .) Cockburn , C .J . said that “ It is not
Themen had been previously convicted of the necessary in order to constitute a conspiracy that
felony of administering drugs and using instru. the acts agreed to be done should be acts which
ments for the purpose of procuring the mis if done would be criminal. It is enough if the
carriage of the female prisoner, and in respect of acts agreed to be done, although not criminal, are
those offences they were sentenced to penal wrongful, i.e., amount to a civil wrong.” ] Yes ; if
servitude, and in respect of the present indict the acts are wrongfulon the part of each of the
ment I passed no sentence upon them . Upon the persons in the combination . But my point here
woman Cross I passed a sentence of six months is, that the woman in what she did was not doing
imprisonment,which she is now undergoing. a wrongfulact, and therefore could not be guilty
At the trial no authorities were cited to me of conspiring to do a wrongfulact.
beyond references to Archbold 's Criminal Law ; Etherington Smith, for the prosecution,was
but I gave leave to Mr. Hammond Chambers to
bring under my notice any authorities he might called upon.
desire to refer to. He has very lately brought Lord COLERIDGE, C.J. - I am of opinion that
before me some authorities and considerations this conviction should be affirmed . All that we
which make it, in my opinion, more satisfactory have to deal with here is an indictment charging
that I should grant and state the present case for a woman , who must be taken for the purposes of
the opinion of the Court for Crown Cases our decision not to have been with child , with
Reserved . conspiring with others to procureher miscarriage .
The question for the court is, whether the con: Now , if she had been indicted alone for attempt
Fiction against the woman can be sustained . ing to procure abortion by taking noxious things
By 24 & 25 Vict. c. 100, s. 58, it is enacted and using instruments on herself, she could not
that have been convicted under the circumstances of
Every woman , being with child , who, with intent to the case, both in good sense and upon the terms
procare her own miscarriage, shall unlawfully use any of the statute itself. For I think we are all
instroment or other means whatsoever with the like agreed that the statute does not make it,and it is
intent, and whosoever , with intent to procure the mis . not an offence at common law , for a woman who is
carriage
child of any
, shall woman , whether she be or be not with
anlawfully administer to her or cause to be not pregnant to attempt to procure abortion by
taken by ber any poison or other noxions things, or shall acts committed on herself by herself. The offenca
unlawfully use any instrument or other means whatso which is charged here, however, is the offence of
ever with the like intent, shall be guilty of felony , and
being convicted thereof shall be liable, at the discretion conspiracy, and, without going into the law of
of the court, to be kept in penal servitude for life, or for conspiracy , as to which we find some divergence
any term not less than three years, or to be imprisoned in the opinions of different learned judges who
for any term not exceeding two years, with or without | have had to give their decisions with regard to
bard labour, and with or without solitary confinement. it, it is sufficiently clear from the authorities to
Hammond Chambers on behalfof the prisoner. say that a combination of a person with other
Previously to 24 & 25 Vict. c. 100 , it was not an persons to commit a felony is within every defini
offence known to the criminal law for a woman I tion of what is conspiracy . Here the prisoner
Vol. LXII., N . S ., 1584 .
126 - Vol. LXII., N . s.) THE LAW TIMES . (March 22, 1890.
H . OF L ] Gas LIGHT AND COKE COMPANY v . Souty METROPOLITAN Gas COMPANY. [H . of L .
combined with two other persons, who had been supplied gas which was used for lighting the
convicted of the felony of administering drugs whole station , including the part within the
and using instruments for the purpose of pro appellants' district, to which it was conducted
curing themiscarriage of the prisoner , to commit through pipes laid on the premises of the railway
a felony. I cannot,with all possiblerespect for the company.
· learned counsel,who has said all that there was to Held (reversing the judgment of the court below ).
be said upon the materials at his disposal, enter . that this was an infringement of the provisions
tain the slightest doubt that, where three per in sect. 6 of the Metropolis Gas Act 1860.
sons combine together to commit a felony, every• Imperial Gas Light and Coke Company v. West
one of those persons is equally guilty of con London Junction Gas Company (58 İ. T. Rep .
spiracy, although the person on whom the offence N . S. 900, n.) distinguished .
is intended to be committed is a person who could This was an appeal from a judgment of the
not have been convicted by herself of attempting Court of Appeal (Cotton, Lindley, and Bowen ,
to do that with which she is indicted for conspir L .JJ.), reported in 58 L . T. Rep. N . S. 899, who
ing with others to do . I am , therefore, of opinion
that the prisoner was rightly convicted, and that had affirmed a judgmentof Kekewich , J., reported
in 57 L . T. Rep . N . S . 557, upon the authority of
this conviction should be affirmed . a case of The Imperial Gas Light and Coke Com
POLLOCK , B .-- I have arrived at the same con pany v. West London Junction Gas Company
clusion , and really have nothing to add. decided by Lord Cairns and Rolt, L .JJ. in Dec.
HAWKINS, J. - I am of the same opinion. The 1867, affirming a judgment of Stuart, V .C ., and
woman here is not charged with conspiracy to reported in W . N . 1868 , p . 1, and 58 L . T . Rep .
do what may have been an innocent act. She is N . S. 900., n.
charged with conspiring with others to do an act In the present case an application had been
which such others could not do without commit made to Kekewich , J. to restrain the respon
ting a felony ; that is, she may do that herself dent company from supplying gas to the London
without being punishable criminally , but other and South -Western Railway Company at the
persons may not do it without committing a Nine Elms Station, near Vauxhall Bridge, origi.
felony. Here the conspiracy charged is a con nally the main line departure station of the
spiracy for the commission of a felony by persons railway company ; but for some years past, since
who were acting in direct contravention of the the erection of the Waterloo terminus about
section of the statute ; and I am therefore of 1854, used as a goods station only. The question ,
opinion that this woman was rightly convicted . which turned upon the construction of the
GRANTHAM , J .- I am of the sameopinion . Metropolis Gas Act 1860 (23 & 24 Vict. c. 125),
CHARLES, J. - I am of the same opinion . passed for regulating and “ districting ” the
Conviction affirmed . supply of gas by the several metropolitan gas
companies, was whether the respondent company
Solicitor for the prosecution, The Solicitor to were entitled to supply gas from meters within
the Treasury. their own territory for consumption outside their
Solicitors for the prisoner, Becke and Green , territory and within the territory of another
Northampton . company. The Act of 1860, after reciting that
the several metropolitan companies, including the
two litigant companies and those companies which
House of Lords . had been amalgamated with them , were re
spectively incorporated under the authority of
July 19, Aug. 1, 8, and 9, 1889. Parliament for the purpose of supplying several
(Before the LORD CHANCELLOR (Halsbury), Lords districts of the metropolis with gas, “ and the
FITZGERALD and HERSCHELL.) said companies, instead of supplying gas by
Gas LIGHT AND COKE COMPANY v. South METRO several mains in the same district, have agreed
POLITAN GAS COMPANY. (a ) as far as possible each one to confine its supply
to a separate district, in order to economise
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. capital and avoid the too frequent openings of
Metropolis Gas Act 1860 (23 & 24 Vict. c. 125), the public streets ; and, subject to the provisions
88. 6, 14 — Supplying gas for sale - Gas used and restrictions of this Act, it is expedient that
within limits of another company's district. such districting should receive the sanction of
By sect. 6 of the Metropolis Gas Act 1860 a certain Parliament," and that it was expedient that pro
district was assigned to each metropolitan gas vision be made for the due registration of all
company , and it was provided thatno other com companies and persons supplying gas within the
pany or person should “ supply gis for sale metropolis, provided (sect. 6 ) that " the limits of
within the said limits," unless authorised by each of the said companies shall be the respective
do so. of gas to owners or occupiers districts supplied with gas by such companies as
sect. 14 thetosupply
ByParliament the same are defined upon four duplicate maps,
of premises within or partly within the com signed by the Right Hon . T. H . s. Sotheron
pany's district requiring such supply was made Escourt,which maps have been severally deposited
compulsory .
A railway company had a station which was partly
with the respective clerks of the peace for Middle
sex, London, Surrey, and Kent ” - “ and no other
within the district of the appellant company and company or person than the company to whom
partly within that of the respondent company. such limits are for the time being assigned , or
The respondents, on being required to do 80 by shall hereafter be assigned , shall supply gas for
the railwcy company, provided a meter at a sale within the said limits unless authorised by
pointwithin their own district from which they | Parliament so to do.”. The territory of the Gas
(a) Reported by C. E .MALDEN, Esq., Barrister-at-Law . Light and Coke Company, as defined by the Act
March 22, 1890.) THE LAW TIMES. (VOL LXII., N . S. - 127
H . or L .) Gas LIGHT AND COKE COMPANY v. South METROPOLITAN Gas COMPANY. ( H . OF L .
of 1860, adjoined that of the South Metropolitan would have prevented them from deciding as I
Company at Vauxhall, and the boundaries were think your Lordships will feel yourselves ulti.
represented by a zigzag line,with angles entering mately compelled to decide. Now , it is necessary ,
at various points upon the adjoining territory ; in order to understand what Lord Cairns and Rolt,
the portion to the north -east, roughly speaking , | L . J . were determining, to regard the particular
belonging to the appellant company, while that question which was then before them , and the
to thesouth -west isterritory oftherespondent com mode in which it became necessary for them to
pany. The London and South -Western line passed give any construction, or rather, to speak more
from one territory to another between Waterloo accurately, to express any opinion, for it will be
and Vauxhall, and the goods sheds and works of found that the opinions supposed to be expressed
the company at Nine Elms were, in fact, situate were not at all necessary for the decision of the
in both territories. Disputes having arisen case ; but it will be necessary to see how it came
between the railway company and the appellant to pass that they were called upon to express any
company as to the price of the gas supplied , the opinion on the true construction of the Act.
railway company had in the year 1886 demanded After the districting Act, as I will call it , was
supply of gas from the respondent company. passed, the gas company complained that the
In order to comply with this demand the respon Great Western Railway Company was being
dent company had placed additional meters at supplied with gas by a rival company, and that
points within their own district, but had laid the Great Western Company itself in terms had
down mains and pipes within the appellant com entered into a contract and was about to supply
pany's district ; and, in fact, gas supplied by the the Great Western Hotel, which stood in the
respondent company was supplied to and con relation to them of tenant, with the gas in ques
sumed by the railway company within the tion . The question as it originally came before
appellant company's district. In restraint of this Stuart, V .C ., was determined by a consideration
alleged invasion of their territory this action was of what had been the legal relations between
brought by theGas Light and Coke Company. the different parties to this litigation before the
Kekewich , J . refused the injunction asked for, passing of the Act, because, by one of the
and his judgment was affirmed by the Court of sections which was introduced for the purpose
Appeal, as above mentioned . of safe-guarding arrangements which had been
entered into previous to the passing of the Act,
Sir C. Russell, Q.C., Sir H . Davey, Q .C ., and nothing
Danckverts appeared for the appellants. is to prejudice the rights obtained before
the passing of the Act either by persons who
The Attorney-General (Sir R . Webster, Q.C .), were providing, or persons who were enjoying,
Rigby, Q.C ., and Prior for the respondents. the benefits of a contract for providing them
The arguments appear sufficiently from the with gas. The question as it came before Stuart,
judgments of their Lordships. V .C ., was disposed of at once by reference to
At the conclusion of the arguments their Lord the section in question . From that there appears
ships took timeto consider their judgment. to have been an appeal, which was in point of
form an appeal embracing the whole question ;
Aug. 9. — Their Lordships gave judgment as
follows:
but, as I gather from the judgments of Lord
Cairns and Rolt, L .JJ., although the appeal was
The LORD CHANCELLOR (Halsbury).- My Lords : apparently directed to the whole question , every
This case comes before your Lordships thing was abandoned at the argument, except
undoubtedly under some circumstances of pecu the question of the supply by theGreat Western
liarity , inasmuch as it is an appeal from the Railway Company to the Great Western Hotel
court of first instance and from the Court of Company, and all that was said with reference to
Appeal, as to which every judge before whom the preliminary question as to the supply by
this question has come has expressed his own the gas company to the Great Western Rail.
dissatisfaction with the judgment at which he way Company, or rather (for even there one
Fas compelled to arrive. Fry and Bowen , L .JJ. is obliged to be very accurate) to the sta
have in plain terms said that they think the tion of the Great Western Railway Company,
judgment is wrong. The grounds upon which I was introductory in leading up to the decision
those judges considered themselves precluded that their Lordships ultimately arrived at with
from forming an independent judgment of their reference to the arrangements made between
own, appears to be that some considerable time the Great Western Railway Company and the
ago, shortly after the passing of the Gas Act of Great Western Hotel Company. In that con
1860,Lord Cairnsand Rolt, L .JJ.had expressed an dition of things, and it being admitted that, at
opinion upon the true construction of the section , the point at which the gas was supplied to the
which did not permit them to form an indepen Great Western Railway Company at some dis
dent judgment as to what the true construction tance from London (whether the meter was the
of the sections in question are. No one would exact point at which the property in the gas
lightly disregard the authority of Lord Cairnsand changed or not), the meters of both the parties
Rolt, LJ., and therefore I have been at some were outside the limits of the complaining dis
pains to see whether, on the facts as exhibited in trictcompany,Lord Cairnsand Rolt, L .J.both point
the bill and answer in that case, it was possible out that, as far as the supply of gas to the Great
to suppose that either of the learned judges had Western Railway Company was concerned , the
put forward a proposition which it is necessary whole transaction was complete upon the delivery of
in this case for the respondents to maintain ; and the gas to theGreat Western Railway Company at
I certainly have come very clearly to the opinion that particular point where both meters were
that if Lord Cairns and Rolt, L .J. were at present situated. Undoubtedly in that case, and with
considering this case, and having it before them , | reference to the facts of that case, Lord Cairns
there is nothing in what they have said which I does make the transaction analogous to a question
128 — Vol. LXII., N. S.] THE LAW TIMES. (March 22, 1890.
H . OF L .] Gas LIGHT AND COKE COMPANY v. South METROPOLITAN GAS COMPANY. [ H . OP L .
of sale and delivery at that point ; and it is to ! of a threat and intention to do the act ? It
be observed that what his Lordship proceeds to appears to me to be utterly impossible for the
argue upon is, that the moment the gas has been court to judge before it knows in what way the
received through the meter at the particular act was to be done if it is done, whether the
point, the railway company from that moment supply to this hotel company would or would not
take upon themselves, in the ordinary course of be a violation of the Act of Parliament, and I
the management of their railway, the whole desire to express no opinion whatever upon that."
conduct and management and disposal of the I find that Rolt, L . J., at the conclusion of his
gas. They altered the lights of it ; they took the judgment, says very much the same thing, and I
pipes wherever they pleased ; they from time to confess I am unable to see why that judgment
time, as the learned judge points out, altered the with reference to the existing rights already
destination of the various quantities of gas they ascertained at the time of the passing of the
received , and, as a result, the learned judge points Act, and with reference to the supply, should
out that in that case, and as applicable to the have bound the Court of Appeal. I will call it
facts of that particular case, a quantity of gas “ supply " here, whether it be gas sold and de
was giren to them to do what they pleased with livered at Wormwood Scrubs, or whether it be
at a particular point, and that having got it they supplied in the wider sense with which I shall
then disposed of it as they pleased . But be it have to deal presently ; but, this being a supply
observed that that part of the question was no to a particular customer protected nnder contracts
longer before the court, because the question of existing at the time of the passing of the Act,
the supply to the Great Western Company was the only question which their Lordships decided
disposed of by the abandonment in the argument was that under the circumstances there was no
of the question whether that was or was not an ground for the injunction, because the question
invasion of what I will call the peculiar property whether or not the supply, if it did in fact after
of the riral gas company. But then their wards take place, would be a violation of the Act
Lordships proceeded to decide the case which of Parliament, their Lordships absolutely and
was before them , and that which they were called entirely declined to determine. I confess I enter
upon to decide, and the question then arose with tain some degree of surprise that a judgment
reference to the supply by the Great Western arrived at under those circumstanceswas supposed
Railway Company to the Great Western Hotel to prevent the courts below from entertaining an
Company ; and, in the first place, it is pointed entirely independent judgment upon the facts of
out that by a contract long antecedent to the this case, and determining it upon what they
passing of the Act of 1860,and protected ,therefore, regarded as the true construction of the Act of
by the 54th section of the Act, this arrangement Parliament. I dismiss, therefore, altogether the
had been entered into by the Great Western case to which I have already referred . It seems
Railway Company, and the Great Western Rail. to me of no authority in determining the ques
way Company was absolutely protected in its i tion now before your Lordships, for the reasons I
receipt of the gas by the 54th section . Then the have already pointed out. Of course no one
learned judges proceed to do wbat seems to me could lightly disregard, as I have said , the autho
to be this, and I confess I am a little surprised | rity of those learned judges ; but they were
that it does not appear to have been noticed , that speaking of, and their language must be under .
they seem expressly to decline to decide the stood to have reference to, the particular facts
question which had been insisted upon before which were brought before them in that case,
them . Lord Cairns, L .J.,after describing the state and therefore have no bearing, as it appears to
of things to which I have referred , says : “ The | me, on the question which is now before your
GreatWestern Railway Company say, 'At the time | Lordships. Now , turning from the supposed
the Act passed we possessed under this contract, conclusion by authority of the question which
and by the authority which Parliament gave us has been debated at your Lordships' bar, it seerns
to build an hotel and to demise it, a power of to me that but for that authority, and but for
supplying this hotel with gas, and we submit the just weight attributable to such names as I
that we are entitled , if so minded , to supply the have referred to , this case is hardly arguable.
hotelwith gas upon any termsand conditions we The Act of 1860 was intended , and expressed to
think fit.' That is the case made by the Great be intended, to give a monopoly to the different
Western Railway Company that at the time of districts created by the statute itself. And in
the passing of this Act , and therefore protected looking at what the statute did , it would be as
by the protective section of the Act, they had a well to look at the language of the statute itself
power to supply this hotel with gas, and they as exhibiting the purpose with which it was
said , “ We are entitled , if so minded , to supply passed . The statute says that to give effect to
the hotel with gas upon any terms and conditions | bargains that had been entered into between the
we think fit.' But, as regards what they intend different companies, which at that time had each
to do (passing from their view of the law ), they of them powers (if they had so pleased ) to extend
say no gas from the works at Wormwood Scrubs their operations over the metropolis, and for
has hitherto been sold to the hotel company, nor economy and the convenience of the inhabitants
have there as yet been any negotiations or of the district, they had entered into agreements
arrangement in reference thereto save as afore that they would not interfere with each others
said , which saving, it seemsto me, can only apply districts which by agreement they had mapped
to the desire evinced by the hotel company to out for themselves. I confess I am again a little
get the supply of gas as best they could . In surprised . I think itmighthave saved somediscus
that state of things, is it possible to say that the sion if we had known what these agreements were .
Imperial Gas Company can file a bill which , if it The gas companies understood their own business,
is to be maintained where no act has been done, and I have no doubt wonld probably have used
can only be maintained upon the clearest evidence language and exhibited by their own agreements
March 22, 1890. ) THE LAW TIMES. [Vol. LXII., N . 8.- 129
H . OF L .] Gas LIGHT AND COKE COMPANY v. South METROPOLITAN Gas COMPANY. [ H . OF L .
a sufficient indication of what was meant by the land difficulties have been suggested which might
language which they used to have saved much arise upon the strict construction of the language
discussion before your Lordships. But there is of this statute . On that subject I must say I
enough in the statutes to show what the nature express my entire concurrence with what Sir
of the agreements was, because it is recited that Horace Davey said . It may be very ingenious
the said companies had agreed , so far as possible, and pleasant to entertain subtle questions of
each one to confine its supply to a separate dis- this sort ; but it is enough for me to decide this
trict, in order to economise capital and avoid the case upon the facts of this case without refer
too frequent opening of public streets ; and itence to any extraordinary or artificial hypo
proceeds to say that, for the purpose of giving theses which may be introduced for the purpose
effect to the agreements between the companies of showing how the exact construction of the
so entered into, the Legislature by the provisions statute might lead to inconvenient and disa
of the Act chooses to follow this preanıble in greeable results. What has been done in this
order to give effect to these agreements. Now , case is this, and I think it is not immaterial
the first observation that strikes one is, that, to regard the mode in which each of these
apart from those subtle questions which are persons engaged in a transaction which they
afterwards raised as to at what particular and both understood described the transaction which
exact point the property in the gas passes from was being effected between them . A com
the vendor to the vendee, we must first see what I pany is supplying within its district (according
the Legislature has described as the language of to the ordinary mode of gas supply ) this part of
the contract into which these different companies the railway . The railway company are dis
have entered. The contract was to confine the satisfied with the price. They think, as they take
supply to their own districts. Now , apart, as I a very large amount of gas, that they ought to
say, from subtle questions, what would anyone receive a discount upon the large amount of
suppose to be the meaning of that ? The district money that they pay, and accordingly they apply
itself is of course an abstract thing. It is the to what I will call their district gas company for
customers living in the particular district who a reduction in the amount by way of discount.
are to be supplied with gas, and, although it is | That company refuses,and says,“ Whether you take
most important to observe the mode in which the a small amount of gas or a large amount of gas,
Legislature has described that aggregate of you are bound to pay the proper gas rates.'
persons who are taking the gas, still, when Upon which what is done ? The railway company
one considers what the Legislature was dealing apply, and avow that they intend to apply, to
with,and what those companies by their contract another gas company, which does not reach that
were dealing with , it is very important to notice part of their railway by its district limits, to
that the district which is so referred to and supply them with gas (they know what that
which is to be mapped out, and was in fact means when they use that phrase) at a cheaper
mapped out, is to be a district in which the rate than the rival company will do it . Now , in
supply — that is, the supply to the customers in the first place, it seems to me that it is a clear
that district - is to be, so far as possible, confined evasion , if they could do it without infringing the
to each particular company. The map, which is letter of the statute. We will see presently
made part of the statute, is not an unimportant | whether they could, but, if they could do it, it
document to refer to, because by exact lines the seems to me it would be a clear evasion of the
particular districts within which the gas was to Act of Parliament. The Act of Parliament has
be supplied by the one company are marked , and intentionally created a monopoly . If by any
for the purposes of this statute each of those mechanical means, if by what I have described,
districts was to be the monopoly of the particular | I think , in the course of the argument as a long
company to which it was assigned , and competi arm , or by any mode of arriving at the same
tion was to be excluded . The whole object and conclusion, they could defeat themonopoly which
purport of it was that competition should be it was the intention of the statute to create, in
excluded in this way . It hardly rests there, my judgment that would be unlawful, because it
because, when one looks at that which is also would be an evasion of the monopoly ; and the
made in effect part of the statute, one sees this Act of Parliament intended to create a monopoly
provision : " In all cases where the map shows in each gas company supplying their own par
the premises fronted and numbered - where ticular district. But let us now see whether as a
numbers exist on the street to be included in the matter of fact they do not infringe the letter of
district - the boundary of the district is to be the statute. There is nothing in the statute
taken as comprising the rear of all such houses which describes the particular mode by which
and premises. Why ? Is it not manifest that the gas is to be supplied , and I think one may
there no questions of meters or pipes or mains assume that, dealing with such a subject, those
are referred to, but what is referred to there is who framed the Act of Parliament must be
this : that the houses or premises which are to supposed to know the mode by which gas is
be supplied with gas are so to be included in the | supplied. How is it supplied ? It is supplied by
district by the lines marked out, that where the mechanical means. It is not necessary to go
front of the premises is within the district, then, into the exact form in which the pressure is
incareorder to avoid any question , Parliament took produced,but it is supplied by mechanicalmeans
that the rear of those premises the front of in such a form as that,by going from one place to
which was in a particular district should not be another, it shall at some place or another - I will
excluded from it because the rear of the premises say in a moment where-- pass through a machine
happened to pass over the lines, for very obvious for the purpose of measuring the cubic area of
reasons? Then ,what is the problem which is now gas which from timeto time passes through , and
submitted to your Lordships for solution ? Also measure the amount of gas that is thereby
variety of ingenious suggestions have been made sent, and shall be paid for at the due rate. But
130 _ Vol. LXII., N . S.) THE LAW TIMES . [March 22 , 1890.
'H . OF L .] · Gas LIGHT AND COKE COMPANY v. South METROPOLITAN GAS COMPANY. [ H . Op L.
the operation does not stop there. The supply | anything to create a monopoly of such an
does not stop there. I say not whose property it abnormal supply as I referred to . It is only
becomes after it has passed the meter, but the necessary to look at the construction of the
thing which is being supplied — that which is by statute to see the sort of supply the statute was
the contract of both parties to be sent from one applying to. The gas was to be of a certain
place to the other - is the gas, and if the pressure illuminant power ; there is to be a certain amount
applied within district A , sends it into district B . of pressure upon it ; there are to be meters
for the purpose of consumption in district B ., supplied under some circumstances in order that
can it be gravely contended that that is not a persons in poor circumstance should not be com
consumption in district B . ! Take it in the other pelled to buy their own meters. But if you look
form . Supposing instead of doing what they at every part of the statute it is all directed to
have contracted to do here— to supply the gas at the one object of providing sufficient illumina
so much per cubic foot - they had said , “ Well, here | tion for the districts ; and the argument has at
is the gas; you can suck it through in some way | last reduced itself to this absurdity : that inas
if you please ; we have nothing to do with it much as the Act of Parliament does not prescribe
when once it gets to the meter." Obviously one (which is important, indeed , in another aspect)
would know that that was no compliance with that the gas must be supplied at the meter, but
the contract. Why ? Because gas is primarily that it may be supplied by contract between the
wanted for lighting. I have a word to say parties, by the calculation of the number of
presently as to the abnormal uses of gas which hours and the number of lights that they are
have been suggested in the argument, but the | burning if the parties so think fit, this is a
gas is wanted for lighting. It is to supply | monopoly created by the statute which will be
artificial light, and in order to supply artificial applicable if you do not burn by meter ; but if
light by means which are familiar to the parties, | you do burn in the way that has been suggested
you must apply pressure to force it through the by the number of hours and by the number of
pipes. Accordingly wherever there is a place at lights, why then you could be stopped as an
which the railway company in what I will call | invasion of themonopoly. What reason or sense
district B . is to be lighted , district A .must on could there be in such a distinction ? The Act of
this contract apply such pressure in its own Parliament meant what it said that the supply
district as will force the gas into district B . and of gas was to be confined to the particular dis
allow it to be consumed at every part of district tricts within which a monopoly was created ; and
B . where it is wanted. Mr. Rigby admitted that it seems to me to be hopelessly unarguable to
the exigencies of his argument required him to suppose that each of those parts of the statute
admit that, if it were thought convenient, the to which I have referred were made only to
whole of the surrounding district might have apply when gas was to be supplied by a particular
meters completely around every part of their means and not measured by meter, and that then
district which was intended to be made a it would be not within the monopoly, but if it
monopoly of, and if those meters only were were measured by meter it would. Under those
supplied , although the gas afterwards went into circumstances it appears to me that but for what
and supplied the whole of the district within it, I have pointed out as having prevented the
in the sense in which he used the word " supply," learned judges below exercising their own inde
it would not be within the Act of Parliament at pendent judgment in this matter, it never could
all. It seems to me that that reduces the whole | have been gravely argued at all. I am not certain
question to an absurdity . The Legislature knew that I have not already said more than the
what it was dealing with by this Act of Parlia difficulty of the case has demanded . Its import
ment. It knew that gas was supplied in this ance no doubt is very great because it affects the
way and by these means, and it intended , not- gas supply all through the metropolis ; but,with
withstanding, that these particular meters might reference to the difficulty of arriving at a con
be placed anywhere in order to measure as clusion in this case , I must say that the moment
between the vendor and the vendee what was the the facts are understood the moment the autho
amount of gas actually supplied. I was going to | rity of those two learned judges to whom I have
say consumed, but I do not want to use any word referred is out of the way - it seems to me that
which may seem to assume the question in the question could not have been in debate at all;
debate; they knew perfectly well that the supply but it is hardly arguable that this is not an
which they were speaking of was a supply such intentional interference with themonopoly created
as gas companies do supply for the ordinary | by the statute. I would go so far as to say it is
purposes for which gas is used . But then it is an express delivery of the gas in the rival dis
said that gas may be used for many purposes. ! trict, because, although it may bemeasured , and
It may be used for sending up balloons. It may | although the propertymay bechanged atthemeter,
be used for putting into a bag and using it any . that does not affect the question whether there
where you please, and nobody denies that it may | is a contractual delivery of the gas at each light
be so ; but I should think it very strange indeed at which it was burned . I am clearly of that
if a supply of that sort were made to depend opinion . There are abundant reasons, further, for
upon the particular place where it was manu - | saying that those judgments cannot be sustained ,
factured,and to confine themonopoly of selling gas and I move your Lordships that the judgments
used in thatway to that particular district. The appealed from be reversed , and that the respon
simple answer to that is, that the Act of Parlia dents do pay to the appellants the costs of this
ment is dealing in a common-sense way with appeal.
what everybody was familiar with - namely , with Lord FitzGERALD . - My Lords : I have read the
. a supply by mains and supply pipes which go | judgment in the Imperial Gas Iright and Coke
through streets - and did not contemplate probably Company v. The Great Western Railway Company
(it would be very hopeless to imagine it did) | upon a supposed decision upon which the judge
March 22, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 131
H . op L .] Gas LIGHT AND COKE COMPANY v. South METROPOLITAN GAS COMPANY. [ H . OF L .
in the primary court and all the judges in the to them by the Act of Parliament, and the ques.
Court of Appeal proceeded , and nobody can look tion is whether what the respondents are doing
at the report of the case in the court below and is to give a supply of gas within those limits.
in the Court of Appeal without reaching the The respondents deny that they do give a supply
conclusion that, if it had not been for an unfor within those limits, because they say the meter
tunate error in that respect, the decision both in by which the gas supplied is measured is outside
the court below and in the Court of Appeal would the limits of the appellants, and within their
have been exactly the reverse of what it has own limits, and therefore, as that must be taken
been . The Lord Chancellor has been good enough to be the place where the gas is supplied , they do
to go in detail through that case. I have said I not supply gas outside their limits, and within
have read every word of it to see if I could find the limits of the appellants. That depends upon
if there had been any decision by so great a what is the meaning of the language used in the
tribunal as the Court of Appeal when presided 6th section , and in what sense are the words
over by Lord Cairns, aided by Rolt, L . J. But I “ supply gas within the said limits ” used . In
can find nothing of the kind . There is a dictum order to judge of that, we are entitled to look at
of Lord Cairns which as a dictum is entitled to the other provisions of the Act. I look at the
respect and consideration ; but he caótiously preamble, and I find that the Act was passed to
avoids giving any decision upon the construction carry out an agreement by the companies, each
of sect. 6 of the Act of 1860. He entirely avoids one to confine its supply to a separate district.
that, and eventually the case was reduced to two Now , in what sense are the words " to supply "
propositions : one, as theGreat Western Company there used ? It seemsto be obvious that it refers
had not supplied any gas at that time to the to the supply for use in that district. Again , in
hotel company, whether there was any ground the earlier part of the 6th section , power is given
for an injunction quia timet ; and the next was, to alter the districts when it is shown that any
the Great Western Company said, “ Two years gas companies are not in a condition adequately
before the passing of the Act of 1860 we had to supply with gas their respective districts.
entered into an agreement to make this supply There, again , it seems to me obvious that what
to the hotel company if that supply should be the Legislature had in contemplation in using
demanded from us, and that agreement is pro the word " supply," was the supplying it for
tected by the54th section of the Act of 1860,which use in those districts. They conld not adequately
saves all rights and all agreements entered into supply their districts if they could not supply
before the passing of the Act.” It is upon that what was required for use in those districts ; and
alone that the case was finally decided , and even it seems to me that to construe the word
the obiter dictum of Lord Cairns is deprived of “ supply " there as applicable to the supplying
its importance even as a dictum by his Lordship 's it at any number of meters within their district,
own expressions in unhesitatingly saying that although for use in another district , would be
they decided nothing on the construction of the wholly out of the question . I may say, before
6th section of the Act of 1860. Turning from leaving the 6th section , that it would in my
that to the main question, I shall only say that I opinion entirely defeat the manifest intention of
concur in the observations which the Lord the Tiegislature if the construction for the re
Chancellor has made. I concur with him in all spondents were to prevail so far as that intention
respects, and I should add that if we were to indicates a desire to create a monopoly in these
adopt in this particular case the construction several companies in their respective districts to
which is sought by the very learned and astute prevent competition and consequent excessive
arguments which were addressed to us on the expenditure of capital. I cannot myself conceive
part of the respondents, it would be in effect to that the Legislature intended to determine where
unwrite the 6th section of the Act, and would the gas was supplied within the meaning to be
at least enable the respondent company in con attributed to that word in this Act of Parliament
junction with the railway company to evade the by the place where it was to be measured. No
provisions of that section entirely , and would doubt in a certain sense it may be said that the
enable the respondent company to forego the property passes at that point, and that the
obligations that they undertook and the agree amount to be paid is tested by what appears at
ments which they entered into , which ought to that point ; but to say that the company, although
be honourably and carefully fulfilled , and would the gas passes from their mains to the place of
enable them to evade those agreements and to use (be i'; a burner for the purpose of giving
defeat the operation of the Act of Parliament. light, or a burner for the purpose of giving heat
In this particular case nobody can doubt that | in precisely the sameway), is or is not supplied
there has been a supply of gas on sale, sold to the according as it is or is not measured within the
railway company, and delivered to them through limits of the company within whose limits it is
the mains laid down by the respondent company used , would be a most unreasonable construction
for the purpose of that delivery through the to put upon the Act of Parliament. But it is
district of the appellant company, delivered said that the 14th section of the Act shows that
through those mains, and delivered on sale to in the present case the railway company were
the railway company. That would be a complete actually entitled to require the respondents to
evasion ; thatwould be a device for the purpose | supply them with gas for those premises, and
of the evasion of the obligations of the Act of that consequently it cannot be a breach of duty
Parliament. upon the respondents' part to give
Lord HERSCHELL. - My Lords: I am of the which under the legislation they werethat supply
compelled
same opinion . I have little to add to what has to give. It is said that the railway company 's
been said by the noble and learned Lords. The premises were in part situate within the district
appellants complain that the respondents are of the
supplying gas on sale within the limits allotted i companyrespondents,and that being so situate the
were entitled to require them to provide
132 – Vol. LXII., N . S.] THE LAW TIMES . [March 22, 1890.
H . of L .] Guy v. CHURCHILL. [CT. OF APP.
à supply of gas for the purpose of being used on whether that be so or not, that is not the case
the premises. A number of questions arise upon with which we have to deal here. Pipes were laid
the construction of sect. 14 . First of all, whether down by the respondent company for the very
the railway company were not already snpplied purpose of conveying this gas to and supplying it
with gas. If they were, the section does not for use in the buildings of the railway company
apply. Next whether the section intends to give which were outside their own limits , and within
a right to demand a supply for the whole prg the limits of the appellant company. Under
mises, or only for such parts of the premises as those circumstances I have no hesitation in con
are within the limits. If the latter is the case , curring in the view which my noble and learned
again the section will be inapplicable to support friends have expressed.
the contention of the respondents. I do not Orders appealed from rerersed .costsRespondents
consider it necessary to determine either of those to pay to the appellants the here and
points, because it appears to me clear that these below . Cause remitted to the Chancery
various buildings, sheds, and workshops of the Division with directions.
railway company were not one premises within Solicitors for the appellants , Bedford , Monier
the meaning of sect. 14 . I think it would be and Robinson .
most unreasonable to put such a construction Williams,
upon the section . They are no doubt all under andSolicitors
Johnson .
for the respondents, Johnson , Budd,
the same ownership, but certainly all buildings
under the same ownership covering however
great an extent of ground could not be treated
as one premises for the purposes of such a section
as this. They had this in common , that they all
served certain railway purposes ; but the same
Snyreme Court of Judicature.
might be said of every part of the South -Western
system from Waterloo Station to, let us say, its
terminus at Weymouth . It appears to me, there
COURT OF APPEAL.
fore, that some more limited meaning must be Tuesday, May 28, 1889.
put on the word “ premises " in the section that (Before Lord ESHER, M .R .,Cotton and Fry, L .JJ.)
I am dealing with , and that the respondents have
not made out that any part of the premises, the Guy v. CHURCHILL. (a )
lighting of which is complained of by the appel APPEAL FROM THE CHANCERY DIVISION.
lants, is within their district. That being so, the Principal and agent - Del credere commission
14th section is inapplicable. But I think the Profit on transaction- Concealment of buyer's
14th section does throw light upon the ques.
tion , and points in the same direction as the In name. 1879 the plaintiffs, timber merchants, purchased
other provisions to which I have called attention ;
because it seems to show that the intention was through the defendants, timber brokers, timber to
not to compel the company to give what Imay the value of about 70,0001., and placed it in the
call a supply of gas at large. All the provisions hands of the defendants for sale on a del credere
in this Act seem to me to have relation to the commission , and received 20001. as the net profit
supplying premises or buildings, for the demand on the whole transaction . The defendants had
is to be one which entitles them to call upon the sold the timber to M .,who was their debtor for
company " to provide and lay sufficient communi large sums, and the plaintiffs alleged that M . was
cation service and other pipes up to the pre insolvent and that the sale was made under an
mises," and sufficient for what ? " To give a arrangement that he should become the purchaser
supply of gas for the purpose of being used in or of the timber, but that the defendants should
on the premises.” The sufficiency of the pipes is again sell the timber as for M ., and receive all
obviously to be measured by what is required for the proceeds thereof, and that out of the profits to
use in or on the premises. And by that I under be realised by the transaction they should repay
stand use in the ordinary manner for the purpose themselves the debt due to them from M ., and that
of lighting or heating in the ordinary way, and the defendants thereby recouped themselves to the
not for any of those abnormal uses to which amount of about 15,0001. That sun the plaintiffs
reference was made in the course of the argu claimed as profit due to them under the agency
ment. All those considerations lead me without contract existing between them and the defen
hesitation to the conclusion that in the present dants. Mi's name, as the purchaser of the
case the respondent company are, in contraven timber was not disclosed by thedefendants. The
tion of the Act of Parliament, supplying gas defendants alleged that they had acted in the
within the appellants' limits. It is said that ordinary way of business ; that the plaintiffs and
where a consumer obtains a supply through a M . both happened to be customers of theirs ; that
meter within the limits of one company, and his the comparatively large profitmade on behalf of
premises or his property extends within the limits M .was dueto accidental causes ; that the 15,0001.
of another company,that the first company could was, in the ordinary course of business, placed to
not prevent his doing what he liked with the the credit account of M ., and subsequently , athis
gas as soon as it had passed through his meter, request, placed against his debit account; that
and carrying it if he pleased to any part of his they had never concealed M .'s name from the
property though it were without their limits. I plaintiffs , but (as they proved ) that it was not
do not stop to inquire whether that is the case. according to the usual course of business to
I am by no means sure that that could be done. state the buyer's name in the sold note supplied
I am not satisfied that the company whose gas to the purchaser. The plaintiffs contended that
was so conveyed to and used within the limits of the circumstance of M .'s indebtedness was calcu
another company could not prerent it ; but, (a) Reported by FRANK EVANS, Esq., Barrister-at-Law .
March 22 , 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 133
CT. OP APP.] GLASIER v. ROLLS. [CT. OF APP.
lated to bias the defendants' judgment in fixing | business placed to the credit account of Mills,
the price at which M . should buy ; that the ques and subsequently at his request placed against
tion in all such cases was whether the agent had his debit account with the defendants .
a personal interest in the purchase being carried Chitty, J. held at the trial that the defendants
out, in which case the agentwas bound, in die had throughout acted honestly and in good faith ,
charge of his duty, to disclose such personal and given the plaintiffs the best advice in their
interest to his principal. power, and dismissed the action : (60 L . T. Rep.
Held (affirming the decision of Chitty , J., 60 L. T. | N . S. 740.)
Rep . N . S. 740), that the defendants had acted The plaintiffs appealed.
honestly throughout these transactions, and, in Maidlow and L . E . Pyke (Sir Horace Davey,
good faith , and had given the plaintiff's the best Q .C . with them ) for the appellants.
advice in their power. Sir Charles Russell, Q .C.,Romer , Q .C .,and Ingle
Held also , that a mere expectation on the part of Joyce, for the defendants, were not called on .
the defendants that the timber would be dealt Their LORDSHIPS adopted the principle that a
with according to the course of business with M . broker
in former transactions was not such dealing on in such ora agent will not be allowed to put himself
position that he is interested in the
the part of the defendants as the court considered goods he has sold - in other words, to put him
unfair to the plaintiffs. self in a position where he may be tempted to do
The plaintiffs were timber merchants, and em wrong. But they unanimously held that the
ployed the defendants as their brokers. plaintiffs had failed to show that the defendants
In the 1879 plaintiffs purchased , through the had any interest in the contract for sale - the
defendants , a quantity of timber to the amount inference to be drawn from the correspondence
ofabout 70,0001., and placed it in the hands of the being that the defendants had not an interest
latter for sale on a del credere commission of therein ; and that a mere expectation on the part
3 per cent. of the defendants, that the timber would be dealt
The plaintiffs received from the defendants with according to their course of business with
20001. on the footing that that was the net profit Mills in former transactions would not be con
on the whole transaction , after deducting com sidered as unfair dealing. The court also held
mission , & c . that the plaiutiffs had failed to show that the
The name of the purchaser (Mills) was not dis defendants had any knowledge that the affairs of
closed to the plaintiffs ; but the defendants Mills were desperate, if they in fact were so.
denied that his name had been concealed from The decision of Chitty , J. was accordingly
the plaintiffs, and called witnesses proving that affirmed .
it was not the custom of brokers to give the name Appeal dismissed with costs .
of the buyer in the sold note, and that to dis Solicitors for the appellants, Irvine and
close the fact of the buyer's indebtedness to Hodges .
the broker might be most injurious to the buyer. Solicitors for the defendants, Hollams, Sons,
The defendants had sold the timber to Coward ,and Hawkesley .
Mills - who was admittedly a customer of the
defendants, and indebted to them in a large
amount - and the plaintiffs alleged that Mills
was atterly insolvent, and that the sale to him Friday, July 26 , 1889.
was made under an arrangement that he should (Before Cotton, Fry, and LOPES, L.JJ.)
become the purchaser of the timber, but that GLASIER v. Rolls.(a )
the defendants should again sell the timber as for FROM THE CHANCERY DIVISION .
Mills,and receive all the proceeds thereof, and | ActionAPPEAL
for deceit - Company Prospectus - Misre
that out of the profits to be realised by the trans presentation — " Capital employed in the busi
action they should repay themselves the debt ness " - Liability of director for statements in
due to them from Mills. The plaintiffs alleged
that the defendants thereby recouped themselves prospectus — Promoter.
to the amount of some 15,0001., and this sum the In May 1886 a prospectus was issued inviting
plaintiffs claimed as profit due to them under the applications for shares in the company of J. R . and
alleged agency contract existing between them Sons Limited , which was being formed to take over
selves and the plaintiffs. the business of J. R . and Sons. This prospectus
The plaintiffs contended that the circumstance contained a statement that “ the business at the
of Mills indebtedness was calculated to bias the present time returns a net profit of over 17 per
defendants' judgment in fixing the price at which cent, on the capital employed ." G . R . was the
Mills should buy, and that the question in all principal partner in the firm of J. R . and Sons,
guch cases was whether the agent had a personal and was named in the prospectus as one of the
interestin the purchase being carried out, in which directors ; but it was stated therein thathewould
case the agent was bound in the full discharge of join the board on completion of the purchase.
his duty to disclose such personal interest to his The firm had, on the 1st April 1886 , sold the busi
principal as a material circumstance. ness to the Universal Contract Corporation
The defendants alleged that they had acted Limited , and they resold to the proposed new com
merely in the ordinary way of business ; that the pany. G . R . did not see the prospectus which was
plaintiffs and Mills both happened to be the defen actually issued ; but he saw aná corrected two
dants' customers ; and that the comparatively previous drafts. G . R . did not join the board of
large profits made on their sales on behalf of directors until the 19th Aug. 1886 . In an action
Mills was due to accidental causes, such as the by an investor against G . R . for deceit and
breaking up of the ice in the Baltic ports, and damages, Kekewich J . held , upon the facts, that
that the 15 ,0001. was in the ordinary course of i (a) Reported by FRANK Evans, Esq., Barrister-at-Law .
134 - Vol. LXII., N . S.] THE LAW TIMES. [March 22 , 1890.
Ct. Of App.] GLASIER v. Rolls. [CT. OF APP.
the statement in the prospectus was untrue, and I about to be formed. This agreement was to be
(following the decision of the Court of Appeal in / void in case the purchase should not be completed
Peek v. Derry, 59 L . T . Rep . N . S . 78 ; 37 Ch . on the 1st June 1886 . This new company (formed
Div. 541), that G . R .must be held liable as a pro with the name of J. Rolls and Sons Limited, and
moter of the company, as the information upon having a nominal capital of 80,0001. in 16 ,000
which the statementwas based was furnished by shares of 51. each ) entered into an agreement with
him . After the judgment of Kekewich , J., the the Universal Contract Corporation Limited for
House of Lords reversed the decision in Peek v. | the purchase of the assets for 51,3601., of which
Derry (Derry v. Peek , 61 L . T. Rep . N . S. 265 ; the sum of 26 ,6651. was to be taken in fully paid
14 App. Cas. 337). up shares.
Held , on the authority of Derry v . Peek, that the On the 13th May 1886 a prospectus and a
plaintiff, on whom lay the onus, must prove circular letter relating to the company were
(1) that the defendant's statement was untrue ; George issued to the public (as the plaintiff alleged by
(2) that itwas dishonest ; (3) that if he believed it Rolls), and copies of the same were
to be true, thatwas sufficient,however unreasonable received by the plaintiff. George Rolls was
his belief might be ; (4) that the plaintiff had named as a director in the prospectus, but an
asterisk was placed after his namereferring to a
failed to sustain the onus of proof.
The decision of Kekezich , j. (60 L . T. Rep. N . S. | note which stated that he would join the board
591) reversed . on the completion of the purchase. The circular
Up to Nov. 1879,when R . E . Rolls died, he and letter contained a statement that the business
George Rolls were partners in the business of had been established and carried on with great
floor cloth and linoleum manufacturers, and on success net for ninety-four years ; and that the
the death of R . E . Rolls George Rolls became sole annual the capital
profits were “ equal to 17 per cent. on
employed in the business." The pro
owner of the business, subject to paying to the spectus had on its outside the words “ present
representatives of R . E . Rolls thesum of 28691. 188. annual net profit 17 per cent.,"
(the amount standing to the credit of the latter (inter alia ) the following statementsand :
contained
in the capital account), and taking on himself the This company has been formed for the purpose of
liabilities of the firm . purchasing, as åand
going concern, and further extending,
According to the account then made out, the the well-known old -established business of linoleum
assets and how they were paid for appeared as and floor-cloth manufacturers, successfully carried on by
follows : Messrs. James Rolls and Sons for the past ninety-four
Assets. £ 8. d . years, together with the extensive freehold and lease
Valuet of buildings... ... ... 11,000 0 0 hold premises at Galleywall-road and Graham -road ,
Plan , & c . ... ... ... 3,057 17 10 Bermondsey , & c.
Cash at bank ... ...* " * ..
**... 208 7 1 nessTheatannual
the
sales are already very large, and the busi
present time returns a net profit of over
Debts due to firm 388 96
Stock ... ... ... ... 7,157 08 17 per cent. on the capital employed . From a careful
calculation ,based on the present results,and also taking
into consideration the increased trade and saving in the
£21,811 15 1 cost of production , which must occur as soon as the
1879 . How paid for. necessary additions and improvements are completed ,
Capital credited to G . Rolls £ 8. d . £ 8. d. the directors feel confident that the shareholders will,
within a short time, receive dividends of 20 per cent.
in old firm ... ... ... ... 2,869 18 0
Capital credited to G . Rolls On the faith of the prospectus and circular
in cash account ... ... 1,022 7 9 3 ,892 5 9 letter, and relying especially on the statement as
To executorstaken
Liabilities . E . Rolls...
of Rover ... 2 ,869 18 0 to the net profit being over 17 per cent., the
... ... ... plaintiff subscribed for 200 shares and paid 10001.,
and he brought the present action against
£21,811 15 1 G . Rolls and the firm of J. Rolls and Sons
By articles dated the 9th Oct. 1885 G . H . Rolls Limited , but the action was afterwards discon
and P . W . Rolls became partners in the business | tinued as against the company.
with G . Rolls. The business premises remained By his statement of claim the plaintiff alleged
the property of G . Rolls, and were let by him to that the prospectus containing the representation
the partnership at the annual rent of 6801. The | as to 17 per cent. was issued by G . Rolls ; that
capitalof the new firm was to consistof (a ) the trade such statement was false, and that G . Rolls
fixtures, plant and machinery, and the goodwill, knew it to be false at the time when it wasmade ;
stock -in -trade,and books- taken together as worth and the plaintiff claimed a declaration that he
16 ,9171. 188. 9d.; and (b ) 10001. brought in by was induced to take the shares by the fraudulent
G . N . Rolls and P . W . Rolls in equal shares. The misrepresentations of G . Rolls, and damages for
articles further provided that G . Rolls was to | loss occasioned thereby.
be credited with the yearly sum of 8141. as By his defence the defendant traversed the
interest on the 16 ,9171. 188. 9d ; that the 10001. , statements in the claim , and stated that the
brought in by the other partners was not to bear defendant had reasonable grounds for believing
interest ; and that any further capital brought that the annual profits of the business at the
in by a partner was to carry interest at 4 per time of and prior to the issue of the prospectus
cent. were equal to 17 per cent. on the capital
By an agreement dated the 1st April 1886 the employed ; and that the representations (if made
partners agreed to sell to the Universal Contract at all) were made bonâ fide and without fraud
Corporation Limited thebusiness premises, plant, or negligence.
machinery, stock - in - trade, and goodwilĩ for It was not proved that the defendant had any
38,3601., of which 33,3601. was to be paid in cash , thing to do with the circular letter, but he saw
and the balance by the transfer to the vendors of and corrected two drafts of the proposed pro
1000 fully paid -up shares of 51. each in a company I spectus. He did not see the actual prospectus
March 22, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. - 135
CT. OF APP.] GLASIER v. Rolls. [CT. OF APP.
which was issued until a day or two after its | countants, and he had no grounds for disbe
issue to the public. lieving the report which they made. The onng
An interim dividend of 10 per cent. was re- of proving that the statement was fraudulent
ceived by the plaintiff on the 30th June 1886, but has not been discharged by the plaintiff, upon
no further dividend was ever declared . whom it lay. They also referred to
At the trial before Kekewich , J. it was shown Peek v . Garney , L . Rep . 6 E . & I. App . 377 .
that, as originally prepared , the prospectus stated Warmington , Q .C . and J. M . Solomon for the
that the present returns showed “ a profit of over plaintiff. - The whole of the prospectus must be
20 per cent.on the capital employed in the busi looked at, and,when this is done, it is impossible
ness; " that G . Rolls objected to this statement, | to contend that Rolls believed what was stated .
whereupon it was modified ; that there was a | The decision of the House of Lords in Derry v.
difficulty in ascertaining what therealprofits had Peek must be read in connection with the parti
been,as no proper balance sheet had been made out cular facts of that case. The capital, if taken
for some years ; and that the business premises at its proper amount, was about 23,0001., and on
were in 1879 subject to a mortgage for 89001. to that there nerer was anything like a profit of
the firm 's bankers, which sum was included in 17 per cent. Lord Selborne, C . laid down in the
the liabilities taken over by G . Rolls. House of Lords that a man's knowledge and
In his cross-examination G . Rolls said he did means of knowledge must be taken into con
not consider the business premises as part of the sideration :
capital; that if such premises were excluded Smith v. Chadwick , 50 L. T. Rep. N . S. 697 ; 9 App.
the capital in 1879 might be considered as Cas. 187.
10,8111. 158. ld ., which was in 1885 increased by | Lord Halsbury, C ., in a later case, adopted the
10001, by the capital brought in by the new language of Lord Selborne :
partners ; and that in the meantime 57001. had Arnison v. Smith , 59 L . T. Rep . N . S. 627 ; 41 Ch .
been spent in plant and in improving the Div. 348.
buildings . And in Derry v. Peek the same judge adopted what
A report of accountants showed a profit of he himself said in the case last cited . According
about 17 per cent. if the capital was taken at to Lord Halsbury , a man cannot be heard to say
14,0001. or less, but a much smaller profit if the that he did not know the ordinary meaning of
buildings were taken as part of the capital. ētiņ₂/₂/₂/₂/₂ņģētiņ₂₂/₂/₂/ ₂ /₂ /ti₂ūņēģ₂ /₂Â₂Ò₂ÂòÂ§ņģēņģētiò
Kekewich , J. held that G . Rolls was liable to at liberty to say that the words “ capital em
the same extent as if he had actually issued the ployed ” were used in a non -natural sense. Rolls
prospectus; that the statement as to 17 per cent. certainly had the knowledge or the means of
was untrue, and made recklessly without any I knowledge. Moreover, he is liable for the
reasonable ground for believing it to be true ; fraudulent statement of his agent acting for him
and, on the authority of the Court of Appeal in and for his benefit :
Peek v. Derry (59 L . T. Rep . N . S . 78 ; 37 Üh. Div . Barwick v. English Joint Stock Bank, 16 L . T. Rep .
541), that G . Rolls was liable for damages for mis N . S . 461 ; L . Rep . 2 Ex. 259 ;
representation Weir v . Bell, 33 L . T . Rep. N . S, 929 ; 3 Ex. Dir.
The decision of Kekewich , J. is reported 60 238 .
L. T. Rep. N . S. 591. [ FRY, L .J. - The question whether the agent was
From this decision the defendant appealed , but, fraudulent not having been tried in the court
before the appeal cameon for hearing, the decision below , can the plaintiff ask formore than a new
ofthereversed
Court ofbyAppeal in Peek v. Derry (ubi sup.) trial on the terms of paying the coats ? ] The
the House of Lords : (Derry y . finding below is, in effect, of dishonesty — that
was
Peek ,61 L . T. Rep. N . S. 265 ; L . Rep. 14 App. the statement was inserted without sufficient
Cas. 337.) justification, that is, recklessly. The admission
of Rolls that he did not know what the amount
The defendant appealed . capital was brings him within Derry v. Peek ,
Moulton , Q.C . and Muir Mackenzie for the of for Lord Herschell in that case asks whether a
appellant.-- The decision of Kekewich, J. was man can believe what he knows he is ignorant of
based on the view of the law taken by this court - belief must have reference to moral certainty .
in Peek v. Derry (ubi sup.) ; but the decision of The judge below found that no one concerned in
this court was reversed by the House of Lords making the prospectus had the means of honestly
(Derry v. Peek , ubi sup.). If it is shown , as was stating the facts. The evidence is quite sufficient
shown in the present case, that the defendant to
made the statement bonâ fide and believing it to to show that the defendant knew the statement
be untrue. At any rate, to use the words of
be true, it is unnecessary for him to show that Lord Bramwell in Derry v. Peek, “ he knew that
he had good grounds for so believing . More he had no reasonable ground for belief."
over, the statement was not untrue in the sense
in which the defendant made it . The statement Moulton replied.
that the annual profits were 17 per cent. on the Cotton, L .J. — This is an appeal by the defen
capital was perfectly true if capital actually dant from the judgment of Rekewich , J., who
employed in the business was referred to , and found the defendant liable in an action of deceit.
that was what the defendant understood by The plaintiff relied upon this : that the defendant
capital. But if the statement was not true, the Rolls was party to the bringing out of a company,
defendant believed it to be so . Far from acting and that, although he did not issue the prospectus,
recklessly,he refused toacquiesce in the statement he subsequently recognised and sanctioned it ,
origioally proposed to be made. Not himself and that that prospectus contained material false
knowing what the actual profit was, he placed statements of fact for which he is responsible.
proper materials for ascertaining the amount in The real question turned on one paragraph in
the hands of themost competent people, the ac- | the prospectus, which was this : “ The business
136 - Vol. LXII., N.8.] THE LAW TIMES. (March 22, 1890.
CT. OF APP.] GLASIER v. Rolls. [CT. OF APP.
at the present time returns a net profit of over | ment. He finds that the paragraph was inserted
17 per cent. on the capital employed.” That is | recklessly without any reasonable grounds for
the passage relied on as containing a false state- , making it ; but we have not any finding of the
ment ; but it was reasonable for Mr. Warmington judge that he was guilty of dishonesty , and it is
in his argument to refer us to other parts of the very difficult for this court, without seeing the
prospectus so as to obtain the true meaning of the | witnesses, to find that the defendant did make
words “ capital employed .” I think it is also the statement dishonestly . [ His Lordship then
reasonable to look at the prospectus to see went through the facts of the case, and said that,
whether the statement was adopted dishonestly , although the calculation on which the defendant
by Rolls. I think there is nothing in the re based his estimate of profits might be wrong,
mainder of the prospectus which throws light still, unless the court found that it was so entirely
on the words " capital employed ," nor can I see absurd that it must be taken as proof of dis
anything tending to show that the statements honesty or fraud, that was not sufficient, and
were made dishonestly on the part of the defen - proceeded :) There does not seem to be any
dant. He did not prepare the prospectus, and I ground for holding that the defendant was
think it speaks in favour of his honesty that he guilty of that which the House of Lords has held
struck out one paragraph of the proof of an to be essential. The fact that he has acted with
earlier prospectus, a statement that the net folly, without any reasonable ground for belief, is
profits were over 20 per cent. He could not | not now a ground for holding him to be fraudu .
agree with the statement,and therefore he struck lent. But the respondent asks us for a further
it out. When this case was heard by Kekewich, opportunity of having the case tried again .
J.,what was the state of the law with reference to | Undoubtedly the case was tried on the former
these matters ? As laid down by this court, it occasion at a time when the law washeld to be as
was, that a man was liable in an action for laid down by this court in Peek v. Derry . But,
damages if he had made a statement in order to even as the law then stood, it would have been to
induce people to act on that statement, if that the plaintiff 's advantage to prove fraud. There
statement was untrue, although he believed it to was nothing to prevent the plaintiff proving a
be true, but without any reasonable ground for case of fraud, if any fraud there was, as to which
that belief. But since that time the House of I say nothing. When a person has a case which
Lords has arrived at a decision (in Derry v. Peek) he does not choose to present at the proper time
which has entirely upset that view , and which I think it would be very dangerous to allow him
has laid down that the case must be governed by to do so when the case which he has presented
the old rules as to deceit - viz., that the plaintiff has failed . In my opinion , it would be wrong to
must show two things : (1) that the statement is give the plaintiff any opportunity of trying the
untrue; (2) that it was made dishonestly. That case over again . The appeal consequently suc.
it arose out of folly or of negligence, however ceeds, and the judgment of Kekewich , J. must be
gross, is now apparently immaterial; unless reversed .
actual dishonesty in making the statement is Fry, L .J. — This is an action for deceit, based
proved no action of deceit will lie. That we on a single sentence in the propectus, " the
must take now to be the law , and consequently business at the present time returns a net profit
there are two questions for us to consider in the of 17 per cent. on the capital employed." Mr.
present case - viz., whether the statement is inac Solomon has urged that the manager of the Con
curate, and , if so, whether it was made dis tract Corporation was the agent of Rolls ; that
honestly. Upon the first question , I think that hemade the statement in the prospectus knowing
Fry , L . J. takes a more favourable view of the con it to be false ; and that the defendant is liable for
struction of the statement than I am inclined to the false statement of his agent. But there is a
do ; but it is a doubtful expression , and I cannot preliminary difficulty in the way of the plaintiff's
say that it was positively untrue. If the words success,for this point was not put to the defendant
“ capital employed ” are taken in one sense, the in the court below . We are now asked on paper
profits shown would amount to 17 per cent. on evidence to convict a man of fraud on grounds on
the capital employed , and I do not intend to enter which the judge who heard the case did not hold
into the question as to the precise meaning of the | him liable. We cannot do this. The real ques
words, because the case has to be decided on the tion for decision is, whether we ought to direct
second question , and we cannot cometo the con a new trial on the points now raised which
clusion that the statement was made dishonestly were not before Kekewich, J. I think we
by the defendant. In my opinion, the burden of ought not. In the first place, I entirely agree
proof is on the plaintiff. He charges the defen | with Cotton , L . J. as to the danger of allowing
dant with fraud, and hemust prove fraud against a person who has a case which it is open to
thedefendant. It isfor the plaintiff to prove fraud, him to present below , but which he does not
not for the defendant to prove that he made the present below , to have a new trial when the
statementwithoutfraud. Thecourt will look at the case which he has presented has failed . It was
circumstances of the case, but the burden of proof quite competent for the plaintiff to present his
is on the plaintiff. I should say that,unless there case in two alternatives - ( 1) that the statement
were very clear evidence on the documents before was false to the knowledge of the defendant,
us or on the facts themselves that there had been in which case it would be fraudulent; or (2 ) that
fraud on the part of the defendant, this court it was made so recklessly that it must be taken
ought not to find him guilty of the fraud when to be fraudulent. But upon this question I think
the judge below , who had the witnesses before the case presented does not require us to put the
him and had the opportunity of seeing them , has defendant to the trouble and expense of a second
not so found him . It was urged on behalf of the trial. The two questions for us to consider are :
plaintiff that the judge had found the defendant (1) Were theallegations false ? ( 2) Was there any
guilty, but I do not take that view of his judg. I fraud, or, in other words, were they false to the
March 22, 1890. ) THE LAW TIMES. (Vol. LXII., N . 8.- 137
CT. OP APP.] Re HENRY POUND, Son, and Hutchins LIMITED. (CT. OF APP.
knowledge of the defendant ? The evidence, so I Thursday, Aug. 8, 1889.
far as it goes, does not convince me that the (Before Cotton, Fry, and LOPES, L .JJ.)
allegations were false in fact. I will not dis | Re HENRY POUND, SON , AND HUTCHINS LIMITED. (a )
cuss the meaning of “ capital employed ,” but I APPEAL FROM THE CHANCERY DIVISION ,
am by no means sure that I put on those words
the construction which Kekewicb , J. has put on Company – Debenture — Mortgage — Receiver —
them , and I think that, on the evidence, I should Winding.up - Possession of assets — Companies
cometo the conclusion that the capital was less Act 1862 (25 & 26 Vict. c. 89), 88. 87 and 163 –
than 13,0001., in which case the statement would Conveyancing Act 1881 (44 & 45 Vict. c. 41),
be accurate. It is not necessary to decide 88. 19 and 24 .
this, but I only say that I am not satisfied By debentures a company, as beneficial owner,
as to the falsity of the statement. But I charged with payment of the money secured “ all
think the case entirely fails on thesecond question , its present and future capital, stock,goods, chattels,
were these statements known by the defendant and effects, and all its real property and interest
to be false ? [His Lordship shortly reviewed the in lands, including the amount uncalled on its
evidence, from which he came to the conclusion shares already issued , or hereafter to be created
that there was nothing to show any fraud on the or issued ,and also all its presentand future plant,
part of the defendant, and concluded :) There machinery , stock , manufactured and unmanu
fore I think the appeal must succeed . factured, book and other debts, good will and
LOPES, L . J. - It is unnecessary to express any assets, and generally all the present and future
opinion as to whether the decision of Keke property, real and personal, and undertaking of
wich, J. would have been right if the decision of the company."
the Court of Appeal in Peek v . Derry (ubi sup.) The debentures also provided that if the moneys
had not been reversed in the House of Lords. secured should becomepayable, or after a petition
The House of Lords has held that, if a state for winding-up should have been presented , or
ment is untrue in fact, but believed to be true, a resolution to wind-up passed , the debenture
although without any reasonable grounds for holders might at their own instance, without any
such belief, no action for deceit will lie. There further notice, appoint one ormore persons to be
must be moral delinquency - actual dishonesty . a receiver or receivers of the property charged by
Lord the debentures in likemanner in every respect as if
adoptedHerschell and three
the first the other learned Lords
definitions of fraud they weremortgagees within the meaning of the
necessary to support an action of deceit which Conveyancing and Law of Property Act 1881, and
I gave in Peek v. Derry ; but he and the had become entitled under that Act to exercise the
other learned Lords rejected the fourth defini power of sale thereby conferred , and such receiver
tion which I gave, viz ., a statement untrue should have power to take possession of the pro
in fact but believed to be true without any perty, to carry on the business of the company, to
reasonable grounds for such belief. The sell any part of the property , and to use the name
House of Lords, as I read the opinion of the of the company. On the 4th May 1889 a wind.
learned Lords, has held that the inaccu ing-up order was made, and an official liquidator
racy of a statement, however unreasonable, if was appointed . On the 8th April (but after pre
honest and bona fide, will not support an action sentation of thepetition to wind-up) the debenture.
for deceit - I presume because it does not con holders demanded payment. On the 10th May
. So
dishonestywhich the debenture-holders appointed a receiver of the
tain the
that, containsofa statement
prospectuselement
if a necessary property of the company . On a summons by the
ninety-nine persons out of one hundred would debenture-holders, asking that, notwithstanding
understand in a sense which would make it the appointment of an official liquidator, the
obviously inaccurate, still, if the party making receiver might be at liberty forth with to take
it honestly believed that it bore a meaning which possession of the property of the company, Kay , J.
would make it accurate, no action would lie, the held that he had a discretion , and in the exercise
obrious inaccuracy and unreasonable belief being of that discretion refused to make the order asked ,
evidence of dishonesty , but not of themselves but appointed the official liquidator to be receiver
ground of an action . For the reasons given by on behalf of the debenture-holders, and gave leave
the other members of the court, I do not think to the debenture-holders to attend all the proceed .
there was in this case any evidence of dishonesty ings in the winding-up : (61 L. T. Rep. N . S.
within the meaning of Derry v . Peek in the House 207.)
of Lords, the burden of proving fraud or dis Held, on appeal, that although the winding-up
honesty being on the plaintiff. For the reasons prevented the receiver from doing various things
given by the other members of the court, I also which he was authorised to do by the debenture
think there should not be a new trial. deed — for instance , carrying on the business, or
Appeal allowed . making a call — the order of Kay, J. must be
discharged , and an order made authorising the
Solicitor for the appellant, E . T. Tadman . receiver to take possession forthwith of all the
Solicitors for the plaintiff, Byrne and Lucas. real and personal property of the company, but
without prejudice to any question as to his powers
other than the powers to take possession and sell.
The above-named company, in June 1888, issued
15,0001. first mortgage debentures in thirty
debentures of 5001, each ; and one of these was
paid off in Feb . 1889. They were all taken up by
the Debenture Corporation Limited .
(a) Reported by Frank Evans, Esq., Barrister-at-Law.
138 - Vol. LXII., N . s .) THE LAW TIMES. [March 22, 1890.
Ct.Or App.] Re HENRY Pound, Son , AND HUTCHINS LIMITED. [CT. OF APP.
In Oct. 1888 the company, with the consent of of the company ,and for that purpose to make or procare
the corporation, created a further issue of 50001. advances, and to secure the samewith interest at 6 per
firstmortgage debentures of 5001. each . cent. per annum by mortgage or charge in priority or
The whole of the second series of debentures subsequent to the principalmoneys and interest secured
were issued to and taken up by the corporation . by first mortgage debentures or otherwise, as may be
thought expedient. (c) Make and effect all repairs and
All the debentures were in the same form , except insurances, and do all other acts which the company
as to the dates of payment. The company en well might do in the ordinary conduct of its businesses as
gaged to pay on a certain day to the corporation , property for the protection as for the improvement of the
or other registered holder of the debenture, the and agentshereby charged. (d ) Appointmanagers, officers,
for the aforesaid purposes at such salary as
sum of 5001. and interest at 6 per cent., and the the corporation may determine. (e) Sell all or any part
debenture continued : or parts of the property hereby charged in such manner
And the company doth hereby, as beneficial owner, and generally on such terms and conditions as he shall
charge with such payments all its present and future think charged
fit. (f) Let all or any part of the property hereby
for such term and at suchbyrentashemay think
capital, stock , goods, chattels, and effects, and all its fit . (b ) Compromise
real property and interest in lands, including the pany. (h ) Call up allanyor claim or against the com
amount uncalled on its shares already issued , or here capital of the company. (i)any portion of the uncalled
Use the name of the com
after to be created or issued , and also all its present pany in any proceeding. (k ) Give valid receipts for all
and future plant, machinery , stock, manufactured and moneys, and execute all assurances
unmanufactured, book and other debts, goodwill and he may think proper for realising theandproperty things which
. Pro
assets , and generally all the present and future pro
perty, realand personal, and undertaking of the com any vided that if the extraordinary resolution referred to in
pany ,allof which premises of every kind above specified such notice as mentioned in this condition be not
are intended to be included in the term “ property " passed by the necessary majority , or if any petition as
mentioned in this condition be dismissed or withdrawn,
wherever used herein . or if any such resolution as herein
The holder of the debenture was entitled to an extraordinary resolution be not mentioned
confirmed asother than
a special
the benefit of, and to hold subject to , the pro resolution, or if any such judgment for 1001., or for
less sum as aforesaid shall be satisfied or secured to
any
tha
visions contained in a trust deed , dated the 28th satisfaction of the creditor and of the corporation , and
June 1888, and made between the company and any receiver so appointed by the corporation as afore
the corporation. By condition 5 of the debenture said shall have entered into possession under the power
the principal moneys thereby secured were to given by this condition, then , without prejudice to any
become payable on the happening of certain rights exercisable otherwise than in consequence of the
events, and on demand of payment by the regis. presentation of such petition, or the passing of the said
tered holder thereof, and all right of the com resolution or the suffering of any such judgment, and
pany to deal for any purpose whatever with any subject to anything done in pursuance of the powers
given by this condition in themeantime, possession of
of the property was forthwith to cease on the the said property shall be restored to the company , and ,
happening of any such events, namely (a ) If the subject to the provision contained in condition No . 11,
company made default for twenty -one days in the company and the holder of this debenture shall be
payment of interest; (6 )made default in payment remitted to their original rights.
of principal; (d ) if an order was made or a Condition 8 was as follows :
special or extraordinary resolution passed for The corporation shall not, nor shall any receiver or
winding-up. receivers appointed by it as aforesaid , by reason of the
Condition 6 provided as follows : receiver or receivers entering into possession of the
property hereby charged or any part thereof, be liable
Atany timeafter the principalmoneys hereby secured to account asmortgagee or mortgagees in possession , or
shall bave become
debenture, or underpayable according toor the
these conditions, aftertenor of this
a petition be liable for any loss on realisation, or for any default,
| or omission for which a mortgagee in possession right
for winding-up the company shall have been presented , be liable, but every receiver duly appointed by the cor
or a resolution capable of being confirmed as a special poration under the power in that behalf herein before
resolution to wind -up the company shall have been contained shall be deemed to be the agent of the com
passed , or a notice shall have been given of a meeting to pany, and shall as such agent forall purposes be deemed
consider a proposed extraordinary resolution forwinding to be in exactly the same position as a receiver duly
up the company, or if judgment is recovered and enforce appointed by a mortgagee under the Conveyancing and
Law of Property Act 1881, and every such receiver and
able
or if against
judgmenttheis company
recoveredfor any sum
against exceedingfor1001.,
the company any | the corporation and the holder of this debenture shall
less sum , and the company does not in such latter case be entitled to all the rights, powers, privileges, and
within
secure seven days fromdebt
the judgment theand
datecosts
of the
to judgment pay or and
the satisfaction immunities by when
receivers, the saidsuchActreceivers
conferredhave
on mortgagees
been duly
of the creditor and of the corporation (and so that no | appointed under that Act.
delay or waiver of the right to exercise the powers | Condition 10 empowered the corporation to
hereby conferred shall prejudice the future exercise of examine the accounts. Condition 11 provided that
such powers) the corporation may at their own instance, All costs, charges, and expenses incurred and all pay.
or at the request in writing of the registered holders of
one-fourth in value of the firstmortgage debentures ont ments made by the corporation and any receiver or
standing without further notice by writing under its conferred,inincluding
receivers the lawful exercise of the powers hereby
all such remuneration as shall be
seal appoint one or more persons to be a receiver or I paid to any such receiver or receivers, shall be payable
receivers of all or any part of the property hereby pa by the company on demand, and shall carry interest at
charged in were
corporation like mortgagees
manner in within
every the
respect as ifof they
meaning the 1 6 per cent. per annum from the date of the same being
Conveyancing and Law of Property Act 1881, and had incurred, and contained
dition No. 6 that notwithstanding the proviso
shall have come in con,
into operation
become entitled under that Act to exercise the power of and the amount of all such costs, charges, and expenses.
sale thereby conferred, and every receiver so appointed
shall have and be entitled to exercise all powers con and interest shall be an additional charge on the said
ferred by the said Act as if such receiver or receivers property .
had been duly appointed thereunder, and in particular | By the trust deed of the 28th June 1888 the
by way of addition to , but without hereby limiting any company demised leaseholds to the corporation as
general powers
receiver hereinbefore
so appointed by the referred to, every
corporation shall such
have collateral security for the 15,0001. first mortgage
power to do the following things, viz. : (a) Take imme debentures. A deed of the 27th Oct. 1888, indorsed
diate possession of the property hereby charged or any on the trustdeed, extended the collateral security
part thereof. (6) Carry on any business or businesses to the 50001, second series of debentures.
March 22, 1890.] THE LAW TIMES . [Vol. LXII., N .S.— 139
Ct. OF APP.] Re HENRY Pound, Son , AND HUTCHINS LIMITED. [CT. OP APP.
On the 29th March 1889 a petition to wind-up powers given by the debentures ? He may not be
the company was presented , and on the 30th able to do things inconsistent with the winding.
March a provisional liquidator was appointed. up .] The court has a discretion as to the appoint
On the 3rd April another petition was presented, ment of a receiver. If the receiver appointed
and on the 4th May 1889 a winding- up order was under the deed is allowed to exercise such powers
made on both petitions, and an official liquidator as are purported to be given by the debentures,
was appointed. On the 8th April 1889 , the cor- a company may in effect provide that on 3 wind
poration demanded payment by the company of ing-up a third person shall take possession , and
the amount secured by the said first mortgage take the winding-up out of the bands of the court.
debentures. The winding-up order related back The court will not allow a mortgagee to appoint a
to the presentation of the petition , and therefore receiver of all the company's assets and thus
the commencement of the winding-up dated from suspend the winding.up. They cited
the 29th March , namely , before service of the Perry v. Oriental Hotels Company, 23 L . T. Rep.
demand. On the 10th May 1889 the corporation, N .'s. 525 ; L . Rep . 5 Ch . App. 420 ;
under the powers given by the debentures, Re Compagnie Générale de Bellegarde, 34 L . T. Rep.
appointed a receiver of the property of the com N . S . 54 ; 2 Ch. Div. 181 ;
pany, and notice of the appointment was on the Ex parte Roberts ; Re Browne, Bayley , and Dixon ,
18 Ch. Div . 649 .
Ilth May served on the provisional official liqui Atthe conclusion of the argument of the respon
dator. dents' counsel, their Lordships expressed con
A summons was taken out by the corporation , siderable doubt whether many of the powers
the holders of the first mortgage debentures, which the appointment purported to give to the
asking that,notwithstanding the appointment of receiver could be exercised by him , but suggested
an official liquidator, the receiver appointed by
the applicants under the powers aforesaid might to the appellants' counsel that the following order
beat liberty forthwith to take possession ofall the should be made : Order, that Mr. C . Annam , as
undertaking and property , both real and personal, receiver of the applicants,beat liberty forthwith
of any kind , of the company. to take possession of all the undertaking and
The summons was adjourned into court and belonging, both
property real and personal, of any kind,
to the company, but this order is to be
heard by Kay, J., who on the 8th July 1889 without prejudice to any question which may be
held that the applicants were not entitled to the raised by the company as to the powers of the
order,and appointed the official liquidator to be receiver other than the power to take possession
receiver on behalf of the debenture-holders.
The decision of Kay, J. is reported 61 L . T. of The the property and to sell all or any part of it .
respondents' counsel having assented to
Rep. N . S. 207. this order, the Court, without calling for a reply,
The corporation appealed. delivered judgment as follows :
Rigby, Q .C ., Renshaw , Q .C ., and Theobald for COTTON , L .J. - This is an appeal from an
the appellants. - Prior to the passing of the Judi order
cature Acts, where the court had appointed a what of Kay, J., and it is one of a some
receiver without reserving the rights of the first holdersextraordinary nature. The debenture
mortgagee, the mortgagee had to apply to the tract with the company, debentures,
had , under their by con
a right to appoint
court to give effect to his security, but the a receiver, and that receiver represented the
court thereupon put him into possession as a for the purpose of taking
matter of course. The fact that a winding.up debenture-holders
possession of the property, and for the purpose of
order has been made cannot affect the mort selling the property if so advised . Thedebentures
gagees' rights. It is said , however, that if a also gave him various other powers. Now , I
receiver has been appointed by the court, and think the fact that the company has been wound
debenture-bolders then bring an action , the court up does prevent a good many of those powers
will appoint or continue the receiver already being exercised , but
appointed as receiver on behalf of the debenture. interferes with the that, to mymind, in no way
receiver appointed by the
holders. That might be so if the debenture mortgagees taking possession . The property of
holders were asking the court to appoint a the company forms the subject-matter
receiver, but they are not doing so. They have appellants' security ; tbat security is not inof any the
themselvesappointed a receiver under the powers way disputed . It is a charge - not exactly a
in their security , and, as the liquidator is in legal mortgage- on the whole property of the
possession as an officer of the court, they are company ; and it is not suggested that such a
bound to come to the court to obtain leave for security as that is null and void . As part of this
their own receiver to act. They cited security,topower
appointwasa given to who
the was
debenture
Re David Lloyd and Co., 37 L . T. Rep. N . S. 83 ; holders receiver, to take
6 Ch . Div . 339. possession and sell. The appellants' counsel
Marten, Q .C . and John Chester for the official have contended that, if this receiver is only to
liquidator. — The debentures give the receiver, have such a power as a receiver appointed by the
when appointed , certain powers - e.g., carrying court in an action would have, he must be
on the company's business — which are incon treated for the purposes of this application as if
sistent with the exercise of the powers of the he were a receiver actually appointed by the
court in a winding-up. After the winding.up has court. That appears to meto be entirely missing
commenced , therefore, what the debentures the point. If the court appoints a receiver at the
authorised cannot be done; the rights of credi. instance of a mortgagee, in a casewhere themort
tors have supervened , and the courtmust exercise gagee has not power to appoint a receiver without
its discretion . [Cotton, L .J .-- Is the receiver to theassistance of the court,then the court exercises
be stopped from taking possession simply because discretion in selecting the person who is to act its
be cannot after winding - up exercise certain l as receiver, and in making the appointment can
140 _ Vol. LXII., N . S.] THE LAW TIMES. [March 22, 1890.
CT. OF APP.] Re Henry Pound, Son , and Hutchins LIMITED. [CT. OF APP.
protect the interests ofthemortgagor aswell as the debenture. He certainly cannot carry on the
interest of the mortgagee ; and when a company | business of the company after the winding-up ;
is being wound-up, wbether the winding-up order he cannot make calls ; he cannot use the com
was in existence at the time the receiver was | pany's name in any proceedings. There are a
appointed by the court or was made afterwards, vast variety of things which we do not inter
then the court considers it quite useless to have fere with by any exercise of discretion by the
the expense of two receivers — the liquidator, who court as to allowing the receiver to take posses.
is, in fact, in some senses, a receiver, and another sion, for this reason , that, as far as my present
receiver in the mortgagee's action. Then the information goes, the altered position of the com
court exercises its discretion as to who is to be pany is such as to prevent various things, which
appointed. But, in my opinion , the case is this debenture authorises the receiver to do,
altogether different where the receiver who is from being done. Therefore I think it is the
asking to be let into possession has not been right of the mortgagees or the debenture
appointed by the court, but by the mortgagees in holders (I treat them as mortgagees) to take pos
exercise of the power given them by their mort. session of the mortgaged property, the winding
gage deed . In such a case it is not left to the up not in any way interfering with that, or with
court to determine who, in the interest of all the selling of the property, or enabling the
parties, is themost proper person to beappointed liquidator, for the purpose of the winding -up,
receiver. But herethemortgagees say : " Our deed to employ and use, in carrying on the business,
enables us to appoint A . B .as receiver, and wehave as he may do for the purpose of the winding-up ,
appointed him . Let him into possession , not as that which is not the property of the company,
an officer of the court, but as a receiver ap- butof the debenture-holders. I cannot understand
pointed under the powers conferred by the deed I must say, with great respect, how Kay, J. could
under which we claim .” In reply to that, the appoint the liquidator receiver, because there was
counsel for the liquidator say : “ If that is so, no action in which any receiver could beappointed
why do the debenture-holders apply to the court by the court ; and if hedid not give to the receiver
at all in respect of their receiver ? That is an appointed under this deed what I think it was
admission that the court has a discretion .” But | the right of the debenture-holders to take posses
that is not so . The explanation ofthe mortgagees' sion of, I cannot see how he could appoint the
application is, that a person having a security on liquidator to be a receiver on behalf of the
property which is in the possession of an officer debenture-holders. I think we ought to discharge
of the court, cannot, without leave of the court, the order, and to make an order for liberty for
take possession so as to dispossess the officer ofthe the receiver to take possession , adding that
court. Mr. Chester has contended that the mort saving clause which Fry, L .J. has sketched out,
gagees' application is made under sect. 87 of the and which I have already read .
Companies Act 1862, which says : "Nosuit, action , Fry, L .J. - Substantially this appears to me to
or other proceeding shall be instituted or pro - be simply an application to the court by a mort
ceeded with or commenced without the leave of gagee for leave to take possession of the property
the court ” — and he attempted to thrust that which is in the power or custody of the officer of
argument on the appellants. But, in my opinion , the court. There is a difference, which I will
that is a mistake. If some words which were presently advert to, between such an application
used in argument by the other side in the court and the present, but, in substance, it appears to
below gave rise to any such impression , I think it me an application of this nature. Now , wbere
was a mistaken impression . Certainly nothing property is in possession of an officer of the
has been said by the appellants' counsel here court, and there are legal or equitable rights in
to lead to the suggestion that the debenture that property not vested in the parties to the
holders were applying with reference to that action or the persous who are before the court,then
section . An application was made to the court the court requires that the person who claims to
because, if the receiver appointed by this deed enforce those rights shall apply for leave to
had , after the appointment of the liquidator enforce them . Those rights may be a right to
and after the liquidator was in possession, him . take possession , and a right to bring an action ,
self taken possession of that which the liquidator and a right to do various other things ; but the
held as the officer of the court, a contempt of court requires an application to be made to it.
court would have been committed . An applica Now , on what principle would the court proceed
tion is accordingly made asking the court to in considering whether theapplication should be
enable the debenture-holders,notwithstanding the granted ? I conceive that it proceeds on this
possession of the officer of the court, to exercise principle - paying the utmost respect to the legal
the rights which they have under their own deed . or equitable rights of the persons whose interests
But it is said that this will entirely put an end to are not being administered in the proceedings
the winding-up , and that it will entirely withdraw before it. If it were to do otherwise, this result
the winding -up from the control of the court. would follow : that the rights of a stranger to
Well, to some extent no doubt it would where the the litigation would be diminished by the pen
company had entirely parted with all its pro dency of that litigation - a result which is obvi
perty. That would paralyse the winding-up, and ously unjust, and which the court ought never to
would paralyse the action of the liquidator, and arrive at, and a result which , in my judgment,
would certainly take away any provision for the the court never yet has arrived at. Now , that
costs of the liquidation , or anything with which principle is expounded very fully by James, L .J.
to deal, if the property mortgaged was the entire in the case of David Lloyd and Co. (37 L . T . Rep .
property of the company. But I do not think N . S. 83 ; 6 Ch. Div. 339), which has already been
that the receiver appointed under this deed can referred to. There, as he points out, and as I have
do all the things which are mentioned in this endeavoured to repeat here,theanxiety of the court
proviso and the stipulation contained in the I must be, whilst requiring the application to be
March 22, 1890.) THE LAW TIMES. ( Vol. LXII., N . 8. - 141
CT. OF APP. ! Re DAVID ; BUCKLEY v . ROYAL NATIONAL LIFEBOAT INSTITUTION. [CT. OF APP.
made, not to interfere with or diminish the rights Solicitors for the appellants, Linklaters and Co.
of the creditors. Now , that being the general Solicitors for the respondent, Bonner, Wright,
principle, it appears to me that this was pri Thompson , and Co.
marily an application for leave to take possession
by a person who had a right to possession , and
I do not think that the court has any ground Nov. 12 and 13, 1889.
for interfering with that right. The discretion (Before Lord COLERIDGE, C.J., Cotton and Fry,
which is exercised on an application of this L .JJ.)
description differs toto cælo from the discretion Re David ; BUCKLEY v. Royal NATIONAL LIFEBOAT
to be exercised where the court is applied to to INSTITUTION . (a )
appoint a receiver. Where that is the case the APPEAL FROM THE CHANCERY DIVISION.
court has before it, assuming it to be an applica
tion by a mortgagee, both mortgagee and mort Charity - Mortmain - 9 Geo. 2, c. 36 - bonds of
gagor, and it has regard to the rights of all harbour commissioners — Assignment of pro
litigant parties before it. In that way, where portionate part of tolls — Bridge and lock tolls
the mortgagor happens to be a limited company Interest in land.
which is in course of winding-up, the court has, | By a settlement dated the 8th Aug . 1882 certain
on the ground of convenience, and on the ground trust funds, including 20001. invested on Swansea
of saving expense, frequently appointed the Harbour Bonds, were assigned to trustees upon
liquidator to be the receiver, and in that case trust for the settlors for life, and after their
there is an application made by the mortgagee deaths to pay 10001. to the Royal National Life
to the discretion of the court, and he cannot Boat Institution , and similar sums to three other
object to the discretion of the court being exer charities, and the residue to the plaintiffs abso
cised. Themain argument in tbis case seems to lutely . The Swansea Harbour Bonds were
me to be based merely upon confusion between securities for 1001. each, issued by the trustees,
two kinds of application - pamely, between an incorporated by the Swansea Harbour Act 1854
application to enforce the right of a stranger, (17 & 18 Vict. c. cæxdi., local and personal), and
and an application to the discretion of the court were in the form of an assignment by the trustees
by a litigant asking to be appointed receiver. I to the lender of " such proportion of the several
have said that this case is not the simple case of rates, tolls, rents, and other moneys arising and
a mortgagee 'applying for leave to take posses accruing by virtue of the said Act as the said sum
sion. It differs in this way : that in the deben of 1001. bears to the whole sum which is or shall
tures which were issued under which the appli be borrowed uponotherthemoneys."
credit of the
cants claim , power is given , not to take pos tolls, rents, and Thesaid
ratesrates,
and
session by themselves, but to appoint a receiver dues leviable under the Act included harbour
for the purpose of taking possession. Probably dues, lighthouse dues, and tolls for passing
that was inserted on the ground of convenience. bridges and locks. The harbour trustees had
In fact, being a corporation , the debenture also power to let their rates and tolls and mort
holders can only act by an agent. Therefore gage the rents.
the deed gives a power to the mortgagees to Held (affirming the decision of North, J., 60 L . T .
appoint a receiver to take possession ; but that Rep. N . S. 786 ), (1) that the bridge tolls were
receiver appointed to take possession is a mere money paid for the active use of land, and were,
agent of the mortgagees, and I can see no reason therefore, so intimately connected with and
why we should not give possession to the agent arising from the use and possession of land that
of the mortgagees, as well as give possession to a mortgage of them would be within the mischief
the mortgagees directly. This application is of the Mortmain Act ; (2) that the true effect of
necessitated in order to avoid a contempt of the bond was a mortgage of the specific tolls and
court, the winding-up having placed the affairs rates, and not simply a mortgage of the under
of the company under the control of the court. taking ; and (3) that the bonds, therefore, were
But then it is said that thepowers of thereceiver impure personalty , and were incapable of being
are very large, and some of those powers neces given to a charity except in the manner pro
sarily come to an end in the event and on the vided by 9 Geo. 2, c. 36 .
happening of a winding-up order being made. The Swansea Harbour Act 1854 (17 & 18 Vict .
Well, thatmay or may not be the true construc
tion of the deed. With Cotton , L .J., I incline to c. cxxvi.), after repealing a number of previous
take the view that that is so , and that some of Acts, incorporated the Swansea Harbour Trustees
improving and managing
for the purposes
the powers will not continue after the winding Swansea Harbour. of
up of the company ; but that point does not The parts of the Act on which the argument
appear to me to require decision now . There
has been no argument addressed to us to show turned were in effect as follows :
that the power to take possession is one which Sect. 7 incorporated the Commissioners Clauses
necessarily comes to an end on the winding-up of Act 1847 with the exception of sect. 82 and
the mortgagor company, and Mr. Marten has, I certain sections relating to the election of
think very wisely, disclaimed any intention to commissioners .
impeach the whole deed. The deed, therefore, withSect. 8 made the trustees a body corporate
a common seal, and with power to purchase,
stands as a valid one, although, according to its
trde construction , it may be that some of the take, hold , and dispose of the land and other
powers cannot be exercised . I think, therefore, property for the purposes, but subject to the
that the order which Cotton , L . J. has suggested restrictions of the Act, and to put the Act into
is the right one. execution.
LOPES, L .J. - I am of the same opinion . Sect. 43 vested in the trustees all the estates,
Appeal allowed. I (a ) Reported by FRANK Evans, Esq., Barrister-at-Law.
Cr. OF APP.] Re DAVID ; BUCKLEY v. ROYAL NATIONAL LIFEBOAT INSTITUTION. [Cr. OF APP.
lands, buoys, beacons, lights, lighthouses, moor - | interest due to them , by the appointment of a receiver,
ings, works, property , choses in action , claims, and the amount of debt to authorise a requisition for a
and demands to which the trustees under certain receiver shall be 50001.
Acts repealed by this Act were entitled, but Sect. 108 provided that all rates,dues,damages,
subject to all incumbrances thereon , and trans penalties, and other sums of money and income
ferred the liabilities of the old to the new whatsoever received by the trustees, should be
trustees. paid to the credit of the Swansea Harbour
Sect. 44 provided that the powers and provi Fund.
sions of an Act 4 & 5 Will. 4 , c. 69, in relation to Sect. 109 charged the interest of all moneys
the Mumbles Lighthouse, should apply to the | borrowed , and all debts, liabilities, and engage
Swansea Harbour Trustees,as representing certain ments of the trustees, upon the Swansea Harbour
old trustees . Fund .
Sect. 55 incorporated the Lands Clauses Con Sect. 110 provided that the moneys carried to
solidation Act 1845 . the credit of the Swansea Harbour Fund should
Sect. 60 empowered the trustees to carry out be applied , first, in paying interest on moneys
certain works. borrowed as aforesaid ; secondly , in maintaining
Sect. 63 authorised the trustees to enter upon , the harbour ; thirdly, in paying certain rent
take, and use for those purposes any of the lands charges therein mentioned ; and fourthly, in pro
in a deposited book of reference. viding the sinking fund before mentioned ; and
Sect. 85 directed the trustees to maintain in the surplus as the trustees should think fit.
The trustees were empowered to acquire lands
the bridges erected over the river Tawe, near for certain purposes, but there was nothing in
the Pottery and at the Corporation Quay , and in the Act empowering them to mortgage land so
the bridge erected over the Cut, certain openings acquired .
or swing bridges, and to make such bye-laws, The rates and dues granted by the Act were
rules, and orders respecting these bridges as the following : (1) Tonnage rates upon every
seemed expedient to protect the traffic and the ship over ten tons burden entering or leaving the
navigation .
Sect. 89 provided that the trustees should port, according to schedule A .: (sect. 125.)
maintain the Mumbles Lighthouse, and keep a (2) Rates upon all goods loaded into or discharged
from ships in the port,according to schedule B .:
light there ; and sect, 90 directed them to (sects. 126 , 127.) (3) A rate not exceeding two
defray the costs and charges of maintaining the pence per ton on all goods entering or leaving
light and lighthouse out of the rates and dues the harbour by a certain lock from the Swansea
granted by the Act, but without prejudice to
their powers under 4 & 5 Will. 4, c. 59, to collect Canal.
for all
(4 ) Bridge tolls at certain specified rates
persons, animals, and carriages passing
not exceeding a moiety of the rates therein over certain bridges which were to be main
referred to. tained by the trustees, and on which they were
The rates which the trustees were thus em
powered to collect in respect of the lighthouse empowered to erect toll gates: (sects. 136, 167.)
Sect. 147 provided that :
had never, in fact, been collected . While any of the tolls are let, and the lessee thereof
Sect. 99 empowered the trustees, for the pur duly pays his rent and observes the conditions and
pose of enabling them to make and carry out the agreements of the letting to him , but not
improvements and works authorised by the Act , otherwise, he or his agent may occupy and further or
enjoy the
to borrow , in addition to the sums which they toll houses at which the tolls so let are to be collected ,
were empowered to borrow under former Acts, with the appartenances (for the purpose of collecting
the sum of 80,0001. " on mortgage of the several such tolls ,and may demand and take the tolls so let ].
rates, tolls , and dues by the Act authorised .” Sect. 152 gave the trustees power to lease any
Sect. 102 directed that the trustees should set of
Act,
the rates, dues, and tolls, authorised by this
at such rents and upon such terms and con
aside annually certain sums “ out of their rates, ditions as they should think fit .
dues, and tolls, as a sinking fund to be applied in The Swansea Harbour Bonds were for various
paying off the principal sums from time to time amounts, but all in the same form , which shortly
secured on mortgage " under the former Act or was as follows :
this Act. By virtue of the Swansea Harbour Act 1854, we the
Sect. 103 provided that, to secure the payment Swansea
of interest half-yearly on the mortgages, the siderationHarbour Trustees, incorporated , & c., in con
of the sum of 1001. to the treasurer of the
treasurer should, out of the Swansea Harbour said trustees by the said A . paid for the purposes of the
Fund, on the last day of every month , reserve said Act,do grantand assign unto the said A ., his execu
and place to a distinct account, intituled “ Accru tors, administrators, aad assigns, such proportion of the
ing interest on mortgages account," one-twelfth several rates, tolls, rents, and other moneys arising and
part of the interest on the total amount of the accruing by virtue of the said Act as the said sum of
1001. doth or shall bear to the whole sum which is or
mortgage debt of the trustees, and , in case there shall be borrowed upon the credit of the said rates, tolls ,
should not be sufficient funds in his hands, then rents, and othermoneys,to hold to the said A ., his execu .
the whole amount in his hands, and should set tors, administrators, and assigns, from this day until
aside the deficiency out of the first moneys that the said sam of 1001. with interest for the same at 5 per
cent. per annum shall be lawfully paid or satisfied , the
might come to his hands on accountof the Swan principal sum to be repaid at the end of seven years from
sea Harbour Funds, and that no payment what the 1st Jan , 1885 , the interest to be discharged [by pay.
ever should be made by him from such fund until ment of coupons attached and made payable to bearer ).
the required amount should be set asideas afore. By an indenture dated the 8th Aug, 1882,and
said . made between John David of the first part,
Sect. 104 provided that : Caroline Mary David, his wife, of the second
The mortgagees, under the recited Acts and this Act part, and Jane Betser and Constance Emma
respectively,may enforce the payment of arrears of ' Jane Buckley, then C . E . J. Beaumont, spinster,
March 22, 1890 .] - THE LAW TIMES . [ Vol. LXII., N . 8. - 143
CT.OF APP.] Re DAVID ; BUCKLEY v. ROYAL NATIONAL LIFEBOAT INSTITUTION. [CT. OP APP.
of the second part, after reciting a former settle- | bond " such proportion of the several rates, tolls,
ment,dated the 15th Ang. 1882, the funds subject | rents,and other moneys arising and accruing by
to which were then held in trust for John David i virtue of the said Act, as the said sum of 1001.
and his wife and the survivor, for their lives, doth or shall bear to the whole sum which is or
and after the death of the survivor as they should shall be borrowed upon the credit of the said
by deed directly appoint, and reciting that the | rates, tolls, rents, and other moneys.” Those are
trust funds and securities then subject to the the words of the schedule to the Commissioners
said settlement amounted to 90001., which was Clauses Act. The Swansea Harbour Act leaves
invested, 40001. upon mortgage, 20001. in Swansea out in the 99th section the word “ rents," and
Harbour Bonds, 10001. upon debentures of the empowers the trustees to " borrow any sum not
Swansea Gas Company, 10001. upon property exceeding 80,0001. on mortgage of the several
belonging to Sarah David ,sister of John David , tolls, rates, and dues by the Act authorised .”
and 10001. upon deposit at a bank , the said | Therefore, the words of the bend, and the words of
J. and C . M . David assigned and appointed the Act of Parliament empowering the bonds to
all the said trust funds and securities, and all be issued , are different in respect of the word
other, if any, the trust funds and securities, “ rents," occurring in the bond and not in the
subject to the trust of the said settlement, to Act. It may be that the bond , to the extent of
Jane Betser and C . E . J. Buckley, subject the word “ rents," is a bond which the trustees
to the life estates of the said John David and were not authorised by the Swansea Harbour
Caroline Mary, his wife, therein respectively | Act 1854 to issue. That is a question upon which
upon trust, after the death of the survivor of a good deal might have to be said if it were
them , for Jane Betser for her life, and after her necessary to determine it, for the Commissioners
death upon trust to sell, and out of the proceeds Clauses Act, which is incorporated with the
pay 10001, to the General Hospital at Swansea, Swansea Harbour Act, appears to give to the
1000l. to the Royal National Life Boat Insti trustees power to mortgage rents, though the
tation , 10001. to the Blind Institution at Swansea , words of the special Act do not appear to give
5001. to the General Hospital at Cheltenham , and them that power. If it were necessary to con
the residue to C . E . J. Buckley . sider that point, an interesting and possibly a
John David died in 1884, Jane Betser in 1885, | difficult question might arise. But I do not
and CarolineMary David in 1887. think it necessary to discuss that, because, sup
An originating summons was taken out by posing that the insertion of the word “ rents ” is
Mrs. Buckley against the Royal National Life unauthorised , the bond would still be good as far
Boat Institution and the treasurers of the other as tolls, ratez, and dues are concerned . The first
charities mentioned in the deed , asking, among question we bave to consider is, whether the
other things, for a declaration that the 20001. | tolls, rates, and dues mortgaged in this bond, or
Swansea Harbour Bonds and the 10001. recited any of them , are within the provisions of 9 Geo . 2 ,
to be invested npon property belonging to Sarah c. 36 . Much has been said in argument about
David were an interest in or a charge or in the old case of Knapp v. Williams(4 Ves. 430, n .),
cumbrance affecting or to affect lands within which was determined in 1798 by Lord Lough
the meaning of the Mortmain Act (9 Geo. 2 , borough . Now that case is certainly open to the
C. 36 ). observations that have been made upon it by
ges were supported by and passed over several judges, especially by my learned brother
land belonging to the trustees, and theapproaches (Cotton , L .J .) in Re Christmas (55 L . T. Rep . N . S .
to the bridges were partly over such lands. 200 ; 33 Ch. Div. 332 , 340), in which he goes at
The summons was adjourned into court and some length into the case, but does not appear to
heard by North , J., who, on the 15th April 1889, me to express any decided opinion . If Knapp v.
held that the bonds were specific mortgages of Williams (ubi sup .) is binding upon us, then there
the rates and tolls, and that the bridge tolls were seems to be clearly an end of this case and of Mr.
so connected with land that a mortgage of them Vaughan Hawkins' argument, for in that case
could not lawfully be given to a charity except in bonds not distinguished from those now before
the manner pointed out by 9 Geo. 2, c. 36 : (60 | us were held to be within the statute . But
L . T. Rep . N . S . 786 .) Knapp v. Williams is interesting, because Lord
The charities appealed. Loughborough there draws the distinction (a dis
Vaughan Hawkins and Dibdin , for the appel tinction which I apprehend is perfectly well esta
lants, repeated the arguments which appear in blished ) that there aretwo sorts of tolls; that there
the report of the case in the court below . is a toll so intimately connected with land that a
Everitt, Q .C . and G . E . Cruickshank , for the mortgage or grantof such a toll would be within
plaintiff, were not called upon the statute, and that there are other tolls, which ,
though not clearly severable from the possession
Lord COLERIDGE, C .J. - We have to determine of land, give no right in the land , so that a mort
whether certain bonds, a specimen of which is gage of them would not be within the statute .
before us, are orare not so farconnected with land I apprehend that no onewho has commented upon
and the possession and the use of land, as to the case has at all doubted that that distinction
bring them within the provisions of the statute of | is well founded in law , and important to be borne
9 Geo. 2, c. 36 . If they are not, the judgment of in mind in a case of this kind. Within which of
North, J. was wrong ; but if they are, his judg these two classes do the bridge tolls fall ? Are
ment was right. The power to issue these bonds they so connected with the possession of land as
is created by sect. 99 of the Swansea Harbour to be within the statute, or are they not ? That
Act 1854. I'he form of the bonds closely follows is a question which to a great extent depends on
the form of bond given in the schedule to the matters of fact. i confess it would have been
Commissioners Clauses Act1847. Each bond states more satisfactory to my mind if I could have had a
that it grants and assigns to the holders of the clearer idea of the position of the bridges in
144 - Vol. LXII., N . 8.) THE LAW TIMES. (March 22 , 1890.
CT. OP APP.) Re DAVID ; BUCKLEY T. ROTAL NATIONAL LIFEBOAT INSTITUTION. [CT. OF APP.
respect of the use of which the tolls arise ; but | arising and accruing by virtue of the said Act,
the best judgment I can form upon it is, that the as the said sum of 1001. doth or shall bear to the
tolls are really money paid for the use of land | whole son which is or shall be borrowed upon
belonging to the trustees ,money paid by thepersons the credit of the said rates, tolls, rents, and
who go over the bridges and the approaches of other moneys." If those words are to have full
the bridges,and therefore money so intimately con - effect giren to them , it cannot be contended
nected with land, and so completely arising from that a mortgage of rents is not an interest in
the possession of land , that a mortgage of such land. The Lord Chief Jastice has called our
tolls would be within the statute. That seems attention to the fact that this cbarge was
to me to be reasonably clear. It might have created not only under the special Act, but under
been made more clear if we had known more the general Act. We find that the debentures
about the position of the subject-matter in are in the form giren in the schedule to the
respect of which the toils arise , but I think it I general Act, and this explains the introduction
sufficiently and reasonably clear that the tolls in of * rents," though they are not mentioned in
this case are so completely connected with the use sect. 99 of the Swansea Harbour Act. It is not,
of land, and arisirg out of it, as to bring a mort. ; however, in my opinion , necessary to decide
gage of them within the statute 9 Geo. 2, c. 36 . i whether the debentures had any effect on rents.
But the appellants' counsel bare raised a second Mr. Vaughan Hawkins, in support of his argu
point, viz., that the true effect of the bonds is not ment that these were mortgages of the under
to mortgage specifically the rates, dues,and tolls, taking, relied principally on Gardner v. London ,
but that, if certain clauses of the Swansea Chatham , and Dorer Railıay Company (ubi sup.);
Harbour Act, especially the 102nd, the 103rd , and but to my mind that case does not apply , for the
the 108th , are looked at, it will be seen that these debentures there were of an entirely different
are really mortgages, not of the tolls , but of the character from those in the present case. There
Swansea Harbour Fund ; that the Swansea the debentares were in the form prescribed by
Harbour Fund is really and substantially the | the Companies Clauses Consolidation Act 1845 ,
same thing as the undertaking of the Swansea and thereby the company purported to assign to
Harbour, and that therefore those mortgages are the mortgagee the general undertaking of the
within the principle of Gardner v. London , company as defired by their special Act, and all
Chatham , and Dorer Railcay Company (15 L . T . the tolls and sums of money arising upon or out
Rep . N . S . 552; L . Rep . 2 Ch. App . 201), and of the said general undertaking. Although there
other cases of that nature, and are brought is there a reference to tolls and soms of money
within the protection of the cases in which it arising upon or out ofthe general undertaking, yet
has been held that where the whole undertaking the court construed the debentures as creating a
is the subject-matter of a mortgage, that mort. charge, not on tolls specifically, but only on the
gage is not within 9 Geo . 2, c. 36 , because it is a general undertaking, and held that tolls and
mortgage of that which comes out of the land soms of money were mentioned only as incidental
only after it is severed from the land. If that I to and subject to the purposes of the general
could be made out, the appellants would be undertaking as defined by the Act. That Act
entitled to succeed , because the case would then required and directed that the railway should be
be within the authority of former decisions with kept up and maintained , and therefore the court
which we have no power to interfere, and with said that the mortgage did not enable the mort
which I do not wish to interfere. But gagee to take any particular land or any parti
the argument does not appear to me to be sound , cular money arising from the undertaking, since
for the answer is, that these clauses which gire that would interfere with the carrying on of the
directions to the trustees that out of the Swan undertaking. It was held to be a mortgage of the
sea Harbour Fund they shall keep down the undertaking as defined by the Act, and subject
interests on the mortgages, and create a sinking to the obligations cast upon the railway company
fund to put an end to the mortgages, are merely by the Act. Here, on the contrary, no power is
directions to the trustees as to payment of given to charge generally the undertaking of
interest on the mortgages, and as to laying this harbour, but a power is given to charge the
by a fund for repayment of the principal,and do tolls. Then, in the direction wbich is given as to
not affect the nature of themortgages themselves. the application of the Swansea Harbour Fand,
The result to my mind is, that the judgment of which comprises, as Mr. Vaughan Hawkins
North , J. is right, and must be affirmed . pointed out, all sumsof money which come into
Cotton , L . J. - I am of the same opinion . The ibe coffers of the trustees, the first direction is
appellants' first point, as I understand it, is that to pay the interest on these debentures, which is
these debentures do not create a charge on any entirely different from the direction contained in
specific tolls or dues, but create a charge on the the Railway Act, and which was dwelt upon by
general undertaking ; that is,on the money after Turner, L . J. in Gardner v. London , Chatham , and
it has been received by the trustees, and has Dover Railway Company. These considerations,
gone into their coffers — that the general fund to my mind , prevent the cases on which Mr.
thus formed, or a charge on that general fund , Vanghan Hawkins relies from applying to the
is not an interest in land, from whatever source | present case, and we have to consider whether a
the moneys came originally, and that therefore specific charge on the tolls is within the Act
these debentures are not within the statute 9 Geo. 2, c. 36 . The Lord Chief Justice has
9 Geo. 2, c. 36 . Now each of these debentures referred to Knapp v. Williams (4 Ves. 430 , n.),
or mortgages is created under sect. 99 of the which we had to consider a good deal in Re
Swansea Harbour Act, and with the force and Christmas (ubi sup.), and I do not propose to con
power of the general Act of 1847, and it purports | sider that case now as fully as I did in Re
to assign to the mortgagees “ such proportion of 1 Christmas ; but the last passage in Lord Lough
the several rates, tolls, rents, and other mordys / borough's judgment in Knapp v. Williams points
March 22, 1890.) THE LAW TIMES. ( Vol. LXII., N . S. - 145
CT. OP APP.] Holtby v. HODGSON ; Bateson , Garnishee. [CT. OF APP.
out what we have to consider , viz ., whether sions which are binding upon us have drawn
these bridge tolls can be considered as what are that distinction , and we are therefore compelled
called tolls thorough , or whether they are tolls to inquire to which of the two kinds of tolls the
by which some interest in the land is given . " tolls in question belong. Now , I find that the
Now , what are the facts ? We ascertained from tolls in question are toils to be levied for passing
Mr.Vaughan Hawkins that he considered that part over a bridge, and I find that the 137th section
ofthe approaches to these bridges and the land by provides that the trustees may demand and take,
which these bridges were supported were the at every one of their gates which they may erect,
property of the trustees of the dock company , | the tolls in question , before any persons or cattle
and theirs only, and that the approaches to the are permitted to pass through the toll-gate ; and
bridges passed over their own land. Then , is not I find further that there is power for mortgagees
the toll which they have a right to receive from of these tolls to obtain the appointment of a
people passing over the bridges connected with receiver. By sect. 87 of the general Act the
land as being money rendered to them for the receiver may be authorised to receive the whole
ū₂₂ņēmēģtiti/₂/₂ņģētiņ₂ūti? ►?Â₂Ò₂Â₂Ò₂ Â?₂?₂ņētiņřò►ŻÒ₂Â or a competent partof the tolls. I have no doubt
have power given by the Act to stop anyonewho that such receiver is authorised to occupy, so far
attempts to pass their toll- gate and to pass over , as is necessary , the toll -house, and to shut the
their bridges without paying this sum of money. | toll-gate unless the toll is paid, and to receive the
That, to my mind, is a sum rendered to them for toll into his hands. It appears to me, therefore,
the use of their land, and which they are entitled that the mortgage carries with it the right to
to claim for the use of this land. It is not at all have recourse to the land itself, and it further
like a toll which they are to take from certain appears to me, considering the admission made
persons without reference to the use of any land. by Mr. Vaughan Hawkins with regard to the
In Re Christmas we came to the conclusion that facts of the case — viz., that the bridges, or
the duties there charged were sums of money in substantial parts of the land connected with the
no way connected with the use of land. They bridges, are the property of the trustees them
were soms to be paid by the masters of all ships selves — that the tolls so to be raised are part of
which came within certain limits, though not in the usufruct and enjoyment of the land . That
any way using the land of the commissioners. It being so , it seems to me to be reasonably plain
could not be said tbat the right to receive such that the tolls in question are tolls so connected
duties was any interest in land. Here the tolls with the land as to constitute them an incorporeal
were sums to be received only from persons who hereditament. Mr. Varghan Hawkins hasargued
used the land of the trustees in a particular way, (in spite,as it appears to me,of the plain language
and in my opinion it would be wrong to hold that of the charge) that the charge is not on the tolls,
the right to receive them was not an interest in rates, and dues, but is a charge upon the floating
land. In my opinion the decision of North, J. is balance for the time being of the harbour fund,
right, and the appeal fails.
and he bases that upon the clauses in the Act
FRY, L . J.- This case hasbeen so elaborately and which contain directions as to the application of
60 earnestly argued that I onght perhaps to add that harbour fund . It appears to me that it is
a few words to express my conclusions upon it. ! impossible effectually to contend that that is the
The local Act in question (17 & 18 Vict. c. cxxvi.) | true meaning of the mortgage. A mortgage
incorporates nearly the whole of the Commis - which charges the tolls , and which enables the
sioners Clauses Act, including those clauses of mortgagee to obtain a receiver ofthe toll3, cannot,
the Act which relate to mortgaging the property in my judgment, be a mere charge upon the float
of the commissioners. That general Act contains ing balance of a fund of which the toll is only
a form of mortgage which comprises tolls, rates, one of the constituents. I think that the true
dues, and also " rents." Sect. 99 of the local Act effect of the Act in this respect is very much as
enables the trustees to mortgage the tolls, rates, | if the trustees had created a mortgage upon
and dues, not saying anything about rents. They certain real estate, and had accompanied that
have in fact created or affected to create mort. with a direction given to their bankers to apply
gages of the tolls, rents, rates, and dues. The the balance of their banking account from time
first question seems to me to be this , Does the to time in keeping down the interest on that
mortgage validly include the rents ? The mortgage. I think therefore that North , J. was
question is a somewhat nice one, upon which I do l quite right in his view , and that this appealmust
not intend to express any opinion . If the mort. | be dismissed with costs.
gages did include the rents, then it seems to me Appealdismissed with costs .
too clear for argument that they created an in Solicitors : Murray, Hutchins, and Stirling ;
terest in land. If, on the other hand, the word | Clayton, Sons, and Fargus.
" rents" ought to be left out, then we are driven
to the inquiry whether any of the tolls, rates, and
dues are so connected with land as to be an in
corporeal hereditament. The cases of Knapp v. Wednesday, Nov. 6, 1889.
Williams and Re Christmas have drawn and (Before Lord Esher, M . R ., LINDLEY and
affirmed a distinction between two kinds of tolls, LOPES, L .JJ.)
the one which is not connected with the land so HOLTBY v. HODGSON; Bateson, Garnishee. (a)
as to make it an incorporeal hereditament, the APPEAL FROM THE QUEEN 'S BENCH DIVISION.
other which is so connected with the land as to
make it such . Now , whether that distinction was Practice - Garnishee proceedings — " Judgment for
the recovery of money ” - Judgment against
rightly drawn in the particular case of Knapp v. married
Williams with regard to the particular tolls there woman 's separate estate “ Debt owing
in question , is entirely immaterial for the purpose and accruing ” — Judgment for damages given by
of our present inquiry . It is enough that deci. I (a) Reported by Adam H. BITTLESTON, Esq., Barrister-at-Law .
146 - Vol. LXII., X. S.] THE LAW TIMES. [March 22 , 1890.
CT. OF APP.] HOLTBY v. HODGSON ; Bateson, Garnishee . [Cr. OF APP.
judge in court, but not perfected - Order XLV., sect. 2, of the Married Women 's Property Act
r. 1 - Order XLI., 1882), “ taken in their naturalsense, do not create
Judgment for a sum r.of3.money against a married any personal liability ; they only subject the
woman , which is to be enforced only against her married woman to a proprietary liability ."
separate property, and only against such sepa Secondly, it is submitted that the judgment
rate property as she is not restrained from antici recovered by the defendant did not create a
pating, is “ a judgment or order for the recovery debt owing or accruing to her, but that the
or payment of money ” within Order XLV., r. 1, damages became part of her separate estate ,
and may therefore be enforced by garnishee pro and were not attachablo. Thirdly , when this
ceedings in respect of any debt owing or accruing due garnishee order was made, the judgment debt
from any third person to her . to the defendant was not in existence . She
A debt is owing or accruing within Order XLV., had recovered a verdict, but the judgment upon
1. 1, as soon as judgment for a insumcorirt,
of money the verdict had not been entered. The verdict
has was
been pronounced by the judge although obtained on July 23 ; the garnishee order
the judgment has not been formally entered ; , nisi on July 24 ; the garnishee absolute on July
Order XLI.,7. 3, providing that every 31 ; and judgment was not entered until the
judgment
pronounced by the judge in court is to take effect following October. It is submitted that, nntil
from the date on which such judgment is pro judgment is entered , there is no debt either owing
nounced . or accruing. A debt that is owing is a debt that
Judgment of Divisional Court (Mathew and Cave, is now payable. Until judgment is signed , it is
JI.) (61 L. T. Rep. N . S. 297) affirmed. clear that there is nothing payable. A debt
This was an appeal by the defendant from a | an that is accruing is a debt that is represented by
garnishee order absolute that had been affirmed existing obligation which will become payable
by the Divisional Court, the matter having been | isin the future . Until judgment is signed, there
no obligation. Order XLI., r. 3, only applies
referred to the court by Wills, J., at chambers.
The plaintiff , Mr. Holtby, in 1884 obtained a to cases tried without a jury .
judgment against Mrs. Hodgson , the defendant, T. Willes Chitty, for the plaintiff, was not
a married woman. This judgment was sub | called upon .
stantially in the form given in Scott v . Morley (57 Lord ESHER, M .R .- In this case several objec
L . T. Rep . N . S . 919 ; 20 Q . B . Div. 120), enforce tions are taken to a garnishee order. The first is
able only upon such separate property as she that the applicant here has not obtained such a
had which was not protected by a restraint upon judgment as can be brought within the words of
anticipation . Order XLV ., r. 1, it being a judgment against a
In July 1889 Mrs. Hodgson obtained a verdict married woman . Order XLV., r. 1, entitles in
for 1501. damages in an action brought by her certain cases a person who has obtained a
against Bateson , the present garnishee, for
malicious prosecution. In this action judgment judgment or order for the recovery or payment
had been pronounced or given in court by the of money to an order that all debts owing from
any other person to the debtor liable under such
judge at the trial, but this judgmenthad not been judgment shall be attached to answer the
actually signed or entered. The plaintiff had judgment. It is said that a judgment against &
obtained a garnishee order nisi, attaching all married woman is not a judgment for the
debts due or accruing due to Mrs. Hodgson, the recovery or payment of money under which she
defendant, and now sought to have that order is liable ; because it is said that such a judgment
made absolute, so as to obtain the 1501. under the is not a personal judgment against her, but that
garnishee order . it is only a judgment against her estate. What
Order XLV., r. 1, provides : this judgment really is may be ascertained by
The court or a judge may, upon the ex parte appli looking at what was said by this court in the case
cation of any person who has obtained a judgment or of Scott v . Morley (ubi sup.). In the present case
order for the recovery or payment of money, either there is a judgment against a married woman
before or after any oral examination of the debtor liable
under such judgment or order, and upon affidavit by which was obtained by default. The judgment,
himself or his solicitor, stating that judgment has been therefore, followed the writ. The writ was
recovered or the order made, and that it is still un . framed for the purpose of obtaining a judgment
satisfied, and to what amount, and that any other against the defendant in the form which was
person is indebted to such debtor. and is within the
jurisdiction, order that alldebts owing or accruing from settled in Scott v. Morley. The form of judgment
such third person (hereinafter called the garnishee) to which was settled in Scott v. Morley is as follows:
such debtor shall be attached to answer the judgment “ It is adjudged that the plaintiff do recover
or order . 1. and costs (to be taxed) against the defen
Crump, Q .C . (Cyril Dodd with him ) for the dant (the married woman.) " Therefore, in the
defendant. — The plaintiff has not obtained a against first place, the judgment is expressed to be
judgment or order for the recovery or payment costs. Then the married woman for the sum due and
of money, so as to entitle him to apply for a the form goes on , " such sum and
garnishee order under Order XLV., r. l. The costs to be payable out of her separate property ,
judgment against a married woman is not a per as hereinafter mentioned , and not otherwise .
And it is ordered that execution hereon be limited
sonal judgment, but one against her separate to the separate property of the defendant (the
property : married woman ) not subject to any restriction
Re 119Gardiner; Ex parte Coulson,
; 20 Q . B . Div. 249 ;
58 L. T. Rep . N . S. against anticipation , unless,by reason of sect. 19
Chapman v. Biggs, 48 L .'T. Rep . N . S. 704 ; 11 Q. B . of the Married Women 's Property Act 1882, the
Div . 27. property shall be liable to execution notwith
In Scott v. Morley (ubisup.) Bowen , L .J. said : “ It standing such restriction.” It is not necessary
appears to me that those words” (sect. 1, sub- l in this case to go minutely into all the limitations
March 22, 1890. ) THE LAW TIMES. [Vol. LXII., N . 8.- 147
CT. OP APP.] HOLTBY v. HODGSON ; Bateson, Garnishee. [CT. OF APP.
imposed by such a judgment. All that we have associate has to enter the findings of the jury ,
to inquire is what is the substantial part of it. | and, if nothing more took place, judgment would
The defendant is a married woman who has be entered subsequently in accordance with his
contracted a liability upon which the law now certificate of what the findings were. But power
allows her, under certain conditions, to be sued . is now given to the judge at Nisi Prius to direct
She has admitted those conditions to exist in her that judgment be entered according to the
case by allowing judgment to go by default. Then verdict. What is that but giving him power to
there is a judgment in the form applicable to give, that is, to pronounce, judgment? That is
married women which I have just read. That is, not the same thing as entering judgment. The
in my opinion , a judgment against her, notwith judgment that he has pronounced is to be entered.
standing that the sum due and the costs are only That is the final ceremony. There is no such
to be payable out of certain specified property. thing as signing judgment after it has been
Is or is not such a judgment within Order XLV., entered . Then what does Order XLI., r . 3, say ?
r. 1? Has the person who applied for the order “ Where any judgment is pronounced by the
in this case obtained a judgment for the recovery court or a judge in court ” - “ a judge in court "
or payment of money ? It follows from what I means the judge at the trial,and those words are
hare said that he has. Then is the defendant used for the purpose of distinguishing the
liable under such judgment ? She is clearly meaning from that of the words “ the court or a
liable under the judgment, although the sum due judge,” wbich are used in many rules, and in
must be recovered in a particular way. We are which “ a judge” means the judge at chambers ,
asked to limit the words of the rule to certain “ the entry of the judgment shall be dated as of
kinds of judgment. The only limitation that I the day on which such judgment is pronounced ,
can find in the rule is , that there must be a debtor unless the court or judge shall otherwise order,
liable under the judgment. I think, therefore, and the judgment shall take effect from that
that the judgment which the applicant has date, provided that by special leave of the court
obtained is within the wordsof the rule . During or a judge a judgment may be ante -dated or post
the argument for the defendant, reliance was dated ." That is to say, in the absence of any
placed upon an expression used by Bowen , L .J. order to the contrary, the judgment is to take
in his judgment in Scott v. Morley (ubi sup.) in effect from the day on which it is pronounced in
which he speaks of a judgment under the Married court. There is nothing in the words of that rule
Women 's Property Act as not creating a personal to confine it to the case of a trial by a judge
but only a “ proprietary liability.” That only without a jury . On the contrary , if a judge has
means to say that such a judgment does not enable power to pronounce judgment on a trial with a
a married woman to be made a bankrupt, nor jury, the words of the rule apply just as much to a
bring her within the scope of the Debtors Act so trial with as to a trial without a jury. Therefore
as to enable her to be sent to prison for non this judgmentwas to takeeffect from the day of its
payment. It does notmean that the judgment is | being pronounced at the trial, which was before
not one against the married woman , and is not, the garnishee proceedings were commenced . I
therefore, capable of being enforced by a garnishee agrce entirely with the judgment ofthe Divisional
order under Order XLV., r. 1. But then it is Court in this case, and I adopt the phraseology
said, secondly, that the judgment recovered by of Cave, J. with regard to the position of a
her, she being a married woman , does not create | defendant who is a married woman . He says :
an attachable debt,but only gives her something “ With regard to all her other property," that is,
as her separate property . What is that some all her property other than such as has been
thing ? It is not money ; it is not land or settled to her separate use with a restraint on
chattels ; it is the judgment itself. That anticipation , “ a judgment debt operates against
judgment is her separate property , which she is a married woman just as it would against an
entitled to enforce, and which therefore creates unmarried woman . If her property consists of
a debt that can be attached by her judgment chattels in possession they may be dealt with by
creditor. Then there was a third point taken . It a fi. fa .; if of a chose in action , it can be
was said that judgment was not signed against obtained either by a garnishee order or other
the garnishee when these proceedings were proceedings appropriate for that purpose ; and so,
commenced , and that there was then only a with regard to all the various kinds of property
Verdict against him . That takes us to Order which may exist, a married woman against whom
XLI., r. 3. Previously to the Judicature Acts, judgment is obtained must submit to every kind
under the old practice, when there must always of execution which is available against an
have been a jury, the verdict was entered by the | unmarried woman with regard to the same kind
proper officer, who, on that entry, would make up of property." I agree with that.
the Nisi Prius record. It was then necessary to LINDLEY, L.J. - I am of the same opinion . The
get the costs taxed , and judgment could only be question raised by this appeal is one of some
signed after the allocatur had been given . I do importance, and is whether a judgment debt
not know what the mode of signing judgment owing to a married woman can be attached by a
was; but I expect it was only causing it to be | person who has recovered a judgment against her .
entered in the proper book . Then came the I have no difficulty in arriving at the conclusion
Judicature Acts, under which you could have that such a debt can be so attached. The
judgment without a verdict at all, as had always question turns upon Order XLV., r. 1. What is
been the case in the Court of Chancery . In such to be done by a person who seeks to bring
cases there was no occasion for the Nisi Prius himself within that rule ? The first thing which
record . Under the new practice, therefore, in he must prove is , that he has obtained a judgment
two cases out of three, the Nisi Prius record was for the payment of money against somebody ;
ipso facto done away with. In the third case, then that that judgment is still unsatisfied ;
where there is still the verdict of a jury , the I then that some other person , who is within the
148 — Vol. LXII., N.S.] THE LAW TIMES. [March 22, 1890.
CT. OF APP.] R ? JOBSON ; JOBSON v. RICHARDSON . [Chan. Div.
jurisdiction, is indebted to the person against HIGH COURT OF JUSTICE .
whom he has obtained the judgment. It is said
that the judgment which the applicant in this
case had obtained is not such a judgment as is CHANCERY DIVISION .
contemplated by the rule , because it does not Dec. 14, 16, 17, and 18, 1889.
bind the defendant personally, but only her (Before NORTH, J.)
separate estate. That is rather a question of Re Jobson ; JOBSon v. RICHARDSON . (a )
fact than of law . The judgment is, that the
plaintiff do recover a certain sum and costs (to be Will – Construction - Vested or contingent
taxed ), against the defendant, such sum and costs “ From and after ” the death of the tenant for
to be payable out of her separate property, and life.
not otherwise. That is a judgment against the l A testator gave all his real estate and the residue of
defendant, although execution upon it is limited ! his personal estate to his trustee upon the trusts
to her separate property. If her husband dies, thereinafter declared , viz., as to a specified lease
the judgment continues to bind her. It is a hold house upon trust to permithis daughter Eliza
mistake to suppose that such a judgment is not beth Jobson to receive therent thereof for her life,
a personal judgment. The separate property and" from and after her decease the samepremises
that she is restrained from anticipating, which the said
the childrenas oftenants
cannot be got at in any way while her husband shall be in Jobson
Elizabeth in all
trust , for equal shares in
is living, becomes immediately subject to the common on their respectively attaining the age of
judgment as soon as he is dead. The next point twenty -one years." There was a trust of the
is, that the judgment which the defendant has residue of the testator's estate, but the will con
obtained does not create a debt due to her which tained no direction as to the application of the
can be attached . There is nothing to prevent rents of the leasehold house after the death of
a debt due to a married woman from being Elizabeth. Jobson and during the infancy of her
attached . The next point is, that theapplication children
was made too soon , the judgment recovered by Elizabeth Jobson survived the testator, married ,
the married woman not having been entered or and had one child , who survived her mother and
signed when the garnishee proceedings com died under twenty -one.
menced . That depends upon Order XLI., r. 3, ,that the child did not take a vested interest
and has been fully dealt with by the Master of Held
in the leasehold house.
the Rolls. Andrew v. Andrew (34 L. T. Rep. N . S. 82 ;
LOPES, L .J. - What is the true test whether a 1 Ch. Div . 410) distinguished.
debt is attachable ? It must be a debt due from ADJOURNED SUMMONS
the garnishee, a debt the payment of which the Robert Jobson , by his will dated the 1st May
judgment debtor can enforce if he thinks fit . 1869, after giving certain specific legacies , de
In the present case, there is undoubtedly a debt vised and bequeathed all the real estate and the
due from the garnishee, payment of which the residue of the personal estate of or to which he
judgment debtor could have enforced . There is | should die seised or possessed unto Thomas
therefore in this case an attachable debt. Then Crone, his heirs, executors, administrators, and
it is said that the plaintiff had not recovered
assigns, upon the trusts and to and for the
judgment against the defendant,but only against
intents and purposes therein declared concerning
her property. In the case of a judgment against
the same; that was to say, as to all his lease .
a married woman , the judgment is against the
hold messuage or dwelling - house with the
married woman, although it is only in respect of
appurtenants , situate and being No. 5, Terrace,
her separate property ; and it is the same as a
Seaham Harbour , in the county of Durham , upon
judgment against an unmarried woman, except trust to permit and suffer his daughter Elizabeth
only that it cannot be made the subject of Jobson to receive and take the rents and profits
bankruptcy proceedings, and cannot form the thereof for her life, and “ from and after her
ground of a debtor's summons. A judgment decease the same premises shall be in trust
against a married woman can therefore properly for all the children of the said Elizabeth Job
be the foundation of garnishee proceedings. As son , in equal shares as tenants in common ,
to the other point, it appears that, although the upon their respectively attaining the age of
judgment was not entered till October, the order twenty -one years.” And as to all his freehold
for judgment to be entered was obtained in July, messuages situate at South Moor, in the county
before the garnishee proceedings were com of Durham , upon trust to permit and suffer his
menced . Under these circumstances it seems to son and daughter John Jobson and Esther
methat Order XLI., r. 3, affords a complete answer Richardson to receive the rents and profits
to the contention that the judgment debt did thereof for their lives in equal shares as tenants
not arise till after the garnishee summons. in common ; and from and after the decease of
Appeal dismissed.each of them his said son and daughter the
Solicitors for the plaintiff, Emmet, Son , and testator declared that his or her share in the same
Stubbs. premises should be in trust for his or her children
Solicitors for the defendant, Clinton and in equal shares as aforesaid on their respectively
Buckby . attaining the age of twenty -one years , and the
testator further declared that, if his said son
John Jobson should die unmarried without
leaving lawful issue, his share in the said last
mentioned premises should be in trust for the
children of the said Esther Richardson in equal
(a) Reported by G . E .JEFFERY, Esq., Barrister-at-Law .
March 22, 1890. ) THE LAW TIMES. [ Vol. LXII., N . S.- 149
Chan. Div.] Re JOBSON ; JOBSON v. RICHARDSON. [Chan . Div.
shares as aforesaid . And as to all the residue of to apply the income for the maintenance of the
his realand personal estate, upon trust to sell and children until twenty -one. [NORTH , J. - I cannot
convert into money such part thereof as should be import the statute into the will.] Then I rely
of a saleable nature, and to collect and get in the on the subsequent gift of the real estate :
remainder thereof ; and the testator declared that Ingram v. Suckling, 33 L . T. Rep. N . S. 89 ;
his said trustee should stand possessed of the Bree v. Perfect, 1 Coll. 128 ;
proceeds thereof, upon trust to pay certain lega Re Bevan 's Trusts, 56 L . T. Rep. N . S. 277 ; 34 Ch .
cies, and should stand possessed of the residue of Div. 716 .
the said proceeds, after paying thereout his debts The present case is not like those cases where the
and funeraland testamentary expenses, in trustfor gift is only tú be found in the direction to pay.
his said daughters Elizabeth Jobson and Esther There is here an express gift,and payment only is
Richardson and his said son John Jobson, in equal postponed . The words are “ the same premises
shares astenantsin common. Thewill contained no shall be in trust ” for the children ; that is equiva
direction as to the application of the rents of the lent to an immediate gift to them on the death of
leasehold house after the death of Elizabeth the tenant for life. [North , J. - Suppose the
Jobson and during the infancy of her children . wordswere “ in trust for A . B .when he ismarried ,”
The testator died on the 18th Aug 1869, leaving would that be an immediate gift to A . B . P ] I
his daughter Elizabeth Jobson surviving him . submit it would , and payment only would be post
She intermarried with William Costello, who died poned until marriage.
the year 1878.
inmarriage, Therewas one child only of this Medd, for the defendantMichael Costello, in che
viz ., a daughter, Ada Winifred, who same interest. - If in the present case the words
survived her mother, and died under twenty -one, had been “ to be paid and divided attwenty -one,"
and without having been married . po question could have arisen :
Thiswasan originating summons taken out by the Williams v . Clark , 4 De G . & Sm . 472 ;
sole trustee of the will as plaintiff,against Robert Farmer v. Francis , 2 Sm . & St. 505.
Richardson (the administrator of the testator's [ NORTH , J. - In those cases there was a gift in
daughter Esther Richardson , one of the residuary the
legatees) and Michael Costello,the sole next ofkin Andfirst
theinstance followed
limitation by apresent
in the directioncase
to divide.]
is sub
of Ada Winifred Costello, as defendants. stantially the same. This is also a case of a
The plaintiffwas also the administratorof Ada
Winifred Costelio. The summons asked for a severed and specific legacy :
Saunders v. Vautier, 1 Cr. & Ph . 240.
declaration that, according to the true construc. [NORTH, J. - Does the principle on which a
tion of the trusts by the said will declared con severed legacy
cerning the leasehold house , the plaintiff, as is held to be vested apply to a
administrator of Ada Winifred Costello , was gift of leaseholds P ] I submit it does. * Again ,
entitled to the said leasehold house, or that the this is a giftto a class in whose favour the court
rights and interests of the several persons en . will Malways aid an early vesting :
'Lachlan v. Taitt, 3 L . T. Rep. N . S. 492 ; 2 De
titled under such trusts might be declared . G . F . & J. 449;
Terrell for the plaintiff. — The willmust be read Williams v. Haythorne, L . Rep. 6 Ch. 782.
as if the words were “ payable on the children Skelton Cole for the defendant Robert
respectively attaining twenty -one ;" that is to say, Richardson . — The gift to the children lapses and
the gift to the children is vested on the death of falls into the residue. I rely on the general rule
the tenant for life , but not payable until they that the words “ if," " when,” and “ on ” always
attain twenty -one. The subsequent devise of the import a contingency , unless there is something
real estate supports this contention . It is in
identical terms with the bequest of the lease clear and definite to establish an exception . The
hold messuage, and the gift over is in the event decision in Williams v. Clark (ubi sup.) turned
upon the words “ equally to be divided .” In
of the testator's son dying unmarried without Saunders v . Vautier (ubi sup.) separation of the
leaving lawful issue. “ From and after " the death legacy was rendered necessary for the purpose of
of the tenang for life the property is to be held “ in
trust ” for the children ; therefore the period of giving effect to the gift of corpus. In the present
case separation is rendered necessary only for the
vesting is at the death of the tenant for life, purpose of giving the income to the tenant for
although the will goes on to say “ on their life .
respectively attaining the age of twenty -one
years :" Terrell, in reply, referred to
Andreu v. Andrew , 34 L. T. Rep. N . S. 82 ; 1 Ch . Branstrom v. Wilkinson , 7 Ves. 420.
Div. 410 . North , J. - In this case the testator gave his
If the children are not to take until they respect . real and personal estate to trustees upon certain
ively attain twenty-one, then you must strike out trusts one of which is as follows: As to all that
theword “ from .” That word shows that it was his leasehold messuage or dwelling-house with
intended the children should take vested interests the appurtenants, No. 5, in front and back ,
immediately on the death of the tenant for life. | Terrace, Seaham Harbour, upon trust to permit
Again , it is now established that a gift of income his daughter Elizabeth Jobson to receive the
for maintenance makes what would otherwise be rents thereof during her life, and from and after
a contingent gift a vested one. The cases estab her decease upon trust for all her children in
lishing that principle were decided before Lord equal shares as tenants in common on their
Crapworth's Act. In the present case there is no respectively attaining the age of twenty -one
express direction thatthe income should beapplied years. The sole question I have to decide is as
for the maintenance of the children until twenty - to the meaning of the gift in remainder after the
ode. The Conveyancing Act, bowever, supplies | death of Elizabeth Jobson . I do not think there
that direction , and the same principle therefore is any other clause in the will which throws any
applies as if there had been an express direction | light upon the clause in question. There is
150 - Vol. LXII ., N . S.] THE LAW TIMES. [March 22 , 1890.
Chan. Div.] Re JOBSON ; JOBSON v. RICHARDSON. [Cuan. Div.
another gift similar in terms to the one under | in default of the tenant for life having a son , and
consideration , viz., the gift of real estate to the this fact entered very greatly into the considera
testator's son and daughter John Jobson and tion of the court in arriving at the decision it
Esther Richardson, but there is, however, a gift did . There was nothing to indicate in that case
over there, and in my opinion that gift does not that the court would have come to the con
affect the present question . Now let us look at clusion it did if the words had only been
the facts. Elizabeth Jobson only had one child , “ from and after the death of the tenant for life.
a daughter, who survived her and died under Another class of cases relied on was Re Brown's
twenty -one, and the question is whether that Trusts (ubi sup.). In that case, however, the gift
child took a vested interest on the mother's was of a separate fund, and there was also a gift
death , although she did not attain twenty-one. over in the event of the tenant for life dying
If she did take a vested interest, then the plain without leaving issue. Then Mr. Medd relied on
tiff , as her administrator, would take the lease Williams v. Clark (ubi sup.). In that case there
hold house. If, on the other hand, she did not was a gift upon trust for the testator's daughter
take a vested interest, then the leasehold honse for life, with remainder in trust for her husband
is not disposed of by the will except by the for life ; and, after the decease of the survivor, to
residuary gift. There is nothing in the will pay and divide the trust fund to and among the
throwing any light on the gift in question . The children of the daughter, if more than one,
will contains no direction for the application of equally to be divided between them , share and
the income of the leasehold house during the share alike, when and as they attained twenty
minority of the children . There is not, as in one. The Vice-Chancellor's conclusion was this,
some cases, an appropriation of income for main that the first direction “ to pay and divideºs
tenance until the children attained twenty -one. amounted to a gift independently of the direc
It is true that the provisions of the Conveyancing tion to divide at twenty -one, and the subsequent
Act 1881 as to maintenance apply, but that fact words “ equally to be divided between and among
does not affect the present case, since I am of them , share and share alike, as and when they
opinion that those provisions apply equally shall attain their age of twenty -one years,"
whether the gift is vested or contingent. Then merely prescribed the time of payment; and the
the contention is,that the words“ from and after " Vice -Chancellor said the construction he was
the death of Elizabeth Jobson mean that the gift asked to adopt would render these twelve words
is a vested one on her death . In myopinion that superfluous ; and the result was, he declined to
is not the meaning of the words “ from and | adopt the construction asked for by leaving out
after.” In my opinion the words “ from and these words, and it is quite clear to mymind , that
after ” do notmean immediately from the death if that second direction to divide had been omitted ,
of the tenant for life, but only subject to the the Vice-Chancellor would not have come to the
interest of the tenant for life ; and that this is conclusion he did . That case therefore is rather an
the right construction in the present case is authority in favour of the view that the gift in the
perfectly clear to me. Supposing, instead of the presentcase is not vested . Then it has been argued
child surviving the mother and dying under that the gift was separated from the rest of the
twenty -one, the child had attained twenty -one testator's property , and Saunders v . Vautier (ubi
and died in the mother's lifetime. If the gift is sup .) was relied upon . In that case there was a
only to take effect “ from and after ” the death gift of a sum of stock to trustees upon trust to
of the mother, and does not in any way vest | accumulate the dividends until Daniel Wright
in the meantime, then , according to the conten - Vautier should attain the age of twenty -five
tion of the plaintiff, the child would take no years, and then to pay or transfer the principal
interest at all. It is impossible to come to that together with the accumulated interest unto the
conclusion , and the case of M 'Lachlan v . Taitt | said Daniel Wright Vautier, his executors,
(ubi sup.) is a strong authority in favour of the administrators, or assigns absolutely . There
view that a child who attained twenty-one in clearly was from the first a separation of that
the lifetime of the mother would take a vested particular fund from the rest of the testator's
interest which could not be divested by the estate and an appropriation of it for the benefit
death of that child in the lifetime of the tenant of Daniel Wright Vautier, and it was held that
for life. In my opinion the words “ from and that was sufficient to show that the interest was
after ” mean simply and solely subject to the a vested one. In the present case, however, there
life interest, and a gift to children “ from and is no such direction to accumulate the income,
after " the death of a tenant for life has not the and I do not even find any appropriation . It was
effect of giving those children vested interests argued that there was a severance here because
on the death of the tenant for life when the the house was vested in trustees in the mean
gift is coupled with the words “ on attaining time. But the house was severed from the rest
twenty -one” or “ when they attain twenty-one," of the estate for the benefit of the tenant for life ,
or with other similar words. Well, then , the not of the children . There is no segregation or
case of Andrews v. Andrews (ubi sup.) is relied on appropriation for the benefit of the children at
by Mr. Terrell as showing that the child took a | all. It has been argued that the children take
vested interest on the death of the tenant for vested interests because there is a sererance ; and
life. In that case, however, there were present | it is said that there is a severance because the
several considerations which are absent from children take vested interests. A more complete
the present case. In the first place, if the argument in a circle I cannot imagine. I find ,
court had come to a different decision the infant therefore, that there is nothing in principle in
would have been left penniless during his Saunders v. Vautier which in any way leads to
minority, and it was to avoid this extremely 1 the conclusion that this is a vested interest.
improbable construction that the court came to | Looking at all these considerations I cannot find
the decision it did . Again, there was a gift over | any grounds for holding that the gift “ from and
Q.B. Div.] GRIFFITI v. YSTRADYFODWG SCHOOL BOARD — McLARDY V. SLATEUM. ( Q .B . Div .
after " the mother 's death to her children on their , an end,and that the plea of tender was not stated
respectively attaining twenty -one has the effect to be a plea of tender before action brought, and
of giving a child who does not attain that age a that there was an alternative plea that themoney
vested interest. Under these circumstances, was paid in in satisfaction of the claim :
therefore, I hold that the leasehold house forms Wheeler v, The United Telephone Company , 50 L . T .
part of the residuary estate and belongs to the Rep . N . S. 749 ; 13 Q . B . Div. 597 ;
residuary legatees. ith v. Green , 52 L. T. Rep. N . S. 81 ; 14
Solicitors : Indermaur and Broun ; Maple, Q . B . Div. 766 .
Teesdale,and Co. W . Evans, for the defendants. — The proper
course for the plaintiff to have adopted was, in
stead of taking out the money and giving
QUEEN 'S BENCH DIVISION . notice that he had done so, to have given notice
Tuesday, Feb . 4. of discontinuance as regards the issue on the
(Before DENMAx and Wills, JJ.) record. It is immaterial that the plea of tender
does not state
GRIFFITH v. THE YSTRADYFODWG SCHOOL BOARD. (a ) brought. that the tender was before action
It is sufficient for the defendant if there
Practice - Costs — Plea of tender - Payment into | be a plea of tender in the defence.
court- Taking out sum in satisfaction - Tender DENMAN, J. - A distinction must be made
not stated to have been before action - Plaintiff 's | between cases relating to a payment into court
right to have his costs taxed - Order XXII., r. 7. | with a mere denial of liability, and cases in which
In an action formoney lent, thedefendants pleaded there was a plea of tender with a payment in
thatthe only sum duewas381., which sum they had satisfaction. In the former case the plaintiff
tendered to the plaintiff, and now brought into might take out the money and proceed to tax ; in
court, in satisfaction of the plaintiff 's claim . The
the latter case, not so . If the defendants were
plea of tender was not stated to have been before right in their plea of tender,then theaction should
action brought. The plaintiff took out the sum never have been brought, and no costswould have
under Order XXII., 7. 7 , in satisfaction of his been incurred ; so that, unless the plaintitf can
claim , and gave the defendants notice to that disprove the plea of tender, it is only right he
effect. should have to pay the costs. It has always been
Held, that the plaintiff was not entitled to have his held that, in pleading a plea of tender before
costs taxed , as there was a difference between a action, it is not essential that the words “ before
payment into court with a mere denialof liability , action " should be inserted in the defence, if the
in which case if the money were taken out in fact may be otherwise inferred .
satisfaction the plaintiff would be entitled to have WILLS, J. concurred.•
his costs taxed , and a payment into court with ' Appeal dismissed.
a plea of tender, in which latter case the plaintiff Solicitors for the plaintiff, Baker and Nairne.
vould not be entitled to have his costs tased ; Solicitors for the defendants, Purkis and Co.,
and that it made no difference thatthe plea of for Linton and Kenshole, Aberdare.
tender did not state that the tender was before
action brought, if that could otherwise be
inferred .
APPEAL from an order made by Field , J. at Jan . 16 and Feb . 6.
chambers, affirming an order of a master dismis. (Before POLLOCK, B. and Wills , J.)
sing the plaintiff 's application that his costs of McLARDY v. SLATEUM. (a)
theaction
dants. might be taxed and paid by the defen Practice - Order XIV . - Application for final judg
The plaintiff broughtan action to recover from ment
the defendants a sum of 871., for money lent and
under - Statement of defence delivered
Delay - Plaintif"'s right to apply under order
for money received by the defendants on behalf after defence.
of the plaintiff. A plaintiff can apply for final judgment
The defendants pleaded in tzeir defence that under Order XIV., r. 1, after the defendant
the only sum due to the plaintiff was a sum of has delivered his statement of defence ; but
381. 158., which sum they had tendered to the if he does so, the onus is on him to explain
plaintiff, who had refused to accept it , and they the delay and show that he is entitled to judg
now bronght that sum into court in satisfaction ment, as the proper time to make such application
of the wbole claim . The plaintiff thereupon took is before a defence is delivered in the usual course,
out that sum under Order XXII., r . 7 , and though the delivery of such defence is not an abso
gave the defendants notice that he took out that lute bar to a subsequent application by the plain
sam in full satisfaction of the plaintiff's claim . tif for judgment under that order.
T'he plaintiff then applied to the master to tax APPEAL from an order of Field, J. at chambers.
his costs in the action , but the master refused to Action on a specially indorsed writ to recover
tax the costs, on the ground that there was no the sum of 1291. 178. 6d ., alleged to be due for
anthority to him to tax, and that there was a plea principal and interest on a bill of sale.
oftender on the record which had not been dis The writ was issued on the 9th Feb., but the
posed of. defendant
On appeal, Field, J. upheld this decision of the defendant did notappear until the 18th Oct. The
obtained additionaltime for delivering
master. The plaintiff appealed. a defence, but, without availing himself of this
H . Lynn for the plaintiff.- The plaintiff is extension, he delivered his statement of defence
Antitled to have his costs taxed and paid by the on the 6th Nov. 1889 , and on the 19th Nov. the
defendants,on the ground that the action was at plaintiff took out a summons under Order XIV .
(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law . (a) Reported by HENRY LEIGH , Esq., Barrister-at-Law .
152 - Vol. LXII., N . 8.] THE LAW TIMES . [March 22, 1890 .
Q .B . Div.] McLARDY v. SLATEUM . [Q .B . Div.
for leave to sign final judgment for the amount Order XIV ., and so where an appearance has
claimed . been entered and a defence put in , as here, then
This summons came before Master Walton on the plaintiff, instead of proceeding under Order
the 25th Nov .,when the objection was taken for XIV ., can proceed under Order XXV., r. 4,
the defendant that the plaintiff's application was and he may have the defence struck out on
too late, as the defence had already been delivered . the ground that it discloses no reasonable
Themaster overruled the objection, and held that answer to the plaintiff's claim . In that way &
it was not necessarily too late to apply under plaintiff could dispose of a frivolous or worth
Order XIV. after a defence had been delivered , | less defence, and that is the answer to the
and he also held that the affidavit did not dis - objection that it would be in the power of the
close a defence on the merits , and he gave the defendant to keep the plaintiff out of his judg.
plaintiff judgment for the amount, unless the ment by putting in such a 'defence, because, if a
defendant should within ten days pay the whole defendant did deliver such a defence, it could be
amount into court. struck out under the above order. Again , if a
On appeal, Field, J. reversed this order, on defence were delivered , and the plaintiff then
the ground that, apart from the merits of the applied under Order XIV ., theplaintiff might get
case, the plaintiff was too late in applying after a judgment for a part of his claim , and the
a defence had been delivered , and he gave the defendant might get leave to defend as to the
defendant unconditional leave to defend. remainder, but in such a case there would be no
The plaintiff appealed . power to order an amendment of the defence.
Herbert Reed for the plaintiff. — The arguments toThere are some Irish cases on the point referred
at p . 274 of the Annual Practice ; in Hackett v .
against the plaintiff being allowed to sign judg . Lalor (12 L . Rep . Ir. 44) an application to obtain
ment in this case are twofold : that the plaintiff final judgment under the order after the defence
canno : go under Order XIV . after a statement had been delivered was held to be too late, and
of defence has been delivered that is the point Stewartstown Loan Company v. Daly (12 L . Rep.
of substance ; and that in this particular case Ir. 418) and Sketchley v. Corrigan (12 L . T . Rep .
there has been delay. As to the first point, it Ir. 50) are to the same effect.
is a recognised practice that if a plaintiff take Reed in reply. - As to the Irish cases cited, they
out a summons under Order XIV . and fails, he
can apply again , and if the contention that a are altogether different from the present case, as
plaintiff cannot apply after the delivery of the there not only had a defence been delivered, but
statement of defence were right, then it would the plaintiff himself had taken some step alto
be in the power of a defendant to defeat the gether inconsistent with any intention to apply
operation of the order by setting up a totally sup.)for summary judgment. In Hackett v. Lalor (ubi
frivolous defence. (POLLOCK, B . – Or by deliver. defence, the plaintiff had himself joined issue on the
ing a statement of defence immediately.] Yes. then too and it was naturally held that he was
late to apply for judgment, and in
For example, if a plaintiff sues on a deed , a
defendant might put in a defence that the deed Stewartstown Loan Company v. Daly (ubi sup.),
was not his deed - a plea which he could not | the plaintiff had delivered a statement of claim ,
and the defendant a defence, and it was held that
sustain by oath under " Order XIV . - and so he an application after that date was too late. These
could defeat the plaintiff 's claim . Or, again , a
defendant might immediately after service of the cases are no authority on the present point.
writ upon him rush in a defence, and so defeat Cur. adv. vult.
the plaintiff's application under the order. It Feb. 6.— The judgment of the court was
never could have been intended that the delivery į delivered by
of a statement of defence could have operated in POLLOCK , B . — This was a case in which a
that way. As to the delay, the only delay there
has been on the part of the plaintiff was from master's order was overruled by the learned judge
the 18th Oct. to the 19th Nov., the date of the under Order the
at chambers, order being an order made
application at chambers. It would be a very have leave to defend. that
XIV the defendant should
the action on paying the
arbitrary rule that if a plaintiff waits for a month whole amount into court within ten days. The
after appearance he could then not avail himself learned judge overruled that order, and made an
of Order XIV . order that the defendant should be allowed to
Wilfrid B. Allen for the defendant. - It has defend unconditionally. That order of Field , J.
been the practice at chambers that if you go proceeded on the construction of rule 1 of Order
under Order XIV. you must go punctually, and XIV ., and the learned judge thought the plaintiff
tbe intention of the rule is, that the plaintiff was bound to make his application under the
must make his application under the order within order before the defendant had put in any state
a reasonable time after appearance, but before ment of defence . We took time to consider the
any defence has been delivered . We see that, question , principally because we wanted to find
by rule 6 of the same order, leave to defend out the practice of the other judges in thematter,
may be given conditionally or unconditionally ; , and partly because of a case cited to us to the
“ leave to defend ” there clearly means leave to effect that it was peremptory under Order XIV .,
deliver a statement of defence, which shows if a statement of defence was delivered, to refuse
that at the time of the application under the the plaintiff's application for summary judg.
order, the idea is that no defence has been ment under that order . As far as I can learn ,
delivered , but that if a defendant sbows sufficient Field , J. appears to have adopted the view that,
reasons he may be allowed afterwards to deliver in the absence of fraud or misconduct, the inten
a defence. When an appearance has been tion as appearing on the face of the order was
entered but no defence delivered , the plaintiff that the plaintiff should make his application
would sign judgment by default and not under 1 after service of the writ, but before thedelivery
March 22, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 153
Q.B.Div .] DUKE OF NORFOLK (app.) v. LAMARQUE (Surveyor of Taxes) (resp.). {Q .B . Div.
of the defence. Wedo not think the rule is so 1. His Grace the Duke of Norfolk , K .G ., Lord
absolute as that, though , no doubt, the intention of the Manor of Dorking in the Wotton division
of the rule is that the plaintiff should make his of the county of Surrey, is assessed to the income
application after issue of writ, and before the tax schedule A for the year ending the 5th April
statement of defence is delivered in the usual 1889 on the sum of 1781. 98., being the amount
course. Field , J. also says that there are cases which the appellant admitted to have been
in which there may be peculiar circumstances, received or to be receivable by him on an average
such as misconduct on the part of the defendant, of the seven preceding years in respect of the
wherethe rule would not apply,and he further says amount of the profits of such manor aforesaid
that the rule would not apply where a defendant for that year, but from which amount he claimed
appeared and at once delivered his defence before to deduct a sum of 381., being the costs incurred
his full time for doing so. Some other learned by him in the collection of the manorial rights,
judges and masters have a different practice, dues, & c., of the said manor.
and they think that the application under the 2. At a meeting of the Commissioners for the
order should be made within a reasonable time, general purposes of the Income Tax Acts for the
and they think also that the defendant may by Wotton division ofthe county of Surrey aforesaid ,
his defence disclose facts which show that judg. held at the town hall in the parish of Dorking on
ment should be given against him . We adopt the 19th Nov. 1888 , the appellant, by his steward ,
this view , and we think that it is not compulsory Captain E . H . Mostyn , appealed against the
that the application should be made before | assessment of 1781. 98. for manorial rights, dues,
defence, though the intention of the rule is that & c., claiming an allowance of 381. for the cost of
the application must be made within a reasonable collection .
time, and that will in general be before defence, 3. The commissioners and the respondentbeing
though that role is not an absolute or compulsory of opinion that such deduction so claimed to be
one, and does not absolutely preclude the plaintiff made by the appellant from the amount of his
from making his application after delivery of the said assessment was not, nor was any part
defence. Our conclusion, therefore, is that the thereof, authorised or admissible under the
plaintiff was not necessarily too late, and, if the Income Tax Acts, dismissed the appeal.
facts supported that view , the master was right 4 . By letter of the 29th Nov. 1888 Richard
in the order he made. We think that, when a Holmes, Esq., of Arundel, in the county of
defence has been delivered in the ordinary way, Sussex , solicitor to His Grace the Duke of
if the plaintiff afterwards applies under the order, Norfolk , declared his dissatisfaction with their
the onus is cast on him of showing why he has decision , and duly required the commissioners to
not applied earlier ; the normal time for applying state and sign a case for the opinion of the
is at the one end after issue of the writ, and at Queen 's Bench Division of the High Court of
the other before defence in the usual time; after Justice .
that time the onus is on the plaintiff to show 5. The question for the opinion of the court is,
that he is entitled to judgment. whether the appellant for the purpose of assess
Case to be remitted to chambers for rehearing ment to income or property tax in respect of
with the intimation that the onus is on the the profits of such manor received by him is
plaintif to explain thedelay. entitled to deduct from the amount so received
Solicitors for the plaintiff, Jaques and Co., for the costs incurred in the collection thereof or any
and what part of such costs.
Edward Heath and Sons, Manchester. Lyon for the appellant. - The question raised
Solicitors for the defendant, Williamson , Hill,
and Co., for E . Roberts, Rhyl. in this case is whether the appellant is entitled
to be assessed upon the amount of the manorial
dues, after deducting the sum paid by him for
collecting the same, or whether he is not entitled
to make that deduction . By 5 & 6 Vict. c. 35 ,
Monday, Jan. 20. s. 60, it is provided that the duties granted and
Duke or NORFOLK (app.) v. LAMARQUE (Surreyor contained in the schedule marked A shall be
assessed and charged under the rules set out in
Income tax - ofManorial
Taxes) (resp.).(a )
dues - Annual value that Act. Rule 2 provides that the annual value
Deductions— Expenses of collection – 5 8 6 Vict. of all the properties thereinafter described shall
c. 35 . be understood to be the full amount for one year,
The appellant was assessed to income tax as the or the average amount for one year, of the profits
lord of the manor of D ., from which manor he received therefrom within the respective times
received certain dues and fines. He claimed therein limited ; (fourth ), of manors and other
to be entitled to deduct the expenses of collecting royalties, including all dues and other services or
the dues and fines from the gro88 amount 80 casual profits (not being rents or cther annual
collected . payments reserved or charged ) on an average of
Held , that the full amount collected was properly the seven preceding years to be charged on the
lord of such manor or royalty, or person renting
taxable, and that the appellant was not entitled the
to deduct the costs of collecting the same from the tainssame. Then sect. 190 of the same Act con
the rules to be observed by personsmaking
amount atwhich he was assessed.
This was a case stated for the opinion of the returns of the annual value or profits on which
court under 43 & 44 Vict. c. 19 , s. 59, by the Com any duty is chargeable,and rule 4 is in the follow
ing words : “ By every lord or lady of a manor
missioners for general purposes of the Income or other royalty
Tax Acts for the Wotton division of the county of all dues and orother
tenant ofthe game,
services theamount
or other casual
of Surrey . profits (except rents and annual payments) of
(a) Reported by W . H . HORSFALL, Esq. Barrister-at-Law . I such manor or royalties on an arerage of seven
Q .B . Div.] DUKE OF NORFOLK (app.) v. LAMARQUE (Surveyor of Taxes) (resp.). (Q .B .Div .
years.' Sect. 159 states what deductions shall i from profits earned by manufactures or mercan
not be allowed in computing the duties to be tile concerns, because there the word “ profits "
charged , but none of them apply to manors. What necessarily means that which is earned after
is sought in the present case is not really a certain outlay, which is made for the purpose of
deduction , but a sum which must be taken into earning it, and it cannot be said that the collec
account before there is any profit. It has been tion of rent is money spent for the purposes of
held that in estimating the annual value of tithe earning the rent. It is simply money spent for
commutation rentcharge for the purpose of getting in thatwhich belongs to the owner. Now ,
charging the owner thereof with property tax the this case clearly comes under Order No. 2, and
amount necessarily expended by him in collection certainly the use of the word " profits " there is
of the tithe rentcharge must be deducted : not perfectly happy . The word is found in a
Stevens_ v. Bishop, 58 L . T. Rep. N . S. 669 ; rule which is enacted for estimating the lands,
20 Q . B . Div. 442. tenements, hereditaments, or heritages which are
So in the present case the appellant is entitled to not to be charged according to the preceding
deduct the amount he expends in collecting the rule No. 1. Therefore you still have lands, tene
manorial dues. ments, and hereditaments,and themanorialrights
Sir R . E . Webster (A .-G .) (with him Dicey) for in one instance, and the annual value of those is
to be understood to be the full amount for one
the respondent. - There is no authority for saying year,
that the appellant is entitled to make the deduc profitsorreceived the average amount for one year, of the
therefrom . In that case “ profits "
tion claimed in this case. It was admitted in the
case that has been referred to that the tithe does not mean profits in the sense of the net
owner had necessarily and properly to expend, profits in a mercantile business ; but in my opinion
and was compelled to expend, theamount claimed it means the average amount for one year of the
to be deducted in order to realise his tithe : interest or property that the person has in those
rights that are taxed . Then , when you come to
Stevens v. Bishop, 58 L. T. Rep. N . S . 669 ; paragraph
20 Q . B . Div. 442. 4 of rule No. 2 dealing with manors
In the present case no such admission is made and other royalties, the words are as follows :
on the part ofthe respondent. The appellant is be “ On an average of the seven preceding years, to
in the same position as a landlord who pays an or person charged on the lord of such manor or royalty
agent to collect his rents, and in such a case no be clear therefore renting tbe same.” It seems to me to
deduction is allowed for the commission paid to if it were a rent issuing that this is treated exactly as
the agent. He referred also to out of property which
Coltness Iron Company v. Black, 45 L. T. Rep. belonged to the lord of the manor in fee simple.
The only other doubt that I have in my mind is
N . S. 145 ; 6 App. Cas.315. owing to the case of Stevens v. Bishop (58 L . T .
Lyon in reply . Rep. N . S . 669 ; 20 Q . B . Div. 442). I think that
POLLOCK , B . - This case has been clearly and there is this distinction between the two cases,
very fairly argued on behalf of the appellant, but because it is quite clear that by schedule A ,
in my judgment the argument fails. It has been rule No. 1, which is the general rule for esti
admitted that this amount, in respect of which mating lands, tenements, hereditaments, or heri
the deduction is claimed , is not a deduction tages mentioned in that schedule, that when you
created by the words of the Act of Parliament as are taking the value, if the property has not been
a deduction, and that admission goes to my mind let at a rack rent, then the value is to be taken
a little further than it might at first appear to at the rent at which the same is worth to be let
carry the argument. On looking at the deduc. by the year. Of course, then , it would involve
tions provided for by the Income Tax Act 1842 putting up those tithes to auction or selling them
(5 & 6 Vict. c. 35), r. 5 of schedule A , I find that by private contract,and in contemplating what the
they are not deductions and allowances, as they tenant would give for it you may have to ask
are called in respect of items for collection ; that is yourself what would be the expense of collection .
to say, that they are not items which are essential But the main ground of the decision in that case
to be deducted before you can arrive at any was clearly this, as stated by Smith, J., that
actual sum fixed , as in the case of the manufac “ the Solicitor -General, who argued the case for
tures, such as outlay for the rent of the premises, the Crown, admitted for the purposes of this
for materials, salary of clerks or artisans, and so case, and of the argument he adduced , that the
forth ; but they are items which would come 121. 188. was an amount which Dr. Stevens had
after the profit derived from the particular sub necessarily and properly to expend, and was com
ject-matter which is taxed , is obtained . There pelled to expend in order to realise his tithe."
fore it is clear that this is in no sense a deduc We have not the facts before us which indicate
tion of that kind. Now is it a deduction why it was so , but the admission is sufficient.
which is to be made before you can arrive at If this were a case in which the rents could not
the amount which is to be returned by theperson be got in any shape or way unless the appellant
who is taxed ? Certainly it is not by thewords of expended a sum in order to get these rents in , it
the Act which requires the return, because every would be a very different matter. I think for
lord or lady of a manor has to return the amount the reasons I have given that this is a case in
of all dues and other services or other casual which the full amount collected is properly tar.
profits of such manor or hereditaments on an able. Therefore this appeal must fail.
average of seven years. Then when we turn to HAWKINS, J. - I am of the sameopinion.
Orders No. 1 and No. 2 of schedule A ., there Appeal dismissed.
arises to my mind the greatest difficulty , and I
think it arises from the way in which the word Solicitors for the appellant, Few and Co.
“ profits ” has been used in order No. 2. In the Solicitor for the respondent, Solicitor of Inland
first place no analogy whatever can be drawn | Revenue.
March 22, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.- 155
Q .B . Div.] COLQUHOUN (Surveyor of Taxes) (app.) v. HEDDON (resp.). ( Q .B . Div.
Monday, Jan . 20. which shall comply with the requirements of such Act,
and any person who shall under any Act of Parliament
(Before POLLOCK , B . and HAWKINS, J.) be liable to the payment of an annual sum or to have an
COLQUHOUX (Surveyor of Taxes) (app.) v. HEDDON annual sum deducted from his salary or stipend, in
order to secure a deferred annuity to his widow or a
(resp .). (a ) provision to his children after his death , shall be
Revenue- Income tax - Schedule D .- Life insur. entitled to deduct the amount of the annual premium
ance - Deduction of premium from profits — paid by him for such insurance or contract, or the
Premium paid to foreign company- 16 & 17 annual sum paid by him , or deducted from his salary or
Vict. c. 34, 8. 54 16 & 17 Vict. c. 91 - Life l stipend as aforesaid from any profits or gains in respect
of which he shall be liable to be assessed under either
Assurance Companies Act 1870 (33 %. 34 Vict. of the Schedules D . or E . of this Act, or to have any
c. 61). assessment which may be made upon him under either
It is provided by 16 & 17 Vict. c. 34, 8. 54, that | oftiontheofsaid schedules reduced or abated by the deduc
the amount of the said annual premium from
“ any person who shall have made insurance on the amount of the profits or gains on which such assess
his life in or with any insurance company which ment has been made, or if such person shall be assessed
shall have become registered under any Act to be to duties under any of the schedules contained in this
passed in the present session of Parliament for Act, and shall have paid such assessment, or shall have
that purpose, shall be entitled to deduct the paid or been charged with any of the said duties by
amount of the annual premium paid by him for deduction or otherwise, such person on claim made to
the commissioners for special purposes, and on pro
such insurance from any profits or gains in duction to them of the receipt for such annual pay.
respect of which he shall be liable to be assessed ment, and on proof of the facts to the satisfaction of
Nounder
Act forSchedule D . of thisof Act." the commissioners shall be entitled to have repaid to
the registration insurance companies him such proportion of the said duties paid by such
was passed during that session of Parliament, person as the amount of the said annual premium bears
but in place thereof it was enacted by 16 & 17 he to the whole amount of his profits and gains on which
Vict. c. 91, that any person who shall have made of shall be chargeable under all or any of the schedules
this Act.
any such insurance in or with any insurance 3. By 16 & 17 Vict. c. 91, after reciting the last
company existing on the 1st Nov. 1844, or in or mentioned Act, and reciting that as it might
with any insurance company registered pursuant happen that an Act for the registration of
to 7 & 8 Vict. c. 110, for the “ Registration , insurance companies might not be passed in
Incorporation , and Regulation of Joint Stock the then present session of Parliament, it was
Companies ” shall be entitled to all the benefits expedient that the benefit of the recited provision
and advantages of the above provision
The respondent insured his life in an insurance should for a limited time be extended to persons
insuring or contracting with such insurance
company, whose principaloffice and business was offices as thereinafter mentioned , it was enacted
in America , but which had agents and offices in as follows:
this country, and made returns to the Board of Sect. 1. Any person who shall havemade any such in
Trade pursuant to the provisions of the Life surance or contracted for any such deferred annuity as in
Assurance Companies Act 1870, 33 & 34 Vict. the said provision mentioned , in or with any insurance
c.61. The company was not registered pursuant company existing on the first day of November, one
thousand eight hundred and forty -four, or in or with
to the provisions of 788 Vict. c. 110 .
The respondent claimed to be entitled to deduct any insurance company registered pursuant to the Act
the amount of the annual premium paid by him 7 & 8 Vict. o. 110, “ for the Registration, Incorporation ,
and Regulation of Joint Stock Companies," shall be
from the profits in respect of which he was liable entitled to all the benefits and advantages which by the
to be assessed under Schedule D . said provision are expressed to be given in respect of
Held, that the deduction could only be made in the like insurance, or contract in or with any insurance
the case of premiums paid to English insurance company which shall become registered under any Act
companies described in 16 & 17 Vict. c. 91, and to be passed in the present session of Parliament for
that purpose .
that the respondent was therefore not entitled to The provisions of the above stated Acts were
make it in the present case. in force on the 5th April 1886 .
This was a case stated under 43 & 44 Vict. c. 19, 4 . By the Customs and Inland Revenue Act
s. 59,by the Commissioners for general purposes 1886
of the Income Tax Acts for the city of London follows(49: Vict. c. 18), s. 5, it is provided as
for the opinion of this court : All such provisions contained in any Act relating to
1. At a meeting of the Commissioners for the
general purposes of the Income Tax Acts for the income tax have
1886 , shall as were in force
full force andoneffect
thewith
fifth respect
day of toApril
the
city of London , the respondent appealed against duties of income tax granted by this Act so far as the
an assessment of 621. under Schedule D . of same shall be consistent with the provisions of this
16 & 17 Vict. c. 34 , for the year ending the 5th Act.
April 1887 made upon him , and claimed that he 5. In the year 1886 the respondent paid to the
should be allowed by way of deduction from the New York Life Insurance Company the sum of
said assessment the sum of 61. 48. 2d . paid by 61. 48. 2d ., being one year's premium due to the
way of premium on an insurance for 3001. effected said company in respect of a policy of assurance
by him with the New York Life Insurance Com for the sum of 3001. duly effected with the said
pany , under the following circumstances. insurance company on the 5th Dec. 1883.
2. 16 & 17 Vict. c. 34, s. 54,provides : 6 . The New York Life Insurance Company
life was incorporated by special Act of the Legis
Any person who shall havemade insurance on his lature of New York dated the 21st May 1841,
or on the life of his wife , or shall have contracted for | as a Marineand Fire Insurance Company,and ex .
any deferred annuity on his own life , or on the life of
his wife, in or with any insurance company which shall tended by aninsurance. Act of State, dated the 18th April
become registered ander any Act to be passed in the 1843 , to life
present session of Parliament for that purpose, and 7 . Itwas contended by the appellanton theabove
(a)Reported by W . H.HORSFALL, Esq.,Barrister-at-Law. I factsthatthe provisionsof the variousabove named
156 – Vol. LXII., N . 8.) THE LAW TIMES. [March 22, 1890.
Q .B . Div .] COLQUHOUN (Surveyor of Taxes ) (app.) v . HEDDON (resp.). [ Q.B. Div.
Actsreferred only to insurance companies existing blished in parts beyond the United Kingdom ,
in the United Kingdom , and did not relate to and that in these companies many of Her
the New York Life Insurance Company, and that Majesty 's subjects insure their lives. It seems
the respondent was consequently not entitled to to me this is a case in which wemust be governed
the reduction of the assessment claimed by him . by the words that are used by the Legislature,
8 . The commissioners,however, were of opinion giving to those words their usual meaning and
that the New York Life Insurance Company | gathering as far as we can from those words the
came within the provisions of the above-named | intention of the Legislature. It is not disputed
Acts, and that the respondent was entitled to a for a moment that, except for some statutory
reduction from the amount of his assessment of exception , the amount which it is sought to tax
the sum of 61. 4s. 2d . premium paid by him , and in this case would be taxable under the Income
decided accordingly . Tax Acts , and that prior to the year 1853 the tax
9. At the request of the appellant this case must have been paid upon it. At that period,
was stated by the commissioners for the opinion after consideration by Parliament for many years
of the Court. of the arguments used against taxing professional
Sir Richard E . Webster, A .-G . (with him Dicey) incomes upon the same basis as those amounts
for the appellant. — The question in this case is which had been realised for many years past, and
whether the deduction of the premium , paid by had become capital in every sense of the word ,
a person to an insurance company for insuring those arguments prevailed to this extent, that
his life, from the profits which have to be taxed the Legislature chose to say that in certain cases,
under Schedule D . of the Income Tax Acts can where a man 's thrift had taken the form , not
be deducted when the insurance company is not merely of investing his money so that it became
a British company . I submit that it is clear that capital, but of adopting the plan of insuring his
the Legislature, when it enacted that exemption , life or that of his wife, there should be an excep .
intended that it should apply only in the case of tion made in his favour to the extent of the
British companies. The word “ company ” is a amount of the premiums paid for such insur
term used in English legislation to represent ance. Accordingly the statute 16 & 17 Vict.
certain bodies with which the Legislature of this c. 34, was passed , and it was provided in sect. 54
country deals, and because an association of that " any person who shall have made insurance
persons in America happens to be described by on his life or on the life of his wife, or shall have
the same word it is no reason why it should be contracted for any deferred annuity on his own
the same as what in this country is called a life or on the life of his wife in or with any insur
“ company.” It has been held that a railway ance company which shall become registered
company existing in a foreign country is not under any Act to be passed in the present session
within the purview of the English Joint Stock of Parliament for that purpose, and which shall
Companies Art 1856 and 1857 : comply with the requirements of such Act, and
Bulkeley v . Schutz, L. Rep. 3 P . C. 764 . any person who shall under any Act of Parlia
Finlay, Q .C . (with him Bremner). There is mentto behave liable to the payment of an annual sum
nothing in the words of the statutes to exclude or an annual sum deducted from his
salary or stipend, in order to secure a deferred
this company from their provisions. It comes annuity
within the definition contained in the Life Assur after histo death his widow or a provision to his children
, shall be entitled to deduct the
ance Companies Act 1870 (33 & 34 Vict. c. 61), amount of his annual premium paid by him for
s. 2, which is in these words : “ The term ' com such insurance or contract."
pany ' means any person or persons, corporate words in this section are these: The important
“ Any person
or incorporate, not being registered under the who shall have contracted with any iosurance
Acts relating to friendly societies, who issue or company which shall become registered under
are liable under policies of assurance upon any Act to be passed in the present session of
human life within the United Kingdom , or who Parliament
grant annuities upon human life within the Parliament for that purpose." It is clear that
contemplated the passing of some
United Kingdom ." " This company has also made Act dealing with the registration of insurance
the returns to the Board of Trade which are companies. But quite apart from that, I for my
required by that Act. It is in the same position part am convinced
as a Scotch company which has no office in of Parliament the that when in an English Act
words “ any insurance com
England or Ireland , and this court will not take pany " are used , those words mean a company
judicial cognisance of the fact that a company within the United Kingdom
is a company in Scotland, but I submit that a nisance of the English law and within the cog.
person paying a premium to a Scotch company the first place, the word “ and legislation. In
company ” in itself
would be entitled to make the deduction claimed denotes not a mere personal identity or a firm of
in this case. persons wbich , in a mercantile sense, might be,
Sir R . E . Webster (A .-G .) in reply.- No case but
has been suggested to show that the word evernot necessarily would be, the same in what
part of the world it was established ; but
“ company ” in the Act includes a foreign com the
pany. If it does it would be putting a double legalword entity
“ company ” means an entity, and a
, the validity of which and the effect
meaning upon the word which I submit was never of which must depend upon the laws of the
intended by the Legislature. country within which the company ” is esta
POLLOCK, B . — The only conclusion I can come blished . Therefore,upon all ordinary principles,
to in this case is that this appeal ought to be it seems to me sufficient to say that the words
allowed . The case no doubt is one of consider . | “ insurance company " in this English Act of
able importance financially, for it is common Parliament meant an insurance company witbin
knowledge that very large insurance companies the meaning of the English Legislature, and
of perfect solvency and confidence are esta . I therefore within England. But I think it is
March 29, 1830.] THE LAW TIMES . (Vol. LXII., N . 8. - 157
Q.B.Div.] COLQUHOUN (Surveyor of Taxes) (app.) v. HEDDON (resp.). [ Q .B. Div.
equally important to show that the Legislature on the part of the Crown. I am of opinion that
has not only spoken of English companies gene- they are not so to be construed , and for this
rally, but has spoken of a company which shall short reason . It is clear that when the Income
become registered by an Act which was supposed Tax Act of 1853 ( 16 & 17 Vict . c. 34) was passed
then to be about to be passed . No Act was it was in contemplation that there should be
passed during that session for the registration of passed , and would be passed during the session
insurance companies, but instead 16 & 17 Vict. 1 of 1853) an Act relating to the registration of
c. 91 was enacted . Now , that Act, after reciting | insurance companies, and an exemption in
that an act for the registration of insurance favour of any insurance with one of the com
companies might not be passed , provided that panies contemplated by that Act would be
" any person , who shallhave made any s!ich insur- allowed as mentioned in sect. 54 of 16 & 17 Vict.
ance or contracted for any such deferred annuity c. 34. Then 16 & 17 Vict. c. 91 was passed in
4s in the said provision mentioned , in or with the same session , and recites, as it turned out to
any insurance company existing on the 1st day of be the fact, “ that it may happen that an Act for
Nov. 1844 , or in or with any insurance company the registration of insurance companies may not
registered pursuant to 7 & 8 Vict. c. 110 ” (that be passed in the present session of Parliament,
is, the Registration Act), might in that case and it is expedient that the benefit of the recited
make the deduction . There again all the same provision should for a limited time be extended
arguments apply upon the words " any insur- | to persons insuring or contracting with such
ance company " as denoting an English com - | insurance offices as hereinafter mentioned .” Then
pany. The argument, to mymind, is still stronger | it proceeds to say : " Any person who shall have
with regard to the intention of it being a regis . made any such insurance or contracted for any
tered company. The period fixed here of the such deferred annuity, as in the said provision
1st Nov. 1844 obriously has reference to the mentioned , in or with any insurance company
Registration Act (7 & 8 Vict. c. 110 ), which was existing on the 1st day of Nov. 1844, or in or
passed on the 5th Sept. 1844, and in that Act the | with any insurance company registered pursuant
1st Nov. is the date after which all joint stock to the Act of the session holden in the seventh
companies which may be started in England are and eighth years of Her Majesty, c. 110." To
to be registered . Therefore it seems to me clear my mind it is quite clear that there is some
from the language used that the intention is that meaning attributable to the words “ 1st day of
it should be an English company and a regis. Nov . 1844,” and some reason for the insertion of
tered company. And if it be necessary at all to these words in this section , and I find the reason
look at the intention of the Legislature, I think when I come to look at 7 & 8 Vict. c. 110, which
it is obvious that the Legislature never could is the statute for the registration of joint-stock
have intended to provide for this exemption in companies. The operation of that Act is stated
favour of all persons insured in any part of the in these terms: " This Act shall apply to every
world, not with any person, because that would joint - stock company, as hereinafter defined ,
not do,but with any company," because who is established in any part of the United Kingdom
to say what is a company, and what security of Great Britain and Ireland except Scotland, or
would the British Government have in collect established in Scotland,and having an office or
ing their revenue from persons who so insured place of business in any other part of the United
with entities that were called “ companies " in Kingdom , for any commercial purpose, or for
some foreign country . But the last argument any purpose of profit, or for the purpose of
used by the Attorney-General seems to me abso assurance or insurance (except banking com
lutely conclusive, and that is this, that with panies, & c.)" By sect. 3 the word “ company "
regard to companies that were not then regis. is defined to mean any joint-stock company or
tered , but which had to be registered , this extra other institution as before defined. Now , that
ordinary result would follow , that you could Act was to come into operation , according to
never get this deduction where your payment of sect. 1, upon the 1st Nov. 1844 , " as to all com
the premium was to an English company unless panies to which this Act is to apply, and all
it was registered ; but you could get the deduc. Other the provisions hereinafter contained , except
tion where your payment was to a foreign com such as relate to such officers and office as afore
pany, although it was not registered . That cer. said .” I confess that when I come to read the
tainly amounts to mymind, looking to the pur words of sect. 1 of 16 & 17 Vict. c. 61, which
pose and intent of this legislation , to a reductio ab provides that “ any person who shall have made
absurdum . On all these grounds it seems to me any such insurance with any insurance company
that the appeal must be allowed in this case. existing on the 1st day of Nov . 1844, or in or
HAWKINS, J. - I am of the same opinion . The with any insurance company registered pursuant
real question in this case, and the only question , to the act of the session holden in the seventh
seems to me to be , what is the meaning of these and eighth year of Her Majesty ” my mind is
words in 16 & 17 Vict. c. 91, sect. 1 : " With any brought to this conclusion , viz ., that the inten .
insurance company existing on the 1st day of Nov. / tion of the Legislature was, and that we ought
1844, or in or with any insurance company regis. to construe the section as meaning any insurance
tered pursuant to the Act of the session holden in company which existed , and was carrying on
the seventh and eighth year of Her Majesty, c. 110 , business in England on the 1st day of Nor. 1844
for the registration , incorporation , and regula (on which day 7 & 8 Vict. c. 110, was to come
tion of joint-stock companies." On behalf of the | into operation ) or any insurance company regis .
respondent, it is contended that " any insurance tered pursuant to that Act. Although these
company ” is to be read simply according to the words are very general, looking at them without
natural interpretation of those words without reference to the previous enactment, I cannot
reference to any limitation such as is sought to bring myself to think that it was erer contem
be imposed upon them by the Attorney -General plated by the Legislature that any other company
Vol. LXII., N . S., 1585.
158 - Vol. LXII ., N . S.] THE LAW TIMES. ( March 29 , 1890.
Ct.of APP.] Ward v. Lawson. [CT. OP APP.
should be brought within the meaning of this solution of the firm of Eyre and Lawson in Sept.
section , which I have just read, except such com - | 1867, down to the filing of the bill ; delivery and
panies as to which 7 & 8 Vict. c. 110 applied, taxation of the defendant's bills of costs ; and the
which were in existence on the 1st day of Nov. taking of various accounts.
1844, or which might be registered after that A decree was made in that suit, and in the
date . I do not refer at all to the later statute working out of the decree the question arose
relating to insurance companies, because it does
whether a London solicitor, who had acted as
not seem to me to deal with the present argu. London agent for a country solicitor, was entitled
ment or to have very much bearing upon the to share in interest which the country solicitor
subject. I think that this appeal ought to he had received from the client in respect of costs,
allowed . the payment of which had been delayed for
Appealallowed. many years .
Solicitor for the appellant, The Solicitor for In Jan . 1859 an agreement was entered into
Inland Revenue. between the plaintiff and the firm of Eyre and
Solicitors for the respondent, Ashurst, Morris, Lawson , that that firm should act for the plaintiff
Crisp, and Co. as his agents in London , and it was agreed that
all business introduced by the plaintiff to the
firm , and transacted by them , should be trans
acted by them as agents for the plaintiff on the
Supreme Court of Judicature. usual agency terms.
In 1866 it was further agreed between the
plaintiff and the firm that the bills of costs for
COURT OF APPEAL. business transacted by them as the plaintiff's
agents in respect of the railway company should
Wednesday, Jan . 22. be kept separate from the plaintiff's general
(Before Cotton, Bowen, and LOPES, L .JJ.) agency bills, and that they should not call upon
WARD v. Lawsox . (a ) the plaintiff to pay any of their agency bills until
the plaintiff had obtained payment of his bills of
APPEAL FROM THE CHANCERY DIVISION . costs from the company.
Solicitor - Costs - London agent and country soli After the dissolution of the firm of Eyre and
citor - Agency business - Right of London agent Lawson the defendant continued to act as London
to participate in interest on costs paid by client. agent for the plaintiff on the same terms, and
transacted various business relating to the rail.
W . was the country solicitor of a company. L . way company.
agreed to act as his London agent in the com The railway company did not pay the costs due
pany's business on the usual agency terms, them to the plaintiff till many years after
except that L . should not call on W . for payment by
of any of his agency bills until W .had obtained they becamedue.
payment from the company. Aftermany years andTheobtained plaintiff sued the company for the costs
judgment against them with
W . enforced payment by the company of the interest.
amount of his bill of costs, with a considerable An account of all dealings between the
sum for interest. An account of all dealings plaintiff
between W . and L. was being taken in chambers, chambers,and the defendant was being taken in
and the defendant claimed to share in
and L.
account.
claimed to have the interest brought into this interest.
Held (reversing the decision of Chitty, J.), that A summons was accordingly taken out by the
Li's right was to be repaid his disbursements, defendant to have the question determined .
and receive, not half the profits, but half the theThe plaintiff haring died his executors opposed
summons.
“ profit costs," whether the company paid them The summons was adjourned into court , and
or not, and that he was entitled to nothing more, on to be heard before Chitty , J. on the
and could not claim to participate in the came 5th Dec. 1889 .
interest.
Held also, that although the fact that L. had sus Romer, Q .C. and B. Eyre, for the defendant, in
pended his right to payment would have made a support of the summons.
stipulation as to interest reasonable, yet the court Byrne, Q .C . and Chadwyck Healey , for the
could not import such a stipulation into the plaintiff 's executors, contra .
agreement merely because he had agreed not to CHITTY, J. - The question on this summons
claim payment till W . had obtained payment arises upon taking the accounts under the
from the company. decree. The question is, not whether the late Mr.
The suit of Ward v . Lawson was commenced in Ward, the plaintiff, is to be charged with interest
the Court of Chancery in 1872. The plaintiff personally , but whether he is to acconnt for
was Mr. James Ward , a solicitor at Sheerness,
who had since died . The defendant, Mr. Archi interest which he has received from the Sitting.
bourne Railway Company. Mr. Lawson was a
bald Scott Lawson , was a solicitor in London , London solicitor, and Mr. Ward was a country
who was formerly a member of the firm of Eyre solicitor, and the general arrangement between
and Lawson . them was that Mr. Lawson should act as London
By the suit the plaintiff sought to obtain from
the defendant discovery of allmatters of busi agent to Mr. Ward . But they had a special
arrangement in regard to the Sittingbourne Rail
ness transacted by him as the agent of the way Company, and as to that I read the agree
plaintiff for or in respect of the Sittingbourne | ment as it is stated in the bill of complaint of Mr.
and Sheerness Railway Company, from the dis Ward . The agreement there stated was between
(a) Reported by W . O. Biss, Esq., Barrister-at-Law . i Mr. Ward of the one part, and Messrs. Eyre and
March 29, 1890.) THE LAW TIMES , (Vol. LXII., N . 8.- 159
CT. OF APP.; WARD V. Lawson . (CT. OF APP.
Lawson of the other part ; but the same terms ! both parties. Now , it is clear in this case, from
were continued after Mr. Eyre had ceased to be a the terms of the agreement which I have read ,
partner, and when Mr. Lawson was acting alone. that if Mr. Lawson had received the amount of
The agreement, as between the plaintiff and Mr. the bills from the railway company he must have
Lawson, stated that the bills of costs for business allowed as between himself and Mr. Ward in
transacted by Mr. Lawson as the plaintiff's agent account the sum that he actually received , and if
in respect of the company should bekept separate that sum had included the original principal of
from the plaintiff 's general agency bill. I will the demand and interest for forbearance, then he
read the agreement from the bill of complaint, would be chargeable with interest, and the interest
because it is better perhaps that I should read it would then go as part of the protit to be divided
just as it is. I must, however, read it in the between these two persons. Unquestionably the
plural, because it relates to the firm of Eyre and main line of thearrangement was that of principal
Lawson . The sameagreement, as I have stated , and agent ; but there was something more, and
is an agreement with Mr. Lawson , and therefore the clause I have read makes it a special agree
if I were to read it as an agreement with Mr. ment. It shows that, contrary to the ordinary
Lawson I should substitute the singular for the practice, Mr. Ward could not be sued until he had
plural But it would be a little intricate to read obtained the money from the company. It con
it in that way , and therefore I shall read it as it templated that the defendant Lawson might
stands. It is this : “ That thebills of costs for receive the money, and when he got the money in
business transacted by them , as the plaintiff's his hands whatever it was, that would form part
agents in respect of the said company, should be of the subject-matter for division between the
kept separate from the plaintiff 's general ageney two. The disbursements of course , whatever dis
bills, and that they should not call upon the plain bursements there were, would be taken out of the
tiff to pay any of their agency bills until the fund received , and then in the ordinary case
plaintiff had obtained payment of his bills of there would be profit costs and only profit costs
costs from the company ; and that all sums of to divide. But in this case there would be profit
money paid by the company, or by persons in interest that would be divisible between the two.
litigation with the company, to the said firm on Itwould be clearly so if the defendant received ia ;
account of their costs, charges, and expenses, and why not if the plaintiff received it ? What
should be carried to the plaintiff's credit " - that has happened is this — that the railway company
is, Mr. Ward 's credit " in aceount, and paid or have not been induced or coinpelled to pay fur
accounted for to the plaintiff by the said firm " | many years . In the account that has been
Now the decree directs an account of dealings and brought in - account A - it appears that the rail
tracsactions ; it directs Mr. Law.son to deliver way company have paid interest on these bills of
costs for various long periods of time the
copies of the bills, or the originals of the bills of
costs made outby him against the company ; and longest period. I have noticed being twenty years.
it also directs that all bills of costs not already I think that the meaning of the agreement is not
delivered to the company are to be made out in that Mr. Ward should pay interest, but that, the
the usual form as agency bills, and submitted to profit should be divided between the London
the plaintiff before delivery. Then the decree agent and the principal, on the terms of the
contains a clause founded upon that portion of interest which should be received by each one from
the agreement which is peculiar,, namely, that the debtor, the railway company, being brought
Mr. Lawson shonld not call upon the plaintiff to into account. That is the only question I have to
pay any of the agency bills until the plaintiff decide, and I so decide it..
obtained payment from the company. The decnee From that decision the plaintiff's executors
contains this clause : “ That the defendant is not appealed . The appeal came on for hearing on the
to be at liberty to enforce the payment by the 22nd Jan ..
plaintiff of any sums of money which may appear
to be due to bim in respect of any bill's or theD appella
. W . Bymne,
nts.
Q.C. and Chadwyck Healey for
bill of costs incurred by the Sittingbourne and Romer, Q .C . and B . Eyre for the respondent.
Sheerness Railway Company for any business The question of the nature of the ordinary
transacted by the defendant for the said com
pany unless or until the Sittingbourne and Sheer relation between a country solicitor and his
ness Railway Company, shall have paid theamount London agent, and the remuneration to which the
of the bill or bills of costs to the plaintiff.” Then | London agent was entitled in the absence of any
there comes this,provision in the decree, which is special agreement, was discussed . The Court con
important : “ It is ordered that the plaintiff sulted Mr. Ryland the taxing master, and he
and defendant do respectively proceed to get in | informed their Lordships that under the usual
all moneys due from the said company or agency terms the London agent was entitled to
litigants with the said company to the plaintiff be paid all his disbursements out of pocket and
and the defendant respectively." The effect of also one-half of the " profit costs,” but that he
that is to show that in the opinion of the judge had nothing to do with any profit made by the
who made the decree there would be moneys that country solicitor.
had to be got in for the common benefit of Mr. COTTON , L . J. -- This is an appeal from a decision
Ward and of Mr. Lawsou either in an action of Chitty , J. on a matter which has arisen in
brought in the name of Mr. Ward or in the taking the accounts as between these parties.
name of Mr. Lawson . The direction is as against Although the order does not in terms state that
the plaintiff as I have pointed out, which could the plaintiff (who is now dead ), is to pay to the
only be obtained of course at the instance of the defendant, yet I think it does imply not only that
defendant, just as much as it is against the defen he is to account forwhat interest he has received ,
dant to get in moneys which could be obtained but that the defendant is entitled , under the
againstthe plaintiff. In other words, it applies to arrangement between the parties, to half of that
160 - Vol. LXII., N . S.] THE LAW TIMES. ( March 29, 1890.
CT. OF APP.] WARD v. Lawson. [CT.OF APP.
interest. To my mind it turns on what were the was engaged , or was he entitled to half the
real terms ofthe agreement between the plain . amount of the “ profit costs,” that is to say, of
tiff and the defendant, that is to say, between those charges to which I have referred ? We did
Ward the plaintiff, who is dead, and the defen not feel quite justified in deciding that point with
dant Lawson . The original plaintiff ,Ward , was out getting the opinion of a gentleman who would
a country solicitor, and the defendant, who was know very well from his position as taxing
in partnership with another gentleman , was master, and his former position as solicitor, what
a London solicitor. Originally, undoubtedly, was the arrangement. Welearn from Mr. Ryland
Ward was the solicitor of the railway company, what I have said , namely, that the London agent
and then he applied to the defendant, or his then is only entitled - not regarding the charges where
firm , in order that his then firm might transact he has paid out of pocket - to half the amount of
somebusiness for this railway company. I think those which are called " profit costs,” that is,
it is hardly to be doubted that it was originally those cbarges which do not involve any expendi
the position of country solicitor and London ture of money by him . It is upon the use of the
agent. But then there was an agreement made term “ profit costs " that really the difficulty has
between them , and it is said that afterwards at a ariseu . The contention raised here on behalf of
later period Ward ceased to be the solicitor of the defendant is that he is entitled to half the
the company, and that then the defendant became profit . We are told by Mr. Ryland that the
himself the solicitor of the company, and that defendant isnot so entitled. TheLondon agent has
therefore it was not a case as between the plain nothing to do with the profitmade by the solicitor ;
tiff as country solicitor and the defendant as nor is he in any way, unless there is some special
London agent. In my opinion it is not shown arrangement, implicated in any loss which the
that there was any putting an end to the country solicitor, the solicitor in the case, may
agreement which I have referred to . In my suffer in respect ofthe client notbeing able to pay
opinion , if that was the real position of the him . Is there any arrangement here which alters
parties at one period, the agreement is binding, that or which gives the defendant here a claim
and still regulates, so far as it applies and can to half the profit ? It is said that there is,because
regulate it, the question in dispute between these this was not included in the usual agency terms ;
parties. The plaintiff made an arrangement with and in my opinion it was not. But there was no
the firm of Eyre and Lawson that the firm should distinction or difference as regards the distribu
act for the plaintiff as his agents in London . It tion of the money which the solicitor received ,
is agreed between the plaintiff and the firm that that is to say, as regards the charges which the
all business introduced by the plaintiff to the London agent is able to make. But there was
firm ard transacted by them should be so trans. this : thathe was not to sue the plaintiff until the
acted as agents for the plaintiff on the usual plaintiff had obtained paymentof his bills of costs
agency terms. So that, as long as the plaintiff from the company. The words are, that they
was really in the position of solicitor, and the de shall not call upon the plaintiff to pay any of
fendants were really in the position of London their agency bills until the plaintiff had obtained
agents, the usual agency terms should regulate payment of the bills of costs from the company.
their dealings and transactions. As regards all That does not, to my mind , say what amount is
business which was introduced by the plaintiff, to be claimed by the defendant, or what sums he
the defendants were to act as agents for the is entitled to charge as against the plaintiff his
plaintiff on the usual agency terms; that is to principal, but only limits the time. It says that
say, so long as the business was introduced, and he shall not make any claim in respect of what
as regards all business introduced by the plain . . he is entitled to as agency charges unless and
tiff to the defendants, they should act on the until the plaintiff obtains payment of the bills of
usualagency terms. To my mind that means | costs from the company. In my opinion , there is
that any moneys received in respect of the busi- | nothing in that which gives the London agent,
ness so introduced , even though at the time the the defendant here, any right to anything more
defendants were not really in the position of than he would get according to the usual agency
London agents for the country solicitor, should be | terms. It prevents bim ,undoubtedly, from suing
dealt with on the usual agency terms. In the for those, or from making any claim against the
ordinary case the London agent has no claim at all solicitor until the solicitor is paid ; but because
against the client,buthe can sue the country soli. the agreement says that he shall not do so for
citor for what is due to him on the arrangement, a certain time it does not alter in any way the
usually regulating the distribution of moneys amount which he can claim when that time
received or charged for in respect of bills of costs. arrives. Then it is said that natural justice
Now there was a considerable question as to what gives him a claim as against the solicitor on any
was the position and claim of the London agent interest he may obtain in addition to the amount
as against the country solicitor. Of course the of the profit costs, charges in respect ofwhich the
London agent is entitled to all charges which London agent has made no expenditure, That
are made for sums paid by him for might have been rery reasonable if there had
moneys out of pocket. But there may be and been any such clause here, but there is not. In
are many other charges in a solicitor's bills where my opinion , it would be wrong, simply because the
there is no actual expenditure by the London London agent has agreed not to sue tho solicitor
agent. He makes charges for professional ser until certain events arise,to importinto that agree.
vices, and attending to the client or rendering ment this condition , that if, in consequence of the
advice,and many othermatters. Those, I think, delay, you get any interest paid to you, then there
are called “ profit costs.” The content as to what is an implied contract or agreement that I shall
the right of the London agent is was this : Was have half that interest. In my opinion, the view
he entitled to balf the profit made on the bills of of Chitty, J. was wrong, and I cannot agree with
costs in respect of the transactions in which he l it. I think the appeal must therefore be allowed .
March 29, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8. - 161
CT. OF APP. ] WARD v. LAWSON. [CT. OF APP.
LINDLEY, L .J. - The difficulty of this question | define the position of the two parties. First of
arises from misunderstanding the exact meaning all, there is a declaration as to his position that
of the real agreement entered into between the | he is an agent, and what he is to do ; then there
parties, because the decree upon which the is the third clause about all dealings and trans
respondent relies is based upon that agreement, actions, which was naturally relied on by the
and it is so carefully worded and expressed as to respondent ; then there are certain clauses care
give effect to it. Now , there is nothing in the fully worded with reference to getting in what is
decree which settles this point one way or the due from the company, and they are both to get
other. I am quite aware that there is the third in as best they can what may be payable from the
clause about dealings and transactions , but there | company to them or either of them . But there
is nothing which says what is to be done with is not a word that I can see in this decree which
the interest when it is recovered - whether it is entitles the town agent to more than the agree
to be shared between the parties, or to whom it ment gives him . It appears to methat that is
is to belong. To decide that we must look at where Chitty, J. has gone wrong, because he
the agreement itself. Now the agreement was seems to have attributed to this decree a force
entered into at two different times. It is set out and effect which I do not think it bears. He says :
in paragraph 4 of the bill in Ward v. Lawson . The “ It is clear in this case from the terms of the
first agreement was in January 1859 , when it was agreement, which I have read , that if Mr. Lawson
arranged that the business — which I may shortly had received the amountof the bills from the rail.
allude to by calling it “ the business " - should be way company, he must have allowed as between
transacted by Eyre and Lawson, as agents of the himself and Mr. Ward in account the sum he
plaintiff, on the usual agency terms. I pass that actually received ” - he certainly must - " and if
over for the moment. Then after that, in 1860, that sum had included the originalprincipalof the
there was a further agreement embodying this demand and interest for forbearance, then he
important stipulation : that the defendants, the would be chargeable with interest ,and the interest
town agents, Eyre and Lawson , should not call would then go as part of the profit to be divided
upon the plaintiff to pay any of their agency between these two persons.” There, I think , is a
bills until the plaintiff had obtained payment of mistake. He would have had to hand over the
his bills of costs from the company, and that | amount of that interest to the person to whom
those bills should be kept separate. Now , the it belonged , and that is the country solicitor. I
first question and the main question is, what is cannot, now that I understand the meaning of
meant by the expression " on the usual agency the agreement, spell out of this anything to the
terms" ? I confess I thought at one time, until effect which would entitle Mr. Lawson to interest
Mr. Ryland made it plain that I was wrong, that on these bills . He has stipulated that he will
the town agent shared theprofits up to a certain not demand payment for a time, which is unfor
point made by the country solicitor ; but that is tunately very long- namely, until the railway
not so at all. Mr. Ryland tells us that what is | company pays. That delay has been very con
meant by " the usual agency terms" is this : that siderable ; and nothing would be more reason .
the town agent has nothing to do with the profits. | able, or would have been more reasonable, than
Mr. Ryland gave us a very remarkable instance, for him to have stipulated that he should have
in which a conntry solicitor got from a grateful interest if the railway company paid interest.
client 5001. in a case in which Mr. Ryland was He has not done anything of the kind ; and now
the town agent, and the town agent did not get a that the termsof the agreement are understood , I
farthing of that. The town agent does not share do think that it is incumbent upon him to show
the profits, and has nothing to dowith the profits ; | some agreement entitling him to interest. At
butwhat he does is this : He gets his disburse first, I thought it was the other way. I thought
ments,and then he has half of certain charges it would require an agreement to disentitle him ,
which are called " profit costs,” to distinguish them but that idea is entirely changed , I think , when
from disbursements. When once one sees it and one understands the full and accurate meaning
gets clearly into one's head that the usual agency of the phrase “ usual agency terms." That Mr.
terms have nothing to go with sharing profits at Ryland has explained to us ; and having regard
all, then this case becomes one very easy of solu : to his explanation , this appealmust be allowed .
tion. Now , there is nothing in the agreement, LOPES, L .J. - In the judgment which has been
and there is nothing which , when the expression referred to, Lord Selborne says that the account
is understood , can be interpreted so as to involve in question is an agency account between a
as a consequence the right of the town agent to London solicitor and the country solicitor. The
share any profits, whether they come in the shape relation, therefore, between the plaintiff and the
of interest or whether they come in the shape of defendant in this case is the relationship of a
gift or otherwise to the country solicitor. " The | country client and a London solicitor. What then
sum which the town agent is to be entitled to is an agency account ! or, in other words, what
is to be ascertained upon a different footing is a London solicitor entitled to receive in respect
altogether, and there is nothing in the decree of agency charges from the courtry solicitor ?
which in any way varies that. But in conse He is entitled to receive all out-of-pocket expenses,
quence of the difficulties which have arisen from and he is entitled to receive a share of the profits,
the contentions of Mr. Lawson , and from his con l.be it a half or a third (what I call a share of the
duct- I donot say thathe waswrongor right in the profit charges) whichever may be the arrange.
matter, for he may have been partly right and ment between them . Now this, to my mind, is
partly wrong - but in consequence of the fact that when it is considered for a moment, a very reason
he had apparently worked , or assumed to work, able arrangement in respect of these charges.
for the company as principal, and not merely as The country solicitor does nothing whatever, but
an agent, it became necessary in pronouncing the l on the other hand, he has introduced the busi
decree to introduce some words which would lness to the London solicitor ; and, moreover, the
162 - Vol. LXII., N . 8.] THE LAW TIMES. [March 29, 1890 .
CT. OF APP.] TOMKINSON v . CONSOLIDATED CREDIT AND MORTGAGE CORPORATION . [CT. OF APP.
country solicitor remains immediately responsible , tenant to the plaintiff, with intent to prevent the
to the client. Therefore it seems to me fair that plaintiff from distraining upon them for arrears
he should be remunerated , although the work is of rent due from Flicker. There was an alter
done by the London agent. Now when it is native claim for damages for the removal of the
clearly understood what the agency bill is, or goods by the defendants, upon the ground that
what the agency charges are, it appears to me not the goods were seized under a bill of sale, and
very difficult to interpret this agreement. To were removed before the expiration of five days
mymind it means this : The country solicitor is from their seizure, contrary to the provisions of
speaking and says, “ You, the London agent,are sect. 13 of the Bills of Sale Act 1882.
to have your share of the agency charges, but The evidence at the trial was that Flicker had
subject to this, that you are not to be entitled to given the defendants a bill of sale over his
have those charges paid to you by me, the country furniture, and had made default in his payments
solicitor, until I, the country solicitor, have, under it ; that, on the 28th Sept. the defendants
received them in the bill of costs, which I shall seized under their bill of sale ; and that, on the
send in and shall recover from the company ; or 29th Sept. they removed the goods, with Flicker 's
in other words, until the company has paid them consent, to a house indicated by him , for the
to me.” That being so, I am of opinion that Mr. purpose of avoiding a distress for rent. At the
Lawson, the London agent, is not entitled to timeof the goods being removed there were three
recover the interest which he seeks to recover in quarters' rent, due from Flicker to his landlord,
this case. The country solicitor is entitled to the plaintiff.
recover the amount of his bill of costs, subject At the trial of the action before Grantham , J .,
to the proper proportion in respect of agency with a jury, a verdict was found for the plaintiff,
charges being paid to the London agent. I and judgment entered accordingly.
think, therefore, that the judgment of Chitty , J. The Divisional Court (Field and Manisty, JJ.)
waswrong, and that this appeal must be allowed . set aside the verdict and judgment, and entered
Solicitors : Sole , Turner, and Knight; A . Scott | judgment for the defendants.
Lawson . The plaintiff appealed .
By 11 Geo . 2, c. 19, s. 3 :
If any tenant or lessee shall fraudulently remove and
Wednesday, Nov. 20, 1889. convey away his or her goods or chattels [to prevent
(Before Lord Esher, LM.JJ.)
.R ., LINDLEY and LOPES, the landlordrent
or lessee from distraining the same for
arrears of ], or if any person or persons shall
wilfully or knowingly aid or assist any such tenant or
TOMKINSON v. CONSOLIDATED CREDIT AND MORT lessee in such fraudulent conveying away or carrying
GAGE CORPORATION LIMITED.(a ) off of any part of his or her goods or chattels, or in
APPEAL FROM THE QUEEN'S BENCH DIVISION. concealing the same, all and every person or persons so
offending shall forfeit and pay to the landlord or land
Landlord and tenant- Removal of goods to avoid and chattelslords, lessor or lessors, from whose estate such goods
distress -- Action for double value- Bill of sale double the value were fraudulently carried off as aforesaid,
over goods- Goods not the property of the tenant respectively carriedofofftheor goods by him , her, or them
concealed as aforesaid , to be
- Removal by bill of sale holder within five recovered by action of debt.
days from seizure -z-No right of action in land By the Bill of Sale Act (1878 ) Amendment Act
lord - 11 Geo. 2, c. 19, 8. 3.- 45 . 8: 46 Vict. c. 43 , 1882 (45 & 46 Vict. c. 43), s. 13 :
s. 13. All personal chattels seized, or of which possession is
An action for double value under 11 Geo . 2, c. 19, taken after the commencement of this Act, under or by
virtue of any bill of sale (whether registered before or
8. 3, cannot be maintained by a landlord against after
a bill of sale holder, who, with the consent of the the commencement of this Act), shall remain on
tenant, the grantor of the bill of sale, removes. the premises where they were so seized or so taken
possession of, and shall not be removed or sold until
the goods comprised in the bill of sale from the after the expiration of five clear days from the day they
tenant's premises, to prevent the landlord from were so seized or so taken possession of.
distraining the same for arrears of rent ; the Waddy, Q .C . (Hammond- Chambers and Ogle
section only applying to a removal of the tenant's with him ) for the plaintiff. - First, the goods being
goods, and the goods comprised in thebill of sale on the tenant's premises, and he being the
ceasing to be the legal property of the tenant equitable owner of them , they were his goods
from the time of the execution of the bill of within the meaning of 11 Geo. 2, c. 19. Secondly,
sale. sect. 13 of the Bills of Sale Act 1882 is for the
Sect. 13 of 1882 (1878) Amend .
the Bill of SaleasActbetween benefit, not only of the grantor, but also of the
ment Act applies only the grantor landlord and creditors generally . Lane v. Tyler
and the grantee of a bill of sale, and does not (ubi sup.) was wrongly decided.
enable a landlord to sue the grantee for removing Cock, Q.C . (W . H . Clay with him ) for the
the goods within the five days in order to avoid defendants. — The propertyexecution
in the goods passed
a distress. to the defendants on the of the bill of
Lane v. Tyler (56 L. J. 461, Q . B .) approved . sale ; these were not therefore the tenant's goods
This was an appeal by the plaintiff from the within 11Geo . 2 , c. 19. Foulger v. Taylor (5 H . & N .
judgment of a Divisional Court (Field and 202 ; 29 L . J. 154, Ex.) is a decision to that effect
Manisty, JJ.), upon the defendants' application upon an analogous section . Secondly, sect. 13
for a new trial. of the Bills of Sale Act 1882 applies only between
The action was brought under 11 Geo. 2, c. 19,
to recover double the value of goods, alleged to
grantor and grantee, as was held in Lane v . Tyler
(ubi sup.).
håve been fraudulently removed by the defen Lord Esher, M .R . I am of opinion that this
dants from the premises of one Flicker, who was appealmust fail. The action was brought by the
(a) Reported by ADAM H .BITTLESTON, Esq., Barrister-at-Law . I plaintiff against the defendants upon the statute
March 29, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.– 163
CT. OF APP.] GLASSCOCK v. BALLS. {Ct. Of Apř.
11Geo .2, c. 19. By the statute, if it is applicable | this Act at all events, the goods in question must
to this case, the plaintiff could have followed the be regarded as belonging to themortgagees alone.
goods that were removed under the bill of sale | The defendants are the mortgagees, therefore
and distrained upon them for the rent due to these goods were theirs. That being so , there is
him , and can also bring an action for double the nothing contrary to the Act in their having
value of the goods removed . The question is, removed them . There was a second point under
can the plaintiff bring an action under that sect. 13 of the Bills of Sale Act 1882, that the
statute in the circumstances of this case ! The plaintiff was entitled to damages because the
statute says that the consequence there men goods were removed within five days after their
tioned may take effect, if the goods of the tenant seizure. But when one looks at the case of Lane
are fraudulently removed and carried off with v. Tyler (ubi sup .), and not only at sect. 13 , but
intent to prevent a distress for rent. Here there also at sect. 7 of the Bills of Sale Act 1882, it is
was rent due, and there were goods on the quite clear what the Legislature meant. The
premises which the landlord might have dis goods are not to be removed until five days
trained , and which were removed by the defen after their seizure only in order that the grantor
dants in order to prevent the landlord distraining. may apply to the court to restrain their removal
All that is true ; but still the statute does not or sale, if he is so advised . The decision in Lane
apply , because the goods which were removed v. Tyler (ubi sup .) is, therefore, quite correct.
were not the goods of the tenant. They were the I LOPES, L .J.- This is a case under the statute
defendants' goods. I think that it was admitted 11 Geo. 2, c. 19. Under that statute, unless the
at the trial that the goods which were removed plaintiff
were those comprised in the bill of sale. From removed can show that the goods that have been
were his tenant's he cannot succeed. It
the moment the bill of sale was executed , the is perfectly clear law that a stranger may remove
goods comprised in it were not the goods of his goods from å tenant's premises in order to
the tenant in point of law , but the goods of prevent their being distrained upon for rent at
bill of sale holders. The statute intended to
deal with the legal property in goods, not with any time before the distress is put in . In this
case the plaintiff has not shown that the goods
equitable rights over them . I think we must go removed were
this far, that even though the tenant himself was executed , the the
tenant's. When the bill of sale
property in the goods passed
clandestinely and with a view to defraud his from the tenant, who was the grantor, to the
landlord removes goods over which he has given defendants , who were the grantees. It is there .
a bill of sale , no action will lie against him on fore clear that the goods, when they were
this statute ; simply because the goods from the | removed , were not the tenant's. There was said
moment the bill of sale is erecuted are not the to be a second point, viz., that a cause of action
goods of the tenant. But it is said that the
landlord has another right. It is argued that he had accrued to the landlord , under sect. 13 of the
Bills of Sale Act 1882 , because the goods were
is entitled to damages because , under another remored within five days from their seizure ; and
statate, the goods seized under the bill of sale we were asked to overrule the case of Lane v .
ought not to have been removed until after the Tyler (ubi sup.). In Lane v. Tyler it was held
expiration of five days from the seizure, and were that sect. 13 of the Bills of Sale Act 1882 was
removed within the five days; and that, if they for the benefit of grantors only. I think that
had not been removed, the landlord could have that case is perfectly good law .
distrained upon them , although they were not
the goods of the tenant. It is true that he could Appeal dismissed.
have done so . But, even if they had been Solicitor for the plaintiff, J. B. Churchill.
removed against the will of the tenant, so as to Solicitors for the defendants, Paul E . Vander
bring the case within the Bills of Sale Act, 1 pump and Eve.
although the defendants would have done à
wrongful act as against the grantor of the bill of Thursday, Nov. 21, 1889.
sale, it would have been a wrongful act of which
the present plaintiff could not take advantage. (Before Lord ESHÉR, M .R ., LINDLEY and
The Bills of Sale Act was passed for regulating LOPES, L .JJ.)
the rights of the grantor and the grantee of a GLASSCOCK v. Balls. (a )
bill of sale, and not for regulating the rights of APPEAL FROM THE QUEEN'S BENCH DIVISION.
any other persons. The decision in the case of Promissory note - Collateral security with a mort
Lane F. Tyler (ubi sup.) was, in my
perfectly right. Neither cause of action can
opinion, gage for a debt - Transfer of mortgage Bond
fide indorsee for value without notice - Re-issue
therefore
be dismissed
be .
maintained, and this appeal must of note.
LINDLEY, L . J. I am of the sameopinion . The Theplaintiff was thebona fideholder ofa promissory
case turns on the construction of the Act of note made by the defendant payable on demand ,
Geo. 2 as to the fraudulent removal of goods to under the following circumstances : The defen
avoid a distress. When one looks at that statute, dantbeing indebted to W . gave him the note sued
one sees at once that it has reference only to the on as part security for the debt, and afterwards
case of a removal of the tenant's goods ; if some a mortgage of real property accompanied by a
person other than the tenant removes his own memorandum that it was intended as collateral
goods, there is no breach of the statute in his so security with the note for the debt. Afterwards
doing. The question therefore is, whose were the without the defendant's knowledge W .transferred
goods which were removed ? At first I thought the mortgage to H . for a sum larger than the
that it might be possible to say that they were debt owing by the defendant to W ., and subse
the mortgagor's goods ; but I am now satisfied quently W . indorsed the note for value to the
that that is not so, and that, for the purposes of ! (a) Reported by E .MANLEY SMITH, Esq., Barrister-at-Law .
164 - Vol. LXII., N . 8.] THE LAW TIMES. [March 29 , 1890.
CT. OF APP.] BARTON 0. THE LONDON AND NORTH -WESTERN RAILWAY COMPANY. [CT. OF APP.
plaintiff, who had no notice of the preceding between the two parties to it. Such a defence
facts. does not apply unless the note has been re-issued :
Held , that the plaintif' was entitled to recover on it must first have got back into the control
the note. of the maker. As long as the note remains
Bartrum v. Caddy (9 A. & E. 275)explained . current, nothing prevents an indorsee for value
This was an appeal from the judgment of Lord without notice from suiug on it. Nothing has
Coleridge, C .J. at the trial at Cambridge. happened to prove a plea of payment in this case,
The plaintiff was indorsee of a promissory but it is said that the note was “ extinguished ."
note made by the defendant payable to one I have never heard of this plea and do not
Wayman or his order on demand. The defen know what it means. For the reasons I have
dant being indebted to Wayman in the sum of stated this case is not within the principle of
6401. gave him the note sued on for 2891. in part Bartrum v. Caddy (ubi sup.), and no other prin
security for the debt in Oct. 1882. In May 1883 ciple of law has been brought forward by the
the defendant executed a mortgage of certain defendant. I am therefore of opinion that he
real property to Wayman to secure the whole is liable to the plaintiff , and the judgment of
debt, and this mortgage was accompanied by a the court below must be affirmed.
memorandum that it was intended as extra LINDLEY, L .J. - I am of the same opinion . No
security for the sum for which the note was defence has been established in this case . The
given . A few days later Wayman , in considera mortgage ofMay 1883 might have been a merger
tion of the sum of 7001., transferred the mort. of the note ; but the memorandum which was given
gage to one Hall by a statutory deed under the with it showed that this was not the case. The
Conveyancing Act 1881, without the knowledge transfer of the mortgage was not a realisation of
of the defendant. In May 1884, Wayman being it ; that would be by foreclosure or sale. After
indebted to the plaintiff indorsed to him the note the transfer Wayman, the payee of the note, had
now being sued on . It was admitted that the no right as between himself and the defendant to
plaintiff had no notice of the circumstances sue on the note except as a trustee for the defen
above mentioned . dant or Hall, the transferee of the mortgage.
The Lord Chief Justice gave judgment for the But the momert the note gets into the hands of
plaintiff,and thedefendant now appealed . a bona fide holder for value without notice of the
H . Tindal Atkinson for the defendant. - Upon facts there is nothing to prevent him recovering
the transfer of the mortgage in May 1883 the the value of the note.
defendant became liable to Hall instead of LOPES, L .J . concurredd.. Appealdismissed .
Wayman , his debt to Wayman was extinguished,
and therefore the note, which was only security Solicitors for plaintiff, Torr, Janeways, Gribble ,
for the debt, was also extinguished : and Oddie, for A . J. Lyon .
Freakley v . Fox, 9 B . & C . 130 ; Solicitors for defendant, F. and T . Smith and
Bartrum v. Caddy, 9 A . & E . 275. Sons, for W . Peed .
The defendant had no knowledge of what Wayman
wasdoing, so that he cannot be said to be estopped
by any laches on his part. He cited Nov.25 and 26 ,1889.
Roberts v. Eden , 1 B . & P . 398 ; (Before Lord Esher, M .R ., LINDLEY and
Beck v. Robley, 1 H . Bl. 89, n. í LOPES, L .JJ.)
Morley v. Culverwell, 7 M . & W . 174 ; BARTON v. THE LONDON AND NORTH -WESTERN .
Thorogood v. Clarke, 2 Starkie, 251 ; RAILWAY COMPANY. (a )
Bills of Exchange Act 1882 (45 & 46 Vict. c. 61),
s. 86 . APPEAL FROM THE QUEEN 'S BENCH DIVISION.
Horace Brown and A. Macpherson,for the plain Company - Companies Clauses Act 1845 (8 & 9 Vict.
tiff, were not called upon . c. 16 ), 8. 18 — Register of shareholders - Co
Lord ESHER, M .R . — This is an action by an executors , Transfer of shares - Notice of transfer
indorsee of a note payable on demand against - Estoppel.
the maker of it. It is admitted that the plain In the case of companies governed by the Com
tiff is indorsee for value without notice of what panies Clauses Act 1845 (8 & 9 Vict. c. 16 ) all
had occurred about the note. It was argued persons entitled to shares must have their names
that the plaintiff must be treated as having entered in the register of shareholders before they
taken sit with notice because it was overdue can make a valid transfer of them ; and when
when he took it ; but the note is payable on this has been done they become ordinary share
demand, and it is not shown that payment of holders ; 80 that one of two co-executors cannot
it had been asked for, so that really it was transfer shares registered in their joint names,
not overdue. Under these circumstances the although described as co-executors in the register.
plaintiff is primâ facie entitled to recover. It is | Application having been made to a company to
for the defendant to bring himself within some register a transfer of shares, the company sent a
recognised rule of law which prevents the plaintiff notice to the plaintiff, whose name was registered
from recovering. Now , it has been held a defence as holder of the shares. As she made no reply,
if the maker has paid the note and the note bas they registered the transfer.
been returned into his hands; but in that case Held , that shewas not estopped from claiming her
there was no merit in the defendant, and the right to have her name restored to the register .
ground of the decision was that the Stamp Act
had not been complied with . The note in that This was an appeal from the judgment of
case had been re-issued , but without a stamp, so Manisty, J . at the trialwithout a jury .
that it was not a negotiable promissory note , Samuel Barton died in 1870," having by his
but only a promise which could be sued on as ! (a) Reported by E.MANLEY SMITH, Esq., Barrister-at-Law .
CT. OF APP. ] BARTON v . THE LONDON AND NORTH -WESTERN Railway COMPANY. CT. OF APP.
will appointed as his executors the plaintiff Ann | Executors can make a valid transfer before they
Barton and her stepson Thomas Barton , and are on the register so as to divest themselves
having bequeathed to them for certain purposes entirely of the sbares :
some shares in the defendant company . Re Tahiti Cotton Company, L . Rep. 17 Eq. 273 ;
The executors sent the probate of the will to Spence's case, 17 Beav, 203.
the secretary of the defendant company, and in | By sect. 7 of the Companies Clauses Act these
the register of shareholders their names were shares are personal property , and the general rule
thus entered : “ The executors of Samuel Barton, of law, that
whichonehasof two
not been affected can
by that Act,
Thomas Barton , and Ann Barton." On various applies, co -executors dealwith
occasions up to 1885 Thomas Barton sold many such property without the concurrence of the
of these shares without the knowledge of Ann other ; so that the forgery of Ann Barton 's sig
Barton , and for this purpose he signed the nature is immaterial :
necessary transfers, adding to his own signature 1 Williams on Executors, 916 , 8th edit. ;
forged signatures of Ann Barton and an attesting Simpson v. Gutteridge, 1 Madd. 615 ;
witness. These transfers were registered by the Charlton v. Earl of Durham , 20 L. T. Rep . N . S.
company in due course, and the proceeds were 467 ; L. Rep . 4 Ch. 433.
misappropriated by Thomas Barton. The plaintiff is further estopped by her conduct
Upon the occasion of Thomas Barton forging | from denying the validity of the last transfer.
the last of the transfers, the company sent à They also cited
notice to the plaintiff, stating that certain Brooke v. Hook , 24 L . T. Rep. N . S. 34 ; L . Rep.
transfers had been sent to the secretary for 6 Ex. 89 ;
registration , and that unless they heard from her Barton v. The North Staffordshire Railway Com
to the contrary within a week , the registration pany, 58 L, T. Rep. N . S. 549 ; 38 Ch. Div . 458.
of the transfers would be made. Ann Barton Rigby , Q .C ., Winch , Q .C ., and A . Whitaker for
showed this notice to Thomas Barton, but, as he the plaintiff.-- If the executors were shareholders
said it was all right, and she need not do any. a transfer by one is invalid :
thing , she took no more notice , and never replied Sloman v . Bank of England, 14 Sim . 475 .
to the company. The company then registered Under sect. 18 of the Act executors cannot be
the names of the purchasers. In 1886 Thomas registered otherwise than as ordinary share
Barton absconded , and the forgeries were dis holders. Buchan's case (ubi sup.) was decided
covered. The plaintiff then brought this action , under the Companies Act 1862. With regard to
claiming that the company be ordered to reinstate the last transfer there can be no estoppel,as there
her in the register of shareholders as holder of was no duty on the plaintiff to do anything . The
sbares of the same amount as she had been plaintiff 's claim is in substance for a mandamus
entitled to before the forgeries. The learned to correct the register. They cited
judge gave judgment for the plaintiff, from Davis v. Bank of England, 5 B . & C . 185.
which the defendant now appealed . Lord ESHER , M .R . - In this case the plaintiff
Sect. 18 of the Companies Clauses Act 1845
(8 & 9 Vict. c. 16 ) provides : Ann Barton , and her stepson Thomas Barton ,
If the interest in any sbare have become transmitted were appointed by Samuel Barton , deceased ,
in consequence ofthe death or bankruptcy or insolvency executors of his will, in which he left them for
any shareholder
ofa female or in consequence of themarriage of certain purposes some shares in the London and
shareholder , or by any other lawful means North -Western Railway Company. While in
than by a transfer according to the provisions of this or this position , and knowing that he was a trustee,
the special Act, such transmission shall be authenti. Thomas Barton fraudulently sold some of these
cated by a declaration in writing as hereinafter men shares to various people, who in the ordinary
tioned , ;orandin such
require every other
such manner as theshall
declaration directors
stateshall
the course required transfers in order to get them .
manner in which and the party to whom such share shall selves registered properly as shareholders. Evi.
bare been so transmitted , and shall be made and signed dently he did not know that he could by himself
by some credible person before a justice orbefore a master
make a valid transfer, nor I believe did this
ormaster extraordinary of the High Court of Chancery ; occur to the company ; so besides signing the
and such declaration shall be left with the secretary , transfers with his own signature he forged the
and therenpon he shall enter the innametheof register
the person
entitled under such transmission signatures of the plaintiff Ann Barton and an
of
shareholders : and for every such entry the company V attesting witness. The transferees then had
n .
demand any sum not exceeding the prescribed amount, themselves registered as shareholders by the
and when no amount shall be prescribed, then not company. After a considerable time the fraud
eiceeding five shillings ; and until such transmission was discovered , and the plaintiff instituted the
has
of any so authenticated
beensuch , no person
transmission shall claiming
be entitled by virtue
to receive presentaction ,in which she says that the company
any
sbare of the profits of the undertaking nor to vote in have been led , though innocently, to do her a
respect of any such share as the holder thereof. wrong by obliterating her name from the register,
Sir R . E . Webster (A .-G .) and 0 . Leigh Clare for which they are bound to keep correct, and that
the defendants. — The executors never asked the they must therefore restore it to the place where
company to register them in their own names as | it was before, with a new co-trustee in the place
joint holders of the shares, they merely sent in of Thomas Barton . This the company declines
the probate to the secretary of the company ; it | to do, on the ground that the signature by one
is submitted that executors can be registered as of two co-executors was all that was neces
such , and as a matter of fact in this case they sary, and the plaintiff's signature being unneces
were so registered . There is no difference of sary, its being forged was immaterial, and made
law on this point between the Companies Act no difference to the validity of the transfer. The
1862 and the Companies Clauses Act 1845 : plaintiff asks that the company be ordered to
Buchan'scase
case, make their register correct. It is argued on
Hoare's , 6 4L App. Cas. N583
. T. Rep. . S.; 240 ; 2 J. & H . 229. I behalf of the company that the plaintiff and
166 - Vol, LXII., N . 8.] THE LAW TIMES. [March 29, 1890
CT. OF APP.] BARTON v, THE LONDON AND NORTH -WESTERN RAILWAY COMPANY. [CT, OF APP.
Thomas Barton were co -executors in possession ! must register it ; and when these things have
of personal property , that one of two co-executors been done the person whose name has been
in this position can dispose of such property entered becomes a shareholder in the company.
without the concurrence of the other, and that Therefore the present case comes to this : The two
Thomas Barton did , so far as he was concerned , co -executors had made an authentication in the
proper form , giving their names and the manner
make a legaltransfer of these shares, On the other
in which they became entitled , and the secretary
side it is said , It is true as a general rule that the
rights of co-executors are as stated with regardthereupon entered their names in the “ stock
to personal property, but these shares are not ledger ” as this company calls the register of
shareholders which the Act of Parliarnent requires
ordinary personal property ; as regards the com -
pany, co -executors, when they have been put on them to keep . I treat the case for this purpose
as if Ann Barton and Thomas Barton had desired
the register, are ordinary legal shareholders, and
in this case, as in the case of any other joint the secretary to put their names on the register
shareholders, the signatures of both are necessary as holding only as executors ; but, even supposing
for the validity of a transfer of shares registered this was done,and the company thought that the
in their joint names ; and this is so by virtue of l entry might be made legally with this limitation,
the provisions of the Companies Clauses Act I have come to the conclusion that the limita.
1845. The question really is this : Does the Act tion had no legal effect of any kind whatsoever.
make these persons shareholders as regards the These names then were on the register as share.
company, whatever may be their position as holders,and it cannot be denied that a transfer
trustees as regards the beneficiaries under the must be signed by both . In fact, only one holder
will ? To answer this we must consider the con - | signed , and the company was misled by the
struction of sect 18 ; it is unnecessary to consider forgery into wrongly removing the plaintiff's
the other sections of the Act. It runs thus : “ If name from the register. The authority being
the interest in any share have become trans invalid ,theplaintiff is entitled to the remedy she
mitted in consequence of the death , & c., of any claims, Now , against this view have been cited
shareholder, such transmission shall be authenti certain dicta of Lord Selborne in Buchan's case
cated by a declaration in writing as hereinafter fubi sup.), and what Lord Selborne says I cannot
mentioned , or in such other manner as the diree but consider as almost equal to a binding decision,
tors shall require.” This provision seems to me especially so in this case, when I consider the
to be at least so far obligatory that no effeet ean subject-matter, and the fact that they were
be given to a transmission till some authenti. uttered in the House of Lords. If I thought
cation has been made, and as the directors have Buchan 's case was the sameas this I should read
not in this case required any partieular authenti Lord Selborne's dicta at length ; but that is unne
cation , it must bemade in themanner mentioned cessary,as it is plain tbat he said what he did after
in the Act. The section goes on , “ And every hearing Lord Cairns judgment, and that he was
such declaration shall state the manner in which taking exactly the same view as Lord Cairns did .
and the party to whom such shares shall have That view was, that executors could make a con
been so transmitted ,and shall be madeand signed tract for the sales of the shares that were in
by some credible person before a justice or before question in that case, and then could require the
a master or master extraordinary of the High company to put the transferees' names on the
Court of Chancery." I do not think that the register without first of all putting on the names
declaration can state the party to whom the of the executors. But, said Lord Cairns, though
shares have been transmitted without giving his the executors might have done this, yet as %
name; and it would not be sufficient to say that matter of fact they did not : they had had their
the transmission was to the executors of some names put on the register, and that being so it
named person without also naming them . Neither did not matter whether they were described as
do I think that, whatever addition to the authentis executors or not ; they became ordinary share
pation the direetors might require, they could holders. But that case is no authority for saying
authorise an authentivation which did not give that in this case the executors might have acted
the name of the transferees , and if the trans- so. The House of Lords were in that case con
ferees be executors, then in addition to their sidering certain sections of the Companies Act
Dames should be added their description as 1862 ; in this case we are considering some
executors of so-and -so. The section then says : different provisions of the Companies Clauses
“ And such declaration shall be left with the Act 1845. Under the latter Act I am of opinion
seoretary , and thereupon he shall enter the name that executors must first have their names put
of the person entitled under such transmission in on the company's register before they can make
the register of shareholders." A fee is to be a valid transfer of the shares they are possessed
charged for entering the name, and until the of, and when their names have been registered
transmission has been so authenticated no person they become ordinary shareholders subject to the
elaiming under it shall be entitled to any share liabilities and entitled to the rights of such .
of the profits of the undertaking, or to yote as This need be no hardship to the execators ,
holder of the shares. This provision again seems because, if there be liabilities on the shares, they
to me to be so far obligatory that, in order to would be entitled to be indemnified out of the
make his claim effective with the company, the assets of the estate they represent; while, if the
transferee must leave the declaration with the shares be quite worthless, the executors could let
seoretary , and the secretary must do exactly as them alone and need not subject themselves to
the Act provides. The secretary is obliged to liability . It seems to me that there is nothing in
obey his statutory duties, and the transferee can any of the authorities cited to show that sect. 18
not impose any conditions on the secretary . The is to be construed otherwise than in the ordinary
authentication must contain the name of the meaning of the words in the English language,
transferee, it must be left with the secretary ,who I which is what I have stated . As to the last
March 29, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8.- 167
CT.OF APP.] REG. v. THE BISHOP OF LONDON . TCT. OF APP.
transfer, of which notice was sent to the plaintiff, / with an addition as executors is quite immaterial;
it is said that, baving disregarded the notice, she they are entered as shareholders simply , and
is estopped from saying that the transfer is bad ; must be regarded as such . The appeal must be
or, if there be no estoppel, then that , as she has | dismissed .
misled the company by not answering their | Appealdismissed .
letter, she cannot be entitled to the equitable i Solicitors for the plaintiff, Stephens and
relief she is asking for. But the relief she asks | Stephens, for H . Hand, Macclesfield .
for is not only an equitable one ; she is claiming / Solicitor for the defendant, C . H . Mason .
a legal right as a shareholder to have her name
pat down on the register. I think the judgment
of the learned judge was correct, and his decision
should be affirmed. Dec. 12, 13 , 14, 15,and 17, 1889.
LINDLEY, L .J. - I am of the same opinion . This (Before Lord ESHER, M .R ., LINDLEY and
case shows the importance of not treating all LOPES, L . JJ.)
companies as if they were governed by the same REG . v. THE BISHOP OF LONDON. (a)
laws. There are two great parallel lines of legis APPEAL FROM THE QUEEN'S BENCH DIVISION .
lation with regard to companies, the Companies Ecclesiastical law - Ornaments of a cathedral
Act 1862 and the Companies Clauses Act 1845 ,
the provisions of which are not at all alike. The church - Public Worship Regulation Act 1874
case before us comes under the Act of 1845, the (37 & 38 Vict. c. 85), s. 9 - Bishop's discretion
Act of 1862 has nothing to do with it . The After considering the whole circumstances of
section we chiefly have to consider is sect. 18 ; but the case ” - Mandamus.
wemust also refer to sect. 7, wbich provides that By the Public Worship Regulation Act 1874
shares shall be personal property ; sect. 8, which (37 8. 38 Vict. c. 85) it is enacted in sect. 8 that
provides that every person entitled to a share and any three male inhabitants of a diocese who are
whose name shall have been entered on the re of opinion that an addition has been made to the
gister of shareholders, shall be deemed a share. fabric , ornaments, or furniture of the cathedral
holder ; sect. 9, which imposes on the company church of the diocese without lawful authority
the daty of keeping a register of shareholders ; maymake a representation to the bishop , and by
and sect. 14 , which provides that every transfer sect. 9, " unless he shall be of opinion, after con
of shares shall be by deed. The word “ trans sidering the whole circumstances of the case, that
mission ” in sect. 18 I understand to mean the proceedings should notbe taken on the representa
devolution of title to shares by death , marriage, tion , in which case he shall state in writing the
bankruptcy , or any other way than by " transfer," reason for his opinion , 8o.," he shall take certain
from which it is distinguished. This explains steps. A representation was made to the Bishop
the section, which is as follows : [His Lordship of London that the Dean and Chapter of St.
Paul's had introduced into the cathedral and set
read sect. 18 .] What now is an executor to do
when shares in a company governed by this Act up on the reredos an image of Our Lord upon the
are left him by his testator ? He may do nothing, Cross in a conspicuousposition immediately above
in which case he cannot receive any dividend, or the Communion -table , the figure of Our Lord
vote in respect of the shares or transfer them , and being of the height of fwe feet, and the image
though he might be liable for calls, it would only having the appearanceof an altar crucific such as
be in his representative capacity, and I do not see was used in the Church of England before the
how the company could force him to have his Reformation , and had also set up an image
name put on the register. But, on the other representing the Blessed Virgin Mary with the
band, if the executor wishes to deal with the Child in her arms in a conspicuous position a
shares, he must follow the machinery given in few feet above the first-mentioned image, the
sect. 18, and have himself registered as a share figure of the Blessed Virgin being of the height of
holder. This is what Ann Barton and Thomas five feet six inches or thereabouts, and thateach of
Barton did here, and being once on the register the said images tended to encourage ideas and
of shareholders, they are shareholders in their devotions of an unauthorised and superstitious
own names, and it is of no consequence to the kind and was unlawful. The bishop gave a
company whether they became entitled to the written opinion, saying that he had considered
shares as trustees or executors. That being so , all the circumstances of the case and was of
if only one of them signs a transfer of shares, the opinion that further proceedings should not be
transfer is void . This I think is the law under taken , on the ground that the main question of
the Companies Clauses Act 1845. I saynothing as principle had been already decided in Phillpotts
to cases governed by a differentAct of Parliament. v. Boyd (32 L. T. Rep. N . s. 73 ; L. Rep. 6 P. C .
With regard to the estoppel which is suggested 435 ) ; that the difference between the reredos there
as regards the last forged transfer, I think there and in this case was not of very grave import
is no ground whatever for it. The appeal is dis ance ; that litigation is, even when necessary, an
missed . evil, keeping up irritation and party strife, and
LOPÉS, L.J. I will add but a few words on the that, in the present instance, it would inflict
main question here,which is , were the executors much more injury on the Church tkan be of bene
shareholders in the company o Wehave to con fit to any one. .
sider the effect of sect. 18 ofthe Companies Clauses Held (reversing the decision of the Queen's Bench
Act 1845, which controls the transmission of Division ), that no mandamus could be granted
shares. The effect of this section is, that execu against the bishop , as there was no evidence that
tors must themselves be registered as share he had declined jurisdiction by refusing to con
holders before they can transfer the shares they sider the circumstances of the case of acting
hold. Whether they are registered simply or | (a) Reported by E.MANLEY SMITH , Esq., Barrister-at-Law .
168 - Vol. LXII., N . S.] THE LAW TIMES. [March 29 , 1890.
CT. OF APP.] REG . v.'The BISHOP OF LONDON. [Ct. or App.
without considering them , or that he had ex order to settle disputed points of grave importance. But
ceeded his jurisdiction by considering and acting evenirritation
upon some circumstance not a circumstance of the up
in such cases litigation is a necessary evil. It keeps
and party strife , it embitters men 's feel
case. The expression in sect. 9, " after consider . ings, it inflicts much mischief on the Church and on true
religion , and it is only tolerable as a preventive of
"ing thewhole circumstances of the case," does not worse mischief that would otherwise follow .
compel the bishop to consider every circumstance It is always possible , after any great question of prin
of the case, but enables him to take into account ciple has been decided,
minor to keep
points, and up suchlitigation indefinitely
litigation becomes
any collateral circumstance within his know moreraising
by
mischievous the longer it is continued , while the
ledge, provided it be a circumstance of the case results obtained from it are of exceedingly little value.
before him . I am satisfied that in the present instance the proceed
ings could not end in any result which would make up
This was an appeal from a judgment of the to the Church and to the religious life of the country for
Queen 's Bench Division (Lord Coleridge, C . J., and the mischief which must inevitably be inflicted on them
Manisty, J., Pollock , B . dissentiente) reported by the litigation itself .
61 L . T. Rep . N . S . 389 ; 23 Q . B . Div . 414, The prosecutors then obtained a rule for a
making absolute a rule for a mandamus. mandamus which was made absolute by a diri.
Under sect. 8 of the Public Worship Regula sional court, directing thebishop to transmit copies
tion Act 1874 (37 & 38 Vict. c. 85) the prosecutors of the representation and proceed in the manner
made the following representation to the Bishop the Act directs,
of London : Against this the bishop appealed .
1. That the Dean and Chapter of the Cathedral Church Sir R . E . Webster (A .-G .) and Jeune, Q.C.
of St. Paul, in the city of London, within five years
before the date hereof - that is to say, in the month of (Coward with them ) for the Bishop. Jeune, Q .C .
Jan . 1888 – have introduced into the said cathedral (Coward with him ) for the Dean and Chapter of
church and set up upon the altar-piece or reredos therein St. Paul's. - Under sect. 9 the bishop is to exer.
an image or sculptūred subject representing Our Lord cise a judicial discretion as to whether or not,
upon the Cross in a conspicnous position immediately under all the circumstances of the case , the pro
above the Communion-table, the figure of Our Lord being ceedings are to go on. The reason the bishop is
of the height of five feet or thereabouts.
2. That the said image or sculptured subject is con. required to state his reasons is, not to give a
structed so as to have the appearance of such an altar court a power of saying whether the bishop was
crucifix as was used in the Church of England imme justified in his reasons for his opinion, but to
diately before the Reformation , and so as to answer the enable the complaining party to put right any
purposes for which such a crucifix was intended . technical slip that may have been made in the
3 . That the said Dean and Chapter within five years
before the date hereof - that is to say, in the month of representation, or possibly it is to enable a court
Jan. 1888 — have introduced into the said cathedral to say whether a bishop has really exercised his
church and set up upon the said altar-piece or reredos discretion . If the bishop has exercised his dis
therein an image or sculptured subject representing the cretion , and it is a case for his discretion , the
Blessed Virgin Mary with the Child in her arms, in a Queen 's Bench Division cannot review his deci
conspicuons position a few feet above the firstly herein
mentioned image or sculptured subject, the figure of the sion. The bishop states in his opinion that he
Blessed Virgin being of the height of five feet six inches, has considered the whole circumstances of the
or thereabouts. case ; there is no evidence that this is a mis
4 . That each of the said images or sculptured subjects statement, and surely a decision in the case of a
tends to encourage ideas and devotions of an unautho somewhat similar reredos to this cannot be held
rised and superstitious kind andsculptured
is unlawful.subjects
5 . That the said images or are a matter which the bishop onght not to have
respectively additions to the fabric, ornaments, or furni. | considered . The two principal cases on legality
ture of the said cathedral church, and are decorations of ornaments in a reredos are
forbiddenby law . Phillpotts v. Boyd ( The Exeter case), 32 L. T . Rep.
To this the bishop, in pursuance of sect. 9, N . S . 73 ; L . Rep . 6 P . C . 435 ;
delivered the following written opinion : Hughes
361.
v. Edwards ( The Denbigh case), 2 Prob .Dir.
We, Frederick, by Divine permission Bishop of In those cases it was held that the legality of the
London, having, in parsuance of the provisions of the
Public Worship Regulation Act, considered the whole erection depended on the character of the sculp
ture and the purpose for which it was used , and
circumstances attending the above representation , are of
opinion that proceedings should notbe taken thereon for that in considering this it was an important
the following reasons:
The proposed proceedings have for their object the matter whether the sculptures, as they do in this
reredos at St. Paul's, represent fairly historical
determination
Onr Lord uponofthe
question
theCross whether a reredos showing
in a conspicuous position events, or a series of historical events. This was
diately above the Communion -table, and also the Blessed approved of in
Virgin Mary with the Child in her arms in a conspicuous Clifton v. Ridsdale, 36 L. T. Rep. N . S. 865 ; 2 Prob.
position a few feet above, has any tendency to idolatry , Div. 276.
and whether its erection is permitted by law . There is no allegation in the representation that
The main question of principle here at issue has been
already decided in the Exeter case ; Phillpotts v. Boyd . there
In that case the reredos showed a figure of Our Lord in paid towere
thesein images;
fact anythesuperstitious
only questionreference
for the
the act of ascending to heaven in a conspicuous position
immediately above the Communion-table ,and this reredos
bishop was whether they were of such a kind as
was held to be lawfully erected . to tend to encourage such practices. The words
The sole object of the proceedings now proposed is * after considering the whole circumstances of
merely to determine whether there may be exceptions to the case ” enable the bishop to consider collateral
the principle laid down in the Exeter case, and whether circumstances, and do not compel him to con
the reredos now erected in St. Paul's is such an excep . sider every circumstance. See the opinion es
tion . It appears to me impossible to say that the pressed on themeaning of this Act by Cockburn,
difference between the two erections is of very grave C .J. in
importance, or that one offers serious temptation to
dolatry and the other does not. Julius v. The Bishop of Oxford , 40 L . T . Rep. N . S.
Litigation in these matters is sometimes necessary in I 162 ; 4 Q . B . Div. 275.
March 29, 1890 .] THE LAW TIMES. [Vol. LXII., N . S.- 169
Ct. or App.] REG. v, THE BISHOP OF LONDON. [CT. OF APP.
It would be absurd to compel the bishop to con . | lation Act 1874, was of opinion that proceedings
sider each and every circumstance of the case if should not be taken upon that representation.
he has, in the course of his investigations, already A writ of mandamus was then made absolute in
come across one circumstance which he might the Queen 's Bench Division , by a majority of
think absolutely conclusive. Even if the bishop | two judges against one, directing the bishop to
has misapprehended the meaning of the Exeter | transmit the representation for consideration
case, that is no ground why a mandamus should before the proper ecclesiastical tribunal; and
go against him ; the same principle applies to from this judgment of the Queen 's Bench Divi
him as applies to justices on this point. The Actsion the present appeal has been brought. Now ,
requires the bishop to state “ his reason ” for his on behalf of the mandamus, it is alleged that the
opinion ; it does not require him to state all that bishop has either exceeded the duty imposed on
has passed through his mind , and he need not him by the statute or
state more than one reason for his opinion though in the language of theelse has not undertaken it ;
common law , that he has
others may have occurred to him . They also either declined or exceeded the jurisdiction im
cited posed on him by the statute. In determining this
Reg. F. The Bishop of Chichester, 33 L . T. Rep. O . S. question we must obviously consider what that
301 ; 2 E . & E . 209. jurisdiction is, and must therefore consider the
Sir W . G . F . Phillimore, Q .C . for the Dean of | Public Worship Regulation Act, which confers
St. Paul's. that jurisdiction. The part of the statute which
Sir Henry James, Q .C ., Moulton , Q .C ., and it is necessary to construe is sect. 9, and it is on
Danckweris for the prosecutors. - The bishop no the words “ after considering the whole circum
doubt had a very wide discretion under the stances of the case " that the controversy has
Church Discipline Act (see Julius v . The Bishop mainly turned . On the one side it is said that
of Oxford, 42 L . T . Rep . N . S . 546 ; 5 App. Cas. this is an enabling phrase ; that it enables the
214), but this case is under a later Act, which bishop to go to the extremelength he might go
has limited that discretion : if therewere nothing but the words simply giving
Serjeant v. Dale, 37 L . T. Rep. N . S. 156 ; 2 Q . B. him discretion and perhaps further. On the
other side it is argued that these are words of
Div. 566.
The promoter of the suit has a primâ facie right limitation . The bishop, it is not denied, has at
to bave it tried, subject to the bishop being able some period of the transaction to exercise his
to stop it under certain restrictions ; so that it discretion ; but it is said that the power of
is for the bishop to show that he has acted within exercising his discretion is limited ,and does not
his statutory right. " The whole circumstances ” . arise unless and until he has considered each and
mean each and every circumstance, and the every circumstance of the case, and if he has
bishop, if hemakes a mistake and considers some failed to consider each and every circumstance of
thing under a misapprehension of its meaning, the case, his discretion and the power of exercis
has not really considered that circumstance, and ing it has not come into play. Now , in con
therefore has not considered “ the whole circum . struing such a section as this wemust take notice
of a rule of construction mentioned by Lord
stances of the case ." Here the bishop has mis .
understood the E .ceter case. It has been said Selborne in various cases : that we must not
that if the bishop gives one good reason and five consider the effect of the law previous to the
bad ones, the court may reject the bad ones as legislation if the words of the section are clear,
surplusage and rely on the one good one ; that but that if the words of the Act of Parliament
means that the court is to decide on the sufficiency are capable of two meanings, then we must call
of the reasons given . One of misannrehension
the bishop's reasons in aid the previous history of the law in order to
here given is founded on a misapprehension of of i determine which of the two meanings is to be
the Exeter case ; the other, as to the evil effect of given to the phrase used by the Act. So we
litigation , is only a reason against the usefulness must therefore first look at the words of the
of the Act, and ought not to be considered now section itself, reading them , according to the
in considering a particular case. See for the well-known rule, in their ordinary and gram
grounds on which a judicial discretion is to be matical sense, according to the English language
exercised : as applicable to the subject-matter being dealt
Reg. v . Boteler, 4 B . & S . 959 ; with . The section begins with an exception ,
Reg. v. Adamson , 1 Q . B . Div. 201. “ Unless the bishop sball be of opinion ;" unless
The reasons given by the bishop are evidence that he comes to a particular opinion , he is to trans
he has not considered “ the whole circumstances mit a copy of the representation to a particular
of the case ;" that he has considered other things, person . That language is somewhat unusual, but
and his opinion has been partly founded on them . not altogether without precedent, and if the
sentence be transposed , it comes into the ordinary
If the whole circumstances of the case include form
collateral circumstances, this only makes it more of using the English language. The words
difficult for the bishop to prove that he has con .are, “ Unless the bishop shall be of opirion
.. . that proceedings should not be taken ."
sidered the whole circumstances . They cited
also The bishop has to form an opinion as between
Re St. Laurence Pittington , 5 P . Div. 131. the persons complaining and the persons com
Sir R . E . Webster (A .-G .) in reply . plained of; he is not to decide the controversy
between them : that is no part of his duty ; it
Cur.adv. vult. is not within his jurisdiction . He is to form an
Dec. 17. - Lord ESHER , M .R . - In this case a opinion whether proceedings shall or shall not be
representation was made to the Bishop of London taken ; that must be, and it is not denied , a
with regard to a reredos which had been set up matter of discretion . He is not a judge to
in St. Paul's Cathedral, and the bishop , assuming determine the controversy between the parties ;
to act under sect. 9 of the Public Worship Regu- i he is a high public authority intrusted with the
CT. OF APP.] REG . v. THE BISHOP OF LONDON. [CT. OF APP.
duty of saying whether a controversy shall or | sidered each and every circumstance. That is
shall not be tried by a judge . But when you one proposition ; but then comes the question as
have to decide any question as between two con - to his exceeding his jurisdiction . I think he
flicting parties authoritatively — that is to say, would exceed his jurisdiction if he were to con
being authorised or called upon by statute to do sider some circumstance which is not and cannot
so - although yon are not a judge, your decision be a circumstance of the case, and were to act
is in the nature of a judicialdecision ; you must upon it as well as consider it . To think and not
decide judicially to the best of your ability, and act is not an excess of jurisdiction , but to act
impartially between the parties. With regard to upon some circumstance which is not a circum
what he has to do, the same duty is thrown upon stance of the case would be. Therefore, in order
the bishop as is thrown upon a judge when he to determine whether a bishop has declined
decides the controversy ; his conclusion must be jurisdiction , you must show either that he refuses
arrived at in a judicial manner, and in that sense to consider the case or any circumstance of it ,
the discretion which is imposed upon or intrusted and has declared that he will act without reference
to him is a judicial discretion . His jurisdiction to the case at all, or that he has acted without
is given him , and his duty commences upon the reference to the case at all. If you say that he
delirery to him of a representation . But in order has exceeded his jurisdiction , you must show that
to see whether he has undertaken that duty or he has considered and come to his opinion and
not, or whether he has exceeded that duty, you acted upon some circumstance which is not a
must see exactly what that duty is. It is said circumstance of the case. But if he has under
that the duty of exercising a discretion does not taken to consider the case and its circumstances
arise until he has done something before that. fairly, and has not unfairly refused to consider
Although he has a jurisdiction and a duty given any particular circumstance, the mere fact of his
him by the delivery of a representation , he has not having considered erery circnmstance, if it
also a preliminary duty, and unless he has first can be shown, does not show that he has declined
performed the preliminary daty he has no right his jurisdiction . If he has exercised his jaris
to enter upon the second duty. That is the diction , and has not gone beyond it, thematter is
argament as I understand it. The alleged pre- | not one on which the court can be asked to grant
liminary duty is to consider the whole circam a mandamus. If there is a discretion in the
stances of the case, and to consider them in this bishop, so long as he exercises that discretion
sense : that he must consider each and every one within his jurisdiction nobody can question the
of them , and if he fails to consider one, it is said rightness or wrongness with which he has
that then his subsequent jurisdiction to exercise exercised it. Well , now , the bisbop has, accord
his discretion has not arisen . Now , supposing ing to the section , to come to an opinion, and
that the words “ after considering the whole cir under certain circumstances he has to state the
cumstances of the case " were not there,but that reasons of his opinion. If he has acted within
discretion merely depended on the words “ unless his jurisdiction , the opinion, whether right or
he shall be of opinion that proceedings should wrong, is not a subject for interference by man
not be taken," how much might be take damus, and if he has given reasons, however
into account under those words? It is the wrong the court may think them , they cannot
view of Lord Cairns and Lord Selborne inquire into the rightness or wrongness of them ,
in different cases, that, even then , he wonld not be The only question the court can consider is this :
confined merely to the consideration whether Has the bishop honestly considered the case and
he thought there was a primâ facie .case or that the circumstances of the case, not necessarily
there was primâ facie evidence which would , if each and every one of them , but considered the
the case went on, prima facie prove the allegation circumstances of the case fairly ? Has he or has
made in the represen 'ation . They both said that | he not exceeded his jurisdiction by considering a
if he has the discretion to determine that pro- circamstance which is not a circumstance of the
ceedings should be taken , that is a preliminary case and acting upon it ? Now , my view is not
decision by bim before the case goes for trial to without authority on this point, though the
the judge, and that he may take other things into authority may not be actnally a binding autho
account. And it is now said that, though, if these rity, in the judgment of Cockburn , C .v . in Julius
words were not there, he might take other things v. The Bishop of Oxford . That case, it is true,
into account,yet these words being there he cannot was decided on another statute than the Public
act unless he takes every circumstance into Worship Regulation Act 1874 ; but the question
account. I am of opinion that, reading these of the meaning of this Act certainly arose in
words in their ordinary English sense as applied that case, because it was argued that this Act had
to the subject-matter, the bishop is not bound ,as by implication rcpealed a former one, so that the
a preliminary condition precedent to his discre- Lord Chief Justice considered the meaning of
tion , to consider every circumstance of the case. this Act. He says (40 L . T. Rep. N . S. 162 ; 4
The words are enabling words ; they enable him Q . B . Div . 275 ) : " The commission of inquiry
to go to every limit, the only limitation being | under the Act of 1840 is entirely superseded ,
that the circumstances he considers must be while an absolute discretion is given to the
circumstances of the case. If he has honestly | bishop , who is required to further the suit in the
and fairly undertaken to consider the case and manner prescribed by the Act unless he shall be
all its circumstances, and if, without wilfully of opinion , after considering the whole circum .
refusing to consider any circumstance he has stances of the case, that proceedings should not
failed to consider some circumstance,butbas con | be taken upon the representation, in which case
sidered others, and considered the case fairly, I he is to state in writing his reasons ; so that the
then it seems to me that he has not failed to bishop is not only made the sole judge and arbiter
undertake his duty, and has not refused to l whether the suit shall proceed with refer
exercise his discretion because he has not con - | ence to the nature of the offence charged or the
March 29, 1890. ) THE LAW TIMES. [Vol.LXII., N. 8.– 171
CT. OF APP.] Reg . v. THE BISHOP OF LONDON. [Ct. Or APP.
facts on which the charge may be founded , but is might also consider many other things ; he may
enabled to take into account collateral circum - | certainly look at the reredos and judge for him .
stances, in themselves affording no answer to the self what the application of those principles
accusation or satisfaction to the parishioners would be, or he may receive an account of it.
complaining that the public worship is conducted Well, if he has to consider the application of those
otherwise than according to the ritual of the principles to it, he may also consider whether,
Church as by law established ." There is a applying those principles, there is a material
statement by the Chief Justice that the bishop | difference between it and those upon which de
has an absolute discretion, and is enabled to take cisions have been already given . He may well
into account collateral circumstances, in them . say that in those cases there were sculptured
selves affording no answer to the accusation. | figures, in one case certainly a sculptured figure
Then Lord Cairns has shown the kind of col. on a cross ;but theprinciple does not depend upon
lateral circumstances he may go into . He may whetherthere was a figare on a cross,buton this
consider the expediency of the litigation going on whether that figure, if represented alone in a par
with regard to the welfare of the Church ; he may ticular way, might conduce to what is called
take into account the character of the clergyman , idolatry ; if the reredos contains a picture of an
and anything thatmay have taken place between historical event, or a series of pictures of histori
himselfand the clergyman , such as a promise by cal events, although there is in it a figure which
the clergyman not to repeat what he bas done if taken alone might be objectionable, yet when
all which are obviously no part of the case, are taken as part of a whole is unobjectionable, it is
collateral circumstances, and could not be proved a fair conclusion to come to that the whole thing
if the case went to be decided by the court which is a matter of discretion. Well, if he came
would have to decide the controversy. Therefore , honestly to the conclusion that, although there
these words " the whole circumstances of the might be minute differences, yet they were so
case" include all those collateral circumstances ; small that litigation would be of no benefit to the
but you must not go into a circumstance, though Church or to the parties, that is a circumstance
collateral, if it is not a circumstance of the case. he has a right to consider and give an opinion
Now , the majority of the court below has con about. What has the bishop donehere ! Hehas
sidered that the bishop has either not exercised come to a conclusion,and honestly so, it is admit
or has exceeded his jurisdiction . Let us see what ted ;but it is said that he hasunintentionally gone
it was that the bishop would have to do . If the beyond his duty , or has not considered some
bishop were to consider this — " All litigation with circumstance of the case, or has not shown that
regard to Church matters is evil, and therefore I he has considered all the circumstances of the
shall allow no litigation in any case to proceed " case. Now , when a writ of mandamus is asked
and then he were to refuse to listen to any repre for, upon whom does it lie to show that there has
sentation, it would be clear that he had taken into been a refusal or excess of jurisdiction ? It is
account and acted on something not a circum certainly for the applicants for the mandamus to
stance of the particular case, and had exceeded show this. Mr. Moulton suggests that it is for
his jurisdiction . But here the representation was the bishop to show that he has considered every
made about the reredos in St Paul's Cathedral, circumstance of the case. That is absolutely
and he had to consider whether he would allow a wrong ; it is upon the applicants to show this .
proceeding with regard to that reredos to go on . The bishop gives reasons in his opinion , but the
If he came to an abstract conclusion that the court cannot inquire into the sufficiency of them .
question has been considered in Phillpotts v . Boyd The only way to use them is to show from them
(ubi sup .) that a reredos may be erected in a thathe has exceeded his jurisdiction . Here no evi.
cathedral, and consequently made it a general dence besides the representation was given
rule never to consider any action thatmight come aliunde to show that the bishop had declined to
before him about any particular reredos, and to consider the matter, or that he had & general
refuse to allow it to proceed, that would be a re- l objection to litigation on Church matters. We
fusal to inquire into the circumstances of the must rely merely on what the bishop says in
case, and a consideration of a circumstance not of his reply, not criticising it minutely, but
the case. But here on the question of the rere looking at it as a whole. He begins by asserting
dos of his cathedral church of St. Paul's he has that he has considered all the circumstances of
a right to consider, amongst other things, the the case, and there is no evidence except what
application of a decided case to the case before may be in bis reply to show that he is wrong in
him ; and the application of the principles of that his assertion. He then states the question before
case to the case before him is a circumstance of him as stated in the representation , and then
the case before him . Now , in considering the says, “ The main question of principle here at
legality of a reredos, you must consider this issue has already been decided in the Exeter case.”
What is the character of the sculpture on it ! The fair meaning of that is that the principles he
Why was it set up ? To what end is it used ? is to apply to the case before him have been
Is it in danger of being abused ? The case of already settled . He then states his view of what
Phillpotts s. Boyd also teaches him to look at the was decided in the Exeter case - tbat the reredos
reredos, to consider the nature of the sculpture, was held there to be lawful. That is true ; it is
whether it is merely decoration or set up for an not wrong, though he does not state the reason
unlawful purpose. And after that case the bishop why it was held lawful; and even if he had made
might also well consider the Durham case ; Re a mis-statement that is not a subject for a
St. Lawrence Pittington (ubi sup.), and the Dene mandamus. “ The sole object of the proceedings
bigh case, which were applications of the rule, now proposed is merely to determine whether
and which would teach the bishop how to apply there may be exceptions to the principles laid
it. That would be a circumstance of the case, down in the Exeter case." That is not quite an
and he would have a right to consider it. He l accurate statement of the case, the object of
172 - Vol. LXII., N . 8 .) THE LAW TIMES. (March 29, 1890.
CT. OF APP.] REG, v. THE BISHOP OF LONDON. [CT. OF APP.
which is really to determine whether this reredos I concur with the Master of the Rolls. But the
comes within , or outside, the principles of case is one of considerable importance, and, out
the Exeter case; but I think that the bishop of deference to those from whom I differ, I have
meant this. But there, again , the bishop thonght it right to putmy judgment into writing.
is considering a circumstance of the case, The Public Worship Regulation Act 1874 mate
and applying the principles of the Exeter case. rially altered the law respecting the right to take
" Whether the reredos now erected in St. Paul's legal proceedings in such cases. Under the
is such an exception it appears to me impossible Church Discipline Act (3 & 4 Vict. c. 86 ), s. 3 , any
to say that the difference between the two erec person , male or female , whether a parishioner or
tions is of very grave importance, or that one not, and whether a member of the Church of
offers serious temptations to idolatry and the England or not, could complain to the bishop of
other does not.” Mr. Moulton considered only | any clerk in holy orders. Under the Public
the word " very ” in this ; but that is not the way Worship Regulation Act (37 & 38 Vict. c . 85 ),
to look fairly at it . I do not think the bishop states ss. 6, 8, the persons complaining must be an
the point very accurately, but that is not a subject archdeacon or a churchwarden of the parish , or
for mandamus. Then the bishop states several any three male persons of fall age, parishioners
generalpropositionswith regard to litigation which | of the parish referred to in the complaint, and
everybody agrees with , and then he applies them they must be members of the Church of England .
to the subject before him , and comes to the con The Church Discipline Act contains no express
clusion that the present litigation is on a minor provisions applicable to cathedrals or collegiate
point, and that to continue it is a mischief to the churches, whereas the Public Worship Regula
Church , while the result would be of little value. tion Act does (sect. 8). The complainants, in the
That, I think, shows only this , that the bishop case of a cathedral,must be three male persons
has honestly endeavoured to consider this par of full age, inhabitants of the diocese in which
ticular case, and all the circumstances of it to the cathedral is situate, and must be members of
which he had access ; that he has not acted upon the Church of England (Ib ). The Church Disci.
all of them ,butupon one definite thing ; and that pline Act merely declared that, upon complaint
he has come to an opinion which is within his being made to the bishop, it should be lawful for
jurisdiction. If so, it is wholly beyond the power him to issue a commission to inquire into the
of the court to give any judgment whether that matter complained of (sect. 3) , or to send the case
opinion is right or wrong . Manisty, J. says that to the Court of Appeal of the province ( sect. 13 ).
the bishop has misconstrued Phillpotts v. Boyd There was no provision requiring him in exer
(ubisup.); but, suppose it was within his jurisdic . cising this power to give any reasons for the
tion to consider it and he has misconstrued it, course he might think fit to adopt, and it was
that is within his jurisdiction, and is not a case held , first in Reg. v . Bishop of Chichester (ubi sup.)
for mandamus. Manisty, J. goes on to say that and later in the Bishop of Oxford's case (ubi sup.),
the bishop has not considered some other cases, that the bishop had a complete discretion as to
and therefore has done wrong in preverting a whether further proceedings should or should
Superior Court from considering them . But not be taken , and that his only legal duty (if
there is nothing to show that the bishop did not any) in the matter was to hear and consider the
take this into consideration . And supposing he | application : (see per Lord Blackburn , 5 App .
did not consider the point, what then ? Nobody Cas. p. 240.) The Public Worship Regulation
called it to his attention, he has not wilfully shut Act 1874 is materially different, for by sect. 9 , on
his eyes to it . To say that he has not considered the receipt by the bishop of a proper representa
each and every circumstance of the case is no tion , it is his duty, within twenty-one days, to
blemish upon the exercise of his jurisdiction . take certain steps to have the complaint investi
Even, therefore, if he had rot considered it, gated and determined ,“ unless he shall be of
nevertheless he has acted within his jurisdiction ; opinion, after considering the whole circum
he has not declined jurisdiction. It is not known stances of the case, that proceedings should not
whether he considered it ; but, if he did consider be taken on the representation .” Moreover , if he
it and came to a wrong conclusion , it is no duty should be of this opinion , he is to state in writing
or power of the court when asked for a mandamus the reason for his opinion, and such statement is
to inquire into that. Well then the Chief Justice to be deposited in the diocesan registry , and a
says this : " I think the bishop has come to a copy of it is to be transmitted to the complain .
certain conclusion on Phillpotts v. Boyd . I do ants and to the person complained of. The
not undertake to say whether the bishop gives a statute therefore plainly casts upon the bishop
right or wrong reason. I acknowledge that that the responsibility of stopping further pro
is beyond my province.” He says he has given ceedings. He is not required to sanction them ;
an irrelevant reason because he has misconstrued for, unless he is of opinion that they should be
Phillpotts v . Boyd . That shows that the bishop stopped , he is bound by the statute to do what is
has considered that case, and his misconstruction necessary to have the complaintheard and deter
(if any) is only a mistake, and not an excess of mined in one or other of the modes prescribed by
jurisdiction . I therefore venture to differ from the statute. In this state of the law three ques.
Lord Coleridge and Manisty , J ., and think that tions arise, viz. : (1 ) What is the duty of the
they have passed beyond the ordinary rules of bishop as regards forming an opinion that pro
the application of the law to a writ ofmandamus, ceedings should not be taken ? (2 ) Has he in
and that they have exceeded the power of their this case! performed that duty ? (3) What
court. I think the mandamus ought not to have jurisdiction has the High Court over him in the
been made absolute, and that this appeal must matter ? ( 1) With respect to his duty . His
be allowed . duty is to form an opinion . Formation of an
LINDLEY, L .J. - Under ordinary circumstances opinion is very different from a mere exercise of
I should have contented myself with saying that I will. It is clearly not competent for the bishop
March 29, 1890.) THE LAW TIMES. ( Vol. LXI ., N . 8. - 173
CT. OF APP.] REG . v. THE BISHOP OF LONDON. [CT. OF APP.
simply to stay further proceedings by an arbi- which has influenced him and on which his
trary exercise of his will. Hemust be of opinion opinion is based . If he does this he discharges
that they ought to be stayed . To form an | his duty in this respect, even although other
opinion it is obviously necessary that he must persons may think the reason unsatisfactory .
consider the case to which his attention is directed. Whether his reason can be reviewed by any other
There could be no doubt on this point even if the tribunal is an entirely different question which I
statute went no further ; but the statute ex will examine presently, but, so far as the bishop
pressly requires him to consider " the whole cir is concerned , he has complied with the statute.
cumstances of the case." These words are, to my (2 ) I pass now to the second question, Has the
mind, very important. They show that he is to bishop in this case performed bis statutory duty ?
consider more than what in legal language may It is urged that he has not, because, first, he
be described as the issues raised by the com has misapprehended the case ; and, secondly, he
plainants. “ The whole circumstances of the has considered circumstances outside it, and
case " embrace more than the matters directly in which ought not to have influenced him . The
controversy . The expression includes circum contention that the bishop has misapprehended
stances of time and of place, and the conse the case is based upon his view of the Exeter case
quences which will follow in any particular case (ubi sup.), and of its bearing on the present case.
if the proceedings are stayed , and also those The differences between the two are obvious
which will follow if they are not. The court has enough . In the Exeter case there was no repre
no right to zarrow these words. The effect of sentation of a crucifix,nor of tte Crucifixion , nor
them is on the one hand to emphasise the duty of of the Virgin Mary ; nor was there in that case
the bishop fairly to consider the particular case any suggestion that any superstitious reverence
before him , and honestly to form an opinion had been or was likely to be paid to any figures
upon it ; and on the other hand the effect of the forming part of the reredos. The reredos in
Words is rot only to empower him but to require St. Paul's , which the bishop in this case had to
him to take a wide and not a narrow view of the consider, does contain a representation of the
case, to consider all its circumstances, i.e., erery Crucifixion and of the Virgin Mary , and the
circumstance materialfor forming an opinion upon representation made to the bishop states that
the question whether proceedings should not be these do tend to encourage superstitions devo
taken. The bishop,as will be further pointed out tions. Notwithstanding these differences, the
presently, is not at liberty to set any law of the bishop states in his reasons that the main
land at defiance, and he cannot, under cover of question of principle here at issue has been
forming an opinion under the power conferred already decided in the Exeter case ; and that the
upon him by this section, prevent the law from sole object of the proceedings now proposed is
being enforced against persons who persist in merely to determine whether there may be excep
doing that which he knows to be plainly illegal. tions to the principles there laid down, and
Butwhat is legal or illegalwith respect to images, whether the reredos in St. Paul's is such an
crosses, crucifixes, and other things of the sort exception . He further states that it appears to
in churches depends on whether they do or do him impossible to say that the difference between
not, or will or will not, encourage or lead to the two erections is of very grave importance, or
idolatrous or superstitious worship in the place that one offers serious temptations to idolatry
where they are or are to be put; and, if in any par. and the other does not. These statements of
ticularcase thebishopis of opinion that a particular the bishop show , to my mind, conclusively
image, cross, crucifix, or other piece of sculpture that he has considered the present case ;
has no tendency to encourage such worship, he that he has compared it with the E .ceter case ;
is, in my opinion , perfectly justified in stopping that he has come to the conclusion that the
litigation on the subject. In every such case it sculptures complained of in the St. Paul's reredos
appears to me that the bishop may properly are parts of an erection which is decorative in its
consider what are called the interests of the object and character, and are not likely to
Church in the matter (by which I understand encourage superstitious devotion. This, in my
the advantages or disadvantages to other persons opinion, is the fair meaning of the bishop's
than those complaining and complained of) which statement, and this being his meaning , he has
will result from stopping further litigation . To not, in my opinion, misapprehended the case in
exclude such considerations would , in myopinion, the smallest degree. Whether the reredos in
be unduly to limit his power and duty to con St. Paul's does or does not tend to encourage
sider “ the whole circumstances of the case." . superstitious reverence or idolatry is a question
The bishop is empowered and is bound to con . of fact or of opinion. The complainants say it
sider “ the whole circumstances of the case," but does, and they want to hare that question tried .
it may well happen that oneor two circumstances The bishop has considered this very point, and
render all the others comparatively immaterial. thinks that the reredos has no such tendency. If
When that does happen the bishop need no he be right, the Exeter case shows that the reredos
longer consider them . He is not bound to waste in St. Paul's is not unlawful; if he be wrong, he
his time in thinking over any circumstance which will have made a mistake, the effect of which
is or which becomes unimportant. He has con I will consider presently. But, right or wrong,
sidered it as soon as he has made up his mind he has not misapprehended the case before him ,
that it requires no further consideration. Having but has considered it carefully , as by law he was
considered " thewhole circumstances ofthecase,” bound to do. It is next contended that the bishop
and come to the opinion that proceedings should has considered circumstances outside the case,
not be taken on the representation , the bishop 's and which oughtnot to have influenced him . His
next duty is " to state in writing the reason for observations on litigation on such a matter as the
his opinion .” This must mean his reason for the reredos show , it is said , that he has exceeded his
opinion at which he bas arrived - the reason 1 power, and that he has not performed the duty
Ct. Of App.] REG. v. THE BISHOP OF LONDON. [CT. OP APP.
imposed upon him by the statute. The bishop's | stay proceedings with a view to defeat the law ,
observations are, however,made with reference he would be disregarding his duty ; and the
to the case before him . He has already stated in court would not be imposed npon by any
effect,thathe apprehends no danger of the reredos specious argument to the effect that the
being perverted to superstitious or idolatrous bishop had duly considered the case. In such
worship ; and that being so , he deprecates litiga a case a mandamus would clearly lie, and this
tion on the subject. Here, again , his view of the is the proper answer to many of the ingenioas
innocent tendency of the reredos fully justifies hypothetical cases suggested in the course of the
him , in my opinion, in considering the effect of | arguments. Reg. v . Boteler (ubi sup .) and Reg . v .
litigation aboutwhat appears to him so harmless Adamson (ubi sup.) illustrate the application of
an erection . If he had taken a different view of the law to such cases. It was urged that, by
the tendency of the sculpture, the case would requiring the reasons for a stay of proceedings to
have been entirely different. The conclusion at be put into writing, to be deposited in the
which I have arrived on this part of the case is, registry , and to be transmitted to the parties,
that the bishop has performed the duty imposed the Legislature must have intended that the
upon him by statute. But he may have made a reasons given by the bishop should be capable of
mistake, and this leads me to examine the last being reviewed by some court. I cannot myself
question which arises - viz., (3) what jurisdiction come to this conclusion, for, as already pointed
the High Court has over him . The PublicWorship out, there are other objects to be attained by
Regulation Act gives no appeal from the refusal these requisitions quite sufficient to account for
of the bishop to allow proceedings to be taken their introduction into the statute. Whether, in
on the representation made to him . Nor is this particular case , the bishop is right or wrong
there any appeal from such refusal under any in his view of the alleged tendency of the reredos,
other statute or law . It follows that his decision I do not pause to inquire. He has not decided
is final, and there is no appeal from it. If he has anything whatever as to its legality or illegality .
made a mistake, it cannot be rectified ; and He had no right to decide that question , even as
whether the mistake is one of fact or one of law is between the complainants and their opponents,
immaterial. The only remedy is to lay before at the stage at which he stopped the proceedings,
him a fresh representation pointing out the nor, indeed , at any stage without their consent.
supposed mistake. He could then , and, if satis. All that he has done is to say that, having con .
fied that he ought, he of course would, correct sidered the whole circumstances of the case , he
his mistake by not staying proceedings on the is of opinion that proceedings should not be
renewed representation . But the High Court has taken upon it. The responsibility of saying this
no jurisdiction over him on the ground that he is upon him . If he has bona fide considered the
has made a mistake ; nor can it review his case and come to the conclusion that future pro
reasons because those reasons appear to the court ceedings should be stayed, he has a right to say
unsatisfactory . The law upon this point was so so, and it is his ducy to say so . So long as he
fully examined in the case of Julius v. Bishop of acts in obedience to the law , his opinion cannot
Oxford (ubi sup .) that it is unnecessary to enlarge be questioned . The attempt to show that he has
upon it . But it would be a great mistake to not duly considered the case - i.e., has rot per
suppose that the High Court has no jurisdiction formed the duty imposed upon him by statute
over bishops in such cases as those now under has, in my judgment, entirely failed , and this
consideration . The duty of every bishop , as of appeal must be allowed , with costs here and
every subject, is to obey the law , whether he
approve of it or not, and , if he fails to perform beLOPES,
low . L .J.- The considerations upon which
that duty, he immediately becomes amenable to the decision in this case depends are, in my
the High Court. If à representation is made to opinion , more limited than those which have
the bishop under the Public Worship Regulation been advanced in argument, or which were
Act, the bishop has no right to stay proceedings discussed in the judgments in the court below .
upon it until he has considered the whole circum Abstract propositions of law and fact have been
stances of the case, and come to the opinion that debated which it is not necessary to decide in
proceedings upon it should not be taken . If he order to determine the question now before the
stays proceedings without considering the case, court. Whether the order nisi for a mandamus
he can be compelled by mandamus to perform his should be made absolute depends on the true con
duty ; so, if he refuses to state his reason in struction of sects. 8 and 9 of the Public Worship
writing , a mandamu8 would lie . By requiring Regulation Act 1874 . It does not seem material
the bishop to state his reason in writing,to deposit in detail to consider the law up to that time. It
it in the registry,and to send copies to the parties, is clear from the decision in Julius v. Bishop of
the Legislature has donemuch to ensure a careful Oxford (ubi sup.) that up to that time the bishop,
consideration of the case under a due sense of under the Church Discipline Act, had a discretion
responsibility , and has rendered it possible for a with which the temporalcourt could not interfere,
court of law to ascertain whether the bishop has and the argumentis pertinent that the Legislature
done his duty or not. His duty is to consider would not be likely to take away that discre .
each particular case submitted to him , to give his tion without using clearand unmistakablelanguage
mind to that, and not to stay proceedings respecte to that effect. But it is admitted that under the
ing it unless he is of opinion that, in that par Public Worship Regulation Act 1874 the bishop
ticular case, proceedings ought to be stayed . It has a discretion , but, it is said , a different kind
is not to be supposed that a bishop is unworthy of discretion , and of a more limited churacter
of the trust reposed in him by the Legislature. than that which he possessed before that time.
nor that he will not honestly endeavour to per That it is different I agree,but that it is more
form it. But, if any bishop should be so ille limited I do not admit . It is a discretion which
advised as to set himself against the law , and to I must heexercised in accordance with the terms of
-
March 29 , 1890 .) THE LAW TIMES. [Vol. LXII., N . 8. - 175
CT. OF APP.) Reg. v. THE BISHOP OF LONDON. [CT.OP APP.
the statute, but when so exercised , it is as large i this to be the law , and the principle which has
and as incapable of being reviewed as was the always governed the issuing a writ of mandamus
discretion rested in the bishop before 1874. I to an inferior tribunal. To hold otherwisewould
willnow construe the 9th section of the statute be to givean appealby mandamuswhen no appeal
as I understand it. Sect. 8 deals with the repre- is given. It would be turning the right to a
sentation , which must now for the first time be mandamus into a right of appealfrom reasons and
made by somebody interested , and in this respect opinions of the bishop when he has exercised his
is different from the Church Discipline Act, discretion . But it is said “ after considering the
where the bishop may be put in motion by any . whole circumstances of the case " are not words
body. Then sect. 9 provides that the bishop is enabling the bishop to take all the circumstances
within twenty -one days after receiving the repre of the case, whether direct or collateral, into his
sentation to transmit it, unless he shall be of consideration , but compelling him to take into
opinion, after considering the whole circum consideration every circumstance, both direct and
stances of the case, that proceedings should not collateral, and, if he omits one material circum
be taken on the representation , in which case he stance,mandamus should go. I entirely disagree
shall state in writing the reason for his opinion . , with this contention. The bishop may consider
Thebishop is bound to transmit it unless he com one material circumstance, think it enough , and,
plies with this requirement. It is a condition disregarding any others, found his opinion upon
precedent to his staying proceedings. I think that. For instance, in this case he might have
these words are partly enabling and partly said, “ I have considered the allegation in the
restrictive ; enabling as declaring that the bishop representation that these images tend to encourage
may consider the whole circumstances of the ideas and devotions of an unauthorised kind. I
case, by which I understand not only the think they are church decorations, and have no
direct circumstances to which his atten such tendency ; " and this though there may be
tion bas been called by the representation , other circumstances in the case which he might,
but also all other surrounding and collateral | if he thought fit, have considered . But it seems
circumstances which are material to be con unnecessary to pursue this contention , for I am
sidered ; enabling, therefore , as enlarging the l of opinion that in this case the bishop had con
basis on which the discretion may proceed ; sidered the whole circumstances of the case, and
restrictive as requiring him to state his reason in nothing which is not a circumstance in the case
writing,and thus placing a fetter upon any arbi. material for his consideration . The only way to
trary or capricious exercise of his discretion . An gauge the circumstances which he has considered
arbitrary or capricious exercise of his discretion is to look at his reasons. I find nothing in them
would be no exercise at all. Before the Act of indicating any omission or commission ; I mean
1874 such an exercise was possible, and it could any act of omission in not considering any
not have been reviewed , because there was no material circumstance, or act of commission in
means by which it could be examined or dis | considering any immaterial circumstance. In
covered. There are several objects, it may be order to justify this mandamus the bishop 's
suggested, which the Legislature contemplated reasons must lead the court to the conclusion
when it required the bishop to state his reason. thathe has considered irrelevant circumstances
First,that which I have already stated - namely, to to the exclusion of relevant, or that his reasons
make it impossible for a bishop to act from mere are futile, and he has thus, as I hare said before,
caprice ; secondly , to give publicity to the grounds exercised no discretion at all. This being my
on which he was acting ; thirdly, to inform the opinion, it is unnecessary to consider the matter
complainants, and thus give them an opportunity any further, because it cannot be, and is not,
of amending, if they thought fit, their represen . suggested that he has considered irrelevant
tation. But I am clear that the Legislature never reasons to the exclusion of relevant, or that his
intended to fetter an honest exercise by the reasons are futile. The suggestion , so far as I can
bishop of his discretion , or, so long as the statu understand it, is that he has considered more than
tory requirements were complied with, to make he ought. I desire, however, to express the con
that reviewalle by mandamus which was not struction which I place on the language of the
reviewable before. If the reason or reasons given bishop in his reply to the représentation. He
by the bishop was or were irrelevant to thematter says : “ I have considered thewhole circumstances
in hard , if they amounted to no reason , were attending your representation. I understand
nugatory or illusory, i doubt not that a man that you wish to litigate whether the images
damus would go, because the bishop would not | described in your representation hare any
hare exercised such a discretion upon the matter tendency to idolatry , and whether their erection
as could be considered in point of law a discre. is permitted by law . I have looked at these
tion which he was justified in exercising. In images. I am well acquainted with the reredos
point of fact he would have exercised no dis at Exeter. I have carefully read the decision in
cretion . As to the sufficiency of the reason or Phillpotts v. Boyd (ubi sup.). Between the images
reasons, either in law or in fact, no temporal which in that case were decided not to be idola
court can inquire ; that is a matter for thebishop, trous and the images referred to in your repre
and the bishop alone. A court of law does not sentation there may be differences in detail, but
sit as a court of appeal from the bishop to say those differences, if any, are so unsubstantial
whether he has exercised his discretion, if he has and insignificant that they are governed by the
one,wisely or not, though if he has no discretion same principle as that laid down iu Phillpotts r.
it may compel him to do his duty and act. If | Boyd ." Then the bishop proceeds to speak of
there is any reason put forward upon which the litigation ; he lays down no hard -and-fast rule
exercise of the bishop's discretion may properly against litigation - on the contrary, he says it is
proceed , and the bishop honestly exercises it, in sometimes necessary, but undesirable where the
my opinion a mandamus will not go. I believe ' matter is trivial and the result doubtful. He
176 - Vol. LXII., X . s.] THE LAW TIMES. (March 29, 1890.
CT. OF APP.] Re STOKES ; STOKES v. DUCROZ. [Chan . Div.
means that he doubts if there is any breach of
Church discipline in this case ; that, if there is, it HIGH COURT OF JUSTICE .
is trivial and not of sufficient substance to justify
litigation. He does not put forward litigation as CHANCERY DIVISION.
an abstract and independent reason , but rather Tuesday, Jan . 21.
as an amplification of what he has said before. (Before North , J.)
I cannot but think that this is the meaning of the Re STOKES ; STOKES v . DUCROZ. (a)
bishop's language, and that anyone carefully
reading it would so understand it. It is said Will— Real estate in foreign country - Lex loci rei
that the bishop has misapprehended Phillpotts v . sitæ — Partnership property – Legacy duty -
Boyd. I do not think he has ; on the contrary, Conversion .
he has, in my judgment, correctly understood it, J. M . Stokes, the testator in this action , who died
and rightly applied the principles there laid down in Sept. 1880,domiciled in England , for many
to the present case. But if he misapprehended years previous to his death carried on the
Phillpotts v. Boyd , provided the consideration of business of sheep -breeding in parinership with his
that case was in his discretion , it would be no brother R . Stokes in New Zealand. Part of the
ground for a mandamus. The decision in that partnership property consisted of a freehold
case was a circumstance for him to consider . estate of 29,000 acres in New Zealand known as
Litigation and the probable result of litigation the Milbourne estate. By articles of partnership
was also a matter which he was entitled to regard . dated the 14th Feb . 1879, made between the
In my judgment the bishup has given in writing testator and R . Stokes, it was agreed that the
reasons upon wbich the exercise of his discretion Milbourne estate should be forthwith sold in the
may proceed , and has exercised that discretion manner which the parties should mutually agree
honestly. He is not called upon to consider the upon , and the articles contained provisions for
whole circumstances of the case, as contended sale in case of no agreementand for carrying on
for by the learned counsel for the complainants ; the partnership. R . Stokes died in Jan . 1880.
but, if he is, in my opinion the bishop has con The testator was entitled to four-sevenths of the
sidered every material circumstance, both direct partnership property. No sale of the estate was
and collateral, and has not considered any cir. made in his lifetime or in that of the testator .
cumstance which was irrelevant. The learned By his will the testator gave his four-sevenths
judges in the court below whose decision pre shares in the said Milbourne estate to trustees
vailed appear to me to have been terrified by the upon trust to sell, with powers of management
extent of the power and responsibility which , if till sale, and subject to the payment of an
his contention was maintained , would be reposed annuity , and of the income of one-seventh to the
in the bishop . If the construction of the 9th
section of the Act of 1874 is clear, it appears to
widow of Robert Stokes during her life,to divide
the proceeds and the produce till sale among
me this is a matter with which we have no con thirteen charities. An administration action
cern . Many of the arguments urged by the was commenced in 1881. The New Zealand
learned counsel for the complainants would no property had never been sold , but the income
doubt have been most material matters to con had from time to time been paid into court.
sider when the Bill was passing through Parlia Under an order made in April 1888 the
ment, but are inapplicable now . The judges do funds then in court had been divided , and
not make the law ; they administer it, and that legacy duty had been paid upon the moneys
however much they may disapprove or dislike it . arising from the New Zealand estate. The duty
Some people may think it undesirable that had been paid under an arrangement that it
bishops should possess so large a discretion as should be repaid if it was ultimately decided not
that which we think, under the Act of 1874 ,they to be payable. The Governors of the London
are entitled to exercise. It is said that bishops Hospital, who had been appointed to represent
are human , and may abuse the discretion reposed the other charities, presented a petition asking
in them . So may judges and other high func for distribution of the fund which had accu .
tionaries to whom great powers are intrusted . mulated in court since April 1888 without
The guarantee for their integrity and honest dis payment of legacy duty , on the ground that,
charge of their duties is their antecedents and the being proceeds of real estate in New Zealand , it
force of public opinion . I venture to think that, was notsubject to English legacy duty.
having regard to the high character of the men Held, that the testator's interest in the property ,
in whose hands discretion is placed by the Act of whether regarded as a share in land agreed to be
1874, the risk of abuse is remote, and one which sold by the articles of partnership or as a share
the Legislature might safely determine to in partnership property, was personal and
encounter. I am of opinion that the decision of movable property , and therefore subject to legacy
the Queen 's Bench Division should be reversed , duty according to the law of the testator's
and the rule for a mandamus be discharged . domicil.
Appeal allowed . Forbes v. Stevens (22 L . T.Rep. N . S. 703; L. Rep.
Solicitors for the prosecutors, Wainwright 10 Eq. 179) followed .
and Baillie. John MILBOURNE STOKES, the testator in this
Solicitors for the Bishop of London and Dean action , for many years previous to his death
and Chapter of St. Paul's, Lee, Bolton , and Lee. carried on thebusiness of sheep -breeding in New
Solicitors for the Dean of St. Paul's, Brooks, Zealand in partnership with his brother Robert
Jenkins, and Co. Stokes. A part of the partnership property
consisted of a freehold estate called theMilbourne
estate, situate at Napier Hawkes Bay in New
(u) Reported by J. R. BROOKE, Esq., Barrister-at-Law .
March 29, 1890.] THE LAW TIMES. [Vol. LXII., N. 8. - 177
Chan. Div.] Re STOKES ; STOKES v. DUCROZ. [Chan. Div.
Zealand,and containing 29,000 acres. The business the residue divided among the thirteen charities
was carried on without any articles of partnership named in the will.
until 1879 . The testator was entitled to four. This legacy duty was paid under an arrange
sevenths of the partnership property , and Robert ment with the Treasury that it should be repaid
Stokes to the remainder. The legal estate in the if it was ultimately decided not to be payable .
Milbourne estate was rested in the two brothers After the date ofthis order the trustees paid a
as tenants in common in the above shares. further sum of 30541. into court, representing
By articles of partnership dated the 14th Jan . the income of the three-seventh shares belong
1879, and made between the testator and Robert ing to the charities accrued since the former
Stokes, it was agreed that the whole of the said order .
Milbourne estate should be sold forthwith and This was a petition by the London Hospital,
without any unnecessary delay in the manner who had been appointed to represent the other
which the parties should mutually agree upon , charities, that this sum might be divided among
and the articles contained provisions for the case the charities, without any deduction for legacy
of the parties not coming to an agreement and duty . .
for carrying on the partnership until sale. Rigby, Q. C . and Morshead for the petitioner. -
Robert Stokes died on the 20th Jan. 1880.
No sale had then been made of the Mil. | Our proposition is , that it is not all property
bourne estate. By his will, dated the 11th | was which is subject to legacy duty . Originally it
duty payable on receipts. The 36 Geo. 3,
June 1880, the testator gave and devised to c . 52,a changed
trustees therein named all those his four equal but that and charged it on theproperty ,
seventh shares and all other, if any, the estate The it45 still was charged only on mere personalty .
and interest which he might at the time of his | any legacy Geo. 3, c. 28, s. 4, charges the duty upon
death possess or have power to dispose of in proceeds ofcharged upon real estate and on the
the estate known as the Milbourne estate, Napier to be sold. any real estate directed by the will
Hawkes Bay, upon trust, as soon as con The words of that statute have been
Teniently might be after his decease, to sell the followed by the later Acts, and are still in force.
same either by public auction or private contract Their language is most general, and would apply
every kind of possession in the world, wherever
and either together or in lots, and he expressly tosituate. is manifestly absurd, and the courts
authorised his trustees or trustee to concur with had to putThat some limits on the meaning. It was
the owners or owner of any other shares or share
in the said estate in any sale or contract for sale at first thought that the question depended upon
and division of the proceeds thereof, or to concur where the property was situate, or was collected .
Thomson v. T'he Advocate-General (12 Cl. &
in , or procure a partition of, the said estate, aud But
F . 1) established the rule, that the question
he directed his trustees, out of the proceeds of depends the testator's domicil. If he is
such sale, to purchase an annuity of 1001. for Mrs. domiciled onin England, property collected abroad
Ellen Lehrie for her life,and to divide the residue must pay duty ; if not, property collected in
of the proceeds among thirteen named charities, England is free . That case refers only to
one in New Zealand , one Scotch , and the other
eleven English ; and he directed that until sale personal estate properly so called , but incidentally
the trustees should receive his share of the rents, Lord Lyndhurst says, where a legacy is charged
on land, the lex loci rei sitæ governs, and the duty
profits, and income of the said estate and is not payable. That principle is stated in
the sale of the produce thereof, and after Hanson Legacy and Succession Duty , 3rd edit.
payment of the said annuity should invest and p. 16 . 'sChatfield v. Berchtoldt (26 L . T . Rep .
accumulate the
trusts aforesaid .
residue and hold it upon the N . S. 267 ; L . Rep. 7 Ch. 192) applies it to a charge
By a codicil, dated the 18th Sept. 1880, the on land pur autre vie :
testator repeated the devise to his trustees of his Freke v. Lord Carbery, 16 Eq. 461.
share of the Milbourre estate including the sheep [NORTH, J. referred to Duncan v. Lawson , 60
and stock thereon , and he gave his trustees full L . T. Rep . N . S. 732; 41 Ch . Div. 394.] That
powers of management till sale, and he gave the case decided that English leaseholds belonging
income of one of his four-seventh shares and the to a domiciled Scotchman descended on an in
proceeds thereof to the widow of Robert Stokes | testacy according to English law ,and is founded
for her life, and subject thereto confirmed the l on the doctrine that the leaseholds, though
trusts of his will. The testator died on the same personalty in English law , were immovables, and
18th Sept. 1880 . He was domiciled in England governed by the lex loci rei sitæ . In Forbes V .
at the date of his death . Stevens (22 L , T. Rep. N . S . 703; L . Rep. 10 Eq.
In 1881 an action was commenced for the | 179) James, V .C . held that a share in warehouses at
administration of his estate, the usual decree was j Bombay, being partnership property, was subject
made in March 1881, and by the order on to duty, but he arrived at the conclusion on the
further consideration on the 30th July 1883 | ground that they were personalty according to
certain funds in court were distributed , and the English law . The Vice-Chancellor does not allude
trustees were ordered to pay into court from at all to the fact that they were immovable,
time to time the moneys received by them in and he devotes the greater part of his judgment
respect of the three-sevenths of the New Zealand | to disposing of a doctrine laid down in Matson
estate until sale, and that the same should be v . Swift (8 Beav. 368) and other cases, on which
invested and accumulated . we do not rely for a moment, that notional
By an order, dated the 12th April 1888, it was conversion could not, even in the case of English
ordered that a part of the consols then in property, enure to the benefit of the Crown. But
court,amounting to 75971., should be applied in all the text writers of the time of that decision
discharging a legacy, and that the legacy duty | lay down the rule that the lex loci determines
on the residue of the consols should be paid, and I what is real or personal estate, and then the lex
178 — Vol. LXII., N . 8.) THE LAW TIMES. [March 29, 1890.
Chan . Div.] Re STOKES ; STOKES v. Ducroz . [Chan . Div .
domicilii comes in and decides the devolution | that they both are to be answered in the
of the personalty : affirmative. I do not stop therefore to consider
Hayes & Jarman Concise Forms of Wills, 5th edit. this question further, but come to the conclusion
25 and 26 ; that the estate is subject to a trust for con
Davidson Precedents in Conveyancing, vol.4, p. 264 ; version, whether it be by the terms of the
Jarman on Wille, 3rd edit., vol. 1, p . 4.
That principle was worked out by the Vice-Chan . agreement tothatconvert or by the terms of the
cellor. But the true principle does not depend agreement the estate is to be treated as
part of the capital of the business. Then the ques
on any local law as to the distinction between tion is , whether duty is payable upon this estate
real and personal estate. The real distinction is before it is to reach the hands of those residuary
between movables and immovables. And the legatees. The contention is, that it is immor.
maxim Mobilia sequuntur personam only applies able estate abroad , or that it is real estate abroad .
to what is movable according to the law of There is no question in this case by reason of
nations. That is clearly laid down by Lord any distinction between what is real in our law
Selborne in Freke v. Lord Carbery (ubi sup.), and and what is immovable in the civil law . The
Kay, J. in Duncan v . Lawson . Forbes v. Stevens question is whether this estate is subject to
only really decides that conversion for one pur datý. The question has been argued upon this
pose is conversion for all. That is true for basis - that the law of New Zealand deals with
English land, but it does not, I submit, apply to the devolution of the Milbourne estate , and
land outside the jurisdiction . In this case the that this will cannot operate upon that estate
land does not pass under the will as an English except so far as the will is a New Zealand will,
will at all. It only passes under the same instra and that, if the law of wills were different in New
ment because it happens also to be a good will in Zealand and in this country, what we should
New Zealand. This land is land outside the have to look at would be what the requirements
jurisdiction , and nothing in the partnership or of the law of New Zealand were as to the
thearticles can so convert it as to give an English execution of wills, and a willmight be bad there
court jurisdiction . But in fact the partnership if it did not comply with formalities required by
articles treat it as land . The case of Forbes . that country, if they differed from our own ,
Stevens (ubi sup.) has been followed with regard although the requirements of our law here were
to land within the jurisdiction : perfectly fulfilled . Looking at the words used
Attorney-General v. Lomas, 29 L . T. Rep . N . S. 749 ; in the will, it is necessary to consider what the
L . Rep. 9 Ex. 29 ; testator 's interest in the property was; and in my
Attorney-General v. Hubbuck, 50 L . T . Rep. N . S. opinion what he was entitled to was à share in
374 ; 13 Q . B . Div. 275 ; the proceeds of sale of the property to arise
and it was referred to by Lord Macnaghten in
Attorney -General v. The Marquis of Ailesbury (58 from convert
a conversion . If under the agreement to
alone, it wonld be simply a share of
L . T. Rep. N . S . 192; 12 App. Cas. 672) as having four-sevenths of the proceeds of sate after the
disposed of the doctrine Ì referred to as laid necessary expenses bave been defrayed ; if it
down in Matson v. Swift; but it has never was by reason of a conversion
been followed with regard to land out of the the estate being treated as part, of proceeding from
the capital of
jurisdiction . the partnership, then it would be a similar share
Vernon Smith for St.George's Hospital. in what was payable to him or payable to his
Rawlinson for the plaintiff in the action . legaitees, after ascertaining what his share of
Borthwick for the trustees of the will. the partnership adventure was by satisfying all
Vaughan Hawkins for the Crown.-- The case debts and liabilities and sums that he had
received on account, and so on . But whichever
of Forbes v. Stevens cannot be distinguished . It way
has never been doubted, always followed in will itdescribe is taken , it seems to me the words of the
practice , and it is incoatestably right in principle. interest underandthe operate to pass the testator's
agreement that he had
It is not suggested that the land was not subject entered into with his brother, by virtue of which
to a trust for sale under the partnership articles,
or that it was not partnership property. The he was entitled to receive mot four-sevenths of
testator's interest, whether under the trust for the estate, or four-sevenths of the proceeds, but
sale or the partnership deed, was not an interest à share amounting to four-sevenths of the
in land at all ; it was a right to a share in the surplus after making all the deductions that
net proceeds of the land after paying all the were necessary in respect of expenses and also
liabilities of the partnership . That is a chose in bringing into hotchpot any advances that either
action , or, if that phrase cannot be applied to of the brothers had received and which ought to
foreign law , a credit to which the testator was be set against his share. The result is, that what
entitle 1, and that is a movable in every country he disposes of by his will is his interest in the
of the world , and nowhere regarded as a share estate. Then what is this interest ? In my
opinion it is personalty. It is not a share in
in real estate or an immovable. the estate, the interest in which would have to
Rigby, Q .C. in reply. be arrived at by New Zealand law , but it is a
NORTH, J. (after stating the facts of the case as share in the sum available for distribution when
above ).- Now , I did throw out for consideration the agreement between the partners under which
a question whether the conversion by the it is to be converted and the surplus divided has
agreement was absolute, and whether the land had effect giren to it. Whethe you call it
was part of the capital of the business or not. I personal estate or morable estate, it seems to
My own impression is, that both these questions me, I will not say a chose in action, because I do
should be answered in the affirmative, but I not think that a very happy word to describe it,
thought they deserved some consideration . But but the credit to which the testator is entitled in
Mr. Rigby has argued the case upon the footing respect of the estate. That credit is, in my
March 29, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.– 179
CHAN, Div .] Wood v,GREGORY, [CHAN , Div .
opinion,what passed by the will, and that is a | Re Stedman (58 L. T . Rep. N . $. 709 ; L. Rep.
right to receive a share of the proceeds of the W , N . 1888 , p. 119) explained .
estate, and also, if there was any other partner | This was an action for the partition of property
ship property, the share of the partnership valued at 10,0001. The plaintiffs, who were
property, under the arrangement made with his the owners of one moiety of the property, asked
brother. In my opinion this is not an interest in for a sale in lieu of partition, and tendered
land , and it seems to me that Forbes v. Stevens is affidavit evidence that they and the defendants,
conclusive upon that point, Several arguments who were entitled to the other moiety, were
have been urged before me to show that the the only persons interested in the property.
decision in Forbes v. Stevens is wrong, and these H , M . Humphrey for the plaintiffs. - The
arguments may be entitled to consideration court
they are certainly entitled to consideration that allmay fairly accept affidavit evidence
parties interested are before the court
everywhere - but they may be more effectual and dispense
before a court which has power to overrule Forbes only result in with the usual inquiry , which would
V. Stevens if it was wrong. I have not that power Kay , J , in RetheStedman
production of the same evidence.
at all, and all I can do is to give effect to the law mediate order for sale (ubi sup.), made an im
without directing' an
laid down in that case if it applies to the present
case. In my opinion it does. " The sole point for inquiry.
decision there was this --whether duty was or Oswald and W . Baker appeared for different
was not payable in respeetof the proceeds of sale defendants.
of certain land which was part of the property of H . Greenwood (amicus curiæ ) referred to Willis
a partnership in India , If, the land being in v . Willis (38 W . R . 7), in which Chitty, J .adopted
India , the proceeds of that land were an the same course as was taken in Re Stedman .
immovable , and to go accordingly , the duty NORTH , J. - I cannot accept Re Stedman as
ought not to be paid ; but the court came to the an authority that in all cases the title to property
conclusion that, although the land was in India , which is the subject of a partition action is to
yet,because it belonged to a partnership, it was be proved in court instead of an inquiry being
subject to a trust to convert, and the interest of directed in chambers, Thatmay be a very proper
the testator in theproperty was an interest in the course to adopt in simple cases, specially where
proceeds of that conversion , and , that being so, the value of the property is small, and I have
was property subject to duty in this country, So myself followed it . But looking at thenature of
in the same way that case, in my opinion , applies the property in this case, and at the interests of
here. I must hold that, the interest of the the parties, which appear from the statement of
testator in the case before me being in money claim to depend upon a complicated pedigree, I
arising after the sale of land actually directed to think it will bemore convenient that theordinary
be converted , the case of Forbes y , Stevens is inquiry should be made in chambers. I will give
indistinguishable from the present, and whatever leave to apply in chambers for an order for sale,
they may do elsewhere, it is binding upon me. NOTE . - In Hawkins v . Herbert (60 L . T. Rep . N , S .
Under those circumstances I have no course open 142) Chitty , J . refused to order a sale without inquiry ,
to me but to follow that decision , and I must bold distinguishing Re Stedman , as above.
that the duty has been properly paid (that is the Solicitors: Torrand Co. ; W .Montgomery White ;
effect of it , I think) and that it cannot be Chester and Co.
recovered back ,
Solicitors : Hanbury, Hutton , and Whitting; Thursday, Feb, 6.
Surman ; andNettleship
Quekett ; E . F. Henley ; Palmer , (Before NORTH , J.)
Eland, and .
Re PORTUGUESE CONSOLIDATED COPPER MIXES
LIMITED ; BADMAN'S CASE ; BOSANQUET'S CASE, (a )
Saturday, Nov. 16, 1889, Company- Allotment Director:- Quorum - Con
(Before NORTH , J.) firmation of allotment - Practice - Setting aside
WOOD 4. GREGORY, (a) judgment by default - R . Ş. C ., Order XIV .,
Practice Partition action - Proof of title at hear 7. 6 ; Order XXVII., r. 15.
ing - Inquiry in chambers cys to persons interested in this case an allotmentof shares in the P .Company
with inquiry had been made on the 24th Oct. 1883, at a meet.
ThisDispensing
was an aetion for the partition, or sale of ing of directors, at which two directors only out
property of the value of 10,0001. The plaintif of four were present, ,and of which one director
who were owners of one moiety of the property , at least had received no notice . This allotment
asked by their statement of claim for a sale in lier .
ofpartition . The defendants were theownersofthe was held invalid by North , J.,and by the Court
of Appeal (Re Portuguese Consolidated Copper
other moiety. Affidavit evidence was tendered Company Limited ; Steele 's case, 60 L . T . Rep .
that all persons interested in the property were N . S . 857 ; 42 Ch. Div . 160), and an applicant,
parties to the action , and the court was asked to who had withdrawn his application on the 25th
make an immediate order for sale, dispensing Oct., kad,had his name removed from the register.
trith the usual inquiry in chambers as to the This was an application by two other applicants
parties interested . to whom shares had õeen allotted at the same
Held (following Hawkins v. Herbert,60 L . T. Rep. meeting, on the 24th , and who claimed that
N . 8. 142), that, as a general rule, an inquiry they had withdrawn their applications imme.
will be directed, though, where the property is diately afterwards. It now appeared that, on the
small, the court may dispense with it if satisfied 7th March 1889, a resolution was passed at a
at the hearing as to the title . validly constituted meeting of directors confirma
(6) Reported by J. R. BROOKE, Esq., Barrister -at-Law . (a) Reported by J. R. BROOKE, Esq., Barrister-at-Law ,
Ch. Div.] Re PORTUGUESE Consol. COPPER MINES ; BADMAN 'S CASE ; BOSANQUET'S CASE. [Cu. Dir .
ing the allotment. This fact had not been in | summons had been transferred to North , J., to
evidence before either court in Steele's case. comeon with the motion .
Held (on the authority of Bolton Partners v. No execution had been levied under the judg.
Lambert, 60 L . T. Rep . N . S . 687 ; 41 Ch. Div. ment.
295), that this subsequentratification related back BADMAN 'S CASE.
to and confirmed the allotment made by the two E . Beaumont, for the applicant, on the sum .
directors as unauthorised agents,and the appli- | mons to set aside the judgment in the Queen's
cants must retain their shares. Bench Division . The court has jurisdiction to set
In Badman 's case the instalments payable on allot. aside on themerits, a judgment signed for default :
ment had not been paid . The company had Farden v. Richter, 60 L . T. Rep. N . S. 304 ; 23
commenced an action in the Queen 's Bench Q . B . Div. 124 ;
Division to recover them , and applied for Smith v. Dobbins, 37 L. T. Rep . N . S. 777.
judgment under Order XIV. Leave was The judgment was signed against the applicant
given to Badman to defend upon paying 1001. merely because he was too poor to pay 1001. into
into court. He made default, and leave to sign court within the time specified . It would be very
judgment againsthim was given on the 17th Jan. hard that he should be thereby precluded from
Judgment was signed early in February, and on establishing his right to have his name removed
the 9th April Badman took out a summons to set from the register.
aside the judgment, which was transferred and Cozens- Hardy, Q .C . and W . Baker, for the com
came on with themotions. pany. - A judgment by default may be set aside
Held , that the court had jurisdiction to set aside the under Order XXVII., r. 15 , upon proper terms,
judgment. but this judgment wasnot a judgment by default
THESE were two motions to rectify the register within the meaning of that rule at all. It was a
of shareholders of the Portguese Consolidated judgment under Order XIV., and the affidavit
Copper Mines Limited by removing therefrom filed by the defendant in the application for leave
the names of Messrs. Badman and Bosanquet. to defend raised the same defence he wishes to
Shares had been allotted to both gentlemen on raise now . The order giving leave to sign judg.
the 24th Oct. 1888 . In a former case in the ment wasmade by the master on the 15th Feb .
matter of the same company (60 L . T . Rep. N . S . If the applicant was dissatisfied he ought to have
857 ; 42 Ch. Div. 160) the allotmentmade on that appealed to the judge within four days, under
day was held to be invalid because there was no Order LIV ., r . 21. [NORTH , J. - That objection
properly constituted meeting of directors. to the present summons should have been taken
In the present cases there was some question at once, but it was directed to stand over,
whether either of the applicants had ever repu and transferred to me without objection .] The
diated their shares, but the view taken by the fact that a case has been decided altering the law
court made it unnecessary to decide this question. appeal
is not sufficient ground for extending time to
:
It was now proved that on the 7th March
1889 a properly constituted meeting of all the Esdaile v. Payne, 59 L . T. Rep. N . S. 910; 40
Ch. Div. 520 .
directors was held , of which the minutes were as NORTH, J.- I have had since the adjournment
follows:
The allotment of shares in the company having been an opportunity of consulting two of the judges of
called in question by several shareholders, the directors, the Queen 's Bench Division , and am satisfied
while not in any way admitting the existence of any that I have jurisdiction to set aside this judg.
irregularity in the allotment, deem it advisable to pass a ment if necessary , and I will therefore hear the
resolution confirming the allotment. application to rectify the register on its merits.
It was accordingly moved by Mr. Loam seconded by E . Beaumont for the applicant Badman. - The
Hoyle
Mr.That and resolvedof, shares in the company made on facts
the, allotments show that Badman withdrew his application
the 24th , 25th , and 26th days of Oct. 1888 be, and the for shares before there was any confirmation of
samearehereby confirmed , and that the secretary do the allotment on the 24th Oct., and Steele's case
forthwith communicate this resolution to the share (ubi sup.) decides that that allotment was bad.
holders. Cozens- Hardy, Q .C . and W . Baker for the com .
This resolution was passed after the evidence pany.- On the facts we say that there was no
in Steele's case was closed , and the fact of its withdrawal of the application , but it does not
having been passed was not brought to the notice matter whether there was or not, for the allot
of North , J. or the Court of Appeal.
The applicant Badman had not paid the in mentthemade on the 24th Oct, was duly confirmed
stalments payable on application for an allotment by resolution of the 7th March, and Bolton
Partners v. Lambert (60 L . T . Rep . N . S . 687 ;
of his shares. On the 24th Dec. 1888 the com : 41 Ch. Div . 295 ) is an authority that that con
pany commenced an action in the Queen 's Bench firmation related back to the allotment made
Division against Badman for payment of these by the unauthorised agents of the company
moneys, and applied for judgment under Order on the 24th Oct. and made
XIV . On the 17th Dec. leave was given by the Steele's case this resolution itwasgood ab initio. In
master to the defendant to defend upon his pay. court, and the Court of Appeal not before the
held that the
ing 1001., the amount claimed , into court ; in resolution at the meeting of the 26th Oct., which
default of such payment the companywere to be at was then relied on as a confirmation was invalid,
liberty to sign judgment. The defendant made
default in this payment, and the company signed because themeeting of the 26th was merely an
judgment in Feb . 1889 in pursuance of an order adjournment of the invalid meeting of the 24th ,
made by the master on the 11th Jan. On the and therefore had no power.
9th April 1889 Badman took out a summons to BOSANQUET'S CASE .
set aside this judgment on the ground that the |I Higgins, Q .C . and Bramwell Davis for the appli
allotment had since been held to be bad . This I cant. The case of Bolton Partners v. Lambert is
Chan. Div .] Re SMITH ; KeelinG v. Smith , [Chan . Div.
distinguishable, because the directors here had Solicitors : Munns and Longden ; Stretion ,
no power to delegate their power of allotting Hilliard, and Co ; Burn and Berridge.
shares to an agent at all, and they could not
appoint an agent by ratification any more than
they could have done by original appointment.
[NORTH , J. - Would not that apply to the case of Feb. 5 and 6.
Bolton Partners v. Lambert ?] In that case the (Before STIRLING , J.)
contract was for the sale of an estate, as to which Re Smith ; KEELING v. Smith . (a)
the company might well appoint an agent. Here
it would be a breach of trust to future share . Will – Marriage with consent of trustees — Gift
holders for the directors to delegate the discre . upon - Consent inferred from circumstances.
tion as to proceeding to allotment which they In cases where a benefit is given to a person with a
bad undertaken by allowing their names to appear condition attached that the benficiary is to marry
on the prospectus. Even if all the directors had with the consent of certain other persons, but no
been present on the 24th Oct., the allotment, particular form or manner in which the consent
with so few shares applied for, would have been is to be given is prescribed by the instrument con
improper, and would not have been upheld . If ferring the benefit, the court has from an early
the company are right, Mr. Bosanquet was im period treated the consent as a matter of sub
properly on the register from the 24th Oct. to stance, and not as a matter of form , and, if the
the 7th March . It is impossible that, after his consent is given substantially, it will not look
incurring all sorts of risks and liabilities by very minutely into the form in which it is given .
being improperly on the register, he ought now The principle laid down in Daley v. Desbouverie
to be kept upon it. (2 Atk . 261) followed .
Doe d. Fisher v. Cuthell , 5 East, 491 : This was an originating summons by the three
Doe d. Mann v. Walters, 10 B . & C . 626 , executors and trustees of the will of Theophilus
show that a notice given by an agent is not good Smith , for the determination, under Order LV .,
unless he had authority at the time he gave it. r. 3 (a ), of the Rules of Court 1883, of the
question (in effect) whether the defendant Henry
NORTH, J. (after stating the facts of the case). Weston Smith had married with the consent of
I will assume that the steps taken by the appli | at least two of the trustees for the timebeing of
cants on the 25th Oct. to repudiate their shares the said will, he being entitled under the will to
were sufficient in each case, though much might an absolute interest in certain trust funds upon
be said upon that question . If all the directors his marriage with such consent.
had been present at the meeting on the 24th , The testator, who died on the 22nd Dec .
I can see no ground on which the allotments 1882 , by his will, dated the 11th Dec. 1882,
then made could havebeen set aside. They were appointed the plaintiffs to be the executors and
not all present, and it has been decided that the trustees of his will, and, after making certain
allotment was bad because of the absence of some
of them . That decision would cover this case, specific bequests, devised and bequeathed all
but a difficulty arises from the resolution of the the residue of his estate and effects, both real
7th March , which was not before the court in the and personal, to his trustees upon trust to sell
former case, and the recent decision of the Court and convert, and after payment of his funeral
of Appealin Bolton Partners v . Lambert (ubi sup .). and testamentary expenses, debts, and legacies,
The facts in that case were very like the facts in to invest the residue of the moneys produced
this. There a committee of directors, and here by such sale and conversion in manner therein
twodirectors, affected to doacts which they had mentioned ; and he declared that his trustees or
no power to do so as to bind the company. The trustee should hold his trust fund and the income
Court of Appeal held that a confirmation of those thereof upon trust as to one moiety ibereof to
aotsby the company afterwards related back so pay the income arising therefrom to his “ son
as to make the committee the authorised agent of Henry Weston Smith by equal quarterly instal
the company to enter into a contract, and to ments without power of anticipation during his
make their acceptance of an offer by a purchaser life or until his marriage ; and from and after
binding on him though he had withdrawn it the marriage of my said son with the consent of
before the confirmation by the company. That at least two of the trustees for the time being
appears to come to this, that, if a person makes hereof then I declare that my trustees or trustee
an offer to an agent for a company, he may be shall stand possessed of the said moiety or equal
in a much worse position than if he made it to half part in trust for my said son absolutely .
the company itself. He may be bound to the Provided always that if my said son shall die
company when the company is not at all bound without having been married then my trustees or
to him . I cannot distinguish that case from this. trustee shall stand possessed of such income and
Certain small distinctions have been suggested , of the investments for the timebeing representing
but I do not think that I ough ' to pay any the same " upon the trusts thereafter declared
attention to them . If there is anything in them concerning the other moiety of the trust fund ,
they must be addressed to the court which which were (in effect) trusts for the benefit of the
decided the case, and the more so because I can . testator's two grandchildren Eliza Mason (for
not but think that one of them at least must have merly Walters) and Herbert Walters, upon their
been present to the minds of the judges when attaining twenty .one, or, in the case of the grand .
they gave that decision. Their decision is bind. daughter, marrying under that age.
ing on me, and I can only say that I am glad The defendant H . W . Smith was married on
that I have such a decision before me to guideme the 2nd March 1885 to Elizabeth Harris. Two
right in a case in which I am afraid I should of the trustees of the will, Messrs. Trevarthen 1
bare gone wrong without it, (a)Reported by A . J. HALL, Esq., Barrister-at-Law .
Chan. Div. ] Re Smith ; KEELING ». Smith . [Chan. Div .
and Tann, had made an affidarit (the third , Mr. such moiety . On the other hand, it was con
Keeling, being unable from ill-health to do so ), in tended by the other defendants Herbert Walters
which it was stated as follows : and Mrs. Mason, both of whom had attained
Par. 9. None of us gave any consent to the said mar twenty -one, that the marriage was without the
riage of the defendant Henry W . Smith , anless a con requisite consent, and that the trusts in the will
sent thereto is to be inferred from the circumstances for the payment of the incomeof the moiety to
hereinafter stated , but we have never refused to give the defendant Smith until marriage had deter
our consent to the marriage. We have not any objec
tion to the marriage, and at the timewhen the defendant mined, and, in the events which had happened ,
applied to us as hereinafter stated we had no objection the income until the death of such defendant, or
to the lady . Wewere, however, of opinion that it was his subsequent marriage with the requisite con•
notat that timedesirable that the said defendant should sent, was divisible between the parties upon the
marry ,orshould be put in possession of the capital of his footing of an intestacy . This summons was
share under the said testator 's will. Wewere not aware
that if the said defendant married without consent the accordingly taken out, and was adjourned into
trust for payment of the income to the said defendant court, and now came on for hearing.
might be affected , or that it was requisite that the con Gregson for the plaintiffs.
sent should be given before the marriage.
Then par. 12. On or about the 20th Dec . 1884 the
defendant H . W . Smith attended one of our periodical
Graham Hastings, Q .C . and Eastwick for the
defendant H . W . Smith .-- The trustees were
meetings as such trustees as aforesaid , and received a informed of the proposed marriage, and expressed
cheque for the income then due to him , and stated that
he contemplated marrying Elizabeth Harris, and asked no disapproval. They must , therefore, be taken
to have tacitly consented
for our consent thereto, and we desired him to make his :
application in writing . Berkley v. Ryder, 2 Ves. gen . 532 ;
After this meeting the defendant Smith con Creagh v. Wilson , 2 Vern .571 ; .
sulted Mr. Trevarthen asto bringing theproposed Mesgrett v. Mesgrett, 2 Vern. 580.
marriage formally before the trustees, and he Conditions of this kind in partial restraint of
sketched out a form of letter for Smith to write marriage have always received a favourable con
to the trustees, but he did not, as he alleged , struction from the court, 60 as, if possible, to
inform Smith that he consented to or approved avoid a forfeiture :
of the marriage, nor give him to understand that Daley v . Desbouverie, 2 Atk . 261 ;
he would do so. Reynish v. Martin , 3 Atk . 330 ;
On the 5th Jan. 1885 Smith wrote to the Burleton v . Humfrey , 1 Ambl. 256 ;
trustees a letter, in which he imformed them Otarke v. Parker, 19 Ves. 1 ;
that
Harvey v. Aston , 1 Atk . 361.
proposed marriage to Mrs. E . Harris, and I this, authorities
The show that when, in such cases as
I have the consent
hope you may be able to approve my choice , and in that court is not particular has been given in substance, the
case I shall be pleased to have my share of the estate as to the form in which it
transferred to me upon proof of my marriage, which I is given . In the present case the trustees did not
am anxious, with your consent, to arrange as soon as object to the lady, or to themarriage in any way.
possible ; They only wished to defer it for some time, and
and he stated where the lady lived, and referred it was put off some three months. Mr. Smith
the trustees to persons who knew her. was throughout led to suppose that they
On the 13th Jan. the trustees wrote to Smith consented to hismarriage, and what they did was,
in reply : we submit, equivalent to consent.
We are prevented for the present taking any action Buckley, Q.O. and Colt for the defendants
in the direction you have requested us to do by the fact Herbert Walters and Mrs. Mason and her
that the lady whose name you have mentioned told Mr.
Keeling not very long since that she had positively trustees. The trustees of the will never gave
their consent to the marriage. Their position
declined your proposal to marry her .
The defendant Smith in his affidavit stated that was that the lady had declined to entertain Mr.
par. 12 of thetrustees' affidavit did not fully give Smith's proposal, so that there was no marriage
an account of what occurred at the interview toconsent. which they could either gire or refuse their
There certainly was no active consent,
therein referred to , and he stated as follows :
Theplaintiff Keeling on theoccasion therein mentioned , and no tacit consent can be implied from such cir .
said to me, after I had asked the trustees for their con . cumstances as occurred in the present case. The
authorities show that the court will struggle hard
sent to mymarriage, “ We see no objection , butweshould
like you to make your application in writing ,” leading not to deprive a person of a benefit under a will,
me thereby to suppose that the writing wasmerely a where there is a doubt as to whether a condition
matter of form . attached to the gift has been complied with or
He further stated that the letter of the 5th | not. As was stated in Berkley V . Ryder , where
Jan. 1885 was in the form which had been no precise form of consent is required in such a
sketched out for him by Mr. Trevarthen , and that trust, the court will receive eridence of implied
in the month of Feb . 1885 he had met Mr. Tre consent, but it must be positive evidence of
varthen , who had asked him in a friendly way a previous approbation - not inferred from acts
whether he had yet gotmarried, thusleading him of subsequent approbation . In Mesgrett v.
to believe that he had the consent of the trustees Mesgrett it was held that a tacit consent
to his marriage. plainly appeared to have been given , and that
On the 19th March 1885 the defendant Smith | was the principle upon which Campbell T. Lord
wrote a letter to Mr. Keeling, inclosing a certifi. Netterville referred to in Berkley V. Ryder at
cate of his marriage,and subsequently he claimed p. 533, was decided. In Burleton v. Humfrey
from the trustees to have the moiety of the trust the marriage was to be with the “ consent or
fund handed over to him , on the ground that the approbation ,” and a subsequent approbation was
marriage had taken place with the requisite con held to satisfy the condition . Where, however ,
sent, and that he was now absolutely entitled to l as here, the condition has plainly and undoubtedly
March 29, 1890.) THE LAW TIMES. (Vol. LXII., N . S. - 183
Chan.Dir.) In, the Goods of John Smith (deceased ). [PROB.
not been complied with , the court cannot dispense very last paragraph of his judgment contains:
with it altogether. this passage : “ There are so many cases in which
The Court did not call for a reply. the court has thought itself at liberty to conceive
consent to have been given substantially , though
STIRLING. J. stated the will, and continued : not in terms, that I do not think it right to
The son has married , and the question for my decide this case without directing inquiries with
decision is, whether he has married with the con - a view to bring fully before the court matter
sent of at least two of the trustees for the time which is in some degree before it.” The matter
being of the will, so as to have become absolutely referred to related to whether a substantial con
entitled to a moiety of the testator's residuary sent could be inferred from the acts of one of
estate. I observe that no particular form or the trustees who had not given a formal consent.
manner in which the consent is to be given is That is the principle on which I am to deal with
prescribed by the will - all that is required is that the present case. The evidence is contained in
there should be the consent of two at least of the passages of the affidavit of two of the trustees
trustees for the time being. The authorities the third trustee did not give evidence, I under
show that from an early period the court has stand, owing to ill-health - and in the affidavit of
treated the consent in these cases,not as a matter the gentleman himself. [ His Lordship then
of form ,but as a matter of substance, and if the referred to paragraph 9 of the trustees' affidavit,
consent is given substantially, it has not looked and continued : It appears, therefore, that to
very minutely into the form . No case shows the marriage, in itself, they had no objecticn ,
that more strongly than Daley V. Desbouverie, neither did they object to the lady. They state
which was decided by a very great judge, Lord whatwasthereal state oftheir mind on the subject,
Hardwicke. What took place there was this : and say that they had no objection to the
There was a gifte over of a benefit appointed in marriage, but that they thought that it was not
favour of Lady Ann Burke in case she should desirable that it should take place at that time.
marry without the consent of her trustees, and Thet is to say, they stood very much in the
there was there the peculiar feature that at first position of the trustees in Daley v. Desbouverie.
there was an absolute refusal of such consent, but They say, “ We consent, provided the marriage
there was afterwards a letter written by the takes place at the proper time.” [His Lordship
trustees which contained this passage : “ If Mr. then referred to paragraph 12 of the trustees'
Daley's father willmake the settlement proposed , affidavit, as to the interview of the 20th Dec.
we believe the young folks are too far engaged | 1884 , and the statement in the affidavit of the
for us to attempt to break off the match , and defendant Smith as to such interview , and to the
therefore we shall be obliged to cousent to it." letters of the 5th and 13th Jan. 1885 , and con
That was not in form a letter expressing any tinued :] That last letter I read asmeaning this :
present consent at all, but rather an expression “ The lady does not intend to marry you, and
of a futare consent to be given on terms. Mr. therefore we think it unnecessary to give any
Daley's father was willing to make a settlement, formal consent." It is said that that is evidence
though not in precisely the terms proposed by that the trustees never considered the matter,
the trustees, and after some negotiations, which and never really gave their consent. I do not
did not come to anything, the plaintiffs, Lady | so read it. They did consider the substance of
Ann and Mr. Daley , were married, according to the matter, whether or not the marriage was a
the evidence, at the Fleet " by John Gaynam , the I proper one, and they came to the conclusion that
famous Fleet parson, on the 5th June 1735," so '| it was, but they attached to that the proviso that
that it was a secret marriage, and the question | it should take place at the proper time. That
whether what the trustees had done announted to a brings the case within Daley v. Desbouverie, and ,
consent to the marriage, camebefore Lord Hard - in my opinion, I ought to hold that the consent
wicke,wbo beld that the marriage was substan - | has been substantially given , and that the son is
tially with the consent of the trustees. He deals entitled to the moiety of the residuary estate
with the case in this way : He says : “ It is absolutely.
manifest, both from the letter and deposition of Solicitors : for the plaintiffs, Wynne- Baxter
Mr. Manley , one of the trustees,that he agreed to and Keeble , agents for John Soper Streeter,
the proposal, and gave his consent that it should Croydon ; for the defendant H . W . Smith , Prior,
be a match ; and the letter is likewise evidence Church , and Adams, agents for Drummonds,
that the trustees in general approved of the per Croydon ; for the other defendants, Tyrrell and
son , behaviour, and quality of Mr. Daley ; and it Son , agents for J. M . Head, Reigate.
is also evidence of their consent to the marriage,
provided Mr. Daley , the father, will make the
settlement he proposed. The words in the letter
We shall be obliged to consent,'mean from the PROBATE, DIVORCE, AND ADMIRALTY
necessity of the thing, and for the happiness of DIVISION.
the lady, and ought to be construed a present PROBATE BUSINESS.
consent that, if the father would make the settle Oct. 29 and Nov. 20, 1889.
ment, they would not break the match . . .
The trustees have signified their consent (Before Butt, J.)
that a settlement should be made according In the Goods of John Smith (deceased).(a )
to the prayer of the plaintiff's bill, and there Will Attestation - Signatures of three persons
fore I will decree accordingly.” I cannot find other than the testator - Order for probate to
that that case has been in any way over issue omitting one of the names.
ruled. On the contrary , in the case of Clarke
7. Parker , the learned judge (Lord Eldon ) was The Court allowed probate to issue omitting the
not at all prepared to depart from it, because the 1 (a) Reported by H.DURLEY-GRAZEBROOK,Esq., Barrister-at-Law .
184- Vol. LXII., N . 8.) THE LAW TIMES. (March 29 , 1890.
PROB. ] In the Goods of SAMUEL ARMSTRONG (deceased). ¡PROB.
name of one of three persons other than the t€8. ! Ido not know how Mrs. Smith came to sign the will,
tator , who had signed their names at the foot of | nor did I see her sign it ; but I am sure she did not sign
a will, in a case where it was sworn by thewidow it as a witness. I knew , when the will was execated ,
of the deceased , the person in question , and by the that if a wife signed her husband's will as a witness
she would take no interest under it.
two witnesses to the will, that she did not sign as Mrs. Emma Smith , the widow , deposed :
a witness, but merely at the wish of the testator
to verify the contents of the document, which the Shortly after the will had been signed my husband
said to me that he thought it would be well if I signed
testator did not consider would be in order my name to the will, so as verify the contents of the
unless her signature was appended thereto. same. The deceased thought the will wonid not be
This was an application to omit from the probate correct unless my signature was added to it. I then
of a will the name of one of the persons who had affixed my signature to the will, as the deceased wished
signed the document. me. All this was after the will had been signed by the
testator, and after his signature had been witnessed by
The will was drawn on a printed form , at the Mr. Hough and Mr. Catterall. I did not sign my name
foot of which was an attestation clause, with two to the will as a witness.
lines underneath ; one, that is, for each of the The personal estate amounted to about 2901.,
attesting witnesses. The two lines were bracketed and the realty to about 18001. The debts, & c.,
together, and the person whose name it was now were set down at about 2251.
sought to bave omitted from the probate had Nov. 20. - R . II . Pritchard, for the widow ,
signed below the lower of the two lines and out
side the bracket. renewed the application. He cited
The testator, John Smith, late of the Griffin In the Goods of Sharman , 20 L . T. Rep. N . S . 683 ;
Inn, Farnworth , in the county of Lancaster , duly L . Rep . 1 P. & D . 661.
executed his last will on the 24th July 1884. . | That authority is on all-fours with the present
By it he directed payment of his debts and incase,thesaveeventin the fact that allthe parties interested
of an intestacy were sui juris ,
funeral and testamentary expenses ; he appointed
John Hough and Emma Smith executor and whereas, in the present case, some are minors.
executrix ,and gave all his property, both real and Since the application was first made and
personal, to his wife,thesaid Emma Smith, for ber adjourned , the registrar duly selected and
life, and after her death equally between his appointed Jobu Catterall and Richard Lythgoe,
children, eight of whom survived him . After the husband of Ellen Lythgoe, one of the minors,as
testator had executed the will, John Catterall and the persons upon whom notice of the motion
John Hough duly attested it aswitnesses. Shortly should be served on behalf of the children under
after, on the same day that the will had been age ; and the two persons named were accord .
executed , the testator said to his wife that he ingly duly served with the notice on the
15th Nov. 1889. An affidavit is also before the
thought it would be well for her to sign the will court,
to verify the contents thereof. setting forth that the nature of the appli
She thereupon wrote her name immediately cation has been explained to the children who
under those of the two attesting witnesses ; but I are orer age, all of whom , as well as Ellen
she stated that she did not sign as a witness. Lythgoe, have signed a formal consent. The
Neither of the two attesting witnesses saw her executor and executrix have also signed that
sign the will , nor did they know how she came to consent.
do so ; but they were both sure she did not put Butt, J. - I am satisfied, upon the affidavits,
her name to the document as an attesting witness, that Emma Smith did not sign the will of ber
On the 29th Oct. 1889, when this motion was husband as an attesting witness. Probate may
first before the court, it was directed to stand issue, omitting Emma Smith 's name.
over, in order that the children might be duly Solicitors for the applicant, Field , Roscoe,
served with notice of the application . This was and Co.
accordingly done.
The executor and executrix consented to this
application , and no opposition was offered on Tuesday, Dec. 3, 1889.
behalf of any of the children . (Before Butt, J.)
The affidavit of John Hough, the executor, one In theGoods of SAMUEL
of the attesting witnesses, stated : ARMSTRONG (deceased).(a )
On the 24th July 1884 the deceased, John Smith , said Will — Trustees named - Direction to trustees to
he would like to make his will. He told me he had pay specific debt- Only one other debt- Direction
firmly decided to leave overything that he had to his to pay legacy, to invest residue, and pay one
wife , who had worked harder than he had ,and that he annuity - Gift of residue - Executors according
owed everything to her. I went out, bought a printed to the tenor- Probate refused - Administration
form at the stationer's,and returned to the inn . 'I drew
out the will at the testator 's request, carrying out his with will annexed.
instructions. I read the will over to the testator in the A testator by his will appointed his brother-in - law
presence ofMr. Catterall and Mrs. Smith . The testator and son trustees thereof. He devised and
expressed satisfaction with the contents, and then bequeathed to his said trustees all his real and
signed the will in the presence of John Catterall and
myself, and we then signed our names aswitnesses. T'he personal property , upon trust, to pay to a certain
deceased first signed his name just below the last line of lady a certain amount due to her from the testa .
the will, and then ,directly afterwards, signed his name tor, this being the only debtowing by the testator,
again opposite the attestation clause. After the will with the exception of his doctor's bill. The
was signed the deceased said he was perfectly satisfied trustees were then directed to pay one legacy of
with it. I do not know how Mrs. Smith came to sign
the will. I did not see her sign it. I am certain she 501., and to invest the residue, and out of the
did not sign it as a witness. income to be derived therefrom to pay to the
John Catterall, the other attesting witness, housekeeper of the testator's son , for her life, the
confirmed the abore, and further deposed : (a)Reporied by H .DURLEY-GRAZEBROOK,Esq., Barrister-at-Lar.
March 29, 1890.) THE LAW TIMES. (Vol. LXII., V. 8.- 185
PROB.] In the Goods of BABIN (deceased). [PROB.
annual sum of 301., to be increased to 401, a year Tuesday, Oct. 29, 1889.
in the erent of her ceasing to be his housekeeper. (Before Butt, J.)
Subject to the foregoing directions, the testator Tuesday, Feb . 18 .
gave the residue of his property to his son, but (Before the PRESIDENT (Sir James Hannen).
directed that, in the event of the son notdisposing
of it by deed or will, it was to go to the son's In theGoods of BABIN (deceased ).(a )
children . This gift to the son amounted to an Administration - Intestate a married woman domi
absolute gift. The trustees moved the court to ciled in Canada – Husband not entitled to
grant probate of the will to them as executors administration , as of right- Law of country of
according to the tenor. domicile -- Refusal to act upon affidavits of one
Held, that they were not executors according to the person alone- Direction to cite husband - No
tenor,and that probate must be refused. appearance by him - Grant to children 's repre
This was a motion for probate of the will of sentative.
Samuel Armstrong, deceased . By his will, dated The court will refuse to act upon the affidavits of
the 19th Feb. 1887, he devised and bequeathed all one person alone, no matter how responsible and
bis realand personal estate to Simeon Stone, his respectable that person may be, in the ausence of
brother-in -law , and to Henry Armstrong his son , proof that the person who would , by the law of
upon trust to pay a specific debt to a lady men England, be entitled to a grant of letters of
tioned by name. This was stated to be the only administration , had been formally cited . But
debt owing by the testator at the time of his upon proof that he had been so cited, and that
death , with the exception of his doctor 's bill. no appearance had been entered on his behalf,
After payment of the said debt, the testator gave The Court made a grant to the attorney of the
a legacy of 501., and , subject tbereto, to invest children of a lady , who had died intestate, domi.
the proceeds of the testator's estate, and out of ciled in Canada.
the incomearising therefrom to pay to Sarah Stone This was a motion for a grant of letters of
for her life an annuity of 301. a year, so long administration to the attorney of two minors in
as she remained in the position of housekeeper Canada of certain personal estate in this country
to Henry Armstrong, to be increased to 401. al passing to them , by the law of Canada, as next of
year in the event of her ceasing to be his house- kin of a deceased lady , their mother, a domiciled
keeper. The residue was directed to be given to Canadian .
the testator's said son, but, in the event of his Elizabeth Bayley Babin died in 1869,domiciled
not disposing of it by deed or will, it was to go in Canada , and without having executed any will.
to his (the son's) children . The gift to the son, There had been an ante-nuptial settlement
therefore, amounted to an absolute gift. Under between her and her husband , one of the terms
these circumstances, the trustees named in the of which was that if either party married again
will now applied , upon motion , that probate such party should lose all right to any property
should be granted to them as executors accord comprised in the settlement.
ing to the tenor. Two affidavits - one as to the facts the other as
C. A .Middleton , on behalf of the trustees named to the lat of Canada - were filed by Mr. Abbott,an
in the will, now mored the court for a grant of ex -Solicitor-Generalof that country , who was well
probate thereof to them as executors according known to the parties, and personally cognisant of
to the tenor. The question is , whether the all the facts. He stated that Mr. Babin , the hus
daties imposed by the will upon these gentlemen band of the deceased , had married again , and
who are named as trustees therein do or do not further, that, by the laws of Canada, no adminis
constitute them executors according to the tration was required , and that a husband was not
tenor, and whether the duties of executors are entitled , as in this country, to all his wife 's pro
not really imposed upon them by the will. The perty in the event of her predeceasing him and
whole estate is devised and bequeathed to them ; leaving no will; so that on the death of Mrs.
the gift to the son is an absolute gift, it being Babin intestate her children became, as he
only in the event of his not disposing of it by expressed it, ipso jure entitled to their mother's
deed or will that the gift orer is made to the property, the settlement having, by its own
son's children . That does not affect the question . | terms, become inoperative owing to Mr. Babin 's
The trustees, it is submitted , are executors re -marriage.
according to the tenor, and, as such , are entitled Bargrave Deane for the applicant.
to probate .
Butt, J. held that, as all depended in the first
Butt , J. - There are very great objections of place upon the question whether this gentleman
these grants according to the tenor. Whether had married again , and so forfeited his right
the fact of the son taking or not taking an abso under the ante-nuptial settlement, and it being
lute interest in the residue does or does not clear that, if he had not contracted any legal
affect the present question , what occurs to me second marriage he would be entitled, by virtue
is this : There is , in the will,no general direction of the settlement, to take the property, irrespec
to pay debts, but only a direction to pay one par tive of any question as to administration being
ticular debt. What you are clearly entitled to is or not being necessary by the law of Canada, he
& general grant of administration. I refuse could not take so serious a step as to deprive him
probate, but I make a grant of administration of this property, which consisted of 22761. Three
with the will annexed in favour of the trustees per Cent. Annuities, upon a single affidavit, how
named in the will. ever responsible and respectable the deponent
Solicitors for the applicants, Field , Roscoe, might be. He therefore directed that notice of
and Co. this application should be given to the husband
of the deceased .
(a) Reported by H. DURLEY-GRAZEBROOK,Esq., Barrister-at-Law .
Div.] TRÜBNER v. TRÜBNER AND CHRISTIANI - Re A PETITION ; Ex parte RUSSELL. [Dir .
Feb. 18.- Bargrave Deane renewed the applica
tion , and handed in an affidavit, proving that Mr.
Wednesday, Dec . 4, 1889.
Babin was duly served in America on the 14th Jan. Re A PETITION (Before
FOR
Butt, J.)
DISSOLUTION OF MARRIAGE ;
1890. No appearance had been entered to the Ex parte RUSSELL. (a )
citation , and he was not represented .
The PRESIDENT (Sir James Hannen ) directed Affidavit to verify petition - Divorce Court Rules
and Regulations, rule 2 - Swearing affidavit
that letters of administration to the personal British consul— 6 Geo. 4, c. 87, 8. 20 - 18 & 19
estate and effects in this country of Elizabeth Vict. c. 42, s. 1 - Matrimonial Causes Act 1858
Bayley Babin , deceased , be issued in favour of (21 & 22 Vict. c. 108 ), 8. 20 - Divorce Court Rules
the attorney of the intestate's children . and Regulations, rule 142 - Solicitor permitted
Solicitors : Wilde, Berger, and Moore. to verify petition - Form of order.
In a case where a husband proposed to petition
this court for a divorce from his wife by reason
DIVORCE BUSINESS . of her adultery, and the petitioner was the acting
British consul at a place in a non -Christian
Tuesday, Dec. 3, 1889. country , and was unable to leave his post, the
(Before Butt, J.). Court allowed his solicitor to verify the petition
TRÜBNER v. TRÜBNER AND CHRISTIANI.(a) to the best of his knowledge and belief, pending
Divorce citation and petition - Substituted service the filing of the proper affidavit by the petitioner
Co- respondent, an Austrian subject, resident in in compliance with rule 2 of the Divorce Court
| Rules
Switzerland - Swiss law - Service by registered and Regulations.
letter - Order . This was an ex parte application for the direc
tions of the court under the following circum
The Court ordered substituted service of the citation stances :
and petition in a suit for dissolution of marriage A husband, who was proposing to file his peti.
to be effected upon the co-respondent,an Austrian tion in this division for the dissolution of his
subject, by registered letter, where it appeared
that hewasliving with the respondent in a foreign | marriage on the ground of his wife's adultery,
was the acting consul for Her Britannic Majesty
country, the laws of which precluded personal at the Dardanelles .
service upon him .
This was a motion for substituted service upon By rule 2 of the Dirorce Court Rules and
the co -respondent of the citation and petition . Regulations an affidavit must accompany, and
| be filed along with , every such petition.
The petition was filed by the husband, Charles By the Acts 6 Geo. 4 , c. 87, s. 20, and 18 & 19
Otto Nicholas Albert Trübner, on the 16th Oct. Vict. c. 42 , s. 1, consuls were empowered to
1889, claiming the dissolution of his marriage administer
with Anna Trübner, his wife, on the ground of monial oaths in certain cases ; and the Matri
her adultery with Hector Christiani, the co Causes Act 1858 (21 & 22 Vict. c. 108),
respondent, who was an Austrian subject. s. 20, enacts (inter alia ) :
The respondent and co -respondent were living Provided that where there are no such persons as are
mentioned in the said Acts, such affidavits , declarations,
together at a house in Geneva, in the Republic of or affirmations may be made, declared , or affirmed ,
Switzerland, and on the 23rd Oct. 1889 the papers before any foreign local magistrate or other parson
were therefore sent to Her Britannic Majesty's having authority to administer an oath there.
consul at that place, for service upon the C. A . Middleton for the applicant. The diffi
respective parties. culty is, that we cannot say " there is no such
On the 30th Oct. 1889 the citation and an office person ” as a British consul at the Dardanelles.
copy of the petition were duly served upon the the petitioner being himself the acting British
respondent at 6 , Rue de Lausanne, Geneva. consul there. But he is not competent to swear
No valid service could be effected by the consul his own affidavit, for rule 142 of the Divorce Court
or his agents upon the co -respondents, it being Rules and Regulations expressly prohibits such a
contrary to the law of Switzerland to permit course, in these terms: " No affidavit is to be
service of any such process upon a foreigner, save deemed sufficient which has been sworn before
by the courts of his own country, and the person the party on whose behalf the same is offered .
effecting such service would have rendered him . . ." The proposed petitioner is unable, owing
self liable to be arrested . to his official duties, to leave his post and go to
P. E . Dove, for the petitioner, now moved the Gallipoli or some other place where there is
court,and asked that the co-respondent might be another British consul, forthe purpose of swearing
served by registered letter. the necessary affidavit before such other consul.
Butt,, J. - I make an order for substituted He is therefore constrained to apply to the court for
service upon the co-respondent by registered directions ; otherwise, he may find bimself in the
letter addressed to him at the address mentioned , unpleasant position , by-and-by, of having to
and by, another registered letter for him , to be commence proceedings de novo, by reason of the
addressed to the care of the respondent at the possible improper swearingof theaffidavit accom
sameaddress.. panying the petition .
Solicitor for the petitioner;.John Greenfield .. Butt, J. - Let the applicant's solicitor verifs
the petition to the best of his knowledge and
(a) Reported by H . DURJ.BY-GRAZEBROOK ,Esq.,,Barrister-at-Law . belief, and let him further give an undertaking
to bring in a proper affidavit by the petitioner at
some future time.
Solicitors : Lewis and Lewis.
| (a) Reported by H .DURLEY-GRAZEBROOK, Esq., Barrister-at-Les.
March 29, 1890.) THE LAW TIMES. ( Vol. LXII., N . S.- 187.
Div.] THEOBALD V. THEOBALD. [ Div .
Tuesday, Dec. 17, 1889. respondent opened a branch wine and spirit
(Before Butt, J.) business (in addition to the old business he was
then , and still is , carrying on ) at 546, Kingsland
THEOBALD v. THEOBALD. (a ) road. This he continued to carry on at a loss
Restitution of conjugal rights- Wife's petition until June 1888 , when it was finally closed . The
Decree Non -compliance- Petition for alimony total loss by the branch business amounted to
- Periodical payments - Matrimonial Causes 16901. 28. 5d . The accountant who examined the
Act 1884 (47 & 48 Vict. c. 68 ) - Mode of esti respondent's books apportioned this loss over the
mating husband 's income - Deduction for tem period from April 1884 to June 1888. 10141. 18.7d .
porary loss in business disallowed - Order for of this loss is thereby included in the last three
one-third of joint incomeduring joint lives. years during which the husband's income is
Fron and after the passing of the Matrimonial that assessed . It was argued on behalf of the wife
Causes Act 1884 (47 & 48 Vict. c. 68) the court no part of this loss should be taken into
may , at any time after the making of a decree account; but I have followed the accountant's
figures. It was further argued on behalf of the
for restitution of conjugal rights at the suit of husband
the wife,and upon the husband's non -compliance of a reversionarythat 501. receivable on 10001. mortgage
therewith , order the respondent to make to the interest should not be treated
petitioner such periodical payments as may be as income, as the interest thereon was not being
just, and such order may be enforced in the same enforced by the respondent against the mort
gagor. I have, however, treated that 501. as
manner as an order for alimony in a suit for income. The joint incomes (as corrected )
judicial separation .
There is no obligation upon a wife who has amounted , on the above figures, to 11801. 148. 5d .,
obtained a decree for restitution of conjugal and one-third of that would be 3931. 118. éd.
Deducting therefrom the amount of the wife's
rights, to proceed to have that decree turned into separate
one for judicial separation under sect. 5 of the remains, income, viz ., 1651. 18. 11d., there
Act. She may stand upon her decree for resti to his wifeas, the amount payable by the husband
the sum of 2281. 98. 7d . I therefore
tution , and is entitled to “ periodical payments " |
equivalent to the amount of permanent alimony torecommend that the husband be ordered to pay
towhich she would be entitled under a decree for andhistbat wife quarterly instalments of 571. 28. bd .,
the husband do, to the satisfaction of
judicial separation . the court, secure to the wife such periodical pay
Where a husband had failed to comply with a ment during the life of the wife, or during the
decree for restitution of conjugal rights, the joint lives of the husband and wife , as the court
Court, upon the wife's petition for an allowance,
ordered him to secure to his wife, during their may think fit."
joint lives, such a sum yearly , by periodical pay This report now came before the court, the
ments, as would make up the wife's income to an petitioner claining : (1) That the respondent's
amount equivalent to one-third of their joint income should be assessed at 10601. 48. 8d. ;
incomes ; and , in estimating the husband ' s (2 ) that the respondent's house property should
income,upon the usual basis of the preceding be assessed at 2431. 88. 4d .; (3) that the peti
three years, refused to allow any deduction what. tioner's house property should be assessed at
1651. 18. 11d .; (4 ) by making all amendments in
erer to be made on account of a loss sustained by the registrar's report consequent on the fore
him in a branch business which had been finally
closed prior to the date of these proceedings. going ; (5 ) that the annual amount to be paid by
This was a motion to confirm the registrar's the respondent to the petitioner should be
report, with certain variations, upon a wife's assessed at 3411. 38. ; (6 ) that the report be con
firmed in other respects, and that the respondent
petition for a permanent allowance, subsequent be ordered to secure to the petitioner. for her
to a decree for restitution of conjugal rights
which had not been complied with . life, the quarterly payment of851. 58. 9d.
On the 6th May 1889 the petitioner, Sarah Ann Inderwick, Q .C . (Bargrave Deane with him ) for
Theobald , obtained a decree in this court against the petitioner. The visual practice of taking the
her husband, James Jesse Theobald , for restitu average of the last three years' income of the
tion of conjugal rights , the order to be complied husband should not be strictly followed in this
with within fourteen days after service. case, because the loss sustained by him in his
On the 13th May 1889 that decree was per branch business has now entirely ceased , the
sonally served upon the respondent, but had not branch having been finally closed in June 1888 .
The loss thereby sustained, having been only
been complied with .
On the 13th June 1889 the wife presented a temporary, ought not to be taken into account
petition for permanent alimony. at all in ascertaining the husband's average
On the 10th July 1889 tbe respondent filed his income during the past three years.
answer thereto. Bauford , Q .C . (C . N . Crosse with him ) for the
On the 4th Dec. 1889 the registrar reported , in husband. In addition to the shop the respon
substance, as follows : That the husband 's total dent had been , and still is, carrying on , he started
average income for the past three years was a branch business at another address, but in con.
9821. 28. 6d. ; that the wife's separate income nection with the old business. The loss thereby
derived from the rents of some houses was incurred is a loss in his business of a wine and
1981. 118. 11d . (Subject to what follows, it was spirit merchant, and, in estimating his yearly
agreed that these figures should be corrected as income, that loss ought certainly to be taken
under, viz., husband's income, 10151. 128. 6d . ; | into account. When you are dealing with a man
wife's income, 1651. 18. 11d .) who has a fluctuating business, the practice is to
The report continued : “ In April 1884 the take the average of three years. The accountant
(6)Reported by H. DURLEY-GRAZEBROOK, Esq., Barrister-at-Law , I said the loss was to be spread over the five years
188 - Vol. LXII., N . 8.) THE LAW TIMES. (March 29, 1890.
Div.] THEOBALD V . THEOBALD . [ Div.
that the branch business was open , and he has the branch business was open . It appears from
apportioned three- fifths of the total loss for the the evidence that the business in which that loss
three years dealt with in the report. (Butt, J. was sustained had ceased to exist before this peri
This does not touch the principle, which is, that tion was before the registrar ; and he must, there
a man is to pay on what he has to pay with . It fore, ascertain at how much larger an amount the
has been usual to take three years as a fair limit income of the husband should be assessed ,having
of time to go back. If it appears that during regard to the fact that the loss has finally ceased .
those three years there has been a loss reducing Now , as to the next question . I cannot agree
his income from , say, 13001. to 9001. a year, but if with the view suggested by Mr. Bayford. The
it also appears that the loss is not a continuing Act of Parliament referred to (47 & 48 Vict. c.68,
loss, and that it has, in fact, altogether deter - sect. 2) provides as follows : “ From and after
mined , then it would be unfair to take the whole | the passing of this Act a decree for restitution of
of that loss into account.] He has had to find all conjugal rights shall not be enforced by attach
the money to cover the loss. That handicaps his ment,but where the application is by the wife
present business by reducing his capital to the the court may, at the timeof making such decree,
extent of 16901. Then , as to the next point. This or at any time afterwards, order that, in the erent
is only a temporary allowance in the nature of of such decree not being complied with within
alimony pendente lite. The statute does not say any time in that behalf limited by the court, the
that the order in such a case as this is to be made respondent shall make to the petitioner such
on the same lines as permanent aliinony after a periodical payments as may be just, and such
decree for judicial separation (sects. 2 and 3). order may be enforced in the same manner as an
[ BUTT, J . - It is in the nature of permanent order for alimony in a suit for judicial separation .
alimony.] What is said in sect. 5 is that, if the The court may, if it shall think fit, order that
respondent does not obey thedecree , the petitioner the husband shall, to the satisfaction of the
may thereupon institute a suit for judicial sepa court, secure to the wife such periodical pay
ration as for desertion. Sect. 4 gives the court ment.” It is contended on behalf of the husband
power to vary any order for the periodical pay . that under that section the court ought not to
ment of money by the respondent to the peti- | make an order for the periodical payments con
tioner. We do not object to a temporary order templated by and mentioned in the Act, to the
for the periodical payment of some allowance, extent of one-third of the income, and it is said
but we object to any order for a permanent that if that were done this section would be con
allowance. [ BUTT, J. - Sect. 4 affords you abun strued as giving to the wife more than she would
dant protection .] The allowance ought to be, get under a decree for judicial separation , for in
as is usually allotted in the case of alimony that case, althongh one-third would be taken as
pending suit, on the basis of one- fifth of the joint | the basis, it could not be secured to her as per
income. It has never yet been laid down by the manentmaintenance is secured under the Acts of
court that, in such cases as this, the basis should Parliament dealing with dissolution of marriage ;
be one-third . Ifthat is done, it would be putting that it cannot be intended that the wife should
the petitioner in a better position than if she had I get more under the Matrimonial Causes Act
got a decree for judicial separation , because, in 1884 than under the decree for judicial separa
the latter case, she could not get security for tion. I am by no means disposed to agree with
alimony. [Butt, J. - The Act of Parliament has that view of the practice. I think the wife is
rather held out to her a bait not to go on with entitled to take either one of two courses : First,
further ligitation . She is not bound to go on . she may, under the powers given to her by the Act
She may choose to rest upon her decree for resti. of 1884, institute a suit for judicial separation ,and
tution .] The fourth section does not give the she would, in that case, be entitled to alimony, but
court power to discharge the order, even if the not to have such alimony secured ; or, secondly, she
husband takes his wife back to live with him . may choose to rest on the decree for restitution,and
[ Butt, J. - I could temporarily suspend it.] | may apply to the court for a periodical allowance
There is no power to make the order for her life. I contemplated by the Act, and may have that
It is only in cases of divorce that the court has periodical allowance secured to her. I do not see
power to do that. There is no obligation upon a that there is anything incongruous in that. The
man to make provision for his wife after his husband having chosen to disobey the decree, I
death because he would not live with her during fail to see why the wife should have less than the
his lifetime. The order cannot be for longer than amount she would be entitled to under a decree
the joint lives . for judicial separation ; and furthermore, I do
Inderwick, Q .C . in reply. - The wife does not not see anything unreasonable in her having the
want a judicial separation . She wants her hus allowance secured to her pursuant to the Act.
Then arises a third question , namely, as to
band to come back and live with her . It is whether the sum or sums to be secured should be
entirely in the husband's power to put an end to
any order of the court by going back to live with so secured to the wife for her life or during the
joint lives of herself and her husband . It is
his wife. The allowance should be one-third of quite true that other statutes dealing with disso
the joint income. lution of marriage empower the court, in certain
Butt, J. - It is admitted that this report must cases, to secure the allowance to the wife for her
go back to the registrar for the amendment of life. I do not think I have any warrant or
the figures. With regard to the matters that authority to do that here. I therefore direct that
have been discussed before me, I am of opinion the respondent in this case do secure to his wife
that it is wrong to do what the registrar recom - the amount of the allowance, by periodical pay
mends, and to deduct from the estimated income | ments, during their joint lives. I hare stated the
of the husband the proportion of the loss he has principles upon which the registrar is to frame
sustained during three years out of the time that I his report, and under each of the three heads dis
April 5, 1890.) THE LAW TIMES . (Vol. LXII., N . 8. - 199
H . or L .] Nouvion v. FREEMAN . [ H . Or L .
cussed here to -day he is to deal as I have | Our case is in accordance with the principles
directed. of equity . [Lord Watson referred to Patrick v.
Solicitors for the petitioner, Clarke and Shedden , 2 È. & B . 14.] See also
Calkin . Russell v. Smyth , 9 M . & W . 810.
Solicitors for the respondent, Crosse and Sons. The appellant is a judgment creditor both for the
debt and costs, and thougb his claim for the prin
cipaldebtmay be taken away by other proceedings,
his claim to the costs cannot be. There was a
House of Lords. personal obligation on Henderson to pay. Nothing
has been done in “ ordinary ” proceedings in
Nov. 21 and 22, 1889. Spain since April 1884 , and the position is one
(Before Lords HERSCHELL, Watson, BRANWELL, of Rigby
great hardship on the appellant.
, Q .C ., K . Digby, and J. D . Davenport,
and ASHBOURNE.)
who appeared for the respondents , were not
Nouvion v.FREEMAN. (a)
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. called upon to address the House.
At the conclusion of the argument for the
Foreign judgment- Law of Spain - Executive appellant their Lordships gave judgment as
judgment- Whether final and conclusive. follows :
By the law of Spain , a plaintiff in whose favour Lord HERSCHELL. - My Lords: This appeal
documents of a particular character have been arises in an action brought by the appellant, the
executed may commence " executive ” proceedings, plaintiff below , for the administration of the
in which the defendant can only raise defences estate of a deceased gentleman named Henderson .
which do not dispute the original cause of action , In order tɔ found his claim to an order for the
and the plaintiff, if he succeeds, obtains a administration of that estate it became necessary
" remate ” judgment, which is an order for for him to show that he was a creditor of the
execution to issue for a fixed sum of money and deceased . The case presented by him for the
costs. Either party may , nevertheless, take
“ ordinary,” or “ plenary ” proceedings in purpose of making that out was, that he had
obtained a judgment of a foreign court upon
respect of the same subject-matter , in which all
defences are open to the defendant, and the which he was entitled to sue in this country , and
which in this country established the existence of
" remate " judgment cannot be pleaded as res a debt. The court ordered under those circum
judicata, or as in any way affecting the rights stances that there should be first tried the issue,
of the parties. “ whether the judgment or decree " upon which
Held (affirming the judgment of the court below ), he relied, one pronounced on the 5th April 1878,
that such “ remate ” judgment was not a final " and the other judgments or decrees whereof
and conclusive judgment which could be made particulars have been delivered, or any and which
the foundation of an action in this country . of them , are orders or judgments upon which the
This was an appeal from a judgment of the claim of the plaintiff in this action , or some and
Court of Appeal (Cotton , Lindley , and Lopes, what part of it, can be sustained ." It appears
L.JJ.), reported in 58 L . T. Rep. N . S . 242, and that Mr. Henderson , the administration of whose
37 Ch. Div. 244 , who had reversed a decision of estate is in question , had purchased certain
North , J., reported in 56 L . T . Rep. N . S. 829, and properties in the district of Seville of the
35 Ch. Div . 704. plaintiff, Mr. Nouvion, and that the deeds by
The action was brought by the appellant, as a which those properties were conveyed contained
creditor of one W . Henderson , deceased , for the an obligation to make certain payments, and
administration of his estate, under circumstances were registered in the registry of the district of
which appear from the judgment of Lord San Roman ; and tbat where deeds of that
Herschell, and from the reports in the courts description are so registered , according to the law
below . The respondents were Henderson's of Spain the person who is entitled to payment
executors . under such deeds can obtain what is called an
Napier Higgins, Q .C., Finlay, Q .C ., and Yate “ executive ” judgment. It is necessary to state
Lee, for the appellant, contended that he was distinctly what the nature of that judgment is,
entitled to sue on the judgment which he had because I think it will be found that the decision
obtained in Spain . That judgment makes him of your Lordships must be determined by that
a judgment creditor. It was a final and con consideration. In an action of this nature only
clusive judgment, and the judgment debtor 's a very limited number of defences can be raised
only course was to appeal. He could not prevent by the person sued. He cannot impeach the
the appellant from getting execution under his | instruments upon which the action is founded , or
judgment: he could only compel him to give show that they were obtained by fraud , or that
security in case it should be reversed : on any other ground they did not properly form
Scott v. Pilkington , 2 B. & S. 11. the basis of an obligaticn on his part. He can
The fact thatan appeal is pending is no bar to an I only defend himself by such defences as are open
action on the judgment, though itmay be a reason to him on the assumption that the deeds were
for staying execution . As to the enforcing of valid , and in the first instance did create the
foreign judgments by the courts of this country , obligation . He may show that there has been a
see waiver, or that he has discharged the obligation
Williams v . Jones, 13 M . & W . 623 : by payment; but substantially I think those are
Copia v. Adamson , 31 L . T . Rep. N . S. 212 ; L . Rep . the only defences open to him . It is open to
9 Ex. 345 ; affirmed on appeal, 33 L , T . Rep . N . S . either of the parties to such an instrument to sue
560 ; 1 Ex. Div . 17 . in the same court in another form of action ,which
(a)Reported by C. E. MALDEN, Esq., Barrister-at-Law. I is called a declaratory or plenary action , and
VoL LXII., N . S., 1586 ,
190 _ Vol. LXII., K .8.] THE LAW TIMES. [April 5, 1890.
H . Op L .] Nouvion v. FREEMAN . [H . OP L.
# hich is said to be the ordinary course not as į judgment is sufficient to entitle him in the courts
meaning that the other is not a course which can ofthis country to a judgment for his debt, as being
only be taken under exceptional circumstances, a creditor of the deceased person ,Mr. Henderson .
but that the one conforms to the general and Now , there can be no doubt that, in the courts
ordinary rules of procedure in an action in the of this country, effect will be given to a foreign
Spanish courts, and that the other is a special judgment. It is unnecessary to inquire upon
procedure allowed in particular cases. In such a what principle the courts proceed in giving
plenary action , which is open to either of the effect to such a judgment, and in treating it as
parties, every defence which may be available is sufficient to establish the debt. Reliance was
open as well as every consideration establishing placed upon a dictum by Parkeand Alderson, BB.
the ground of action ; and such a plenary action in the case of Williams r. Jones (13 M . & W . 628 ),
may be instituted by either of the parties to the where the law is thus stated : “ Where a court.
executive action ; that is to say, the party against of competent jurisdiction has adjudicated a
whom the decision has been pronounced in the certain sum to be due from one person to another,
executive action , be he either plaintiff or defen - | a legal obligation arises to pay that sum on
dant, is at perfect liberty to sue in a plenary which an action of debt to enforce the judgment
action for the purpose of obtaining a declaration | may be maintained.” But it was conceded ,
of the rights of the parties ; and in such a and necessarily conceded , by the learned counsel
plenary action the fact that a judgment has been for the appellant, that a judgment, to come
delivered in an execntive action cannot be set | within the terms of the law as properly laid down ,
up as at all affecting the rights of the parties must be a judgment which results from an
either in the way of proof, or of title to succeed adjudication of a court of competent jurisdiction,
in the plenary action. The same points which such judgment being final and conclusive. I
have been decided in the executive action can shall, of course, have something to say upon
again be raised in the plenary action, as well the meaning which must be given to those
as other questions which were not open in the words, but the general proposition in that form
executive action . No effect is given , even in the is not disputed by the learned counsel for the
court in which it was pronounced, and in whiclı appellant. They contend that this judgment is
afterwards the plenary action may be pending, final and conclusive, and no doubt in a certain
to the judgment in the executive action as being sense that must be conceded . It puts an end to
res judicata and final, and as concluding the and absolutely concludes that particular action .
rights of the parties upon any point whatever. About that there can be no manner of doubt; in
In the present case the plaintiff, Mr. Nouvion , that sense it is final and conclusive. But the
who was a party to the agreements which I have same may be said of some interlocutory judg .
mentioned , which had been duly registered, ments upon which there can be no question that an
broughtan executive action , and in that executive action could not be maintained ; they do settle
action a decree was pronounced in these terms : and conclude the particular proceeding, the
“ Let an order of execution be issued against the interlocutory proceeding , in which the judgment
property and goods ofMr. William Henderson, for is pronounced . It is obvious, therefore, that the
the principal amount of697 ,135 reales 60 centimos, mere fact that the judgment puts an end to and
and also for the amount of the legal interests finally settles the controversy which was in
thereon , from the date of default being made by question in the particular proceeding, is not of
notmeeting " certain drafts which are there men - | itself sufficient to make it a final and conclusive
tioned. It appears that, owing to the absence of judgment upon which an action in the courts of
Mr.Henderson from Spain , it became necessary, this country may be maintained , when such
in accordance with the procedure of the Spanish judgment has been pronounced by a foreign court.
courts, to send letters requisitorial to this I think that, in order to establish that such a judg
country , that is to say, to Scotland, where Mr. ment has been pronounced , itmust be shown that,
Henderson was resident,and to obtain from the in the court by which it was pronounced , it con
Spanish consul in Scotland a return to those clusively and finally and for ever settled the
letters, which intimated that Mr. Henderson had existence of the debt of which it is sought to be
not discharged , as he would then have had an made conclusive evidence in this country , so as
opportunity of discharging, the liability which to becomeres judicata between the parties. If
was declared by the judgment. Thereupon , Mr. in the same court which pronounced it it is not
Henderson having intervened , and having conclusive, so that, notwithstanding such a
alleged that the debt was not due by reason of judgment, the existence of the debt may, between
a promise of the plaintiff not to sue him , and the same parties, be afterwards contested in the
that having been decided against him , a decree same court, and upon proper proceedings being
was made, which I think may properly be termed taken and such contest being adjudicated upon it
a final decree in that action, that the distraint may be declared that there existed no obligation to
be carried into effect, “ and in virtue thereof, pay the debt at all, then I do not think that &
sale by auction be made of the property attached , judgment which is of that character can be
and out of the proceeds thereof entire and com - regarded as finally and conclusively evidencing
plete payment to the executing plaintiff of the the debt and so entitling the person who has
amount of the principaldemanded ” with interest. obtained the judgment to claim a decree from our
The plaintiff relies upon that judgment, as courts for the payment of that debt. The
being sufficient to entitle him , when he sues | principle upon which I think our enforcement of
upon it in the courts of this country , to a foreign judgments must proceed is this : that, in
judgment for the amount of the debt for which a court of competent jurisdiction , where, accor
it was ordered that execution should issue; and ding to its established procedure, the whole merits
the only question in this case is whether, under of the case were open at all events to the parties,
the circumstances which I have mentioned , that however much they may have failed to take
April 5, 1890.) THE LAW TIMES. [Vol. LXII., N. 8.– 191
H. Or L.] NOUVIox V . FREEMAN . H . Or L .
advantage of them , or may have waived any of 1 of the parties, and by which must be determined
their rights, a final adjudication has been given ultimately the obligation to pay, would be open
that a debt or obligation exists which cannot to consideration and could be dealt with by the
thereafter in that court be disputed ,and can only courts, and finally and conclusively settled . I
be questioned in an appeal to a higher tribunal. do not therefore see that there is any wrong or
In such a case it may well be said that, giving any hardship done by bolding that a judgment
credit to the courts of another country, we are which does not conclusively and for ever between
prepared to take the fact that such adjudication the parties establish the existence of a debt in .
has been made as establishing the existence of the that court cannot be looked upon as sufficient
debt or obligation . But where, as in the present evidence of it in the courts of this country . Very
case, the adjudication is consistent with the non ingenious arguments have been urged upon your
esistence of the debt or obligation which it is Lordships by the learned counsel for the appellant,
sought to enforce, and it may thereafter be and they have strenuously contended that the
declared by that tribunal that there is no proper course would be to permit such a judgment
obligation and no debt, it appears to me that the to be sued upon , and that justice might be done
Fery foundation upon which the courts of this by stayirg proceedings as might be done in the
country would proceed in enforcing a foreign case of an English judgment sued upon, which
judgmentaltogether fails. It has been suggested was under appeal. But no authority has been
that a judgment obtained in an “ executive ” cited , no case has been referred to, which
action may be regarded as analogous to a judg. supports the view put forward on the part of the
ment obtained in a common law action in the appellant that such an action upon such a
times prior to the Judicature Act, the execution | judgment as this could be maintained , and I
of which might be restrained by a court of equity, | certainly cannot advise your Lordships to make
and you might have prevented the plaintiff who such a precedent, because it appears to me, after,
had succeeded in such an action from obtaining giving due weight to all the arguments of the
the fruits of his judgment. I do not think that learned counsel for the appellant, that on the
such an analogy is a complete one ; but, even if whole the result would, as general rule, be likely
it were more complete than I think it to be , it to be mischievous and to work injustice rather
appears to me that it would afford very little than justice between the parties. For these
assistance to your Lordships unless we could reasons I move your Lordships that the judge
know what had been the course adopted with ment appealed from be affirmed and the appeal
regard to such judgments in countries in whose dismissed with costs.
system of law the same force and effect is given Lord WATSON . - My Lords : This case has been
to foreign judgments as is given in the courts of very ably argued for the appellant. But the
this country . Upon that point we have had no reasons assigned for the judgment of the Court
information whatsoever. Then it is said that of Appeal are to mymind so satisfactory, that I
such & judgment would be analogous to a agree with your Lordships in thinking it ought
judgment which has been obtained upon not to be disturbed . That the court of Seville
which a suit may be instituted in the courts of had jurisdiction to determine all questions
this conntry, even although an appeal may competently raised between these parties, when
be pending. It appears to me that there is duly convened before it, in relation either to the
a vital distinction between the two cases. constitution or subsistence of the contract upon
Although an appeal may be pending, a court of which the appellant relies ; and also that the
competent jurisdiction has finally and con courts of England would recognise and give full
clusively determined the existence of a debt, and effect to any final and conclusive judgment of
it has none the less done so because the right of the Spanish court upon these questions, are
appeal has been given whereby a Superior Court propositions neither disputed by the respondents
may overrule that decision. There exists at the nor controverted in the opinions delivered by the
time of the suit a judgment which must be learned judges of the Appeal Court. The only
assumed to be valid until interfered with by a question which the facts of this case present for
higher tribunal, and conclusively establishes the decision is, whether the decree of the 5th April
existence of the debt which is sought to be | 1878, obtained by the appellant in what is termed
recovered in this country . That appears to me an “ executive " proceeding, comes within the
to be in altogether a different position from that principle established by decisions comparatively
which exists in the present case, where the | recent, of which Godard v. Gray (24 L . T. Rep .
judgment is a " remate ” judgment, and where N . S. 89 ; L . Rep. 6 Q . B . 139) and Schibsby v.
the very court which procounced the “ remate " Westenholz (24 L . T. Rep. N . S . 93 ; L . Rep . 6 Q . B .
judgment (not the Court of Appeal) may deter 155 ) are leading examples. The decree of the
mine, if proper proceedings are taken, that the 5th April 1878 appears to me to be deficient in
debt for which this " remate " judgment is sought certain particulars which are necessary in order
to be used as conclusive evidencehas no existence to bring it within that principle. It is not
atall. The plaintiff in such a suit, an executive necessarily a decision which exhausts the merits
suit, is not really, by the decision which is now of the controversy between the parties, because
under appeal, deprived of his rights. He may in “ executive ” proceedings the court can
still sue upon the original cause of action . Of entertain no plea stated by the defendant which
course it may happen that in this particular case does not go to payment, satisfaction, or waiver
such a suit is barred by lapse of time, but that is of the plaintiff' s claim . What, in my opinion ,
an accident. The right of the plaintiff to sue on constitutes a still graver defect is the fact that
his original cause of action is not at all interfered the same court which issued the " executive "
with by the judgment which has been pronounced ; decree has jurisdiction in an “ ordinary ” or
and in such an action , if it were brought, all " plenary ” action to entertain and dispose of
questions arising upon which depend the rights | any and every plea which the original defendant
192 _ Vol. LXII., N . 8.) THE LAW TIMES . [April 5, 1890.
H . OF L.] NOUVION v. FREEMAN. [ H . Or L .
may think fit to urge against his liability, and in 1 not know , nor do I think it material; but
that action can re-try those pleas which have Parke, B ., in the judgment be pronounced , does
already been put forward and repelled in the not refer to the comity of nations as a reason ,
“ executive " suit. If the decision of the court but he speaks of foreign judgments, and of
in the " plenary ” differs, in whole or in part, colonial judgments, and of judgments of inferior
from that pronounced by it in the " executive ” courts, and he seems to consider - I believe he
suit , the latter is, to the extent of that difference, says so, but at all events if he does not say so
superseded or nullified. The English cases to directly he says that from which I infer that his
which I have already referred establish a more opinion was- that where the judgment of a com
liberal rule in regard to the enforcement of petent court had been given , it showed that there
foreign judgments than is to be found in the was a debt, and that, that being so, there was a
older authorities ; but no decision has been cited legal obligation, and I am somewhat inclined to
to the effect that an English court is bound to think he was of opinion there was a moral
give effect to a foreign decree which is liable to obligation on the part of the person against
be abrogated or varied by the same court which whom it was decreed cr adjudged that there
issued it. All the authorities cited appear to was a debt, to pay it. But how is that
me,when fairly read , to assume that the decree applicable to a case of this description ? How
which was given effect to had been pronounced can it be said that there is a legal obligation
causâ cognita , and that it was unnecessary to on the part of a man to pay a debt, who has
inquire into the merits of the controversy a right to say, “ I owe none, and no judgment
between the litigants, either because these had has established against me that I do ” ? I
already been investigated and decided by the cannot see. On that short ground, it seems to
foreign tribunal, or because the defendant had me that this judgment ought to be affirmed .
due opportunity of submitting for decision all There are, however, one or two other obser.
the pleas which he desired to state in defence. vations I should like to make. It was said that
The decree need not be final in the sense that it my argument, or such an argument as I am now
cannot be made the subject of appeal to a higher using (for it is not my argument in particular),
court; but it must be final and unalterable in ! would equally apply to all cases where there
the court which pronounced it ; and, if appeal. was a possibility of error being brought. Not
able, the English court will only enforce it 80. There is no presumption that error may
subject to conditions which will save the interests exist in the proceedings; the presumption is
of those who have the right of appeal. The the other way- the presumption is, that a court
case of Patrick v . Shedden (2 E . & Bl. 14 ) appears of competent jurisdiction has given a right
to me to be very much akin to the present. judgment. But there is no such presumption
There the executive decree of the Court of here ; on the contrary, we learn that it is per
Session for costs was final in this sense, that it fectly possible, not merely that what was decided
was not appealable, and that it was enforceable | in the court may be reversed , but that there
in Scotland ; but the Court of Queen 's Bench may be questions raised between the parties
refused to recognise it as a final and conclusive which could not be decided in that proceeding.
judgment, mainly on the ground that it might There is an essential difference, therefore, be
be, at any time, recalled or modified by the tween the case where a court of competent juris
Court of Session on just cause shown. In my diction has entertained the controrersy between
opinion , there is no real difference in principle the parties, and come to a conclusion which is
between a court retaining the power to alter its to be presumed to be accurate, and this case
own decree by an order in the same suit, and its where there is no ground for saying that all
retaining the power to defeat its operation by an the controversies between the parties have been
order pronounced in another suit relating to the decided . Then another argument that was urged
same debt. I accordingly concur in the judg . was this : it was said , “ Why, if this argument
ment proposed . is a good one, there never was a judgment in
Lord BRAMWELL. — My Lords : I think this an English court upon which an action ought
judgment should be affirmed . I think the pro to have been maintainable, because it was always
ceeding in the Spanish court which is relied on possible that it might be set aside by proceed
was final, and I think also that it was a personal ings in equity.” Really I do not think any
judgment, as far as such a judgment could be argument can be founded upon , what I may
personal; but I think I am right in reading it, take the liberty now of calling, the preposterous
not as a judgment that a debt is due, butas an condition of things that existed in England
order that execution do issue. Then we know before the Judicature Act, where one court gave
that this is, what I may call for want of a better a final judgment finding a debt due, or damages
expression , a defeasible judgment ; that is to say, due, or what not, and another court said : “ Well,
the defendants who are subject to the order that that is all very well; we find no fault with the
execution may issuemay take proceedings which judgment being right in point of law - it was
would have the effect of defeating or nullifying | perfectly right in point of law ; but if you , the
or making an end of the judgment or order,which plaintiff, in whose favour it was given enforce
bas been pronounced , that execution may issue. it , we will put you in prison .” Really , I think
It seems to me that that is not such a judgment that some twenty or thirty years hence, when
as can be (to use the old -fashioned expression the present generation of lawyers have ceased
which Parke, B . used ) the subject of an action to exist,and there is another one, it will scarcely
of debt; that is to say, now that we have be believed that such a state of things did exist
got rid of the forms of action , the subject in a civilised country . I do not say this for the
of an action in a court in this country . purpose of finding fault with the state of things
Whether what is called the comity of nations which is now happily at an end, and was
bad anything to do with the matter I do l brought about, I dare say, by persons who had
April 5, 1890.] THE LAW TIMES. (Vol. LXII., N . 8. - 193
H . OP L .) NOUVION V . FREEMAN . [ H . OF L .
very sincere desires to improve the jurisprudence before us and before those tribunals was : is this
of the country ; but I say it for this purpose, a judgment which can be regarded as coming
that I do not think you can found any argument within the definition of a final and conclusive
upon such a condition of things as then existed . judgment ? I entirely concur that in a sense this
Then there was a matter brought forward pro must be regarded as a final judgment, but only
minently by Lord Ashbourne, which I think is in a limited and narrow sense. It is a summary
entitled to great consideration , and that was judgment, it is an executive judgment, it is a
that, if we should give judgment for this “ remate " judgment. In its terms there is
plaintiff here, he would be better off than he nothing to contradict the fact that there has been
would be if there were a mere affirmance of a final judgment; but then it is a judgment
the judgment with all its consequences in which could only be encountered by a certain
Spain, because in Spain the judgment that limited number of pleas of a certain prescribed
he has got is liable, as I have said before, toand definite character. It was not a judgment
be defeated ; but, if judgment were given for upon a claim which could be met by pleas upon
him here, there would not be that liability to the merits, going exhaustively into all the topics
be defeated by proceedings being taken here upon which the defendant was entitled to rely if
analogous to the plenary proceedings in Spain . he had the wide scope open to him which in any
Well, I think that is a cogent argument. It plenary suit a litigant would have, for he would
occurred to me that perhaps it might be met in be entitled to have the whole merits discussed
this way : that if a judgment in a foreign court or before a judgment was given against him .
in an English court were reversed upon error, and Therefore in no sense can this be regarded as an
an action upon the judgment had been brought adjudication in a cause where the merits were, or
in an English court and judgment given in that where they could be, tried ; and I am not aware
action on the judgment, then afterwards, when of a single case where a foreign judgment has
the original judgment was reversed upon error, I been given effect to in this country where the
suppose there would , in such a case as that, be adjudication was had in a case where the merits
some remedy for the defendantwho had got rid could ex necessitate rei not have been discussed .
of the first judgment against him . By auditâ No such case has been suggested in the course of
querelá I should think he would be entitled to get the argument, and none was suggested in the
rid of the second judgment against him . It is courts below . This is a peculiar judgment.
not worth while going into it minutely. The There is no analogy to it that I know of in our
remedy of auditâ querelâ is now abolished , but law ; none has been stated . A couple of cases
there is a rule which says that the court may were mentioned as approximations to an analogy ;
give relief (I should suppose that that would but no judgment known to our law or to the law
mean that they must give relief) where the of Scotland has been suggested which is at all
original defendant would have got relief upon really analogousto this peculiar form of “ remate "
audita querelâ . But it is not the samething. He judgment, which may be nullified, which may be
would have a judgment against him which he paralysed , which may be reduced to a state of
would have to get rid of ; so that, in the first absolutely worthless paper by a proceeding in
instance, he would have to get rid of the which the merits can be gone into. In other
judgment in the Spanish court, and then he words, we are asked to say that this “ remate ”
would have to come to England to get rid of the judgment shall be accepted by our laws as final
judgment by proceedings in the nature of the old . and conclusive, when the laws of Spain itself,
fashioned auditâ querela . I think, therefore, he which produced this “ remate " judgment, say
would be worse off if judgmentwere given against that it is one which may be absolutely swept
him , as is prayed in this action , than he is at pre away when proceedings comebefore the court in
sent by the proceedings in Spain. It perhaps is not which the merits can be gone into . It would
of any rery great consequence ; but I cannothelp I venture to think, a very startling result ifbe, in
thinking that it is worth mentioning, at all events this country we should hold this executive
for the pupose of showing thatwe are not dealing summary “ remate ” judgment to be final
with a judgment like a judgment in proceedings conclusive, while in the municipal institutionsandof
where all the questions can be gone into, which is | the country which has sent out this judgment it
presumably right,and has decided all the possible would not even be regarded as res judicata . That
controversies that the parties have thought fit to is a point referred to with force and persuasive
bring before the court. Upon these grounds, my ness in the arguments addressed to the court
Lords, I think this judgment should be affirmed. below , and most powerfully in the judgment of
Lord ASHBOURXE. - My Lords : I also am of Lindley , L . J., and I adopt everything that he
opinion thatthe judgment under appeal is correct said . It strikes my mind as being to the last
and should be affirmed . The reasonswhich have degree surprising to listen to a suggestion that
led me to that conclusion have already been when the laws of Spain do not regard this
expressed by such of your Lordships as have judgment as of such a binding character that it
spoken. It is conceded, there is no controversy; can be relied upon in any proceeding as res
that a foreign judgment will not be upheld in judicata , the very minute the intervention of a
this country and made the foundation of relief foreign country is invoked it becomes so sacro
here, unless it is final and conclusive. There is sanct that it is to be regarded by us as final and
no question about that. That has been treated conclusive. It appears to me to be almost a
as axiomatic in the arguments on both sides contradiction in terms to make the sugges
in the courts below and the argument | tion . For these reasons I entirely concur in
addressed to us on behalf of the appellant, | the decision at which your Lordships have
and in the judgment of North , J., and in all the arrived .
judgments of the learned judges who sat in the Order appealed from affirmed , and appeal
Court of Appeal. The sole controversy in law I dismissed with costs.
194 - Vol. LXII., N . 8.] THE LAW TIMES . (April 5, 1890.
H . OFL.) MIDLAND RAILWAY COMPANY v. ROBINSON . [ H . OF L .
Solicitors for the appellant, Ewbank and appellants notice that, unless they were prepared
Partington. to treat for the payment of compensation , the
forthwith be
Solicitors for the respondents, Freeman and working of the minerals would
Bothamley . commenced , with the result that all traffic on
the railway would be stopped . It appeared
that the minerals in question were principally
May 2, 3, and Dec. 13 , 1889. ironstone and limestone, and that the local
(Before Lords HERSCHELL,Watson ,FITZGERALD,(a ) custom was to work such minerals from the
and MACNAGHTEN .) surface. The appellants, upon the receipt of the
respondent's notice, moved before Chitty, J. for
MIDLAND RailwAY COMPANY v. Robinson. (6) an interim injunction to restrain the respondent
ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. until the trial from working the minerals so as
Railway company - Mines - Minerals lying under to injure the railway, and from working such
or near railway - Railways Clauses Consoli minerals at any time otherwise than for the
dation Act 1845 (8 8. 9 Vict . c. 20 .), ss. 77 and 78 . beneficial working thereof as and when the same
The word “ mines” in sect. 77 of the Railways could be beneficially worked . The railway com .
Clauses Act 1845 , is to be interpreted in thewidest pany did not give the counter-notice referred to
sense that can properly be given to it, and does in sect. 79, but contended that the respondent
: not apply only to those mineralswhich ,according was not justified in proceeding under the notice
to the custom of the district where they are situate , given by him , becanse his object was to force the
would ordinarily bewon by underground work railway company to compensate him for mines
ings, but comprehends all beds or strata of which were not workable at a profit. Chitty, J.
minerals, without any reference to the method of was of opinion that there was nothing to show
working them . any malicious intention on the part of the
respondent, or any intention of working the
Great Western Railway v. Bennett (16 L. T. Rep. minerals
N . S. 186 ; L. Rep . 2 H . of L . 27) followed . in any other manner than was right and
Provost of Glasgow v. Farie (60 L. T . Rep. N . S. his judgmentaccordingly
proper,and refased the motion , and
274 ; 13 App. Cas. 657) discussed . was affirmed on appeal as above
The owner of minerals lying under or near a rail. mentioned . The question was also raised whether
: way may give notice, under sect. 78 of the Rail the word “ mines ” in sect. 77 of the Act included
ways Clauses Act 1845 , of his intention to work such minerals as could only be worked from
them , though his intention is not to work them the surface, or was restricted to underground
himself, but only by his lessees or licensees, workings only.
provided that he has a bona fide intention of 80 Rigby, Q .C ., Sir A. Watson , Q .C ., W . P. Beale,
working them . Q .C., and Baker appeared for the appellants.
Judgment of the Court below affirmed, Lord Sir H . Davey, Q .C ., Romer, Q .C ., P. Gye, and
Macnaghten dissenting. Radcliffe for the respondents.
This was an appeal from a judgment of the Court
ofwhoAppeal (Cotton , Lindley, and Lopes L .JJ.), The following authorities were cited in the
had affirmed a judgment of Chitty, J. course of the arguments :
The case is reported in 57 L . T . Rep. N . S. 901, Diron v. Caledonian Railway Company, 7 Court
and 37 Ch. Div. 386 . Sess. Cas. 4th series, 216 ; affirmed on appeal,
The case raised the question whether the owner 43 L . T. Rep . N . S. 513 ; 5 App . Cas. 820 ;
of minerals beneath a railway is entitled , under Darvill v. Roper, 3 Drew . 294 ;
the Railways Clauses Act 1845 (8 & 9 Vict. c. BellCh v.. 303
Wilson
; , 14 L. T. Rep. N . S. 115 ; L . Rep. 1
20) sect. 78 , to serve the company with notice of Provost of Glasgow v. Farie, 60 L. T. Rep. N . S .
his intention to work such minerals, and thereby 274 ; 13 App. Cas. 657 ;
coerce the company into an immediate purchase
of the minerals, notwithstanding that he may not Ch . 699 ; 27 L. T. Rep. N . S. 291; L. Rep. 7
Hext v. Gill,
have a bonâ fide intention of immediately working Smith v. Great Western Railway Company , 37
L . T . Rep . N . S. 645 ; 3 App. Cas. 165 ;
the same. By the Railways Clauses Act 1845, Midland Railway Company v. Haunchwood Brick
sect. 78 enacted
, it is that notice of his intention and Tile Company, 46 L . T. Rep . N . S . 301 ; 20
to work the minerals shall be served on the com Ch . Div. 552 ;
pany by the owner if he be desirous of working Wheeldon v. Burrows, 41 L . T. Rep. N . S. 327 ; 12
the same; and sect . 79 provides that, if before Ch . Div. 31 ;
the expiration of thirty days the company do not Rosse v. Wainman , 14 M . & W . 859 ;
Errington v. Metropolitan District Railway Com
express their willingness to treat with the owner pany, 46 L . T . Rep . N . S. 443 ; 19 Ch . Div. 559 ;
for payment of compensation , it shall be lawful Great Western Railway Company v. Bennett, 16
for the owner to work the minerals himself. The L. T. Rep . N . S. 186 ; L . Rep. 2 H . of L . 27 ;
respondent was the owner of mineral estates Caledonian Railway Company v. Sprot, 2 Macq.
H . of L . 449 ;
extending for a considerable distance on either Great Western Railway Company v . Fletcher , ?
side of the appellants' railway, and also of the L . T . Rep . N . S. 803 ; 5 H . & N . 689 ;
minerals beneath about a mile and a half of the Earl of Jersey v. Guardians of Neath , 22 Q. B . Div.
railway. The respondent gave the appellants 555 ;
notice of his intention to work the whole of the PouQ ntn
. B .eyDivv .. 832
Clayto
; n , 49 L . T. Rep . N . S. 283; 11
minerals beneath the railway, but admitted that Davis v. Treharne, 6 App . Cas. 460 ;
it was his intention to immediately work a small Aspden v . Seddon , 32 L. T. Rep. N . S. 415 ; 36 L.
portion only of the minerals, and had given the Î . Rep. N . S . 45 ; L . Rep . 10 Ch . 394 ; 1 Ex. Div .
496 ;
(a) Lord Fitzgerald was present during the argument, Love
but died before the House gave judgment, 286 ;v. Bell,51 L. T. Rep . N . S. 1; 9 App . Cas.
(6) Reported by C. E. MALDEN, Esq., Barrister-at-Law . Buchanan v. Andrew , L. Rep. 2 H. L. Sc. 236 ;
April 5, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 195
H . OF L .] MIDLAND RAILWAY COMPANY v. ROBINSON. [ H . OF L .
Jamieson v. North British Railway Company, 6 | then arrived at. I desire only to say that, when
Sco. L. Rep. 188 ; I stated that, in my opinion, the reservation
Elliot v. North-Eastern Railway Company, 10 H , of extended
L. C. 333 ; “ to all such bodies of mineral sub
Reg. v. Dunsford , 2 Ad. & Ell. 568. stances lying together in seams, beds, or strata ,
At the conclusion of the arguments their as are commonly worked for profit and have a
Lordships took time to consider their judgment. value independent of thesurface of the land,” I did
not intend by these latter words to suggest that
Dec. 9.– Their Lordships gave judgment as the value of the mineral substances at the time
follows : of the reservation was the test whether they
Lord HERSCHELL. - My Lords: The main ques were reserved or not. I used them in order to
tion in this case is whether certain beds of emphasise the fact that it was not every scattered
ironstone and limestone lying under and near the piece of mineral lying under the land that could
railway of the appellants are tbeir property or be called a " mine," but only mineral substances
the property of the respondent. The appel lying in seams, or beds, or strata . In dealing
lant company, the Kettering , Thrapstone, and with this case it must be remembered that all
Huntingdon Railway Company, whose railway that your Lordships have to do is to interpret the
and undertaking are now under statutory powers words of this enactment, and not to lay down (even
worked by the other appellants, the Midland if it were possible) any general rule as to the
Railway Company, purchased from the respon interpretation of the word “ mines." I doubt
dent's father and predecessor in title, in the year whether much assistance is to be obtained from
1865, certain land on which a portion of their the cases in which a construction has been put
railway has been constructed . The purchase was upon that word in instruments embodying
made by virtue of the company's Act passed in merely agreements between the parties to them ,
1862 which incorporated the Railways Clauses unaffected by any statutory enactment, In such
Consolidation Act 1845. The grant of the land agreements, in the absence of a distinct indication
contained no special provisions relating to the of the contrary intention , it is always to be
mines and minerals under the same. This being assumed that the reserved mines are only to be
SO, sect. 78 of the incorporated Act operated to worked in such a manner as is consistent with
except from the grant any “ mines of coal, | the surface remaining undisturbed . And if this
ironstone, slate, or other minerals , except such be true of minerals lying deep below the surface,
parts thereof as were necessary to be dug or it would be obviously out of the question to
carried away or used in the construction of the | permit it to be disturbed by winning minerals
works.” It is admitted that there lay beneath which can only be wrought by surface operations.
the lands purchased , at depths varying from six But in the case of mines reserved under sect. 77
to thirty -six feet, beds of ironstone and limestone, of the Railways Clauses Act the case is different.
and it is not disputed that these are “ minerals " It is clear that the mines reserved , if not
within themeaning of the enactment just referred purchased by the company, may be so worked
to. The principal question for your Lordships' as to interfere with the surface, the only
determination is, whether these beds of ironstone limitation being that the working must be
and limestone are " mines of” ironstoneand other according to the usual manner of working
minerals,according to the true interpretation of such mines in the district where the same are
that enactment, and therefore excepted from the situate. The object of the 77th and following
conveyance to the company. I say this because, clauses was considered and explained in The
although considerable difference of opinion ! Great Western Railway Company v. Bennett (16
existed amongst those of your Lordships who | L . T. Rep . N . S. 186 ; L . Rep. 2 H . of L . 27). Lord
were parties to the judgment in the case of The Cranworth said : “ It was obviously the inten
Procost of Glasgow v. Farie (60 L . T. Rep . N . S . tion of the Legislature in making these
274 ; 13 App. Cas. 657), I think all were agreed provisions to create a new code as to the relation
that the words " mines of ” had relation not only between mine-owners and railway companies,
to the word " coal” but to “ ironstone, slate, or where lands were compulsorily taken for the
other minerals " also. The turning point, there . purpose ofmaking a railway . The object of the
fore, of the decision upon this part of the case statute evidently was, to get rid of all the
must be the interpretation to be put upon the | ordinary law on the subject, and to compel the
word " mines " in sect. 77 of the Railways Clauses owner to sell the surface, and if any mines were
Consolidation Act. It is contended on behalf of 80 near the surface that they must be taken for
the appellants that the word “ mines " is to be the purposes of the railway, to compel him to
construed as applying only to those minerals sell them , butnot to compel him to sell anything
which, according to the custom of that part of the more. Theland was to bedealt with just as if there
country where they are situate, would ordinarily were no mines to be considered ; nothing but the
be won by underground workings, and that it sucface.” The effect of this legislation was
does not comprehend minerals which according obviously very advantageous to the railway
to such custom would be got by surface opera companies, and inflicted no wrong upon the
tions. It is contended , on the other hand , that the | owner of the minerals. The company, in the
word comprehends all beds or strata of minerals first instance, paid only for the surface of the
without any reference to the method of working land, and for such minerals as had to be taken
them . I have already, in Farie's case, expressed in the making of the railway . They enjoyed the
my opinion as to the construction to be put upon support of the underlying minerals for an
the same words in a very similar enactment indefinite term without paying for it. The
contained in the Waterworks Clauses Act. mineral owner, as I have said , suffered no wrong.
After carefully considering the able arguments He still retained the ownership of the minerals ,
addressed to your Lordships in the present case , and the right to work them , which was all that
I have seen no reason to alter the conclusion I 1 he possessed before, The only burden imposed
196 — Vol. LXII., N .8 .] THE LAW TIMES. (April 5, 1890.
H . or L .] MIDLAND RAILWAY COMPANY v. ROBINSON. ( H . OF L .
upon him , if it can be so called , was that when ! the same as at the time when the controversy
desirous of working the mines he should give arose. And there are some cases where it might
the company an opportunity of purchasing them . be almost impossible to say what minerals were,
It appears to me that these considerations point and what were not reserved . Beds of slate, I
to the intention of the Legislature having been believe, exist which have been worked both by
to use the word “ mines" in the widest sense that surface workings at the face and by levels driven
can properly be given to it. Why should the underground. How much of such seams ofslate
Legislature have reserved , and exempted the would be reserved , and how much fall to be
company from the necessity of purchasing, beds purchased by the company, would , I think, on the
of minerals lying at such a depth below the contention of the appellants, be a question almost
surface, or with superincumbent strata of such impossible of solution . But besides this, under
a character that the minerals would ordinarily sect. 78 the owner ofmines not under the railway,
be worked by underground operations, and but within the prescribed distance from it, is
compelled the company at once to purchase and bound to give notice before working, so that the
pay for beds of minerals which would , in company may have the option of purchasing. If
ordinary course, be won by surface operations ? the word “ mines ” bears the meaning I have
It is urged that in the latter case the working attributed to it, the company need not concern
of the minerals would remove the very thing themselves about the existence of minerals,
which the company had bought, and directly whether near the surface or not, within the
interfere with the existence of the railway . prescribed distance . But, if it is to have the
But it must be remembered that the surface more limited construction contended for by the
might be rendered just as unfit for railway appellants, it would be necessary for the company
purposes by subterranean workings as it would not only to ascertain what minerals lie under the
be by operations from the surface. The learned lands adjoining any embankments or other works
counsel for the appellants asked what the com . which would be injured by the working of what
pany could be said to have acquired by the I will call surface minerals, but often to purchase
purchase of the land if its very surface could be these minerals, and the land under which they
directly interfered with by mining operations | lie, for the protection of their works from subsi.
I fully feel the force of this question and the dence. Seeing, then , that the difficulties pointed
difficulty which it involves. If this difficulty | out by theappellants are not avoided by adopting
were altogether got rid of by the construction their view , and that its adoption would gire rise
contended for by the appellants, I admit that a to the difficulties and inconveniences I have
strong ground could be shown for yielding to pointed out, I think your Lordships will do well to
their contention. But it was properly con construethe languageused with theaid of the light
ceded by the learned counsel for the appellants that is thrown upon it by the intention of the
that this was not the case. Where a " mine," Legislature as manifested in the provisions
within the meaning attributed to that word by i relating to mines and minerals lying under and
them , cropped out at or near the surface on a | near the railway. And the considerations upon
part of the railway, the same difficulty would | which I have dwelt point to the conclusion I have
arise ; for it was not denied that this would be already indicated , that the widest construction
part of the mine, and therefore within the ought to be given to the word “ mines ” which
reservation . So, too,although a seam ofminerals is possible, without improperly straining the
may lie at such a depth beneath the surface of | language used . Is there anything in the
the land purchased that it would ordinarily be terms of the enactment compelling the narrower
got by underground workings, yet, owing to the construction for which the appellants con
works necessary for making the railway, be tend ? I think not. Applying oneself to
it a cutting or tunnel, the minerals may the consideration of the word “ mines," apart
come to form the surface on which the railway from the document or context in which it
rests. Such a seam would be a “ mine ” within is found, I cannot think that its naturalmeaning
the construction suggested , and therefore re imports such beds or strata of minerals only as
served to the landowner, together with the right are ordinarily gotby underground working . Ifaid
to work it, and yet the same question might be is sought from the lexicons, and the definitions
asked , Can it have been intended that such owner there given are reviewed , I do not think that
should have the right to take away the surface they afford support to such a construction . Dr.
upon which the rails are laid ? It seems to me, too , | Johnson , I may observe, defines a “ quarry " as a
that the appellants' construction, if adopted ,would “ stone mine." I see no reason to doubt the
of itself give rise to serious difficulties and soundness of the view I expressed in Farie's case,
inconveniences. When land was to be taken for that in ordinary parlance the word “ mines " is
the purposes of a railway it would be necessary not used to describe unwrought bedsofminerals.
to ascertain what minerals lay beneath the land I think it is ordinarily applied only to beds of
which would not, according to the usual manner minerals which are being or havebeen wrought;
of working in the district, be got by underground but in the enactment with which we are dealing
workings. For thesewould become the property it is obviously impossible so to interpret the
of the railway company,and their value must of word . I have already pointed outwhy I think
course be taken into account in fixing the price the meaning attributed to the word by the courts,
to be paid for the land purchased . And further when contracts between individuals have been
the question what minerals were reserved, and under consideration , does not afford a guide for
therefore whose the property in them was, might construing this enactment. These are my reasons
have to be determined many years after the for adhering to the construction which I put
purchase by an inquiry , what was the usual mode upon the words " mines of coal, ironstone, slate,
of working in the district at the time of the or other minerals ” in Farie's case. So far I have
conveyance,which perhaps might not have been dealt with the case apart from authority ; but
April 5, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.– 197
H . OF L .] MIDLAND RAILWAY COMPANY v . ROBINSON. [ H . or L .
it is not unworthy of consideration that the 1 I find myself unable upon this point to differ
decided cases support the view adopted by the from the courts below . I am not a little in .
court below . In the case of the Great Western fluenced by the fact that the minerals on either
Railway Company v. Bennett (ubi sup.) Lord side of the railway in the immediate neighbour
Chelmsford says : “ That this section reserves to hood of these now in question have actually been
the mine-owner all the minerals, however near gotten by lessees of the respondent. It is urged
theymay be to the surface, unless the company that the minerals under the railway were left
choose to purchase them , appears very clearly unworked because the respondent thought he
from the exception of the parts necessary to be had no right to them . This matters not as
dug or carried or used in the construction of regards the point I am now concerned with .
the company's works,' as these will of course Indeed , it seems to me to make the case of the
be the minerals lying nearest to the surface." respondent stronger. For the reasons I have
I admit the force of the criticism of the submitted to your Lordships, I think the judge
appellants' counsel, that the words quoted by ment appealed from should be affirmed , and
Lord Chelmsford do not necessarily lead to the the appeal dismissed.
inference he drew from them , inasmuch as in Lord Watson. - My Lords : I also am of
making the railway it might be necessary in opinion that both courts below have come to a
cuttings or tunnels to carry away or use minerals right conclusion in this case, and that the
lying far below the surface. But the fact | judgment of the Court of Appeal, sustaining the
remains that the noble and learned Lord inti decision of Chitty , J., ought to be affirmed .
mated the opinion that all theminerals, however Questions of nicety have arisen , and may yet
near they might be to the surface, were reserved . arise , as to the particular substances meant to
And the other learned Lords who took part in be included in the general words “ or other
the judgment not only do not dissent from minerals," as these occur in sect. 77 of the
Lord Chelmsford 's view , but use language which English , and sect. 70 of the Scotch Rail
I think shows that they shared it. An opinion ways Clauses Act of 1845 . I do not think
thus expressed ought not to be lightly departed that any substantial question of that kind
from . It is impossible to say how many trans is presented in this case. The substances to
actions in the last twenty years may have been which the argument at the bar has been confined
carried through on this view of the law . There are “ ironstone,” which is one of the minerals
has been no judicial expression of a contrary specially excepted in these clauses, and “ lime
opinion that I am aware of until quite recently, stone,” which appears to me to be so much
in Farie's case, whilst both in this country and ejusdem generis with the minerals enumerated
in Scotland the point has been actually decided that it must necessarily be held to come within
in accordance with the view taken by the the description of “ other minerals." The real
learned judges in the present case. Indeed , in point of difficulty which this case presents is due
the case of the Caledonian Railway Company to the circumstance that the statutory excep
5. Dixon , where the point was decided against tion is not of “ minerals " but of “ mines of
the company by the Court of Session 17 Court minerals." It is mutually conceded that the
Sess. Cas. 4th series, 216), although the case was ironstone and limestone below the appellants'
brought to your Lordships' House by way of railway, which the respondent has notified his
appeal upon another point (43 L . T . Rep . N . S . intention to excavate, can only be worked, and
513 ; 5 App . Cas. 824 ), the railway company did according to the custom of the district would be
not seek for a review of the decision of the properly worked, by open cast. But the appel
Court of Session on the question now in contro lants maintain that, according to the sound
Versy. In remains for me to consider the construction of the Act of 1845, no minerals are
subsidiary contention of the appellants, that the reserved to the landowner except such as are
respondent was not in the present case “ desirous capable of being “ mined ,” using that term in its
of working " the mines. The first objection strictest sense , as signifying operations con
raised is, that he had no intention of working ducted wholly underground, and not open to the
them himself, that is , by his own servants, but | light of day. That is a proposition which your
only by lessees or licensees. I agree with the Lordships had recently occasion to consider in
court below , that this objection cannot, upon Magistrates of Glasgow y. Farie (60 L . T . Rep .
the true construction of the section, be sus. N . S . 274 ; 13 App. Cas. 657). In that case I
tained . Then it was urged that there was no came to the conclusion that every substance,
Teal desire to work , but only to compel the being a mineral within the meaning of these
appellants to purchase the minerals. I quite clauses, is reserved to the owner irrespective of
concur with what Cotton, L . J. said , that “ there the method by which it may be wrought. I
must be not only an expression of desire but there said that, in the enactments of sect. 18 of
an honest actual existence of the desire to work the Waterworks Clauses Act 1847 (which are in
either by himself or his lessees, to justify an | the same terms with sect. 77 and 70 of the
owner in giving such a notice. If he gave the Railway Clause sActs of 1845), the word “ mines "
notice when it was obvious that there were no must be taken to signify “ all excavations by
minerals, or that he could not possibly intend which the excepted minerals may be legitimately
either to let or work them himself, that would worked and got." I do not think it is necessary
be vexatious, and the court would not allow that to say more than that I adhere to the views
to be acted upon ." But in the present case the which I adopted in Magistrates of Glasgow v.
learned judge who tried the action , and the Farie. But, on consideration , I think it is more
Court of Appeal, have come to the conclusion accurate to say that the expression “ mines of
that there was a real and bonâ fide desire to coal, & c.” is used by the Legislature to denotethe
work. After considering the arguments insisted minerals in situ , and has no reference to the
upon by the learned counsel for the appellants I manner in which they can be worked . The
198 — Vol. LXII., N . 8.] THE LAW TIMES. [April 5, 1890.
H . OF L .) Booth v. RATTÉ . [Priv. Co.
result is the same, and rests upon the same con - | think the appellants were right in saying that
siderations. I concur in the reasons which have the difficulties which attend their construction,
just been assigned for his judgment by Lord however formidable they may appear in argument,
Herschell. After all, this is a mere question as are not really practical difficulties, and that those
to the period of timeat which railway companies difficulties are reduced to a minimum since it has
must acquire and pay for the subjacent and been decided that railway companies are not
adjacent minerals necessary for the support of disabled from purchasing mines compulsorily if
their lines. The general policy of the Railway they think fit to do so . It was said in argument
Clauses Acts, and their special provisions, alike that,if the appellants' construction were adopted ,
appear to me to point to the result at which the railway companies might be exposed to danger
noble and learned Lord has arrived . In my by the working of surface minerals on adjacent
opinion the appellants have failed to substantiate lands. But in answer it was pointed out that, if
their averment that the respondent does not surface minerals are not within the enactment
entertain a real and bona fide intention of work . with respect to “ mines lying under or near the
ing the minerals in question ; and I therefore | railway," the ordinary rule as to adjacent support
concur in the judgment which has been moved. so far as regards surface minerals would be
Lord MacNAGHTEN .- My Lords: The principal applicable. Some reliance was placed on certain
question, if not the only question, in this case is, expressions in Lord Chelmsford's judgment in the
what is the meaning of the word “ mines ” as Great Western Railway Company v . Bennett which
used in sect. 77 of the Railways Clauses Con seem to show that in his Lordship 's opinion all
solidation Act 1845, and in the heading to that minerals of whatever kind, and however near the
part of the Act. On this question I have the surface, were reserved by the Act to the land .
misfortune to differ from your Lordships. I owner. But it is to be observed that the
abide by the views I expressed in Farie's case. I question which bas arisen in the present case
continue to think that the word was used both in could not possibly have arisen in that case,
tbe heading and in the section in the sensewhich , because the exception in the conveyance under
if I am not mistaken , every English judge who I consideration in that case did not follow the
had occasion to consider themeaning of the word , words of the Act. It excepted in terms both
before Farie's case was decided , took to be its minerals and mines. The point, therefore,
ordinary signification . It seems to methat on possibly was not present to his Lordship's mind.
such a point the opinions of such judges as On the other hand , Lord Westbury 's opinion
Kindersley, V .C ., Turner, L . J., and Jessel, M . R ., seems to favour the appellants' construction.
are probably a safer guide than any definitions or That a railway company is not entitled to
illustrations to be found in dictionaries. Kinders support from subjacent or adjacent mines is
ley, V .C . was clear on the point. So was Turner, perfectly clear from the Act, as was pointed out
L . J., who agreed with the Vice -Chancellor on in Bennett's case. But I do not think that it
that question in Bell v. Wilson (14 L . T. Rep . necessarily follows from that circumstance that
N . S . 115 ; L , Rep. 1 Ch. 303), and dealing with a mine-owner who is entitled to withdraw support
an exception of " mines within and under the by working his mines in the ordinary course if
lands whether opened or unopened ," observed the company do not compensate him is entitled
that those are “ words which are ordinarily used to enter upon the surface, which unquestionably
with reference to underground workings.” In belongs to the railway company, and break it up
Errington v. Metropolitan District Railway Com . by working from the surface. For
pany (46 L . T. Rep. N . S . 443 ; 19 Ch . Div. 559), and the reasons I have expressed inthese reasons,
Farie's case,
where, contrary to the view thrown out by some I should , but for your Lordships' opinion, be
of the noble and learned Lords in Great Western disposed to reverse the judgment under appeal.
Railway Company v . Bennett (ubi sup.), it was Order appealed from affirmed , and appeal
held that railway companies could acquire mines dismissed with costs .
'compulsorily, Jessel, M . R . remarks: “ There are Solicitors for the appellants, Beale and Co.
no mines in the ordinary sense under these lands; Solicitors for the respondent, Capel Cure, and
at least it is not shown there are. What are called
mines and what are minerals probably within the Ball, for Lamb and Stringer, Kettering .
meaning of the Act of Parliament are some beds
of gravel or some beds of clay lying near the
surface, and it is said they can only be worked
from the surface.” If that be the ordinary JudicialCommitteeofthe Privy Council.
meaning of the word , if it was really the intention
of Parliament that all minerals however worked Dec. 13, 17 , 1889, and Feb . 1, 1890.
should be deemed to be excepted from conrey . (Present the Right Hons. the LORD CHANCELLOR
ances to railway companies unless expressly (Halsbury ), Lord WATSON , Sir Barnes PEACOCK,
mentioned therein , I cannot conceive why the and Sir R . Couch .)
word “ minerals " is not to be found in the heading Booth v. Ratté. (a )
to this part of the Act, or why the word ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
“ minerals ” was not used in sect. 77 instead
of the expression “ mines of coal, ironstone, slate, Riparian owner- Floating wharf - Title by pos
or other minerals," or why the Legislature in session - Action for pollutingwater and impoding
the heading and in that section avoided the use navigation .
of the common , obvious, and weli-understood A piece of land abutting on a navigable river was
expression “ mines and minerals ." Whether the granted by the Crown to A ., and by the grant
view of the appellants or that of the respondent the boundary on the river side was expressed to
be accepted , some difficulties and incor veniences be a line " two chains distance from the shore,”
unquestionably may present themselves. But I (a)Reported by C. E. MALDEN, Esq., Barrister-at-Law .
April 5, 1890.] THE LAW TIMES. [Vol. LXII., N.8.- 199
Priv . Co.] Booti v. RATTÉ. [ PRIV . Co.
" parallel to thegeneralcourse of the shore." A. | Chancery Division of the High Court of Justice
conveyed to P ., and P . conveyed to the respondent of the province of Ontario against the appellants ,
In the conveyance to the respondent the boundary | who are severally owners of saw -mills in the city
was expressed to be “ the water's edge of the of Ottawa, on the Ottawa river. It was first
river." The respondent used the land as a heard by one judge, who dismissed the suit. On
boat-yard , and had for many years keptmoored | an appealto the Divisional Court that court set
in the river opposite the land a large floating aside his judgment and gave judgment for the
wharf, with a covered boat-house upon it, which plaintiff, and ordered that it be referred to one
he used for the purposes of his business as a of the masters of the court to inquire and state
boatman for housing and mooring boats. the amount of the damages the plaintiff had sus.
Held (affirming the judgment of the court below ), tained , and the amount of such damages for which
that the possession following upon the conveyance the defendants were respectively liable. The
had given to the respondent a good primâ facie defendants appealed to the Court of Appeal for
title to the whole of the space of two chains from Ontario, which court dismissed their appeal, and
the shore, and that he was entitled to maintain they have appealed to Her Majesty in Council.
an action against the appellants for wrongful The plaintiff has a floating wharf and boat-house
acts which polluted the river and impeded the on the Ottawa rirer, about half a mile below the
navigation , and obstructed the access to his saw -mills of the defendants. The wrongful acts
wharf. complained of are thusdescribed in the judgment
This was an appeal from a judgment of the of the Chancellor of the Divisional Court : “ The
Court of Appeal for Ontario (Hagarty , C . J., evidence very clearly establishes that the defen
Patterson and Osler, JJ., Burton, J. dissenting), dants are wrong -doers, who from their mills
who had affirmed a judgment of the Chancery allow sawdust, blocks, chips, bark , and other
Division (Boyd , C . and Fergusor., J., Proudfoot, J. refuse to fall into the river Ottawa, and thereby
dissenting ), who had reversed a judgment of pollute the water and impede navigation. This
Proudfoot, J. in favour of the appellants, the refuse accumulates in great floating masses, sub
defendants below . stantial enough occasionally for a man to walk
The Ontario
case is reported in 10 Ontario Rep. 351 upon , and the tendency of the currents and the
and 11 Rep . 491. prevalent direction of the winds bring these
The action was brought by the respondent as a masses in front of the plaintiff 's property up to
riparian proprietor on the river Ottawa for his boat-house and wharf and the banks of his
injuries alleged to have been caused to his house lot. Depositions of sawdust are thus by degrees
and land and wharf by reason of the appellants formed before his property, and they result not
obstructing the river with débris from their saw - only in fouling the water, making it offensive
mills. both to taste and smell, but produce from the gas
The sole question raised on this appeal was as generated underneath the surface frequent
to the title of the respondent to the land in explosions, which are disagreeable and sometimes
question , as enabling him to maintain the action . dangerous. It is thus proved that the plaintiff
Bompas, Q .C . and Gore appeared for theappel sustains special injury beyond the rest of the
lants, and argued that the respondent's title public by this unauthorised interference of the
depended on the Canadian statute (23 Vict. c . 2 , defendants with the flow and purity of the
sect . 35), incorporated in the Revised Statutes of stream . He is injured in the personal enjoyment
Ontario 1887 , c. 24 , sect. 47. He cannot increase of the property and the river, and he is injured
his rights by putting a floating boat-house into in the business which he follows of hiring and
the river. The space of two chains from the | housing pleasure boats." No evidence was
bank was not conveyed to him , and he cannot given for thedefendants. The defence they relied
extend his property by mooring a barge in that upon was that the plaintiff had no title to main
space. Though the appellant' s acts may have tain the action. The root of the plaintiff's title
been illegal, the respondent has no right to is a grant from the Crown under the Great Seal
damage for interference with the access to his of the Province of Canada , dated the 24th Dec.
boat-house,as it was unlawfully there. The posses 1850 , toof Joseph Aumond, of a piece of land in the
sion of the soilunder the floating boat-house does “town Bytown, by the following description :
Being composed of water lot number one in
not make him a riparian proprietor . He was a
mere trespasser, and had no title which would letter in the aforesaid town of Bytown, being
enable him to maintain this action . They cited butted and bounded as follows : that is to say,
Micklethwait v. Newlay Bridge Company, 55 L . T. commencing where a stone monument has been
Rep . N . S . 336 ; 33 Ch . Div. 133 ; planted on the west side of Metcalfe-street, at
Child v. Starr, 4 Hill's New York Rep . 369 ; The south -east angle of the said water lot ; then
Stockport Waterworks Company v. Potter, 3 H . & C . north 23 degrees 30 minutes west three chains
300 ;
Attorney-General v. Terry, 30 L. T . Rep. N . S. 215 ; more or less to where a monument has been
planted on the north -east angle of the said water
L . Rep. 9 Ch., 423 .
Jeune, Q .C . and Rubie, who appeared for the lot south 66 degrees 30 minutes west four chains
ten links more or less to a point in the Ottawa
respondents, were not called upon to address river two chains distance from the shore; then
their Lordships . southerly parallel to the general course of the
At the conclusion of the arguments, for the shore to a point in the northern limit of Cathcart
appellants their Lordships took time to consider street produced on a course of south 66 degrees
their judgment. 30 minutes west distant two chains from the
Feb. 1. - Their Lordships' judgment was aforesaid shore of the river Ottawa ; then north
delivered by 66 degrees 30 minutes east six chains ninety -six
Sir R . Couch. - The suit to which this appeal links more or less to the place of beginning ."
relates was brought by the respondent in the i The power of the Crown to grant water lots in
200 — Vol. LXII., N . 8.] THE LAW TIMES . [April 5, 1890.
Priv. Co.] Re HULTON ; HOLTON v. LISTER . (CT. OP APP.
harbours and navigable rivers, subject to the occupied the property in question for over twenty
public right of navigation , in Upper Canada was | years, all strongly suggest that he has done
nothing detrimental to river and navigation, but
declared by the Act 23 Vict. c. 2, sect. 35 , Canada
Statutes. Aumond appears to have sold portions | that, on the contrary, his wharf has been a benefit
of the water lot to different persons, and by a to the boating public ." So far from being an
deed dated the 2nd Nov. 1866 he sold and con - | obstruction to navigation , the maintenance of a
veyed to Amable Prevost, amongst other lands. floating wharf of that kind is, in the circum .
water lot No. 1, more particularly described in stances stated by the learned Chancellor, a posi.
the deed from the Crown, excepting certain por tive convenience to those members of the public
tions of the lot sold and conveyed by several who navigate the river with small craft. As a
conveyances to other persons who are named . riparian owner the plaintiff would be at liberty to
By a deed dated the 23rd July 1867 Prevost sold construct such a wharf, and would be entitled to
and conveyed to the plaintiff part of the water maintain an action for the injuries to it which
lot granted by the Crown to Aumond , by the are complained of. For these reasons their
following description of the boundary towards Lordships agree with the Divisional Court and
the river : “ Thence along the northerly line of the Court of Appeal that judgment should be
Cathcart-street in a westerly direction to the given for the plaintiff, and they will humbly
water's edge of the river Ottawa, thence along advise Her Majesty to affirm the judgment of
the said water's edge down the stream in a the Court of Appeal and dismiss this appeal.
The costs will be paid by the appellants.
northerly direction to the line of Bolton -street."
It will be observed that here the boundary on the Solicitors for the appellants , Bompas, Bischof,
river side is called the water's edge, whilst in the Dodgson , and Coxe.
Crown grant the boundary of the land granted Solicitors for the respondents, Pritchard and
is two chains from the shore, and the contention Sons.
of the defendants at the original hearing and in
the appeals was that the plaintiff was not entitled
to the two chains. Before the conveyance to the
plaintiff was executed he was put in possession ,
by Prevost, of the subjects which were to be con - i
veyed to him , and constructed a floating wharf
and boat-house, in size 60 feet along shore and
16 feet wide, and moored it to the bank of the COURT OF APPEAL.
river. In 1874 , or about that time, he increased Jan . 21 and 23.
the size of the wharf and boat-house to 140 feet (Before Cotton, LINDLEY, and LOPES, L .JJ.)
in length by 40 feet in width . It draws
four or four-and-a -half feet of water, and floats Re HULTON ; Hulton v. LISTER. (a )
chained at each end. There is no evidence as to APPEAL FROM THE CHANCERY DIVISION.
the depth of the water at the side or in front of Joint speculation - Buying and selling of land
it. The plaintiff has from the time when the Partnership - Conversion .
wharf and boat-house was first placed there
occupied it without any question or objection by H .,who was a solicitor , had for many years pre
either the Crown or Pravost, and by means of it viously to his death been engaged in various land
has been doing a very considerable business as a speculations jointly with C . The speculations
letter of boats, & c. This is not a case of a consisted in the buying and selling of plots of
stranger taking possession of part of the two land, the laying out of the land for building
chains. The plaintiff moored the wharf to the purposes, and the advancing of money to builders.
bank where he thought fit, by virtue of his pur The lands were generally bought in considera
chase, and had possession. The expression tion of chief rents, and then sold to builders
“ along the water's edge ” may either signify the at increased chief rents, which were retained by
line which separates the land from the water, or H . and C . The conveyances of the lands bought
a water space of greater or less width constitut were taken either to H . and C . jointly or to c .
ing the margin of the river. The description in alone. A banking accountwas kept in the names
the conveyance is capable of being explained by of H . and C ., and statements of account were
possession , and it appears to their Lordships that made out every half-year, but there were no
the possession which , in this case, has followed partnership articles between H . and C . Upons
upon the conveyance is sufficient to give the the death of H ., there being an intestacy as to
plaintiff a good primâ facie title to the whole of certain lands and chief rents which had been
the two chains as against Prevost. Even if he acquired by him in the course of his joint specu
had not such a title, and occupied only by the lations with C ., the question arose as to whether
permission of Prevost, that would be sufficient to H 's share of the property went to his heir-at-law
entitle him to maintain the action. No question or to his next of kin , as being partnership pro
perty and subject to conversion .
arises in this case as to the wharf and boat-house
being an obstruction to the navigation , but it Held (reversing the decision of North , J., 61 L. T.
may be noticed that the Chancellor in his judg. Rep. N . S . 467), that the proper inference to be
ment in the Divisional Court says : “ Here all the drawn from the evidence and statements of
tendency of the evidence as to the position of the account was, that the relation which had existed
plaintiff's bank , the bay there formed at a dis between H . and C . was that of partners, and that
tance of 700 feet from the main channel, the they were not co-owners of real estate, but that
great width of the Ottawa, its ample facilities assets.
the property in question constituted partnership
for shipping apart from the comparatively | Held , therefore, that the property must be treated
narrow strip wher e the plain tiff 's whar f is
moored , the fact that the plaintiff has thus I (a) Reported by W . C. Biss,Esq., Barrister-at-Law.
April 5, 1€90 .) THE LAW TIMES. (Vol. LXII., N . 8. - 201
CT. OF APP . ) Re Hulton ; HULTON v. LISTER . [CT. OP APP.
for the purpose of devolution as personal estate 1 The testator and James Craven , on sales by
of H ., to which his next of kin were consequently them of lands as aforesaid , were in the habit of
entitled . making cash advances to purchasers during the
FREDERICK BLETHYN COPLEY Hulton , by his will, | erection of the dwelling-houses.
dated the llth Jan. 1881, appointed Richard The landswhich the testator and James Craven
Haworth (who predeceased the testator), Charles so purchased upon ground rents increased in
Lister, Frederick Campbell Hulton , and George value through the growth of Manchester and
Eustace Hulton, trustees and executors thereof. Salford and the profits on their property trans
The testator died on the 9th July 1886 . actions consisted of the difference between the
William Adam Hulton, a brother of the tes increased ground rents created by them , and the
tator, was his heir-at-law , and the said William original ground rents which they themselves had
Adam Hulton and twelve children of Campbell to pay on the original purchases, together with
Hulton , another brother of the testator, and Ann such additional profit as they made in the differ
Agnes Crofton , the only child of a sister of the ence between the cost price of the dwelling .
testator, and Samuel Campbell Hulton Sadler, | houses which they erected and the prices which
the only child of another sister of the testator, | they obtained on the sale thereof.
were his statutory next of kin . The testator and James Craven had no business
William Adam Hulton died on the 3rd March premises or offices of any kind in connection
1887, having by his will, dated the 23rd May with the land business, but their consultations
1885, appointed Frederick Blethyn Copley with reference to their jointtransactions generally
Hulton, Henry Edward Hulton , and Frederick took place in the evening at the residence of one
Campbell Hulton his trustees and executors. or the other of them .
The testator, F . B . C . Hulton, who was a soli. They kept banking accounts with the firm of
citor, was at the date of his death beneficially Richard Haworth and Co., and with the Lanca
entitled as tenant in common in fee simple to shire and Yorkshire Bank Limited , in the names
one moiety of certain messuages and lands and of Craven and Hulton .
hereditaments, the other moiety thereof then It was their practice to meet half-yearly and
belonging to one James Craven since deceased . prepare a statement of accounts relating to the
The property in question consisted of lands undertakings.
and houses and perpetual fee farm rents, held in In thepreparation of such statement ofaccounts
fee simple, and was all in the neighbourhood of all vacant unsold land was ignored and not
Manchester . brought into account as an asset, but on the sale
It had been purchased by F . B. C . Hulton and thereof the chief rent created on such sale was
James Craven , the conveyances being taken | brought into account as an asset.
either in their own names as tenants in common, The profits were equally divided, and then from
or in the name of James Craven alone, or in the the share of the testator one-fourth was deducted
name of somethird party or parties either solely and paid or allowed in account to Jamos Craven
or jointly with James Craven . for his trouble in managing and working the
An affidavit was made by Frederick Campbell business .
Hulton to which was appended a first schedule All receipts during each half-year, whether on
setting forth the lards and houses, and a second account of income, or repayment of loans, or pur
schedule setting forth the chief rents purchased chase moneys of property, or any other account
by F . B . C . Hulton and James Craven as above whatsoever, were treated by the partnership as
stated. cash receipts, and in like manner all payments of
From this affidavit and from other evidence every description on account of annualoutgoings,
adduced it appeared that for aboutthirty years cost of erection of houses, and on all other
before the death of F . B . C . Hulton he and James accounts, were treated as cash payments.
Craven were engaged in a property undertaking, The lands and hereditaments to which the
which was carried out by purchases from various testator was entitled at his death were properties
persons of various separate and distinct freehold purchased jointly by him and James Craven in
plots of land. the course of their business carried on as above
Such purchases were usually made in con stated .
sideration of ground rents payable to the The trustees of the testator's will had sold the
vendor. testator's share of the above-mentioned proper
The deeds conveying such properties generally į ties.
centained covenants by the purchasers, their Amongst the papers of the testator was found
heirs, executors, administrators, and assigns, to a draft will in his handwriting, dated in 1859,
erect and build upon the respective plots of land which contained the following passage :
good and substantial dwelling-houses of at least I give, devise, and bequeath unto my friend, James
double the yearly value of the rent reserved .
After the purchase of such plots of land the Craven , of Moorside, near Manchester, and James Har
greaves,and
of Manchester, their heirs,allexecutors,
practice of the testator and James Craren was to irators, assigns respectively, my share,adminis
estate,
level and drain the sameand form streets so as and interest of in the lands, buildings, and effects held by
to make the land suitable for building purposes, me in partnership with the said James Craven alone .
and tben to cut up each plot acquired into subject to the incumbrances affecting the same.
smaller plots. An originating sumnions was taken out on
Some such smaller plots were sold to builders | bebalf of the trustees of William Adam Hulton 's
upon increased ground rents, and on others the will for the determination ofthe question whether
testator and James Craven themselves erected the proceeds of sale of the share of the testator
dwelling-houses, which , when erected , were sold F . B . C . Hulton in the properties went to his heir
partly for cash and partly upon increased ground | at-law or to his next of kin , as being partnership
rents . i property and subject to conversion .
202 - Vol. LXII., N . 8.] THE LAW TIMES . [april 5, 1896.
CT. OF APP.] Re HULTON ; HULTON v. LISTER. [CT. OF APP.
The summons was adjourned into court and ; an agreement to the contrary to make the estate
came on to be heard before North, J. in August divisible as real estate there must be a sale of all
1889. the assets, including any real estate which is held
NORTH , J. decided that the properties had been as an asset or joint stock of the partnership, for
acquired for the purpose of being held as land , the purpose of effecting a division between the
and should not be treated as partnership property partners, which all the partners were entitled to
of the testator and James Craven ; " and that insist upon . In order to ascertain what their
therefore the testator's share devolved upon his interest is in the partnership, the debts must be
heir -at-law : (61 L . T. Rep. N . S. 467.) paid , and there must be a sale of any real estate
which formed part of the joint stock ; and then
From that decision the testator's nest of kin the question is between the executor and the
now appealed . heir-at-law , and the interest of the testator in the
• Sir Horace Davey, Q .C ., Everitt, Q .C ., and partnership would go to the executor and not to
· Frank Evans for the next of kin . the heir -at- law . Here we have no direct evidence
Cozens- Hardy, Q .C . and Hadley for the heir -at of any agreement between these parties respect
law . ing the circumstances under which they held this
Farwell for the trustees. real estate. But we have half-yearly statements
The arguments in the court below were repeated of accounts which were agreed to between Mr.
Hulton and Mr. Craven , one of whom was a
and the cases there cited were referred to. solicitor and the other was engaged in building
Cotton, L.J. — This is an appealfrom a decision and in managing land. Then we have evidence
ofNorth , J., in which the question is asto whether as to what was done by these persons from time
a sum ofmoney to be divided is to be considered as to time. The question is, what is the proper
real estate or personal estate. It appears that inference to be drawn from these statements of
Mr. Hulton and Mr. Craven were interested accounts which we have before us, and which have
jointly, or as tenants in common , in certain real been proved ,not disregarding of course the mode
property. They bought land, paying for it by in which the parties acted independently of these
chief rents or paying for it in money. They from accounts. There is an alteration , which is some
time to time added to that investment, and they what material, in these accounts made from the
from time to timemade investments by building year 1870 , which is this : Up to Dec. 1870 they
houses themselves or treating them as sold for were not made out, as they afterwards were, as a
chief rents. They carried on together their in . statement of assets and liabilities, but they were
terest in these properties, as they were from time made out with a statement of the profits. The
to timedealt with by them till the death of Mr. rents which were received from the plaintiffs
Hulton. Then ,after his death ,Mr. Craven bought were not entered , but the properties were set
from the trustees and executorsall the interest of down at a value fixed between the parties. Craven
Mr. Hulton in these properties. I will not go was managing this property, in consideration of
further than that. Undoubtedly a great deal of which he was to have a certain sum paid him .
this property was at the timeof the death of Mr. | That sum is stated to be a certain amount of the
Hulton in the form of realestate ; that is to say, it profits. There was a division made as between
consisted of chief rents - chief rents in fee, and these two persons - 1 will not call them partners
property held by them on chief rents or other. as to profits, not of rents, which it would have
wise ; it is immaterial, but it was in the shape of been I think , if they were simply dealing as
land. The judge, in the court below decided co-owners having these properties, which they
that all the properties were bought, and the held for the purposes of permanent investment.
dealings of the parties with them took place In 1870 , as I have said , we find an alteration
only as co-owners for the purpose of improving which one cannot disregard in these accounts.
that which was held by them as co-owners. They are made out then in this way. First of
On the other hand, it is said : “ No; there were all there is a statement of assets ; then a state
such arrangements and such dealings between ment of liabilities; and then there is a division
Mr. Hulton and Mr. Craven that they were in between the parties. The first is headed " assets,"
fact partners in carrying on this joint adventure ; " then “ liabilities," then “ division." The assets
and that consequently, according to the law of are not the properties mentioned with the rental
* partnership , there would be a dissolution of part given , but a valuation , which I agree was not
nership by the death of Mr. Hulton, and a sale in made from year to year , on the termswhich they
order to give each his share ; and that therefore agreed to and held throughout, that ground rents
these properties were not, as between the heir . were to be taken first of all at cighteen years
at-law and the next of kin , real estate going to purchase, and then at more years purchase.
the heir-at-law ; but the amount of the interest | The amount which is put down is not the rental
ofMr.Hulton in this joint adventure was personal they are producing, but the valuation on that
· estate divisible among his next of kin .” It is not basis. Then there are the liabilities which are to
denied by Mr. Cozens-Hardy that, if in fact there be provided for by these two persons. Then
was a partnership between Mr. Hulton and Mr. there is the division which is taken in this way.
Craven , then whatwas the joint stock of the part They take the last balance ; then they take sums
nership must be considered as personalestate, and which have been received by each of the parties
must go to the next of kin . It is pointed out by since then , and then there is put down what is
Kindersley, V .C ., in the case of Darby v . Darby considered as the profit of the year, half of which
(3 Drew . 495 ), to which I merely refer as the goes to Craven , and also one-fourth of Hulton's
facts were similar to the facts here, that the half share of the profits. It is said that those
reason why real estate held by partners is not to accounts are equally consistent with the view
he treated as in fact real estate, but as personal that the parties acquired these properties as co
estate, is that, upon a dissolution, unless there is I owners for the purpose of permanent investment.
April 5, 1890.] THE LAW TIMES . [Vol. LXII ., N . 8.- 203
CT. OF APP.] Re HULTON ; HULTON v. LISTER. [CT. OF APP.
But I do not think that is so. It has never been nership was put an end to, or by notice of one of
shown that any such accounts were ever kept by the partners, or 'by the death of either, when
persons who were co -owners and not working there must be an end of the partnership or of the
together in a joint speculation. To my mind, if joint speculation . The whole thing must be
they were co -owners and had bought these pro - sold unless the parties had agreed to deal with
perties, or had got these improved chief rents for
the matter in some other way. Here, in fact, Mr.
the purpose of permanent investments, they Craven did buy Mr. Hulton 's share. To my
would have withdrawn them from this account, mind, what seems to have pressed on the judge
which was an account of assets and liabilities. is that in fact a very large number of these pro
They would have treated those as properties as perties did remain in a state in which they might
to which there was to be in future, not an be permanent investments. But there was nothing
account treating them as assets, but an account to require any larger sale than in fact took place ,
treating them as properties realised, their value because the liabilities were provided for by the
being given every year,and showing what was fact that from time to time properties were
the share of each as regards the rent received bought and properties were sold . The rents
from these properties. There is nothing of the were not divided between the parties as co
sort. From first to last all the ground rents and owners as if they had acquired the rents as per
chief rents and real estate which still remained manent investments, but for the purpose of pro
belonging to the two are treated as coming into moting this joint speculation in which the parties
these accounts as assets, with some very small were engaged . In my opinion,the judge arrived
exceptions. Some property is excluded . I think at a wrong conclusion that these accounts were
it is property in which no alteration had been consistent with the parties being co -owners. In
made - property which had not been in any way | my opinion , the dealing with the property to
improved or built upon . But as long as the pro - | which he referred in no way assists the view that
perties were in any way improved by building or these were permanent investments by co -owners.
otherwise they were entered in these accounts. That furthers the view I hold, that in fact they
To mymind, that does recognise all the property were held by them for the purpose of this specu
as the property which was to be brought into lation to answer the liabilities and to enable the
valuation in these accounts for the purpose of buildings of these properties to be improved and
ascertaining what the position of the parties was developed . But that, in my opinion , will not,
after deducting liabilities,all the properties being when the joint adventure is put an end to by the
treated as subject to make good any liabilities death of either party, prevent the usual conse
which there might be. It is true that it was a quences following. Here there is a joint adven
profitable speculation , and the parties did not ture in these properties which does not require a
often want to sell, but from time to time they sale of these properties from timeto time. When
mortgaged the properties, and the money pro there was a winding-up of the concern , then the
duced by the mortgagees was carried by Mr usual consequences of a partnership must follow .
Craven into his cash book and dealt with as the There must then be a sale in order to pro
rents and profits were improving, and doing vide the money to pay off the liabilities, and
what was necessary in order to develop the pro to be divided , if there be a surplus, between
perties. Now , if the chief rents and other pro those who were interested in this adventure.
perties were permanent investments, to be held | In my opinion , the decision of North , J. was
by the parties as co-owners, what would have wrong. The only case to which I shall now refer
been done if they were sold ? I do not go into is Steward v. Blakeway ( L . Rep. 6 Eq. 479 ;
the question as to whether there was any very L . Rep . 4 Ch. App.603). I need not again refer
large amount sold , but there were certainly to Darby v. Darby (ubi sup.), although it does
a fair number of sales from time to time. Why ? | state what the law is. In Steward v . Blakeway
Because when they wanted money from time to (ubi sup .) it was held that, although part of the
time for the purposes of their joint speculation property was used for the purpose of the partner
they applied the chief rents just as they did the ship, yet it was not to be considered as converted
rents and profits, to enable Mr. Craven to carry | from real estate into personal estate . But why ?
into effect what he considered the best mode of The learned judge seems to have relied upon the
managing and improving the property. Now fact that dealings from time to time had taken
when the property had been improved , if the im place between the parties with reference to the
proved chief rents had been bought as permanent property there. They had agreed to hold it as
investments they would have been divided be real estate, and there was no conversion whatever .
tween the parties, and from time to time the They agreed to hold it as real estate in which
amount of the chief rents received would have they were to be co -owners, not to hold it
been divided between the parties without any as part of their joint stock to be sold when
thing more. The learned judge in the court the partnership was put an end to and had to be
below seems to me to have considered that these wound-up. In my opinion , therefore, that case
accounts were consistent with the parties being cannot prevent the consequences of what I think
co-owners, the property being only dealt with as is the true inference to be drawn from the evi
a permanent investment and not for speculation . dence we have before us. Accordingly there will
But I cannot agree with that view . It is said be a declaration that the whole of the purchase
that only a comparatively small number of these money received from Mr. Craven is personal
chief rents and a small portion of this land was property for thepurpose of division .
sold. That is true, but why ? They were sold LINDLEY, L . J. - I am unable to come to the
when money was wanted for the purposes of the same conclusion as that at which North , J. has
joint speculation , because the time for the sale | arrived in this case. I think that North, J.
of a large number of these properties had not started wrong . He starts in this way. He says
arrived . That time would arrive when the part- i at the commencement of his judgment : “ It was
204 - Vol. LXII., N . S .] THE LAW TIMES. (April 5, 1890.
CT. OF APP.] Re HULTON ; HULTON v. LISTER. [Ct. Or APP.
his " — that is Hulton 's — " real estate beyond all ! Now , as regards the authorities , the legal prin
question, unless it was subject to a trust for con -ciple is that which is laid down by Kindersley,
version .” If you start with that assumption there | V .C ., in Darby v. Darby (ubi sup.), in which he
may be somedifficulty in thematter. Buttheproper reviews a number of early cases and arrives at
way of considering this case appears to me to be a conclusion which has always been considered
this : look at the facts ; look at the evidence ; look
| as perfectly right in point of law . In Steward v .
at the cash books ; look at the accounts ; look at| Blakeway (ubi sup .) the court came to the con .
the way in which the parties acted , and see what isclusion from the facts that the parties never
the proper inference from all that. Without re- | intended the property which was there in dispute
ference to any particular burden of proof— I do to be divided between them otherwise than as
not think the case depends upon burden of proof tenants in common . The court came to the con .
at all - here are certain facts. Now what is the clusion that the true inference there was, that
inference to be drawn ? The inference to be the parties did not intend that the property should
drawn, so far as I am capable of drawing an in - | be divided by sale. Of course, if you arrive at
ference, is that it is as clear a partnership case that conclusion there is an end of it. I cannot
as I ever saw in the absence of any express arrive at any such conclusion here. In fact, I am
agreement,which of course removesall doubts upon convinced myself that the true view of the
the subject-matters. North , J. has felt the force of whole thing is properly explained in the affidavit
the accounts and the cash books, but he has come of Mr. Jonas Craven , and with regard to his
to the conclusion that they are equally open to using the word " partnership " I think he was
two interpretations, one being consistent with theperfectly justified in employing that expression.
theory of partnership , and the other being con- |North , Í. has taken a different view . I cannot
sistent with the theory of co- ownership without follow it at all. I think the evidence admits of
partnership. I confess that I am unable to arrive only one inference, and not of two. I think that
at the same conclusion . Now let us look at the that inference is in favour of the next of kin , and
accounts, and see how this property was dealt that the whole of this must be treated as money
with . From first to last we find that this is the and not as land .
key of the whole thing — that the interest of each LOPES, L .J.— The question the court has to
of these gentlemen , Mr. Craven and Mr. Hulton , decide in this case is, whether the sum of money
is treated as money . From first to last there is which is in contest is real estate or personal
not the slighest trace in any of the accounts that estate. This, to my mind, depends on what is
their interest is treated as so much land . Whether the proper inference which is to be drawn from
you look at the income, the rents, or whether you evidence which is not in conflict. I do not pro
look at the produce of sale - look at anything you pose to go into the evidence at length , but it
can you cannot find in any single instance any sign depends, to my mind, on the proper inference to
of the interest of either of them being treated as be drawn from certain balance - sheets which
anything else than as so much cash . Now I never were kept for many years, and certain cash
heard of or saw an account between co-owners to accounts which were also kept for many
which that observation was in theslightest degree years. The inference tbat 1 draw from those
applicable. Co-owners keep accounts on a totally balance - sheets and those accounts is that
different footing - half that piece of land, half | Hulton and Craven were partners. These
that ground rent, and so on . But you never find accounts and balance-sheets are not the accounts
the whole treated as one sum of money, brought or balance-sheets which co -owners of real estate
into an account and mixed up as these gentlemen would keep. They are not accounts of income or
bave treated their interests from first to last . of rents ; but they are accounts which partners
That observation, which I think is well founded who are engaged in a joint speculation would
in point of fact, appears to me to show that these keep of profits. I make the observation now
accounts are not equally susceptible of two views; which I made in the course of the arguments,
and that they are only susceptible of the view that in those accounts the interests of Hulton
that these gentlemen were partners,and that this and
They Craven
property was a partnership asset. If you look at are throughout treated as money .
are treated in a way which , to my mind, is
the earlier accounts, which are not so artistically irreconcilable with the parties being co -owners,
framed as the later accounts (the balance sheets but altogether consistent with their being
I mean ), you will see that, I think, as plainly as partners. I am of opinion , therefore, that the
you do in the later accounts. The later accounts money in question is personalty and a personal
are perhaps a little plainer, because they are asset. I am unable, therefore, to agree with the
headed “ assets and liabilities," and the distinction judgment of North, J., and . I There
think will
that bethisa
between the two is drawn in a more marked way. appeal ought to be allowed
But still, looking at them all, both the early ones declaration that the purchase-money received
and the later ones, the observation which I have from Craven is personalproperty. Appeal
The costs in
made already, and which I will not repeat, is the court below and the Court of will be
found to be true. These gentlemen, when they borne by the real and personal estate rateably.
borrow money on their common property, as you
may call it, or when they sell their common pro Solicitors for the next of kin, Austin and
perty, deal with the proceeds as a partnership Austin , agents for Fullagar and Hulton , Bolton.
Solicitors for the heir-at-law , Ridsdale and Son ,
asset. They do not deal with it in any other | agents for Wilson and Hullon , Preston .
way ; they never divide the assets as co -owners ;
they never divide the money raised by mortgage Solicitors for thetrustees, Pritchard, Englefield,
as co-owners ; they never divide the proceeds of f and Co., agents for Boote and Edgar, Man .
sale as co -owners ; they deal with the whole from chester.
first to last as part of a money concern . That
appears to me to be the key to the whole thing.
April 5, 1890 .) THE LAW TIMES . [Vol. LXII., N . 8.-205
CT.OF APP.] MYERS v . CATTERSON . [Ct. OF APP,
Tuesday, Dec, 16, 1889. This freehold and leasehold property subse
(Before Cotton , Bowen and Fry, L .JJ.) quently became vested in the defendant, Samuel
MYERS v. CATTERSON. (a) Prince Catterson .
In the autumn of 1887 the defendant erected
APPEAL FROM THE CHANCERY DIVISION. some buildings on part of this land situated on
Light — Implied obligation - Railway arch | the north -eastern side of the railway, opposite to
Obstruction - Mandatory injunction - Prescrip the plaintiff 's messuage, and about eighty -two
tion Act, feet distant from the railway.
In 1863 a railway company granted land with a The defendant also blocked up the arch No. 88
house on it to M ., together with all the rights, by means of a black wonden hoarding. The
easements, and appurtenances thereto belonging. adjoining arch, No. 89, had been blocked up
The railway was eight feet from M .'s house, and many years previously .
was carried past it on a viaduct, the arches of Both these arches had been for someyears used
which were fifty-eight feet long. Light came
to certain windows of Mi's house through two of heavystoring
for engines, tanks, boilers, and other
machinery.
the archways of the viaduct. In 1872" the rail. The plaintiff alleged that by reason of the
way company conveyed the fee of some surplus blocking of arch No. 88 the access of light to his
land on either side of the line, and gave a long window had been obstructed , and he claimed a
lease of the archways to the predecessor in title mandatory injunction for the removal of this
of C . In 1887 C . blocked up one of the arches hoarding at the west end, and damages for the
by placing a wooden hoarding on the side nearest obstruction by the building at the east end of the
to Mi's house, and thereby caused a diminution arch .
of the light to M .'s windows. By his defence the defendant denied the right
Held (affirming the decision of Kekewich , J., 61 to access of light through the arch , and pleaded
L. T. Rep . N . S . 236 ), that there was an implied that, even if there was any such right, noappreci.
obligation by C . not to interfere with M .'s access able amount of light came through the arch .
of light; and that, as this obligation was not It was also pleaded that the plaintiff was
restricted by any reasonable presumption on the barred by laches and acquiescence.
part of M . that the arches would be blocked up, a The plaintiff died after the commencement of
mandatory injunction must be granted to pre. the artion , and it was continued by his wife.
vent the continuance of the obstruction. Evidence was adduced on the part of the plain
By an indenture of the 31st Dec. 1863, theLondon, tiff to the effect that the sitting-room window
Chatham , and Dover Railway Company granted was materially darkened by the erection of the
to the plaintiff Solomon Myers (who had since hoarding, and that the room was rendered less
died ), the fee simple of a piece of land at New . comfortable for habitation .
ington Causeway, Surrey, and the messuage On the other side expert evidence was adduced
thereon, No. 89, Newington Causeway, with all to prove that no light that could be estimated
rights, easements, and appurtenances thereto reached the window from the arch . The wit
belonging. nesses detailed experiments which were made in
This messuage was continuously occupied by the arch .
the plaintiff and his wife, partly as a shop and Theaction cameon for trialbefore Kekewich , J .
partly as a private dwelling-house. It was in July 1889, and his Lordship decided that there
situated on the south -western side of the London , was an implied obligation by the defendant not to
Chatham , and Dover Railway, and was eight interfere with the plaintiff's access of light ; and
feet distant therefrom . that, as this obligation was not restricted by any
The railway was carried on a viaduct past the reasonable presumption ou the part of the plain
said house, and two of the windows in the house, tiff that the arches would be blocked up, a manda
namely, a sitting-room and a kitchen window , tory injunction must be granted to prevent the
looked on to, and derived some light through , continuance of the obstruction . His Lordship
two of the arches of the railway . also directed an inquiry as to damages : (61 L . T .
These arches or tunnels were fifty-eight feet Rep . N . S. 236 .)
long. From that decision the defendant now appealed .
On the 19th Dec. 1872 the railway company Neville, Q .C . and Russell Roberts for the
granted a lease of a piece of ground and seven of appellant. — The recital in the conveyance of 1863,
the arches to Isaac Jacobs, for a term of fifty that the land retained was required for the pur.
years ; but subject to any rights of light to poses of the railway, is inconsistent with the
which the owner or occupier of the messuage on notion of an implied grant to the plaintiff of a
the west side of the railway was entitled . right to light, and the plaintiff is not entitled
In consequence of a question as to light the under the Prescription Act by reason of the
rent was reduced from 2501. to 2251.
By an indenture of the 31st Dec. 1872 the interruption of his enjoyment of the light in
1872. The plaintiff must be taken to have known
railway company conveyed to Lewis Isaacs (as that these arches would be blocked up, as there
trastee for Jacobs) the fee simple of certain is a universal practice among railway companies
surplus land belonging to them on both sides of
the railway, and by an indenture of even date to letBirmingham
such arches :
, Dudley, and District Banking Com .
granted to him a lease of the arches for 1000 pany v. Ross, 59 L . T . Rep. N . S. 609 ; 38 Ch. Div .
years, subject to the prior lease. 295 .
Owing to a question again arising as to the Then we submit, also , that a man cannot claim
plaintiff 's right of light, the purchase money was access of light through another man 's building ;
reduced from 19001. to 15351. and this arch is a building for that purpose. But
(a) Reported by W . C. Biss, Esq, Barrister-at-Law . if there is any such right, the expert evidence
Vol. LXII., N. S., 1586 *.
206 - Vol. LXII., X . 8.] THE LAW TIMES. (April 5, 1890.
CT. OF APP.] MYERS v. CATTERSON. [CT. OF Apr.
shows that no light that can bemeasured reaches you will — not to interfere with the lights of that
the plaintiff'swindow . house. If this railway company was a mere ordi.
Warmington , Q .C .and Svinfen Eady, for the nary owner of land, that would be the obligation
which would primâ facie, unless it is rebutted , be
respondent, upon waiving their right to the contracted by the position in which the vendor
inquiry as to damages, were not called upon to has put himself to the purchaser. Here it was a
argue. railway company. The only difference would be
COTTON , L.J.- I give no opinion here as to this : that a railway company which has the ad .
whether the parties on one side or the other are joining land, and is about to construct the rail.
unreasonable or foolish. Many may consider way , will not be presumed to do anything
them foolish in pushing their rights to an extre- to interfere with the rights of the owners
mity. But all we have to do is to decide the of the adjoining land. About that there is no
question brought before us on appeal. The difficulty at all, because the contract contained in
appeal is against a judgment of Kekewich , J. the conveyance by the railway company to the
which granted an injunction and required the plaintiff's husband is this : it recites that the
removal of a certain hoarding put up by the whole of the land and premises will be actually
defendant so as entirely to block out à certain required for the construction of the railway. If
light (except where there is a window in the that is so, and it is mentioned in the deeds, and
hoarding) coming through the western end of the it would be the same, I think , as appears on the
arch under part of the London , Chatham , and evidence, that that was the footing as regards the
Dover Railway Company. The plaintiff's hus. relation of the company when it executed this
band bought from the railway company in 1863 a deed , it is clear that there is an intention on the
plot of land. The conveyance to him was after implied contract entered into by the vendor (in
some time and after he had put up a house on this case the railway company) that it is not
that plot of land . The railway company held the restricted by that obligation from doing that
adjoining land ; part of it was the site of the rail. which was necessary for the purposes of the con
way, on which there was at the time a certain struction of the railway. That, in my opinion, is
portion of the railway supported by arches, but the true nature of the obligation here, which the
the arches were not of the samewidth as they now railway company entered into when it conveyed
are. The railway company also held land partly thishouse,built as it was andwith thewindow asit
covered by a building, partly vacant. On the was, to the plaintiff's husband , the purchaser from
further side from the plaintiff's house , or on the the railway company. It is argued that this really
other side from this railway,there is a viaduct on makes this obligation contracted by the railway
which the railway runs. The conveyance from company entirely dependent on the will of the rail.
the railway company did not imply any express | way company , and that therefore that is quite in .
grant or reference to lights, but it recited that all consistent with and repugnant to the grant which
the particular portion of land bought by them , was made of the house to the plaintiff's husband .
(543 and 544, those being the numbers upon the But that is not so. The limitation of it possibly
parliamentary plan ), except that which was might be repugnant ; but I think the true view
coloured blue, was required for the construction is, that the limitation of the obligation contracted
of the railway. The part coloured blue was what by the railway company is not entirely dependent
was bought by the plaintiff's husband, who is on the will of the railway company or its
dead , and on which he built the house. In that engineer. They may do anything which is
house, as constructed when the conveyance was required , and the engineer will determine, subject
made by the railway company, there was a side to the directors, what is necessary for the con .
facing the railway, on which there was a large struction of the railway. That, therefore, is a
number of windows. But the one which is most matter not left entirely to the will ofthe company,
materially in contest here as regards the light as is contended on the part of the vendor, but
which has been obstructed by the act of the de certain definite purposes are pointed out, for
fendant was a sitting -room window on the which only the railway company are entitled to
ground floor. There is below , on the basement, a | use the land which is retained so as to interfere
kitchen which also had a light in the same direc with the obligation which is entered into as
tion . Both those two lights, though not exactly regards the light to the window . We ought to
opposite one of the arches of the viaduct on which hold , and I state it as my opinion , that the rail.
the railway was, were substantially opposite one way company, being owners, not only of the land
of the arches. There is no question about the sold , but of the land adjoining, entered into an
other arch , because that has been blocked up for implied obligation not to do anything with that
some little time. But lately the defendant, who adjoining land except that which was necessary
has taken a lease, and has in some way acquired for the construction of the railway. That is the
a right to the arch 88 , has entirely blocked up first point we have to consider. Was it reason
the end of it by the hoarding in which there is a l ably required for the construction of the railway ?
window , a certain portion being glazed . Now , In my opinion , certainly it was not. It is not
the first point we have to consider is this : Is the fact that the railway company in making any
there any right atall in the plaintiff ; or, rather, is alteration of their line are putting up this
there any obligation entered into by the railway hoarding. But what is done is this : They hare
company from the circumstances which I have granted a lease, or granted the interest, to the
stated ? If there is an owner of two plots of defendant, under which he is in occupation , and
land, on one of which there is a house built, and for the purpose of making that occupation pro
he sells one and retains the other, from the cir- fitable to himself-- and, therefore, possibly to
cumstances in which he has placed himself as some extent so as to give the railway company a
regards the purchaser, there is the implied larger rent for the archway - he is putting up this
obligation , or contract, or covenant- call it which hoarding which is complained of. That is either
CT.OP APP.] MYERS v. CATTERSON . [CT. OP APP.
for his benefit or the pecuniary benefit of the coming down through this archway. Now , what
railway company. I do not care which . Take it have weopposed to that? Scientific evidence. I do
for the pecuniary benefit of the railway company . not in any way speak in disrespect of scientific
But it is not a matter for the purposes of the men ; but Iagree with the judge that the evidence
construction of their line, for which only are of fact and experience is much more to be relied
they entitled to deviate or be relieved from the upon than any scientific evidence as to what will
obligation which they entered into as regards be the consequence. When one has the fact that
the building that is put up. Then the obligation the judge, after seeing the witnesses and hearing
is,not to interfere with the light except in doing them , and knowing exactly what they meant to
what is required for the construction of the rail. say, relies upon the witnesses of experience
way. I agree that in such an implied covenant clearly in opposition to the scientific witnesses, I
the court (although it has not been argued upon cannot differ from the conclusion at which he
that line) would not interfere, unless there was a arrived . I have not had the opportunity of see
substantial interference with the light of the ing those witnesses and hearing exactly what they
plaintiff. Now , there was an argument addressed say, but, so far as I can judge, I should agree
to me by Mr. Roberts, and slightly also by Mr. with the conclusion at which the judge arrived ,
Neville, that there could be no implied obligation and should say that the evidence of experience
in such a case, where the angle as it came to the and of fact is not to be set aside in consequence
house, as defined on the evidence, was not an of the evidence of those scientific witnesses.
angle of 45 degrees, but was a somewhat less Oneknows— and one might give instances of it
angle. In my opinion , that is entirely wrong . how frequently scientific witnesses of the greatest
The court will not interfere by injunction where experience and skill are found to be wrong, and
it sees that there is still a reasonable access of proved by facts to be wrong, and I cannot there
the light of sufficient extent to the person com fore think Kekewich , J. came to a wrong con .
plaining. But the obligation would be implied clusion as regards the result of the evidence .
quite as much where there was no obstacle exist Then there is one other point which was pressed
ing at the time opposite the house sold . Take upon us by Mr. Roberts. He says that the acts
the case of a house on Salisbury Plain , without of the plaintiff's predecessor and her husband
anything to interfere with the light which amounted to acquiescence so as to prevent the
comes down to it from the horizon . Does not plaintiff here from obtaining the relief to which
the man who sold that house and owns adjoining she is otherwise entitled . But how has there
land subject himself to the implied obligation not been acquiescence ? There has been no acquies
to do anything on the adjoining landwhich would cence in the thing complained of, because that
interfere with the access of the light to the house has not been done until recently . There was, no
which he has sold ? It may be that, if be put doubt, an acquiescence in a smaller amount
up something which only in an infinitesimal of light being blocked, for Isaacs put machines
degree interfered with the light, it would not be here, some of which probably did substantially
held to be such an interference as to call for the interfere with the access of light. But, to my
interposition of the court. It is not a question mind, that can be no acquiescence in the act
ofwhether the obligation has been entered into which the defendant has recently done ; and
or not. The question is, whether or not there it might be that it was such an interference
arises such a breach of the obligation as would that Mr. Myers thought, “ Well, I do not like this,
justify the court or require the court to interpose. but I must not be taken as in any way acquies.
Now , dealing with that here, what is the case ! cing in it." That acquiescence cannot be held
The position of the house and windows is such out to anybody, who looks at it reasonably, to
that a rery small interference with the light mean that the plaintiff' s husband was not
which the plaintiff had acquired the right to , or interested about his light, or that he was willing
to which he had the right granted to him , would that anything should be done which would
be prejudicial. It is not like the case wbere a prevent the light which formerly came down this
house is standing entirely free from obstruction . archway from coming to his premises. In my
It is in the peculiar position that there is a opinion , this appeal fails.
railway pretty close to it, only 8 feet off, and BOWEN, L .J. - I am of the sameopinion . As
any interference with any light which came to it to the question of fact involved in the appeal, I
before the acts complained of, which were done should really say nothing after what the Lord
by the defendant, would produce a serious effect. Justice has said , with tbis slight exception : that
Now, what has the judge done ? He has had I do not consider that one has in a case of this
before him a variety of witnesses, some scientific, sort to review the decision of the judge below ,
and others, I believe, not of a very scientific class. who has seen the witnesses, just as if one had
One of them is a doctor, who necessarily observes seen the witnesses one's self. We are not in that
all indications brought before him . Those wit position. I am further impressed in the present
nesses all say that , since the act done by the defen | instance by this, that the judge below seems to
dant, there has been a substantial alteration in me to have founded his view of the facts very
the light wbich this room previously enjoyed. One much upon the importance and weight which be
witness says — and that was very much commented gave to the evidence of one gentleman in this
upon by Mr. Roberts — that he saw the light case, namely, Dr. Tanner, and the judge seems to
* streaming down through the archway.” Well, have been impressed by that gentleman 's evidence.
perhaps he meant that there was a considerable It is impossible to say if Dr. Tanner was a first
amount of light coming to the room . I do not rate witness, and worthy of all the attention and
think one ought to criticise that expression respect which the judge seems to have paid to
further than was done in the course of the argu him , that his evidence does not justify the find
ment. But I quite understand what he says , ing that the light here has been substantially or
that there was a substantial quantity of light I appreciably diminished by the hoarding . The
208 - Vol. LXII., N. 8.] THE LAW TIMES. (April 5, 1890.
Ct. Of App.] MYERS v. CATTERSON. [CT. OF APP.
learned judge does seem to have attached to Dr. | house which is standing on part of my land as a
Tanner that precise amount of importance. I house with windows in it , to be used as a house
think, therefore, thematter being one peculiarly and the windows in it to be used as windows, the
within his cognisance, we cannot review his least that the law implies, from the necessary
decision, even if we differed from him . Itmust not reason of the thing, is that I am not, upon the
be at all supposed that I differ from the learned remainder of my land which I keep back, imme.
judge in his conclusion ; upon the evidence that is | diately I have sold the house and its windows, to
before us I do not say that I should not have do something which prevents all use of the house
come to the same conclusion . But as to the as a house,and all use of the windows as windows.
point of law , which is perhaps of more general | The law expresses that obvious duty in the form
interest,and not merely of interest because of this of what it calls an “ implied obligation," or
cause, I will only add one or two words. Here is “ implied covenant or contract," on the part of
a railway company which is possessed of a large the vendor, who is selling one portion of his pro
piece of land,along a portion of which the railway perty and retaining the other, under circum
is conducted , and along a portion of which the stances like this, that he will not, on the property
railway is intended to be constructed . On the which he retains, use all his rights as owner with
residue of the land , close to the place where the respect to the property which he retains. The
line will in the end be carried , the railway com law requires that he will only use such of his
pany agree to allow a purchaser to come in to rights as owner as can be used consistently with
occupy the land under an agreement, and finally the convenient and reasonable enjoyment of the
to build a house there upon the land, which was house he has sold as a house. That is the ordi
the house they finally conveyed to him . Now , nary implication . But, as it is clear that this
what is the implied obligation that the company implication depends upon what one gathers from
come under as regards the use of so much of the observing the transaction and trying to find in
land as they retain for the purposes of their own it a clue to the intention of the parties, as soon
railway ? As in the case of all other implied as you add facts which make it obvious that the
covenants or implied obligations, in order to see intention of the parties was one way or the other,
what the measure of the obligation is, we must then you have facts which give a colour to the
look at the reason of the thing and at the cir - inference which the law draws, and which very
cumstances, in order to ascertain , if we can , what often lessen the obligation, which in the absence
is the obvious intention of the parties, so as to of those facts or that fact, would be supposed to
get to the transaction between them - that mini have arisen . I keep a piece of land, and sell the
mum of efficacy and value which , upon any view house as a house. The obvious intention , in the
of the case, it must have been their common absence of anything else, is that I intend it to be
intention it should have. Supposing this were used as a house. But if at the time I sell it I
the case, not of a railway company, but an owner make it clear to the person who is taking the
of land. The owner has two pieces of land house - or the circumstances of the case make it
which either adjoin or are so near to one another clear to him - that, although I sell it to him as a
that the enjoyment of the one, perhaps for all house, I am intending nevertheless to use the
purposes - at any rate,for somepurposes for which remainder of my land, which I keep , in a way
it may be enjoyed - depends upon the user to be which may interfere in some degree with the
made of the other portion of land. What is the full enjoyment of the house as a house, then
obligation which the law assumes to arise between you get a new fact or a new element introduced
the parties as soon as the conveyance has been into the case. That new fact or new element
made, and on the conveyance coming into effect P shows that the intention of the parties was a
The owner of the piece of land which is not sold limited one, and tbat it was not intended by the
is, notwithstanding, selling the piece of land the | parties that the full use of the house as a house,
full enjoyment of which depends upon the user or the full enjoyment of the lights and windows
he makes of that portion which is not sold . as windows, was the essence of the transaction .
Surely it must be in the contemplation of the Now , here it is said that at the time the railway
parties that, in the absence of any express agree corapany sold this house as a house , with its
ment one way or the other, the vendor shall not window lights to be used as lights, the pur
so use that land which he retains as to preciude chaser had notice that the railway company
any possible use of the building or land which he | intended to use the remainder of the land
sells, or to prevent that use of it for which he in a particular way which would necessarily
knowshe is selling it to the other man . It would | interfere with the enjoyment of the light
be contrary to one's common notion of justice to the windows, and, so to speak , modify
and fair dealing if it were otherwise. The truth the ordinary implication which the law would
is, that the law in such a case assumes, when the extract from the transaction . Therefore it
parties have entered into the relation of vendor becomes necessary to look at what was the exact
and purchaser, from the circumstances of the character of the conveyance, and at what was the
case, an obligation is on the man who sells not to purchaser of the house told at the time it was
do anything with his own land which would defeat sold. It is clear he was told that the railway
the known and obvious intention ofboth parties in company intended to construct their line on a
making the sale. Now , apply that to a house. portion of the remainder. I neglect for the
Suppose I have a large piece of land, on one part purpose of this judgment any consideration of
of which is standing a house. The house may be what the exact terms would be about anything
a mere series of bricks, never intended to be else except this part ofthe land which immediately
used as a house, but which may be pulled down fronts the windows of the plaintiff. But the
and carted away so as to be sold as bricks. If I purchaser was told, what it was most material
sold a house merely as bricks, of course the trans- for him with reference to his window lights to
action would be different. But if I sell the l know , that the railway company, when they sold
April 5, 1890.) THE LAW TİMEŠ. [Vol. LXII., N. 8.- 209
CT. OF APP.) TURNOCK 0. SARTORIS. [CT. OF APP.
him the house and gave him the windows, never . 1 state in which light might be acquired from it.
theless did intend to carry out the line in the We can only decide the case as regards the
way in which I presume was most convenient to hoarding, and if the appellants had asked us,
their interests. Hewas told that they required under Lord Cairns' Act instead of an injunction,
the remainder of the land for the construction to grant compensation only, on the ground that
of the railway . Now , to what extent did that | it was on the whole better, in our judgment, to
modify the implied obligation which the law do so , I should have liked to have heard further
would infer ? I think it would modify it to argument on the question whether that was not
this extent : that the vendor would no longer be the most convenient and just way of dealing with
bound to leave the window lights intact, but be the case. But we were not asked to do that.
would have a right to diminish the light to the The case was rather presented to us giving the
windows,and to interfere with the enjoymentof go-by to that view . Therefore I agree in affirming
the land so granted, so far as he was required the injunction which was given in the court
to do so for the purpose of constructing the below . That is the necessary conclusion - that
line, but no further. Unless you had some we are not to give compensation . I hope that I
further fact or some further notice — something am not doing wrong in speaking for myself, but
further to modify the intention of the parties I earnestly press upon the parties the desirability
to the transaction - of course the broad rule of doing that which the courtmight have been
applies, that the person who gives a thing to be asked to do, namely, to substitute a money equiva
enjoyed, intends that it is to be enjoyed , and lent for this injunction to come to some con
has no right afterwards to do anything which vention or agreement by which the hoarding
defeats the enjoyment to which he has consented, should be left up, and a money value given which
and which is the creature of his own gift. I would thoroughly compensate the owner of the
think, therefore, that the appellant's argument room for the injury sustained . Of course that is
breaks down in this, that, although it is clear not part of my judgment. I only mention it to
that the purchaser of this property could in explain why it is I acquiesce in giving the relief
no way complain of the railway company in the form of an injunction . As to the building
constructing their line, and interfering with on the other side of the arch , I agree with what
his windows so far as the construction of the Lord Justice has said . My judgment then
their line did interfere with them , yet if the would be, dropping the inquiry, and confirming
matter was one which went beyond the construc the judgment as to the hoarding.
tion of the line, then the ordinary presumption of FRY, L .J.- I have nothing to add, except to
the law would not be ousted so faras thatwas con express my concurrence in what has been said .
cerned. It seems to me that what has been done
I entirely
adopt the yiew of Bowen , L .J. with
by means of this hoarding is certainly not for regard to the expediency for the parties to take a
the purpose of the construction of the line,but course by which this litigation will be finally
goes beyond it. We put iton thebroad groundthat concluded . I hope that will be the result .
a rendor cannot derogate from his own grant, and
he is bound to allow such convenient use of the andSolicitors
Son .
for the appellant, Saffery, Huntley,
premises which he gives to be held as is con
sistent with such notice. He is bound to allow tonSolicitors for the respondent, Hicklin ,Washing.
, and Pasmore.
the premises which he has granted to be en
Joyed so far as they reasonably can be enjoyed,
limiting the enjoyment only by that class of user Wednesday, Dec. 11, 1889.
of his own land which he must be taken to have
desired . So much for the law of the case. The (Before Cotton, Bowen, and Fry, L .JJ.)
appellants seem to me to fail upon that. I only TURNOCK v. SARTORIS.(a)
wish to say somethingmore about the position in APPEAL FROM THE CHANCERY DIVISION .
which the parties stand. This, to my mind,
although I daresay the room is no doubt of some Arbitration - Questions not covered by arbitration
clause - Reference - Common Law Procedure Act
value in the eyes of the owner, is a very small 1854 (17 & 18 Vict. c. 125), 8. 11.
affair. Kekewich , J. sums up this litigation in
these words : He says he has distinct evidence of A cessor
lessor granted in 1870 to the plaintif”: prede
the answer to be given to the question . The in title a lease for sixty years of a manu
question is, whether this little sitting-room , factory , and covenanted to supply a certain
“ otherwise dark , lighted only otherwise by means quantity of water daily to the demised premises.
of a passage eight feet wide, and always dark The lease contained a clause providing for the
and ill-lighted , will be rendered less comfortable reference to arbitration "oftouching
any dispute or diffe
these presents
for the ordinary use and occupation of the sitting rence between the parties
room by persons in the plaintiff's condition of . . . or any matter in any way connected
life.” The question was, whether the use of a with these presents." In 1885 a further agree
sitting-room like that hasbeen interfered with by ment was entered into between the parties, which
the boarding, and that interference is the subject imposed upon the lessor fresh liabilities as to the
matter of this litigation - litigation which has supply of water, and to a certain extent modified
gone through the court below , and comes to us the plaintif's rights under the lease. The plain
accompanied by printed notes of the evidence to tiff subsequently brought an action against the
the extent of 120 pages. I have no doubt the executors of the lessor, claiming damages for
parties now attach importance to the way in alleged breaches of the lease , and also of the
which we decide this case. But the misfortune agreement of 1885, in respect of the supply of
is that, however we decide it, we cannot decide water to the demised premises. The defendants
in this action the exact way in which that railway applied for a stay of proceedings in the action ,
arch is to be used in the future, and the exact i (a) Reported by A . J. SPENCER, Esq., Barrister-at-Law .
210 - Vol. LXII., N . S.] THE LAW TIMES. [April 5, 1890.
Ct. of APP.) TURNOCK v. SARTORIS. ti? ???₂?Â₂â??
and for the reference to arbitration of the differ . Sartoris ; (4) the new line of pipes to be kept in
'ences between the parties. repair by the plaintiff, the pumping stations and
Held , that the arbitration clause referred to ques. machinery , reservoirs, and a certain line of pipes
tions arising under the lease alone, and that, as to the upper reservoir by Sartoris.
the claim was in respect of matters under the In April 1888 the plaintiff commenced an
agreement as well as under the lease, it would action against Sartoris, which upon the death of
not be right to refer the whole matter or the ques. Sartoris in Nov. 1888 was revived against his
tions arising under the lease only to arbitra executors and trustees. The plaintiff by his
' tion . statement of claim alleged (par. 8) that neither
By lease, dated the 21st June 1870, Sartoris Sartoris nor the defendants had made any
demised to Jenkins for sixty years two pieces of attempt to obtain, and they had not obtained , the
land at Llanelly with a factory thereon , for the requisite easements for laying the new line of
manufacture of tin plates, and the lessee six -inch pipes as provided by the agreement of
covenanted that hewould , before the 25th March the 7th Nov. 1885, though such easement could
1871, construct upon the land demised a reservoir havebeen obtained ; and that Sartoris bad elected
of at least two acres in extent and at least six himself to carry out the works mentioned in the
feet deep, and Sartoris covenanted that he would second clause of the said agreement, but had
within a month after its completion lay down all failed to do so ; that he had also failed to furnish
apparatus necessary for supplying the reservoir the plaintiff's reservoir so as to enable the plain.
with water, and would cause to be delivered into tiff to furnish,and he neglected himself to furnish ,
such reservoir such a quantity of water as would the works with a necessary supply of water for
enable the lessee by means thereof and with the the purposes of the business. He also alleged
aid of the water for the timebeing in the reser (par. 10) that by reason of the insufficiency of
voir to furnish themanufactory and works with the supply of water the plaintiff had suffered
the necessary supply of water for the purposes damage, and he claimed an inquiry as to the
of the business,a such supply not to exceed damages sustained by the plaintiff " by reason of
110,000 gallons day . The lease also contained | the matters aforesaid ."
On the 26th Nov. 1889 the defendants took out
a Ifclause
any dispute, question ,which
for arbitration difference, or follows:
was as controversy | a summons that all further proceedings in the
shall arise between the said parties to these presents, action should be stayed, and that the differeuces
their respective heirs, executors, administrators, or | between the parties should be referred to arbi.
assigns, touching these presents or any clause, matter, tration pursuant to the Common Law Procedure
or thing herein contained , or the construction hereof, or Act 1854, s. 11.
any matter in any way connected with those presents The application came before North , J. in
or the operation thereof, or the rights, duties, or
liabilities of either party in connection with the pre chambers, and was refused by him .
mises , then and in every or any such case , the matter in The defendants appealed .
difference shall be referred to two arbitrators, or their
umpire, pursuant to and so as with regard to the mode Crackanthorpe, Q .C . and Sidney Woolf for the
and consequence of the reference, and in all other appellants. — The arbitration clause applies to all
respects to confarm to the provisions in that behalf con the questions in dispute in this action . and the
tained in the Common Law Procedure Act 1854 , or any proceedings should therefore be stayed . There
then subsisting statutory modification thereof.
is no separate relief sought for under the agree.
Jenkinsmadethe reservoir in pursuance of this ment of Nov . 1885. A reference here would be
covenant in the lease . His interest in the lease far the best
was subsequently assigned to the plaintiff in this decide what mode of trial. The arbitrators can
questions are within the reference :
action . Willesford v. Watson , 28 L. T. Rep. N . S. 428 ;
The plaintiff complained that the water supply
to the reservoir constructed as above mentioned ,
L . Rep. 8 Ch. 473 ;
Wade-Gery v. Morrison , 37 L . T. Rep. N . S. 270.
which came from two reservoirs belonging to Cozens-Hardy , Q .C . and H . Terrell, for the
Sartoris, called the upper reservoir and the second respondent, were not called upon.
₂₂/₂ ₂₂/₂₂ņēm₂ū₂₂ ūtiņ₂₂\₂\ /mēģtiņ₂ /₂/₂/₂/₂/₂ūti₂m
1885, in an action commenced against Sartoris he COTTON , L .J. - This is an appeal against the
obtained a judgment directing an inquiry as to refusal of North , J. to stop the action and send
damages. the matters in dispute to arbitration , and it
On the 7th Nov. 1885 the plaintiff and Sartoris seems to me to involve two questions : first,
entered into a written agreement by which it whether the whole of the matters in dispute come
wasagreed , (1) that Sartoris would forthwith make within the clause of arbitration, and then , if that
all necessary exertions to obtain the requisite | is so, whether there has been a proper exercise of
easements for laying a new line of six. inch pipes the discretion of the court in saying that the
by a less circuitous route than the present, and matters ought not to be referred . The plaintiff
by the nearest available route from the upper claims under a lease granted in the year 1870,
reservoir to the works ; (2) that Sartoris would which contained a covenant by the lessor, whom
within three months lay or allow the plaintiff to the defendants represent, to supply a certain
lay along the route so obtained , or failing that | quantity of water to the demised premises.
then along the present route, a line of iron six Disputes arose about the supply of water, and in
inch supply pipes from the upper reservoir, and | the year 1885 there was an agreement entered
having a connection with the second reservoir into which in my opinion cannot be read as part of
direct to the lower reservoir or the works or the agreement contained in the lease,butwasa sub
other convenient point at which the plaintiff sequent agreement between the parties imposing
might connect any service pipes for the distri. upon the lessor certain fresh liabilities,and to some
bution of the water ; (3) the expenses of this extent modifying the rights of the plaintiff .
work to be borne by the parties equally , but the Before the agreement the plaintiff had brought
easements to be obtained at the expense of an action under the lease only ; but, in myopinion ,
April 5, 1890.) THE LAW TIMES. [Vol. LXII., N . S. - 211
CT. OF APP.] SEARLE v. COOKE. [CT. OF APP.
he brings his present action for alleged breaches, I an official referee. I think the case is one which
both of the lease and of the subsequent agree it is the duty of the solicitors on both sides to re
ment. It was argued by Mr. Orackanthorpe that fer ; otherwise there will be a double expense and
the action was brought only in respect of the double litigation.
matters referred to in paragraph 10 of the state Fry,toL . me
J.- Itoam beof reasonably
the same opinion.
ment of claim , and that the plaintiff thereby con pears plain thatIt ap
the
fines himself to a breach of the covenant in the arbitration clause does not cover all the matters
lease as a ground of action . In my opinion that in dispute in the action . After what has been
is wrong. Paragraph 8 distinctly refers to said, especially by Bowen , LJ., I cannot help
breaches of the contract contained in the agree adding a word or two on the subject. I view
ment ; and although paragraph 10 might be held with very considerable regret the number of
to refer to breaches of the covenant in the lease cases in which the court is called upon to try the
only, the plaintiff expressly claims damages matter twice over, namely, to try the question
sustained “ by reason of thematters aforesaid ," whether there ought to be an inquiry as to
so that he cannot be precluded from claimingdamages, and then to try the matter again
damages in respect of all matters previously upon an inquiry as to what the damages are.
referred to in the statement of claim , whether I think, so far as it is possible, that these
mentioned in paragraph 8 or paragraph 10 . Now , double inquiries ought to be avoided .
what is the defendants' case ? They say that Solicitor for the appellants, Oliver Green.
there is a clause in the lease which applies to the Solicitors for the respondent, Bridges, Sawtell,
disputes referred to in paragraph 10 of the state Heywood
ment of claim . [His Lordship read the arbitra Edwards,, Ram , and Dibdin , agents for Rees and
Llanelly.
tion clause in the lease, and continued :) That to
mymind simply refers to questions arising under
the lease alone, and does not extend to all ques. Jan. 15, 16 , and 30.
tions arising as to property included in the lease ; (Before Cotton, LINDLEY, and LOPES, L .JJ.)
and I therefore hold that the clause of reference
to arbitration does not include all the matters SEARLE v. Cooke.(a )
that may arise under the subsequent agree APPEAL FROM THE CHANCERY DIVISION.
ment. The case of Wade- Gery v. Morrison Rentcharge- Arrears — Action for recovery - In
(ubi sup.) was referred to in support of the quiry as to lands charged — Lands formerly
contrary view ; but that case was entirely copyhold - Copyhold Enfranchisement Act 1852
different from the present. In that case there (15 8. 16 Vict. c. 51), 88. 8, 11, 24Copyhold Act
were two contemporaneous agreements, one 1858 (21 & 22 Vict.c. 94), 88. 6, 8, 10.
of which contained, and the other did not contain , Three rentcharges were created in favour of the
a stipulation for reference to arbitration , and the
learned judge decided that those two agreements lord of certain copyhold lands in 1880 by three
awards of enfranchisement made by the Copy
must be treated as together forming one agree hold Commissioners under the Copyhold Acts, at
ment, and that therefore the clause as to refer
ence to arbitration , which was found only in one the instance of the lord of the manor, and were
of the two parts of that agreement, was to apply charged upon the lands enfranchised . The
to matters arising under either of the documents awards did not distinctly set out the lands upon
which taken together made up the agreement. which the rents were charged . The plaintiff , to
That is entirely different from the present case. whom the rentcharges had been conveyed , sought
Then it was contended that, at all events, the to recover arrears of the rentcharges, and to have
question arising under the lease was the principal the lands charged therewith ascertained , or, if
matter in dispute, and that it ought to be re thatwas not possible, to have land of the defen
ferred , leaving the action to proceed only as to dants of equal value set out to secure them . The
matters not arising under the lease. I think that defendant, C ., was tenant of the copyhoid lands
such a course would not be right. It cannot be before the enfranchisements, and admitted he was
right to cut up this litigation into two actions, still in possession of the enfranchised lands, but
one to be tried before the arbitrator and the stated that they were intermixed with other free.
other to be tried elsewhere. Even if the arbitra hold lands of his, and that the boundaries were
tion clause should be construed so as to include all confused before the date of the enfranchisements.
matters in respect of which damages are claimed Held , that there was a duty imposed upon the copy
by the plaintiff, yet I should not think it right to hold tenant before the enfranchisements to keep
refer the case to arbitration . I think it would the boundaries distinct, and that the enfranchise
not be reasonable to refer the case to an arbi ments did not relieve him from the consequences
trator who could only deal with the questions of his neglect in the past, and that the holder of
arising under the lease, and would not be the rentcharge was therefore entitled to an in
competent to deal with other questions which quiry, what were the lands charged with these
might arise under a reference referring to him rentcharges, 80 far as this was uncertain , with a
all matters which are in difference between the direction that, if they could not be ascertained ,land
parties. Whether or not it will be reasonable, of the defendant, of the same extent,must be set
when the plaintiff knows what the defence put in out under the direction of the judge in chambers.
by the defendants is, to refer the whole matter is Held also ( following Thomas v. Sylvester, 29
another question . L . T. Rep. N . S. 290 ; L . Rep . 8 Q . B . 368), that
BOWEN , L .J. - I am of the same opinion, and I an action of debtmight bemaintained against the
can add little to what Cotton , L .J.has said . The terre-tenant for arrears of the rentcharge.
only word I will add is to emphatically recommend Decision of Kay, J. (61 L . T. Rep. N . S. 189)
that,as soon as the defence has been put in, the affirmed.
parties should consent to the cause being tried by 1 (a) Reported by A . J. SPENCER, Esq., Barrister-at-Law .
212 _ Vol. LXII., N .8.] THE LAW TIMES . (April 5, 1890 .
CT. OF APP.) SEARLE v. COOKE. [CT. OF APP.
GEORGE COOKE, one of the defendants in this and payment of such rentcharges and of all
action , was previously to the enfranchisements arrears thereof. They also claimed that the par
next hereinafter mentioned tenant on the court ticular lands charged with the rentcharges and
roll of three several copybold tenements of the comprised in the several deeds of demise should
manor of Nedging - with - Newton, otherwise be ascertained , and the proper metes and bounds
Newton Fee, in the county of Suffolk , whereof thereof fixed and determined , and that, if by
the plaintiffs, H . E . Paine, a plaintiff in this reason of confusion of boundaries or alteration of
action, and Richard Brettell, were lords. names or any other circumstances it should be
· By toree several awards of enfranchisement impossible to distinguish or ascertain the parti.
under the hands and official seal of the Copyhold cular lands so charged, or any of them , or any
Commissioners, and dated respectively the part thereof, that in that case such a quantity of
19th Feb . 1880, the commissioners , in pursuance land in possession of the defendant G . Cooke as
of the powers vested in them by the Copyhold | might be of equal value with the enfranchised
Acts 1852 and 1858, enfranchised the copyhold lands, or so much thereof as could not be distin .
lands held by George Cooke to be holden as free | guished or ascertained , might be set out for
hold subject to the payment of three annual rent securing the rentcharges respectively .
charges of 31. 158. 48 ., 101. 118. 4d ., and 21. 88. 9d., The defendants,by their defence, admitted that
issuing out of the lands respectively, which rent the defendant G . Cooke was still seised of the
charges had been ascertained under the pruvisions hereditaments enfranchised as aforesaid , and
of the Copyhold Acts as the consideration for that he was also seised of other freehold lands
such enfranchisements respectively . which lay intermixed with the lands so en .
By three several indentures, dated respectively franchised without any boundaries or visible
the 20th March 1880 , and made between H . E . | distinguishing marks. They alleged that the
Paine and R . Brettell of the one part, and the absence ofmetes and boundaries was well known
plaintiff Richard Searle of the other part, for and acquiesced in by the lords of the manor of
the considerations therein mentioned , the said which the lands were copyhold at the time of the
three annualrentcharges were conveyed by H . E . defendant G . Cooke's respective admittances and
Paine and R . Brettell unto and to the use of at the time of the respective awards of enfran .
R . Searle , his heirs and assigns, for ever. chisement and the creation of the three rent
· From the date of the enfranchisements until charges ; and, even if the defendant G . Cooke
the 19th Feb . 1887 the defendant G . Cooke duly had so neglected as alleged , the defendants
paid to the plaintiff R . Searle the rentcharges submitted that such neglect, committed while the
as and when the samerespectively became due ; lands were of copyhold tenure, could not now be
but he had not paid the rentcharges on any part relied on by the plaintiffs, and was immaterial to
thereof since that date. the relief claimed in the action . They also denied
By three several deeds of demise, dated respec that the defendant G . Cooke had neglected to
tively the 7th April 1888 , and made between the keep the boundaries of the lands.
plaintiff R . Searle of the one part, and the The defendants further alleged that the defen
plaintiff H . E. Paine of the other part, R . Searle, dant G . Cooke was willing, and had always been
in exercise of the power for that purpose given willing, that the particular lands charged with
to him by the Copyhold Act 1887, severally the three annual rentcharges should be ascer .
demised the lands comprised in the said awards tained , and the proper metes and boundaries
of enfranchisement respectively to H . E . Paine thereof fixed and determined , but submitted that,
for the term of 500 yearsupon trust ,by mortgage, as the position and state of the lands had not been
sale, or demise, for all or any part of the term of altered since the several awards of enfranchise
the hereditaments so charged as aforesaid and ment and the creation of the three annual rent
thereby demised, or any part thereof, orby receipt charges, and as he had not been guilty of any
of the income thereof, or by all or any of those | neglect or fault, and as the ascertaining of such
means, or by any other reasonable mearns, to raise lands and the fixing and determining of such
and pay the annual rentcharge issuing out of the metes and boundaries were solely at the desire
hereditaments comprised in each such deed , and and for the advantage of the plaintiffs, the cost of
all arrears thereof due or to becomedue. ascertaining such lands and fixing and deter
The plaintiffs, R . Searle and H . E . Payne, in mining such metes and boundaries, as well as
consequence of the nonpayment of the rent the costs of the action , must be paid by the
charges, commenced this action against G . plaintiffs.
Cooke and his mortgagees, and by their state Theaction was tried before Kay, J., who held
ment of claim alleged that on the respective that the land subject to the larger rentcharge of
admittances of the defendant G . Cooke he neg . 101. 118. 4d . had been ascertained by the evidence
lected to present and make known the metes and before him , and made a declaration as to the
boundaries of the lands to which he was admitted land so charged . Asto thetwo smaller rentcbarges
tenant, and that he had neglected to keep the he directed an inquiry in chambers what were the
boundaries, and that in consequence the plaintiffs lands charged with those two rentcharges re
were unable to set forth in respect of what parti. spectively, with a direction that, if they could not
cular lands the three annual rentcharges were be ascertained, land of thedefendant of the same
respectively due and payable, and that by reason extent in each case as the land so charged must
thereof the plaintiffs could not with safety dis be set out under the direction of the judge in
train upon or exercise their other rights and chambers, and he made an order for payment of
remedies over such lands for recovering payment the arrears. The judge ordered the defendant
of the said annual rentcharges respectively and Cooke to pay the costs up to and including the
the arrears thereof. The plaintiffs claimed a trial,but reserved all further costs : (61 L . T. Rep .
declaration that the plaintiff R . Searle was N . S . 189 .)
entitled to the three several annual rentcharges, The defendants appealed .
CT. OF APP.] SEARLE V. COOKE . [CT. OF APP.
Crackanthorpe, Q .C . and W . E . Mozley for the i of the enfranchisement under the provisions of
appellants. - In order to charge the defendants the Copyhold Act 1852, s. 24 . But that was
with the expense of an inquiry as to boundaries not done, as he trusted apparently to the rent
it is necessary to show that they were in default charges being paid regularly. In 1887, owing
in not keeping the boundaries distinct. The duty to the agricultural depression or some other
of keeping the boundaries distinct is one of the cause, the owner of these properties refused to
incidents of copyhold tenure from which the | pay these rentcharges. After some negotia
tenant is discharged by the enfranchisement : tion and correspondence, this action was brought
in 1888, seeking to have the late copyhold pro
Copybold Act 1852, s. 11 ;
Copybold Act 1858, s. 10. perties ascertained , and if they could not
The whole foundation of this case is neglect on be ascertained , to have other properties
the part of the tenant. No neglect is shown equal in value set out, and for payment of the
before the enfranchisement, and the enfranchise arrears of the rentcharges. Judgment was
ment put an end to all the lord 's rights in this given by Kay, J. for an inquiry to ascertain
respect. The confusion of boundaries took place what the tenements subject to the rentcharges
before the creation of the rentcharges. It has of 31. 158. 4d . and 21. 88. 9d . were. As to the pro
been held that a lessee is not bound to keep the perty subject to the rentcharge of 101. 11s. 4d.,
boundaries of his land distinct if they were not the judge found himself able, upon the evidence
distinct when he took the lease : before him at the hearing, to distinguish that
Speer v. Chawter, 2 Mer. 410. property. Then he made an order that, if the
The same rule will apply to a copyhold tenant. property subject to the two smaller rentcharges
The plaintiff is disqualified from asking for the could not be ascertained, other properties should
relief he now claimsbecause he neglected at the be substituted so as to enable the plaintiff to en
time of the enfrancbisement to have the boun force his remedy by distress, and judgment was
daries defined by the commissionersas he might given for the arrears. Now , although the defen .
have done under sect. 24 of the Copyhold Act dant stated that he was always ready and willing
1852. A court of equity will not interfere now that the properties should be ascertained , he
to assist him . The landlord cannot obtain judg. fought the question on every point. What we
ment for the arrears. Thomas v. Sylvester (29 have to consider is, in the first place, if the
L . T. Rep. N . S . 290 ; L . Rep. 8 Q . B . 368 ) was judgment was right in ordering that the boun.
not like this case, but was an action for arrears daries should be ascertained , and in giving the
of a rentcharge where there was a covenant to we alternative relief by way of substitution. Here
pay. As to the rentcharge of 101. 118. 4d ., the holdhave properties which were formerly copy.
, and it is clear to me that a copyhold
plaintiffs might have found out the lands subject tenant
to this by reference to their own title-deeds, and is bound to keep the boundaries of his
should not have the costs of the action given to copyhold tenement clear. If he does not do so
them in this respect. he is guilty of default, and not only he but every
Robinson , Q .C . and Ingpen for the respondents. person claiming through him . Apart from the
question of the result of the enfranchisement, the
- The inquiry as to boundaries should be granted Court of Chancery would have directed inquiries
intionexercise of the ordinary equitable jurisdic to ascertain the boundaries, and if they could not
to remove difficulties in the way of enforcing be
a legal right : ascertained , it would have ordered that other
properties should be substituted for the lands
Duke of Leeds v. Earl of Strafford, 4 Ves. 180 ; originally charged . That is clear from the case
Mayor of Basingstoke v. Lord Bolton , 1 Drew . 270.
We are in the position mortgagees,and mort of the Duke of Leeds v. Earl of Strafford (ubi sup.).
of But in this case there is the fact that in 1880
gagees would be entitled to such an inquiry. there was an enfranchisement. The copyhold
The duty of the tenant to keep the boundaries
distinct subsists notwithstanding the enfranchise- | tenure thento cameto
to subject an end, but itWhat
these rentcharges. was put
thenanis end
the
ment: (Copyhold Act 1852, s. 17 .) If the boun
daries cannot be ascertained there is a right to
effect of the enfranchisement ! It is argued
have other land given in substitution : that it put an end to this duty of keeping the
boundaries distinct. No doubt it did so as to the
Lupton v. White, 15 Ves. 432. future, but not as to the past. Thewords of the
Crackanthorpe, Q .C . replied . Cur. adv. vult. enfranchisement deed , following the schedule to
the Copybold Act 1852,are : " To be holden subject
COTTON, L.J. — The plaintiffs in this case are to the rentcharges, unto , & c., as freehold hence
purchasers from the lord of a manor of three forth and for ever discharged by these presents
rentcharges granted to the lord on the enfran. from all fines, heriots, reliefs, quit-rents, and all
chisement of three copyhold tenements. The other incidents whatsoever of copyhold or cus
metes and bounds of these lands were not tomary tenure.” That, in my opinion ,has the effect
ascertained at the time of the enfranchise of releasing the owner of the land enfranchised
ment, but in the enfranchisement deeds they for the future from the duty ofkeeping the boun
are referred to by the description under which | daries distinct, but it does not relieve him from
the copybold tenant was admitted on the the consequences of his previous neglect of such
court-rolls. The enfranchisement took place duty. It does not put an end to any liability he
in 1880, and was compelled by the lord may have incurred for breaches which have
under the powers of the Copyhold Acts. already taken place. There is therefore a right
Under the circumstances the particular copybold | in the lord to have the same remedy for previous
parcels could not be ascertained , as they | neglect of duty as he would have had against a
had been mixed up with other lands beld by tenant who had not preserved his boundaries.
the same tenant. The lord , if he so wished it, Therefore the appeal as to that part of the judg
might have bad the parcels set out at the date 1 ment fails. Mr. Crackanthorpe said the lord had
214 - Vol. LXII., N . 8.] THE LAW TIMES. [April 5, 1890.
CT. OF APP. SEARLE v. Cooke. [CT. OF APP.
the right at the time of the enfranchisement, by 1 by a long course of decisions, and is laid down
the Copyhold Act 1852, s. 24, to have the boun . clearly in Duke of Leeds v. Earl of Strafford (ubi
daries ascertained , and if he did not avail him sup .), that a copyhold tenant is bound to preserve
self of that right at the time he cannot now ask the boundaries of the copyhold lands. I do not
for relief by this action . But, in my opinion , the know what would happen if the boundaries had
provision of the Act does not deprive him of the been confused by an earthquake, volcanic erup
rights which he would have had apart from the tion, or flood. It is not necessary for us to deter
enfranchisement, although that fact might affect mine that, as no such event has occurred here.
the question of costs. But it is said that he has It is obvious here that, at the date of the enfran
made an election to take the rentcharges upon chisement the lord had the right to bring an action
lands thatwere not ascertained ;but in my opinion for the purpose of ascertaining the boundaries of
it is not a question of election - he was not put to the land ; and, if this could not be done, for the
an election between two rights. He did not avail purpose of getting other lands substituted . Inci.
himself of the additional right which was given dentally it was also settled in the case I have men
him by the Act ; but that does not deprive him of tioned, that where the boundaries are confused, if
the other right which he had before the Act. any rents are in arrear, the Court of Chancery
The question of costs does not arise here, because would compel payment. Mr.Crackanthorpe raised
the judge has reserved the costs of the inquiry for a further question which deserves attention . He
ascertaining the boundaries. It is true that the said that, in consequence of certain sections
judge ordered the defendant to pay the costs of in the Copyhold Acts, when the lord sought to
the action up to the hearing, because he held have the property enfranchised , he elected to have
that the defendant was wrong, as I think he his rentcharges upon property the boundaries of
was wrong, in not paying the rentcharges,and in which had not been ascertained , and that having
saying that no inquiry should be held for the made such election he cannot now withdraw . It
purpose of ascertaining the boundaries. Another appears to me that the sections of the Act fall
point made by the defendants was, that the pro short of that. Themain section is sect. 24 of the
perty charged with the larger rentcharge was Act of 1852. [His Lordship read the section and
ascertnined by the judge at the trial, and if the continued :) There is no doubt that the lord of a
plaintiffs had taken the trouble to inquire what manor might have applied to have these boun
their deeds contained they might have found out daries ascertained , but he did not do so . Has he
for themselves what the lands subject to this lost his right by not so applying ! I think it
rentcharge were. There might have been some would be going too far to say he had lost it. By
thing in this objection if the defendant had him . the enfranchisement, the relation between the
self offered to give all the information in his lord and his tenant was severed , and if the con
power to the plaintiffs. He did not do this, but fusion of boundaries had arisen after the enfran
stood on his rights, and said that it lay upon the chisement, the case of the tenant would have
plaintiffs to find out what these properties were. been different. But it is admitted that is notthe
The plaintiffs were therefore forced to come to present case, and in my opinion the lord does
the court to discover what the properties were. not by the enfranchisement lose any rights he
Then we come to this — the judgment orders had acquired at the date of the enfranchisement.
payment of arrears . Was that right ? It is The costs of the inquiry have been reserved . I
admitted that the defendant Cooke was in pos think Kay, J. was right in so reserving them .
session of all these properties, together with other The conclusion I arrive at is, that his decision was
properties, and it is admitted that the rents of right on all
LOPES, L .J.points.
- It is settled law that a tenant is
rentcharges.
the propertiesItwere
is saidsufficient
, however,
to that
pay no
all action
these bound to keep
could be brought for arrears. But it was decided , tinct, and the the boundaries of his property dis
lord has the right to compel him
and I think rightly decided ,by the case of Thomas to keep them distinct. If the tenant has not
v. Silvester (ubi sup.) that such an action could
be brought. In former days, where a realaction fulfilled his duty, and the boundaries cannot be
ascertained , there is a right to obtain the substi.
could be brought, the personal action for debt tution of other lands. If there had been no
would not lie; but after realactionswere abolished enfranchisement here, the case would be clear.
all the judges decided in that case that a person We have, however, to consider the effect of the
entitled to a rentcbarge could bring an action enfranchisement. For the future the tenant is
for arrears against the terre-tenant. It is true free from all obligations ; but, as to the past, it
that there was in that case a distinct covenant to does not destroy his obligations, or the rights
pay, but it was not the defendant's covenant, nor which may have accrued to the lord . I think the
was it a covenant running with the land. That obligation of the tenant with regard to these
case, therefore, in my opinion, applies here. It boundaries is the same as if no enfranchisement
is said that there are remedies given by the had taken place. I think therefore the decision
Copyhold Acts to enable a lord to enforce his of Kay, J. was right. As to the action of debt I
rentcharges, and therefore he cannot take the need not say anything, because that is settled by
course which was authorised by Thomas V. Thomas v. Sylvester (ubi sup.).
Sylvester. The mere fact that these Acts give
someadditional rights does not deprive the lord Solicitors for the plaintiff, Beaumont, Son,and
of rights which he had before. In my opinion Rigden .
the judgment was right, and the appeal there Co., agents forforJosselyn
Solicitors the defendant, Field , Roscoe, and
and Sons, Ipswich .
fore fails.
LINDLEY, L . J. - In this case I only entertained
a doubt as to one question , but I have come to the
conclusion that Kay, J.was right on that point as
well as in the rest of the case. It is settled law
April 5, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. - 215
Caan . Div.] Re DALE AND Plant LIMITED. [Chan. Div.
HIGH COURT OF JUSTICE. | under the agreement ; (2 ) 1181. 138. 4d. arrears of
salary as managing director ; and (3 ) damages
CHANCERY DIVISION . for breach of the agreement to employ him as
manager for ten years at a salary of 3001. per
Thursday,lDec. 19, 1889. annum .
(Before Kay, J.) The chief clerk had assessed the damages at
15001. if the claim to damages should be sus
Re DALE AND Plant LIMITED. (a ) tained .
Company - Winding-up - Proof - Claim for salary . It was arranged that the entire claim should be
- Competition with outside creditors - Money admitted at the sum of 16501., subject to the
due in character of member - Managing director question whether Plant was entitled to prove in
- Companies Act 1862 (25 & 26 Vict.c. 89),8. 38 , competition with the other creditors of the com
sub-sect. 7. pany, and the matter was adjourned into court
The business of D . and P . was sold to a company, for the determination of this question .
and an agreement was entered into whereby Sect. 38, sub-sect. 7, of the Companies Act 1862
D . and P . were appointed managing directors provides as follows :
for a term of ten years, each at a salary of 3001. No sum due to any member of a company, in his cha
per annum . By the constitution of the company | racter of a member, by way of dividends, profits, or
directors were required to be shareholders. In otherwise, shall be deemed to be a debt of the company,
thewinding-up of the company P . claimed to payable to such member in case of competition between
himself and any other creditors not being a member of
prove as creditor in respect of arrears of salary , the company ; but any such sum may be taken into
and damages for breach of the agreement. The account for the purposes of the final adjustment of the
question was whether he was entitled to prove for rights of the contributories amongst themselves .
them in competition with the other creditors. Chadwyck Healey for the applicant. - In Re
Held, that the sums claimed were not debts due to The Leicester Club and County Race Course Com
P. in his character ofmember ; and thathe was pany ; Ex parte Cannon (53 L . T . Rep. N . S . 340 ;
entitled to prove for them in competition with the 30 Ch. Div. 629), it was held that à director's
other creditors. unpaid fees in a company, where directors were
Rs Leicester Club and County Race Course Com obliged to be members, were due to him in his
pany Limited ; Ex parte Cannon (53 L . T. Rep. character of member ; and in Dunston v. The
N. Š. 340 ; 30 Ch. Div. 629), distinguished . ImperialGas Light Company (3 B . & Ad. 125 ),
ADJOURNED SUMMONS. which was the case of a company incorporated
The above-named company was established in by Act of Parliament, it was held that directors
Oct. 1886 for the parpose of acquiring and carry could not claim a remuneration for their labour
according to its value. But the present claim
ing
carried on business of drysalters, & c., formerly
on the
by James Dales (known as Dale) and is not made by the applicant in his character of
Samuel Allen Plant, of Birmingham , and an member. When a person gives up his whole time
agreement was entered into between Dales and he stands on a different footing from an ordinary
Plant and the company whereby the business was director. In this case the company have made
sold to the company in consideration of cash and this claim a debt. [Kay, J. - Is not sub-sect. 7 of
fully paid -up shares, and Dales and Plant were sect. 38 intended to enable a managing director
for the term of ten years, from the 31st March to claim his salary ? ] Yes ; because themoney is
1886, to remain as managing directors of the not due to him in his character of a member.
company,and each of them was to be remune Renshaw , Q .C . and Levett for the liquidator.
rated at the rate of 3001. per annum . The case of Ex parte Cannon (ubi sup.) is quite
By the articles of association (art. 104 ) Dales conclusive against this claim ; and we rely also
and Plant were appointed the first managing upon the words of the sub -section ," or otherwise,”
directors upon the terms contained in the agree which exclude all claims of every kind made by a
ment; (art. 106 ) the qualification of every director member of a company. It is not confined to a
was to be the holding in his own right of not less claim made in the character ofmember .
than ten shares ; (art. 107) the directors were to No reply was called for.
be paid for their services out of the funds of the Kay, J. - I do not agree with the argument
company the remuneration following, viz. : Dales
and Plant each 3001. per annum , and each of the which has been addressed to me on behalf of the
liquidator. This is a very simple point, and, to
other directors such sum as the company in my mind, a very clear one. Here is a man
generalmeeting should from time to time deter appointed
mine ; (art. 110 ) every director was to vacate appointed, asmanaging
appears
director. He was so
clearly enough, because he
his office if he ceased to be a holder of at least bad specialknowledge of the business which this
ten shares ; (art. 119) Dales and Plant were to company was about to carry on , and by the
be styled “ managing directors," and to remain articles of association he was to receive certain
on the board so long as they continued in the remuneration for the management of thebusiness
employment of the company under the agree of the company. Now , it is quite true that a
ment or any extension thereof, and the determi director was the only person who could be so
nation of the agreement or any extension thereof appointed , and it is true also , or I assume it to
was not to invalidate their appointment as be the fact, that no one could be director who was
directors. not a shareholder. It is said that all remunera
An order was made for the winding-up of the tion agreed to be paid to the claimant for his
company, and in the course of the winding-up special skill and attention in managing the
Plant claimed to rank as a creditor for business of the company is paid to him in his
(1) 2741. 188. 10d . balance of purchase money character of member of the company. I do not
(a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law . agree with that contention . Let me try it by the
CHAN. Div.] Re FLOWER ; MATHESON v.GOODWYN . [Chan . Div .
same analogy which I put to counsel in the him in his character of member ; profits are due
course of the argument. Suppose this was the to him in his character of member ; there may be
case of a solicitor who had a special training in something else equally due to him in his cha
a particular branch of law , wbich was of great racter of member which this clause was intended
importance to the company, and that such to include. To my mind it is clear that the
solicitor happened to be a member of a company, clause does not include money due for goods
and sent in his bill of costs for business done for which a member has supplied to the company ;
the company. In the winding-up ofthe company, otherwise the section would say so. Nor can it
could it be said that the solicitor should not be include payment for particular work which he
paid in competition with the other creditors has special skill in doing, and which he has done
because he was a shareholder ? Obviously that for the company. I am of opinion that this
proposition could not be maintained for a money wbich ought to have been paid to this
moment. It was so admitted in the argument. | claimant solely as managing director is money
But it is said that, if the articles of association for which he may prove in competition with
provided that no one should be a solicitor to the other creditors. The only case cited is that of
company unless he was also a shareholder, then Re The Leicester Club and County Racecourse
the payment made to him would be a payment to Company ; E .c parte Cannon (53 L . T. Rep. N . S.
him in his character of member. I do not follow 340 ; 30 Ch . Div . 629), where a director claimed
that , and cannot agree with it . The payment to for fees, and the articles of association provided
him in respect of his bill of costs cannot be pay. that “ the remuneration of directors for their
ment to him in his character ofmember,whether services shall be such sum as the company in
the articles of association do or do not contain generalmeeting may from time to time deter:
such a provision . The payment in each case is mined , which shall be divided amongst the
to him in his character of solicitor, and not in directors in such manner as they shall from time
his character of member. Take another case. to time think fit." It was held in that case that
Suppose a company bought a million of bricks the remuneration camewithin the words “ money
from a man who was a brickmaker. If he hap due to him in his character of member," I say
pened to be a shareholder , no one could doubt nothing about that case, except that it is not the
that that circumstance would not prevent him case now before me, and it seems to me very
from proving in competition with the other | plain that this is not money due to the claimant
creditors. But suppose that the articles of asso - in his character of a member of this company,
ciation contained provisions that nobricks should and that he is entitled to prove for it in the
be bought of any person who was not a share. winding-up in competition with the other
holder in the company. Is then the money paid creditors.
as the price of the bricks money due to the Solicitors : Belfrage and Co., agents for Reece,
vendor of them in his character of member ? Harris, and Harris,Birmingham ; Ellis, Munday,
Certainly not. It is not money due to him in his and Co.
character of member, but money due to him in
his character of brickmaker or brick -seller, and
the fact that the articles said that you should not
buy of anyone who was not a member would not Thursday, Jan. 16.
make the price of the bricks money due to him (Before Kay, J.)
in his character of member, any more than it Re FLOWER ; MATHESON v.GOODWIN.(a)
would be if there were no such article. Then it Apportionment– Tenant for life and remainder
is said , and this, to my mind, is the strongest man - Reversion falling in - Mode of apportion
part of the argument, that sect. 38 , sub-sect. 7,
of the Companies Act 1862 is introduced into the ment- Power of appointment over reversionary
Act of Parliament by analogy to the partnership fund subject to settlement- Appointment of fund
law . A debt due to a partner could not be as part of appointor's residue - First tenant for
proved in competition with outside creditors life under settlement also first tenant for life
when the partnership was dissolved . That is of residue- Conversion - Substitutionary gift,
quite true. But theanswer is,that a shareholder " Descendants."
is not a partner , and this section does not intro By a settlementmade in 1815, A ., on the marriage
duce all the partnership law with respect to every of his son , settled two several sums of 10,0001.
shareholder. It only introduces - I daresay it upon trusts for the son for life, and after the
may be by analogy to the law of partnership son 's decease for the son 's wife for life, and in
the particular provision which has now to be default of issue of the marriage as the testator
construed . That provision is this : “ No sum due should by deed, will, or codicil referring to the
to any member of the company in his character settlement, appoint. By his will in 1832 (not
of member ” - I omit the intervening words referring to the settlement). A . directed that his
“ shall be deemed to be a debt of the company, residuary personal estate, or the produce thereof,
payable to such member in a case of competi. should be invested , and held upon trust for his
tion between himself and any other creditor not son for life, and , in default of issue of the 8012,
being a member of the company ." What does for A .'s daughters and their children , the
“ character ofmember " mean ? The intervening daughters taking life interests . By a codicil in
words seem to me to show that clearly. The 1833 A . appointed that the two several sums of
words are " by way of dividends” - that is, on 10,0001. mentioned in the settlement should form
his shares. “ Profits " again is in respect of part of his residuary personal estate, and be paid
his shares. Then comethe words " or otherwise." to his executors and trustees accordingly . A . died
The words “ or otherwise " mustmean something in 1834 ; the son in 1850, without having had
analogous to dividends or profit on his shares. issue ; and the son's wife in 1889. Ather death
That shows themeaning. Dividends are due to I (a) Reported by E. A . SCRATCHLEY, Esq., Barrister-at-law.
April 5, 1890 .) THE LAW TIMES. (VOL LXII., N . 8.- 217
Char. Div.] Re FLOWER ; MATHESON v.GOODWYN. [Chan . Div.
a sum of 25,4001. Consols represented the two and from and after the determination of the
sums of 10,0001. The executors of thewill proposed estate thereby limited to Sir James Flower to
to apportion the 25 ,4001. Consols between capital the use of the trustees of the will during the life
and income under the will and codicil, treating of Sir James Flower to support contingent
the capital as amounting to 31301. 168. only , remainders, with remainder to the use of the
being the sum which at the death of A . would , if sons and daughters of Sir James Flower as
accumulated at 4 per cent, less tax, with annual therein mentioned , and in default, or on failure of
rests, have produced the value of the 25 ,4001. such issue, to the use of his, the testator's,
Consols on the day of the death of the son 's daughters Ann Mary Perceval, Elizabeth
widow . Goodwyn , Caroline Magnay (afterwards Caroline
Held, that the principle of Re The Earlof Chester Postle ), Clarissa Martyn (then Clarissa Flower),
field's Trusts (49° L . T. Rep . N . S. 261 ; 24 Ch . and Jemima Holmes (then Jemima Flower )
Div. 640) applied, and that the proposed appor. equally as tenants in common for their respective
tionment was correct. lives, and from and after the decease of each or
By another codicil A . desired his son to insure his either of such daughters, then as to the one-fifth
life for 50001., and to bequeath that sum to his part or share of the daughter so dying to the use
wife for life, and at her death , or at the death of of all and every the child or children of such
the son , to bequeath the 50001. to A .'s daughters or daughter who being a son or sons should attain
their " descendants " in equal proportions. the age of twenty -one years, or being a daughter
Held , (1) that thiswas a substitutionary gift to the or daughters should attain thatage or bemarried ,
descendants of those of the daughters of A . who in equal shares and proportions, and to their
died in the lifetime of the son's wife leaving several heirs and assigns for ever. The testator,
descendants ; (2 ) that “ descendants ” included after making a gift of 5001. a year to Dame Mary
children , grandchildren , and great-grandchildren Jane Flower during her life in case she should
living at thetimeof distribution (Weldon v. Hoy survive her husband Sir James Flower and
land, 4 De G . F . & J. 564, followed ) ; and (3 ) that, other pecuniary and specific bequests, gave the
although the daughterswere to take as tenants in residue of his estate to his trustees upon trust
common , the words “ in equal proportions” did to invest the same as therein mentioned , and to
not apply as between the descendants themselves , pay the interest and dividends thereof to his son
such descendants taking as joint tenants. Sir James Flower for his life or until he should
Macgregor v. Macgregor (2 Coll. 192) followed . become bankrupt or insolvent as aforesaid , or
By an indenture of settlement dated the should mortgage or assign the same, and then to
hold such residuary estate upon the same trusts
11th Sept. 1815, and made upon the marriage of as were in the will before declared with respect
Sir James Flower and Dame Mary Jane Flower
(then Mary Jane Sterling, spinster) two several to the testator's real estate, and the rents and
sums of 10,0001. and 10,0001. were settled by Sir profits thereof, or as near thereto as might be
Charles Flower, the father of Sir James Flower , and the rules of law and equity would permit.
upon trust to invest the same as therein men The testator made a first codicil to his will,
tioned and pay the incometo Sir James Flower dated the 5th Aug. 1833, which in no way affected
during his life, and after his decease to pay the the trusts declared in the will concerning his real
incometo Dame Mary Jane Flower, and after the estate or his residuary estate.
decease of the survivor of Sir James Flower and The testator made a second codicil to his will,
Dame Mary Jane Flower upon trust as to both ! dated the 18th Oct. 1833, and thereby directed
capital and income for the children of the mar and appointed that the two sumsof 10,0001. com
riage as therein mentioned, and in default of prised in the settlement made on the marriage
children upon trust for such person or persons, of his son Sir James Flower, and over which he,
and to such ends, intents, and purposes, and in the testator, had a power of appointment by deed
such manner and forn , parts, shares, and pro or will, should form part of his, the testator's,
portions as Sir Charles Flower should by deed or residuary personal estate, and be paid to his
by his will, or any codicil or codicils thereto (to executors and trustees accordingly .
be severally and respectively an express reference The testator made a third codicil to his will,
to the indenture of settlement, and a declared dated the 28th Oct. 1833, as follows:
intention of exercising thepower of appointment), I revoke that part of my will in which I have
direct or appoint, and in default of appointment bequeathed the sum of 5001. a year to my son 's wife for
in trust for Sir James Flower absolutely. her life in the event of her surviving her husband, and
The marriage between Sir James Flower and instead thereof I wish my son to insure his life in the
Phønix Office for 50001., and to bequeath that sum to
Dame Mary Jane Flower was shortly afterwards his wife in case she should survive him , to be invested
duly solemnised , but there was never any issue of in trust for her sole use and benefit during her life, and
such marriage. at her decease, or at the decease ofmy son , if he should
The two sums of 10,0001. were invested in and be the longest liver, the said 50001. to be bequeathed to
my daughters or their descendants in equal proportions.
represented by a sum of 25,4021. 148. 5d . Three And I confirm my will and former codicils in other
per Cent. Consolidated Bank Annuities, recently respects.
converted into a like sum of 21. 158. per Cent. Sir Charles Flower died on the 15th Sept. 1834 .
Consolidated Bank Annuities. He had six daughters only (already mentioned),
Sir Charles Flower, by his will dated Jan . 26, who were all dead .
1832,devised allhis realestates to his son , Sir James Sir James Flower died on the 17th May
Flower, during his life or until he should become 1850, having duly received the income of the
bankrupt or take the benefit of any Act or Acts two sums of 10 ,0001., or the securities representing
for the relief of insolvent debtors, or should do the same, down to the time of his death .
any act to assign , charge,mortgage, or incumber1 Sir James Flower duly insured his life for the
his life estate in the premises or any part thereof, ! sum of 50001. as directed by the third codicil to
218 - Vol. LXII., N . 8.] • THE LAW TIMES . ( April 5, 1890.
Cuan. Div .] Re FLOWER ; MATHESON v .GOODWYN. [Chan . Div.
the will of Sir Charles Flower, and after his being a son of Anne Caroline Houstoun , was a
death the sum of 50001. so insured was received great-grandchild of Sir Charles Flower with a
by the trustees of the will of Sir Charles Flower parent not now living ; and Eugene Ayshford San.
and invested in the purchase of51881.18. 3d. Three ford , who , as being a son of Christina Emma
per Cent. Consolidated Bank Annuities, the divi. Sanford , was a great- grandchild of Sir Charles
dends whereon had been paid to DameMary Jane Flower with a parent now living.
Flower to the date of her death . An originating summons was accordingly
Sir James Flower, by his will dated the taken out for the determination of the following
17th Jan. 1850 , gave the residue of his real and questions :
personal estate to his trustees upon trust, in the 1 . Upon what principle and in what shares, and
events that had happened , for Henry Maconochie amongst what persons the trustees of the will
Lusignan . and codicils of Sir Charles Flower ought to dis.
DameMary Jane Flower died on the 4th Feb. tribute the sum of 25 ,4021. 148. 5d . Bank
1889, having duly received the income of the two Annuities, as representing the two sums of
sums of 10,0001., or the investments representing 10,0001. and 10 ,0001. settled upon the marriage of
the same, down to the time of her death , and also | Sir James Flower.
the sum of 51881. 18. 3d . Consols recently con- ! 2. Whether the third codicil to the will of Sir
verted into a like sum of 21. 158. per Cent. Charles Flower imposed upon Sir James Flower
Consols. any and what trust ; and what were the rights of
Questions had arisen as to how the sum of Dame Mary Jane Matheson and the persons
25,4021. 148. 5d . Bank Annuities ought to be claiming under such codicil as against the sum of
divided between the several persons entitled 51881. 18. 3d . Bank Annuities representing the
thereto under the will of Sir Charles Flower. policy moneys secured by the policy effected by
It was contended on the part of Dame Mary Sir James Flower in pursuance of the directions
Jane Matheson, one of the children of Ann Mary of such codicil .
Percival, that such sum of Bank Annuities ought The summons was adjourned into court, and
to be divided into five equal parts, and that such now came on to be heard .
one- fifth parts were respectively distributable Badcock for the plaintiff.
among the respective children of Sir Charles J. Bamfield Street, J. T. Prior , Borthwick,
Flower's five deceased daughters, or the persons Christopher James, Bateman Napier, F . J. Lewis,
claiming through or representing such children . and Frobisher Mills for the defendants.
On the other hand, it was contended by the
trustees of the will of Sir James Flower , and also The arguments sufficiently appear from the
by therespective legal personalrepresentatives of judgment.
Sir Charles Flower's five deceased daughters, The following authorities were referred to in
that the reversionary interest of Sir Charles the course of the arguments :
Flower in the sum of 25,4021. 148. 5d . Bank On the first question :
Annuities at the time of his death ought to have Beavan v. Beavan , 49 L . T. Rep. N . S. 263 ; 24 Ch.
been sold , and the proceeds thereof invested , and Div . 649 ;
the incomeof such investments paid to Sir James Re The Earl of Chesterfield 's Trusts, 49 L. T. Rep.
Flower during his life, and after his death to Sir
Charles Flower's five deceased daughters in equal ReN .Hobson
S . 261 ; 24 Ch. Div. 640 ;
; Walker v. Appach , 53 L . T. Rep. N . S.
| 627; 55 L. J. 422, Ch.
shares during their respective lives ; and that, as Howe v. The Earl of Dartmouth , 7 Ves. 137 ;
no such sale or investment was actually made, a Wilkinson v . Duncan , 23 Beav . 469 ;
calculation ought now to be made of what sum at Hinves v. Hinves, 3 Hare,609 ;
the date of the death of Sir Charles Flower Pickering v. Pickering, 4 My. & Cr. 289.
would , if accumulated at 4 per cent. less tax, with (KAY, J. referred to Wright v. Lambert, 6 Ch. Dir.
annual rests, produce the sum of 25 ,1481. 148. | 649.]
cash , being the value of the sum of 25 ,4021. 148. 5d . OnTacker
the second question :
Bank Annuities on the 4th Feb . 1889, the date of v . Billing, 3 Jur. N . S . 483 ;
the death of Dame Mary Jane Flower ; and that Robinson v . Sykes, 23 Beav. 40 ;
from such calculation it would be found that the Weldon v. Hoyland, 4 De G . F .'& J. 564 ;
sum of 31301. 168. represented such part of the Walsh v . Wallinger , 2 Russ. & My. 78 ;
value of the sum of 25,4021. 148. * 5d , Bank Holland v. Wood , L . Rep. 11 Eq. 91.
Annuities as was attributable to capital; and that KAY, J.— The testator in this case gave the
22,0171. 188. represented such part of the value of residue of his property to his trustees in trust to
the sum of Bank Annuities as was attributable to invest the same and the produce thereof in their
incomeand accumulations of income ,and that the | names in certain investments, and pay the
sum of Bank Annuities ought to be sold , and income to his son James Flower for his life or
the proceeds thereof distributed upon that until he became bankrupt, and after his death , if
footing . he left children , to those children , and if he died
A question had also arisen as to the effect of without leaving children — which event happened
the third codicil to the will of Sir Charles - then on trusts which in effect were to certain
Flower. named persons for life as tenants in common . So
It was submitted that the interests of the six the residue was to go first of all to James Flower,
daughters of Sir Charles Flower would be suffi then to his children , and then , if he had no
ciently represented by Maria Flower, one of such children , to certain other named persons, with
daughters, and that the different classes of remainder to their children . That is a settlement
descendants of such daughters would be suffi- of the residue, and the words in which the residue
ciently represented by Dame Mary Jane is given show that everything which was not in
Matheson as a living granddaughter of Sir a proper state of investment would be converted,
Charles Flower ; James Flower Houstoun, who, as : because the testator says they are to invest
April 5, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8.- 219
Chan . Div . ] Re FLOWER ; MATHESON v . GOODWYN . [CHAN. Div.
" the produce thereof," which implies that they one need not go so far, because in this case I do
have converted a thing which is not in a find a very plain indication in the words in which
proper state of investment. The testator had the residue is given that that which is not in a
à general power of appointment by deed or will proper state of investment shall be converted .
over two sums of 10 ,0001. each . The residuary The testator says that the produce of his residue
bequest in the will did not exercise that power, is to be invested . How can you have produce
but the testatormade a codicil by which he says : without converting the subject of conversion
" I will, direct, and appoint that the said two which is not in a proper state of investment ?
several sums of 10,0001. and 10,0001. mentioned , Then , further, I have the indication that it is
and comprised in the indenture of settlement given to one for life, and in the event of that
made on the marriage of my son James Flower, tenant for life dying without children , to a
and over which I have a power of appointment number of other persons as tenants in common
by deed or will, shall form part of my residuary for life, and then the capital is given over. It
personal estate , and be paid to my executors and might well be that, if the trustees were at liberty
trustees accordingly." That is just the same as | to say, “ Wewill not convert this at all; we will
ifby the clause in the will by which he gave his wait till that falls in ,” none of these tenants for
residuary personal estate to trustees he had, life would have a single penny, and the whole of
referring to the power, exercised the power, and this 25,4021. might go to the persons entitled
said that the 10,0001. and 10,00CI. should form to the capital. Then it is said, “ But there
part of his residuary personal estate. If that | is an indication in the codicil that the tes.
were so, there would be an immediate direction to tator did intend it should not be converted ."
convert, because it was to be invested , and Now , what is the indication ? In my opinion the
the income paid to the tenant for life, James words do not contain any indication of the kind.
Flower, then to certain other tenants for life, and He says, “ I appoint those two sums to form part
then the capital to the persons who were cntitled of my residuary personal estate." He does not
to the rest of the residuary personal estate. But even say, “ I appoint those two sums to A . for
supposing there had not been any direction, and life, with remainder to B .” Nothing of the kind.
that part of his residuary personal estate con . He says, “ I throw them into the mass of my
sisted of this reversionary interest which would residuary personal estate— that is,they are to be
come into possession on the death of his son dealt with asmy residuary personal estate I direct
James Flower, what would be the duty of the shallbe dealtwith — if necessary, to give the tenant
trustees ? Must they wait till it falls in and for life an interest. They are to be converted, the
deprive any tenant for life who died before it fell proceeds invested , and the tenant for life to
in of any interest in it ? Or would the tenant for receive the income.” So that, instead of there
life have a right to cometo them and say , “ Part being any direction that they shall not be con
of this residue is reversionary interest ; your verted , this will seems to contain a plain and
duty as trustee is to give me the benefit of that express direction that they shall be converted .
reversionary interest, and in order to do that you | He had power to appoint those two sums after
must realise ?" I never heard it doubted, and I the death of his son. The reversion on those
myself have no doubt whatever about it, that even two sums he might have appointed by deed to
if there was no direction to convert at all the himself or by will to anybody he liked . He had
tenant for life would have a perfect right to a general power by deed or will, and he appointed
come to the trustees and say, “ Part of the per that that reversion shall form part of his resi.
sonalestate given to you of which I am tenant duary personal estate. So I disagree with the
for life consists of a reversionary interest. I argument that there is any indication that this
demand thatyou shalldealwith that reversionary | reversionary interest was not to be converted .
interest so as to give me the benefit of it." I The indication, if it be an indication at all, is
take it that that is as clear an equity as can pos. distinctly the other way . Then another argu
sibly be, and it does not depend at all on ment certainly deserves consideration . It is said :
whether the settlor has said in so many words “ But the reversion was a reversion expectant on
that the fund shall be converted . Those who James Flower's own life, and therefore there is
resist that claim of the tenant for life must show | sufficient indication in that fact to show that
that the settlor has said that it shall not be con . | James Flower could not be intended to have the
verted . First of all I will dealwith an argument benefit of this reversion .” That is ingenious ; but
which has been addressed to me. It is said that to my mind it is not sound. The testator has not
it depends on the power of the tenant for life to said that James Flower shall not have the benefit
find an actualdirection to convert in thewill. In of this reversion . On the contrary, he has given
my opinion the doctrine depends on nothing of this reversion to James Flower for life, with
the kind , but on tbe equity which the tenant for remainders over. Suppose the testator had said ,
life has in that subject being part of the resi. in so many words, “ I appoint this reversion to
duary property to have it made applicable for his | my executors in trust to convert, invest, and pay
benefit as tenant for life. That is the principle the interest to James Flower for life with
on which the doctrine depends, whether there is remainders over," could it be said because the
a direction to convert or not. Of course the reversion was expectant on James Flower's own
absence of a plain indication of intention that it death that James Flower was not to take the
shall not be converted will imply the direction to benefit of that direction ? The testator knew that
convert in order to realise for the tenant for life James Flower was the tenant for life ; he has
some benefit from the reversionary interest. made him tenant for life of the proceeds of the
That I have always understood to be the rule conversion of this reversionary interest expectant
applicable to a case of that kind , and it is a prin . on his own life. I therefore think that James
ciple on which , until I am corrected by higher Flower was tenant for life of this reversion , and
authority, I feel bound to act. But in this case I that the reversion must be dealt with so as to
220 _ Vol. LXII., N . 8.) THE LAW TIMES. [April 5, 1890.
Chan. Div .] Otto v. SINGER. [Chan. Div .
give him the benefit of the interest for life. The Nov . 12, 13, 14 , and 19, 1889.
whole of this has been now settled in a manner (Before Chitty, J.)
quite binding on me by the case of Re The Earl Otto v. Singer. (a )
of Chesterfield's Trusts (49 L . T . Rep. N . S . 261 ;
24 Ch . Div . 640 ), following the decision of the late Patent - Provisional specification — Grantof licence
Master of the Rolls, which case, as far as I know , before filing complete specification - Patent
has not been departed from since. The reversion obtained for less than whole invention described
must now be dealt with according to that in provisional specification - Claim for royalties
decision . With regard to the second question , I - Patents, Designs,and Trade Marks Act 1883
must construe the codicil as though the acts the (46 & 47 Vict. c. 57), 88. 9, 13 .
testator directs to be done had actually been The plaintiff, a patentee, granted to the defendants
method
done. He says he wishes his son to insure his a licence of his patent for an improved
life for 50001., and to bequeath that sum to his of securing elastic tyres on wheel rims. At
wife for life, and at her death or at the death of the date of the licence the plaintiff had obtained
the son , whichever should be the longer liver, to provisional protection only. The licence was
bequeath the 50001. to the testator's daughters for a term of one year from the 1st Dec. 1886,
or ' their “ descendants ” in equal proportions. and further from year to year during the
That is clearly a gift to the daughters if they continuance of the letters patent to be granted (if
should happen to be living at that time, or, if any granted ) for the invention or any prolonga .
should happen to be dead , a substitutionary gift tion or extension thereof. The defendants paid
to the descendants of that deceased daughter of the royalties for the first year, but refused to
her share. The daughters were tenants in pay any further royalties on the ground that
common . Now , the first question is, when does com
the plaintiff had agreed in the licence toinven
that substitution take effect ? I never heard it plete the letters patent for the whole
seriously disputed that if there be a gift to one
for life, and then to A . or his issue or children ,
tion described in the provisional specification ,
or somebody who is to be substituted for him ,
and this he had failed to do. The defendants
alleged that the plaintiff was compelled before
that that substitution takes place in case of the the comptroller to amend his specification , and to
death of A . before the period of distribution . I admit thathe knew of the claims of certain prior
believe that is a settled rule, and that is the rule patentees to be the true and first inventors of the
on which I feel bound to act in this case. Those use of tyres with a helical spring core, and of
of the daughters of the testator who died in the the introduction into an indiarubber tyre of a
lifetimeof the wife (for I understand she was the core of corrugated spring wire, and to abandon
longer liver ) leaving descendants have their his claim thereto. The claim 80 abandoned
descendants substituted for themselves. Then formed , on the contention of the defendants , the
the question is what the word “ descendants ” whole substance of the plaintiff 's invention as
means. Descendants is a larger word than issue. described in the provisional specification , and the
It means everybody descended from that indi. defendants alleged that it was the use of the
vidual - children , grandchildren , great-grand invention so disclaimed that they desired and
children , great-great-grandchildren , if the parent intended to obtain in taking the licence.
was fortunate enough to have so long a line of Held , that the licence ought not to be declared void ,
descendants at the time of distribution. For consideration having passed , and there being no
that I refer to Weldon r. Hoyland (4 De G . F . & J. misrepresentation in the deed by which the licence
564), a decision in which I observe that the Lord was granted .
Chancellor came to that conclusion as to issue, Held also, that the defendants' attempt to show that
although Robinson v. Sykes (23 Beav. 40 ) was there was a warranty for the whole invention
cited , which was a decision on a settlement the which might by any chance be comprised in the
other way. Then also I am clearly of opinion provisional specification could not prevail, there
that they take per capita , for it has been decided being no warranty, but merely a covenant to
in MacGregor v . MacGregor (2 Coll. 192), and complete the letters patent.
again in a case of Southam v. Blake (2 W . R . 446 ), Held further,that, according to the deed itself, the
that the words “ in equal proportions ” do not bargain was that the royalty should be paid,and
apply as between the descendants themselves. that the plaintiff was therefore entitled to have
They do apply as to the original stirpes, the an accountof what was due for royalties.
daughters here, so as to make the daughters
tenants in common, and each class of descen On the 31st May 1886 E . C . F . Otto applied for
a patent for an improved method of securing
dants tenants in common of a class with the sur .
viving daughters and the other descendants, but elastic tyres on wheel rims, and he filed a pro
they do not apply between the descendants of a visional specification No. 7204. He also applied
particular daughter inter se. Therefore the for another patent.
descendants of every daughter will be joint By an indenture, dated the 18th Nov. 1886 , and
tenants, and those who were surviving at the made between E . C . F . Otto of the one part, and
time of the distribution will take the whole of George Singer and J. C . Stringer of the other
the share of that particular daughter. part, after reciting that E . C . F . Otto had applied
for letters patent, and had obtained provisional
Solicitors for the plaintiff, Hunters and protection
Haynes. under the said patent, and another for
sole and exclusive licence, & c., to use within
Solicitors for the defendants, Lethbridge and the United Kingdom the said invention for elastic
Prior ; Lucasand Son ; H . A . Stephens; Hussey and the
tyres and the other invention , and that E . O . F .
Hulberts. Otto had contracted with G . Singer and J. C .
Stringer to grant them a licence to use such
(a)Reported by A. COYSGARNE SIM,Esq.,Barrister-at-Law .
April 5, 1890.) THE LAW TIMES . (Vol. LXII ., N . 8.- 221
Chan. Div .] Otto v. SINGER. [Chan. Div.
inventions, it was witnessed that E . C . F . Otto to the plaintiff except the said sum of 2501., and
granted to G . Singer and J. O . Stringer a licence although a large sum was due to the plaintiff,
to use, exercise, and apply his said inventions they refused to make any payment or render any
(for which he then had' provisional protection accounts in respect of their working under the
only) so far as the same related to the fixing of said licences.
tyros on the wheel rims of velocipedes only , The plaintiff claimed : 1. The sum of 2501.,
within the United Kingdom of Great Britain and being the royalty due during the year ending
Ireland ,the Channel Islands, and the Isle of Man, 1st Dec. 1888, with interest. 2. An account of
and to sell and dispose of such tyres and other the articles made,supplied , or fitted by the defen
the patent article or articles manufactured or dants under the said licence (other than those in
constructed by the grantees pursuant to the said | respect of which the said sum of 2501. had been
inventions to hold for the term of one year, com - already paid , and those in respect of which the
mencing from the 1st Dec. 1886 , and further from sum of 2501. was still due and payable as afore
year to year during the continuance of the said said ) ard of the royalties due therefor, and pay
letters patent to be granted (if granted) for the | ment to the plaintiff of what upon such account
said inventions, or of any prolongation or exten . shall be found due to him .
sion thereof on the same terms as thereinafter | By their statement of defence the defendants
mentioned , or other less terms to be mutually did not admit that the plaintiff was now the
agreed upon by the grantor and grantees, videlicet, owner of the letters patent. They alleged that it
upon terms of the grantees paying to the grantor, appeared by the indenture of the 13th Nov. 1886 ,
for the use of the said inventions to the wheel that the plaintiff had applied for the grant of
rimsof all relocipedes manufactured and sold by letters patent for certain inventions described in
the grantees during the said term of one year, two several provisional specifications; that the
the sum of 2501. at the times following that was plaintiff had represented to the defendants that
to say): 1251. on the 15th Nov. 1886, 621. on the he was the true and first inventor of the inven
15th Feb . 1887, and 631. on the 18th May 1887, tions described in such provisional specifications,
and for the use and application of the said in and offered to grant a licence to the defendants
ventions various royalties in the indenture men - to use such inventions, and the defendants, relying
tioned. And the indenture further contained a on such representations and believing that, as
covenant by the grantor to complete as soon as the plaintiff alleged , he was the true and first
might be the said letters patent so applied for as inventor, and that the samewere of considerable
aforesaid . And also a covenant that in case the | utility, agreed to take a licence on the termsof
letters patent to be granted (if granted ) in pur the said indenture. By such indenture the plain .
suance of the said applications, or either of them tiff agreed to complete the letters patent as soon
should at any time during the continuance of the | as might be, and in due course lodged complete
licence be proved and declared by a competent specifications. The grant of letters patent was
court of law to be invalid , then the licence thereby opposed in each case, and in each case the plain
granted should thereupon immediately determine, | tiff was, by order of the comptroller , compelled
and the grantor should have no claim or hold on to amend his complete specifications. By such
any sum or sums of money that would otherwise | amendments the plaintiff admitted he knew of
thereafter become due. And the grantor cove- | the claimsof prior patentees - Monro and Hook
nanted that he would defend the rights and ham , Barret and Varley respectively — to be the
privileges of the letters patent, if granted , at his true and first inventors of the use of a tyre with
own cost in the event of the same being contested a helical spring core,and of the introduction into
in a court of law during the continuance of the an india-rubber tyre of a core of corrugated spring
licence, and to take such legal proceedings as wire, and of a core plain throughout the length
might be necessary at his own cost and expense of the tyre, and abandoned his claim thereto.
against any person infringing the letters patent. The claims so abandoned for ned , in the opinion
There was also a provision enabling either party of the defendants, the whole substance of the
to terminate the licence at any timeby a reason- inventions as described in the plaintiff's pro
able notice expiring after any one of the current visional specifications, and it was the use of the
years. inventions so disclaimed that the defendants
Subsequently to the date of the indenture of desired and intended to obtain in taking the
licence, É . O . F . Otto filed complete specifications, licence, and but for the defendants' belief that
and obtained grants of letters patent for the two the plaintiff was the true and first inventor of
inventions. The grant of the letters patent was the inventions so disclaimed thedefendants would
opposed in each case, and E . C . F . Otto was com not have so agreed to take a licence. By reason
pelled to amend his complete specifications. of the circumstances above mentioned , letters
On the 8th Dec. 1888 E . C . F . Otto commenced patent were never in fact granted to the plaintiff
the present action against the licensees, who were for the inventionsdescribed in the said provisional
carrying on business in copartnership under the specifications, and for the use whereof the plaintiff
style of Singer and Co. agreed to grant, and the defendants to take, a
By his statement of claim the plaintiff, after licence. The claims so abandoned by the plaintiff
stating the grant of the patents and the licence , covered the whole of the essential part of the
alleged that the defendants had duly paid the inventions which the defendants desired to use.
2501. under the said licence for the year ending By the terms of the said indenture of the 13th
the 1st Dec . 1887 , and that, as the licensees of the | Nov. 1886 , the licence thereby granted was to
plaintiff, they had applied the said inventions to endure for one year , commencing the 1st Dec.
a large number of velocipedes, both prior to the 1886 , and from year to year during the continu
date of the licence and since the 1st Dec. 1887, | ance of the letters patent. The defendants
and were still continuing so to apply the said l submitted that by reason of the facts stated, and
inventions ; that they had not paid anything I in particular that letters patent for the invention
222 _ Vol. LXII., N . S.] THE LAW TIMES. [April 5, 1890 .
Chan. Div.] OTTO v. SINGER. [Chan. Div.
referred to in the said indenture were never | there are immaterial omissions does not signify,
granted , the licence thereby granted , if it even in ) and in the present case the variances, if any, are
fact was of any validity, which the defendants quite immaterial:
did not admit, expired on the 1st Dec. 1837. The Thomas v. Welch , L . Rep . 1 C . P . 192 ;
defendants admitted the payment of the 2501. as Penn v. Bibby, 15 L . T. Rep. N . S. 399 ; L. Rep . 2 Ch.
royalty for the year ending 1st Dec. 1887. The App. 127.
defendants paid 1251. in cash , and gave accept- ' Chitty, J . referred ſto Moseley v . The Victoria
ances for the two other instalments, which bills Rubber Company, 57 L . T . Rep . N . S . 142; 4 R . P . C .
had to be met by the defendants in the ordinary | 241.7
course of business. The payments of the 1251. Moulton , Q .C., Maclean , Q .C ., and F. Whinney
and the first instalment were made in ignorance
of the whole of the facts set forth . When the for the defendants. — The plaintiff agreed to give
631. acceptance matured, the defendants did know a licence for the particular patent described in
of Hookham 's claim to the substance of the the provisional specification, and has not fulfilled
inventions claimed by the plaintiff,but the defen his bargain. As admitted by the plaintiff, both
dants were then endeavouring to bring about an parties at the timeof the licence thought that the
amicable arrangement between the plaintiff and invention was for the introduction of a corrugated
Hookham . As soon as the defendants were iron wire in a tyre, and that that was a perfectly
satisfied that Hookham 's invention claimed in new invention . All he has obtained is a patent
letters patent dated the 17th March 1886, No. for something quite subordinate, namely, a
3778, covered the whole substance of the plain curious method of interlocking the ends, being
tiff 's claims, they at once , in May 1887, gave obliged to abandon the substantial part of the
notice to the plaintiff that they could do nothing invention contracted to be sold because Hookham
further in the matter ofhis patents,but that they had anticipated him . The defendants haveaccord
ingly been obliged to take a licence from Hookham .
must make arrangements for obtaining a licence The defendants do not desire to dispute the
under Hookham 's patent, and accordingly, on the validity of the patent, but are perfectly entitled
18th Jan . 1888 , the defendants, and in order to
avoid proceedings for infringement to which they to raise the point that the invention for which
had rendered themselves liable, entered into an letters patent was obtained was less than that
agreement with George Hookham for a licence to described in the provisional specification, and
use his patent under which they were working . that by the failure of the plaintiff to perform his
From May 1887 till Aug. 1888 the plaintiff contractthereforethe licence is at an end. The licence
acquiesced , and never made any claim that the ought to be set aside or declared void .
licence of the 13th Nov. 1886 was still valid and In the alternative, the defendants are entitled to
subsisting, or that the defendants were bound to damages for breach of contract.
pay him any royalties, and no claim was made by CHITTY, J. - In this case the plaintiff says, “ I
the plaintiff for payment of instalments. granted a licence by deed , and I sue for the
The defendants also counter -claimed against royalties that are payable under the deed .” The
the plaintiff for a declaration that the terms of royalties were to be payable within a few days
the licence expired on the 1st Dec. 1887 , and that after the date of the deed . The licence was for
the defendants were no longer liable to pay one year certain and afterwards from year to
royalties thereunder ; or to have the said indenture 1 year during the existence of the patent or of
set aside, on the ground that its execution was certain patents. The royalties have not been
obtained by misrepresentation , and to have repay. paid . The state of circumstances under which the
ment with interest of all moneys paid to the licence was granted certainly was remarkable.
plaintiff, and damages. The plaintiff had applied for a patent and obtained
The plaintiff by his reply contended that the the ordinary protection by reason of his having
defendants, as licensees, were estopped from filed a provisional specification, the office of
asserting that the plaintiff's letters patent were which , as is well known, is to describe the nature
for inventions different from the inventions de of the invention . In his provisional specification
scribed in the provisional specification , or that | he had described the nature of his invention . He
the letters patent were invalid . then proceeded with his application ,which resulted
The action now came on for trial. in his obtaining a patent. Before he obtained the
Romer, Q .C . and Chadwyck Healey for the patent he filed a complete specification , which was
accepted . The office of the complete specification
plaintiff. - Ā licence continues until it is put an is to particularly describe and ascertain the
end to by notice , which has not been given in nature of the invention, in what manner it is to
this case. The plaintiff has obtained his patent be performed ; and such a specification may be
in accordance with his agreement. The defen accompanied by a drawing. Thereupon it would
dants took the licence with the knowledge of the seem , on that simple statement of facts, that the
usual rights of the patentee of amendment. A plaintiff must recover. But the defendants say
licensee cannot dispute the validity of the patent, that the plaintiff has not obtained a patent for
and say there is so great a variation between the the whole of the invention for which, on reading
provisional and the final specification as to renderthe provisional specification , it must be imputed
the patent void , and if there is not such a varia to both parties the plaintiff was seeking to obtain
tion his objection failed : a patent. They say that the patent that has been
Clark v. Adie, L. Rep. 2 E. & I. App . 423.e . obtained is for something less than the whole
The contention by the defendants that the plain . of the invention , the nature of which only is
tiff made a misrepresentation in alleging himself described in the provisional specification. The
to be the true and first inventor cannot be main defendants' counsel, ingenious as they are,have
tained , as they knew the position of the patentee been fully alive to this point throughout the whole
under sect. 7 of the Act of 1883. The fact that I of their argument, and they know they cannot
April 5, 1890 .] THE LAW TIMES. [Vol. LXII., N . S.- 223
Chax. Div.] Otto v. SINGER. [Chax. Div.
dispute, appearing for the licensees, the validity , in excess of that which is mentioned in the
of the patent, and indeed , whether they could or provisional. But nobody ever thought, until the
not, there is no ground for saying that a valid | present moment, of looking at a provisional
patent has not been obtained . Before I go into | specification for the purpose of ascertaining by
the question, which involves the comparison of the complete what the invention is. The simple
the provisional specification with the complete object of filing a provisional specification is to
specification , I ask for what purpose is this argu obtain the interim protection that is allowed. I
ment put forward ? Mr. Moulton , at the end of will now consider the deed itself. [His Lordship
his argument, said that it was in order to obtain read the material portions of the deed , and pro
a declaration from the court that the licence was ceeded :] This is in termsa grant of a licence
void. But why void ? Something has passed by patent or no patent - the licence to commence
the licence. It has passed at least the right to whether the patent is obtained on the 1st Dec.
use the invention , for which the patent has been or not,and it wasnot contemplated by the parties
granted , and, consequently , there is no ground that it would be obtained on the 1st Dec., and
for that which seemed to be at the bottom of the it was not obtained till a long time afterwards.
argument, the total failure of consideration . Then what is the royalty to be paid, and when ?
Indeed, the right way to look at this part of the For the term of one year 2501., at the time and
case is to read the deed itself, and see what the in manner following : 1251. on the 15th Nov.,
parties have bargained for. It is clear in this which is two days after the execution of the deed ,
case that there was no imposition of any sort. and so on - Ineed not read the other dates of pay
There is a suggestion on the pleadings of a repre ment. Upon that it is plain that themoney was
sentation made by the plaintiff to the defendants, to be paid whether the patent was obtained or
but on the evidence the case is quite clear. The not. Suppose there had been no patent obtained ,
plaintiff had filed his provisional specification , would the plaintiff have been bound to refund !
and he took that to the defendants- both the Clearly not, because some interest passed , and
defendants really — but Mr. Singer appears to be the interest which was intended to be passed
the principal man of the two, and Mr. Singer is certainly passed until the patent was granted or
a man of experience in regard to the matters absolutely refused . I will come to the question
with which this invention is concerned. Both about the term in one moment — that is a distinct
these two gentlemen , the plaintiff and Mr. Singer, point. It was not a very valuable licence,because
met together , read over the provisional specifi- | no action , as I pointed out during the argument,
cation,and considered it. They were both satisfied can bemaintained foran infringement committed
with it ; Mr. Singer thought as well of it as Mr. before the publication of the complete specifi
Otto, the plaintiff, did ; and Mr. Otto, speaking cation . That is the 13th section of the Act. But
honestly , said that he did believe, and Mr. Singer still this was the bargain between the parties
also believed, that the plaintiff's invention com which they have shown as plainly as can be on
prised the claim for a corrugated steel spring the face of the deed . The first payment is to be
within the tyre - as a claim at large. Both made on the 15th Nov. Then it is very important
gentlemen , I take it, knew as much , one as the in considering this deed also to note the fact that
other, of patent law , and each gentleman must it is not a licence for the whole term , for the
have known what the true office of the provisional whole of the life of the patent; but it is a licence
specification was. There is no ground for saying for one year certain , and then from year to year.
that in any sense the defendants were deceived, It is further from year to year during the con
and ,as I say, I dispose of that part of the pleading tinuance of the letters patent, so that if the
by the observation I have just made. They dealt | letters patent were not granted , and if, in the
on equal termswith equalknowledge,both under- | result, they were altogether refused , there would
standing what the patent law was. It must be have been a licence for one year and one year
imputed to the defendant that he knew Otto in only . That is quite plain . But the patent having
applying for a patent would have taken the steps | been granted , the licence continues during the
which the Act of Parliament requires him to life of the patent. The deed contains a covenant
take, and that he passed through the ordeal, and by the plaintiff to complete as soon as may be
that he would have to give, during the time the letters patent. That is very important. The
allowed for filing the complete specification , way in which Mr. Moulton endeavoured to make
further information on the subject. He would use of that covenant was really to found upon it
have in his complete specification to give the | a warranty for the whole of that which by any
public the benefit of any additional knowledge he construction could be considered to be the inven
might have acquired in the meantime. But he tion described in the provincial specification. It
knew also that he was liable to the action of the is nothing of the kind. What follows in the
comptroller under the 9th section of the Patents, deed will make that quite plain. It is merely a
Designs, and Trade Marks Act 1883; and he | covenant “ to complete the said letters patent so
knew also that when he came to state on his applied for ” - that is to say, the covenantor was
complete specification what his patent was, he I to proceed to obtain thebest letters patent he can,
must ascertain and make all that clear which he which he does. That is not a covenant warranting
was allowed by law in the first instance to leave every word that is in the provisional specification,
in a rough and vague state. In fact, in no case nor is it a warranty that when he has got his
up to the present time has the provisional specifi patent-- as will be shown in one moment- his
cation been compared with the complete specifi patent shall be a valid one, because that would
cation for any such purpose as has been advanced be going far beyond the meaning of the words,
on the present occasion . Because the common and an extravagant conclusion it seems to me to
case is that the provisional specification does not try and arrive at from the words used , and it is
justify the complete specification , or to turn the also inconsistent with the express covenant.
proposition round, the complete specification is I Then there comes a very important provision
224 - Vol. LXII., N. 8.] THE LAW TIMES. [April 5, 1850.
Chan. Div.] Re The LONDON AND WESTMINSTER BREAD COMPANY LIMITED. (Chan. Die,
that “ in case tbe letters patent to be granted , I pointed out to Mr.Moulton , the statement on the
if granted in pursance of the said applications, defence or the counter- claim , that the defendants
or either of them , should at any time during the were compelled to take a licence from Hookbam ,
continuance of the licence be proved and declared was not a proper mode of legally stating the
by a competent court of law to be invalid , then proposition that the defendants did take a licence;
the licence hereby granted shall thereupon imme- it was a licence they took if they thought fit ; they
diately determine, and the grantor shall have no were not compelled , in any sense that the law
claim or hold on any som or sums of money that understands compulsion , to take a licence ; they
would otherwise thereafter become due.” So that took it because it suited them . If a man who
the licensees, the defendants, can defend them . has got a licence from one takes a licence from
selves at once from any further demand of the another, that is his own affair . I think it is
royalties , if the patent has been declared invalid quite unnecessary to go further than I have done,
by a competent court of law . But - and this again and basing my judgment on the deed itself, and
is a strong point against the argument advanced extracting from the deed itself (which is the
for the defendants - up to the time of that de right way to do it) by a careful examination of
claration , although the patent of course would the provisions, what the bargain was, I say that
be invalid from the very beginning, up to that the bargain was that in these circumstances the
time the royalties are payable and retainable, royalty should be paid .
the words are express, the grantor shall have Judgment was accordingly taken for an
no claim or hold on any sums that “ would other . account of the royalties , and the counter
wise thereafter become due," so that he retains claim dismissed with costs.
all the royalties up to that moment. That shows
the parties contemplated that the patent might Solicitors for the plaintiff, Saunders,Hawksford ,
be attacked , and if attacked and successfully Bennett, and Co.
attacked , from that moment the licence should Solicitors for the defendants, Ulithorne,Currey,
cease. Then there is the grantor's covenant that and Villiers,agents for Dewes, Seymour, and Wilks,
he will defend the rights and privileges of the | Coventry
letters patent, if granted , at his own cost, in the
event of the same being contested in a court of
law during the continuance of the licence . So Saturday, Jan . 11.
if there was any question raised , if the patent
was attacked , then the duty of the licensor would (Before CHITTY, J.)
be to intervene and to defend it at his own Re THE LONDON AND WESTMINSTER BREAD
expense ; and he was, according to the covenant COMPANY LIMITED . (a )
which follows, “ to take such legal proceedings
as may be necessary at his own cost and expense Company - Voluntary winding-up - Transfer or
against any person infringing the letters patent.” sale of business — Special resolution - Dissentient
Then there is a covenant to indemnify , which I member - Notice of dissent— When to be given
need not read. The result of that is that some Companies
161, 162.
Act 1862 (25 & 26 Vict. c. 89), s . 51,
thing has paşsed by thedeed ; the parties intended
that whether there was a patent at all, for some company passed a special resolution for a
time at any rate this royalty should be paid . voluntary winding-up, and for the sale of its
There is no warranty from beginning to end that business to another company. Before such special
a valid patent will be obtained , and no warranty resolution had been confirmed in the manner
that any patent will be obtained , except that there required by sect. 51 of the Companies Act 1862,
is an agreement to complete the letters patent , a dissentient member gave notice of dissent to
which means, neither more nor less than this, that the secretary of the company. The secretary was
the plaintiff would do what he has done - take afterwards appointed liquidator,when the special
the proper proceedings to complete the letters resolution was confirmed . The notice of dissent,
patent. There is no failure of consideration , no wherein the secretary was styled the “ liquidator,"
ground on which a court of law could declare was never returned to the dissentient member, and
this to be void . I add this, that the parties seem , no objection was made to it until one month
by the provision which makes the licence termi after the date of the meeting at which the special
nable, to have contemplated that it might have resolution was confirmed . The liquidator sought
been convenient for either one of them at any to restrain the dissentientmember from proceeding
time to put an end to it, provided it was put an to arbitration .
end to by a reasonable notice expiring after any Held , that the notice of dissent was a continuing
one of the current years. Therefore, there is no notice, and valid within sect. 161 of the Companies
hardship, and there is no pretence for saying on Act 1862, and that the liquidator's application
the evidence that the licence has been determined must be refused .
by notice. There was some kind of suggestion Motion.
on the pleadings, but there has, in fact, been no
The above-named company having passed &
determination . Now ought I to go into a com . special resolution for a voluntary winding-up,and
parison between Otto's and Hookbani's patent special resol
I think not. I think it may be conceded to the proposing to transfer and sell the company's
defendants that in the honest belief of both them . assets to another company under sect. 161 of the
selves and the plaintiff the plaintiff might have Companies Act 1862, Alfred Upright, the liqui.
obtained a more extensive patent than he did . dator, moved to restrain the respondent Charles
That to my mind becomes immaterial, and I Rumsey Knight, one of the members of the
think it would be very unjust to make use of this company, from proceeding to arbitration under
action for the purpose of trying any question sect. 162 of the same Act.
between Mr. Hookham and Mr. Otto . As II (a) Reported by A . COYSGARNE SIM , Esq., Barrister-at-Lar.
April 5, 1890 .) THE LAW TIMES. [ Vol. LXII., X . 8. - 225
Chas. Div.] Re The LONDON AND WESTMINSTER BREAD COMPANY LIMITED. [Chan. Div .
Sect. 161 of the Companies Act 1862 provides ! On the 23rd Oct. 1889 the solicitors of the
that, applicant wrote to the respondent a letter, of
Where any company is proposed to be or is in the which the material parts were as follows :
course of being wonnd -up altogether voluntarily, and We have been handed your letter of the 16th inst.
the whole or a portion of its business or property is by Mr. Upright, the liquidator of this company. As the
proposed to be transferred or sold to another company, notice given was informal it cannot be noticed by the
the liquidators of the first-mentioned company may , liquidator.
with the sanction of a special resolution of the company
by whom they were appointed , . . . receive in com The notice of dissent remained with the appli
pensation or part compensation for such transfer or sale cant, and was not returned to the respondent,
shares, policies, or other like interests in such other who, on or about the 15th Nov. 1889, appointed
company, for the purpose of distribution amongst the an arbitrator to settle the sum to be paid to him
members of the company being wound-up , . . . and as the price of his interest in the company, and
any sale made or arrangement entered into by the liqui shortly afterwards the applicant served the re
dators in pursuance of this section shall be binding on
the members of the company being wound-up ; subject spondent with notice of motion .
to this proviso , that if any member of the company being The motion now came on for hearing.
wound -up who Las not voted in favour of the special Byrne, Q. C. and Dunham in support of the
resolution passed by the company of which he is a motion . The respondent's notice of dissent was
member at either of the meetings held for passing the
same expresses his dissent from any such special resolu given before there was an effective resolution to
tion in writing addressed to the liquidators or one of wind-up,and is therefore invalid . Consequently
them , and left at the registered office of the company he is not entitled to proceed to arbitration , as he
not later than seven days after the date of the meeting
has not complied with the requirements of sect. 161
at which such special resolution was passed , such of the Companies Act 1862. They also referred
dissentient member may require the liquidators to
. . . purchase the interest held by such dissentient to
member at a price to be determined in manner herein Re Indian Zoedone Company, 50 L . T. Rep . N . S.
after mentioned . 547 ; 26 Ch . Div. 70 ;
The mode of determining the price is, by Companies Act 1862, ss. 51, 162.
sect. 162, stated to be by arbitration . Kenyon Parker , for the respondent, contra .
The question was whether the respondent had Chitty, J., after stating the facts as above set
expressed his dissent from such special reso forth , continued as follows : - Thenotice of dissent
lution in writing addressed to the liquidator,and was received by the company's secretary , the
left at the registered office of the company not present applicant, and it remained with the com
later than seven days after the date of the meeting pany, and was not returned to the respondent.
at which such special resolution was passed . There was no correspondence about it, and no
On the 29th Aug. 1889 and the 16th Sept. objection taken to it until one month after the
1889 respectively, special resolutions were duly special resolution to wind -up had been confirmed.
passed and confirmed for the voluntary winding. But it is plain from the letter of the 19th Oct.
upof the company, the appointment of the appli 1889, written by the applicant, that the notice of
cant as liquidator, and the approval of an agree. dissent had come to his notice, and been present
ment for the sale of the company 's assets to the in his mind after he became liquidator. The
Bread Union Limited . notice may therefore, I think, be treated as a
On the 31st Aug. 1889, the applicant, who had continuing notice, and I think that there has
previously been and then was the secretary of been a compliance with the Act of Parliament.
the company, received from the respondent the Probably a notice given before any resolution had
following notice, dated the 30th Aug. 1889 : been passed would not be good , but it is not
Take notice that I, Charles Rumsey Knight, of necessary to consider that question for the
Tythegston Court, Bridgend ,in the county ofGlamorgan , purpose of my present decision . I think that
clerk in boly orders, being the holder of 100 paid -up the argument for the liquidator is entirely
shares in the London and Westminster Bread Company technical, and that there is no question of sub
Limited , dissent from the special resolutions passed at stance between the parties. The Act requires
the extraordinary general meeting of sharebolders in
the above-named company , and held at the Cannon the notice to be left at the company's office not
street Hotel on the 29th day of Aug. 1889, and I later than seven days after the date of the meet
require you either to abstain from carrying such resolu . ing at which such special resolution was passed .
tions into effect, or to purchase the interest held by me The object of that was to prevent the incon
in the said company at a price to be determined in venience to the liquidator and the company
manner provided by sect. 162 of the Companies Act, which would happen if memberswere not required
1862.- CHARLES R . KNIGHT.
On the 16th Oct. 1889 the respondent's to decide quickly and remained out to speculate
solicitors wrote a letter to the applicant, of which on the possibilities of the company's assets
thematerial parts were as follows : becoming better or worse. The motion fails, and
Referring to the course which our client, the Rev. must be dismissed with costs.
Charles Knight, of Tythegston Court, Bridgend , has | Solicitors : Downing, Holman , and Co., agents
taken ,we shall be glad to know by return of post what for Downing and Handcock , Cardiff ; Watson and
offer you propose to make him for his shares in the Co .
London and Westminster Bread Company.
In reply the respondent's solicitors, on the
20th Oct. 1889 , received from the applicant al
letter , dated the 19th Oct. 1889, of which the
material parts were as follows :
In reply to your letter, I beg to inform you that the
matter is still under the consideration of the directors
of the Bread Union .-- Yours faithfully , for and on
behalf of the London and Westminster Bread Company
Limited , ALFRED UPRIGHT, Liquidator.
226 - Vol. LXII., N . S .) THE LAW TIMES . [April 5, 1890.
Chan. Div .] Re THE PYLE WORKS LIMITED . [Chan . Div.
Nov. 16, 23, 1889, and Jan. 13, 1890. | empowered the directors (inter alia) to mortgage
(Before STIRLING , J.) | any of the property of the company, and art. 111
provided that, “ they may from time to time,
Re THE PYLE WORKS LIMITED. (a ) borrow on bonds or debentures of the company,
Company – Uncalled capital – Mortgage of or on mortgage of all or any part of the property
Validity of — Unsecured creditors - Priorities. of the ccmpany, and either with or without
One of the objects of a company, as stated in the including in any such mortgage all or any definite
• memorandum of association , was to borrow proportion of the capital of the company then
· money by mortgage or otherwise, and issue mort uncalled, such sums of money as they from time
gage debentures and any other securities founded to time think expedient."
or based upon all or any of the real and personal The mortgages in question were four. By the
assets,or on thecredit of the company ; and under first, dated the 3rd Jan. 1882 , the company mort
the articles the directors had power from time | gaged to Frederick Greenwood and John Brooke
to time to borrow on mortgage of all or any Greenwood, first, all the amounts of 41. per share
part of the property of the company, and either then uncalled up on 3500 of the preferred shares
with or without including in any such mortgage of the company : and , secondly, all the personal
all or any definite proportion of the capital of the property , assets, and effects which then , or at
company then uncalled . any timeduring the continuance of that security,
The company had borrowed on mortgage, the mort should belong to the company, and all the interest
of the company therein , but not including any
gages given being in each case mortgages of the uncalled
amounts then uncalled up on certain shares of capital of the company, except that
the company, and in one case in addition thereto , I thereinbefore expressly mentioned to secure the
of all the personal property , assets, and effects sum of 25001.and interest. Theshares comprised
which then , or at any time during the continu in this mortgage were afterwards converted into
ance of the security, should belong to the com ordinary shares by special resolutions of the
pany, but not including any uncalled capital, company.
except that thereinbefore expressly mentioned . By the second mortgage, dated the 3rd May
In one case the mortgageer were directors, and 1886 , the company mortgaged to Robert
held shares of the company. McIlwraith and Edward Gotto all the amounts of
The company was now being wound-up. articles of 41. per share then uncalled up on 5000 shares of the
Held , (1) that the memorandum and company, subject to themortgage of the 3rd Jan.
1882, by way of security against any loss or
association of the company, when read together, damage
authorised mortgages of uncalled capital, along having, at they might sustain by reason of their
with other property of the company, to secure an teed to the the request of the company, guaran
advance ; and that the mortgages were within British Linen Company's Bank the
the power, whether comprising uncalled capital repayment of a sum of 35001., advanced by the
only or uncalled capital along with other pro bank to the company, with interest thereon ; and
also guaranteed to theLondon and North -Western
, (2. ) that themortgagees had under their mort Railway Company and the Great Western Rail.
perty
Held
gages a first charge on the unpaid capital and way Company the payment of such sums as might
on the proceeds of all calls made on the shares of be owing to the said railway companies by the
the company, including the proceeds of calls made company for carriage of goods upon their ledger
in the winding -up account with the said railway companies. And
Re Phænix Bessemer Steel Company (32 L. T . the company covenanted to indemnify the mort
Rep . N . S. 854 ; 44 L . J. N . S. 683, Ch .) gagees against all loss and damage they might
followed . sustain by reason of their entering into the
guarantees. The mortgagees
Held , (3) that the mortgages were valid asregards their had paid under
calls on the shares of the company held by mort. 69431. guarantees sums amounting in all to
gagees, as well as those on shares held by other 128. 9d .
persons. By the third mortgage, dated the 10th Aug:
Ferdinand
of
This was the hearing three summonses taken 1887, the company mortgaged to
out in the winding-up of the company by certain Gautier (subject to the prior mortgages) all the
amounts 41. per share then uncalled up on the
mortgagees claiming under mortgages created by said 5000ofshares of the company to secure an
the company upon its uncalled capital for the advance of 40001. and interest.
purpose of enforcing their securities, the question By the fourth mortgage, dated the 28th Oct.
being whether the mortgagees were entitled to 1887, the company mortgaged to Robert
be paid wbat was due on their mortgages out of McIlwraith (subject to the prior mortgages) all
calls made in the winding -up in priority to the the amounts of 41. per share then uncalled up on
unsecured creditors of the company. the said 5000 shares of the company to secure an
The company was registered in 1880. By the advance of 30001.and interest. Messrs.McIlwraith
memorandum of association it was stated that and Gotto were directors of and held shares in
one of the objects for which the company was the company.
established was : “ To borrow money bymortgage The first summons was taken out by Mr.
or otherwise, receive money on deposit, and issue Gautier, the second by Mr. Gotto , and the third
transferable and other bonds and mortgage by Messrs. F. and J. B . Greenwood and
debentures and any other securities, founded or McIlwraith .
based upon all or any of the real and personal Graham Hastings, Q .C . and Whinney for the
assets, or on the credit of the company." first and third summonses. — The memorandum
The articles of association of the company bore and articles of association are contemporaneous
the samedate as the memorandum . Article 106 documents, and must be read together. Under
(a)Reported by A . J. HALL, Esq., Barrister-at-Iaw . I them the directors had power to make mortgages
April 5, 1890 .) THE LAW TIMES. (Vol. LXII., N . S. - 227
Chan . Div.] Re THE PYLE WORKS LIMITED. [Chan . Div,
such as the mortgages in question . The mort. Then the second mortgage was given as an
gagees have a first charge upon the uncalled indemnity for a guarantee. That is not a borrow ,
capital of the company : ing, and is not within the power purported to be
Re The Phænir Bessemer Steel Company, 32 L . T . given . It does not appear that in Re Phoenix
Rep . N . S. 854 ; 44 L . J. N . S . 683 , Ch. ; Bessemer Steel Company and Howard v. Patent
Howard v. Patent Ivory Manufacturing Company, Ivory Manufacturing Company, the mortgagees
58 L . T . Rep . N . S . 395 ; 38 Ch . Div . 156 ;
Bank of South Australia v. Abrahams, 32 L . T. Rep. were declared entitled to a charge upon calls made
in the winding-up. If mortgagees are allowed
N . S. 277 : L . Rep. 6 P . C . 265 .
Buckley, Q .C . and C . Ashworth James for the insuchdealinga charge, ordinary persons will not be safe
with a company, for they might not
second summons. — The mortgagees gave valu know
able consideration for their charges, and that alreadyhowpledged far the credit of the company has been
, the validity of a mortgage by
entitles them to priority over the unsecured the company not necessarily dependent
creditors. There may be a question whether, as upon its registrationbeing under sect. 43 of the Act of
regards the calls on the shares held by mort
gagees themselves, the mortgages are valid . No 1862Wright :
v. Horton , 56 L . T . Rep . N . S. 782, 783 ; 12
case of set- off is raised , such as in App. Cas. 371, 376
Black and Co.'s case,27 L. T. Rep.N . S.509 ; L. Rep.
8 Ch. App . 254 ;
Holroyd v. Marshall,; 7 L. T. Rep. N. S. 172 ; 10 H .
of L . Cas.191,
Griesell's case , 14 L . T. Rep 843 ; L . Rep
Rep.. N . S. 843 Rep .
1 Ch. App. 528 . Graham Hastings, Q .C., in reply referred to
Giffard , Q. C . and Haldane for the liquidator. Re South Durham Iron Company ; Smith's case,
40 L. T . Rep. N . S. 63,572 ; 11 Ch . Div. 579 ;
Phipson Beale, Q .C . and Carson for unsecured Re Sankey Brook Coal Company, 22 L. T .Rep. N . S.
creditors of the company.- The directors had no 62; L . Rep. 9 Eq. 721 ;
power to bind by mortgage the calls to be made in Re Sankey Brook Coal Company (No. 2), 22 L . T .
the winding-up . Theymay have had power to bind Rep . N . S . 784 ; L . Rep. 10 Eq. 381.
the payments which the shareholders were liable Buckley, Q.C., in reply, referred to
to make under their contracts with the company Stone v. City and County Bank, 38 L . T . Rep. N . S.
on calls made by the directors themselves, but not 9 ; 3 C . P . Div . 282. Cur. adv. vult.
the payments they were liable to make under the Jan. 13 .- STIRLING , J. stated the facts, and
statute on calls made by the liquidator. In the continued . - It was laid down in Bank of South
erent of the winding up of a company the liability Australia v. Abrahams that the right of a com
of the shareholders to contribute to the assets of pany to unpaid capital “ is, strictly speaking,
the company is to be ascertained under sect. 38 more in the nature of power than of property ;
of the Act of 1862, and under that section only . and, although that which a man has power to
Under sect. 75 that liability creates a specialty make his own may be charged as well as that
debt. Under Sect. 98 the court is to cause the which is actually his, it requires apt and proper
assets of the company to be collected and applied words, or a sufficient context to have this effect."
in discharge of its liabilities, and under sect. 133 It was held by Sir. G . Jessel, M . R ., in the case of
the property of the company is to be applied in The Phæniz Bessemer Steel Company , that the apt
satisfaction of its liabilities pari passu : and proper words, or the sufficient context, need
Lindley on Companies, 5th edit.
Robinson 's Executors'
p. 193 ; not be found in the memorandum of association
ors' case, 6 De G . M1 . & G . 572 : itself, and that it is sufficient if they are contained
Muir v. City of Glasgow Bank, 4 Ct. of Sess. Cas, in contemporaneous articles of association . The
vol. 6, 392, 401 ;
Stanley's case, 10 L . T. Rep. N . S. 674 ; 4 De G . principles on which he arrived at this conclusion
J. & S . 407 ; are thus stated : “ Thememorandum and articles
Grissell's case (ubi sup.): are contemporaneous documents, and the rule of
Black and Co.'s case (ubi sup.); construction is that if contemporaneous docu
Re Whitehouse and Co., 39 L. T. Rep . N . S.415 ; ments can be read in two ways, in one of which
Re9 China
Ch . Div. 595 ;
Steamship Company ; Ex parte Mackenzie, they appear consistent and in the other incon
L . Rep . 7 Eq. 240 ; sistent, the construction is to be preferred which
Bank of South Australia v. Abrahams (ubi sup.). will render them consistent. Another principle
Sect. 38 must be read strictly, and as imposing is that if one of two contemporaneous documents
new liabilities on the shareholders, liabilities is ambiguous in its terms, but the other is clear,
imposed and defined by thatsection : then force is to be given to the one whose terms
Webb v. Whiffin , L . Rep. 5 H . of L . Cas. 711 ; are clear, so as to interpret the one containing
Burgess' case 43 L . T . Rep . N . S. 45, 46 ; 15 Ch . Div. ambiguons terms." Similar principles were acted
507, 511. upon by the same learned judge in the case of
The company cannot while a going concern Harrison v . Mexican Railway Company (32 L . T.
mortgage any such liability as this. The memo Rep . N . S. 82 ; L . Rep. 19 Eq. 358), and, so far as
randum and articles cannot give them any such they related to the matter now under considera
power if it is contrary to the Act of 1862: tion , do not appear to be affected by the qualifi .
Trevor v. Whitworth , 57 L . T. Rep. N . S . 457 ; 12 cations suggested by the Court of Appeal in
App. Cas. 409. Guinness v. Land Corporation of Ireland (47 L . T .
But,assuming that the memorandum and articles Rep . N . S . 517 ; 22 Ch . Div. 349). I propose
could give them the power, these mortgages are therefore to act upon that. Now , the memo
not in the form which art. 111 purports to autho randum of association in the present case
rise. In themortgage to the Greenwoods neither empowers the company " to borrow on mort
all nor any definite proportion of the capital then gage or otherwise.” Mortgage of what ? The
uncalled is included, and the other three mort. contemporaneous articles of association say,
gages purport to chargeuncalled capital only, and “ On mortgage of all or any part of the pro
not any part of the property of the company. I perty of the company, and either with or with .
228 - Vol. LXII., N .8.) THE LAW TIMES. [April 5, 1890.
Chan. Div .] Re THE PYLE WORKS LIMITED. [Chan . Div.
out including in any such mortgage all or any capital;” and the unpaid capital and the pro
definite proportion of the capital of the com ceeds of any future calls were not to be dealt
pany then uncalled ." Those words read with with by the liquidator without notice to the mort.
those in the memorandum of association autho gagees. It therefore appears that themortgagees
rise a mortgage of uncalled capital certainly were recognised and dealt with by the court as
along with other property of the company having a charge not only on calls made by the
to secure an advance. Further, the memo directors but on those to be made in thewinding
ran dum authorises the issue of “ mortgage up ; but no notice of any suggestion of a differ
debenture and other securities . . . founded ence between them is to be found either in the
on all or any of the real or personal assets arguments of counsel or the judgment of Sir G .
or on the credit of the company.” If it is con - Jessel as reported . A similar decision appears to
ceded (as was contended in argument) that the have been given by Kay, J. in Howard v. Patent
strict or primary meaning of the word “ assets " . Ivory ManufacturingCompany ,butthere also there
is property , and that it would not include uncalled is a like silence as to any distinction between calls
capital in theabsence of a context, still the articles made before and those made after the commence
of association show that uncalled capital was ment of the winding-up. It is now contended
intended to be available as the subject-matter of that these decisions ought not to be followed on
a security , and I should therefore hold, if neces the ground that they are inconsistent, if not with
sary , that there is here found a context sufficient other cases binding on me, at all events with the
to show that that word " assets," as it was used in grounds on which the decisions in those cases
the memorandum , is used in a sense which are based. Before proceeding to consider those
includes uncalled capital. I am of opinion , there . cases I may remark that in the earliest or one of
fore, that the mortgage of the 3rd Jan. 1882, the earliest cases in which the validity of a mort
which includes both uncalled capital and other gage of unpaid capital was considered , Fiz .,
property of the company, is authorised by the Stanley 's case, Turner, L .J . appears to have
express terms of art. 111. In the other mortgages rested his decision against the validity of the
the subject-matter of the security is uncalled charge on the ground that it would be incon
capital only ; and it is suggested that, as they sistent with the discretion vested in the directors
include no part of the property of the company, as to the making of calls. This, however, was
strictly so called , they do not fall within art. 111. set aside by Sir G . Jessel, in the Phoenix Bessemer
In my opinion , however, art. 111 clearly shows an Steel Company's case, who relied mainly on the
intent that the company should have power to analogy furnished by sect. 38 of the Companies
mortgage uncalled capital. It is said that the Clavses Act 1845 , which expressly confers power
words “ such mortgage" in art. 111mean amortgage to mortgage the future calls on the shareholders.
of all or any part of the property of the company In Re Sankey Brook Coal Company (22 L . T .
which would not include the uncalled capital, as Rep. N . S . 62 ; L . Rep. 9 Eq. 721) a charge was
the article ought to be read . The result of that given on the proceeds of a call proposed to be
would be that a mortgage of uncalled capital but not actually made. The call was afterwards
alonewould be invalid , whereas if it included any | made, but before the proceeds were got in
part, however small, of the other property of the a winding - up commenced . It was held by
company, it would be valid . I do not think that James, L .J. (then V .-C .) that the charge was
such a narrow construction ought to prevail, and valid , and the liquidators were ordered to
I prefer reading the words " such mortgage" as apply the proceeds of the call towards pay.
meaning a mortgage given to secure money ment of the debt secured by the charge. I do
borrowed by the company generally. In my not. however, treat this as an authority directly
opinion , therefore, the mortgages of the 10th in favour of the mortgagees in this case ; for the
Aug . and the 28th Oct. 1887, are within the order made in Re Sankey Brook Coal Company
power. There remains the question whether related to the proceeds, not of a call made by the
such a mortgage may be given by way of in : | liquidators , but of one made by the directors,
demnity as in the case of the deed of the 3rd which (as is shown by Stone v . City and County
May 1886. I postpone, however, for the pre Bank) the liquidators had power to enforce. But
sent, the consideration of this question , and it may be (and it is suggested in argument) that
proceed to consider whether these charges, a directors' call so enforced is subject to charges
which I have held to be valid , are effectual from which a call made by a liquidator would be
against unsecured creditors as regards calls free. The cases on which reliance is placed in
made in the winding -up, it being contended opposition to the rummons are mainly Grissell's
that a company formed under the Companies Act case, Black and Co.'s case, and Re Whitehouse and
1862, has no power to bind such calls, whatever Co., all of which were decided on the terms of the
may be its powers as regards calls made by the Companies Act 1862, and particularly on sects.
directors. Now , the order made in Re Phoenix 16 , 38 (sub -sect. 4) 75, 98, 101, and 133 . His
Bessemer Steel Company, already referred to (of Lordship then read sect. 16 , observing that it
which I have obtained a copy), contained an ex related to moneys payable in pursuance of the
pression of opinion that the mortgagees had conditions and regulations of the company. He
under their mortgage a first charge on the unpaid also read sect. 38, as to the liability of past and
capital of the company and on the proceeds of all present members of a company in the event of a
future calls made and to be made on the shares winding-up ; and sub-sect. 4 of that section, that
in the company ; and it was ordered that the in the case of a company limited by shares, no
contribution shall be required from any member
liquidator should get in the unpaid capital under
the direction of the judge, and should place the exceeding the amount, if any, unpaid on the
same and the proceeds of all future calls to be shares in respect of which he is liable as a present
made on the shares in the company to a separate or past member. He then read sect. 75 , as to the
fund to be entitled “ calls in respect of unpaid liability to contribute to the assets of a company
April 5, 1890. ) THE LAW TIMES . [Vol. LXII., N . 8.- 229
W
Chan. Div.] R . THE PYLE WORKS LIMITED. [Chan. Div.
in a winding -up creating a specialty debt ; and 175), in which it was held that the decision in
sects. 98, 101, and 133, sub-sect. 1. He observed Grissell's case did not apply to a company which
that it was plain from sects. 38 and 75 that the was being voluntarily wound-up, and then he
liability under sect. 38 was treated in the Act as goes on to deal with the ordinary law of set-off .
a different liability from that which was created “ What is the ordinary law of set-off," he says,
by sect. 16 , and that by the first portion of and he goes on to deal with that, and then,
sect. 101 contribution under sect. 38 was excluded after dealing with that,hesays : “ Here the rights
from the operation of that section . He con are substantially different. The moment that
tinued :) Now , in Grissell's case the company the winding-up takes place the whole adminis
was being wound-up under supervision ; calls tration is carried on with a view to the payment
were being made in the winding-up, and the of the debts of the creditors, and, in the first
question was, what were the rights of a con instance, to payment pari pa88u . The different
tributory who was also a creditor of the sections of ihe Act - those which define the lia
company. It was held that the debt could bility of limited companies, the 7th , 8th , 23rd ,
not be set off against the calls, but that the con and 38th ; those which deal with the adminis
tributory must first pay his calls, and then he tration of assets, the 98th , 101st, and 133rd ; those
would be entitled to receive a dividend pari passu which give the power to make calls, not in
with the other creditors. Lord Chelmsford , in the ordinary way, but specially for the purposes
giving the judgment of the court, after stating of this Act, the 102nd and 133rd - all have in view
that the question depended entirely on the con - | the payment pari passu and equally of the debts
struction of the Companies Act 1862, says : " In due to the creditors , and the hand which receives
considering the questions involved in these appli the calls necessarily receives them as a statutory
cations, the primary intention of the Legislature trustee for the equal and rateable payment of all
in the provisions
relating to the winding-up of the creditors. The result of this contention that
companies must be regarded . The intention is ex one particular creditor may pay himself in fullby
pressed in the 133rd section of the Act,being that retairing his own calls and not paying them
the property of the company shall be applied would in effect be to give him a preference and to
in satisfaction of its liabilities pari passu , and,
exonerate him from his obligation as a share
subject thereto , shall, unless it be otherwiseholder to contribute towards the payment of the
provided by the regulations of the company, be debts of the other creditors." James, L .J. simply
distributed amongst the members according concurred ; but there are a few words in Mellish ,
to their rights and interests in the com L .J.'s judgment which I desire to read. “ Then
pany ." Then later on he says: “ It appears the 98th section says that the assets, which
to me to be quite clear that the amount of the clearly include the unpaid portions of all
call not paid cannot be set off against the debt. shares, are to be applied in discharge of
The Act creates a scheme for the payment of the the liabilities. 'If the case stood upon that
debts of a company in lieu of the old course of section alone, it might be a very consider
issuing execution against individual members. able question whether the meaning was not
It removes the rights and liabilities of parties that the money was to be called up and applied
out of the sphere of the ordinary relation of among all the creditors, so that the shareholder
debtor and creditor, to which the law of set -off should only receive his share ofhis debt ; but that
applies. Taking the Act as a whole, the call is | is in my judgment made quite clear by the
to come into the assets of the company to be ap 101st section. Although that section does not
plied with the other assets in payment of debts. | in terms say that there is to be no set-off, yet it
To allow a set-off against the call would be con - shows that the Legislature in framing that
trary to the whole scope of the Act. In support section thought it had already been enacted
of this view it will be sufficient to refer again to that there should be no set-off, because in the
the 133rd section as to the satisfaction of the lia . 101st section they proceed to say that, where
bilities of the company pari passu .” Then he goes there is unlimited liability , then , in the case of
on to dealwith sect. 101, which he relies upon , | any independent contract, there may be a set-off.”
but into which I think I need not enter . In In Whitehouse's case the late Master of the Rolls
Black's case the company was being wound-up applied the same principles to the case of a purely
by the court. Certain contributories had voluntary winding-up, notwithstanding the case
entered into an agreement with the company for in the Common Pleas of the Brighton Arcade
the supply of locomotive engines, one term of Company v . Dowling, which had been already
which was that during the continuance of the dealt with , and doubted in Black's case. The
agreement the contributoriesmight set off against Master of the Rolls there begins by dealing with
the calls on all or any of their shares the amount the common law right of set-off, the ordinary
due to them from the company, and for which right of set-off, and, after dealing with that, he
they held the company's acceptances. It was says this : “ Before going into the details of that
held that this special contract as to set-off was Act I may state the scheme of the Act as regards
not available as regards calls made in the winding. winding-up — which was this : that the assets of
up. What the Lord Chancellor (Lord Selborne) | the company were to be collected by the liqui
said was this : [He read the judgment from dator and distributed among the creditors, and
" The point, therefore, which his Honour has de- / in the case of an insolvent company it was very
cided is simply this," down to “ I greatly doubt like bankruptcy ; but if the assets were to be so
whether that Act does not supply additional distributed , of course, if the liquidator sued in
reason against holding that the set-off in this his own name he would not be indebted at all to
case can be allowed .” ] Then he goes on to deal the man to whom the company was indebted , and
with the case decided by the Court of Common there would be no strict right of set-off.” (He
Pleas of The Brighton Arcade Company V. continued reading the judgment down to “ The
Dowling (17 L . T.Rep. N . S. 541; L . Rep. 3 C . P. I debt due to the liquidator is distributable among
230 _ Vol. LXII., N. S.] THE LAW TIMES. [April 5, 1890.
CHAN. Div.] Re The PYLE WORKS LIMITED. [Chan . Div.
the creditors, and the debt due to the individual | lities ;" and by sect. 133 " the property of the
from the company would only rank with the view company ” (a term which has been held to have
of obtaining a dividend for the creditor for the the samemeaning as " assets of the company ” in
amount due." He continued :] Then he deals sect. 98 ) “ shall be applied in satisfaction of its
with sub-sect. 4 of the 38th section , which I have liabilities pari passu .” The proceeds of calls
read, and he says this : “ Now , first of all, as made in the winding-up therefore become (as was
regards the calls made in the winding-up , they held in Webb v. Whiffin ) part of the assets or
being calls for something unpaid on the shares, property of the company. Now , in dealing with
that is a contribution due by the member under other portions of those “ assets " or that “ pro
the Act , and is not a debt due to the company. perty ," the liquidator would be bound to have
The contribution also under this section applies regard to any equitable charges duly created
to the unpaid calls made before the winding-up ; thereon ( including, of course, such charges as
because,though that is a debt due to the company, were held by the House of Lords to be valid in
it is not the less an amount unpaid on the shares the cases of Holroyd v . Marshall, 7 L . T . Rep .
iu respect of which he is liable, and therefore he N . S . 172 ; 10 H . of L . Cas. 191 ; and Tailby F.
must be liable to contribute all that is unpaid on Official Receiver, 60 L . T . Rep. N . S . 162 ; 13 App.
his shares. As I said before, it is as much unpaid, Cas. 523), and to apply the proceeds of the realisa
if he had not paid the calls made before the tion of such specific parts of the assets, first, in
winding-up, as it is in respect of the amount payment of the sum due on the charge ; and,
unpaid on the shares in respect of which no call secondly (and only secondly), in payment of the
has been made before the winding-up.” So that general creditors pari passu . It is said on behalf
the Master of the Rolls thought thatthe principle of the mortgagees that the like course ought to
of Grissell's case extended not merely to calls be followed with respect to the proceeds of calls
made in the winding-up, but to calls made prior made in the winding-up. On the other hand it is
to the winding-up. Hedeals afterwards with the said on behalf of the general creditors that the
question which he had referred to in the early language of the Act of 1862 is such as to prohibit
part of his judgment, whether there was any any application of the proceeds of calls made in
difference where the action was brought in the the winding -up in favour of specific mortgagees,
nameof the company at common law , and comes and that all such proceeds must be divided pari
to the conclusion that there was not. It is notneces passu among the creditors of the company. This
sary to go through that part of his judgment. contention appears to be now , for the first time,
It appears therefore that, in Grissell's and White explicitly raised for judicial decision. If it had to
house 's cases, the question related to the ordinary be decided on the language of the Act alone there
right of set-off, and that Black's case related to a might be some difficulty, but in dealing with it a
right of set-off conferred by contract. None of court of first instance is bound, I apprehend, to
those cases deal in any way with the effect of a have regard to the current of decision on the
charge given for valuable consideration . That Act of 1862. Now , in the cases relating to set.
subject is alluded to in the argument in Black's off, the courts which decided them did not place
case, but not (so far as I have observed ) in the exclusive reliance on sects. 98 and 133 ; each of
judgment; and the terms of the agreement them attached weight to sect. 101, which was
which were relied on by the contributories in treated (as it is put by Mellish , L .J. in Black's
that case were not apparently such as could be case) as showing “ that the Legislature thought
treated as creating an equitable assignment of it had already been enacted that there should
the unpaid calls. In all these cases it was held | be no set-off.” No section of the Companies Act
that the right of set-off could not prevail ; that i 1862 so conclusively negatives the validity of a
is to say, that the liquidator was entitled to charge on calls in the winding-up as sect. 101
receive the calls in full, and undiminished and negatives the right of set-off. Reference was
unaffected by any indebtedness on the part of made in argument to sects. 25, 26 , and 32, which
the company to the person by whom the calls impose on the company the duty of giving
were payable. Here it is admitted that the calls information to the public on certain matters, and
are to be paid in full; the question is, how is the amongst others as to the amount of calls made
liquidator to apply them when received - whether on each share, the total amount of calls received ,
pari passu among all the creditors, or in satisfac and the total amount of calls unpaid ; and it was
tion of the debts of the mortgagees in whose said that a member of the public proposing to
favour charges have been created on the unpaid deal with the company) would be misled if a
capital ? Now , thedecisions in the three cases to charge on unpaid capital of which he had no
which I have referred are not in point ; but notice or means of obtaining information were
reliance is placed on the language made use of held to be valid . The same argument would
in the judgments, and certainly some of the show that a charge on a callmade,but remaining
language, if taken literally , appears to be strongly unpaid, ought not to be held valid ; yet effect
in favour of the contention on the part of the was given to such a charge in Re Sankey Brook
general creditors. It is, however, to be borne in Coal Company. I may also add that if the
mind that those judgments were given with observations of Sir G . Jessel in Re Whitehouse
reference to cases, none of which involved the are to be understood as applying to a charge as
consideration of the effect of a charge upon well as to a right of set-off, I have difficulty in
unpaid capital. Apart from decision, theargu seeing how those of them which relate to calls
ment in favour of the mortgagees is thus put : | madeby directors while the company was a going
By sect. 38 there is imposed the liability to con concern , but remaining unpaid at the commence
tribute to the " assets of the company ” in the ment of the winding-up, are to be reconciled
event of its being wound-up. By sect. 98, the with the decision in the case of the Sankey Brook
court is to cause the " assets of the company to Coal Company. Again , as has been already
be collected and applied in discharge of its liabi- i pointed out, the validity of mortgages of future
April 5, 1890.) THE LAW TIMES.. [Vol. LXII., N . S.- 231
Chan. Div .) ReGREAT NORTHERN SALT AND CHEMICAL WORKS COMPANY LIMITED. [CHAN. Div.
calls, when apt and proper words are used or a Nov. 7, 1889, Jan. 11 and 23, 1890.
sufficient contest is found, is recognised in the (Before STIRLING , J.)
judgment delivered
South Australia by James,' In
v. Abrahams. L . J.that
in case
Bankthe
of
Re GREAT NORTHERN SALT AND CHEMICAL WORKS
calls sought to be affected by the mortgage had COMPANY LIMITED. (a )
been made in the winding-up, and the distinction Company - First directors - Appointment of Ap
now sought to be drawn between calls made by pointment in writing not signed at a meeting of
directors and callsmade in a winding-up cannot, subscribers - Allotment of shares - Validity of
I think, have commended itseif to the Lord No minute of allotment- Companies Act 1862
Justice, or the other eminent judges who took (25 & 26 Vict. c. 89), 8. 154, Table A ,arts. 52,
part in the decision. It is difficult to suppose 53, 55, 58, 61, 62,66 .
ilat the Judicial Committee meant to recognise
The company was formed under Table A . to the
the existence of a power to create a mortgageCompanies Act 1862, art. 52 of which provides
which would fail at the moment when it was that the number of the directors, and the names
most wanted - viz .,when the company had become of the first directors, shall be determined by the
insolvent and was being wound-up- any more subscribers of the memorandum of association .
than that the Legislature meant to confer such The subscribers of the memorandum , by a docu
power only on companies governed by the Com ment in writing signed by them all, appointed
panies Clauses Act 1845, some of which , it is to four persons to act as directors. That document
be remembered , may be wound-up under the was not signed at anymeeting of the subscribers.
Companies Act 1862. Looking at these circum Held ;that the subscribers werenot under any obli
stances, and finding two decisions in favour of gation to meet for the purpose of signifying their
the mortgagees,and having somereason to believe determination as to the appointment of directors,
that the earlier of these cases- namely , that of and the appointment was valid .
Re Phoenix Bessemer Steel Company has been
followed in chambers, and has been to a consider K ., who owned shares in the company, in respect
able extent relied on by persons dealing with of which he was held to be a contributory ,applied
joint-stock companies during the fifteen years for further shares, and received a letter of allot
which have elapsed since it was decided , it is ment. The transaction appeared in the allotment
enough for me to say that the weight of autho book of the company , but there was no record of
rity appears to me to be in favour of the conten any board meeting havingbeen held at the date of
tion of the mortgagees, and I therefore propose the allotment, the minutes having then ceased to
to follow the decision in the Phoenix Bessemer be kept. K . disputed the validity of the allot.
case. One point more under this head remains ment.
to be considered. It appears that some of the Held , that, K . being a contributory , the entry in
mortgagees are themselves shareholders of the the allotment book was primâ facie evidence
company, and it was contended that, even if the against him of the allotment, under sect. 154 of
mortgages were good as regards calls on the the Companies Act ; that the entry of a reso.
shares of third parties, they were invalid as lution in a minute was not essential to the
regards calls on the mortgagees' own shares. If, validity of the resolution if it could be proved
however, there exists a power of mortgaging aliunde, and the burden of showing that no valid
future calls it seems to me that it must extend to allotmentwas made fell upon K .
calls on the shares of mortgagees as well as of This was an application by the official liquidator
other persons; and that the calls on the shares of the Great Northern Salt and Chemical Works
ofmortgagees are as applicable in payment of Company to fix Mr. Colin Kennedy on the list of
themortgagees' debt as are calls on the shares of contributories of the company in respect of 500
third parties . I hold , therefore, that the claims preference shares in that company.
of the mortgagees under the mortgages of the The company was incorporated on the 3rd April
3rd Jan . 1882, 10th Aug. 1887, and 28th Oct. 1888 , under Table A , to the Act of 1862, with a
1887 are well founded . As regards the mort- Į capital of 150,0001., of which 50,0001. were 8 per
gage of the 3rd May 1886 , it differs from those cent. cumulatire preference shares of 11. each .
other three in this respect, that it is given by The subscribers to the memorandum of associa .
way of indemnity , and not to secure an advance. tion were Messrs. Jillings, Molyneus, Ruddock ,
It does not, as it appears to me, fall precisely Parry , Jenkinson, Fenwick , and Odell.
within any of the decisions to which I have At a meeting of the subscribers, held on the
referred. I do not at present say that it is 12th May 1888, at which only Jenkinson and
invalid, but I think it would be desirable to know Fenwick were present, those two persons pur
something more of the circumstances under ported to appoint directors. (6) Other directors
which that mortgage was given than is contained were afterwards
in the affidavits now before the court, and I resigned , and theadded, but subsequently they all
money received from applicant,
therefore propose to postponemydecision on this for shares was, except in one or two cases
part of the case until some further evidence on returned .
this point has been brought before me. On the 16th July another meeting of the sub
Solicitors for Messrs.Gautier , Greenwood , and scribers was held, at which three only were
McIlwraith , Lane, Monro, and Soutter. present, and those three proceeded to appoint as
Solicitor for Mr.Gotto, G . M . Clements. (a) Reported by A . J. HALL, Esq., Barrister -at-Law .
Solicitors for the liquidator, Maples, Teesdale, (6 ) Table A ., art. 52 : “ The number of the directors,
and Co.
and the names of the first directors, shall be determined
Solicitors for
Son , and Parton .the unsecured creditors, Drake, by the subscribers of thememorandum of association .,"
Art. 53 : “ Until directors are appointed the subscribers
of the memorandum of association shall be deemed to
Į be directors ."
232 - Vol. LXII., N . 8.) THE LAW TIMES . (April 3, 1890.
CHAx. Div .] ReGREAT NORTHERN SALT AND CHEMICAL WORKS COMPANY LIMITED . (Chax. DIT.
directors Messrs. Jillings, Parry , Jenkinson, and to them by the solicitors who had acted for the
Smith , and to allot sbares and debentures. company, and afterwards for the provisional
By a document in writing, dated the 27th July liquidator, in whose office it bad been mislaid.
1888, purporting to be signed by all the seven It did not appear that this document had been
subscribers to the memorandum as subscribers signed at any meeting of the subscribers of the
Messrs . Smith, Parry, Jillings,and Fenwick were memorandum .
appointed to be directors.
" At a meeting of the directors held on the forGraham Hastings, Q .C . and Bromwell Davis
thebyliquidator. Theofappointment of directors
30th July , at which all those persons were present, made the document the 27th July 1888 was
it was stated that the directors had been duly made by all the subscribers of the memorandum ,
appointed by the subscribers to thememorandum and was a valid appointment under art. 52 of
of association , and the prospectus was approved Table A . The directors appointed by it are the
and ordered to be issued . persons upon whom the subscribers have deter
At a meeting held on the 2nd Aug., at which mined under that article . That determination
the same four persons were present, it was was unanimous, and it is immaterial whether or
resolved that two directors should be a quorum no it was arrived at at any meeting :
to conduct thebusiness of the company. Fenwick Hallows v . Fernie , 15 L. T. Rep. N . S. 602 ; L. Rep.
desired not to join theboard as director until after 3 Fq. 520Claim
; , 25 L. T. Rep. N . S. 526 ; L . Rep.
allotment, and up to that time was only present Collie's
at the board as vendor. 12 Eq. 246 .
At the first statutory general meeting of the Oswald for Mr. Kennedy. — Before any valid
company held on the 20th Aug. it was reported allotment of shares can be made, there must be
that notice had been duly sent to each share actual directors. There never bare been any
holder - viz., the subscribers to the memorandum directors of this company properly appointed .
- and it was resolved that the appointment of The only meetings of subscribers held to appoint
other or any further directors be in the option directors were those held on the 12th May and
of the directors appointed by the subscribers, the 16th July 1889, and at both those meetings a
which directors were thereby authorised and minority only of the subscribers was present,and
requested to continue to act for the presente a minority is not competent to appoint directors
viz., Messrs. Smith, Parry, and Jillings. The under art. 52 :
minutes of that meeting were signed by six of The Howbeach Coal Company v, Teague, 2 L . T .
the subscribers, the seventh being one of the Rep. N . S . 187 ; 5 H . & N . 151 ;
three directors then appointed . Re London and Southern Counties Freehold Land
At a board meeting, held on the same day , at Company, 54 L . T . Rep . N . S. 44 ; 31 Ch. Div.
223 ;
which Smith and Parry were present as directors,
and Fenwick again attended as before, it was Buckley on the Companies Acts, 5th edit. 180.
resolved that 2046 of the preference shares should The appointment cannot be made by paper, it
be done at a meeting of the subscribers
be allotted to the various applicants, one of such must
applicants being Mr. Colin Kennedy, who had on met together for the transaction of business, in
the 11th Aug. applied for 200 of such shares, the same way as directors are required to meet
and paid the deposit thereon . ander art. 66 :
Fenwick was then elected managing director D 'Arcy v. The Tamar, Kit Hill, and Callington
of the company ; and it was resolved that Smith Railway Company, L. Rep. 2 Ex. 158.
，，，，，，， kkkkkkk ，，，，，，，，，，，，♥♥♥♥♥♥♥♥♥k Although the appointment might not be beld
authorised to allot all shares as applied for. invalid if everything bad been properly done and
Kennedy subsequently paid the amount due on placed on record, in this case all the affairs of
the allotment of his shares, and calls in respect the company were in such confusion , and every. .
of such shares, 1001. in all. thing was done so irregularly and informally,
In Sept. 1888 Mr. Kennedy applied for a further that no appointment of directors could be reason
300 of these preference shares, and paid the ably deduced from what has taken place and the
amount of 108. per share thereon , and that allotments made by persons so informally ap
number of shares was allotted to him on the pointed must be invalid :
27th Sept. 1888. The allotment appeared in the Re Homer District Consolidated Gold Mines ; Ex
allotment book of the company, but there was no parte Smith, 60 L . T. Rep . N . S. 97 ; 39 Ch . Div.
record of any board meeting at that date, the 546 .
minutes not having been kept since the 20th Aug. There is no evidence to show that the document
A petition to wind-up the company was pre of the 27th July was in fact signed by the
sented by a contributory on the 2nd Nov. 1888, persons who purported to sign it,and , in point
and on the 24th the usual order was made. of fact, there is no evidence to show how these
Notice of the appointment to settle the list of persons who purported to act as directors really
contributories was sent amongst other people to were appointed .
Mr. Kennedy, who was then on the list of sbare STIRLING, J. - It seems to me that the question
holders in respect of 500 shares. He objected to
being put on the list, on the ground that the turns upon the document of the 27th July 1888 .
I should like to bave evidence as to how that
shares he had subscribed for had never been document was signed , if somewne can speak as to
validly allotted to him , by reason of the infor. that from his own knowledge.
mality of the appointment of the directors who Oswali . - I object to ex post facto evidence
had purported to make the allotments.
The existence of the written appointment of being put in at this stage of the proceedings.
the 27th July 1888 was not discovered by the STIRLING, J. - The list of contributories is being
solicitors to the liquidator until after thematter settled , and the liquidator's evidence is incom
had been adjourned into court, when it was sent ' plete, and I think I should be doing a gross
April 3, 1890.) THE LAW TIMES . [Vol. LXII., N . 8.- 233
Chan. Div .] Re Great NORTHERN SALT AND CHEMICAL WORKS COMPANY LIMITED. (Chax . Div.
injustice if I did not allow further evidence to be memorandum of association — " raises a question,
put in to make it right. Having regard to the he may be entitled to say “ I will not have this
irregular manner in which the affairs of this decided without a meeting of us all,' but if they
company seem to have been conducted , it is not all concur (as in this case) it seems to me hyper
unreasonable to look at the document of the critical to say the appointment was irregular.”
27th July 1888 with some suspicion , and I think That seems to me, if Imay say so,excellent sense,
there ought to be further evidence as to it. Mr. and, unless there is some authority which compels
Kennedy can also put in further evidence by me to cometo another conclusion , I should be ready
affidavit ,and the witnesses, if necessary, can be to follow it . Now , the authority which is relied on
cross-examined in court. The case must, there. on the other side is the well-known case of D ' Arcy
fore, stand over for the further evidence to be T. The Tamar, & c., Railway Company (ubi sup.).
adduced . That was a case in which , there being more than
Jan. 11. – The case again came on, when evi. three directors, three constituted a quorum , and
dence was given as to the signing of the docu the secretary, in order to affix the seal of the
ment of the27th July 1888, and the circumstances company to a document which was to bind the
company, got three of the directors to attest the
under which it was prepared . affixing of the seal, they not having met together,
Oswald continued his argument. but being casually picked up one after the
Graham Hastings, Q. C. replied . other. It was held that that would not do.
Jan. 23. - STIRLING , J. stated the facts.-- He But, to my mind, that case is clearly dis.
observed that both the purported elections of tinguishable, on two grounds. First of all,
directors on the 12th May and 16th July 1888 there only a quorum acted , and that is open to
were invalid , by reason that in neither case did a very serious objection . It is pointed out by
majority of the subscribers attend, and referred Lord Bramwell,who took part in the decision ,
to the decision of Chitty, . J. in Re London and that if a quorum of three meeting together, and
Southern Counties Freehold Land Company. He not being regularly summoned , were to act,
then dealt with the evidence as to the preparation another quorum of three mightmeet in a different
of, and the genuineness of the signatures to , the place, and come to exactly an opposite conclusion ;
document of the 27th July 1888 , and came to the and therefore the government of the company by
conclusion that the document was shown to have , means of quorums so picked up would be impos
been signed by the persons by whom it purported sible. It is also open to this serious objection ,
to have been signed . And, further, that he ought that the minority have no means of stating
not, because Fenwick was only presentat board whether they assent or dissent to the act pro
meetings as vendor, to cometo the conclusion that posed , and haveno means of bringing their views
he was not appointed director by that document. before their colleagues if they do dissent. These
And ultimately he came to the conclusion that | are very serious objections to the validity of
the document of the 27th July 1888 was a the procedure where only a quorum assent to the
genuine document, and that the four persons act ; but where the whole body of directors act,
named therein were properly appointed directors, or assent to the act even though they do notmeet,
or purported to be. He continued :- But then the validity of the act is not open to the same
there is a question raised as to the ralidity of objections. Besides that, the reasoning of the
that document in law as a nomination of first various members of the court is based upon this,
directors, and it is said that it is invalid on that they found from the Companies Clauses Act
the ground that, for the purposes of making a 1845 an obligation upon the directors acting as
valid election , the subscribers of the memoran directors to meet and act jointly and as a board .
dam of association ought to meet. [His Lord . I find here in Table A . no such obligation as
ship read arts. 52 and 53 of Table A., and con - | regards the subscribers of the memorandum of
tinued :] Then by art. 55 the business of the association . Then another objection to the
company is to bemanaged by the directors, and validity of the allotment is this : It is prescribed
by art. 66 this is provided : “ The directors may | by art.58 of Table A . that," At the first ordinary
meet together for tbe despatch of business." Now , meeting after the registration of the company
admitting to the full that the directors in order the whole of the directors shall retire from
to transact business must meet, and that the office ;" and it is said, therefore, that on the
subscribers to the memorandum of association , 20th Aug., at the general meeting, which for this
if they choose to act as directors, are under a purpose I assume to have preceded the board
like obligation, still it does seem to me that it is meeting of the same date, they did retire. Well,
not provided by Table A . that, if the subscribers what is the result of that ? Art. 61 provides
to thememorandum choose not to act as directors, that, “ The company at the general meeting at
but to nominate others to that office, they are | which any directors retire in manner aforesaid ,
under an obligation to meet for the purpose. I shall fill up the vacated offices by electing a like
say under an obligation to meet for the purpose. | number of persons." What took place ? I have
What is required of them is, that they shall read the resolution , and that seems to me to be a
determine the number of the directors, and the resolution which , at all events, is valid to this
names of the first directors, and it seems to me extent, that it continued in office the then present
that, if in point of fact they do all in any way directors. It may be that part of that resolution
show their determination on that subject, that was invalid,and that the directors could not be
ought to be treated as valid. This appears to validly intrusted by a general meeting with the
have been the opinion of Lord Hatherley when appointment of other or further directors in cases
Vice-Chancellor, who says in Hallows v. Fernie : to which Table A . did not apply ; but it does seem
" I very much doubt whether it is necessary that to methat that resolution is a sufficient expression
those persons should meet together. If any one of the will of the meeting that the then present
of the subscribers to the contract " — that is, the I directors who are named in it should continue
234 — Vol. LXII., N. S.] THE LAW TIMES. [April 5, 1890.
Chan. Div.] ARBUTINOT v . BUNSILALL . [Chan . Div.
in office. Besides that, I think there is this directors have not been regularly kept. The
further observation to make that, by art. 62 it is document on which the validity of the acts of the
provided that : “ If at any meeting at which an directors depends was only produced at the last
election of directors ought to take place the moment, and supplementalevidence was admitted
places of the vacating directors are not filled up, by me in order to prove it . Under those circum
themeeting shall stand adjourned till the same stances, I think that the respondent had good
day in the next week , at the same time and place ; ground for strictly inquiring into the proceedings
and if at such adjourned meeting the places of of the company, and, though I settle him on the
the vacating directors are not filled up , the list of contributories, the only order which I
vacating directors, or such of them as have not bad make as to costs is that the officialliquidator take
their places filled up , shall continue in office until his out of the assets of the company.
the ordinary meeting in the next year, and so on Solicitors for the liquidator, Trinders and Co.
from time to time until their places are filled up ." Solicitors for Mr. Kennedy, W . H . Smith and
Now , it is quite true that an adjourned meeting Son .
did not take place here, supposing that the resolu
tion of the 20th Aug. was ineffective ; but it
seems to me that that portion of art. 62 might
very fairly be read as being a clause of that Thursday, Feb. 6.
nature which is usually described , or commonly (Before STIRLING, J.)
described, as directory only, and that the ARBUTHNOT v . BUNSILALL. (a )
ineaning of it is that, if for any reason either the Covenant- Judgment - Merger - Rate of interest
first meeting or theadjourned meeting at which after judgment- Mortgage security .
the election of directors ought to take place A . executed an instrument acknowledging the receipt
does not proceed validly to fill up the place of the from B . of an advance of 9000 rupees, bearing
vacating directors, then they are to continue in interest at 18 per cent. per annum ,which amount he
office. I think , therefore, that three directors promised to repay by monthly instalments until
were validly in office on the 20th Aug. ; those the whole amount, with interest, should be finally
three made the allotment of the 200 shares, and liquidated , the monthly interest to be deducted
it appears to me, therefore, that that allotment is from the instalment,and the balance to be applied
binding . Then the position with regard to the 300 towards the liquidation of the principal, and he
sbares is this : Mr.Kennedy admits that heapplied assigned to B . as a security a policy of assurance
for them , and received an allotment letter. That is on his life. He subsequently executed a similar
confirmed by the allotment book of the company, instrument on the occasion of a further advance
which is evidence against him , I having held by B ., the interest being at the same rate, but in
that he is a contributory to the extent of 200 that case the nonthly instalments were not to cont
shares, under sect. 154 of the Companies Act, and mence until after the finalliquidation of the former
that book shows that the allotment was made on debt, and in the meantime he promised to pay
the 27th Sept. That is primâ facie evidence. It the monthly interest at the aforesaid percentage,
is true that there is no record of any board or and the policy was again charged .
committee meeting having been held on that day, B . had recovered judgment for the amounts due on
but the minutes ceased to be kept after the 20th these securities, with interest at 18 per cent. to
Aug. The admission of Mr. Kennedy , coupled the date of the judgment. The totalamount due
with the entry in thebook , constitute prima facie under the judgment, with interest at 4 per cent.
evidence of the allotment, although there is no from the date of it, and the taxed costs, had been
record of a board or committee meeting ; and it paid to B ., buthe claimed interest at 18 per cent.
has been held, I may mention , among other cases, until payment.
in Knight's case (15 L . T. Rep . N . S. 546 ; L . Rep. Held , that the covenants for the payment of interest
2 Ch. App. 321) that the entry of a resolution in were merely subsidiary to the covenants for the
a minute is not essential to the validity of the payment of the principal sums, and were merged
resolution , which is proved aliunde, even in a case in the judgment for the principal sums, and B .
which relates to forfeiture, and which , as we was only entitled to interest at 4 per cent. from
well know , must be proved in the strictest the date of the judgment.
manner. It seems to me that, in that state of Ex parte Fewings ; Re Sneyd (50 L . T. Rep . N . S.
things, the burden of proof of showing that a 109; 25 Ch. Div. 338), followed .
valid allotment was not made falls on Mr. Popple v. Sylvester (46 L . T. Rep. N . S. 329; 22
Kennedy. It appears to me that he has not Uh. Div .
98) distinguished .
fulfilled to theobligation
to point that resolution. under
All that he has
which Smith is
doneand This was an originating summonsby the plaintiff
Fenwick were autborised to allot the shares as under Order LV ., r . 5 (A ), of the Rules of Court
applied for. There is no evidence that that reso 1883, asking ( 1) for a declaration that as from the
lution was acted upon , and there being at the 24th Oct. 1887 , the date of the judgment recovered
time, at all events , three validly elected directors by the defendant against the plaintiff for the
who were competent to make the allotment of 300 moneys owing on two bonds or securities given
shares in September 1888 , I think that the onns by him to the defendant, dated respectively the
Nov. 1883 and 17th May 1884, the interest
which is thrown on the respondent has not been 3rd on the said bonds or securities ought to be cal.
fulfilled by him . I hold, therefore, that hemust culated at the rate of 4 per cent. per annum only
be settled on the list as a contributory in respect
of 500 shares. It only remains that I should deal (instead of 18 per cent., the rate provided by the
with the costs . As to those, I must say that the bonds), and that the defendant had no charge or
business of this company does not appear to me lien on the policy of assurance on the life of the
to have been conducted in a regular manner,. and
and plaintiff comprised in the said bonds or securities
that the records of the persons who acted as its ! (a) Reported by A. J. HALI , Esq , Barrister-at-Law .
April 5, 1890.] THE LAW TIMES . ( Vol. LXII., N . 8. - 235
CHAN. Div.] ARBUTINOT v. BUNSILALL. [Chan. Drv .
for interest at any higher rate ; and (2) for an only payable at the rate of 4 per cent., not at the
order that the defendant should deliver over to | rate provided by the bonds :
the plaintiff the said bonds or securities, and Re European Central Railway Company, 35 L . T.
reassign to him the said policy of assurance. Rep. N . S. 583 ; 4 Ch . Div. 33 ;
The bond of the 3rd Nov. 1883 was in the form Ex parte Fewings ; Re Sneyd, 50 L . T . Rep . N . S.
of a deed-poll under the hand and seal of the 109 ; 25 Ch . Div. 338.
plaintiff, who was a colonel in the Indian Army, Popple v. Sylvester (46 L . T. Rep. N . S . 329 ; 22
and acknowledged that he had borrowed and Ch. Div . 98) is distinguishable. In that case, as
received from the defendant's firm was pointed outby Fry , L .J. in Ex parte Fewings,
there was an independent covenant for the pay
9000 rupees bearing interest atthe rate of 18 per cent.
per annum , which amount I do hereby punctually ment of the interest, which he had held, in the
and faithfully promise to repay to them (the defen former case, did not merge in the judgment
dant's firm ), or to their executors, administrators, There is no such independent covenant in the
or assigns, by monthly instalments of 500 rupees, present case.
the first instalment to be commenced from the issue
of pay in Dec. 1883 (that is, from the arrears of Corrie for the defendant. — This case comes
Nov. 1883) and the same to be continued each within the principle of Popple v. Sylvester, and
and every succeeding month until the whole amount
with interest of this bond shall be finally liquidated . not within that of the other two cases cited .
Should I fail to pay any of the above instalments or quit Those were cases of a proof in a winding.up and
India before the final liquidation of this bond , I further a bankruptcy respectively , whereas this is a claim
bind myself tomakeimmediate payment of the whole sam for redemption of a mortgage. The covenants
or such portion then remain (sic) unpaid , together with for interest remained in force after the judg
the interest at the aforesaid percentage,without any in .
terruption . This is to be further understood , themonthly ment, and until the whole amounts of the bonds,
interest will be deducted from this instalment, and the with interest, should be finally liquidated — that is,
balance to be applied towards the liquidation of the so long asany principalmoney could be recovered
principal. For the dae fulfilment of this engagement I by the mortgagee in an action for the foreclosure
dohereby assign , transfer , and make over all my right, or redemption of the mortgage. Interest ought
title , and interests in the within policy No. 4386 for to be paid , therefore, at the rate provided by the
12,000 rupees assured in the Oriental Life Assurance
) or their executors, bonds until the repayınent of the totalamounts
assigns, thefirmperiodical premiumsof | of the debts. He referred to
Company to the ordefendant's
administrators,
which I promise to paymyself. : Re Roberts ; Goodchap v. Roberts, 42 L . T . Rep .
The bond of the 17th May 1884 was substan N . S. 666 ; 14 Ch. Div .49.
tially in the same form . It was to secure 2000 STIRLING, J.- I will not trouble you, Mr.
rupees bearing interest at the rate of 18 per cent. Gregory, for a reply. On the authorities, the
per annum . It was to be repaid by monthly point raised
instalments of 500 rupees, commencing after the one ; but thebylawthis summons is a somewhat fine
on the subject is, I think , as laid
final liquidation of the former bond. “ For the down in Ex parte Fewings ; Re Sneyd ; and I take
meantime (that is, up to the commencement of it from the judgment of Fry, L .J., who has
instalments on this loan )" the plaintiff promised certainly gone as far as any judge in thedirection
" to pay the monthly interest at aforesaid per in which the defendant asks me to go. payment He says
centage without any interruption . When the this : “ When there is a covenant for the
instalments will be commenced then the interest of a principal sum , and a judgment has been
will be deducted from the instalment, and the obtained upon the covenant for that sum , it is
balance to be applied towards the liquidation of plain ;that
principal." The policy was also assigned by this ment and,theif there
covenant is mergedto inpaytheinterest,
is a covenant judg
bond for the due fulfilment of the engagement. which is merely incidental to the covenant to pay
On the 13th July 1887 the defendant issued a the prir cipal debt, that covenant also is merged
writ in the Queen 's Bench Division against the in a judgment on the covenant to pay the prin
plaintiff for the amounts then due on the two cipal debt. Of course a covenant to pay in
bonds and interest, and on the 24th Oct. 1887 terest may be so expressed as not to merge in a
recovered judgment under Order XIV ., r. 1, of judgment for the principal ; for instance, if it was
the Rules of Court for such amounts, and interest a covenant to pay interest so long as any part of
thereon at 18 per cent. per annum up to the date the principal should remain due either on the
of the judgment. The total amount due under covenant or on a judgment." Then he gives as an
the judgment, with interest at the rate of 4 per example a case where a covenant to pay interest
cent. from the date of the judgment, and the was held to be independent of a judgment for the
taxed costs, had been paid to the defendant, but principal, and where,although the judgment debt
he declined to give the plaintiff a full discharge ,
only carried interest at 4 per cent., the agree
or to hand over the bonds and policy, on the ment to pay interest at a higher rate of 6 per cent.
ground that he was entitled under his securities remained in force. And then he refers to Popple
to hold the same until the plaintiff had paid to v. Sylvester, where there wasan independent cove
him interest at the rate named in the bonds nant for the payment of interest,and he had held ,
down to the date of payment. as a matter of construction , that that covenant
This summons was accordingly taken out. It remained in force sobylong
was adjourned into court, and now came on for could be recovered the as any principalmoney
mortgagee in an action
hearing . for the foreclosure or the redemption of themort
P. S. Gregory for the plaintiff.— The corenants gage. Then he goes on : “ On the other hand,
to pay interest were merely incidental to the there are cases which show that, if there is no
covenants to pay the principal sums, and those distinct covenant of that kind to pay interest, the
covenants were merged in the judgment on the subsidiary covenant for payment of interest falls
Covenants to pay the principal sums. As from with the covenant for payment of the principal.
the date of the judgment, therefore, interest is | That is well illustrated by Re European Central
236 – Vol. LXII., N .8.] THE LAW TIMES. [April 5, 1890.
ADM .] THE CONSTANTIA . [ADM.
Railway Company, in which case Bramwell, L .J. | follows : Shortly before 5.30 a .m . on the 29th
said : ' All that the company bonnd themselves March the Iona, a schooner of ninety -nine tons
to pay by that instrument was the sum of 10001. register,manned by a crew of five hands all told ,
and 601. for interest by two instalments, on or and laden with a cargo of coals, was in the
before the 11th Oct. 1865. There is no fresh con Bristol Channel in the course of avoyage from
tract evidenced by the forbearance of the cre Newport to Portugal. She was about ten miles
ditors, or in any other way, for the payment of N .N . E . of Lundy Island. The wind was a mode
any further interest.' There was plainly no cove rate breeze from the N . W . and the weather was
nant which wentbeyond the covenant to pay those thick . The Iona was on the starboard tack head .
two sums for interest." That case to which he ing about W .S. W ., and making about three knots
refers is important. There, there was not merely an hour under all plain sail. Her lights were
a covenant, but a charge on the undertaking of | duly exhibited and burning brightly , her fogborn
the company for the principal sum and interest, was being duly sounded , and a good look -out was
and the holders of the debentures proving in the being kept on board of her. In these circum .
winding-up, and asserting their right against the stances those on board the Iona saw the green
property comprised in the charge, Lord Bram - light and sail of a vessel which proved to be the
well says, “ There cannot be two debts, one Constantia distant abouthalf a mile, and bearing
leviable by execution , the other charging the about three points on the port bow . The Iona
undertaking. There cannot be a charge for more was kept close to the wind and her foghorn blown,
than is due.” Bearing in mind this principle, I and as the Constantia approached she was loudly
must apply it to the case of these two bonds, and hailed , but she nevertheless came on at great
see to what class they belong, that is to say, speed, and with her stem struck the bowsprit of
whether the covenants for payment of interest the Iona, and afterwards with her starboard
were merely subsidiary to the covenants for the anchor struck the port bow of the Iona and did
payment of the principle debts, or independent her great damage.
covenants, so expressed as not to merge in the The plaintiffs (inter alia ) charged the defen
judgment for the principal sums. [His Lordship dants with failing to give proper or any indication
then referred to the form of the two bonds, and of their position and the course they were on .
continued :] It seems to me that, upon the con The facts alleged by the defendants were as
struction of these documents, the agreements to follows : Shortly before 5.30 a.m . on the 29th
pay interest were simply subsidiary to the stipu March the Constantia, a foreign barque of 427
lations for the payment of the principal sums, tons register,manned by a crew of eleven hands
and that there were no such independent cove all told , and laden with a cargo of coals, was in
nants as referred to by Fry, L .J. in Ex parte Few the Bristol Channel in the course of a voyage
ings, and that, therefore, the mortgage having from Cardiff to Africa . There was a light breeze
been paid all that was due to him upon the judge from W .N . W ., and the weather was a thick fog .
ment, I must now declare that the mortgagor is The Constantia , which had been on the starboard
entitled to have themortgage securities and policy tack , was put into stays for the purpose of being
handed over to him . put on to
Solicitors for the plaintiff, Hanbury, Hutton, | wind beingthelight
port tack , and in consequence of the
she hung a little, and was in the
and Whitting. wind for eightminutes before she began to fill on
the port tack . The foghorn had been duly
Solicitors for the defendant, Keen , Rogers, sounded
and Co. when she was on the starboard tack , and
was sounded two blasts as soon as she got on the
PROBATE, DIVORCE, AND ADMIRALTY saw port tack . At this timethose on the Constantia
DIVISION the red light of a ship which proved to be
ADMIRALTY BUSINESS. the Iona distant about a ship's length, and about
two to three points on the starboard bow . The
Thursday, Nov. 28, 1889. helm of the Constantia was immediately put hard
(Before Butt, J., assisted by TRINITY MASTERS.) a-port and the mizzen sheet slacked , but having
THE CONSTANTIA. (a ) little or no headway she did not pay off, and with
Collision - Sailing ships-- Fog - Regulations for her stem struck the Iona on her bowsprit and
Preventing Collisions at Sea, art, 12. port bow .
Where a sailing vessel is tacking in a fog, she is Regulations for Preventing Collisions at Sea :
not relieved during the manoeuvre from giving Art. 12. A steamship shall be provided with a steam .
the signals prescribed by art. 12 of the Regula whistle or other efficient sound signal so placed that
tions for Preventing Collisions at Sea, and it is the sound may not be intercepted by any obstructions,
her duty until she gets the wind on to the side and with an efficientfoghorn ,to be sounded by a bellows
or other mechanical means, and also with an efficient
other than that on which she has had it to treat bell. A sailing ship shall be provided with a similar
herself as still on the tack on which she was when foghorn and bell. In fog, mist, or falling snow , whether
she began to go about and to make the prescribed by day or night the signals described in this article shall
signal, and only to change that signal when she be used as follows,that is to say - (a) A steamship under
way ghall make with her steam whistle or other steam
gets thewind on the other side. sound signal at intervals of not more than two minotes,
a prolonged blast. (b) A sailing ship under way shall
This was a collision action in rem by the owners make
of the schooner Iona against the owners of the with her foghorn , at intervals ofnotmore than two
minutes, when on the starboard tack one blast,when on
Norwegian barque Constantia . the port tack two blasts in succession , and when with
The collision occurred in the Bristol Channel the wind abaft the beam three blasts in succession . (C)
about 5.30 a.m . on the 29th March 1889. A steamship and a sailing ship when not under way shall
The facts alleged by the plaintiffs were as at intervals Barnes,
of notmore than two minutes ring the bell.
Q .C . ånd Raikes for the plaintiffs.
(a) Reported by J. P.AAPINALL and BUTLER ASPINALL, Esgrs.," I| The Constantia
Barristers -at- Law . is alone to blame for wantof look.
April 12, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 237
Adm.] Smith v. SMITH . [Ct.or App.
out and breach of art . 12 of the Regulations for
Preventing Collisions at Sea. She neglected for
eight minutes to give the signal prescribed by
the article. The mere fact that she was in stays
did not relieve her from the duty of giving an COURT OF APPEAL .
indication of her presence. The words of the
article are not that the vessel is to give a certain
signal when she is close-hauled on any particular Thursday, Jan. 23.
tack, but merely when she is on the port (Before Cotton, LINDLEY, and Lopes, L .JJ.)
or starboard tack. So long as the Constantia had Smith v. Smith . (a)
the wind on the starboard side, her duty was to APPEAL FROM THE PROBATE DIVISION .
blow one blast, and as soon as she got the wind
on the port side, she ought to have blown two Divorce - Restitution of conjugal rights — Practice
blasts. Sufficiency of affidavit — " Written demand for
Sir Walter Phillimore and J. P . Aspinall, for the cohabitation and restitution of conjugal rights '
defendants, contrà . - The Iona is alone to blame. - Rules and Regulations in Divorce and Matri
There is no duty on a sailing vessel to blow her monial Causes, rr. 2, 175, 176.
foghorn while she is coming round from one tack A wife, before commencing proceedings against her
to the other. To do so would be misleading, as husband (who had been living apart from her for
she is in fact at that time on neither one tack nor eleven years) for restitution of conjugal rights,
the other. A vessel in stays is under no obliga . served upon him a letter signed by herself giving
tion to get out of the way of another. him notice of her desire to cohabit and live with
Barnes, Q .C . in reply. him , and demanding from him a full restitution
BUTT, J. - One question in this case is, what of conjugal rights, and further notifying to him
was the density of the fog ? Was it so thick that that, in the event of his not receiving her and pro
those on board the Constantia could only see the viding a suitable home and habitation for her,
schooner about a ship 's length off ; or was it such she intended to apply to the court for restitution
Weather as would have enabled the Constantia of her conjugal rights. The husband sent
with a proper look -out to have seen the schooner a reply the same day acknowledging the receipt
at a greater distance than she did , and so have of the letter, and stating that he declined to
aroided the collision : It hasbeen contended that receive back his wife or make a home for her.
the density of the fog has been overstated by the The wife's affidavit filed with her petition .set out
defendants, but we do not think it likely that a Held the letters.
vessel's lights could be seen so far as the plaintiffs (reversing the decision of Butt, J., 61 L . T .
make out. But, apart from the question of the Rep. N . S . 697 ; 15 Prob . Div. 11), that the case
fog's density, I think that the Constantia was was distinguished from Field v. Field (59 L . T.
most improperly and negligently navigated . Rep. N . S. 560,880 ; 14 Prob . Div .26) by the facts
thathere the letter was the wife's own and not a
Whilst she was going about from the starboard
to the port tack , instead of calling up men from solicitor's letter ; that it expressed her desire to
below to help , the look -out man, whose duty it cohabit again with her husband ; and that he
was also to blow the foghorn , is called away to answered it with an unqualified refusal.
help at the braces, and is absent from his post for Held, therefore, that the wife's letter was a sufficient
compliance with rule 175 of the Divorce and
some ten minutes. Therefore on that view the Matrimonial Causes Rules and Regulations ;
Constantia is to blame. But I also think that it is and that a decree for restitution ought to be
quite unjustifiable for a vessel while going about made.
to lie in a dense fog likethis without giving any
signalwhatever . Various difficulties have been This was an appeal from a decision of Butt, J.
suggested which will arise whatever interpreta refusing to grant a decree for restitution of con
tion I puton the rule, but I think the real inter jugal rights upon the petition of the wife, on the
pretation is, that so long as the wind is on the ground that she had not sufficiently complied
starboard side, the ship for the purposes of the with rule 175 of the Divorce and Matrimonial
rule must be taken to be on that tack and blow Causes Rules and Regulations. That rule pro
one blast, and as soon as she gets the wind on the vides as follows : " The affidavit filed with the
other side she must blow two blasts. Therefore, petition as required by rule 2 shall further state
for various reasons, I think that the Constantia sufficient facts to satisfy one of the registrars
was to blame. that a written denand for cohabitation and resti
Solicitors for the plaintiffs, Botterell and tution of conjugal rights has been made by the
Roche. petitioner upon the party to be cited , and that
Solicitors for the defendants, Thos. Cooper after a reasonable opportunity for compliance
and Co. therewith such cohabitation and restitution of
conjugal rights have been withheld .”
The parties were marr ed in 1866 , and co
habited together until 1877, since which time
which timethey had lived apart.
It appeared that in 1888 the petitioner became
aware that the respondent had committed adul.
tery, and thereupon gave instructions to com
mence this suit.
On the 8th Oct. 1888 the following letter under
rule 175 , written by her solicitors bnt signed by
(a) Reported by W . C. Biss, Esq., Barrister-at-Law .
Vol.LXII., N . S., 1587 .
238 — Vol. LXII., N . S.] THE LAW TIMES . [April 12 , 1890 .
CT. OF APP.] SMITH v. SMITH . [CT. OF APP.
the petitiocer, was addressed to the respondent | the circumstances by which the present case
and served on him by the petitioner : seems to me to be distinguishable from that. In
I, Mary Elizabeth Smith, hereby give notice to you , the first place, the letter in Field v. Field was
Charles Frederick Smith, my husband, of my desirefullto written to the husband, not by the wife, but by
cohabit and live with you , and I demand from you a her solicitors as such ; was couched in peremptory
restitution of the conjugal rights of which you have and threatening terms; and expressed no desire
deprived me; and I further notify to you that, in the on the wife's part to live with her husband. What
event of your not receiving meand providing a suitable
home and habitation for me, it is my intention to apply it said was this : “ We are instructed by your wife,
to the High Court of Justice for the restitution of such Mary Francoise Field , of South Villa , Wells
my conjugal rights. road, GreatMalvern , to demand for her forthwith
The reply from the respondent on the same cohabitation and restitution of conjugal rights,
date was in the following terms : and in default of your complying with this re
I am duly in receipt of yours , and in reply I beg to quest we shall be compelled to institute pro
state that I decline to receive back iny wife or to make ceedings for the same without further notice."
any home for her. That was an ordinary solicitor's letter , containing
The respondent entered an appearance after a demand for restitution of conjugal rights, fol.
citation, but filed no answer to the petition, and | lowed by a threat of legal proceedings in default,
did nothing further. and it certainly did not express any willingness
· Butt, J. held, upon theauthority of Field v . Field | or desire on the part of the wife to return to co
(59 L . T. Rep. N . S . 560, 880 ; 14 Prob . Diy. 26), habitation with her husband . In the present case
that the petitioner's letter wasnot a sufficient com there is a substantial difference. [ His Lordship
pliance with rule 175, and accordingly refused to read the petitioner's letter, set out in the state
make a decree for restitution of conjugal rights : ment of this case and proceeded :) That does
(61 L . T. Rep. N . S . 697 ; 15 Prob. Div . 11). notify her own desire to cohabit and live with her
The petitioner appealed. husband. It is true that she does demand a full
Searle for the appellant. - In the recent case of | restitution of the conjugal rights of which she
Field v. Field Butt, J. held that, under rule 175 had been deprived , and that she states her inten
tion to apply to the court in case her husband
of the Rules and Regulations 1875 , the demand should fail to accede to her demand. But that is
of a wife for a restitution of conjugal rights in
must be written by the wife herself ; but on herreference to what she has already said as to
appeal from his Lordship's decision the Court of we desire to resume cohabitation with him , and
do not think there is anything objec.
Appeal decided that it need not be. That Court, tionable in it . It is not like holding a pistol to
however, held that the letter must be of a “ con
ciliatory ” character. In the present case, Butt, her husband's head and requiring him to take her
J. decided that the letter written by the wife's back in
. Although I quite adhere to what was said
Field v. Field , still in this case, the letter being
solicitors and signed by herself did not come
within the spirit of rule 175 as that rule was in written by the wife, and notby her solicitors, and
terpreted by the Court of Appeal ; and , that expressing her own desire to cohabit with her
being so , his Lordship refused to make a decree husband, cannot be regarded as a mere threaten
ing letter like the one in that case. In my opinion ,
of restitution. But I submit that the petitioner's on
letter in this case was a sufficient compliance that ground this appeal must be allowed and
with rule 175 . Field v. Field is distinguishable the decree granted .
on several grounds. Here the letter, though LINDLEY, L .J. - I also think that this case is
drawn up by the solicitors, was signed by the not governed by Field v. Field to the extent
wife herself ; whereas in Field v. Field there was | that the learned judge seems to have considered .
simply a lawyer's letter sent to the husband with In that case the letter sent to the respondent was
a formal demand for cohabitation and restitution . nothing more than a lawyer's letter, and it was
Secondly, in this case the husband sent back an never answered by thehusband. In thenext place,
answer the same day giving an unqualified the present appellant does intimate and express
refusal to his wife's demand. In Field T. Field that which we were unable to find in the letter
no answer was sent, and it did not even appear written in the case of Field v. Field - that is, &
from the affidavit that the letter was received . desire to resume cohabitation with her husband.
Moreover , in that case no appearance was Thirdly, it appears in the present case that the
entered ; while here an appearance was entered | husband received theletter ard answered it imme
but no answer was filed , and nothing done by the diately with an unqualified refusal to receive his
husband to justify his unqualified refusal to take wife back, while in Field v. Field he sent no
his wife back . The object of rule 175 is to afford answer, and it did not even appear from the wife's
the respondent an opportunity to resume cohabi affidavit that he ever received the letter.
tation or give reasons for not doing so. Rule 176 LOPES, L .J. - Whether or not I should have put
confirms that view . Before those two rules were
made it had been found that the process of the the same construction on rule 175 as was put
court had been abused by persons taking out upon it by this court in the case of Field v. Field
citations causelessly, merely for the sake of but I do notknow ,and it is not necessary to consider ;
giving annoyance or getting costs. of this I am clear- that the present case is
very
The respondent did not appear, nor was he was written distinguishable from that. Here the letter
by the wife herself, and expressed
represented . her desire to live with her husband, but in Field
COTTON , L . J. - The learned judge seems to have v. Field it was written by her solicitors, and es.
refused to make a decree in this case simply be- pressed no such desire. In that case no answer
cause he believed himself bound by the case of was sentby thehusband. Heretherewas an answer
Field v . Field (ubi sup.) decided in this court. But which distinctly states that the husband will not
I do not think he can have sufficiently considered take his wife back . I am therefore of opinion
CT. OF APP.] Re The East AND WEST INDIA Dock COMPANY. (CT. OP APP.
that the decision of the learned judge below was [ ture3. The holdersof the mortgages, charges , and deben
wrong Appeal allowed . stock of the company, and of funded interest
thereon , shall receive interest in cash on principal
Solicitors for thepetitioner, Wontner and Sons. and on such funded interest after the 1st July 1889 ;
but if at any time during the ensuing ten years
the realised profit of the company , together with the
money (if any) for the time being to the credit
Feb. 7, 8, 10, and 12. of the secured interest reserve fund, shall not suffice to
pay the whole of such the accruing interest for any half
(Before COTTON , LINDLEY, and LOPES, L .JJ.) year in cash , then and in any such case the company
Re THE EAST AND WEST India Dock COMPANY. (a) shall fund the interest for such half-year, provided that
APPEAL FROM THE CHANCERY DIVISION . such funding under this clause shall not be effected for
more
Dock 'and railway company - Company unable to years than four half-years altogether. These four half
may be taken either consecutively or separately .
pay its creditors - Scheme of arrangement - Fractions of a pound being part of further interest
Objections to, by outside creditors - Railway which may be so funded during any of such four half
Companies Act 1867 (30 & 31 Vict. c. 127), years shall not be funded, but shall be paid when the
payment of interest is resumed.
88. 7, 17, and 18 . 4 . If and so long as the interest on any mortgage or
A company was authorised to make, and had made, charge of the company, including interest on funded
interest, shall be duly satisfied by funding, as provided
a railway through the principal part of its under for
taking, which consisted of its docks and theworks by this scheme, or shall be paid on the date on which
connected therewith ; and , being unable to pay its it is payable, or within twenty-one days afterwards, the
principal
have offallen
such mortgageor
due after thecharge,
31st although the same
debts , a scheme of arrangement between the com may day of Dec. 1887,
pany and its creditors was prepared under the shall not be called in until the expiration of ten years
Railway Companies Act 1867. The scheme was after the date on which but for this scheme it might
prefaced ,as required by that Act,by a declaration have been called in , interest at any rate not exceeding
4 per cent. per annum shall continue to run on the
under the seal of the company that it was unable principaldue daring such ten years at 4 per cent. per
to pay its debts, and contained various provisions annum . Interest at any rate exceeding 4 per cent. per
annum shall run at the rate of 4 per cent. per annum
designed to enable it to ultimately discharge its
obligations. only ; and interest at rates varying according to the
Contractors who had constructed certain docks Bank of England rate shall run at the fixed rate of
for the company , and who claimed to be creditors 4 per cent. per annum , and all interest on funded
interest shall run at the same rate. Provided that if at
of the company for a large amount, butwho held any time during such period of ten years any property
no security for their debt,opposed the confirmation charged or mortgaged specifically, and not merely as
of the scheme. Other unsecured creditors like part of the general assets and undertaking of the com
wise opposed . pany, shall be realised , the proceeds of such realisation
Held , that the schemewas a reasonable and honest shall be applied in or towards redemption of such
one, and that as the scheme did not in any way charge or mortgage, and subject thereto one-half of
such proceeds shall be applied to the purchase or
Exceed the powers afforded by the statute, nor redemption at or below par of deferred debenbure stock
deprive the creditors of any legal rights which of the company, and the other half shall be carried to
they possessed , butwas likely to benefit all persons the credit of the secured interest reserve fund ; and in
concerned , the secured and the unsecured creditors like manner the proceeds of realisation of any property
realised under the provisions of sect. 74 of the Com
aswell as the shareholders, no sufficientobjections panies Act 1 & 2 /Will. 4 , c. 52 , shall be applied as to
to it had been established , and that therefore the below
one-half thereof in the parchase or redemption at or
par of deferred debenture stock , and as to the
scheme ought to be confirmed . . other half by carrying the same to the credit of the
Decision of Chitty, J. affirmed. secured interest reserve fund.
A PETITION was presented for the confirmation by 5. The income from time to timeof the company shall
the court of an amended schemeof arrangement be applied in providing for working expenses, and other
between the East and West India Dock Com proper outgoings in respect of the undertaking of the
pany and their creditors, prepared by the direc company, and for payment of the costs, charges, and
expenses of and incident to the application to the
tors by leave of the court in exercise of the court for the appointment of a receiver under the Rail
powers and in pursuance of the provisions of the way Companies Act 1867, and otherwise in the same
Railway Companies Act 1867. matter and of and incident to the preparation and filing
The scheme provided as follows : of this scheme, and all proceedings in connection there
1. Interest on all mortgages, charges, and debenture with ,and of and incident to the preparing for obtaining
and passing of the Act entitled “ The London and St.
stock of the company, shall accrue due on the 30th June Katherine and East and West India Docks Act 1888 , so
and 31st Deo , in each year, and shall be payable on the far as the same are payable by the company, and for the
gocceeding
dates.
15th Aug. and 15th Feb . instead of any other payment as and from the 1st July , 1889, as aforesaid of
2. For interest already accrued or hereafter to accrue the interest
and on the mortgages,
funded interest,and subjectcharges,debenture stock ,
thereto for the payment
during the period commencing the 31st Dec. 1887, and of the interest on the deferred debenture stock and on
concluding with the 30th June 1889 (hereinafter referred the funded interest thereon . And retiring allowancesto
to as the “ suspense period ” ), has except as to officers and servants of the company shall be treated
18671. 178. 9d . paid to various persons , been or shall be as working expenses.
paid by the East and West India Dock Company on the 6 . All available funds in hands on the 30th June 1889,
mortgages and charges of the company of any class or and all outstanding items due to the company on the
rank, or on the debenture stock of the company , or any same date , and the balance of income in any half year
part thereof. But the interest during the suspense in which interest is funded under this scheme, shall be
period (except as aforesaid ), is to be treated as funded carried to a reserve fund to be called “ the secured
interest bearing interest from the 1st July 1889, at the interest reserve fund ,” and such fund shall be applic
same rate as the principal, and as secured on the same able exclusively during the ten years from the 1st July
security as the principal. Fractions of a pound being 1889 to payment of interest on the mortgages, charges ,
part of interest dne during the suspense period shall not
be funded but shall be paid with the interest due on the and debenture stock , exclusive of the deferred debenture
stock of the company, and interest apon funded interest,
15th Feb . 1890 . exclusive of funded interest upon deferred debenture
(@) Reported by A. COYSGARNE SIM and W . C . Biss, Esqrs., stock .
Barristers-at-Law . 7. The company shall have power to liquidate debts
240 - Vol. LXII., K . S.) THE LAW TIMES . (April 12, 1890.
CT. OF APP.] Re THE EAST AND WEST INDIA Dock COMPANY. [CT. OP APP.
and liabilities to unsecured creditors incurred before the debenture stock issued by the company - exceeds
5th March 1888, by the issue of deferred debenture 3,000,0001. The holders of this loan capitalhave
stock at par, bearing interestat the rate of 4 per cent. duly assented by the statutory majority. The
per annam charged on the undertaking of the company, total amount of the company's ordinary stock
subject to the prior mortgages, charges,and debenture
stock secured thereon , including funded interest t areon falling under the 13th section is 2,385 ,5001.or up
under this scheme. No interest is to be paid in any wards. The holders of this stock have also duly
half -year on the deferred debenture stock except so far
as the profits of the company for that half-year shall be assented . The company has issued no preference
sufficient to pay the same after providing for the interest bystock . Besides these assents, which are required
on the mortgages , charges, and debenture stock and the Act, assents have been given by persons
funded interest thereon . Provided that any surplus whose assents are not required by the Act. Some
profits in any half -year, after paying interest on themort . of the principal London banks are or claim to be
gages, charges, and debenture stock ,and funded interest creditors of the company. They hare all assented
thereon , deferred debenture stock, and funded interest to the scheme. Subject to a question affecting
thereon, shall be devoted to payment of arrears of the validity of their claim , they are creditors for
interest on deferred debenture stock before being avail. 584, 9001. principal, and for 37, 0871. interest due
able for dividend on the capital stock of the company .
Provided also that in every half-year in which interest to June 30, 1889, making together 621,9871., and
on mortgages, charges, and debenture stock is funded for subsequent interest amounting to about
the interest for that half-year on deferred debenture 24,0001. They claim to hold as security the
stock shall be funded also, and shall bear interest at the moneys to arise from the sale of certain ware
same rate and secured on the same security as the houses of the company, and also 229,900i. of the
deferred debenture stock .
8 . Nothing herein contained shall prevent the pay . loan capital. They also claim to be entitled to
ment of a dividend to the proprietors out of any money have issued to them 300,0001. preference stock .
properly applicable thereto. Messrs. creditors
Truman, for
Hanbury,
upwardsandof Company, un .
The confirmation of the scheme was opposed secured 40,0001., bave
by Messrs. Kirk and Randall, the contractors, agreed, in the event of the schemebeing con
who had constructed the new docks of the com firmed , to accept in satisfaction of their debt de
pany at Tilbury , and who claimed to be creditors ferred debenture stock intended to be created and
of the company for a large amount, but who held issued under the scheme. The scheme having
no security for the debt. been thus assented to , the question remaining for
Messrs. Lucas and Aird and the London , decision is whether, in the language of the 17th
Tilbury, and Southend Railway Company, like section of the Railway Act of 1867, the court is
wise unsecured creditors, opposed the confirma satisfied that no sufficient objection to the scheme
tion of the schemealso . has been established . If so satisfied , the court
The further facts of the case sufficiently appear has jurisdiction to confirm the scheme, which,
from the judgment of Chitty , J. when confirmed and enrolled , will, against and in
The petition came on for hearing before Chitty, favour of the company and all parties assenting
J. on the 21st and 22nd Jan. 1890. thereto and bound thereby, have the like effect as
Latham , Q .C . and Howard Wright for the com if it had been enacted by Parliament. The only
pany . opposition to the confirmation of the schemepro
Whitehorne, Q .C ., J. T. Prior, Moulton, Q .C ., ceeds from outside creditors. None of the op
Byrne, Q .C ., and Farwell for Messrs. Lucas and ponents hold any security. The opponents are,
Aird, Messrs. Kirk and Randall, and the London, for first, Messrs. Lucas and Aird, judgment creditors
Tilbury, and Southend Railway Company, the about 62,0001.; and secondly, the Tilbury Com
unsecured creditors opposing. pany, creditors for a sum not yet ascertained ,but
which may be taken to be about 60001. The other
Dunning for various banks assenting. opponents are Messrs. Kirk and Randall, whose
The following authorities were referred to : claim exceeds 600,0001. They have no judgment
Re The Cambrian Railways Company's Scheme, 17 for any part oftheir claim , which is still being
L . T. Rep. N . S. 374 ; L . Rep. 3 Ch. App. 278. disputed . They have obtained an award in their
Re The Bristol and North Somerset Railway Com . favour in respect of part of their claim , but this
pany, 20 L . T . Rep . N . S. 70 ; L . Rep . 6 Eq. 448 ; is under appeal to the House of Lords. Ex
Bowen v. The Brecon Railway Company, 16 L . T . cluding the debt of Messrs. Truman , Hanbury,
Rep. N . S. 6 ; L . Rep . 3 Eq. 541;
Re The Potteries, Shrewsbury, and North Wales and Co., and excluding also the claim of the
Railway Company , 21 L . T. Rep . N . S. 545 ; L . banks, the total amount owing by the company
Rep . 5 Ch. App . 67; to other outside creditors up to March 1889 does
Stevens v. The Mid Hants Railway Company, 39 not exceed 50,0001. The position of outside cre.
L . T . Rep . N . S . 318 ; L . Rep . 8 Ch. App. 1064 ; ditors in reference to a scheme under the Act has
Re The Somerset and Dorset Railway Company, 21
L. T. Rep. N . S. 656 ; 18 W . Rep. 332 ; been judicially ascertained by a series of reported
Re The Eastand West Junction Railway Company, cases and decisions ranging from Re Cambrian
21 L. T. Rep. N . S. 86 ; L. Rep. 8 Eq. 87 ; Railway Company (17 L . T. Rep. N . S. 374 ; L.
Re The Hull and Barnsley Railway Company, 59 Rep. 3 Ch. App. 278), before Lord Cairns in
L. T. Rep. N . S. 302, 877 ; 40 Ch . Div. 119. 1868, to Stevens v . Mid Hants Railway Company
Cur. adv. vult. (39 L . T. Rep. N . S. 318 ; L . Rep. 8 Ch . App. 1064),
Jan . 29, 1890.– The following written judgment before the Court of Appeal in 1873. In the first
was delivered by of these cases the question arose on a motion to
· CHITTY, J.- I am satisfied that this schemehas stay proceedings under the serenth section
been duly assented to as required by the Act. pending the time allowed for the maturing of
There was no contest on this point except as to the scheme. In the last it was raised after the
the claim of the Tilbury Company, which I have scheme had been sanctioned. In the intermedi
already disposed of. The total amount of the | ate cases it arose on the petition to confirm the
statutory loan capital falling under the 10th scheme. By these authorities it is established
section of the Act- viz., mortgages, bonds, and I that outside creditors who do not assent to the
April 12, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8. - 241
CT. OF APP.] Re THE EAST AND WEST India Dock COMPANY. [CT,OF APP.
schemeare not bound by it. In his judgment in landowner, declined to confirm the scheme.
Stevens v.Mid Hants Railway Company (ubi sup.) | The scheme also contained a clause purporting
James, L . J. thus stated the law : “ It has been to deal with moneys in the hands of a receiver
established that according to the true construc- | appointed in a suit and claimed by the Bristol
tion of the Act of Parliament an outside creditor | Railway Company under a pending summons.
is in no way bound by the scheme. If he is not The scheme purported to dealwith those moneys
in any way bound by the scheme he ought not to in a manner which , if binding, would have
be entitled to any benefit from that scheme. He deprived the Bristol Company of their claim by
is in the position of a person who, according to appropriating the money to certain costs and
my view , is not entitled to read the schemeat all treating the balance as revenue of the Somerset
for any purpose. He says, • I have nothing to do Company, on whose behalf the scheme had been
with the scheme.' If he has nothing to do with filed . The schemethus purported to sweep away
the scheme he cannot claim a benefit from it. He from the outside creditors all the free assets of
is entitled to say, ' I shall insist upon my rights the company. The Vice-Chancellor, while de
as if no scheme had been made. His utmost clining to decide the question of the validity
right, if no such scheme had been made, would of the Bristol Company's claim ,also held their
have been to have said , “ When the mortgagees objection , founded on this claim , to be sufficient.
prior to me have been satisfied , I have a right to According to the report of his judgment, the
be satisfied .' And he has no other right unless Vice-Chancellor proceeded on the ground that
it is given him by the scheme.” The Lord Justice the opposition was reasonable, as the opposing
was dealing with the case of an outside creditor parties' rights would be prejudiced by the
who was claiming a right under a scheme by scheme. Before the order was drawn up the
which he was not bound. I have quoted this | case was again mentioned , and I have ascer
passage in its entirety because it shows clearly tained, from inspection of the order, that the
the opinion of the Lord Justice as to the position opposition of the landowner and the Bristol
of such an outside creditor in reference to a Company was afterwards withdrawn, and that
scheme which had been previously confirmed by | an order was made confirming the scheme,
the court. Mellish, L .J. concurred in this judg. | although some of the parties did not assent. In
ment. The strict logical deduction from the connection with this part of the subject there is
proposition that an outside creditor is not bound , another authority to which reference should be
hy the scheme might have been that the court made. It is the case of Re The East and
would not hear an outside creditor appearing to West Junction Railway Company (21 L . T.
oppose the scheme on the petition to confirm . Rep . N . S . 86 ; L . Rep . 8 Eq. 87, 91, 93 ),
Butthis is not so. Under the enactment in the before Lord Justice James when Vice-Chan
17th section, as to bearing “ creditors whom the cellor in 1869. In regard to the opposition
court thinks entitled to be heard ,” the court has of an outside creditor the Vice-Chancellor stated
on several occasions in the exercise of its discre . his opinion that outside creditors were not bound
tion allowed an outside creditor to be heard in by the scheme; that it did not bind them at all ;
opposition to the scheme. And accordingly, in and that the opposing creditor was not in the
the circumstances of this case, I thought it right slightest degree prejudiced . In his judgment,
to permit the present opposing creditors to be confirming the scheme, he stated that if he
heard . Further,the court has notmerely permitted I thought that the scheme deprived any creditor
the outside creditors to beheard ,but has in certain of any reasonable prospect of being paid he
cases given effect to their objections by declining should have had much more hesitation in con .
to sanction the scheme. On this point I refer to firming it ; but that he could not help seeing
two reported decisions, viz., Re The Bristol and ! that unless some scheme was resorted to there
North Somerset Railway Company (20 L . T . Rep. | was nothing for the company and nothing for
N. S. 70 ; L . Rep. o Eq. 448), decided by Giffard , the creditors. The schemebefore him purported
L.J. when Vice-Chancellor in 1868 , and Re Somer. to empower the company to raise at a discount
set and Dorset Railway Company (21 L . T . Rep . a large amount of money by means of a new
N , S. 656 ; 18 W . R . 332), decided by Stuart, debenture stock , to be called the first debenture
V .C . in 1869. In the first of these cases Giffard , stock , and to rank as a first charge on the under .
V.C . had before him a scheme which in terms taking. It must be borne in mind that an ordi.
purported to bind outside creditors to accept nary creditor obtaining a judgment can acquire
shares in discharge of their debts and to release an interest in the surplus profits of the under
their debts and all securities for them . The Vice taking through the medium of the appointment
Chancellor, although he held that the outside of a receiver by virtue of the 4th section of the
creditors would not be bound, declined to confirm Act. In point ofmere abstract right this power
the scheme which thus attempted to bind them . to create a new debt affecting the undertaking
In the second case Stuart, V . C .was asked to con in priority to all other debts might be said to
firm a scheme which , as he considered , purported prejudice the position of an outside creditor.
to deprive a landowner of his rights. The land The Vice-Chancellor, however, did not regard
owner had obtained a decree establishing his lien tbe question as one of abstract right, but as a
on lands which the company had taken from him , 1 question of due exercise of a judicial discretion.
and his right to resume possession in the event | The result at which I have arrived is this : The
wbich had happened , of his purchase money not Legislature has committed to the court a large
being paid . The clause apparently objected to discretionary power of a legislacive character, to
was one which required the company to dispose grant or withhold its sanction to a scheme. The
of their superfluous land as it becamesaleable Act itself affords little or no assistance on the
and to pay the proceeds to the directors who had question of what is a sufficient objection. It
made advances to the company. The Vice- leaves the question to the decision of the court,
Chancellor, acceding to the objection of the which, it is to be presumed, will exercise its dis
242- Vol. LXII., N . .] THE LAW TIMES . (April 12, 1890
CT. OF APP.) Re THE EAST AND WEST INDIA Dock COMPANY. [CT. OP APP.
cretion according to ordinary judicial principles. | that it deals, or purports to deal, with the surplus
Where a judicial discretion is thus conferred lands and free assets of the company in a manner
there is a risk of overlaying the discretion by unfair to the outside creditors, and that it would
prior decisions, until at last for practical pur sweep away the principal or only fund to which
poses the discretion ceases to exist. The deci. they can have recourse for payment. Now ,
sions to which I have referred are, as I appre whether the scheme is sanctioned or not, the
hend, not absolutely binding on me, but they are outside creditors will be free to pursue all
useful guides in exercising the discretion in their remedies, whatever they may be, against
similar cases. No absolute rule applicable to all any such lands and assets. And, so far as they
cases can be extracted from the authorities, or, in can effectually reach them or make them avail
my opinion , ought to be laid down, unless perhaps able for payment of their debts, they will be at
it be this, viz ., that where a scheme on the liberty so to do, notwithstanding that they may
face of it purports directly to take away the thereby impair the working of this part of the
substantial rights of non-assenting outside cre scheme. The only power to stay execution or
ditors, for instance, as by converting them from other process against the property of the com
creditors into mere shareholders, the courtwill at pany is under the 9th section of the Act of
their instance decline to sanction the scheme, 1867, whilst the scheme is maturing. That
notwithstanding that in regard to them it is a | power comes to an end so soon as the scheme
nullity . I now proceed to dealwith the specific is passed or rejected . In regard to the objec
objections raised in the order which appears to tions now under consideration , it will be con
me to be most convenient. It is urged against venient here to state some further facts bearing
the 7th clause of the scheme that the company on the position of the outside creditors and the
purport to take power to force their unsecured financial position of the company. Under the
creditors to accept the deferred debenture stock 4th section of the Railway Companies Act of
in satisfaction of their debts. This contention 1867 a judgment creditor obtained in March
turns on the true meaning of the clause. It cer - | 1888 the appointment of recivers and managers
tainly does not in express terms purport to of the undertaking, subject to certain modifica
compel the creditors to take the stock . It is | tions rendered necessary by the subsequent
wholly different from the two clauses relied on special Act of 1888 . The order of March 1838
in Re The Bristol and North Somerset Railway is still subsisting, and the inquiries and other
Company (ubi sup.). In construing a scheme proceedings under it are still pending. Under
regard must be had to the principle that the the Act of 1888 the undertakings of this company
outside creditors are not bound, and it would be | and the London and St. Katherine Docks Com .
a wrong method of interpretation to hold that pany are now being managed as one undertaking
the company are seeking to do that which cannot by an incorporated joint committee, who account
be done. Plain and distinct words should be to the receivers under the order of March
required . In my opinion the clause is not open 1888 for the statutory proportion (thirty
to any reasonable doubt. It says nothing about one-hundredths) of the surplus profits arising
the creditors being bound to take the stock ; it from the undertakings under their management.
does not even say that the stock is to be issued This share of profits, when in the hands of the
to the creditors. Consistently with the clause receivers, forms part of the ordinary profits of
the stock might be issued to any person willing the East and West India Dock Company's under
to advance money in exchange for the stock to taking. All the profits of this undertaking from
form a fund for payment of the creditors. The time to time in the hands of these receivers, after
objection cannot be maintained . If the other payment of working expenses and other proper
objections are overruled , it will be competent for outgoings in respect of the undertaking, are
me, following the authority of Vice -Chancellor applicable to the payment of the company's debts
James in the case of Re The East and West Junc according to the rights and priorities of the
tion Railway Company (ubi sup.), to preface the persons for the timebeing interested therein ,and
order with a declaration as to the true meaning | under the 4th and 23rd sections of the Act of
of the clause. I should decline to insert such a 1867 the holders of the authorised loan capital
declaration where the clausewas fairly open to two of the company have priority over the judgment
meanings, and the clause affected the rights of and other outside creditors in respect of moneys
theassenting parties, whose assents might have coming to the hands of the receivers under the 4th
been given on the footing of the meaning not section : (see Re The Hull and Barnsley Railrcay
being that which the court declares. This clause, Company, 59 L . T. Rep. N . S. 302,877 ; 40 Ch.
however, does not affect in any manner the Div . 119.) There is also at present subsisting
persons assenting. An objection is raised to the another receivership order made in an action .
provision in the 4th clause on the ground that it The judgment debt of the petitioner who obtained
deals, or purports to deal, with the surplus land | the order of March 1888, was in respect of an
of the company. Mr. Moulton alone put forward overdue debenture ; and this same creditor , being
this extreme proposition — that in no circum in a position to issue execution on his judgment,
stances ought the conrt to sanction a scheme instituted an action on behalf of himself and all
which purports to deal with surplus lands or free other debenture-holders of the same class, to
assets of the company unless all the outside obtain payment. It was in this action that the
creditors consent, or, at all events, not if any last-mentioned receivership order was made. It
outside creditor objects. No authority has gone extended to theundertaking and property included
this length , and the proposition cannot bemain . | in the petitioner 's debentures, and also to the
tained . In Re The Somerset and Dorset Railway company's property generally. It was ancillary
Company (ubi sup.) the scheme was confirmed, and subordinate to the receivership under the 4th
although all parties did not assent. It was section . As the order stands it includes whatever
further objected to the provision in the 4th clause 1 surplus lands and free assets the company may
April 12, 1890.) THE LAW TIMES . [ Vol. LXII., N . 8.- 243
CT. OF APP.] Re THE EAST AND WEST INDIA Dock COMPANY. [CT. OF APP.
be entitled to. I have already stated the amount street warehouses that may be made during the
approximately of the unsecured debts of the com - period of ten years. The mortgages and charges
pany and of the unsecured claims against the referred to are those held by the banks. The
company. These debts amount to about 158 ,0001. clause will not have the effect of establishing
In this sum I include Messrs. Truman and Co.'s thosemortgages and charges ; their validity or,
debt for 44 ,0001. So far as appears, Messrs. invalidity is left to be ascertained in the litigation
Lucas and Aird 's debt is the only judgment debt which is pending. If these securities are upheld ,
obtained by an outside creditor. As to Messrs. the banks will take the amount of their debts out
Kirk and Randall's disputed claim of upwards of of the proceeds of the sale. This will leave a
600,0001., I can say no more than that it is a claim surplus, theamount ofwhich cannot now be stated
which may ripen , as to the whole or some part, but which probably will be considerable, and the
into a debt. The company say that they have, in surplus will be applicable for division into two
any view of the case, a considerable set-off. On parts under the provision if the scheme is con
this I pronounce no opinion . Nor can I pro firmed. Without intending in any way to pre
nounce any decisive opinion on the claim of the judice any question as to the banks' securities, I
banks, amounting now to about 650 ,0001. The may go so far as to say that the banks appear,
company were not desirous of disputing the from wiat I have seen in the course of the pro
banks' claims, but were driven to raise the ceedings, under the 4th section of the Act, to
question of ultra vires by the course of action have at least a primâ facie case. But sup' osing
pursued by other creditors under the inquiry in their securities are held invalid , then under the
the order of March 1888, as to debts and priori- provisions the whole of the proceeds of sale
ties. Of the statutory loan capital (amounting ofthe Billiter-street warehouses and the proceeds
as I have said , to upwards of 3,000 ,0001.) there is of the sale, if effected , of the other two ware
now owing for overdue principal upwards of houses will be applicable under the provisions if
300,0001, and there will fall due for principal the scheme is confirmed . But if the scheme is
on July 1st 1890, a further sum of upwards of not confirmed it is by no means clear, and can
326,0001. On the statutory loan capital two years' not be assumed , that the Fenchurch -street and
arrears of interest, amonnting apparently to about Jewry -street warehouses could be reached through
240,0001, are now overdue. I should say that judgments or otherwise by the unsecured
throughout this judgment I state amounts in creditors. For it would, to say the least, be
round numbers and approximately . Judgment open to the statutory loan creditors to contend
has been recovered for 50,0001., part of the over that those two warehouses, unless and until sold ,
due 300,0001., and immediate judgment could be or contracted to be sold , continue to be part of
recovered for the balance and for the 240,0001., the undertaking of the company over which their
subject to any question as to the part held by the debts have priority, and they and the company
banks, and after July 1st further judgment could might fairly contend that by merely attempting
at once be obtained for the 326 ,0001. Upon the to create invalid mortgages or charges in favour
facts before me the company appear to have no of the banks, the company had not done any act
surplus or superfluous lands in the ordinary which would finally preclude them from saying
acceptation of the terms. The surplus lands so that they were not bound to proceed to a sale.
called of the company arise in this way. The No such contention could , on the other hand , be
company have powers under their statutes to sell raised by the statutory loan creditors or the com .
and dispose of any hereditaments which may be pany if the scheme is confirmed and the banks'
found by them to be unnecessary for the purposes claim established , inasmuch as they will be bound
of their Acts. They are not bound to exercise by it. But if the scheme is passed , the non
these powers. In exercise, or with a view to the assenting outside creditors will still be at
exercise of these powers, the company in 1887 liberty to pursue any rights and remedies that
placed certain warehouses in the hands of a firm they may have against all three of the ware
of auctioneers as their agents with a view to a houses, or the proceeds of sale thereof, unless
sale in case sufficient prices should be offered . they choose to come in under the scheme by
The warehouses are the Billiter-street warehouses, accepting the deferred debenture stock . This
the Fenchurch-streetwarehouses,the Jewry.street part of the scheme, taken in connection with the
Warehouses, and the Crutched Friars warehouses, provisionsunderwhich the statutory loan creditors
The proceeds of the sale of all these warehouses, and the banks are precluded from calling in
except the Crutched Friars warehouses, are in their debts during the conditional suspense period
cluded in the securities held by the banks. The l of ten years, appears to me in the circumstances
Billiter-street warehouses alone have been sold , of the case to be a fair offer of terms to the
and the parchase money, amounting to 105,0001. unsecured outside creditors. For the provision
has been paid , and is now in court. The Crutched is that one-half of the proceeds, or of the surplus
Triars warehouses, by virtue of the special Act proceeds, as the case may be, shall be appro
of 1888,now form part of the company's under . priated for the benefit of the deferred debenture
taking placed under the management of the joint | stock , and the other half will go to the secured
committee. The Fenchurch -street warehouses interest reserve fund. As part of the objections
and Jewry -street warehouses have not been sold . now under consideration , it was urged that if
They were valued at 825,0001. in 1879,more than the scheme is passed the half appropriated to the
len years ago , but such prices have not hitherto reserve fund might be applied according to the
been found to be obtainable . Now , upon the schemebefore the unsecured creditors could reach
Evidence before me the only property of any sub | it. This contention was founded (as aremany ofthe
tantialvalue which would fall within the pro opponents' objections) on the assumption that the
Fision in the 4th clause are the proceeds of sale | outside creditors would be bound by the scheme,
pf the Billiter -street warehouses and theproceeds and it ignored the plain right of the company, if
of any sales of the Fenchurch -street and Jewry . I not bound by the scheme, to apply in payment of
244 - Vol. LXII., N .8.) THE LAW TIMES. (April 12, 1890.
Ct. of App.] R . THE EAST AND WEST India Dock COMPANY. [CT. OF APP.
any of their debts in any order they may think fit sum available the 105,0001. representing the pro
such parts of their property not constituting theirceeds of the sale of Billiter-street warehouses,
undertaking as are not for the timebeing affected because the rights to that sum have not been
or bound by any executions or other legal or ascertained . Instead of at once sweeping away
equitable proceedings. If the scheme is passed this asset of 186 ,0001. for the overdue interest,
the non-assenting creditors will be in a position the secured creditors are content to be bound not
to get at the money constituting the reserve fund to call in the overdue interest during the con
by any lawful means open to them before the tinuance of the ten years' term , and to take
fund is actually paid away or applied ; and so interest on the 201,0001. interest in arrear. The
long as part of the reserve fund may for the time annual charge for interest on the 201,0001.
being remain unapplied it will continue open to amounts to 80401. a year. Further, if the interest
any remedies which such creditorsmay be entitled due and to fall due on and after the 30th June
to pursue in order to reach it. The creation of 1889 shall not be paid for any of four half-years
the reserve fund is rather to the advantage than during the continuance of the term , the secured
the disadvantage of such creditors. The two creditors are content not to call in this interest,
following further objections were raise to the 7th but to allow it to be capitalised , carrying the
and 4th clauses of the scheme. First, it was said same interest as the debt carries. Four half.
that, under the 7th clause, the company would years' interest on the statutory loans amounts to
not be bound to offer the deferred debenture stock about 240 ,0001. and to about 50,0001. to the other
to the outside creditors. To meet this the com secured creditors. Besides this , during the con
pany offered at the bar to bind themselves by an tinuance of the suspense period , the secured
undertaking to offer the stock to the opposing creditors consent not to call in their principal
creditors, and all other the unsecured outside (which , as I have said , will amount to upwards
creditors. This undertaking was refused by of 635 ,0001. on the 1st July next for the statutory
the opposing creditors. Such an undertaking loans and amounting as to the banks to 584,9001.),
would not have been an amendment of the scheme, provided their interest is paid according to the
but would merely have amounted toan obligation provisions of the scheme. I am unable to see
as to the manner in which the company would the unfairness of the above provisions towards
exercise a power under the scheme, and would the outside creditors. The object of the pro
be binding on the company just as any contract visions is to give breathing time to the company
to the like effect would be if entered into sub and to allow them to avail themselves and all
sequently to the passing ofthe scheme. Secondly, concerned of the expectation of recovering the
it was said that the company would, in regard to company's financial position . Their position has
the moiety appropriated by the 4th clause to certainly been improving since the year 1887.
the purchase or redemption of the deferred In that year their surplus profits, after paying
debenture stock , be at liberty to apply such working expenses, amounted only to 15001. In
moiety in the purchase or redemption of any part 1888 there was a profit balance of 62,8001, on
of such stock held by any particular holder whom the year's working . On the 1st Jan . 1889 the
they might desire to favour or prefer - to pick | management passed to the joint committee.
and choose at their pleasure. But, assuming this Considerable expectations were raised from the
to be so, the company cannot pay any creditor operations of the joint committee by reason of
more than the just amount of his debt, for under the cessation of the keen rivalry which had
the 7th clause they cannot issue the deferred existed between the two dock companies and of
stock except at par, and under the 4th clause they the reduction in the expenses of management,
cannot purchase or redeem any deferred stock | and by reason of other causes. These expecta
except at or below par. Any outside creditor tions have already been realised to a certain
who may take the stock can read the schemeand extent. In the first half of 1889 the net profit
ascertain for himself the termson which he and coming to the East and West India Dock Com
others will hold the stock ; and if he does not pany was nearly 49,0001. ; the accounts for the
take the stock, it will be open to him to pursue second half of that year have not been made up,
whatever remedies he may have against the but it is expected to amount to about 50,0001.,
purchase or redemption fund or the money but not to exceed that sum , a result partly
proposed to be appropriated to that fund. | attributable to the recent strikes. The full
Objections are also made to the capitalisation | benefit of the Act of 1888 , entitling this company
of interest under the 2nd and 3rd clauses | to an equal half share of the joint profits, has
on the ground of the provisions being unfair. not yet been reached . Onerous contracts entered
Those clauses must be read in connection | into by this company are still in process of
with the 4th . The capitalisation proposed is, running off , and the benefit of reduced expendi
first, of overdue interest, and , secondly, of ture and increased rates is only gradually experi.
interest during the conditionalsuspense period enced and obtained . The amount of profits
of ten years. The overdue interest to be made by the joint committee during the last
capitalised is the interest in arrear from the 31st year, as well as they can be estimated , falls short
Dec. 1887 to the 1st Jan . 1889. This amounts to by a few thousand pounds of the amount when
201,0001., of which about 180 ,0001. is due to under the statute of 1888 the East and West
the statutory loan creditors and the balance to India Company will be entitled to take one
the banks. There is available at present for the half of the surplus. It is said by the opponents
payment of this overdue interest a sum of to the scheme that it will fail. They may
186 ,0001. only, the greater part of which is in prove to be right, but amongst the statutory loan
court or in the bands of the receivers. The | creditors and amongst the outside creditors
whole of this sum of 186 ,0001. represents profits (Messrs. Truman, Hanbury, and Co .), who have
of the undertaking which could not be reached agreed to take the deferred stock , there are many
by the outside creditors. I exclude from the persons of great experience who think there is a
CT. OP APP.] Re THE EAST AND WEST INDIA Dock COMPANY. [CT. OP APP.
Teasonable prospect of success. The great London Re The Somerset and Dorset Railway Company, 21
banks who have assented seem to be of the same L . T. Rep. N . S. 656 ; 18 W . Rep . 332 ;
opinion ; and it is a remarkable fact that evidence Stevens v. " The Mid Hants Railway Company, 39
L . T. Rep . N . S. 318 ; L . Rep. 8 Ch . App. 1064 ;
has been given on the part of one of the oppo Re The Hüll and Barnsley Railway Company, 59
nents (Messrs. Lucas and Aird ) which appears to L . T . Rep . N . S . 302, 877"; 40 Ch . Div . 119 ;
place the market value of the deferred debenture Re The Potteries , Shrewsbury, 'and North ' Wales
stock at about 50 per cent. Stockbrokers of Railway Company, 21 L . T. Rep. N . S . 545 ;
great experience and high position have been con L . Rep . 5 Ch . App. 67 ;
Bowen v. The Brecon Railway Company, 16 L. T.
sulted on the subject, and their opinion is that Rep . N . S. 6 ; L . Rep. 3 Eq. 541.
the market value of the stock would not exceed Cur. adv. vult.
from 501. to 551. for every 1001. nominal of such
stock . Other objections were raised, but it is Feb . 12. — The following judgments were
not necessary to deal with them in detail. My delivered :
conclusion is that the scheme has been prepared COTTON , L .J. — This is an appeal against an
in good faith on the part of the company, and order of Chitty, J., confirming a scheme which
that, when considered as a whole, it presents to had been proposed by the East and West India
the outside creditors, for their acceptance or rejec Dock Company. The East and West India Dock
tion, a proposal of arrangement which in the Company is a company which is authorised to
circumstances of the case cannot be said to be make a railway. That is sufficient to bring it
unfair, and which I think is fair, and that it does within the provisions of the Railway Companies
not deprive them or tend to deprive them of any Act 1867. But I need hardly say that the principal
reasonable prospect of being paid their debts. part of its undertaking is its dock , and its work
Thestatutory loan creditorsmadeconsiderable con connected with that. The schemeproposed under
cessions,andthestock -holders ofthe company take this Act is necessarily prefaced by a declaration
no diridend untilthe intereston thedeferred deben under the seal of the company, and by an affidavit
ture stock is paid . The outside creditors cannot that the company is unable to pay its creditors.
touch the undertaking itself. They cannot obtain There have been two receivers appointed , one a
an order to wind-up the company or in any way receiver and manager under the 4th section of
obtain a cessio bonorum against it, por any general the Act of 1867, which would include only the
administration of its property . The limited undertaking and the profits arising from the
administration of the profits of the undertaking, undertaking. Then , in an action brought by one
such as it is, under the order founded on the 4th of the creditors, another receiver and manager
section of the Act of 1867, will not be stayed by has also been appointed . I shall have to refer to
the scheme. The position of the outside credi. both the receivers hereafter, but I will pass them
tors is certainly very unfortunate, and their by now , merely mentioning that there are those
prospects of payment,apart from the scheme, are two receivers appointed . The scheme is opposed
not hopeful. From the facts already stated it is by people who claim to be, and as far as their
a problem which they may endeavour to solve if position at present goes, are in the position of
they think fit, whether there is in law or in fact large creditors of the dock company. They are
any property outside the undertaking which can contractors, who were originally employed by the
be successfully reached by them . I am satisfied , dock company to construct their new docks at
then , that no sufficient objection to the scheme Tilbury. I need not enter into the question of
has been established, and I accurdingly confirm the dispute between them , but there is a litiga
it. The order will be prefaced by a declaration tion between them , and there is a decision of the
that the court is of opinion that according to the other branch of the Court of Appeal in favour of
true construction of the scheme it does not bind the contractors. I understand that an appeal
and does not purport to bind the outside creditors to the House of Lords is pending against
to accept the deferred debenture stock in satis- | that decision . At present they are in the posi
faction of their debts. tion of primâ facie creditors of the dock com
Chitty, J. having declined to suspend the pany ; but are not in the position of having got
operation of his judgment for some short period | any judgment as against the company, or of
pending an appeal, an application was made in having got any lian or charge on any property of
the Court of Appeal on bebalf of some of the the company. What we have to consider is this :
opposing creditors for leave to present an appeal What are the objections which are raised to the
at once,notwithstanding thatthe order of Chitty, scheme which Chitty , J. has confirmed ? It is
J. had not been drawn up, and to serve short said (and that is the first point to be considered )
notice of the appeal. Their Lordships granted that this scheme does that which under the Act
the application . of Parliament a scheme bas no power to do. It
is well established that a scheme under the Act
Accordingly the appeal came on for hearing cannot bind “ outside creditors." By “ outside
on Feb. 7. creditors ” I mean those classes of creditors who
Moulton, Q.C., Byrne, Q.C., and Farwell for
the appellants .
do not come within the provisions of the Act, so
that their consent is necessary. A certain con
Latham , Q .C ., T. H . Pollard, and Howard sent by a majority of them is necessary in order
Wright for the company. to enable a schemeto be confirmed by the court.
I do not rely in any way upon the fact that
The following authorities were referred to : another creditor who did oppose has ceased to
Re The Cambrian Railway Company's Scheme, 17 oppose . I do not think that comes in question
L. T. Rep. N . S. 374 ; L . Rep . 3 Ch . App . 278 ; on this part of the case, in which it is said that
Re The Bristol and North Somerset Railway Com this scheme does that which it cannot properly
pany, 20 L . T. Rep. N . S. 70 ; L . Rep. 6 Eq. 448 ;
Re The East and West Junction Railway Company, do. Several authorities were cited ; I will only
A L . T. Rep. N . S. 86 ; L . Rep. 8 Eq. 87 ; refer to two of them at present. The first case
246 — Vol. LXII., N. 8.] THE LAW TIMES. (April 12, 1890.
Cr. OF APP.] Re THE EAST AND WEST India Dock COMPANY. (CT. OF APP.
as regards a scheme under the Act, which came takes away from the creditors this money ; that
before Lord Cairns (when Lord Justice), was the is to say, the money so to be held by this scheme,
case of Re The Cambrian Railways Company's which is a bargain binding on the company and
Scheme (17 L . T. Rep. N . S . 374; L . Rep. 3 Ch. on the persons who are named , the present deben
App. 278). That case does not directly bear on ture-holders, is not to be held by the company as
the question which we have now to consider, their free assets. That is true. They are bound
although it does lay down usefully the principles by the contract contained in this schemeto appro
which have to be regarded on the question before priate this partly in favour of the creditors who
us- relating to the confirmation of the scheme. are suspended for a time, and who are entitled to
That was an application under an earlier section the benefit of this provision , and partly for these
of the Act - sect. 7 — which provides that after debentures which are to be created under the
the filing of the scheme it shall be lawful for the scheme. But that is in my opinion not to deprive
court to stay any action . The question there was a creditor of any right. These outside creditors
whether the court would, having regard to the have no lien or charge at all upon the money.
scheme, stay the action. Lord Cairns said that They are simply in the position of creditors of a
the scheme proposed to do that which it could company. Creditors of an individual unless they
not do so as to bind the creditors. He also said have a mortgage or charge cannot say that he
that it was not a scheme in the face of which he deprives them of any right or interest which
would stay the action of a creditor, the creditor they have if he squanders his money. People
rot in any way being bound by the provisions of may do that and do that foolishly . But if
that scheme. That scheme proposed to take the creditor has got anything in the nature
away a right of the creditor - that is to say, to of a lien or charge upon it, then of course that
put him in a different position as regards his cannot be dealt with by a man who foolishly
rights from that which he would have occupied squanders his money. Here all that the scheme
before the scheme. As I have said , the case does is that it enables, if confirmed by the court,
affords, I think, a useful principle to enable us to the company and all the debenture-holders, if
decide whether Chitty , J. was right in confirm there is a sufficient majcrity to bind the whole,to
ing the present scheme. Lord Cairns said : enter into this bargain . But the company , if it
** Without professing to lay down any rule which was minded , might with any individual creditor
is to meet every case, I cannot think it would be whose action might be suspended by the scheme,
right that the court should suspend the proceed if it is confirmed , enter into a bargain to give
‘ings of any unpaid landowner, or, indeed , of any them a charge, if they have not got it, on these
outside creditor, unless it saw that a scheme was surplus assets. As far as one sees, there will be a
proposed in good faith which , if it reached considerable amount of assets ; but I do not
'maturity, would afford a reasonable prospect of enter into that, because, to mymind, it does not
providing for the payment of the claims of credi- | come into the question which we have now to con
tors, and thus compensate them for a temporary sider, as to whether this is exceeding the power
suspension of their remedies.” That throws given by the scheme or not. But there are
light and is a guide, I think , as to what we surplus assets. If those were not dealt with in
should look to when we come to decide this this way, and if the company did not by a bargain ,
part of the case, as to whether the scheme does without any schemewith any individual creditor,
purport in any way to lay down that which would agree to give a charge to that creditor on those
deprive a creditor of his rights. There was assets, then , if the opponents here established
' another case, which came before Giffard , L .J., | their right as creditors, they would be enabled ,
namely, the case of Re The Bristol and North by ordinary process of law , whatever might be
Somerset Railway Company (20 L . T. Rep. N . S. available, to get payment out of that. In conse
70 ; L . Rep . 6 Eq. 448). " The learned judge quence of this scheme, these free assets do
* referred to the case before Lord Cairns; but become bound, as between the company and the
- there there were provisions which directly pur. debenture-holders for whom the provision is
ported to alter the position of the creditors ; that made, to be applied ,not as assets free from any
is to say , compel them to give up their position obligation on the part of the company,but between
as creditors, and to fill another and different the company and those who are bound by the
position as persons who had taken , I think in that scheme under this bargain and contract. These
case, debentures. Those are the two cases to assets do, therefore, becomebound to beapplied in
which I refer on this part of the case. This the way provided by the scheme. But although
scheme~ I will not read it, because it has been so that may affect the creditors and one has
much discussed , and is well known by all parties to consider hereafter whether on the whole the
- provides a suspense period during which the scheme, having regard to all its provisions, is a
persons to whom money was owing for principal fair one, and provides a reasonable prospect for
' to creditors who could be bound should not payment of the creditors - yet, in my opinion , it
pursue their remedies. Then it provides that does not deprive the creditors of any right which
what have been called the “ free assets " should they have. I take " right " in this sense -- any
be dealt with in a particular way, partly to pro - | thing which they have a right to enforce by legal
' vide for this funded interest. Then half of the process in consequence of any any charge or lien
assets or
of the
amount is for the debentures which part of the mortgage which they have on
scheme provides should be issued to creditors, not company. So that, in my opinion, the objection
compelling in any way creditors to take the that this scheme is going beyond the powers
debenture stock , but enabling the company to ! given by the Act of Parliament cannot prevail.
issue this additional debenture stock to creditors. It is almost a necessity that there should be in a
Does that deprire creditors of any right within scheme like this some dealing with the property
the sense that the schemeis not to bind creditors ? of the company which was previously free - some
In my opinion it does not. It is very true it I property of the company to be attached or dealt
April 12, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 247
CT.OF APP.] Re THE EAST AND West India Dock COMPANY. [OT. OF APP .
with by the company as it thought fit. It is í nothing whatever for the outside creditors."
almost a necessity that there should be some pro- | Now , I will not go so far as that last part, but
vision as to how that is to be dealt with so as to what one has to see is, having regard to what
take that property from the ordinary power of the scheme does, does it not afford a reasonable
the company and to deal with it as it thinks prospect of providing for the payment of credi.
right and appropriate it. But it cannot do so as tors ? I think it ought, because all these schemes
against any legal interest or legal right in the | are schemes for arrangement between companies
nature of a mortgage or lien which there is in a and their creditors. That is really the principal
creditor. I repeat that, in my opinion , the objec- object of them . If the company say “ We cannot
tion taken to the scheme, that it goes beyond the pay our creditors," then a scheme must be pre
powers authorised by the Act, cannot prevail. pared , and it will be binding asbetween the com
But we have to consider more than that. We pany and its shareholders and debenture -holders.
have to consider whether this is a scheme which But it is with a view of a way being provided by
as against dissentient parties the court ought to means of a scheme of paying the creditors. Of
sanction and confirm . Let us see what the Act course the court considers also what is reasonable
requires to be done. The court is to hear and what is for the benefit and interest, not only
directors and creditors and others, and if the of the outside creditors, but those , for instance,
court is satisfied that all the necessary assents who are interested in the company as debenture
have been given - which there is no question have | holders and as shareholders-- that is to say, the
been given here - and that no sufficient objection company and the works of the company. There are
to the scheme has been established , it may con here a very large number of creditors who have
firm the scheme. That is what the court has to an actual right at present as against the company
do. Of course if the scheme goes beyond the to payment, and there are large claims of
power giren by the Act the scheme is ultra vires, 160 ,000l. and 180,0001., I think, in arrear before
and the court never will sanction it, and there is the beginning of the year for interest ; there are
an end of the matter. I think I ought to deal large claims for capital due, I think there is a sum
here with one objection that was raised on this of 300,0001. due, and there will be about as much
point. It was said , “ The creditors are not bound more before the middle of the year. Those are
here.” There I think that Mr. Latham went too very large claims indeed against the company
far, because I differ from him as regards what by persons about whose claims there is no
would be the effect on the free assets of the dispute whatever. What does this scheme do as
scheme. He said : “ If that were so, if creditors regards them ? Practically for a period of ten
may be interfered with in this way, why in many years it suspends the actions of those persons
of these cases, has the court refused to sanction a who are in the undoubted position of creditors
scheme? It did that which it had not power to entitled to immediate payment. Weknow that
do under such schemes.” I think there are two the company, in consequence of legislation , and
objections. The court ought never to sanction in consequence of the action taken to unite to
and confirm a schemewhich , although it purports gether the docks which were in opposition and
to be made under an Act of Parliament, is in ruining one another, is going on better. So far
excess of the powers given by that Act of Parlia as one can learn , there is every prospect of con
ment. It would be very wrong for it to do so. siderable increase in the profits, which the com .
There is also this difficulty, which I shall have to pany will make. If that is so, is not that an
refer to again : If there is expressed in the enormous benefit ? It is true that, in order to
scheme something which the court finds not only enable it to do that, the free assets are dealt
that it cannot sanction , but which there is no with . But they are dealt with in a way which ,
means of enforcing , it may be said that then so far as I can see (and that was Chitty , J .'s
those classes of creditors and classes of share view ), is a reasonable way of providing for the
holders whose assent is required are deceived ; | better success and future prosperity of this
that they thought this scheme did contain a bind- | company. That of course is a way of providing
ing clause which now the court says there is no the means of paying the creditors. It does not
power at all to create, and it is notbinding in any give these outside creditors any direct charge
way. Therefore the scheme ought to be con on the property, but it does, so far as one can
sidered as not containing these terms which the see, afford a reasonable prospect, and a reason
Act of Parliament does not enable to be put in able mode (there may be others, but this is the
there, and as to which the court might say ought one that has been selected ), of providing for
to be considered as struck out. But then we payment of the creditors. There is this also
come to the question whether there is any suffi in the scheme: that the company provide for
cient objection to the scheme. I have read a ! debenture stock to be given to the creditors ;
passage from Lord Cairns' judgment in the , and then there is a provision to enable part of
case of Re The Cambrian Railways Company's the present surplus assets to be applied in pay
Scheme (ubi sup.), which I will not repeat, ment of that debenture stock . Here it was
for the purpose of showingwhat we are to con said : “ There is no provision requiring the di.
sider. I would also refer to a passage in the rectors to give this debenture stock to all cre
judgment of James, L .J. when Vice-Chancellor, ditors who are willing to take it, and there is
when he is dealing with the case of Re The East | no provision as to directing them to apply in
and West Junction Railway Company (21 L . T. / any particular way the proceeds of that portion
Rep. N . S . 86 ; L . Rep. 8 Eq. 87 ). Hesays : " If I of the free assets to pay the particular credi.
thought thatthe scheme deprived any creditor of tors.” Well, it was proposed on behalf of the
any reasonable prospect ofbeingpaid I should have company that they should give an undertaking
had much more hesitation in confirming it ; but I to offer this debenture stock to either the par.
cannot help seeing that, unless some scheme is ticular opponents or to all creditors who are
resorted to , there is nothing for the company and I willing to take it, and that they should
248 - Vol. LXII., N . 8 .] THE LAW TIMES. [April 12 , 1890 .
CT. OF APP .] Re THE EAST AND WEST INDIA Dock COMPANY. (CT. OP APP.
give an undertaking as regards applying but of course so far as the scheme binds those
the money in their hands for the pur. who would otherwise be entitled to the benefit of
pose of redeeming the same. It was objected , the order, they cannot insist upon it. Asregards
and I think rightly objected , that it would not those in the position of mere outside creditors,
be proper for us to require that undertaking now that receivership order still remains, and there
to be given ,because it would probably be looked will be a right in favour of judgment creditors
upon as, and it probably would be, a condition of who are entitled to the benefit of that order .
the scheme. Therefore, I think that we cannot But when all those judgment creditors are paid ,
ask the dock company to give that undertaking. then under the powers given by sect. 4 of the
or take that undertaking when offered by them ' . Act the court may, if it thinks right, discharge
But I must express my opinion that the court the receiver, and put an end to the proceedings
trusts to those who are directors of the company under that receivership order. In my opinion ,
and who are to act in what they consider the the judgment of Chitty, J. was right, and the
proper and reasonable way in dealing with the appeal fails.
powers here given them . In myopinion , it would LINDLEY, L.J. - In order to dealwith this case,
not be a proper exercise of the powers given them | it is necessary to consider a little the theory of
if they used those powers capriciously or arbi. schemes under the Railway Companies Act of
trarily in favour of some creditors, and as 1867. The provisions of the Act come into force
against creditors with whom they had some in the case of railway companies who are in diffi
quarrel or disliked . As soon as this question is cuties. The first condition of the application of
settled as to what the rights of the company are, the Act is , that they shall not be able to pay
the feeling of any grudge or anything of that their creditors. It is no part of the scheme to
kind will be at an end. In my opinion (and I wind-up the company in the sense in which a
have no hesitation in saying it), the directors, or joint-stock company is wound-up under the
those who govern or manage this company with Winding-up Acts. T'he theory rather is that the
reference to this scheme, ought to exercise the company is to be kept going, and schemes are to
powers thus given to them in a way which will be prepared for the purpose of enabling the com
prevent anyone saying that this has been done pany to pay their way and pay off their creditors
arbitrarily, or because they had any particular by means of a going concern . The whole theory
feeling for or against creditors. Therefore , I of the scheme is clearly based upon that prin
think , so as not to have it suggested that we are ciple. Those who have prepared it see the diffi
imposing any new term or making any alteration calties, and very serious difficulties indeed they
in the schemewhich we cannot do - it will be are. They cannot go on without arranging in
better not to receive that undertaking, though some way with their creditors and gaining time.
offered. But I express my opinion now , so that If they were wound-up to -morrow , whether there
there may be no doubt as to the way in which I would be 20s. in the pound for their creditors I
think these powers ought to be exercised . Then do not know . Docks are not very saleable things
there is another matter to which I must refer. I unless there is a purchaser in the market, and
said there had been two classes of receivers and one need not speculate on that. The scheme is
managers appointed . One of them was a receiver based upon the principle that it is for the benefit
and manager appointed , I think , at the instance of everybody - creditors, secured and unsecured ,
of a creditor, who was bound by the scheme, and and shareholders and everybody else - that the
that was a mere interim order for interim company shall be kept going, and that oppor
management. Of course, if this scheme is con tunities shall be made for paying off creditors by
firmed , and that receiver is approved and the degrees. Now , the first thing, having got that
scheme is approved , and the creditor who general view into one's head, is to see what the
obtained that receivership is bound by it, there nature of the provisions of the Act is. Weare
will be an end of it, and that, I think , disposes of dealing with a scheme which has been assented
that point. But as regards the other order, an to by the necessary majorities of those creditors
order made under an earlier section of this Act whose assents are required by the Act of Parlia
- the 4th section - in my opinion , the scheme in ment. But the scheme is objected to by un .
no way gets rid of that receivership order. Of secured creditors - gentlemen who are creditors
course, as regards any creditor who is bound by for a very large amount. Unsecured creditors
the scheme, if he is bound by it so far as the are not required by the Act to assent to the
scheme interferes with any rightswhich hewould scheme, nor can any minority , however small, be
otherwise have under that receivership order bound by a majority , however large, of the same
he cannot insist upon them . But as regards an class of creditors as themselves. No majority of
outside creditor, and as regards anyone who is unsecured creditors can bind a dissentient one.
not bound by the scheme, or as against whom More than that, although the unsecured creditors
there is no objection in consequence of the are not required to assent, they are entitled to be
scheme to his enforcing such rights as he has heard in opposition to the scheme, which involves
under the receivership order - under sect. 4 - it that their objections to it must be fairly and
still remains. Here those who were judgment properly considered by the tribunals before whom
creditors at the time that order was made - I will the scheme comes for approval. Therefore,
not say anythingmore than that-- and personswho although these unsecured creditors are not re
have rights under that order, will retain them quired to assent, their dissent, and the grounds
notwithstanding the scheme. That, I think, of their dissent, have to be considered . Now , it
Chitty, J. expressed in his judgment. That that has been said , and said with truth, that dis
is so I have no doubt; and therefore no objection sentient unsecured creditors are not bound by
on that ground can be taken to what has been the scheme; they are not bound by assents. They
done. The receivership order remains in force are not bound to take the benefits, if any, which
for those who are entitled to the benefit of it ; I are offered to them by the scheme. They are left
April 12, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 249
CT. OF APP.] Re THE EAST AND WEST India Dock Company. [CT. OF APP.
to their legal remedies if they do not choose to y carried out. It would not be to their advantage
come in under it. But although it is perfectly to leave this company to struggle with its credi
true that they are not bound by the scheme intors at the risk - and the imminent risk , so far as
any such sense as that, it would be a great they are concerned - of being left out in the cold
mistake to suppose that the scheme is a matter by reason of other creditors getting priority in a
of perfect indifference to them , and that it in no rush for payment. Although the scheme, there
way , directly or indirectly, affects their rights. fore, does affect the property of the company, and
The effect of the scheme is declared , by sect. 18 | does affect the unsecured creditors, wemust look
of the Act, to be this : " A schemewhen confirmed at the other side and see what the scheme does
shall be enrolled , and thenceforth the same shall for them . The great feature of this scheme is,
be binding and effectual to all intents, and the that it prevents the rush and competition and
provisions thereof shall, against and in favour of struggle for priority to which I have alluded, and
the company and all parties assenting thereto or which would be perfectly fatal to the company
bound thereby ” – that is , not the unsecured and fatal to everybody who was not first in the
creditors — “ have the like effect as if it had been field . Those creditors who are in a position to
enacted by Act of Parliament." Now , what I issue fi. fas. and execution against the company
wish to call attention to is this, that the scheme, suspend their rights for a good long timefor
if confirmed , is valid , and binds the company. | ten years — and other persons who will be in a
That which binds the company binds the un . position next July, if nothing is done to execute
judgment against the company, suspend their
secured creditors of the company in this sense ,
that any disposition by the company of the pro - rights for the same period . That is an immense
perty which binds the company will affect the set-off against any withdrawal of assets from
unsecured creditors. Any trust validly created persons like Messrs. Kirk and Randall. Looking,
by the scheme and binding on the company will therefore, at the thing as a whole, as I think we
affect unsecured creditors. Unsecured creditors ought to do, not looking at and deciding against
having no lien or charge on the assets of the the scheme simply because some unsecured
company have to greater right against the pro creditors, however largely, are affected by it , but
perty or assets of the company than the com . | looking at it as a whole, wemust ask ourselves,
pany itself has, and whatever affects the com in the language of sect. 17 , whether any suffi
pany affects its unsecured creditors. So far cient objection to the scheme has been established .
as my property is concerned , if I give it The conclusion to which I have arrived, after
away so much the worse for my unsecured credi. attending to Mr. Byrne's and Mr. Moulton's rery
tors. They cannot follow it ; they can only come able arguments on behalf of their clients, is, that
against me. If I create valid trusts which are this is a thoroughly honest scheme, and intended
enforceable against me, and which are not open to do the best, and, so far as I can see, doing the
to the charge of being fraudulent against my best, for all concerned in the very unfortunate
creditors, my unsecured creditors are bound, circumstances with which the company and the
and they cannot attack that trust property. In court have to deal and grapple. With reference
that sense these schemes become very important to the point made under clause 7 of the schema,
indeed to unsecured creditors ; and although it is that the company may prefer unsecured creditors
trne in one sense that they are not bound, yet in and issue deferred debenture stock to some, and
another sense it is quite true that they are very refuse to issue it to others, I do not think that we
seriously affected by them . That being so, it ought judicially to suppose that the company will
becomes necessary and important to consider the | be guilty of that which is something very like
objections which the unsecured creditors may | unfair dealing. One sees why the power is framed
have, and if a scheme were prepared , I do not in this way. It is because some of the unsecured
say for the purpose of cheating the unsecured creditors may prefer not to have deferred deben
creditors,because that is too gross to require com ture stock ; they may prefer to go without it, and
ment ; but if a scheme was prepared which would exercise such rights as they may be entitled to
have the effect of leaving them out in the cold , exercise. But I am not prepared to suppose that,
and preferring other creditors to them , the court if an unsecured creditor comes and asks for
would be very slow indeed to confirm such a deferred debenture stock in pursuance of the
scheme as that. It is said by Mr. Byrne that that scheme, the company will say, “ No ; we had a
is really the effect of this scheme. If it were I quarrel with you ; we shall not give it to you."
should think the scheme ought not to be con. | It is not likely ; it is not businesslike ; and I am
firmed ; but let us look at it a little further. Let not prepared to withhold my sanction to the
it be borne in mind that, unless such a scheme as scheme because it is just possible that the powers
this is confirmed , the position of unsecured credi. conferred by the scheme will be abused . I shall
tors will be an uncommonly bad one. There will assume it will be acted upon in the spirit in
be immediately a competition and rush for which it is asked for, and with which , so far as I
priority which will be extremely disastrous to can judge, it is likely to be carried out. Upon
everybody except those who are fortunate enough the whole, therefore, it appears to me that this is
to get it . That is an evil which we at all events a schemewhich weought to confirm ,and that the
are quite able to appreciate. The position of this appeal ought to be dismissed .
company is such that by next July what are LOPES, L .J. - I have only to add that I believe
called the “ free assets " of the company would be, this scheme likely to be beneficial to all con
if not wholly swept away , to a very large extent cerned , secured and unsecured creditors. It
swept away, long before the opposing unsecured appears to me to be a reasonable scheme, and I
creditors would be in a position to put in force can see no sufficient objection that has been made
any judgment which they might get. They have against it which would justify this court in
not got judgment yet. It is not, so far as I can refusing to confirm it.
see, to their interest to prevent any scheme being I
Appeal dismissed with costs.
250 _ Vol. LXII., N. S.] THE LAW TIMES. [April 12, 1890 .
Chan. Div.] Moxon v. The BERKELEY MUTUAL BENEFIT BUILDING Society. (Chan.Div .
Solicitors : Freshfields and Williams; Cope and I leasehold it should not have less than sixteen years to
run , and in the opinion of thesurveyor and committee o
Co.; Mackrell, Maton , and Godlee ; Traverse | management
Smith and Co. should be capable of affording sufficien
mortgage security to the society for the repayment o
5001. or such less sum as might be required to be ad
vanced thereon at the rate of one-tenth per annum by
HIGH COURT OF JUSTICE . weekly, monthly , or quarterly payments as such member
might in the first instance decide ; that the 5001, or such
sum as required should be advanced as soon as possible
CHANCERY DIVISION . after the solicitor should have intimated that the neces.
Jan . 17 and 20. sary documents were ready ; that the whole of the
writings should be retained by the society until the
(Before KAY, J.) whole of the repayments, insurance, fines, forfeitures,
or other moneys due on account of any appropriation
MOXON V. THE BERKELEY MUTUAL BENEFIT obtained in respect of the same should have been paid ;
BUILDING SOCIETY. (a ) that in case any member should discontinue his sub
Mortgage of two estates- Subsequent mortgages of scriptions after receiving an appropriation he should
estates to separate inortgagees — Right of payment forfeit a bonus of 101. per share and his mortgage be
of first debt outoftwo estates rateably. deemed nnredeemable until such member should have
paid such sum of 101. per share as well as all payments
Where a person mortgages Blackacre and White. covenanted to be paid by the said mortgage deed , but
acre to A ., and then mortgages Blackacre to B . that such member should be entitled to have any sum
and Whiteacre to C ., the rights between B . and C . he might have paid by way of subscriptions into the
are to compel the payment of A .'s debt out of the society placed to his credit in respect of his repay
two estates rateably , 80 that there shall be left of ments and forfeiture or bonds, and immediately upon
the completion of such payments such member should
those estates the proper proportion for B . and C . be entitled to have his title deeds delivered over to him
respectively . or as he should appoint, with a receipt duly indorsed on
his mortgage deed, but that in the event of any member
So, also, where there are two funds, either or both of who should have secured an appropriation being desirons
which A .has the right to apply in payinghimself, of continuing his membership , he should be compelled
and one of such funds is assigned to B . and the to make and continue a subscription of 18. 6d . per share
other to C ., then , whether thatright arises from a per week , pursuant to rule 18 , until all the members
positive charge or by operation of law , in the cir. should have obtained their appropriations, or in default
cumstances under which the two funds came into of so doing for six weeks (if he should have paid his
subscription money during the whole time he had been
A .'s hands, it is a right which he can exercise repaying his appropriation ) should forfeit all profits on
against both B . and C ., and an equity to an his subscriptions paid up to the time of default.
apportionment of A .'s debt exists between B . and 0 . Rule 21 provided for themode of appropriation of the
This was a special case stated by consent for the several sums of 5001. to be advanced to members.
opinion of the court pursuant to the Rules of Rale 22 . That any member should be at liberty to
Court 1883, Order XXXIV . transfer his shares to any other member by paying nine
In 1869 the Berkeley Mutual Benefit Building bonus pence for each share transferred by such member as a
Society was established and duly enrolled under any member to the society in respect to such shares, and that
wishing to transfer any shares entitled to
the provisions of 6 & 7 Will. 4 , c. 32. Its objects an advance or in respect of which an advance should
were to enable its members to purchase property , have been made should first obtain the consent of the
either of freehold , copyhold , or leasehold tenure, committee of management to such transfer, and without
by means of money to be from time to time all transfers should transfer
such consent no such
be made
should be valid , and that
agreeably to the form
advanced to them out of the funds of the society. appended to the rules.
On the 15th May 1880 the society was incor. Rule 30. Tbat any member neglecting to pay his
porated under the Building Societies Act 1874 .
The rules of the society contained (inter alia) subscriptions for thirteen weeks should be excluded
from the society , having previously received two notices
the following provisions: to that effect, but should have the privilege of dispos
ing of his shares ; but should any member being in
Rale 1. That it should consist of 1400 shares of arrears
1251. each , each member holding not less than four shares during not apply to the society for the disposal of his
shares . an additional four weeks from the date of
Rule 2. That the shares should be paid by weekly viding a the
expulsion society should have the privilege of pro
successor and depriving him of all profit
subscriptions of ninepence per share.
Rule 18. That a member having obtained an advance accruing from the sale of his shares.
Rule 31. That any member having obtained an
in respect of any four shares should be excluded so far
as those shares were concerned from all future appro appropriation
should
and becomein arrear with his repayments
priations, but might if he thought proper continue to memberhave should
two notices of such default, and that no
be permitted to continue longer than
pay his subscription of ninepence per week per sbare
regularly during the whole time he was repaying his thirteen weeks in arrear unless as provided for in rule 27
appropriation , and after having repaid the same such (whichimmediately
did not affect the question in this special case)
member should continue to pay subscriptions at the rate that after that period a general or special
of 18. 6d. per share per week in respect of such appro general
forfeited
meeting should have power to dispose of the
property by private or public sale, and the
priated shares until all the members should have ob .
tained their appropriations of 5001. upon every four surplus, if any, after deducting all moneys claimed by
shares ; but if anymember who had obtained an advance the society agreeably to the rules and to the mortgage
should be desirous of withdrawing from the society , the deed , should be paid to the member forfeiting his right
amount of his subscription might be placed to the credit to such property, and that such member should sustain
of his repayment account, subject to the deductions all loss or expenses attending such sale.
provided in rule 19. Henry Robinson , the late husband of the late
Rule 19. That when the unappropriated money at Mary Edmonds Robinson , was a member of the
the bankers was expected to amount to 5001. the trustees society, and he held therein sixteen shares in
should declare an appropriation of the above amount to batches of four shares each , such batches being
take place in the manner described in rule 21, and that
themember obtaining such appropriation should request numbered respectively 33, 153, 186 , and 149 in
the secretary to direct the surveyor to view the pro the books of the society. The first three of such
perty, the only restriction to the purchase being that if I batches were allotted to him on the formation of
(a) Reported by E. A . SCRATCHLEY, Esa., Barrister -at-Law . I the society in 1869, and the last, numbered 149,
April 12, 1890.) THE LAW TIMES . (Vol. LXII., N .8.- 251
CHAN . Div.] Moxon v . THE BERKELEY MUTUAL BENEFIT BUILDING SOCIETY. TCHAN , Div .
was obtained by him by transfer from another l society upon the security of a mortgage of
member in Feb . 1880 . certain property situate at Woodford , in the
Henry Robinson in April 1872, having to that county of Essex, which he had previously mort
date observed the rules of the society as to sub - | gaged to the society to secure an appropriation
scriptions and otherwise in respect of the shares in respect of his shares numbered 149, and which
then held by him , obtained an appropriation of on the occasion of such further charge was
5001, in respect of his batch No. 153 by competi- released from such mortgage.
tive tender at a bonus of 1031., and he secured By an indenture dated the 19th July 1880, due
the sums of 5001. and 1031. to the society by a notice of which was given to the society, Henry
mortgage, dated the 18th April 1872, to the Robinson granted the East Moulsey property to
trustees thereof of a piece of land at East the use of his father George Robinson in fee for
Moulsey , in the county of Surrey, together with securing to the latter the sum of 8001. with
the dwelling-house thereon . interest at the rate of 6 per cent. per annum ,
Themortgage deed contained the usual powers subject to the securities in favour of the
of entry and of sale upon any default by the society .
mortgagor, his heirs or assigns, in making the Henry Robinson continued to pay to the society
several payments and observing and perform his weekly subscription of 9d . per share in
ing the rules of the society and the covenants respect of his sixteen shares for some timeafter
and agreements contained in the mortgage deed ; the date of the appropriations, and , in fact, only
and it was thereby provided that out of the | discontinued his subscriptions in respect of the
moneys to arise from the collection of rent or twelve shares forming the batches Nos. 33, 153,
any sale of the mortgaged property the trustees and 186 in Aug. 1880, and in respect of the shares
should first satisfy all costs, expenses, and out- forming the batch No. 149 in Feb . 1880 . But he
goings ; and, secondly , should retain in trust for did not on such discontinuance require the
the society all repayments, bonuses, fines, for- | society to place the subscriptions to his credit in
feitures, and other payments and sums which respect of his repayments and forfeiture or
should then be or might thereafter become due bonus as provided for by rule 19.
from the mortgagor, his heirs or assigns, in Henry Robinson filed his petition for liquida
respect of the shares or of that appropriation. tion by arrangement or composition with his
It was also agreed by the parties thereto that in creditors, under the provisions of the Bankruptcy
case such sale should take place all moneys which | Act 1869, on the 23rd April 1881, and at the
would at any time afterwards become due from generalmeeting of his creditors, which was duly
him or them according to the rules of the society | held on the 26th May 1881, the statutory
should be considered as due at the time of the majority of such creditors resolved (inter alia )
sale and be deducted and paid out of the moneys that his affairs should be liquidated by arrange
received and the amount calculated accordingly ; / ment, and that John Ronald Shearer and Robert
and , further, that the society should pay the James Ward should be and they were thereby
residue of the moneys (if any) to the mortgagor, | appointed trustees, and such special resolutions
his heirs or assigns. were afterwards duly registered .
In April 1873 Henry Robinson , having observed At a meeting of the creditors of Henry Robin
the rules of the society, obtained by competitive son , held under the provisions of the 28th section
tender at a bonus of 1151. an appropriation of of the Bankruptcy Act 1869 on the 23rd June
5001. in respect of his shares No. 186 , and he 1881, to consider an offer of John James Griffiths
secured the sums of 5001. and 1151. by a further to purchase the whole of Henry Robinson's
charge on the East Moulsey property to the estate, resolutions were duly passed that the offer
trustees of the society, dated the 12th April of J. J. Griffiths to purchase the estate of Henry
1873, in which he covenanted that the property | Robinson for a sum sufficient to pay a composition
should not be redeemed or redeemable until full of 38. in the pound to the creditors, and to pay
payment, not only of the moneys secured by the certain costs as therein provided , should be
mortgage of the 18th April 1872 , but also of the accepted , and that the liquidation proceedings
principal sum of 5001. that day paid , with the should be closed and the debtor be discharged
additional bonus and all sums which might immediately such resolutions were confirmed.
thereafter become due in respect of the shares The resolutions were duly confirmed on the
and the advance in pursuance of the society's 19th July 1881.
rules. By an indenture dated the 26th Oct. 1881, and
On the 30th Aug. 1877 Henry Robinson further madebetween J. R . Shearer and R . J. Ward of the
charged the East Moulsey property in a similar first part, Henry Robinson of the second part,
manner in favour of the society with a sum of and J. J. Griffiths of the third part,all the pieces
275l., which remained due by him to the society | or parcels of land described in the now stating
upon the security of a mortgage of certain pro- | indenture (subject to the indenture of mortgage
perty in Bedford -row , London , which he had pre recited in the now stating indenture), and also
viously mortgaged to the society to secure an all the moneys in the hands of the society
appropriation in respect of his shares numbered referred to and recited in the now stating inden
33,and which property in Bedford -row was, in ture, and also all other the real and personal
consideration of the last-mentioned further estate of Henry Robinson except the East
charge, released and discharged from all claims Moulsey property, and all the estate , right, title,
of the society , and the deeds relatirg thereto interest, claim , and demand whatever of Henry
were restored to Henry Robinson . Robinson and the trustees was conveyed unto
· On the 27th April 1880 Henry Robinson J. J.Griffiths. The indenture contained a cove
further charged the East Moulsey property ina nant for further assurance by Henry Robinson ,
similar manner in favour of the society with a and that he would hand over to J. J. Griffiths all
sum of 5001., which remained due by him to the I the scrip and books or other the documents
252 - Vol. LXII., N . 8.] THE LAW TIMES. [april 12, 1890.
Chan. Div.] Moxon v. TuE BERKELEY MUTUAL BENEFIT BUILDING SOCIETY. (Chan. Div.
which might or should be required for the pur: Emma Moxon , as the legal personalrepresenta
pose of enabling J. J. Griffiths to receive or tive of George Robinson, the second mortgagee
obtain the benefits and profits of the shares, or of the East Moulsey property , claimed to be
deposits, or subscriptions then in the society, entitled to as well the surplus proceeds of sale as
and should execute any transfer for enabling the subscription moneys, amounting to 3361. 38.,
J. J. Griffiths to receive or obtain the benefits or on the ground that such moneys should have been
profits arising therefrom . applied in reduction of the moneys owing to the
By an indenture, dated the 13th Dec. 1881, society on its securities or otherwise.
J. R . Shearer and R . J. Ward ,at the request and All the interest of Mary Edmonds Robinson
by the direction of J. J. Griffiths, granted and (who had died) in such moneys was vested in
conveyed, and J. J. Griffiths granted and con Emma Moxon .
firmed, the East Moulsey property to Henry J. J.Griffiths claimed to be entitled to the 3361.38.
Robinson , subject nevertheless to the above on the ground (among other grounds) that the
mentioned indentures of mortgage and further same passed to or became vested in him under
charge and the sums of 10791. 158. 6d . and the indenture of the 26th Oct . 1881.
8001. due and owing on the security of such J. Owing to the claims of Emma Moxon and
indentures, and all interest then due and there J.Griffiths thereto , thesociety declined to pay to
after to become due in respect of the same, and either of them the sum of 3361. 38., and retained
all other moneys, whether for principal, interest, the sum of5011, 133. 11d ., representing the surplus
subscriptions, or fines, then due or thereafter to proceeds of sale of the East Moulsey property,
becomedue under or by virtue of the indentures until the right to the sum of 3361. 38. was
any of them .
orHenry decided . Both such soms had been placed on
Robinson made the repayments on deposit by the society pending the settlement of
accountof his respective appropriations in accord the qnestion raised by this special case, and were
ance with the rules of the society and the cove bearing interest.
nants contained in the indentures of mortgage Accordingly the question submitted for the
and further charge as to batch No. 186 up to May | opinion of the court was, who was entitled to
1879 , as to batches Nos. 33 and 153 up to Oct. the sum of 3361. 38.
1879, and as to batch No. 149 up to Aug. 1880 . The special case now came on to be heard .
In May 1882, in consequence of the default of Renshaw , Q .C .andreferred
Vernon R .Barnes
Smith vfor Emma
Henry Robinson, the society entered into posses | Moxon . [KAY, J. to . Racster,
sion of the East Moulsey property, and received | 1 Y . & Coll. Ch . Cas. 401 ; and Bugden v.
the rents thereof, and sold the property on the Bignold , 2 Y . & Coll. Ch. Cas. 377.]
22nd April 1886 for the sum of 13001. Marten , Q .C . and Boome for J. J. Griffiths.
Upon such sale, after satisfying out of the
13001. the claims of the society in respect of the A . Birrell for the society.
mortgages and further charges, and any fines , Kay, J. - If a person mortgages estates X . and
forfeitures, and subscriptions, and the costs of Y . to A ., and then mortgages or assigns estate X .
such sale, there remained in the hands of the to B ., and estate Y . to C ., the rights between B .
society a surplus of 5011. 138. 11d ., in addition to, and C . are to compel the payment of the first
and exclusive of, the subscriptions paid to the debt out of the two estates rateably, and throw
society by Henry Robinson or his transferor in it on them rateably, so that there shall be left of
respect of the shares, and wbich amounted to the those estates the proper proportion for each of
sum of 3361. 38., which was standing to the credit the separate assigns. That right exists. It is
of Henry Robinson in the books of the society . not a right which the first mortgagee can inter.
Of such sum of 3361. 38., 831. 58. represented sub fere with in any way. He cannot say, “ I have
scriptions on the shares numbered 33 ; 831. 58. paid myself out of this estate, and therefore the
represented subscriptions on the shares num : right is gone.” The right is a right quite inde
bered 153 ; 831. 58. represented subscriptions on pendent of him . It does not interfere with him ;
the shares numbered 186 ; and 861. 88. repre but if he chooses to pay himself the whole debt
sented subscriptions on the shares numbered 149. out of one estate, then to the extent of the pro
Henry Robinson died on the 23rd Oct. 1883, portion of that estate, as between the two sepa
and by his will, dated the 12th Sept. 1886 , he rate assigns, it must be paid out of the other
appointed his wife Mary Edmonds Robinson his estate. The equity is an equity between the two
sole executrix and his universal legatee and separate assigns. It is the equitable mode of
devisee. administering an estate which is snbject to
George Robinson , the father of Henry Robin. | charges. Now , I take it that that equity applies
son , did not receive any dividend on his mort- just as much where there is an express charge,
gage debt. He died on the 13th Dec. 1884 , and as where there is in effect a charge, because it
letters of administration of his estate with the arises from the circumstance that the first mort
will annexed were granted to Emma Moxon on gagee has two funds ont of which to pay himself.
the 18th Feb . 1885. No part of such sum of 8001. If A ., the first mortgagee, has two funds, either
was ever repaid to George Robinson or Emma or both of which he may apply in paying himself,
Moxon , and the same, with large arrears of and then one of those funds is assigned to B .,
interest thereon , was due to her. and the other to C ., the equity between B . and C .
The shares and the subscriptions in respect exists from the simple fact that A ., the first
thereof were never transferred out of the name mortgagee, has two funds out of which he may
of Henry Robinson, and still stood in the books of pay himself. Now , whether thatright arises from
the society in his name. a positive charge, or whether it arises by opera
Every member of the society had received his tion of law , in the circumstances under which the
appropriation of 5001. pursuant to the rules | two funds came into his hands, it is a right
thereof or waived his right thereto . which he can exercise against both the subsequent
April 12 , 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 253
CHAN . Div.] Moxox v . THE BERKELEY MUTUAL BENEFIT BUILDING SOCIETY. (Chan . Div .
assigns of either fund ; and where he can exer- of bonus." Therefore this is a case in which he
cise that rightagainst both thesubsequentassigns was entitled by contract between himself and the
of either fund, in my opinion an equity to an society - because all these rules amount to a con
apportionment of his charge exists between the tract - to have the subscriptions placed against the
separate assigns of the funds against which he repayments due in respect of his mortgage. His
has that equity . Now , to apply that doctrine to right is quite clear. Now , had the society a cor
this case, I must first find that this society had a responding right or not ? I quite agree that that
right not only against the mortgaged estate, but rule does not give it to them . Nor is there any
against the fund which is now in question . Nuw , rule which I can find which says by way of con .
under the rules of this society, which is a build . tract that the society shall have a right to place
ing society, Henry Robinson obtained an advance. subscriptions against the mortgage debt. But
He mortgaged to the society property which the mortgage debt is secured by covenant.
belonged to him for the repayment of that Suppose the mortgagor had said : “ It is true I
advance, and all other payments he had to make owe you 5001. on mymortgage, but you owe me
in respect of the advanced shares. He was not 3361. for subscriptions; hand over those subscrip
bound to make any further subscriptions. His tions to me." If at the time when he said that
subscriptions had come to an end, unless he the mortgage debt was actually due, what would
chose further to subscribe in respect of the be the answer of the society ? It would have
advanced shares. He could possibly keep up his been this : “ But you owe usmore money than we
subscriptions long enough to entitle him to an owe you, and the law gives us a right to set off
advance. He did make further subscriptions, one debt against the other." Could there have
and then came a time when he was not able to been any answer to that ? I confess I do not see
continue those subscriptions, or to continue the | it, and I have listened with attention to hear
repayments, which by the terms of his mortgage whether there could be an answer to that. If
he ought periodically to have made. He did that is the law , that is the reason why it was not
neither, and he never recommenced paying either thought necessary to put into the 19th rule a pro
his subscriptions or his repayments. Subsequently vision that there should be a corresponding right
to the mortgage which charged all the shares, lie on the part of the society to pay themselves out
made a further mortgage of the estate to one of these subscriptions. It seems to methat it
person , and then he made an assignment for the i would be the case that the law would give that
benefit of his creditors of all his property to right ; and I have not heard a word which I can
another person . That other person, whose name rely on as really disputing that proposition . Then
is Griffiths, now claims the amount of subscrip it was the fact that, when the mortgage debt was
tions which he paid in respect of his shares all due, the society bad a right to resort, not only
after the mortgage. The society have sold the to the mortgaged property , but to say, " Wewill
mortgaged property for 13001., and they have set off this 3361.against money which you owe us
repaid themselves, out of the proceeds of the on the covenant in your mortgage deed ." The
mortgaged property, all their advance and every way to try it is this : Suppose the mortgaged pro
thing that was due under the mortgage. The perty had turned out to be greatly insufficient to
mortgage contains covenants for payment besides pay the mortgage debt, could the mortgagor have
the charge, and those covenants for payment said to the society, “ That is true ; the mortgage
made all the repayments that Robinson ought to is insufficient ; nevertheless you shall pay meover
have made to the society a personal debt from the amount you oweme for these subscriptions " :
him . Now the question is, as between Griffiths, To mymind, it is quite plain that he could not.
who has got a general assignment, which would | Therefore, the result is, whether by contract, or
pass anything due to Robinson in respect of sub by the cperation of the law of set-off, that the
scriptions, and the subsequent mortgagee of the society had a right not only against the mort
estate, who is a different person , what is the gaged property, but against this fund, and that
equity between the two ? The equity between | neither themortgagor nor anyone claiming under
the two is that which I indicated at the outset of the mortgagor, could insist on having that fund
what I have said . The question is, whether or paid over till the mortgage debt was satisfied .
not the society had a right of recourse for the That brings it within the simple case which I
advance , not only against the mortgaged estate, stated at the outset of what I have said . The
but against these subscriptions, which amountto society had an estate and a fund to which they
3361. There is nothing in the rules which gives might resort for payment of the debt due to
it to them in express terms. The end of the them from Robinson . Robinson afterwards
19th rule is : “ If any member who has obtained assigned the estate to one person , and he assigned
an advance be desirous of withdrawing from the the fund to another person. The equity between
society, the amount of his subscriptionsmay be the two assigns is to have the debt paid rateably
placed to the credit of his repayments account," out of the two funds. It is no answer whatever
subject to certain deductions. The 19th rule | to that, as I have already observed , to say, “ But
commences thus: “ In case any member shall the society have paid themselves out of the fund,
discontinue his subscriptions” — which is what and therefore we cannot get rid of what they have
happened in this case — " after receiving an appro done.” That would be a hopeless argument. The
priation , he shall forfeit a bonus of 101. per share, court has now to determine who is entitled to this
and his mortgage shall be deemed unredeemable other fund which hasnotbeen applied, and which is
until he shall have paid the sum of 101. per share, still in the hands of the society . I consider
as well as all payments covenanted to be paid by that the right mode of dealing with it is to take
the said mortgage deed ; but such member shall the debt rateably out of the 13001., the net pro
be entitled to have any sum he may have paid by ceeds of the estate, and the amount of the sub
way of subscriptions to this society placed to his scriptions, and then to hand over what remains
credit in respect of his repayments and forfeiture l of the subscriptions to Griffiths, and what remains
Chan. Div.] TILBURY v. Silva. [Chan. Div .
of the estate to the assign who has the estate. This action was brought by George Tilbury " on
The costs of all parties will be paid out of the bebalf of himself and other the owners and occu
fund. piers of ancient copyhold tenements and ancient
Solicitors for Emma Moxon , Badham and tenements formerly copyhold , but now enfran
Williams, agents for TV . L . Williams, Wakefield . chised ,of the manor of Chilbolton, in the county
Solicitors for J. J. Griffiths, G . and W . Webb. of Southampton."
Solicitors for the society, Laundy, Son , and The defendant was Edward Silva ,
Kedge. The manor of Chilbolton formerly belonged to
the Dean and Chapter of Winchester, and was
Jan . 27, 28, 29, and 30. now _ vested in the Ecclesiastical Commissioners
for England.
(Before Kay, J.) By his statement of claim the plaintiff alleged
TILBURY V. Silya. (a ) that he was and the persons on whose behalf be
Prescription - Copyhold - Profit à prendre- Right ments sued were the owners of ancient copyhold tene
of fishing - UserCustomary right - Enfran hold , but and ancient tenements formerly copy
chisement - Effect of - Prescription Act (2 & 3 Chilbolton . now enfranchised , of the manor of
Will. 4, c. 51), ss. 1, 4. This was entirely denied by the defendant.
An action was brought by T. on behalf of himself The plaintiff also alleged that he and the said
and others the owners and occupiers of ancient
copyhold tenements and ancient tenements other persons andaccustomed his and their predecessors in
to enjoy and were
formerly copyhold , but now enfranchised , of the title, had been
manor of C ., claiming a declaration that he by entitled to a right of fishing, to be exercised only
and the other persons were entitled , as appurte a shoenet,angling with a rod and by using a net called
nant to their tenements, to a right of fishing in a was in that portion of the river Test which
portion of a certain river, situate within the extending situate within the parish of Chilbolton ,
parish of C ., and, as incident thereto, to a right from a spot called Testcombe Bridge
of way along the bank of the river. The plain . toand,as a spot called Butcher's Mead in that parish ,
, to a right of way along
tiff also claimed, an injunction to restrain the the banks of the thereto
incident
river from Testcombe Bridge to
defendant from olistructing such rights. The Butcher's Mead for the purpose of angling and
plaintiff pleaded that he and the other persons, fishing from the banks as appurtenant to their
and their predecessors in title, had been accus tenements.
tomed to enjoy and were entitled to the rights This was entirely denied by the defendant.
claimed, and had exercised such rights for sixty The plaintiff also alleged that he and the said
years and upwards without interruption until
they were interrupied by the defendant. The other persons, and his and their predecessors in
title, had lawfully and as of right exercised and
middle of the river formed one of the boundaries used the right of fishing and right of way by
of the manor of C ., and the homage of themanor their servants, agents, and lessees, for
had for many years made a presentmerrt of the themselves,
sixty years and upwards without interruption
right ofcopyhold tenants of the manorto fish in the until they were interrupted by the defendant.
river between certain points. In 1845 the lords This was entirely denied by the defendant.
of the manor enfranchised the defendant's copy The defendant was the owner of an estate
hold tenement which abutted on part of the river
between the points in question . At a later date adjoining the river Test, called Testcombe, which
the lords also enfranchised the plaintiff 's copy was formerly copyhold of the manor of Chil
hold tenement. Both before and after the en9.- I bolton
bolton ,, and was inin and
and was and before the year 1838 in
franchisement the right of fishing had been | possession of one Charles Penton .
exercised along the defendant's land where it By an inclosure award, dated the 29th Oct.
abutted on the river. In 1885 , however, the 1838, made by James Comely as sole commis
(and to which Charles Penton was party ),
defendant stopped up the access to his land and sioner
interrupted the right of fishing. This action was 1837it was recited that by deed dated the 29th March
not commenced until Jan . 1889. various proprietors of lands in the parish
Held , that the claim based on user could not be of Chilbolton (including Charles Penton) gave
sustained , because there had been an interruption consent and authority to the commissioner to
acquiesced in for more than a year before action make allotments of waste land and exchanges
brought (2 83 Will. 4 , C. 71, 88. 1, 4 ) ; and of tenements belonging to them , with the follow
because there could not be a prescriptive claim to ing proviso :
a profit à prendre for an indefinite class, such as Nevertheless saving and preserving to the copyhold
owners and occupiers : (Gateward 's case, 6 Co. tenants of the said manor all such rights of fishery as
R . 59.) they had hitherto lawfully used , exercised , and enjoyed
Held also, that, assuming that the plaintiff was in the said river Test from Kitcombe Bridge to
formerly, as copyholder, entitled to the rightof
Butcher's Mead , with
for full liberty
the purposes of fishery of and
in , over, uponandtheregress
ingress lands
fishing, this was necessarily a customary right
attached to his copyhold fenement, and was,
or grounds to be allotted or inclosed .
The proprietors (including Charles Penton)
therefore, extinguished by enfranchisement ; while | were made parties to the award for the purpose
any re-grant of the right to the plaintiff by the of further testifying such consent.
lords of themanor in the deed of enfranchisement In pursuance of the power so given , the com .
could obviously have no effect as against the missioner accordingly allotted to Charles Penton,
defendant whose land had been previously in respect of his copyhold estate, certain closes
enfranchised and conreyed, and which comprised ofmeadow and other lands.
the bed of the river usque ad medium filum . By deed, dated the 5th Dec. 1845 , the Dean and
(a) Reported by E. A .SCRATCHLEY,Esq.,Barrister-at-Law 1 Chapter of Winchester and the Copyhold Com
April 12, 1890.) THE LAW TIMES. [Vol. LXII., X . S. - 255
Cuan. Div.] TILBURY v. SILVA. [Chan . Div.
missioners enfranchised the closes of meadow , | denied that the plaintiff was a copyholder of the
amongst other lands, to Charles Penton . manor of Chilbolton , and that he had any title to
By two indentures, dated respectively the maintain this action ,
12th Feb. and 5th June 1848 , Charles Penton The defendant stated that copyholders of the
conveyed to George Wood the said meadows, | manor of Chilbolton had claimed to enjoy, and
excepting and always reserved to Charles Penton, had in fact enjoyed , a right of fishing and a right
his heirs and assigns, the same right of fishing of way such as was alleged in the statement of
in the waters in themanor or parish of Chilbolton claim ; and though the defendant did not admit
which he then had in respect of his lands or such right of fishing or right of way,he had never
hereditaments in themanor or parish so that the interfered with , and did not intend to interfere
same right might not be in any way prejudiced with , the personal enjoyment of such rights on
by the grant and release aforesaid . the part of such copyholders, of whom the plaintiff
George Wood resided on the same property for was not one.
many years, and, during his occupation down to The defendant did not admit that Charles
the year 1884, the plaintiff,as he alleged , and the Penton had at the respective dates of the two
said other persons, and their predecessors in title, indentures of the 12th Feb . and the 5th June
by themselves, their agents, servants, and lessees, 1848 any right of fishing in any waters in the
exercised the right of fishing opposite to and the | manor or parish of Chilbolton , and denied that
right of way over the banks of the meadows in any event the plaintiff was either the heir or
now in the possession of the defendant without the assign of Charles Penton in respect of any
interruption . such right.
This was entirely denied by the defendant. The defendant denied that the plaintiff was
On the 29th April 1884 the property was offered on the 29th April 1884, and now , a “ commoner of
forsale by auction , and on the plan annexed to the Chilbolton," and that he had any title to sue on
particulars for sale a way along the bank of the behalf of the “ commoners of Chilbolton.”
property was marked , and in the particulars it The defendant denied that he had erected gates,
was stated as follows : but admitted that he had erected one gate upon
The commoners of Chijbolton have a right to fish from his property. He alleged that the said gate was
the bank in that portion of the river Test indicated by a unlocked , and might be freely used by anyone
red line on the plan , with right of way over the bridge who had a right of way along the bank in front
shown by a dotted line. of the property adjoining the river.
The property was not sold at the auction, but The defendant did not know who were referred
was purchased of George Wood by the defendant to as the “ said other persons " in the statement
on the 10th May 1884 . of claim , but he admitted that he refused to
The plaintiff also alleged that in 1885 the defen . permit the plaintiff to pass along the bank of
dant erected gatesupon his property, and stopped theproperty for the purpose offishing in the river,
the path along the bank in front of the property and stated that he intended , unless stopped by
adjoining the river, and refused to permit the injunction , to prevent the plaintiff and all other
plaintiff and the said other persons to pass along persons having no right so to do from passing
the bank of the property for the purpose of along the property and from fishing from the
fishing in the river. bank in the river.
The plaintiff also alleged that the defendant The action now came on for trial.
further threatened and intended to keep the gates Renshaw , Q .C ., Stuart Moore, and G . W .
locked , and to prevent the plaintiff and the said Wallace for the plaintiff .
other persons from passing along the property, Marten , Q .C . and Alexander Young for the
and from fishing from the bank in the river. defend ant.
The plaintiff , on behalf of bimself and the
said other persons, claimed : 1. A declara The arguments sufficiently appear from the
tion that the plaintiff and the other owners judgment. The following authorities were referred to in
of the ancient copyhold tenements, and ancient
tenements formerly copyhold , but now en the course of the argumen ' s :
franchised , of the manor of Chilbolton , were Crowther v. Oldfield , 1 Salk. 170, 364 ; 2 Lord Raym .
entitled , as appurtenant to their tenements, 1225 ;
to a right of fishing, to be exercised only by Mellor
Styant vv .. Spateman, 1 Wms.
Staker, 2 Vern . 250 ;Saund. 612 ;
angling with a red , and by using a net called a Johnson v. Barnes,
7C. P . 592, 604 ;
27 L. T. Rep. N . S. 152; L. Rep.
shoe net, in that portion of the river Test which Goodman v.' The Mayor of Saltash , 48 L . T. Rep .
was situate within the parish of Chilbolton , ex N . S . 239 ; 7 App . Cas. 633 ;
tending from a spot called Testcombe Bridge to
Gateward 'sv. case,
& spot called Butcher's Mead, in the said parish , Halliday Phillips,
6 Co.2359 Q; . B . Div. 48 ;
and as incident thereto to a right of way along Parker v. Mitchell, 11 A . & E . 788 ;
the banks of the river from Testcombe Bridge to Lowe v. Carpenter, 6 Ex. 825 ;
Butcher's Mead for the purpose of angling and Hollins v. Verney, 51 L . T. Rep. N . S. 753 ; 13 Q . B .
fishing from the banks. 2. An injunction Div . 304 ;
to restrain the defendant from obstructing the 2 & 3 Will.'4 , c. 71,ds,s. 4 ;
Scriven on Copyhol 6th edit. 284 ;
plaintiff and the other persons on whose 1 Watkins on Copyholds, 4th edit. 452 ;
behalf he sued his and their servants , agents, 1 Roll Abr. tit “ Copyholds."
and lessees, in the exercise and enjoyment of KAY, J. - Some very interesting questions have
the right of fishing and right of way for the been raised in this case, upon which , if I felt
purpose of fishing in and over any portion of more difficulty than I do, I should have thought
the banks of the river Test, in the parish of it right to consider my judgment. But the
Chilbolton . 3. Damages. matter has now occupied some days, and I have
By his statement of defence the defendant I had a good deal of opportunity of thinking over
256 _ Vol. LXII., N . 8.] THE LAW TIMES. (April 12, 1890.
Chan. Div .] TILBURY V. SILVA. [Cuan . Drv.
the various points that have been raised . The i points indicated , namely Kitcombe or Testcombe
plaintiff sues on behalf of himself ” and all other Bridge and Butcher's Mead . I have also the
the owners and occupiers of ancient copyhold evidence of very many persons who have lived
tenements, and ancient tenements formerly copy . in the neighbourhood , some of whom have been
hold but now enfranchised , of the manor of Chil. | the owners of copyhold land within the manor,
bolton in the county of Southampton .” His that they and other copyhold tenants and persons
claim is, that he and the said other persons and who were formerly copyholds tenants, but had
their predecessors in title have been accustomed obtained enfranchisements, had for very many
to enjoy and are entitled to a right of fishing. years - going back to 1823, I think, or something
to be exercised only by angling with a rod and like that - used and enjoyed this right of fishery
by using a net called a " sboe net," in that part between Testcombe Bridge and Butcher's Mead,
of the river Test which is situate within the and also a right of passage for the purpose along
parish of Chilbolton,extending from Testcombe the bank of the river on the Chilbolton side. I
Bridge to a spot called Butcher 's Mead , in the think the proper inference to be derived from
said parish, and as incident thereto to a right of that evidence is, thatthis river was a river which
way along the banks " - the word “ banks " is bounded the waste of this manor, and that the
used , but it should be the “ bank ” merely — “ of boundary of the manor was the medium filum of
the river on the Chilbolton side from Testcombe the river. Everyone agrees that no such right
Bridge to Butcher's Mead , for the purpose of of passage on the bank on the other side, which
angling and fishing from the said bank as appur is in the parish of Whewell, ever existed for
tenant to their said tenements.” The fourth the Chilbolton tenants. Therefore the division
paragraph of the statement of claim alleges that between the manor of Chilbolton and the land on
the plaintiff and the said other persons and his the other side of the river would certaialy be in .
and their predecessors in title have lawfully and ferred to be the medium filum of this river.
as of right exercised and used the said right of Now , it has not been shown that in any grant of
fishing and right of way by themselves, their copyhold this right of fishing was expressly given .
servants, agents, and lessees, for sixty years and It seems to have been claimed as a customary
upwards without interruption until they were right by the tenants of the manor, and pre
interrupted by the defendant as hereinafter sented in the way I have described by thehomage
appears. Now , a claim of that kind gives rise at every manor court. The defendant is a person
to an infinite number of curious questions of who has comparatively recently - some time
ancient law of this country with respect to copy before 1885, I think, or in 1885 — bought a piece
hold tenements, but not many of those questions of land which abuts upon the river near to
need now be considered. The case before me has Testcombe Bridge, and abutting upon part of
been dealt with in this way : It has been proved the river in which this right is claimed . He
that for very many years, extending back, claimsunder a series of deeds, one of which is an
indeed, to 1831 at least (I do not know that it enfranchisement, dated in the year 1845 , which
went further), the homage of this manor were enfranchised this piece of land of which he is
accustomed to present at every yearly manor now the possessor, and other lands within the
court this, which I will take from the present. manor of Chilbolton . I will deal with that by.
ment of 1831. I believe it was always in the and-by. Recently, and it is said by the plaintiff
samewords. “ Wepresentthe regality of hawkiug, in or about the year 1885 (I read from the 13th
hunting , fishing,and fowling to belong to the lords paragraph of the statement of claim ), the defen
of the manor, but the tenants to have the right dant erected gates upon his said property, and
to fish with the angling rod and shew (sic) net stopped the path along the bank in front of the
from Tictom (sic) Bridge to Butcher's Meadow .” said property adjoining the river, and refuses to
Now , the river in that part of it was the boun permit the plaintiff and the said other persons to
dary of this manor. It flowed certainly in part pass along the bank of the said property for the
of its course by land of the manor which was l purpose of fishing in the river. The evidence
waste common . There was an award inclosing a shows that the gates he put up were gates which
good deal of this common land on the 29th Oct. it would not be very easy to climb orer ; that he
1838 , and that award contained the following put them for the purpose of stopping the passage
proviso : “ Nevertheless saving and reserving to 1 of fishermen along his land on the bank of the
the copyhold tenants of the said manor all such river ; and that the plaintiff was effectually
rights of fishery as they have hitherto lawfully stopped, for he never went there at all for the
used , exercised , and enjoyed in the said river purpose of fishing after these gates were put up.
Test from Kitcombe Bridge to Butcher's Mead, | Therefore, the plaintiff has been interrupted in
with full liberty of ingress and regress for the the exercise of his alleged right since, I must
purposes of fishery in , over, and upon the lands take it, the year 1885. The writ in this action
or grounds to be allotted or inclosed .” Bint was issued on the 31st Jan . 1889 — that is, four
although this presentment was made by the years after this interruption, in which, according
homage at every manor court year after year to his own evidence, he acquiesced . Now , so far
for nearly every year since the year 1831, there as this claim relies upon evidence of user, there
is no entry of it on the court-rolls. However, are two difficulties which seem to me quite in .
that evidence of regulation or custom has been surmountable. One is, that there has been an
fortified and assisted by evidence that from time | interruption confessed in the pleadings and
to time upon sales of property of this kind - shown by the evidence to have been acquiesced
property within this manor, property which was in by the actual plaintiff for four years before the
formerly copyhold but had been enfranchised - action was instituted . Therefore, under the 4th
it was customary to treat the land within the section of the Prescription Act, evidence of user
manor as having this right of fishing, with since the year 1829, interrupted four years before
passage along the bank of the river between the action brought, and that interruption acqaiesced
Chan. Div.] TILBURY V. SILVA. [Chan. Div.
in , wonld not prove a prescriptive right. To ! the 5th Dec. 1845, by which the lords of the
prove a prescriptive right yon must go back very | manor, reciting the previous copyhold grants of
much more indeed . You could not avail yourself this property, with the consent of the Copyhold
of the Act. And here the only attempt to prove Commissioners, enfranchised , granted , and re
a prescriptive right is to prove a prescriptive leased to one Charles Penton, in fee, all and
right under the Act by evidence of user for that singular the lands and hereditaments described
period of time. That seems to me of itself quite in the schedule and delineated on the plan
fatalto the claim of right by prescription. There indorsed on the second skin of the deed , situate
is another equally difficult point for the plaintiff in the parish of Chilbolton within the said manor,
to get over, which is this — that he comes here and were the lands, hereditaments, and premises ,
claiming this right not merely on behalf of or part and parcel of the lands, heredita
himself, but on behalf of himself as a member of a ments, and premises, comprised in and held by
class which he describes as “ owners and occu the thereinbefore recited grants or some or one
piers of ancient copyhold tenements and ancient of them (that was the copyhold grants), together
tenements formerly copyhold but now enfran with all rights of common and all and singular
chised of the manor of Chilbolton.” “ Owners other rights, members , and appurtenances to the
and occupiers ” is a large and indefinite class, said hereditaments and premises thereby enfran
and ever since Gateward 's case (6 Co. Rep . 59) it chised , or any part or parts thereof, belonging or
has been held that you cannot claim by pre in anywise appertaining, and all ways, paths,
scription a right like this, which is a profit à easements, anil privileges whatsoerer to the said
prendre, on behalf of a large indefinite class like lands, hereditaments, and premises belonging or
that. Such a claim cannot be maintained by appertaining, and all the estate, right, title,
prescription . Of course reference has been interest, claim , and demand whatsoever of the
made to the exception introduced by the case said dean and chapter (the Dean and Chapter of
of Goodman 7 . The Mayor of Saltash (48 L . T. Winchester I think it was then who were the
Rep N . S . 391 ; 7 App . Cas. 633). That was a lords of themanor), in , to, out of, or upon the said
case in which certain persons claimed against a | hereditaments and premises and every part there
corporation a right of dredging for oysters, and of, with their appurtenances, to have and to hold
there the usage having been shown to have all and singular the said lands, hereditaments,
existed as of right and without interruption in and premises thereby enfranchised or intended
such a manner as would justify a claim by pre so to be, with their appurtenances, unto the said
scription , the court feeling themselves bound to Charles Penton , his heirs and assigns for ever,
refer that usage to some legal origin, invented a to the intent that the copyhold tenure of the
most ingenious legal origin by suppcsing a grant | same lands, hereditaments, and premises might
to a corporation in trust for the particular be extinguished and the said quit rents of
persons who were burgesses, I think , of that | 161. 38. 8d ., and cert money of 1s. 9d . and all
borough. In that way they got over the diffi. other rents,and all fines,heriots, rights of timber,
culty which Gateward': ca-se (ubisup.) introduced , rights of soil, and the mines and minerals, or
namely, that such a right could not be claimed quarries under the said lands, hereditaments,
by prescription . But here I have nothing of the and premises thereby enfranchised, rights,
kind. There is no possibility of inventing such liberties, and privileges of hunting, hawking,
& mode of escaping from the difficulty in this fowling and of chasing and killing game,
case as was invented in the case of Goodman v . rights of fishing, and all suits, fealty,
The Mayor of Saltash (ubi sup.). Here there is burthens, services, customs, and other mano
no corporation who could be trustee for this rial rights incident thereto or by custom ,
indefinite class of the right claimed . Therefore prescription , or otherwise howsoever, to be paid ,
it does not seem to me to come within the excep rendered , or performed to the lords of the said
tion wbich that authority has introduced . It manor of Chilbolton for the time being, for or
seems to me that, for either of these reasons, a in respect of the samepremises, or any of them ,
claim by prescription simply could not possibly might be absolutely released , extinguished, and
be maintained in this case. But then , supposing discharged to the use of the said Charles Penton ,
that difficulty to be out of the way, could there his heirs and assigns for ever. I turn to the
be any other claim maintained here ? Of course schedule. The schedule describes the property
any other claim must depend upon an actual as Nos. 34, 39, 40, and others. I need not trouble
grant. Now , I assume for the moment that the myself except with 34, 39, and 40. Those are
plaintiff has such an actual grant, which I am parts of the land which abut upon the river .
not at all satisfied of. However, I will assume Now there is no boundary shown on the river
that he has. The plaintiff is now a freeholder. | side at all. The land runs down to the river.
He has no copyhold at all. He is claiming this The question is, what would pass by a grant of
in respect of tenements which were copyhold , I that kind ? As I have said , it is plain to me that
but have been enfranchised and are now freehold . the only possible inference is, that the soil ad
He now admits that none of those enfranchise- medium filum of the river belonged to the lord of
ments dates earlier than some time in 1883, I the manor. Would that soil pass or not by such
think . I will assume that those enfranchisements a grant as this ? It is a law of conveyancing
profess to grant a right of fishing in the river that, primâ facie, where a man grants land on the
Test between Testcombe Bridge and Butcher's bank of a river, having himself the soil ad medium
Mead, and a right of walking along the Chil- filum , without any wordsdescribing the boundary
bolton bank of the river for the purpose of that to be the medium filum , the soil ad medium filum
fishing, and a right of fishing with a rod | passes by the grant. That is the general law .
or with a shoe net. How can that give a Is there anything in this case to restrict that ?
right against the defendant? The defendant It is said that there is because the grant in the
claimsunder an enfranchisement which is dated words which I have read, after describing the
258 - Vol. LXII., N . 8 .) THE LAW TIMES. [April 12 , 1890 .
Chan. Div.] TILBURY v. Silva. [Chax. Div.
parcels, says : “ and are (that is which are) the medium filum on the Chilbolton side, and just as
lands comprised in the copyhold grant," and it is the copyhold tenant by custom had a right of
said that, when there is a copyhold grant of land common upon the waste of the common on
on the bank of a river the soil of which ad | the Chilbolton side of the river, so by custom
medium filum belongs to the lord, the land under | he may possibly have had a right of fishing.
the water ad medium filum will not pass under a I do not say whether he had or not. It
copyhold grant. I deny that proposition simply . | is not material for me to decide that point.
There is no authority deciding that. It is not a But I will assume it. It seems to me, if he
law which relates to freehold property only . It had it, he had it as a customary right. Now
is a law by which you ascertain the parcel of a I have been extremely interested by a most in
grant. It does not matter whether the land is genious argument by Mr. Stuart Moore, by which
copyhold, freehold, or anything else you like ; it he has attempted to make out that this was not a
may be leasehold. If it be bounded by a river, customnary right at all, but was a right which
and the grantor has the soil ad medium filum of must be referred to someexpress grantwhich has
the river, you presume, in the absence of evidence not been found , and like a right of common upon
to the contrary , that the soil ad medium filum of another waste which did not belong to the manor.
the river passes. Of course, anything may be The argument, if I rightly appreciate it, was this :
argued , and it is ingenious enough to raise the that kind of right would not necessarily be extin
point and say that that no doubt is the case as to guished by the enfranchisement of the copyhold,
freehold land, but it does not apply to copyhold . because it would be like a right of way to the
I ask for authority , and, in the absence of | copyhold itself. It would be a thing attached not
authority, I say it does apply to copyhold just as to the estate of the copyholder, but to the land
much as to freehold . Therefore the words of this which he held . I am afraid I do not do justice
grant are not to my mind restricted by the to the very ingenious argument I have listened
description in the parcels, but the property is the to, but that was to my mind the effect of it.
property comprised in the copybold grant. I | Therefore it is said you must take this particular
should infer that the copyhold grant passes the right of fishery as being a right not attached to
land ad medium filum just as a freehold grant . the estate of the copyholder, in which case it
Therefore that point will not assist the plaintiff. would have been extinguished by the enfranchise
I bold that the effect of this grant was to pass mentwhich was made; but you must take it as a
these plots of land on the bank of the river and right attached to that particular land, in which
the soil of the river ad medium filum imme. case the enfranchisement it is argued would not
diately opposite these plots of land granted ; so extinguish it. I am sorry to say I cannot adopt
that the boundary of these riparian plots was the that, because it seems to methat, if I did , I must
medium filum of the river there. Then how find in every grant of this copyhold land which
claims the plaintiff this right against the defen was only for lives a grant of the right; and there
dant? After this grant the lord of the manor has not been shown tomea single grant of the copy
could maintain no such right. The lord of the hold land which contained a grant of the right.
manor could not come upon his land to fish in the There is an answer to the argument at once. I
river there, nor could he claim any right of fish - have got the grants. I have seen the grants of
ing in the river. He has given up expressly all the copyhold land. Some of them have been
his rights of fishing whatever on this land, and shown to me as I understand , and none of them
it would be to fish on the land if he dropped a contains a grant of the right of fishing. The
line into the water opposite this land ad medium homage did not claim it as having been granted
filum of the river. That would he fishing on his to the tenants ; they claimed it as a right, and,
land wherever he stood . If he did it from a seeing it was not the waste of another manor, but
balloon it would be all the same. It would be part of this manor, their only possibility of claim
fishing on this land, because the land, as I have | ing it was as a customary right. It is a profil a
said , includes the soil under the river ad medium prendre, within the bounds of this very manor in
filum . Therefore the lord could not do it. Now , which they were copyholders, and which they as
I will assume for the purpose of the argument copyhold tenants claimed by the presentment of
that the plaintiff had the right as a copyholder the homage at every court. That is a custom or
at the time when this grant was made. Of nothing,because, if it were a grant, they need not
course, the lord of the manor could not by have claimed it in that way. The very fact of
this enfranchisement deprive of his right a their claiming it so at every court of the manor
copyholder who had the right of fishing and shows that they had not got, as in fact they
of passing along the bank to fish. But, after had not got, an actual grant entitling them to it,
this enfranchisement, and some years after , and that they were claiming it just like a right
the predecessors in title of the plaintiff took of common by custom . So that I do not admit
an enfranchisement of the lord of his copy that upon the enfranchisement of any one of
hold tenement in respect of which he is now these copyhold tenements the right would remain.
claiming his right. It is beyond question that It would be like any other customary right
an enfranchisement by itself would destroy totally attached to the estate of the copyholder ; it
the copyhold interest, with all the customary would not remain ; it would not exist after the
rights attached to it , and certainly the plaintiff enfranchisement unless it was re-granted. Of
has pleaded this as a customary right. I cannot course it might have been re-granted by the free
understand how he could have it in respect of his holder upon making an enfranchisement. Then
copyhold tenement other than as a customary the fataldifficulty in the way of the plaintiff is ,
right. It is analogous to a right of common on that every one of his enfranchisements was after
the waste of a manor. I take it this river was the date of that in 1845 ; and the lord had lost
probably a river running along the waste of the the right to grant as against this land enfran
manor, and therefore waste of the manor ad i chised in 1845, and the river opposite to this
Q.B. Div.] KNILL v. TOWSE . [ Q .B. Div.
land any right of fishing, or any right of way the case may be, he being on the list for voting in
whatever. Therefore, upon that part of the case . | respect of another qualification .
the plaintiff fails altogether, and I am bound to The Municipal Corporations Act 1882 (45 & 46
say that the case has not been made out in any Vict. c. 50) provides as follows:
way, and the action must be dismissed with costs, Sect. 44. (1) Where the whole or part of the area of
which will include the costs of the motion. a borough is co-extensive with or included in the area of
Solicitors for the plaintiff, E . F. and H . a parliamentary borough , the lists of burgesses are to
Landon . be made out and revised , and claims and objections
relating thereto are to be made, in accordance with the
Solicitors for the defendant, Kearsey, Hawes, provisions of the Parliamentary and Municipal Regis
tration Act 1878 .
and Walsh . Sect. 45. (6) A burgess shall not be enrolled in more
than one ward roll.
QUEEN 'S BENCH DIVISION . Sect. 51. (2) No person shall subscribe a nomination
paper in or for more than one ward , or vote in more than
Nov. 26, 27, and Dec. 18 , 1889. one ward .
(Before Lord COLERIDGE, C.J. and Mathew , J.) Sect. 4 , sub - sect . (9), cf the Registration Act
KNILL v. Towse . (a ) 1885 (48 Vict. c. 15 ) provides that
County council - Election of councillors — Qualifi Sub-sect. 14 of sect. 28 of the Parliamentary and
cations in two electoral divisions of one adminis Municipal Registration Act 1878 shall not apply to par
trative county - Right to vote liamentary counties, and in substitution for it the
In elections of county councillorsin both divisions.
under the Local following provisions shall have effect :
(a ) Where the name of a person appears to be entered
Government Act 1888 , an elector, although pos more than once as a parliamentary voter on the lists of
sessing a qualification in two electoral divisions voters for the same parliamentary county , the revising
of the same administrative county, and duly barrister shall inquire whether such entries relate to the
registered under the County Electors Act 1888 in same person, and, on proof that such entries relate to
the same person , shall retain one entry and erase the
both, is not entitled to vote in more than one others.
division . The County Electors Act 1888 (51 Vict. c. 10)
APPEAL from the City of London Court. provides as follows :
At an electioncounty
of county councillors Sect. 7. (1) The clerk of the peace of every county shall
administrative of London , whichfortook
the make up a register of all persons registered as burgesses
place in Jan . 1889, the defendant was the pre or county electors in the county , both for the county
siding officer at one of the polling stations in the and for each electoral division into which the county is
city of London electoral division of the same divided for the purpose of election of the county
authority.
county. (2) The Registration of Electors Acts, and sects. 45,
The plaintiff possessed a qualification in respect 48, and 71 of theMunicipal Corporations Act 1882 shall
apply, for the purposes of this section , with the substi
of a residence in the Greenwich electoraldivision , tution of clerk of the peace for town clerk , and of
and also a qualification in respect of business county register and division register for burgess roll
premises in the City electoral division of the and ward roll respectively, and of electoral division for
county of London , and, as was admitted by the ward , and of county fund for borough fund.
defendant, was duly registered as a county (4) Provided that nothing in this section shall prevent
elector for the said county in the registers both a county elector from being registered in more than one
of the City of London division and of the Green division register.
wich division . The plaintiff demanded of the (5 ) Where in pursuance of sect. 4 of the Registration
defendant a ballot paper to enable him to vote at Act 1885 the revising barrister has power to erase the
name of any person as a parliamentary voter from
the election of councillors for the City of London division one of the occupiers list, such barrister, in
division , at the same time informing him that lieu of erasing the name, shall place an asterisk or other
nark against the name, and . in printing such lists , the
he had already voted at the election of councillors name shall be numbered consecutively with the other
for theGreenwich division. On hearing that the names, but an asterisk or other mark shall be printed
plaintiff had already voted , the defendant against the name, and a person against whose name
refused to supply him with a ballot paper, on the such asterisk or other mark is placed shall not be
ground that he was not entitled to vote in more entitled to vote in respect of such entry at a parliamen
than one electoral division of the county . The tary election, but shall have the same right of voting at
plaintiff thereupon brought an action in the City an election of a county authority as he would have if
of London Court to recover damages for such no such
The
mark were placed against his name.
Local
refusal. The judge held that the deferdant's c. 41) providesGovernment
as follows :
Act 1888 (51 & 52 Vict.
refusal was right, and gave judgment accord Sect. 2. (1) The council of a county and the members
ingly . From that decision the plaintiff appealed . thereof shall be constituted and elected and conduct
By sect. 28 , sub-sect. (14 ),of the Parliamentary their proceedings in like manner, and be in the like
and Municipal Registration Act 1878 (41 & 42 position in all respects, as the council of a borough
Vict. c. 26 ) it is provided that divided into wards, subject nevertheless to the pro
Where the name of any person appears to be entered visions of this Act, and in particular to the following
more than once as a parliamentary voter on the lists of |1 provisions ; that is to say :
voters for the same parliamentary borongh , or more (2) As respects the alderman or councillors
than once as a burgess on the burgess lists for the (e ) The divisions of the county for the purpose of the
election of county councillors shall be called electoral
same municipal borough, the revising barrister shall divisions and not wards.
inquire whether such entries relate to the same person , As respects the electors ofthe county councillors
and , on proof being made to him that such entries relate the(4 )persons entitled to vote at their election shall be,
to the same person , shall retain one of the entries for in a borough, theburgesses enrolled in pursuance of the
voting , and place against the other or others a note to
the effect that the person is not entitled to vote in Municipal Corporations Act 1882,and the
same, and elsewhere the persons Acts amending
respect of the qualification therein contained for the the registered as
parliamentary borough or for the municipal borough, as county Sect.
electors under the County Electors Äct 1888.
75. For the purpose of the provisions of this
(a ) Reported by ALFRED H . LEFROY, Esq., Barrister-at-Law . I Act with respect to county councils . . . the follow
260 _ Vol. LXII., N . S.) THE LAW TIMES . [April 12, 1890,
Q .B . Div.] KNILL v, Towse. [ Q .B . Div.
ing portions of the Municipal Corporations Act 1882, 1 is said that, by virtue of sect. 2, sub-sect. (1), and
namely . . . part 3 . . . shall, so far as the same sub-sect. (2) (e),of the LocalGovernment Act 1888,
are unrepealed and are consistent with the provisions
and sect. 7 , sub -sect. (2 ), of the County Electors
of this Act, apply as if they were herein re-enacted
. . . in such terms and with such modifications as Act 1888, the electoral division of a county is
are necessary to make them applicable to the said treated for all purposes as equivalent to a ward ,
councils. and that consequently no person may vote in
Finlay, Q .C . (Russell Griffiths with him ) for more than one electoral division of a county.
the plaintiff. — The Legislature presumably | But when part 3 of the Municipal Corporations
intended to place both classes of county elections, Act 1882 is looked at as a whole, it will be seen
those for members for the parliamentary county that sect. 51, sub-sect. (2), providing that no
and those for councillors for the administrative person shall vote in more than one ward , is
county, on the same footing ; and as for the pur. | merely in aid of the provision contained in
poses of parliamentary elections, where counties sect. 45, sub-sect. (6 ), of that Act, that “ A burgess
are split up into divisions, each division sending shall not be enrolled in more than one ward roll."
a member to Parliament, a man may be regis No burgess could properly be on the roll of more
tered and may vote in each of such divisions, so than one ward , and sect. 51, sub-sect. (2), ismerely
it was intended that a voter should equally have to provide for a case in which a voter's name had
a right to be registered and vote in more than by mistake been improperly entered on the rolls
one electoral division for the purposes of elections of two wards. But an elector is entitled to be
for councillors for the administrative county registered on more than one division register of
under the Local Government Act 1888. By a county. Therefore sect. 51, sub -sect. (2), has
sect. 2, sub-sect. (4 ) of that Act the persons no application to county council elections. If it
entitled to vote at the election of county coun - did apply it would be absolutely inconsistentwith
cillors elsewhere than in a borough are defined to sect. 2 , sub-sect. (4 ), of the Local Government
be “ the persons registered as county electors | Act 1888 , which in terms enacts that every
under the County Electors Act 1888 ." Here the 1 person shall be entitled to vote who is on the
plaintiff was admittedly a person registered as a register under the County Electors Act 1888 ,and
county elector for the City of London division , it was only in so far as it was not inconsistent
under that Act. He was therefore entitled to i with the provisions of that Act that part 3 of
vote for that division , and none the less so because the Municipal Corporations Act 1882 was incor
he had already voted for the Greenwich division . porated at all.
Sect. 7, sub-sect. (1), of the County Electors Act * R . Vaughan Wiliiams, Q. C. (J. V . Austin with
1888 (51 Vict. c. 10) provides for the making up him ) for the defendant. It was part of the
of a register of all persons registered as burgesses scheme of Parliament in the County Electors and
or county electors in the county, both for the Local Government Acts of 1888 to deal in the
county and for each electoral division into which same manner with all administrative elections,
the county is divided for the purpose of election whether the administrative area was a borough
of the county authority , and by sub -sect. (4 ) it is or a county . The electoral divisions of a county
provided that “ nothing in this section shall pre are to all intents and purposes wards of the
vent a county elector from being registered in county. They differ from wards only in name.
more than one division register.” It cannot be Sect. 7 of the County Electors Act 1888, which
supposed that the Legislature contemplated an deals with the making up of the county register,
elector having the right to be on more than one provides by sub -sect. (2) that the Registration of
division register , without also contemplating his Electors Acts and sects. 45, 49, and 71 of the
ENTREP
having the right to vote for more than one Municipal Corporations Act 1882 shall apply, for
division . Sub- sect. (5 ) of the same section goes the purposes of that section , with “ the substitu
on to dealwith the duly of the revising barrister, tion of clerk of the peace for town clerk , and of
and provides that where a voter's name is entered county register and division register for burgess
more than once on the lists,therevising barrister, roll and ward roll respectively , and of electoral
in lieu of erasing the name, is to place an asterisk division for ward .” And it was provided by
against all the entries of such name except one ; sect. 2 of the Local Government Act 1888 that
but, although such asterisk is to prevent such “ the council of a county and the members thereof
voter from voting in respect of the entries so shall be constituted and elected and conduct their
marked at a parliamentary election , it is expressly proceedings in like manner, and be in the like
provided that he “ shall have the same right of position in all respects, as the council of a
voting at an election of a county authority as he borough divided into wards," subject to the pro
would have if no such mark were placed against visions of this Act, amongst others of sub
his name.” That sub-section means that the sect. (2) (e), which enacts that “ the divisions of
entry is not to be conclusive. The voter may be the county for the purpose of the election of
objected to ; hemay be disqualified in some way county councillors shall be called electoral
or another ; but he is in respect of that entry to divisions, and not wards." Then , inasmuch as
have the right of voting at the election ofa by sect, 51, sub -sect. (2), of the Municipal Cor
county authority just as if no such mark had porations Act 1882 (which is incorporated by
been placed against his name. The defendant sect. 75 of the Local Government Act 1888 ) no
relies on sect. 75 of the Local Government Act person shall vote in more than one ward , it
1888 ,which incorporates, so far as the same is follows that for the purpose of the election of
consistent with the provisions of the Act, county councillors no person may vote in more
part 3 of the Municipal Corporations Act 1882 than one electoral division . This is in no way
745 & 46 Vict. c. 50 ), by sect. 51, sub -sect. (2), of inconsistentwith sect. 2, sub-sect. (4 ),of the Local
which it is provided that “ No person shall sub . Government Act 1888 , for there is no inconsis
scribe a nomination paper in or for more than one tency in saying that the persons on the register
ward , or vote in more than one ward ." Then it I shall be entitled to vote, and in saying at the same
April 12, 1890.) THE LAW TIMES. (Vol. LXII., N . . - 261
Q.B. Div .) KNILL v. TowSE. [ Q .B . Div.
time that they shall only exercise their right the burgess lists are to be made out and revised
subject to a certain qualification , namely, that in accordance with the provisions of the Regis
they must not vote twice. Sub -sect. (4 ) of sect. 7 tration Act 1878. Reading, then, “ county
of the County Electors Act 1888 was probably register ” for “ burgess list," the note system of
inserted for one or other of two reasons. It may the Act of 1878 is made applicable to the county
have been intended to deal with the district register for the purposes of the election of
councils referred to in sub -sect. (3 ), the creation of county councillors. If this were not so, then if
which was contemplated at the time of the passing a voter's name appeared a dozen times in the
of that Act, but was subsequently abandoned . same division register (which might easily happen
But the more probable reason is that it was if he owned land in a dozen parishes in the
intended to act as an instruction to the clerk of division , the lists being in the first instance made
the peace of the county as to the mode of the out by the parochial officers) there would be no
making up of the county registers. Under means of neutralising the repeated entries ; and ,
sub -sect. (1) he has to make up two sets of lists of if the contention of the other side be correct, the
electors ; he has to make up an aggregate list for roter would have a right to vote twelve times
the county, and another list for each electoral for the same division. But this can never have
division , and it was thought that possibly it been intended . The proviso at the end of
might lead to mistakes if the clerk of the peace sub-sect. (5 ) of sect. 7 of the County Electors Act
were to assume the duty of dealing with the 1888, that the voter “ shall have the same right
duplicate entries,and so sub -sect. (4 ) tells him to of voting at an election of a county authority as
put the name on both lists. The duty of dealing he would have if no such mark were placed
with duplicate entries is to be left to the revising against his name ” does not define what that
barrister, whose duty in respect of them is partly right is. It is a purely negative provision , and
pointed out by sub -sect. (5). But in order to does not expressly confer a right of voting for
make that sub-section clear, it is necessary to different electoral divisions in the same county.
look at the earlier Registration Acts, as that Finlay , Q .C. in reply.
sub-section only deals with one half of the ques. Cur. adv. vult.
tion — that is to say, the parliamentary county Dec. 18. - The judgment of the court (Lord
franchise and does not purport to deal with the cola
| Coleridge, C .J . and Mathew , J.) was delivered by
administrative county franchise. By the Par
liamentary and Municipal Registration Act 1878 Mathew , J.- This was an action brought to try
(41 & 42 Vict. c. 26 ), which applied only to the question whether the plaintiff was entitled to
boroughs, it was provided by sect. 28 ,sub-sect. (14 ), vote at the same election in two electoral
that where a person's nameappeared more than divisions of the administrative county of London.
once, either on the list of parliamentary voters The plaintiff's vote had been refused by the
or on the list of burgesses of a borough , the defendant as presiding officer for the City division ,
revising barrister was to retain one entry for on the ground that the plaintiff had already voted
voting , and place against the others a note to the | in the Greenwich electoral division , and the
effect that such person was not entitled to vote | plaintiff sued the defendant in the City of London
in respect of them . Some process of that kind Court to recover damages for rejecting the
was necessary in those boroughs which were both plaintiff's vote. The case raised the question
parliamentary and municipal, for the reason that whether in electionsfor county councils an elector
simple erasure of the duplicate entries might having a qualification in more than one division
have had the effect of disfranchising the voter can vote in each of such divisions, or can vote
in respect of one of his franchises. On the other only once. It was admitted that the plaintiff was
hand , by the Registration Act 1885 (48 Vict. a duly registered elector for the City and for the
c. 15), which applied only to counties, it was Greenwich electoral division ; that he had voted
provided by sect . 4, sub -sect. (9 ), that the dupli in the latter division before hedemanded a voting
cate entries should not be marked with a note, paper and proposed to vote in the City ; and that
but should be erased , there being at that time his vote had been on that ground rejected by the
only one franchise in counties, namely, the par. defendant in the City electoral division . The
liamentary franchise . But when in 1888 there case came on for trial before the judge of the
came to be contemplated the creation of an City of London Court, who gave judgment for
administrative franchise in counties, the erasure the defendant, and against this judgment the
system was no longer applicable. Accordingly plaintiff appealed . The argument for the plaintiff
sect. 7, sub-sect. (5 ), of the County Electors Act may be stated thus : The Local Government Act
1888 proceeded to deal, so far as the parliamen 1888 , sect. 2, sub-sect. (4), provides that, as
tary franchise was concerned , with ” duplicate respects the election of county councillors, the
entries by means of the asterisk system there persons entitled to vote (elsewhere than in a
mentioned . The reason why that sub-section was borough) shall be the persons registered as county
confined in its operation to the parliamentary electors under the County Electors Act 1888 .
franchise probably was that the Local Govern The plaintiff was admitted to be entitled to be
ment Act 1888 , creating county councils, had not placed on the roll of electors for both divisions
then passed , and the draughtsman , fearing that under sect . 7, sub-sect. (1) of that Act. By sub
it might be modified in the course of its passage, sect. (4 ) of sect. 7 , nothing in that section is to
thought it more prudent to wait until it had prevent a county elector from being registered
passed, and then deal in the Act itself, with the in more than one division register. And by
repetition of voters' names on the lists so far as sub-sect. (5 ), which is intended to secure that a
they affected the administrative franchise ; and parliamentary voter shall not vote at an election
accordingly , by sect. 75 of the LocalGovernment more than once in respect of different qualifica
Act 1888, part 3 of the Municipal Corporation tions in the same parliamentary division , it is
Act 1882 is incorporated , by sect. 44 of which provided that the voter shall have the sameright
262 - Vol. LXII., N . S .] THE LAW TIMES. [April 12, 1890.
Q .B . Div.] KNILL v . TowSE . [ Q .B . Div.
of voting at an election of a county authority as i entitled to have his name placed on the list of
if the section did not apply. The case was there. | voters for each electoraldivision . It was insisted
fore said to be perfectly clear when the Local that the only object of being registered is to
Government Act and the County Electors Act secure a right to vote, and that, if the right was
were read together, and the argument that under once conferred , it was unreasonable to suppose
sect. 75 of the Local Government Act 1888 that the Legislature would forthwith enact that
statutes were incorporated which might lead to the right should be taken away. It was said to
a different conclusion , was met by reference to be almost disrespectful to the Legislature to
the express termsof that section , that no enact suppose that in Acts of Parliament passed in the
ment is to be incorporated inconsistent with the same session , and apparently intended to be read
provisions of the Local Government Act. On the together, there could be found one set of pro
other hand , the defendant's counsel contended visions that gave and another that took away the
that the County Electors Act, when carefully right of the elector to vote in different divisions.
examined , disclosed no intention that the elector | But the argument rests upon what appears to us
for the county council was to be entitled to vote to be the erroneous view that the County Electors
in each electoral division , as he clearly would Act and the Local Government Act are to be
have been if he were duly qualified as a voter in treated as if they were one statute. The County
different parliamentary divisions. Sect. 7, sub - Electors Act came into operation some months
sect. (5 ), it was said applied to parliamentary before the LocalGovernment Act, and at a time
electors only , and the clause at the end of the when the exact form which the later Act was to
section , which preserved any right of voting at take had not been decided upon . We consider
an election of a county authority , did not define that the intention of the Legislature must be
or specify what that right was. The object of sought from the later Act, and that it is impos
sub -sect. (5 ), it was urged , was not to confer a sible to give effect to its various provisions on
double franchise on county council electors, but this subject without holding that, for the purpose
was to prevent the loss of a vote at an election of voting,the electoral division of theadministra
for the county authority, as would be the result tive council is to be regarded as if it were a ward
if, instead of an asterisk , there was an erasure of in a borough . It follows that the voter has only
the voter's name in accordance with the Regis- one vote at an election for an administrative
tration Act 1885 , sect. 4 , sub-sect. (9) (a ). It was county council. The judgment of the court below
pointed out that by sect. 7 of the County Electors must therefore be affirmed with costs. We have
Act 1888,sub-sect. (2),the Registration of Electors arrived at this conclusion with some difficulty,
Acts and sects. 45, 48 , and 71 of the Municipal though without doubt. The difficulty has arisen
Corporations Act 1892 are to apply for the pur- not from anything inherent in the subject itself,
poses of the section , with the substitution of which is simple enough , and might be quite
county register and division register for burgess simply treated, but from the mode of legislation
roll and ward roll respectively, and of electoral now usual in these matters. Sometimes whole
division for ward . Then by sect. 75 of the Local Acts of Parliament ; sometimes groups of clauses
Government Act 1888 portions of the Municipal of Acts of Parliament, entirely or partially,
Corporations Act are incorporated , and among sometimes portions of clauses are incorporated
them is the 51st section, which provides that no into later Acts, so that the interpreter has to
person shall vote in more than one ward ,and by keep under his eye, or, if he can , to bear in
the Local Government Act 1888 , sect. 2 , it is pro his mind, large masses of bygone,and not always
vided that the council of a county and the consistent, legislation in order to gather the
members thereof shallbe constituted and elected meaning of recent legislation . There is very
in likemanner and in like position in all respects often the further provision that these earlier
as the council of a borough divided into wards, statutes are incorporated only so far as they are
but subject to the provision - sub-sect. (2) (e) not inconsistent with the statute into which they
- that the divisions shall be called electoral are incorporated ; so that you have first to ascer
divisions, and not wards. This provision , it was tain the meaning of a statute by reference to
said , was the key to the true construction of the other statutes, and then to ascertain whether the
statute, and showed a clear intention that under earlier Acts qualify only or absolutely contradict
sect. 75, sect .51, sub-sect. (2), and sect. 59 of the the later ones — a task sometimes of great diffi
Municipal Corporations Act 1882 should be incor culty , always of great labour- a difficulty and
porated with the LocalGovernment Act. If any labour, generally speaking, wholly unnecessary.
provision of the County Electors Act was incon . It has, indeed , been suggested that to legislate in
sistent, it was pointed out that it was repealed this fashion - keeping Parliament, in truth , in
by sect. 126 . It followed that the right of voting ignorance of what it is about- is the only way in
in divisions in administrative counties was to be which at the present day legislation is possible.
dealt with as in wards in municipal elections, for We know not whether the suggestion is correct ;
which only one vote is allowed . We are of what we do know is that this procedure makes
opinion that the argument for the defendantmust the interpretation of modern Acts of Parliament
prevail, and that the judgment for tbe defen a very difficult,and sometimesa doubtful matter.
dant must be affirmed . We cannot adopt the We, the judges, have perhaps the least cause to
view that the clauses of the Municipal Corpora - | complain . We sit here for the purpose, among
tions Act are inconsistent with the provisions of other things, of interpreting Acts of Parliament,
the principal Act with which they are incor and we bring, or ought to bring, to our task
porated . Those sections seem to us in harmony trained and experienced intellects. But in prac
with sect. 2 of the statute. We were much pressed tical matters of everyday concern, such as the
with the argument for the plaintiff that the right possession and exercise of the franchise, it is of
to vote must follow the express provision of the the last importance that the law conferring it,
County Electors Act, that the plaintiff was I and the rules which govern its exercise, shonld
April 12, 1890. ) THE LAW TIMES. [Vol. LXII., N. 8.- 263
IN BANK.] Re LowE; Ex parte LOWE. [IN BANK.
be easily comprehensible by the mass of the ordi. | been founded . If you take away Messrs. Hayes
nary voters. Weare well aware that protest as and Co.'s debt, thatW reduces the petitioning credi
to past legislation is unavailing ; but for the tors'debts to below 50 501.1.
future to draw attention to a plain evil may H . Reed for the respondent. -- My point is this :
perhaps be the first step towards its remedy. Where there are several creditors existing who
Appeal dismissed. join together for the purpose of making up their
Solicitor for the plaintiff, The City Solicitor. debts to 501., is one of them bound to accept a
Solicitors for the defendant, Lowless and Co. tender of his debt when he has knowledge of an
a vailable act of bankruptcy, though no petition
has been presented ? If a petition were to be
presented in three months, the creditor who
QUEEN 'S BENCH DIVISION , IN received the money would have to refund it.
BANKRUPTCY. There is no precise authority on the point, but
Wednesday, Feb. 12. there is authority for the proposition that where
(Before Cave and Smith, JJ.) a petition has been presented the court will not
compel a creditor to take his money. Sometimes
Re LOWE; Ex parte LowE.(a) the court might say there are no creditors ; we
Bankruptcy - Joinder of debts to found petition will not make a receiving order :
Knowledge by creditor of act of banloruptcy Ex parte Boss ; Re Whalley , 30 L . T . Rep. N . S . 474 ;
Tender of debt to creditor - Refusal — Bank L . Rep . 18 Eq. 375 ;
ruptcy Act 1883 (46 & 47 Vict. c. 52). Re Brigstocke; Ex parte Brigstocke, 35 L . T. Rep .
Two creditors with debts of 251. each joined to N . S. 831 ; 4 Ch. Div. 348.
gether in order to present a petition against In Mann v. Shepherd (6 T. R . 79) it was held that
a debtor, who had committed an act of bank . where a creditor to the amount of 1121. previously
ruptcy ofwhich they had knowledge. The debtor to the bankruptcy received 501. after notice of
tendered to one of the creditors the amount of his an act of bankruptcy,hewasnot precluded thereby
debt which was refused , a petition was pre from suing out a commission. It would be an
sented, and a receiving ordermade. The debtor extraordinary state of things if a creditor who
appealed . knew that an act of bankruptcy had been com
Held , on appeal (dismissing the appeal), that the mitted were compelled to accept payment of his
creditor was right in refusing the tender after debt though he is quite certain another creditor
knowledge of the act of bankruptcy , and that the will present a petition next day. It is quite
receiving order must stand. obvious that what the debtor wanted to do was
just to pay enough off of his debts to prerent a
This was an appeal from the decision of the judge petition
of the Nottinghamshire County Court. . He paid off Clarke and so prevents the
Prior to Oct. 1888 the debtor had traded as a first petition , and he tries the same plan with the
salesman in Nottinghamshire. On the 23rd Jan . second.
1889 judgment was signed against the debtor for Hextall in reply.- In the case cited of Ex parte
201. 78. by Messrs. Hayes and Co., but no execu Bo88; Re Whalley, a petition had been served ;
tion was issued . On the 8th March 1889 a bank and Re Brigstocke ; Ex parte Brigstocke, can also
ruptcy notice was issued and served upon the be distinguished.
debtor for a debt of 91. 98. by Messrs. Cullen They also referred to
and Co., which the debtor did not comply ReMcHenry ; Ex parte McHenry, 48 L. T. Rep. N . S .
with . On the 23rd April a petition was filed , 921; 24 Ch. Div. 35 ;
several creditors having joined their debts
358 ;
Ex parte Andrew , 33 L. T.Rep.N . S.556 ; 1 Ch. Div.
-
together, making up the total amount owing to
501. On the 15th May the debtor paid off Clarke, Ex138parte Kibble; Re. 373
: L . Rep . 10 Ch Onslow
: , 32 L. T. Rep. N . S.
one of the creditors, whose debt amounted to Ex parte Miller ; Re Garland , Buck. 283 ;
101,. ttus reducing the total debt to below 501., Mann v. Shepherd, 6 T. R . 79.
and putting an end to the petition . Messrs. CAVE, J. - I am of opinion that this appeal
Hayes and Co., whose debt with interest had must be dismissed. I think that not only was
reached the sum of 251. 43., thereupon joined with the registrar right in making this order, but he
another creditor, whose debt was 251.48. 10d ., for
the purpose of filing a petition founded on the would have been very wrong if he had not done
previous act of bankruptcy. On the 22nd May so . Advantage was taken of an act of bank
the debtor tendered to Messrs. Hayes and Co. ruptcy which the debtor had committed on a
the amount of their debt, which was refused . On judgment summons for the small sum of 91. 98.,
he being unable to pay or to secure the debt.
the 27th May a second bankruptcy petition was
presented by Messrs. Hayes and Co., alleging as was This shows the position of the debtor. A petition
the act of bankruptcy the failure to comply with join their presented , certain creditors having to
the bankruptcy notice on which the previous up to 501. debts in order to make the amount
This gentleman goes and pays one of
petition had been founded .
On the 15th June 1889 a receiving order was these creditors in full, and gets rid of him and
made by the County Court, from which decision defeats the petition . Another combination , com
prised of one of the former crediturs and another
this appeal was brought.
Hextall for the appellant. There was a valid creditor, is formed, and thereupon the debtor tries
on the same thing again ; he tenders the amount
tender to Messrs. Hayes and Co . of their debt ;
they ought to have accepted this, and, had they of the debt to one of the two creditors, but it
was refused . This was obviously done to prevent
done so, there would have been no debt of 501. the petition , and to escape from the payment of
owing on which the second petition could have his debts at littlo cost. Now , was the creditor
(4)Reported by W . B. YATES, Esq ., Barrister-at-Law . I right in refusing to accept the money ? I accept
264 - Vol. LXII., N . 8.) THE LAW TIMES. (April 12, 1890.
IN BANK.) Re TAMPLIN ; Ex parte BARNETT. [IN Bank.
the admission made during the course of this the appellant' s title under a bill of sale to certain
case that there was in fact a tender , and I am of goods to be bad, and ordering him to repay their
opinion the creditor was right to refuse it. A value to the trustee in bankruptcy.
number of cases under the old Bankruptcy Acts In 1884 Tamplin , the elder, commenced business
were cited , and the principles of them apply to as a butcher, and in 1885 Tamplin , the son , joined
this case. At the time when the man tendered his father, and 1401. was paid by him into the
the money he had committed an act of bank partnership account. After this date a new shop
ruptcy of which the creditor was aware, and if was opened ,on which appeared the name of the
the money had been accepted and bankruptcy father and the son, and billheads were used in
proceedings taken within three months the the business with theheading E . Tamplin and Son,
creditor might have had to pay the money back family butchers and bacon curers. The name of
again ; he would thus be deprived of the money the elder Tamplin alone was retained as it had
he would otherwise have bad , and the power of always been over the door of the old shop.
conducting successfully this petition , or deriving In June 1888, the two Tamplins being in want of
any benefit out of the proceedings. I have often money to meet certain costs of legal proceedings
told people not to take money from a man who which had been taken against them , the elder
has committed an act of bankruptcy until after Tamplin , with the son's assent, executed a bill of
three months have elapsed . Frequently trustees sale of certain goods which were partnership
under deeds of arrangement who have meddled property of the father and son, in favour of Barnett
with an estate after an act of bankruptcy has the respondent, in consideration of the sum of
been committed , and before three months have 601. The money was paid to the elder Tamplin ,
elapsed , when a petition has been presented and was used to pay the costs of the pro
within the threemonths,have in vain applied to us
for assistance. Wehave said , “ No ; you ought not
ceedings which had been taken against the father
and son.
to have touched the property ," and they have The two Tamplins were jointly adjudicated
invariably had to restore the property and pay bankrupt, and the County Court judge declared
the costs. It is clear a creditor has a right, and the bill of sale void on the ground thatas to the
has almost a duty imposed upon him , to refuse partnership goods the elder Tamplin , the grantor,
an offer made under these circumstances. Conse was not the true owner within the meaning of
quently, as the respondent was justified in taking sect. 3 of the Bills of Sale Act.
the course he took , no objection to the receiving The grantee of the bill of sale appealed.
order can be made on that ground .
SMITH , J. - I agree. By sect. 5 of the Bills of Sale Act 1882:
Appeal dismissed. Save as hereinafter mentioned , a bill of sale shall be
void , except as against the grantor in respect of any
Solicitors for the appellant, Page and Scorer,
for Truman , of Nottingham .
personal chattels specifically described in the schedule
thereto of which the grantor was not the true owner at
Solicitors for the respondent, Clinton and the time of the execution of the bill of sale.
Buckby, for Green and Williams, of Nottingham . Bigham , Q.C. and Glascodine for the appellant.
- We say , first, there was no partnership between
the father and son ; and, secondly, if there was a
partnership, then the conduct of the father and
Friday, Feb. 14. son estops them from setting up that defence,
(Before Cave and SMITH , JJ.) and the trustee in bankruptcy is in the same
Re Tamplin ; Eic parte Barnett.(a ) position ; and, lastly , if these were partnership
Bankruptcy — Bill of sale — “ True owner " - goods, they were pledged by the father with the
full assent of the son, and the proceeds were used
Partnership property - Billof sale by one partner
over - Bills of Sale Act (1878 ) Amendment Act for the benefit of both , and therefore the bill of
1882 (45 & 46 Vict. c.43), s. 5 - Bankruptcy Act sale is valid .
1883 (46 8.47 Vict.c. 52). Channell, Q .C . and Benson for the trustee.
The words “ true owner " in sect. 5 of the Bills of The bill of sale is void , and the decision of the
County Court judge correct. First, there was a
Sale Amendment Act 1882 are used in their
popular sense, and a man does not cease to be partnership, the billheads show this, and the
name of the father and son over the new shop
the true owner of goods merely because his owner . door : this property which was pledged was
ship is to some extent qualified by rights existing partnership property. Now , one partner cannot
over the goods in other persons.
One of tuco partners with the assent of his co make a valid pledge of the whole property,
therefore he is not the true owner of what be
partner executed a bill of sale of partnership pledges within sect. 5 , and so the bill of sale is
goodsto secure a loan ofmoney which was used for void . [Cave, J. - Here he assigned the whole,
the benefit of the two partners. The firm went into but was the owner
bankruptcy , and the bill of sale was set aside by the bill of sale is only of half, why do you say
void as to the whole ? ] In
the County Court judge.
Held , on appeal, that the grantor was to the extent certain circumstances a partner may have the
of his share in the partnership goods assigned power to dispose of the entirety of the goods if
in the scope of his business, but his own share is
by the bill of sale the true owner within the
meaning of sect. 5 ; and that the bill of sale was merely his interest in the prcperty subject to the
lien of the other partners for their debts ; 80
to that extent enlid , but that as to the rest of the where a sheriff sells under an execution the share
goodswhich belonged to his copartner it was void. of one partner , there must be an account taken
This was an appeal from the decision of the in order to find out what his share is. Sect. 5 of
judge of the Pontypridd County Court, declaring the Bills of Sale Act says the transaction is to
(a) Reported by W . B. YATES, Esq., Barrister-at-Law . i be void, it is a statutory interference with common
April 12, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 265
Ix BANK.] Re TamPLIN ; Ex parte BARNETT. [ IN BANK.
law principles. (SMITH , J. - Void in respect of ! wanted money for partnership purposes, and
any personal chattels of which the grantor was agreed to raise the money by mortgaging their
not the true owner, was he not the true owner of property to the holder of the bill of sale,and they
an undivided moiety ? ] No; he merely had a do so by saying it was the property of the elder
power of disposition over the goods. [Smith, J. bankrupt, and that, it was admitted, gives the
Must an account be always taken before a sheriff | grantee a good title to the whole, apart from the
under a fi. fa . can hand over the proceeds ? ] 1 Bills of Sale Act. It is not necessary to rely on
Yes ; this is laid down in Lindley on Partnership, the doctrine of estoppel as against the younger
p. 356 , “ When a separate judgment creditor of bankrupt. Certain cases were referred to , but it
se partner seeks to levy execution upon that is not necessary to decide this question . It is
partner's share in the partnership, such a clear that the younger bankrupt assented to the
creditor has always been at liberty to execute bill of sale in order to raise money for partner
his judgment, not only against his debtor's ship purposes, and this is strong evidence of an
separate property, but also against the property authority from him to the elder to execute the
of any firm in which the debtor may he a bill of sale and transfer the joint property to
partner . . . in truth, the creditor gets only | Barnett. The respondent, however , relies on
what belongs to his debtor." (CAVE, J.- It is sect. 5 of the Bills of Sale Act 1882. The words
rather strange that if a County Court bailiff has are : “ Save as hereinafter mentioned , a bill of
seized one thing, there must be an account | sale sball be void , except as against the grantor,
taken.] : in respect of any personal chattels specifically
Skipp v . Harwood , 2 Swanst. 586 ; described in the schedule thereto, of which the
Re Bainbridge ; Ex parte Fletcher, 38 L . T. Rep . N . S. grantor was not the true owner at the time of the
229 ; 8 Ch . Div. 218 . execution of the bill of sale," and the marginal
To sum up : the father is not the true owner note is to the following effect : “ Bill of sale not
under sect. 5, and the bill of sale is not good even to affect after -acquired property.” It is there
as to a moiety : fore tolerably clear what was in themind of the
Inch v. Southern Counties Deposit Bank , 61 L . T . Legislature when the Act was passed , as the
Rep. N . S. 348 ; 42 Ch. Div. 471. common practice before the Act had been for the
Glascodine in reply. The position of partners property grantor to include not only present property, but
is that of joint owners ; each is seized per mie et and the Act brought afterwards on to the premises,
per tout, and one of two joint owners can give a practice. Thewas passed to put an end to that
good title as owner to the chattels, as each is part what extent thatquestion we have to consider is , to
applies where one of two
owner and owner of the entirety . Next, in any partners executessection
event the yonnger Tamplin is estopped from perty purporting toa convey bill of sale of partnership pro
,not only bis ownmoiety
setting up that thebill of sale is void . He referred
but thewhole of the property. I do not agree that
Richards v . Johnston , 4 H . & N . 660 ; this empowers the owner of any share, however
Jacobs v. Seward , 20' L . T. Rep . N . Š. 448 ; L . Rep . small, to execute a bill of sale of the whole
4 C . P . 328 ; partnership property which shall be good under
Pennings v. Grenville, 1 Tann. 241. this section as against trustees and creditors. In
CAVE, J. - In this case the two debtors appear sect. 5 the words “ true owner " are used in their
to have been carrying on business together as natural and not in their artificial and technical
butchers, and were made bankrupt in their sense. They mean that a man must be the true
business. The business was commenced in 1884 owner of the goods which he purports to convey.
by the father, and in 1885 the son joined him . In It does not follow , because he is the owner
1888 they were in want of money, and the father of the property subject to a lien or equitable
applied to Barnett for an advance on a bill of right, that he ceases to be the true owner. As
sale . A bill of sale was prepared by which certain the words are used in the popular sense , it does
household furniture, admittedly belonging to the not mean to say that, where your true ownership
father,and certain other property alleged to be of property is qualified by some rights existing
partnership property . was charged with the in others, you may not convey the property.
repayment of the 601. borrowed by the father. | You may convey it as true owner subject to any
The first contention raised was, that there was rights existing in others which may qualify yours.
not in fact a partnership between the father and There must always be someone who can be
son,or, if there was one, it did not extend to the spoken ofas the true owner of the property . It
goods the subject of the bill of sale. I had great may be a man may have it subject to a lien or
difficulty in ascertaining what took place before equitable right, or he may be tenant in common,
the County Court judge, as this point was not and his co -tenant may have rights not affecting
taken with sufficient particnlarity before him . the property , but which are available against
No onemay stand by and not take a point in the his co -owner ; but the existence of rights of that
court below and then come and take it in the j kind does not prevent the true owner from part
Court of Appeal. Nor, on the other hand, is it ing with his interest. In the present case both
enough to merely take the point, leaving counsel partners wanted money for partnership purposes,
or the judge to find out the grounds on which it and if both had joined and conveyed , the bill of
was taken. The objection should be taken and sale would be good under sect. 5. So in the same
argued, and the grounds of it brought out, in way the elder Tamplin was,within themeaning of
order that it may if necessary bemet by evidence. the section , the true owner of his moiety, and the
I think there was a partnership , and that this younger Tamplin likewise of his moiety. This
was partnership property. It was admitted that, was a conveyance by the elder Tamplin of the
apart from the Bills of Sale Act, under the whole property, and therefore of his half, with
common law the bill of sale holder would have a l the intention both ofhimself and his son that the
good title,as it was obrious that these two persons i conveyauce should be absolute on the part of the
266 — Vol. LXII., N . S.] THE LAW TIMES. (April 12, 1890.
In Bank.] Re SPACKMAN ; Ex parte May. [IN BANK
son , and therefore, if the son has any rights, this Feb. 17 and 18 .
would not negative the fact that the elder (Before Cave and SMITH, JJ.)
Tamplin was the only person who could be Re SPACKMAN ; Ex parte Mar. (a )
described as the trne owner of his moiety . If
both convey, they are true owners ; and if one Bankruptcy - Solicitor's costs - Money in hands of
conveys even the whole, he is still the trueowner solicitors under charge for general costs - Costs
of his own moiety , though not of the moiety of incurred in endeavouring to prevent bankruptcy
the other. I do not see any other construction proceedings — Retention of money by solicitors for.
that can be placed on it. If a man were allowed The rule laid down in Re Sinclair ; Ex parte
to give a bill of sale over property not his own Payne (53 L . T. Rep. N . S. 767 ; 15 Q . B . Dio.
i.e., in thename of some other person as owner who 616 ), that a money payment made by a debtor
was not owner - it is clear sect. 5 would not be bona fide to his solicitors to defray costs incurred
complied with . This view was not presented to in opposing bankruptcy proceedings which have
the court below , but it really was not material, as been commenced against the debtor cannot be
it was purely a question of law which could not recovered from the solicitors on bankruptcy
be altered by the facts. The learned County ensuing, is not to be extended so as to allow soli
Court judge was wrong in compelling the bill of citors who have money in their hands on which
sale holder to pay back all the money he had the debtor has given them a charge for general
received from the sale of the partnership pro costs to retain that money to meet costs incurred
perty. The proper order was that the bill of sale for the debtor after knowledge of an act of bank
holder should retain one half and pay over the ruptcy .
other half to the trustee in bankruptcy . The rule only applies to costs which are expended
SMITH, J.- This case is one of some little com . on what is strictly a necessity , and does not cover
plication . The main point was, What is the costs incurred in endeavouring to make arrange
meaning of thewords “ true owner " within sect. 5 ments with creditors with a view of preventing
of the Bills of Sale Act ? We must look at the bankruptcy proceedings being taken .
substance in order to see if there was a partner- | This was an appeal from the decision of the
ship . There are certain facts beyond dispute. In ! County Court judge of Bristol disallowing :
1885 negotiations were opened between the father portion of the appellants' claim for a charge on
and son . The son advances 1401. Wby ! After certain property of the debtor for their costs, and
that date he joins the father in the trade of a
butcher, and the 1401. was embarked in that ordering them to repay the sum of 561. to the
trustee in bankruptcy of the debtor .
business. T'he old shop was left as before, and a In 1886 the debtor, who was a solicitor prac
new shop was opened under the name of Tamplin tising at Swindon , got into difficulties, and on
and Son . They got into difficulties, and they the 9th Nov. of that year gave to his solicitors.
want money to get out of them ; so the father the respondents,authority to sell certain horsesand
goes to Barnett and gets an advance on a bill of carriages, and charge the proceeds for their costs
sale . The father was the grantor, themoney was incurred. On the 22nd Nor, the debtor executed
handed to him , and was applied by the father and an assignment ofhis property for the benefit ofhis
son to pay the costs of the legalproceedings which creditors, of which the solicitors were fully
had been taken against them . I think there was aware. This assignment was an act of bank .
a partnership, and that the haystack , & c., were ruptcy within the meaning of sect. 4 of the
used in their business of butchers. The trustee Bankruptcy Act 1883.
tries to set aside the bill of sale by saying the On the 4th Dec. a petition was presented against
property was joint property. That is made out, the debtor, on which , on Dec. 14, a receiving order
and then he says, “ Thebill of sale is void by sect. 5 , was made. The solicitors had , on the debtor's
and although the estate has had the benefit of the behalf, prior to the presentation of the petition ,
advance, yet I will wipe it away .” The question entered into negotiations with the creditors with
then turns on themeaning of theword true owner. a view of coming to some arrangement with
The trustee really says this : “ If I show there was them whereby bankruptcy proceedings might be
a partnership, and that these were partnership prevented , and had incurred costs in so doing.
goods, the bill of sale is void .” There was a The solicitors sought to retain the proceeds of
subsidiary point as to the meaning of the side the sale of the horses, & c., to indemnify them
note in sect. 5 , as to which I agree with Care, J. against all costs incurred by them on the debtor's
Now what is the meaning of trne owner ! And to behalf down to the date of the receiving order.
ascertain this I ask this question : Assuming a The County Court judge allowed the claim in
partner is an execution debtor, what step can the so far as it related to all costs incurred down to
sheriff take ? The law is, that the sheriff goes the 22nd Nov., the date on which the act of
in and seizes the undivided moiety of the exe bankruptcy ofwhich the solicitors were cognisant
cution debtor partner, and when he has sold it, had been committed , but disallowed their claim
he puts the vendee in as tenant in common with for the costs incurred after that date. The soli
the partner against whom there is no execution . citors appealed .
Then the vendee has to look out ( I believe the
law is so), and find out his rights for himself. Bigham , Q .C . and F. C . Willis for theappel
The father here bad an undivided moiety of this lants the solicitors. — The County toCourt judge
property , and he was therefore the true owner ordered the appellants to hand over the trustee
in bankruptcy any surplus in their hands of the
within the meaning of sect. 5. On that I found proceeds of the sale of the horses, & c., after
niy judgment. Order varied. deducting their costs down to the 22nd Nor.
Solicitors : for the appellant,Herrey Smith, for We say there was no act of bankruptcy com
Barnett, of Cardiff ; for the respondent, Crowder, mitted at that date ; that, if there was ore,
for Davies, of Pontypridd . (a) Reported by Walter B. Yates, Esq., Barrister-at-Lar.
April 12, 1890.) THE LAW TIMES . [Vol. LXII., N . S. - 267
IN BANK.] Re SPACKMAN ; Ex parte May. [IN BANK.
the appellants had no knowledge of it, and if the becomethe property of the trustee in bankruptcy .
court is against us on that, then we submit that To extend it in that way appears to me to be
the case is covered by authority , and that the unwarrantable, as the man who takes charge
solicitors ought not to be made to refund. The | under those circumstances knowswell that the
County Court judge said that, after the act of money belongs to the trustee,and that the person
bankruptcy of which we had notice had been com - who charges it has no right to do so apart from
mitted, we ought not to have gone on at all. We Sinclair's case. On the other hand, the man
say our rights ceased on Dec. 14, the date of the who comes with ready money undoubtedly offers
receiving order, but not until then. In Re Sine | something which, although prima facie it may be
clair ; Ex parte Payne (53 L . T . Rep . N . S. 767 ; taken to be the property of the trustee, yet in
15 Q. B . Div. 616 ), the court held that money such a case may not be the trustee's property
bona fide paid by a debtor to his solicitor to at all, as it may have been presented to the
defray expenses in opposing bankruptcy proceed . | debtor for the purpose of providing funds for his
ings could not be recovered from the solicitor. defence or supplies which are necessaries of life .
For, as the judgment in that case says, “ It is | We thought that in such a case the person who
right that a man should have legal advice and was about to render services of such a kind should
assistance against a bankruptcy petition ; but if | not be put upon inquiry as to whose money it
a solicitor has to refund money paid to him for really was, and be obliged to compel the debtor
such a purpose, a man would be left defenceless to satisfy him that themoney did not belong to
because nobody would act for him .” [CAVE , J. | the trustee upon pain of having to refund it in
Re Sinclair gave a man who had money in his case it turned out that he was wrong. The case
hands the power of applying that money for put of a debtor whose credit has gone applying
necessaries.] He has the money here practically for food shows how extremely difficult such a
in his hands, for he put it in his solicitors' doctrine would be to work . On the other hand,
pockets, and he says, “ You use that money for if the power is extended not only to chargemoney
me." This was a generalbill of costs. [ SMITH , J. | in the pocket of the debtor, but also in the
In this case themoney wasused to avoid a petition, hands of other persons, it is difficult to say
in Re Sinclair to oppose one.] where the limit could be placed . Undoubtedly, if
_ Poole, Q .C . for the trustee in bankruptcy. the appellants had chosen to hand over the money
to Spackman , they could have been compelled by
The first question is, was there an act of bank the
ruptcy committed on the 22nd Nov. ? and the and trustee to replace it, and had they done so
Spackman had used somein order to instruct
second is, does Re Sinclair affect this case ? them to defend him , so that some of it had gone
Sect. 4 of the Bankruptcy Act 1883 is in these
words : “ A debtor commits an act of bank tosection. Spackman, they would be liable under the
This case does not fall within the prin
ruptcy in each of the following cases : (a ) If in
England or elsewhere he makes a conveyance or ciple of Re Sinclair any more than does the case
of a man who has committed an act of bank
assignment of his property to a trustee or ruptcy and has executed a deed of assignment
trustees for the benefit of his creditor's gene to a trustee for the benefit of his creditors ; as in
rally.” [Hewas stopped.] such a case it is the duty of the trustee under
CAVE, J.- There are two questions here. The the deed to wait and see if any creditor will
first is, was there an act of bankruptcy com within three months take advantage of the act of
mitted on the 22nd Nov. ? and the second, does bankruptcy to present a petition, and until he is
the case fall within the decision of Re Sinclair ? satisfied that no creditor will do this he ought
I am of opinion that there was an assignment not to deal with the money, and if he does do so,
for the benefit of creditors on the 22nd Nov., and and the petition follows, he will have to refund
this was an act of bankruptcy within the mean . the money received . It is impossible to say that
ing of sect. 6. As to the second point, in the case what the appellants did was a necessity within
of Re Sinclair it was held that, where a man goes the meaning of Re Sinclair. They were trying
to a solicitor and asks the solicitor to represent to make arrangements by which bankruptcy
him and 'act for him upon the hearing of a should be avoided , in order to withdraw the
petition for adjudication , and pays the solicitor estate from the bankruptcy court, and we have
& sum of money in order to secure his services, if never held that a man is justified in doing that
the payment was made bona fide for services to the extent of charging the estate with the costs
bona fide rendered, that sum of money so paid for incurred in that way. It would be still more
good consideration actually given cannot be monstrous if solicitors who were not trustees
recovered by the trustee in bankruptcy simply under a deed , and whomust be presumed to know
because the solicitor had received it when aware the law ,could be allowed to spend themoney of the
th at an act of bankruptcy had been committed ; trustee in a case which was not allowed to a
and that case is likened to the case of a debtor, trustee under an ordinary deed . The facts do not
who his creditors know has committed an act of bring the appellants within Re Sinclair, which I
bankruptcy, going to one and paying ready will not extend.
money for some article of absolute necessity . SMITH, J.-- I have nothing to add.
Under these circumstances it is sought to extend
that doctrine in two directions, and, as at present Appeal dismissed.
advised, I do not think it ought to be extended in Solicitors for the appellants, May, Sykes, and
either. It is sought to extend it not simply to Batten .
money in the hands of a debtor, and parted with
by him in consideration of present services Trowbridge,
Solicitor for the respondent, C. P. Jones, of
rendered or goods presently handed to him ; but
to extend it to all moneys which are in the hands
of other persons, and which undoubtedly would I
268 — Vol. LXII., N . 8.) THE LAW TIMES . (April 12, 1& 0.
R . & C. Com .] THE WINSFORD LOCAL BOARD v. THE CHESHIRE LINES COMMITTEE. [R . & C . Com.
RAILWAY AND CANAL COMMISSION And the said local board apply to the said court ander
the Railway and Canal Traffic Act 1854, and the Acts
COURT. amending or extending the same, for an order enjoining
the committee to afford all due and reasonable facilities
Saturday, Feb. 8. for receiving and forwarding the passenger traffic on
the said railway as well as the mineral traffic, and
(Before Wills, J. and Commissioners Sir particular
enjoining the committee to desist from subjecting any
description of traffic, or the passenger traffic
FREDERICK PEEL and F. PRICE.) on the said railway , or any particular persons or the
THE WINSFORD LOCAL BOARD v. THE CHESHIRE unreasonable
inhabitants of prejudice
the applicantsdisadvantage
district to any undue or
LINES COMMITTEE.(a) or in respect of
Railway company - Railway and Canal Traffic respectwhatsoever ; and to desist from makingoror ingiving
the matters mentioned in this application any
Act 1854facilities
afford (17 & 18forVict. c. 31),
traffic — “ s.Traffic
2 Company
" - Disconto or
any undue or unreasonable preference or advantage to
in favour of the mineral traffic , or any particular
tinuance of passenger
commissioners .
traffic - Jurisdiction of description of traffic on the said railway, or to or in
favour of the inhabitants of the districts served by the
railways of the committee other than the said railway
It Act
is provided by the Railway and Canal Troffic
1854 (17 & 18 Vict. c. 31), 8. 2, that every
or any other persons in any respect whatsoever with
regard to the matters complained of in this application ,
railway company shall, according to its power, but that all reasonable accommodation may be at all
afford all reasonable facilities for the receiving times afforded to the public in that behalf.
The material part of the answer of the defen.
and forwarding and delivering of traffic upon
and from the several railways belonging to or dants was as follows :
worked by such company. The said Winsford branch is not an integral part of
Byinclude same
of theers
sect. 1 passeng Act " traffic " is defined to the system of railways worked by the Cheshire Lines
Committee.
and their luggage. There is no station either at the commencement orat
The Local Board of Winsford applied for an order the termination of the said Winsford branch , but the
requiring the Cheshire Lines Committee to run Cheshire Lines Committee are the owners of a private
trains for the carriage of passengers and their railway extending from the termination of the said
Winsford branch to the town of Winsford , and there is
luggage upon a part of their system within the a station at Winsford in connection with the said private
applicants' district. Trains for the conveyance extension .
of passengers had been run upon this part of the The passenger traffic on the said Winsford branch was
railway up to the 30th Nov . 1888, but the com . 2 loss to the said committee . And the said com
mittee finding that such trainshad been run at a would be unable to work passenger traffic thereon ercept
loss discontinued them from that date. at a loss.
oss .
It was objected on behalf of the committee that the beenSince Aug . 1888 the said Winsford branch bas not
court had no jurisdiction to make the order the same in a fit state for the conveyance of passengers, and
could not be made safe for the conveyance of
applied for, as the committee were not obliged to passengers without theexpenditure by the said committee
run trains for the conveyance of passengers unless of a very large sum of money.
they thought it desirable to do so. The London and North -Western Railway Company
have a station at Winsford, and there is a communica
Held , that the court had jurisdiction to make the tion
order. bythe railway of the said companybetween Winsford
and places on the system of the said company . The
This was an application on behalf of the Local distance between Winsford and Cuddington is only &
few miles , and at Caddington there is a station on
Board of Winsford ,asking the commissioners to said
order the defendants to afford facilities for the which the saidofWinsford
railway the said committee by a junction with
branch commences. There are
carriage of passengers on their line between the omnibuses daily between Winsford and Northwick,
Cuddington and Winsford, Cheshire. at which place there are stations of the London and
The application , after referring to the Acts North -Western Railway Company and of the Cheshire
under which the railway of the Cheshire Lines Lines Committee.
Committee was constructed within the district of The Railway and Canal Traffic Act 1854 (17 & 18
the applicants, proceeded as follows : Vict. c. 31) provides as follows:
The said railway was duly constructed and inspected Sect. 1. In the construction of this Act . . . the
by an officer of the Board of Trade with a view to its word “ traffic " shall include not only passengers, and
use for the conveyance of passenger traffic , and for their luggage and goods.
some time the committee employed the said railway for Sect. 2. Every railway company, canal company , and
the conveyance of both passenger and mineraltraffic. railway and canal company, shali, according to their
On or about the 30th Nov. 1888, the said railway respective powers, afford all reasonable facilities for the
company ceased to use the said line for the purpose of receiving and forwarding , and delivering of traffic opon
passenger traffic, but have continued and do still con and from the several railways and canals belonging to
tinue to use the said line for the purpose of mineral or worked by such companies respectively , and for the
traffic . return of carriages, trucks, boats, and other vehicles ;
The applicants have communicated with the said and no such company shall make or give any undue or
committee in writing requesting them to afford the unreasonable preference or advantage to or in favour of
veyance of passenger
public facilities for the conveyance passenger traffi
tra c any particular person or company, or any particular
description of traffic in any respect whatsoever , nor
on the said railway, but the committee have refused or
negle cted to comply with such request . shall any such company subject any particular person
By refusing or neglecting to afford facilities for the or company or any particular description of traffic, to
conveyance of passenger traffic as aforesaid, the com any undue or reasonable prejudice or disadvantage in
mittee are refusing to afford due and reasonable facilities any respect whatsoever. . . .
for the receiving, forwarding , and delivery of traffic. Littler, Q .C . and C. A . Russell, for the defen
Also by such refusal or neglect as aforesaid, and by
affording facilities for the conveyance of minerals , the dants, took the preliminary objection that he
committee are subjecting such passenger traffic to undue court had no jurisdiction to make the order asked
and unreasonable prejudice and disadvantage in com . for in the application. - It is submitted that the
parison with the traffic of the districts served by the court will not upon the materials before them
railways of the committee other than the said railway . make this order. The defendants are not bound
a) Reported by W . H. HORSFALL, Esq., Barrister-at-Law . I to work their line if they can only do so at a
April 19 , 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 269
R . & C. Com.]
LA W TI ME S. ( .Lan
THE WINSFORD LOCAL BOARD v. The CHESHIRE LINES COMMITTEE. & C . Com20. 9
. x..-
[ R,
heavy loss. In any event the public have no railway company, canal company, and railway
right to travel over that portion of the line which | and canal company, shall, according to their
is a private line, and was not made under the respective powers, afford all reasonable facilities
powers conferred upon the defendants by Par . for receiving and forwarding and delivering of
liament. A company is not compellable to come traffic upon and from the several railways and
plete a line, and the power to do so is only canals belonging to or worked by such companies
permissive : respectively.” And by sect. 1 of the same Act
York and North Midland Railway Company v. The “ traffic ” is defined to include amongst other
Queen , 1 Ell. & Bl. 858. things passengers and their luggage. One would
Even when the line is complete a company cannot therefore suppose that it was intended by this
he compelled to carry traffic ; this is confirmed by Act that railway companies should afford all
LordSouthSelborne, L .C ., in reasonable facilities for the receiving and forward
-Eastern Railway Company v . Railway Como ! ding and delivering of passengers and their
missioners, 44 L. T. Rep . N . S. 203 ; 6 Q . B . Div . luggage on their system of railways. It is next
586. | necessary to see if any limitation has been
If a person provided his own carriage hemight placed upon these words, and if it could have
use the line upon the payment of the proper tolls. ! been shown that there was any limitation from
[Sir F . PEEL. - Having once begun to carry the decisions of the courts, I should have accepted
passengers, are you not bound to go on doing it. When we remember what was the original
so ?] No; the line is not in a fit condition for | idea with reference to the way in which railways
passenger traffic. There is no station for passen would be used, the primâ facie view of this case
gers upon the parliamentary part of the line, would be in favour of the contention put forward
and the Board of Trade could refuse to give a on behalf of the railway company. It is im
certificate that the line was fit for passenger traffic possible to properly understand railway legislation ,
if there is no station : and the decisions which have been given upon
Attorney -General v. Great Western Railway Com . that legislation , unless we keep in view the fact
pany, 35 L . T . Rep . N . S. 921 ; 4 Ch . Div. 735. that a railway in early legislation was treated as
A railway company may refuse to carry passen an ordinary highway, along which anyone who
gers at all, but if they carry any it is admitted had a carriage was allowed to pass. Down to
must afford reasonable facilities for the year 1854 there was no limitation placed upon
doing so : railway companies as to whether they should be
Dickson v.GreatNorthern Railway Company,55 L . T. carriers or not, or as to what class of goods they
Rep . N . S . 868 ; 18 Q . B . Div . 176 . should carry . Upon this basis all the early
It is also admitted that if the company carries decisions of are founded . But then we have the
one person they must carry everybody. The authority the Court of Appeal that the Rail
court has only jurisdiction to deal with existing way and Canal Traffic Act 1854 (17 & 18 Vict.
traffic , and not with traffic that does not exist. c . 31) made a great difference in that respect. I
They also referred to cannot donbt what the Court of Appealmeant to
Lancaster and Carlisle Railway Company v. The lay day down as the law in Dickson v. Great
London and North -Western Railway Company, Northern Railway Company (55 L . T. Rep. N . S .
2 K . & J. 293 ; 868 ; 18 Q . B . Div. 176 ), and the law as there
Hare v. The London and North -Western Railway laid down I propose to adopt in the present case.
• Company, 2 J. & H . 480. They say that they are constrained to express
Balfour Browne, Q .C. (with him Darlington) for their opinions in the manner they do in conse
the applicants. — The two cases last referred to quence of the view of the case taken in the court
were decided before the passing of the Railway below . Now , the Divisional Court had held that
and Canal Traffic Act 1854 , as is pointed out by railway companies were not carriers of dogs, and
Lindley, L .J., in that they were not bound to carry dogs at all, so
Dickson v . Great Northern Railway Company, that if they did carry them they could make
55 L. T . Rep . N . S., at p . 873 ; 18 Q . B . Div., at p . whatever terms they liked with persons who sent
184. dogs by their lines. The Court of Appeal held
He was stopped by the Court.] that that was so up to the passing of the Act of
WILLS, J. - Now that those cases are disposed 1854 , but that then a material alteration of the
of we need not trouble you , Mr. Balfour Browne, law was made, and that a railway company was
upon the other points raised before us. I am of bound to afford reasonable facilities for the
opinion that this court has jurisdiction to hear carriage of dogs, and they could only limit their
this case, but in saying so I carefully guard liability in respect thereof by reasonable con
myself from expressing any opinion as to how ditions. At all events, a railway company cannot
that jurisdiction is to be dealt with. I have come refuse to carry traffic of a particular description
to that conclusion after listening carefully to the in cases where it carries that class of traffic at
argumentwhich has been laid before us on behalf all. I wish to make that limitation, because I
of the railway company. In deciding such a desire to avoid stepping out beyond the limits of
question as this, which turns upon the construc- the case before us, and expressing an opinion
tion of an Act of Parliament, I like first to look upon a general proposition which has not been
at the Act itself, and, after carefully considering argued before us, and may arise in some case
it, to see what decisions have already been given | in the future. If a company carries goods or
by the courts upon the words used in that Act. animals at all it must fall within the obligation
But in the present case, even if no decisions had mentioned in sect. 2 of the Act. It is clear that
been given upon it, I do not think that the Act if the same question arises in regard to passen
itself would create much difficulty . Now , the gers that the same answer applies, and a company
words of the Railway and Canal Traffic Act 1854 must afford all reasonable facilities for receiving
(17 & 18 Vict. c. 31). s. 2, are as follows : “ Every and forwarding and delivering passengers upon
VOL LIII., N . S., 1588 .
270 _ Vol. LXII., K . s.] THE LAW TIMES. (April 19, 1890.
R . & C . Com .] Re SALMON ; PRIEST v . UPPLEBY . [Cr. OF APP.
its line, by which is meant the whole system of ! away from railway companies the power of
the railway company. It was suggested during | limiting their liability for neglect or default in
the argument that the Court of Appeal did not the carriage of goods. So in the sameway sect. 2
intend to decide that the whole system was meant, takes away from a railway company the power of
because the present Master of the Rolls was a saying that on a particular portion of their line
party to the judgment in South - Eastern Railway | only a particular kind of traffic shall be carried.
Company v. Railway Commissioners (44 L . T . / In the present case the line is owned by the
Rep . N . S . 203 ; 6 Q . B . Div. 586 ), which decided company which is working it, and the company
that the commissioners had no jurisdiction to is to afford reasonable facilities for the receiving
order a company to make a new railway station , and forwarding and delivering of traffic, which
but only to order the company to afford reason . | includes passengers and their luggage, upon their
able facilities for passenger traffic . There is line. I think that Dickson v. Great Northern
one remark of Lord Selborne in the last Railway Company is conclusive upon the point
mentioned case which may seem to conflict with that if the railway company carries passengers
my present judgment, but I do not think that on on its line that it cannot pick out a particular
careful reading it does, the remark I refer to is section and say that no passengers will be carried
as follows : “ A company may carry or not upon upon that part. For these reasons I think we
its own line as it thinks fit ; and if it does so , have jurisdiction to hear the application in this
may undertake that business under various con : case .
ditions and limitations. But, if and so far as it Solicitors for the applicants, Busk and Co., for
does undertake so to carry either passengers or Cooke and Son , Winsford .
goods traffic, it comes in my opinion under the Solicitors for the defendants, Cunliffes and
obligation to afford for the purposes of that traffic Davenport, for Lingards, Manchester.
the facilities required by the first branch of the
2nd section of the Act." I do not find anything
that would imply that a company may undertake
to carry passengers on a portion of its line and
not upon the remainder of it, but it does seem to
me that if a company carries passengers at all:
that
them iton thegive
must reasonable
whole
facilities for carrying
system . It would be very COURT OF APPEAL.
startling to find that it is consistent with the law June 18 and 19 , 1889.
of the land that such a company as the London
and North Western Railway Company can any (Before Cotton, Bowen, and Fry, L .JJ.)
day say that in future it does not intend to carry Re SALMON ; PRIEST v. UPPLEBY. (a )
any passengers between Birmingham and London , APPEAL FROM THE CHANCERY DIVISION.
or that a company at Manchester, in order to Trustees — Improper investment— Realisation by
injure another companywhich had running powers new trustees - Option of investing trustee to take
over its line, can say , “ we will stop all trains on
security on repairing - Breach oftrust - Liability
our system two miles outside Manchester, and
not run over that section of our line." We have Annotwithstanding realisation without notice.
action wasbroughtby an assignee of the share of
had pressed upon us the argument that this
jurisdiction might be used so as to work a great one of several beneficiaries to compel U ., a former
hardship trustee, to make good a loss which had resulted
ordered toupon
do ana company, and that
unreasonable thing,itbut
might be
credit from an improper investment. In 1881 U . (then
must be given to this court that it would be the sole surviving trustee) invested 13001., part of
reasonable in what it orders a company to do. If the trust money, upon a first mortgage of soms
we are satisfied when we have heard the whole freehold cottages at Hull, which had been valued
circumstanoes of the case that it will be unreason at 17501. The will authorised the investment of
able to make the order we are asked to do, we the trust funds on the security of a mortgage of
shall certainly not make it. Since the Act of freehold houses. The cottages were at the time
1854 a railway company cannot pick out a section unlet, and not completely finished , and were
of their system and say that they will not have intended for letting to weekly tenants. The
any passenger traffic over it, such an act must cottages were afterwards let, but their value
be subject to the control of this court. I am became depreciated by reason of some docks,near
therefore of opinion that we have jurisdiction to which they were situate, not proving successful.
hear this application. In 1884 Ü . retired from the trustand appointed
· Sir FREDERICK PEEL .- Iam of the sameopinion. new trustees, to whom he inade over the trust pro
If we had arrived at the opposite conclusion the perty ,including themortgage of the cottages. In
practical result would have been very serious , 1887 the new trustees, in exercise of a power of
for then a railway company could render the Act sale contained in the mortgage, sold the property ,
of 1854 quite nugatory . A company might say which realised about 8001. The action was
that if you put the Act in force and compel us brought on the ground that U . had not acted
to give reasonable facilities wewill cease running prudently, inasmuch as a sufficient margin of
trains altogether, and so they could make the value beyond the amount advanced was not left,
Act a dead letter. It is clear I think that a even if the property was worth the value puit on
company cannot be compelled to work their it, and that the property was of too speculative
line, but the question we have to decide is a character.
whether the company can be compelled under Kekewich , J., without deciding whether the intest
the Act of 1854, after they have began to run ment was an improper one, dismissed the action
passenger trains to go on doing so . No one has on the ground that the plaintif was a party to
ever doubted that sect. 7 of the same Act took ! (a) Reported by FRANK EVANS, Esq., Barrister-at-Law
April 19, 1890.] THE LAW TIMES . [Vol. LXII., N . 8. - 271
CT. OP APP.) Re SALMON ; PRIEST v. UPPLEBY. [CT. OF APP.
the sale of the property in 1887 , and that the sale trust estate ; and the father and the four sons
having been made without any notice to U .,he the father also covenanting on behalf of his wife
was deprived of the right, which he would other: - did , and each of them did, thereby for himself,
vise have had , of taking the mortgaged property | his heirs, executors, and administrators, and
on making good to the trust fund the amount according to his estate and interest in the pre
lenton the security , and that as this could not mises, but not further or otherwise, covenant
now be done the plaintiff was debarred from any with Upplely that the covenanting parties would
right to relief against Ü . indemnify him from all actions which might be
Held ,on appeal, (1) (on the authority of Learoyd v. brought against him as executor, and from all
Whiteley, 58 L . T. Rep . N . S. 93 ; 12 App. Cas. costs which he might incur on account of any
727), thatno reasonably prudentman would have acts, deeds, or proceedings in relation to the
invested his money in such a way, and that U . trusts .
was liable for the resultingto loss ; (2) that the C . U . Bower and T . Bower , the new trustees,
plaintif had had nothing do with directing | in May 1887, sold the mortgaged property by
the sale, so that independently of the question of auction, under the power of sale in the mortgage
law the plaintif was not open to the objection deed , for 8401., leaving 8201.after costs of sale.
taken to him ; (3 ) that the case was not like that In Feb . 1888 the plaintiff commenced the
of an investment upon property which was not present action , claiming a declaration that the
within the termsof the trust,but that the property investment of the 13001, was a breach of trust,
was part of the trust property , and as such was | that Uppleby might be ordered to replace the
handed over to the new trustees with authority to stock sold , or otherwise make good the loss to the
sell it when it should be necessary to realise the estate, and that upon his replacing the stocks the
security , and therefore the cestui que trust could investments of the 8201. might be transferred to
not dissent from the investment until it had been him .
ascertained (by investigation in the action ) that By his defence Uppleby denied that the security
the trustee had not acted with reasonable pru was insufficient, and alleged that the plaintiff ,
dence in making the investment, and was not before he purchased the share of A . E . Bower,
bound to elect whether he would accept or reject, bad been fully informed of the investment.
and that, notwithstanding the absence of notice Uppleby also alleged that the sale was made by
of the intended sale, U . was liable for the defi the new trustees with the privity and at the insti
ciency . gation of the plaintiff, and without any previous
The decision of Kekevich, J. reversed . notice of it to Uppleby, and that he never had
By the will of Eliza Salmon (who died in 1841) the rity
option given to him of taking over the secu
on his paying the amount secured by it ;
Tippleby and Fox were appointed trustees and that the sale had been improvidently made ; that
executors, and the testatrix bequeathed to them the property would readily have found a pur
her personal estate upon trust to invest the same chaser at 15001. if the proper means to effect a
in parliamentary stocks or funds, or on real secu sale had been taken ; and that, if the sale had
rities in England or Wales, with power to vary been properly and reasonably conducted , there
investments, the trusts being for the benefit of would have been no loss to the trust estate. He
Annette Bower for life, and then of such of her also set forth the release .
children as should attain the age of twenty-one In Jan. 1883 the plaintiff's solicitor had written
years or marry .
Annette Bower's six children all attained the toestate Uppleby's solicitor asking whether the trust
still consisted of the same particulars
age of twenty -one years, and Fox died in 1845 . namely, 11621. 188. 11d . and 9041. 68. 3d . Consols
Augustus E . Bower , one of the children of and 20001. on mortgage ; and on the following
Annette Bower, in 1877 mortgaged his sixth share day Uppleby 's solicitor replied that the bank
to the plaintiff, subject to two prior mortgages, annuities had been sold for 20001.,wbich had been
which the plaintiff shortly afterwards got in , and invested , 13001. on freehold land at Hull, and
on the 10th Nov. 1883 Augustus E . Bower re 7001. on land at Dalby.
leased his equity of redemption to the plaintiff, With respect to the sale being made at the
In 1881 Uppleby sold the Government stocks plaintiff's instigation, it was shown that on the
held on the trusts of E . Salmon's will, and on 13th April 1887 the solicitor for the family wrote
the 18th July 1881 he invested 13001., part of the to the plaintiff 's solicitor stating that he under
proceeds of sale,on a mortgage in fee,with power stood that A . E . Bower bad assigned his interest
of sale, of thirteen small houses in Kingston to the plaintiff ; that the 13001. mortgage had
upon-Hull. turned out a bad security ; that the trustees had
Uppleby had the property valued (before taking entered into the receipt of rents which would not
the mortgage) by a local valuer of reputation , keep down the interest, and that they proposed
who estimated the value at 17501. The houses to offer the property for sale ; and he asked for
were let at weekly rents, but were not all finished the plaintiff's views on the subject.
at the time of the mortgage. The plaintiff's solicitor wrote asking for further
Uppleby retired from the trust on the 15th information , and on the 19th April 1887 the
Nov. 1884, and under a power in the will ap family solicitor sent further particolars, and said
pointed C . U . Bower and T. Bower, two other it seemed best to offer the property for sale by
sons of Annette Bower, trustees, and transferred auction , expressed his opinion that to invest
to them themortgage for 13001. 13001. on such property was unjustifiable, and
By a deed, dated the 17th Nov . 1884, Annette | concluded by saying, “ Mr. Uppleby is a very
Bower, her husband , and four of their children , wealthy man , and my clients would be glad to
viz., T. Bower, C . U . Bower, F . S . Bower, and make him liable . We see no alternative but to
A. E . Bower (the other twocbildren being infants), | offer the property, unless you can suggest some
released Uppleby from all claims in respect of the other course."
Ct. Of APP.] Re SALMON ; PRIEST v . UPPLEBY. (CT.OF APP.
The plaintiff's solicitor replied on the 22nd | moneys of the testator in his hands." That
April : “ As we presume there is no prospect of seems to me to exactly express the position of a
the property in question improving in value, we trustee who has made an improper investment.
presume the best course will be to offer it for Quâ trustee he has not made the investment at
sale by public auction.” He also asked for the all. True it is that the trust estate is short of
date of the release, and said that on receiving a so much money , and that that has been put into
reply he would consider whether he could suggest someinvestment, but it is not a trust investment,
anything. and the trustee is liable to make that money good
The action was tried before Kekewich, J. in out of his pocket. That is his liability. He is
Feb . 1889. treated as not having made an investment at all,
S. Hall, Q .C . and P. F. Stokes for the plaintiff. and as, therefore, having in his hands money
belonging to the trust estate which he is liable to
Warmington , Q .C . and J.G . Wood for Uppleby. pay, and he is ordered to pay. He is entitled to
Neville , Q .C . and D . Sturges for persons served reply : “ Yes, but there is standing in my name,
with a third -party notice. or in the names of others, the property which
The following authoritieswere cited : was purchased with the trust estate. You say I
Knott v . Cottee, 16 Beav . 77 ; improperly used the trust estate for that purpose,
Francis v. Francis, 5 De G . M . & G . 108 ; and, if you make me replace that money, I am
Gibbins v . Taylor, 22 Beav . 344 ; entitled to have the property which I purchased
Clough v . Bond, 3 My. & Cr. 490 ; with my own money, which was supposed to be
Seton on Decrees, 4th edit., vol. 1, p. 466 . trust estate at the time, but which by the judg
KEKEWICH, J.- The point which I have to ment of the court is held to be my own money,
decide is admittedly free from express authority, and I am entitled to that property for my own
and it is most distinctly raised in the statement benefit.” That has always been held to be the
of defence , so that there can be no doubt what right of the trustee if he replaces the trust
the pleader meant. The point arises in this way : estate. On the other hand, the court, adminis
In 1881 Mr. Uppleby, the trustee of this will, tering justice between trustees and cestuis que
invested part of the trust money, namely, 13001., trust, has said : “ Yes,but we will keep our finger
on a mortgage of somereal estate - houses — and on tbat property until you have made good the
I assume for the purposes of the question now trust estate, and the cestuis que trust, tracing their
under consideration that that was an improper trust property into this improper investment,
investment. He retired from the trust while are entitled to a lien upon it to make good
that mortgage was still belonging, in form at the trust, property." Those are the correlative
least, to the trust estate, and be was a party to rights of trustees and cestuis que trust when the
the appointment of new trustees, and made over question of improper investment comes before
the trust property to them . If the mortgage the court. I do not think the cestuis que trust
had been realised by the new trustees in the are entitled to say, “ Wewill sell the property
ordinary course of their duty without the inter which you improperly purchased ,and charge you
vention of the plaintiff , Mr. Uppleby could not the difference without giving you the chance of,
hare, escaped liability . But as a matter of fact so to speak , redeeming , that is to say, paying
it was not sold in that way. What happened was back or restoring the trust property, and , in that
this : The trustees proposed to realise this mort event, of taking that which you have improperly
gage, which was then known to be an insufficient purchased .” That seems to me the principle of
security for the money advanced upon it. The equity applicable to this case. As I have pointed
plaintiff had purchased the share in reversion of out, the plaintiff was a party to the sale, and he
one of the cestuis que trust, and was then entitled did not take any steps to give Mr. Uppleby that
to an interest in this and other investments of option, and to tell him : “ Now , we are going to
the trust funds. The solicitor of the trustees sell this property. We believe it will realise a
communicated with the plaintiff,as such assignee, loss. Are you prepared , as a trustee who has
with reference to therealisation . Correspondence been guilty of a breach of trust, to take the
extending over some period followed , and I take property and make the trust estate good ? ” I
the letters of the plaintiff, or rather of his soli. think he ought to have given him that option . I
citor, as amounting to this : “ By all means sell think that, not having given him that option, he
this property . It is an investment which ought cannot now say that Mr. Uppleby is responsible
never to have been made, and we shall lose for the loss which , for aught I know , would never
money, but the best thing is to sell.” It was have occurred. I think, therefore, that on this
sold , and at a considerable loss, and the plaintiff point the plaintiff 's case fails, and must be
seeks now to make Mr. Uppleby, the retired dismissed with costs as against Mr. Uppleby and
trustee, liable for all the loss. Is he entitled to the new trustees.
do that ? In order to answer that question I The plaintiff appealed , and the appeal was
must consider what is the position of a trustee opened on the 13th May 1889, when the court
who has made an improper investment. I might gave leave to the defendant to serve the third
take it from many authorities, but I happen to parties with notice of the appeal, and adjourned
have before me, in the case of Knott v. Cottee (ubi the appeal to enable this to be done: (61 L . T . Rep .
sup.), a statement which seems to me directly N . S. 146.)
applicable . The Master of the Rolls there, ✓ The appeal again came on for hearing on the
speaking of how a trustee ought to be made 18th and 19th June 1889 .
liable who has made an improper investment,
says : “ The case must either be treated as if S. Hall, Q.C. and P. F. Stokes for the appellant.
these investments had not been made, or had - The property taken in mortgage was insuffi
been made for his own benefit out of his own cient in value, even on the face of the valuation ,
moneys, and thathehad at the sametimeretained and the investment was therefore improper. The
April 19, 1890.) THE LAW TIMES. [Vol. LXII., N . S.- 273
CT. OF APP.] Re SALMON ; Priest v. UPPLEBY. [CT.OP APP.
plaintiff had nomeans ofknowing the true value, the whole fund - the cestuis que trust repudiated
though he knew that the class of property was the security, but retained a lien on it :
within the terms of the trust. The responsibility Mant v . Leith, 15 Beav. 524.
of seeing that the investment was sufficient lay | Uppleby ought to have had potice that a sale was
on the trustees, not on the plaintiff : about to be made, in which case it would have
Macleod v. Annesley , 21 L . T . Rep. 0 . S. 40 ; 16 been made in his presence, unless he had taken
Beay . 600 ; over the security . But the investment was not a
Life Association of Scotland v. Siddall, 4 L. T. Rep . breach of trust. It was not a hard -and-fast rule,
N . S . 311 ; 3 De G . F . & J. 58
Fry268v.; Tapson, 51 L. T. Rep. N .'S. 326 ; 28 Ch. Div. even before 51 & 52 Vict. c. 59, s. 4 , sub -sect. 1,
that a trustee could never advance more than
Smethurst v. Hastings,52
Ch . Div . 490 ; L. T. Rep.N . S.567; 30 two-thirds of the value on agricultural land or a
Re Olive , 55 L. T. Rep . N . S.83 ; 34 Ch. Div . 70. half on house property ; it is enough if he act
Uppleby is not relieved from liability by the fact as a prudent man would have acted in dealing
of a sale having been effected under the power. with his own property :
Re Godfrey, 48 L . T . Rep. N . S. 853 ; 23 Ch. Div.
The personal remedy of the cestui que trust 483 .
against his trustee for loss arising from an D . Sturges for the persons served with the
improper investment remains, notwithstanding | third -party notice. The plaintiff makes no case
he has parted with his lien on the investment: against the new trustees, nor has Uppleby coun
Knott v. Cottee, 16 Beav. 77 ; ter-claimed against them . No case has been
Francis v. Francis, 5 De G . M . & G . 108 ; opened against the third parties, and no evidence
Ex280parte Norris; Re Biddulph , L. Rep. 4 Ch. App. against them has been given .
.
Hall, in reply , admitted that the plaintiff could
Itwas not the duty of the plaintiff to stop the not claim more than one-sixth of the loss.
sale.
Warmington , Q .C . and J. G . Wood for Uppleby . Cotton, L.J. — This is an appealby the plaintiff
- Admitting the security to be improper, the from a decision of Kekewich , J., dismissing an
plaintiff cannot now complain . He knew of its | action brought against Uppleby, a retired trustee
beingmade at the time, and he knew and approved of the will of Eliza Salmon , the object of the
of the sale. The trustees having sold with the | action being to make him responsible for an
assent of the beneficiaries, Uppleby is prevented improper investment. There are two questions
from obtaining any benefit from the security on to be considered . The first is, whether the
the terms of replacing the trust fund, and the | investment in question was wrongful. It was
security has been adopted by the beneficiaries as within the terms of the trust, for it was an invest
part of the trust property. The beneficiaries ment on mortgage of a freehold estate. In one
might have asked the trustees to sell and make sense, therefore, it was in accordance with the
good the deficiency , or pay the sum invested and trusts, and, if the trustee took due care as to its
take over the security ; but they cannot sell the | sufficiency, there would be no breach of trust, and
property behind the trustees' back , and then nobodycould complain though it ultimately proved
prove for the deficiency. They may ratify an insufficient. The case differs from that of an
improper investment, so as to make it trust investment not within the terms of the instru
property , and relieve the trustee from liability ; ment, which is necessarily a breach of trust, so
or they may repudiate the investment, retaining that if any loss occurs the trustees must be liable
a lien upon it for the trust money invested , with | for it. The question here is, whether Uppleby
a right to sell it and make good the deficiency : took proper care in seeing to the sufficiency of
Thornton v. Stokill, 26 L . T. Rep . 0 . S. 26 ; 1 Jur. the security . Now , as regards the rule which
N . S . 751. has been so much discussed as to the amount
But here the new trustees, by selling under the which may be lent on a given security, the law is
powers in the mortgage, accepted the mortgaged thus summed up in Learoyd v . Whiteley (58 L . T .
property as part of the trust estate, and the Rep . N . S. 93 ; 12 App. Cas. 727, 733) : “ As a
plaintiff ,being concerned in what they did, cannot | general rule the law requires of a trustee no
complain that the investment was improper . higher degree of diligence in the execution of his
[Fry, L .J. - Does any authority extend beyond this office than a man of ordinary prudence would
- that the trustee may replace the invested trust exercise in the management of his own private
money, and take over the investment ? Is an affairs. Yet he is not allowed the same discretion
offer to give him the investment on his replacing in investing the moneys of thetrust as if he were
the trust fund a condition precedent to the right a person sui juris dealing with his own estate .
to sue ? COTTON , L . J. - 10 Thornton v. Stokill Business men of ordinary prudence may, and
the investment did not purport to be in accord 1 .frequently do, select investments which are more
ance with the trust.] When an investment has or less of a speculative character ; but it is the
been realised behind a trustee's back , a trustee duty of a trustee to confine himself to the class
has nerer, so far as we can find, been held liable of investments which are permitted by the trust,
for the loss. Beneficiaries must elect whether and likewise to avoid all investments of that
they will approve of or repudiate the investment ; class which are attended with hazard. So long as
it is too late to complain after they have elected he acts in the honcst observance of these limita
to retain the security. The trustee in Smethursty. | tions, the general rule already stated will apply .
Hastings was ordered to pay immediately all the The courts of equity in England have indicated
money improperly invested , the investments and given effect to certain general principles for
being given up to him . [Cottox, L .J. — There the the guidance of trustees in lending money upon
fund was immediately divisible, and the mort. the security of real estate. Thus it has been
gages could not be quickly realised .] In laid down that, in the case of ordinary agri.
another case the trustee was directed to replace I cultural land, the margin ought not to be less
274 - Vol. LXII., N . 8.] THE LAW TIMES. (April 19, 1890 .
CT. OF APP.) Ro SALMON ; PRIEST v. UPPLEBY. [CT. OF APP.
'than one-third of its value; whereas in cases where I referred to in support of the case of Mr. Uppleby.
the subject of the security derives its value from In that case the testator, who had been a trustee,
buildings erected upon the land, or its use for trade | had invested part of the trust funds in baying
purposes,the margin ought not to be less than one cottage property , which was entirely out of the
half. I do not think these have been laid down scope ofhis power of investment. The cestuis que
as hard -and-fast limits up to which trustees will trust wanted to take the cottage property at a
be invariably safe, and beyond which they can certain sum and prove against the estate for the
never be in safety to lend, but as indicating the residue of the trust funds. Lord Hatherley
lowest margins which in ordinary circumstances held that they had a claim to the houses as
a careful investor of trust funds ought to accept." against general creditors, but that they had no
These rules have therefore been recognised in the right to set a value on them . They must either
House of Lords, though they have been im - seil and prove for the deficiency, or take to the
peached by Mr. Warmington and Mr. Wood. In houses. That case has no bearing on the one
the present case the value of the property was before us. Mr. Uppleby, then, remained liable for
mainly derived from buildings. I do not think the deficiency, though no notice was given to
that the valuation of the property has been him . The plaintiff is not open to the objection
successfully impeached , and we must therefore raised against him that he directed the sale. He
take the property as having been worth 17501. did not direct it. The trustees referred to him ,
The trustees lent 13001. upon it. Now , we must and hemerely said he could not suggest anything
have regard not only to the value, but to the nature better than a sale by auction. Hewas merely pas
of the property .It consisted of small houses sive. I cannot agree with the decision of Keke
let at weekly rents, and we know the class of wich, J., and in my opinion there must be a
tenants likely to be attracted by cottage property decree against Mr. Uppleby for the plaintiff 's
in Hull. It was certainly not prudent to share of the deficiency.
lend to this extent upon property the value FRY, L .J . - I have been requested by Bowen ,
of which depended on labourers' houses L .J. to deliver judgment before him . The first
being wanted in that part of Hull. The question we have to consider is, whether the in
investment, therefore , was a breach of trust as vestment was proper - whether it was one which
having been made improvidently. The second a prudent man would make. I am of opinion
poirt is new , and no authority is to be found that it was improper. A trustee who disregards
upon it. It was contended that the plaintiff had the rules of the court as to the amount which
taken part in the sale of the mortgaged property may be lent on mortgage of a property, though
by the new trustees, and that he could not call they are not hard -and-fast rules, takes upon him
on the late trustee to make good the loss, because, self a great risk . This was cottage property, and
as it was contended , the late trustee was entitled the trustee invested on mortgage of it more than
to notice of the intention to sell, so that hemight two-thirds of its value. Not only did he trans
have an opportunity of taking to the mortgage I gress the rule as two-thirds, but he transgressed
and paying to the trust fund the amount lent on it in the case of cottage property in a town, the
it. If that be the law , the late trustee is not value ofwhich dependson shifting circumstances ;
liable. But there is a fallacy in this argument; and the fact that at the time of the mortgage
it is founded on treating the mortgage as not some of the houses were unfinished and unlet
being part of the trust estate. That view is strongly corroborates the view that the invest
wrong. The money was invested according to | ment was improvident. The next question is,
the terms of the trust, though without due care, whether the plaintiff has in any way acted so as
and the mortgage was from the first a part of the to lose his primâ facie right to call on Mr.
trust estate. When Uppleby retired he trans Uppleby to make good the loss. Two arguments
ferred the mortgage to the new trustees, to be were brought forward to show that he bad . First ,
held on the trusts of the will,and unless their that the plaintiff purchased after the investment
acceptance of it exonerated him from his liability was known to him , and that therefore he cannot
for taking an insufficient security, I do not see complain of it. The facts hardly support this
how he was exonerated from the consequences of argument. The plaintiff was a mortgagee of A . E .
his neglect of duty . The case is entirely distinct Bower's share before the investment complained
from that of an investment outside the terms of of was made, and the only information he had
the trust, which the cestui que trust must accept of it when he purchased the equity of redemp.
or reject. Here the trustee is only liable for the tion was that contained in a letter of the 30th
loss, and that liability is to be enforced when the Jan. 1883, which gave him no reason for ques.
investment is realised . I think that the realisa tioning the propriety of the investment. There
tion was effected under the power which Uppleby | is, therefore, no reason for holding him barred on
gave to the new trustees by handing over the in this ground. Secondly, it is urged that the plain
vestment to them , and he is liable for the defi tiff was a party to the sale in 1887, and has there .
ciency . It is like a sale of mortgaged property by lost his right. What took place was this : The
by the mortgagee under a power without the solicitor to the trustees informed the plaintiff's
concurrence of the mortgagor. If the sale is solicitor of the intention of the trustees to offer
improperly made, it may be impeached , but if it the property for sale,and on the 19th April wrote
is made fairly , the mortgagor is bound by it, and to him saying that he could see no course but to
is answerable for what remains due on the mort. | offer it for sale , unless the plaintiff could suggest
gage after deducting the proceeds of sale. I some other course . The plaintiff 's solicitor replied
think that this mortgage was part of the trust that he could not suggest anything better than a
property , that no duty therefore arose in the sale by auction . There is nothing in that. The
cestuis que trust to say whether they wonld accept plaintiff's consent was not required to a sale, and
or reject it, and that the late trustee is liable for I cannot make out how the plaintiff can be con
the deficiency . Thornton v . Stokill (ubi sup.) was ' sidered a party to the sale. The substratum of
April 19, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. - 275
CT. OF APP.] WESTON v . THE New Gustox COMPANY. [CT. OF APP.
this argument therefore fails. But then , it is pursuant to sect. 161 of the Companies Act 1862,
urged that, if the plaintiff has not precluded that the company should be wound -up and its
himself from relief by his own acts, the conduct assets transferred to a new company to be formed ,
of the new trustees has released Mr. Uppleby and that every shareholder in the old company
from liability. It is urged that an offer of resti might exchange his shares for shares in the new
tution of the property to the trustee who has company on signifying his desire so to do to the
improperly invested upon it is a sine quâ non if liquidator within one calendar month . By
it be sought to make him liable for the invest resolutions passed in March and Feb. 1888 , a
ment. I think that is not so. There is no case further period of one month was given for
to show that where trust money is improvidently exercising this option . The plaintiff did not
invested on an insufficient security of an author exercise her option within either period. The
ised description , the trustee cannot bemade liable new company was registered in Sept. 1887. By an
unless an option is given him of taking to the agreement, dated the 2nd May 1888 , and made
security. I think that the liability ofthe trustee between the liquidator of the old company and
in such a case is to make good the loss occasioned the new company, it was agreed that the new
to the trust estate by the improper investment. company should purchase the undertaking of the
Themode of enforcing this liability depends on old company, and that every member of the old
the circumstances of the particular case. In some company should “ be entitled to require ” (with
cases justice will be best done by realising the out specifying any limit of time) the new com
security,and making him pay at once the whole pany to allot to him shares in the new company
sum improperly invested,and letting him take the to the extent of 178. 6d . paid up , and that the
benefit of the security . In the present case all new company should execute a deed -poll cove
that the trustees did was this : The retired trus nanting with the creditors and members of the
tee had lent on a mortgage with a power of sale. old company to observe the provisions of that
On his retirement he transferred the mortgage agreement. On the 11th May 1888 the new com
to the new trustees, and they afterwards sold pany executed a deed -poll covenanting with the
under that power. How can it be said that they creditors and members of the old company to
thereby precluded the trust estate from any re perform the agreement. In March 1888 the
lief against the retired trustee ? They sold under plaintiff wrote to the liquidator of the old com
the power which he himself had given them by pany dissenting from the arrangement. The
transferring the security to them . shares in thenew company were at first unsale
BOWEN, L .J. - I am of the same opinion , and able,but gradually rose to a considerable value.
shall add nothing as to the law of the case. I do The plaintiff then applied for an allotment of
not differ from anything that has been said by shares, but, this being refused , she brought an
the Lords Justices, but I do not think that the action , claiming an allotment of 3950 one pound
shares in the new company credited with 178. 6d.
question of law on which Mr. Uppleby mainly
relies arises on the facts. I cannot see that the paid up on each share, or damages for refusal to
having
plaintiff directed the sale, or did anything more allot. Kay, J. held , that the plaintiff,
than stand by, and I see nothing in that to take received notice of the resolutions under sect. 161
away any right which he had . of the Companies Act 1862,and not dissenting,was
Order of Kekewich J. varied by declaring the bound by the resolutions ; that the agreement and
investment a breach of trust, and ordering deed-poll were steps in the arrangement,and the
Uppleby to pay to plaintiff 801. (his share of plaintiff should have applied for shares within
the limit of time fised by the resolutions; and
the loss),with interest from death of tenant that the plaintiff having lain by in a speculative
for life. Liberty to any beneficiary not partnership until the shares rose in value, her
bound by the release and indemnity to apply action for allotment of shares or damages could
in chambers for the lo88 sustained by him . not be maintained in equity , but must be dis
Questions on third -party notice remitted to missed : (60 L . T . Rep. Ñ . S. 805 .)
Kekewich , J. Held . on appeal, by Cotton and Lopes, L.JJ.
Solicitor for the plaintiff, H . Hocombe. (Fry, L .J. dissentiente), that there was an obliga .
Solicitor for Uppleby, Hicks and Sons, agents tion upon all the shareholders to apply within a
for Brown and Son , Barton-on -Humber. limited timeto the new company to allot shares to
Solicitors for the new trustees and benefi. them , and that, as the plaintiff had not made her
ciaries, G . H . Bird, agent for H . C . Lisle, Nant application within that time, the course taken by
wich. the court below in dismissing her action was
right.
Thursday, Aug. 8, 1889. Held , by Fry , L.J., (1) that whereas in September
1887 it was intended to confine the rights of the
(Before COTTON, FRY, and LOPES, L.JJ.) old members to those who made application
WESTON v . THE New GustON COMPANY. (a) within a particular time, in May itwas intended
APPEAL FROM THE CHANCERY DIVISION . to give the right to every old member, the object
Company - Liquidation — Transfer or sale to new of the arrangement being to get, if possible,
company , Dissentient shareholder - Neglecting 28. 6d . per share on all the old shares ; that the
to take shares within timespecified by resolutions deed of May was a covenant by the new company
- Effect of subsequent agreement- Ultra vires with the existing members of the old company ;
Companies Act 1862 (25 & 26 Vict. c. 89), and therefore on the point of construction the
8. 161. plaintiff was right ; (2 ) thatthe deed was a valid
contract, because, although the shares were issued
The plaintif" was a shareholder in a company at a discount, the instrument had been properly
which passed a special resolution in Aug . 1887, registered ; but (3) that, as the special resolution
(a)Reported by FRANK EVANS, Esq., Barrister-at-Law . only justified the allotment of shares to those
276 - Vol. LXII., N . 8.] THE LAW TIMES. (April 19, 1890.
CT.OF APP.] WESTON v. The New Guston Company. [CT. OF APP .
members who sent in application by April 6 , | series, be entitled to require the new company to
everything beyond that was outside the power allot to him or his nominee one 11. share in the
of the liquidator of the old company, of the old new company, to be issued as paid up to the
company itself,and of the new company. extent of 178. 6d . and with a liability attached to
The plaintiff was a holder of 3950 shares in the it of 28. 6d.” This deed also provided that the
Guston Silver Mine Company Limited , a com new company should execute à deed -poll coven
pany formed on the 22nd Feb . 1886 for working a anting with the creditors and members
n of the
mine in Colorado, but now in liquidation . old company to observe the provisions of that
By special resolutions passed and confirmed agreement ; and the new company executed a
by the whole company in Aug. 1887, pursuant to deed -poll dated May 11, 1888 , covenanting with
sect. 161 of the Companies Act 1862, it was the members of the old company to perform the
resolved that that company should be wound -up agreement of May 2. The deeds of May 1888
and its assets transferred to a new company to be specified no time within which the holders of the
formed, being the defendant company. old company's shares were to be “ entitled to
The 4th ofsuch resolutions also provided (there require " thenew company to allot the shares in
being two classes of shares) that the B . share exchange .
bolders should receive in exchange for their The plaintiff had notice of the periods fixed by
shares in theold company fully paid -up shares in the special resolutions for applying for shares in
the new company, but that the A , shareholders the new company, but, instead of availing her
in exchange for their shares should get shares self of her option, she took proceedings in
with only 178. 6d . credited as paid up. Colorado, though unsuccessfully, to prevent the
The 7th resolution provided that, carrying out of the sale from the old to the new
Every shareholder in the old company who may be company. In Feb . 1888 she wrote to the liquidator
desirous of exchanging his shares in the old company
for shares in the new upon the aforesaid terms shall expressing her dissent from the scheme. In
signify such desire to the liquidator within one calendar July and Sept. 1888 successive notices were
month of the confirmation of these resolutions, and shall issued by the new company to the shareholders
within the same period satisfy all liabilities in respect in the old company (but not to the plaintiff)
of his shares in the old company . inciting them to come in and take shares, and it
The 8th resolution was as follows : was not till Oct. 1888 that the new company
Any shares in the new company which may not be ceased to allow the exercise of the option.
taken up by the shareholders of the old company upon When the special resolutions of March 1888
the aforesaid terms and within the aforesaid period of
one calendar month may be issued and allotted by the were passed the shares in the new company were
board of the new company to such persons and upon unsaleable, but by Nov. 1888 they had risen to a
such termsin all respects as they may think fit . premium . In thismonth the plaintiff attempted to
By a deed of Sept. 9th 1887,between the liqui exercise her option , claiming that under the deeds
dator of the old company and a trustee on behalf of May 2 and 11, she had such a right even though
of the new company, after providing for handing the periods limited by the special resolutions had
over all the assets, it was provided “ that no expired . The new company, howerer, refused to
member of the old company shall be entitled to recognise her claim , whereupon she brought an
require any shares in the new company to be action claiming from the company an allotment
allotted to him until he shall have complied with of 3950 shares with 178. 6d. credited as paid up on
the conditions specified in the fourth and seventh each . On April 16 , 1889, Kay , J. decided against
of the said special resolutions." her claim : (60 L . T . Rep . N . S . 805.)
The defendant company was registered on the The plaintiff appealed.
15th Sept. 1887.
In March 1888 the old company passed further Sir Horace Davey , Q .C ., Marten , Q .C ., and
special resolutions modifying those of Aug. 1887, Warrington, for the appellant.— The deed of the
by providing that every shareholder of the old 2nd May 1888 first established the legal cha
company, whether a holder of A . or B . shares, racter of vendor and purchaser between the two
should alike be entitled to require shares in the companies, and in pursuance of that deed the
new company to be alloted to him in exchange, deed -poll of the 11th May was executed , and the
but in eitber case only 178. 6d . should be credited plaintiff sues on the covenant in this deed. The
on the new company shares so issued , and by pro provision in it that, “ every member of the old
viding that the one month from the confirmation company shall be entitled to require " an allot
of the original resolution limited for shareholders ment, amounts to a covenant 'between the new
in the old company to apply for shares in the company and the plaintiff for breach of which
new company should be extended to onemonth she can sue. The delay is immaterial in an
from the confirmation of the further special action for breach of covenant. No doubt the
resolutions ; and this further period of onemonth company might after the deed of the 2nd May
expired on the 6th April 1888 . have served the plainciff with notice to come in
By deed dated 2nd May 1888,made between within a reasonable time. They did serve the
the liquidator of the old company and the new other shareholders with notices in July and
company, with a view to carrying out the sale to August, but the plaintiff had no such notice
the new company in the terms of the special | given ; and when she became aware of the deed.
resolutions, after reciting the first set of resolu - | poll she at once claimed her right. Lasches is not
tions, the deed of the 9th Sept. 1887, and the à defence in a court of law, but lying by may be
further resolutions,and providing for the transfer, | treated as abandonment. No notice of the deed .
it was provided that, “ As the residue of the con poll is shown to have been given to ber. The
sideration for the said sale, erery member of the action in Colcrado was begun before the date of
old company shall in respect of each share there the deed . The plaintiff's notice to theliquidator
in held by bim , whether of th : A . series or B . T in Feb . 1888 was not sufficient to make her a
April 19, 1890.) THE LAW TIMES. [Vol. LXII., N .8.- 277
CT. OF APP.] WESTON v. THE NEW GUSTON COMPANY. [Cr. OF APP.
" dissentient " within sect. 161 of the Act of 1862, | new company. Now the liquidation was simply
as it did not satisfy the requirements of that to enable this arrangement to be carried into
section . Standing by is no answer to a legal effect, and it was done under sect. 161 of the Act
claim like this is : of 1862. The whole power of the old company
Re Maddever : Three Towns Banking Company v. to enter into this arrangement and to sell its pro
Maddever, 52 L . T. Rep. N . S. 35 ; 27 Ch. Div. perty to the new company depends on the terms
523. of the special arrangement. Resolutions were
They also cited passed to carry out an arrangement. [His Lord .
Prendergast v . Turton , 1 Y . & Col. 98 ; ship then stated the facts, and referred to the
Clarke v. Hart, 32 L , T. Rep . N . S. 380 ; 8 H . of L . terms of the deed of the 2nd May 1888, with
Cas. 633. regard to which he said :] No intention is in any
Rigby, Q .C., and Chadwyck Healey, for the way expressed to depart from the provisions
defendant company.-- By the articles the com which already existed under the two sets of reso
pany was only bound to serve notices on share lutions, or to release the shareholders in the old
holders having registered addresses in the company from the obligation which they were
United Kingdom , and the plaintiff had no such under as regards coming in at a certain time.
address. The deeds of the 2nd and 11th May Then , again , can we think that by this deed it
were a merely formal carrying out of what had was intended entirely and materially to alter the
been resolved on . The power of the liquidator position of the shareholders in the old company P
was only to carry out these resolutions ; and if in Although they had not complied with the requi
the deed of the 2nd May he purported to provide sitions of either set of resolutions, are they
that " every shareholder " was to be entitled to entitled as against the new company to claim
require an allotment, the deed was ultra vires. those shares, which , as against the old company,
The resolutions of the old company fixed the right | they never could have claimed , not having come
ofits shareholders. The plaintiff's only right was in within the requisite time ? In my opinion,
in pursuance of those resolutions, and, as she did although the words here are general- " every
not avail herself of those rights, her claim fails. member " - it must be implied that they only
Warrington replied . apply to those members who complied with what
were the resolutions of the old company being
COTTON, L .J. — The plaintiff in this case was, wound-up, on which alone the liquidator ob
and is, a shareholder in the old company called tained his power to sell. To give them any
the Gaston Silver Mine Company Limited , and greater effect would be contrary to the true
that company was wuund-up voluntarily in order principles on which one ought to construe a deed
to carry out an agreement which was made by the like this. Reliance was placed on the fact that
liquidators in order to sell, for shares in the new the deeds of the 2nd and 11th May were both
company, the property of the old company to the executed after the time which had been limited
new company. The plaintiff is now suing under a for shareholders in the old company to come in ,
covenant contained in a deed of covenants exe and that circulars were afterwards sent by the
cuted by the new company, giving all the share | new company to shareholders in the old company
holders in the old company a right to sue in calling upon them , if they wished , to come in and
order to enforce as against the new company such claim their shares . But the new company, in my
rights as they had under the deed of the 2nd opinion, in no way gave the shareholders of the
May 1888. The question is really whether the old company any greater right than they would
plaintiff is now entitled to sue under that cove otherwise have had by sending them notices
nant, that is to say, whether she can get anything beyond the time within which the shareholders
by suing. It gives her a direct right of suit as ought to have sent in their notices to the old com
against the defendant company ; but can she get pany. In my opinion , though on different
anything . In order to consider that, one must grounds, the view taken by the court below ,
go through the history of the case. She did not dismissing this action , was right, and the appeal
come in willingly to agree to the arrangement | must fail.
which was made, but took proceedings in FRY, L .J . - I am not able to take precisely the
America to stop it if she could . However , that same view as that taken by Cotton , L .J ., and
is past and gone. I think the case was argued therefore I must , I fear, state the view which I
before Kay, J . as if it was a case of enforcing take of the various transactions which we have to
specific performance by granting to the plaintiff review . In Aug. 1887 the first set of special
the sbares in the new company which she con resolutiors was passed , and one important ques
sidered she was entitled to , and he decided tion has been argued upon them , which is this :
against the plaintiff on the ground of her delay Is the true construction of those resolutions to
(there was great delay) and her unwillingness to give to every shareholder in the old company a
come in and take the shares in the new company ; right to receive a share in the new company for
but that line hasbeen abandoned now , and I think every share in the old , and is the 7th section , which
rightly . What is the effect of this covenant ? No requires the signification of the desire within
laches would deprive her of the benefit of it if sbe one calendar month , merely a directory clause ;
is entitled under the covenant. The covenant is or, on the other hand, is the right of a share
this : The new company agrees with all the old holder in the old company limited to receiving
company's shareholders duly to perform and a share in the event of his signifying his desire
observe all and singular the obligations imposed within the calendar month ? Now , themodifying
upon the new company by the agreement dated resolutions of March 1888 were followed by the
the 2nd May 1888 . That is the covenant, and agreement of the 2nd May 1888 , and it is upon
that was the fair object of this deed ; but wehave the construction of this instrument that I am not
to consider what is the true effect of the deed of able to follow the Lord Justice in his view . To
the 2nd May 1888 between the liquidator and the I mymind the language is plain. It gives a right
CT. OF APP.] CURWEN v. MILBURN. [CT. OF APP.
to every member of the old company. Does that I any lien upon the deeds, & c., of our client, we
mean every member of the old company who had request you will be good enough to deliver us full
complied with the obligations of the resolution particulars thereof without delay ." Defendant
by satisfying all liabilities to the old company, and wrote in answer, “ Does your client require my
making the requisition for shares on or before bills of costs from the time when I became his
the 6th April 1888 ? I cannot so read it . I think sole agent ? " To this the new solicitors replied
the deed meant what it seems to me to say, and on the 26th June, “ Our client only requires you
gave the right to every member of the old com to deliver particulars of any unsettled bill of
pany. And that seems to meto be still further costs you may have against him .” On the 4th
emphasised by the agreement of the 11th May, July 1888 the plaintifº took out this originating
upon which , in fact, the plaintiff is suing, because summons,asking for the delivery and taxation of
that is, in express terms, a covenant by the new the defendant's bill of costs, and the delivery of
company with each of the existing members of the all documents in his posssession belonging to the
old company. I think more emphatic language plaintiff. On the 31st July an order was made
could hardly be used to describe everybody. I on the summons for delivery and taxation of the
think , therefore, upon the point of construction, bill of costs. The taxing master had struck out
the plaintiff is right. But then arises the ques on taxation certain items without entering into
tion , was that deed a valid contract ? Had the the question of their propriety, on the ground
old company any power to enter into this agree that they were barred by the Statute of Limita
ment, and had the new company any power to tions. The defendant objected to the taxation on
enter into this agreement ? There, I think , Mr. the grounds (1) that he had a lien for his costs
Rigby's argument succeeds, and for this reason : which was not affected by the Statute of Limita
The old company had no power to act in this tions; (2 ) that the letter of the 26th June and
way, to sell its assets for shares in the new com the other correspondence amounted to an acknow
pany, except by force of the 161st section of the ledgment sufficient to take the case out of the
Act of 1862. That gives a power to the liqui. statute .
dator to act under the authority of a special North , J. held that the letter of the 26th June was
resolution . Now the special resolutions in this one from which , on the authority of Quincey v.
case only justified the allotment of shares to Sharpe (34 L . T. Rep . N . S . 495 ; 1 Eæ. Div.
those members who had sent in their notices by 72), Skeet v. Lindsay (36 L . T. Rep . N . S. 98 ;
the 6th April. Everything beyond that was, 2 E . . Div. 314), and Banner v. Berridge (44
therefore,beyond the powers of the liquidator,and L . T. Rep . N . S. 680 ; 18 Ch . Div. 254), a
beyond the powers of the old company itself. In promise to pay the amount when delivered must
like manner, it appears to me, it was beyond the be inferred, and was therefore a sufficient acknow
powers of the new company, because it was ledgment to take the case out of the statute ; and
formed expressly, by its memorandum , to carry that the new solicitors had sufficient authority
into effect theagreement of Sept. 1887 and March to write the letter.
1888 , which only provided for the allotment of Held , on appeal, without deciding the above
sbares to those members who had signified their points, that the object of the order was to ascer
desire by the 6th April, and the new company tain the amount for which the defendant had
had, therefore, no power to buy upon any other a lien on the plaintiff's documents, and that
terms. The agreement, therefore, of which the the terms of the order were wide enough to
covenant of 11th May is an integral part, was, in
my judgment, beyond the powers of the con
justify
decision .
North, J. in reversing the taxingmaster's
tracting parties. Therefore, although for a dif- Tom MILBURN , the defendant, had acted for many
ferent reason, I arrive at the same conclusion as years as with
satisfied the plaintiff' s solicitor.
the defendant, Becomingon dis
the plaintiff, the
Cotton , L .J. 16th June 1888 , signed a written authority,
LOPES, L .J. - I entirely agree with the judg addressed to Paisley and Falcon, solicitors,
ment given by Cotton , L .J. requesting them to obtain and receive from the
Solicitors : Harwood and Stephenson ; Harries, defendant all deeds and documents in the pos
Wilkinson , and Raikes. session , custody, or power of the defendant
belonging to the plaintiff, or in any way relating
to his manor of Priestgate, and also all other
Friday, Aug. 9, 1889. deeds, & c., in the possession , custody, or power
(Before Cotton , Fry,and LOPES, L .JJ.) of the defendant belonging to the plaintiff, or in
any way relating to the lands, tenements, here
CURWEN v. MILBURN.(a) ditaments,matters, actions, things, and premises
, APPEAL FROM THE CHANCERY DIVISION. in which the plaintiff was in any way interested ,
Solicitor and client - Costs - Taxation - Statute and of which the defendant had the possession,
barred costs — Acknowledgment- Authority. custody, or power as solicitor for the plaintiff,
and also to obtain and receive from the defendant
The plaintiff in this summons had for many years an account of his dealings and transactions with
employed the defendant ashis solicitor. In June the plaintiff's lands, tenements, hereditaments ,
1888 he became dissatisfied, and instructed other matters, actions, things, and premises since the
solicitors, and gave them a written authority to defendant was appointed the plaintiff's solicitor
obtain and receive from the defendants all deeds many years ago, or for such other period as the
and documents in his possession , custody, or new solicitors migbt think fit ; and the plaintiff
power belonging to the plaintiff. The new soli thereby authorised and requested the defendant
citors wrote to the defendant asking for deliveryto deliver up to the new solicitors all such deeds,
of documents,and added , “ If you claim to have books, papers, and documents as aforesaid.
(a)Reported by FRANK Evans, Esq., Barrister-at-Law . | Paisley and Falcon accordingly wrote to the
April 19, 1890.] THE LAW TIMES. [Vol. LXII., N .8.- 279
CT. OF App.] CURWEN V. MILBURN . [CT. OP APP.
defendant, inclosing a copy of the authority, and dant upon the documents in his possession
requesting him , if he claimed any lien upon the should attach to the sum of 3502. when paid into
deeds, & c., of their client, to deliver them full court, and that the delivery over of such docu
particulars thereof without delay. And on the ments by him to the plaintiff should be also
26th June 1888 they wrote, in answer to ques without prejudice to the defendant's lien .
tions, “ Our client only requires you to deliver The taxing master proceeded accordingly to
particulars of any unsettled bill of costs you tax the defendant's bill, and in doing so struck
may have against him . We suppose all other out all the items incurred before a certain date
bills of costs and items of account will appear in on the ground that they were statute-barred ,
your ledger or cash accounts which we require,” without reference to their propriety in other
and asking for an early appointment for delivery respects .
up of their client's deeds, books, papers, and The defendant then delivered the following
documents. objections to the taxation :- (1) That he had a
The plaintiff on the 4th July 1888 issued an lien for his costs which was not affected by the
originating summons against Milburn as defen Statute of Limitations ; and (2 ) that the corre
dant, instead of proceeding by an ordinary petition spondence contained a sufficient acknowledge
of course, and the summons did not contain the ment of the plaintiff's indebtedness, as regards
submission by the plaintiff (which would have I the items struck out, to take the case out of the
been contained in a petition of course) to pay statute. The master replied :- " The question of
what should be found due on taxation . An lien is not one for the taxing master, and does not
order, however, was made on the summons render it incumbent upon him to tax a bill barred
lupon the undertaking of the plaintiff to by the statute , or open to valid objection of any
pay any additional costs caused by the form other description than that of amount. No
of proceeding) that the plaintiff should pay evidence has been produced which , in my opinion ,
to the defendant any such additional costs, is sufficient to take the disallowed items out of
such costs to be taxed , and that the defen the statute.” He accordingly certified that he
dant should , on or before the 1st Oct. 1888, had taxed and settled the bill of fees at the sum
or subsequently within fifteen days after service of 2041. 11s. 9d ., and , after allowing for moneys
of the order, deliver to the plaintiff “ a bill of his received by the defendant, and payments made
fees and disbursements in all suits, causes, or by him , and for the costs of the reference,he certi
other matters of business in which he has been fied that a sum of 251. 188. 2d . remained due from
employed as solicitor for the plaintiff," and that the defendant to the plaintiff .
it should be referred to the taxing master to tax The defendant took out a summons to review
and settle the said bill; and there was a further the taxation on the ground that the taxing
order for the production on oath by the defen master's certificate , finding that only so much
dant of books, papers, & c.,and that the defendant was due in respect of the bill he had been directed
should give credit for all sums of money by him to tax, would prejudice the defendant's lien in
received of, or on accountof,the plaintiff, and that respect of the the statute-barred items,and might
heshould be at liberty to charge all sums ofmoney prevent him from enforcing it, as hewould have
paid by him to or on account of theplaintiff . And no answer to an application for delivery up of the
it was ordered that if such bill, when taxed , plaintiff's documents.
should be less by a sixth part than the said bili The summons was adjourned into court, and
as delivered, the master should tax the plaintiff heard before North, J. on the 18th May 1889. i
his costs of this application and of such reference, Swinfen Eady, for the defendant, in support of
such last-mentioned costs to include only such the summons. - The taxing master was directed
costs as would have been incurred if the plaintiff by the order to tax all the defendant's costs, and
had proceeded by a petition of course ; and that he certifies that he has done so , and that a
if such bill, when taxed , should not be less by a certain sum is due from the defendant to the
sixth part than the said bill as delivered , the plaintiff. In the face of such a certificate it
master should tax the defendant his costs of this would be very difficult for the defendant to
application and of such reference . And it was assert a lien on documents of the plaintiff , in his
ordered that themaster should certify the amount possession , in respect of other costs which have
due from the plaintiff to the defendant, or from not been taxed . À solicitor's lien on documents
the defendant to the plaintiff, as the case might remains, although the costs are statute-barred ,
be,having regard to the cost of the application for they are still a debt, although an action
and of such reference so to be taxed as aforesaid , cannot be maintained for them . Where the
and any sum or sums of money which might have solicitor has a lien on documents the statute
been so received or paid as aforesaid . Then , barred items ought to be taxed. But in the face
after directions for the payment of the amount of the certificate as it stands, if the plaintiff
80 certified , the order proceeded to direct that applied for an order for delivery up of his docu
the plaintiff should be at liberty to pay into ments, the defendant would have no answer to
court the sum of 3501., and that the defendant the application. The master ought either to have
should thereupon deliver over to the plaintiff on taxed the statute-barred items, or have certified
oath , on or before the 1st Oct. 1888 all deeds, & c., 1 the facts specially . NORTH , J.- Your summons
in his custody or power belonging to the plaintiff, might be dismissed without prejudice to the lien
and,the plaintiff so requesting, and the defendant for statute-barred costs.] That would remove a
assenting, that the defendant should , within great part of the difficulty. [Cozens-Hardy, Q .C .,
fifteen days after payment into court of the 3501., for the plaintiff , intimated that no objection was
hand over to the plaintiff such documents as the raised to this.] Secondly, the_ letter of the
plaintiff might, by himself or his solicitor, 20th June, from Paisley and Falcon to the
designate as wanted for immediate use. And it defendant, is a sufficient acknowledgment of the
was ordered that the existing lien of the defen . I items said to be statute -barred to take the case
280 _ Vol. LXII., N. S.] THE LAW TIMES. (April 19 , 1890.
CT. OP APP.] CURWEN v. MILBURN . [CT. OF APP.
out of the statute. An acknowledgment of the 1 nothing to indicate that the request is limited to
existence of a debt is sufficient. À promise to | bills since the last account was eent in . I do not
pay the debt is implied from such an acknow . think that is the meaning. I think it means all
legment : bills of costs which are unsettled ; and, in my
Quincey v. Sharp, 34 L . T. Rep . N . S. 495 ; 1 Ex. opinion , on the authority of the cases which have
Div. 72 ;
Skeet v. Lindsay, 36 L. T .Rep . N .S. 98 ; 2 Ex.Div. 314 ; been referred to, this letter, if it had been written
by the plaintiff himself, would have prevented
Tanner v. Smart, 6 B . & C , 603 ;
Banner v. Berridge, 44 L . T . Rep . N . S. 680 ; 18 Ch . him , not indeed from having the bills taxed , but
Div . 254 . from setting up the Statute of Limitations as
The written authority from the plaintiff to a bar. And, in my opinion , it makes no
Paisley and Falcon enabled them to bind the difference that the acknowledgment was made
plaintiff by this acknowledgment. by the solicitor, and not by the client. They had
Cozens- Hardy, Q .C . and Ashton Cross for the authority from him to settle whatever claim the
plaintiff. — The so -called acknowledgment was defendantmight have upon the deeds; they were
written by the plaintiff's solicitors, and they had authorised to ask for whatever account was
no autbority to promise to pay a statute-barred necessary to show what the amount of the defen
debt. The limit of their authority had been com - í dant's lien was ; they had anthority from their
municated to the defendant. An application for client to make the acknowledgment ; and I can
the taxation does not amount to an undertaking not therefore distinguish the case from those
to pay statute-barred items, and a request for an which Mr. Eady cited . I can see no discrepancy
account can have no greater effect. A promise between those cases and Green v. Humphreys (ubi
to pay a statute-barred debt can only be implied sup.) . The language used by Cotton, L .J. in
from an absolute unconditional acknowledment Green v. Humphreys is a little different, but I
of the debt : think he adopts the earlier cases. In myopinion ,
ReMitchell's claim , 19 L . T . Rep .N . S. 261 ; L. Rep . therefore, there has been such an acknowledge
6 Ch . App. 822 ; ment of the items in question as prevents the
Green
Div . v.
474Humphreys,51
. L. T. Rep. N . S.42 ; 26 Ch. plaintiff from setting up the statute, and the
But no such acknowledgment was given in the taxing master ought to have taxed those items.
present case. A common order for taxation is siderationnotthelike I should to decide without further con
question whether, under the com
founded on the client's submission to pay what mon order for taxation , the taxing master would
is due, but the taxing master would not tax properly disallow ,without taxing them ,all statute
statute-barred itemsunder such an order. barred items. The question does not really arise
Swinfen Eady replied . here, for it is clear that the parties intended
NORTH , J. - I do not see my way to distinguish there should be a taxation for the purpose of
the present case from those on which Mr. Eady determining what the amount of the solicitor's.
has relied , and therefore I think the letter of the lien was.
26th June is sufficient to take the case out of the The plaintiff appealed .
statute . If the letter had been written by the
client, then , in order that it might have that Cozens-Hardy, Q .C . and Ashton Cross for the
effect, it must come within the rule laid down appellant. The defendants, rely on the letter of
by Mellish , L . J. in Re Mitchell's claim (ubi sup.) : | the 26th June 1888 , as taking the case out of the
“ There must be one of these three things to take Statute of Limitations. Strictly speaking, no
the case out of the statute. Either there must bills of costs, but merely accounts, had been
be an acknowledgment of the debt, from which delivered. The bill in question began in 1873 and
a promise to pay is to be implied ; or, secondly, went down to 1878. North, J. held that the
there must be an unconditional promise to pay letters amounted to a promise to pay. But
the debt; or, thirdly, there must be a conditional (1 ) the letters were not writtenhadbyonly Curwen him
promise to pay the debt, and evidence that the self, but by his agents, who a limited
condition has been performed ." The question is, authority given by the document of the 16th
whether there has been an admission of a debt | June. That did not authorise the solicitor to
from which a promise to pay it is to be implied . | promise to pay a debt which would otherwise
Certain transactions took place between the have been statute-barred. This was not signed
plaintiff and the defendant, and then the relation by the client himself; and, even if it had been , it
between them of solicitor andgaveclient was termi would not be a sufficient acknowledgment. In
nated by the plaintiff,and he Messrs. Paisley Quincey v. Sharpe (34 L . T . Rep. N . S . 495 ; 1 Es.
and Falcon , his new solicitors, an authority in Div. 72 ), which is relied on for the defendant, a
writing. Paisley and Falcon entered into corre - clear demand for the account was made twice,
spondence with the defendant, and they wished to and the letters had been written before the
have the plaintiff's deeds and documents given up statute bad run, though the action was brought
by the defendant,and their firstobject wasto have after it had run . Here the statute had run before
them delivered up at once. Then the defendant the letter was written . No doubt there were
wrote the letter of the 26th June, in which he accounts within six years, and the document
asked whether the plaintiff " requires my bill of must be taken as referring to them . Where
costs from the date when I becamehis sole agent, there are several debts, some barred and others
or how otherwise ?” That, I think, means not, it is unreasonable to hold that asking for an
“ from what other date, or what other bills." . account is a promise to pay the barred debts ás
Then the same day Paisley and Falcon replied , well as the others. Theauthorities were reviewed
“ Our client only requires you to deliver par in Green v . Humphreys (51 L . T . Rep . N . S . 42;
ticulars of any unsettled bill of costs you may 26 Ch . Div. 474 ). In Skeet v . Lindsay (36 L . T .
have against him ." That is a request for par- Rep. N . S . 98 ; 2 Ex. Div. 314 ) there was a clear
ticulars of unsettled bills of costs, and I can see I promise to pay what was due. If by merely
April 19, 1890.) THE LAW TIMES . (Vol. LXII., N . 8. - 281
CT. OF APP.] CURWEN V . MILBURN . [CT. OP APP.
asking for his account a man were held liable for Cotton , L .J. - We have a question to decide
an old statute-barred debt which was not in his here on the effect of an order made on a cum
mind at all, it would be going much further than mons. It does not arise upon an order for tax.
any case has yet gone. We are not asking to ation under the Solicitors Act, made upon the
defeat the solicitor's lien as to the statute -barred usual petition of course, but upon an order made
debt. There must be a recognition by the debtor on a special application for delivery and taxation
of the debt as a debt binding upon him : (Rowe v . of the defendant's bills of costs, and for delivery
Hopwood , L . Rep . 4 Q . B . 1.) If a man merely up of the plaintiff's documents, the order being
asks for an account, it is an acknowledgment ;but that the defendant do deliver to the plaintiff a
if he signs at the foot of an account that it is bill of his fees and disbursements in all causes
correct, that is no acknowledgment. In Spong v. and other matters in which he has acted as the
Wright (9 M . & W . 629 ) the qualifying words “ if plaintiff's solicitor, and that the bill be taxed .
just " were beld to prevent a promise to pay Then it is ordered that the taxing master shall
being an acknowledgment. And in Re Mitchell's certify the amount that is due from the plaintiff
Claim (19 L . T . Rep. N . S . 261 ; L . Rep. 6 Ch. to the defendant, or from the defendant to the
App. 822 ) it was held there was no unconditional plaintiff, and that the balance. so certified to be
promise to pay. That is exactly what occurred due be paid . And the plaintiff is to be at liberty
bere. The clause here is equivalent to " if just.”. to pay into court 3501., on which the solicitor
We are willing (if necessary ) to submit to the is to have a lien instead of on the books and papers,
order being varied so as to make it without pre which , in the event of the 3501. being so paid in ,
judice to the defendant's lien. The taxing master are to be delivered up to the plaintiff . If tax .
would pot, under the common order for a taxation ation was all that was wanted , this certainly seems
of a bill of costs, tax statute-barred items. The la most extraordinary method of obtaining it.
plaintiff could not have been ordered personally | The evident purpose was to enable the plaintiff to
to pay debts barred by the statute when he had | ootain possession of his documents, and the real
made no acknowledgment and done nothing to object of the taxation was to ascertain theamount
take them out of the statute. of the defendant's lien on those documents. In
Romer, Q .C . and Swinfen Eady for the defen mv opinion , the solicitor was bound to bring in
dant. - The plaintiff wanted to have taxation of bills of costs as to all the transactions, and the ·
taxing master did not obey the order in only
all the bills of costs since the defendant was taxing
appointed his colicitor many years ago. That refusingtheto bills incurred within six years, and
tax the other items on the ground
authority was inclosed to the respondent, and an that they were statute -barred . It is argued that
early appointment for delivery up of all books,
deeds, and papers was requested . The object of the taxing master could not certify as due items
the application was to obtain possession of the so barred . In my opinion, the meaning of the
deeds, & c ., for which purpose it was necessary to order was, that everything properly owing from
the client, whether statute-barred or not, was to
ascertain the amount of the defendant's lien on be regarded as “ due." Debts barred by the
them . Under the order the defendant is bound Statute
to hand over the whole of the deeds on payment can be of Limitations are due, though no action
into court of 3501. That must refer to the lien. Then it isbrought to enforce payment of them .
contended that, as the plaintiff gave no
The order directs delivery of a “ bill," and tax undertaking to pay , he cannot be ordered to pay
ation of “ the said bill." The taxing master,
therefore, had no jurisdiction to mutilate these But the plaintiff includes
an amount which debts barred by statute.
has 'submitted to an order to
accounts, and only deal with those parts of them pay
which refer to the last six years. Secondly , as to In mywhat is found due on taking an account.
opinion , therefore, we cannot differ from
the authority of the solicitors, the letter was the judgment appealed from , though we do not
ample authority in itself, but the other circum . affirm it on precisely the same grounds. The
stances may also be looked at. Are we to inquire whole matter is governed
whether the plaintiff 's new solicitors went beyond on the summons, the objectby ofthiswhich order made
was to
their authority ? The client has not ventured ascertain the amount for which the defendant
to deny the authority . Delivery of all the had a lien on the plaintiff's documents. It is
bills was demanded . [ FRY, L . J. - I think unnecessary to decide whether the plaintiff has
asking for one's account really means this
(apart from authority ), “ Let me see what you done anything amounting to an acknowledgment
claim ." LOPES, L .J. - I think it is an admission barred of his indebtedness in respect of the statute
that he owes something.] In Prance v. Sympson items.
(Kay, 678, 681) Page-Wood , V .C . said : “ It is not client, FRY. L . J. - I am of the same opinion . The
necessary for the purposes of a suit for an account minded for some reason known to himself, was
to have an acknowledgment that a debt is actually obtainedto andepart from the ordinary course, and
order upon a special application ,
due ; but it is enough tbat there is an acknowledg. which order was not in the usual form of an örder
ment that an account is pending, and that the
defendant promises to pay the balance.” Here made upon a petition of course. The substance
the statute-barred debt is " due,” though it cannot of the order requires the plaintiff 's solicitor to
be recovered . The common form of undertaking deliver a bill of costs of all the suits, causes, and
in an order to tax a bill of costs is to pay what all other matters of business in which the defen
shallappear to be “ due ” (1 Seton, 4th edit. p .604 ). dant was employed or acted as the plaintiff 's
solicitor, and the taxing master was to tax and
Thatmust include statute-barred debts, otherwise settle the bill as one bill. Then the taxing
the clients could recover their deeds without master was to certify the amount or balance due
reference to the solicitor's lien . They also cited , from the plaintiff to the defendant, or from
Bright v. Legerton, 3 L . T. Rep. N . S. 205 ,713 . the defendant to the plaintiff, which was to be
Cozens- Hardy replied . done in one certificate on the one bill, so that the
282 — Vol. LXII., N .8.] THE LAW TIMES. (April 19, 1890.
282–VAL
Q .B . Div..] ,N.8.)_ OLD (app.) v. Robson (resp.). [Q .B . Div .
certificate was to certify what was due for all Case stated by the stipendiary magistrate and a
matters of business extending over the entire justice of the peace for the borough of Middles
period during which the defendant had acted as brough .
the plaintiff's solicitor. Liberty was given to the At a petty sessions held on the 5th July 1889,
plaintiff to pay 3501. into court, and upon his a complaint was preferred by the respondent,
doing so his documents were to be handed over George Robson , joiner, against the appellant,
to him by the defendant. It appears to me that, Burton Old , secretary of the “ Amalgamated
if this appeal were right, this order would have Society of Carpenters and Joiners," under the
directed two certificates to bemade, one for the Friendly Societies Act 1875, sect. 22, charging
amount for which the plaintiff was personally him with having " refused to pay him , the re
liable, and another for the amount for which the spondent, a certain weekly allowance, namely ,
defendant had a lien , whereas, in fact, it only twelve shillings, as and for sick benefit or relief
directed one certificate to be made. Therefore, to which he was entitled as a member of the said
I think the appellant is now too late in trying to society, by reason of his being unable to follow
raise this distinction . He onght to have asked his employment, contrary to the rules of the said
only for the bill of costs as to the items not society."
barred by the statute . We all know that the The Amalgamated Society of Carpenters and
effect of the Statute of Limitations is not to Joiners was a society registered as a trade
extinguish a debt, but only to prevent its union under the Trade Union Act 1871 (34 & 35
recovery. The appeal fails. Vict. c. 31), and the Act 39 & 40 Vict. c. 22, but
Lopes, L .J. - I am of the sameopinion. at the same time it gave members a right to
Appeal dismissed. certain allowances in cases of sickness or infirmity .
The respondent, as a member of the society, had
Solicitors for the appellant, Speechly , Mumford , made a claim under the rules of the society for
and Co. sick benefit relief, which they refused to give,
Solicitors for the respondent, Wood and and thereupon the above complaint was preferred
Wcotton . against the society for such refusal. Upon the
hearing of the complaint, it was contended for
the society that the society was a “ trade
HIGH COURT OF JUSTICE. union," and not a friendly society, and that the
Trade Union Act 1871, sect. 4, precluded the
QUEEN 'S BENCH DIVISION . court from exercising jurisdiction in the matter :
Saturday, Jan . 18. (Farrar v. Close, 20 L . T. Rep . N . S . 802 ; L . Rep.
4 Q . B . 602.) For the respondant it was contended
(Before POLLOCK, B. and Wills, J.) that the claim was for sick benefit , and that the
Old (app.) v. ROBSON (resp.).(a)
Trade union - Friendly
society was a friendly society, and the rules of
society - Society registered the society were put in in support of such con
as trade union , but providing for tention.
memberg-- Illegality of society at commbenefits
law
to
on After perusing the rules of the society , the
Right of member to sue society for sick benefit, magistrates found that the object of the society
Jurisdiction of magistrate - Trade Union Act was substantially the same as specified in the
1871 (34 & 35 Vict. c.31), s. 4 – Friendly Societies Friendly Societies Act 1887 (50 & 51 Vict. c. 56 ),
Act 1875 (38 | 39 Vict. c. 60), s. 22. and, on the authority of Knowles v. Booth (32 W . R .
A society
Trade was
Unionregistered as aandtradein union under the 432 ), they made an order for the payment of the
Act 1871, addition to its 128.and costs.
rules laying down the duties of members with The question of law was,whether the “ Amalga
reference to trade questions, and imposing fines, mated Society of Carpenters and Joiners " is
suspension and expulsion upon members violating a " trade union ,” or substantially a " friendly
the rules as to trade matters, it also contained society," as specified in the Friendly Societies
rules giving to members certain allowances outof | Act 1887.
the funds in cases of sickness, accident, infirmity, Role 1 of the society declared (inter alia ) that
or want of employment, and other allowances the objects of the society are to raise funds for the
similar to those of a friendly society . A member advancement and protection of the trade ; for
sued in the Petty Session Court for one week 's the mutual support of its members in case of sick .
sick benefit which was refused to him by the ness, accident, and superannuation ; for the burial
society ; the magistrates made an order for the of members and their wives; loss of tools by fire,
payment of the sum claimed , holding that the water or theft, and for assistance to members out
society was substantially a friendly society , and ofwork . Rule 35 provided fcr unemployed benefit,
that they had jurisdiction in the matter . or allowances to members out of work . Rule 36
Held (reversing the decision of the magistrates), i provided for tool benefit, or compensation for
that, as some of the objects of the society were inlost tools. Rule 37 provided for sick benefit;
restraint of trade, the society was at common law rule 38 for accident benefit ; rule 39 for super
an illegal association , and although such society annuation benefit ; rule 40 for funeral benefit, and
was made legal to a certain extent by the Trade rule 41 provided for a contingent and benevolent
Union Act of 1871, sect. 4 of that Act prevented fund for the benefit of members. These rules
any court from entertaining or enforcing any were relied on to show that the society was sub
agreement between the members to provide stantially a friendly society.
benefits to members, and that consequently the The rules relied on to show that the society was
magistrates had no jurisdiction to make the order a trade union were as follows : Rule 9, dealing
in question. with levies on members ; rule 26 , dealingwith the
(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law . I duties of officers conducting trade movements;
April 19, 1890.] THE LAW TIMES. - ( Vol. LXU ., N . 8.- 283
Q.B. Div.] OLD (app.) v. ROBSON (resp.). [ Q.B . Div .
rule 32, dealing with the duties of members ; and which says that the objects of this society are to
rule 34, dealing with trade privileges. raise funds for the advancement and protection
The society was registered as a trade union of the trade, and for the mutual support of its
under the Trade Union Act 1871, sect. 4 of which members in case of sickness .
To make a society
provides : a friendly society, it is enough if the substantial
Nothing in this Act shall enable any court to entertain object of the society be that of a friendly society ,
any legal proceedings instituted with the object of that is, a society for the benefit of members.
directly enforcing or recovering damages for the breach | [WILLS, J. - It is not material whether this is a
of any of the following agreements, namely, (3) Any trade union or not ; the question is whether this
agreement for the application of the funds of a trade society would have been illegal at common law ;
anion to provide benefits to members. But nothing in your argument would be quite right if the objects
this section shall be deemed to constitute any of the
above-mentioned agreements unlawful. of the society were those of a friendly society
Tickell for the appellant. - I contend, in the first and no more ; here they are more.] In Knowles
place, that this society is not a friendly society ; v. Booth (32 W . R . 432) it was held that a society
and, in the next place, I say it is a trade union ; wasa friendly society under the Friendly Societies
and,if it be so,then the jurisdiction of the justices Act 1875 ,although it does not include in its objects
is taken away. It is a trade union, and because all the objects there stated , provided its objects
it is a trade union it is not a friendly society, are substantially the same as those in the Act.
and being a trade union then by sect. 4 of the So that where the substantial objects of the
Trade Union Act 1871 agreements of this kind society - as in the present case - are those of a
made between the members of the society to friendly society, there is nothing in the Trade
provide benefits for members are not enforceable Union Act, or in the cases cited , to show that we
in any court of law : are precluded from applying to the courts and
seeking redress under the Friendly Societies
Rigby v. Connol, 42 L . T. Rep. N . S. 139 ; 14 Ch . Acts. If the entire objects of the society had
Div . 482. been that of a trade union , then I admit that we
[WILLS, J. - Your argument is , that this is a trade should not have been entitled to come to the
urion, and that therefore sect. 4 of the Act courts ; but, as the principal objects of the society
operates.) Yes ; this is a society which can be are those of a friendly society, I submit that it
and actually is registered under the Trade Union is a friendly society coming under the Friendly
Act. [WILLS, J. - Suppose a society is registered Societies Acts, and that we are entitled to come
as a trade union when it is not a trade union at to the courts for redress.
all, is that conclusive ; or is there any power of
rectifying the register ? ] I think there is no Tickell, in reply, cited
power to rectify the register; the registration is Hornby v. Close, 15 L. T. Rep. N . S. 563; L. Rep.
2 Q . B . 153.
conclusive ; the rules as to registration are con
tained in sect. 13 of the Act of 1871. The rules POLLOCK, B .- The facts of this case are simple
of the society contain regulations as to restraint enough, and the answer to the question asked is
of trade, and directly there is an object in quite clear. The question we have to decide is
restraintof trade the society cannot be a friendly whether the Amalgamated Society of Carpenters
society, nor be registered as such , but it can only and Joiners is a trade union or substantially a
be registered as a trade union. Farrar v. Close friendly society. The intention and objects of
(20 L . T . Rep . N . S . 802 ; L . Rep . 4 Q . B . 602) is the society are obvious. For what have we here ?
a case exactly in point in the present case, and it We have a society which at common law would
was a case which arose on this very society . Trade clearly have been illegal. We have a series of
unions embrace both objects, relief of members rules, one of which , rule 26 , dealing with the
and regulations in restraint of trade. The rules management committee for trade matters, lays
of a friendly society only provide for relief for down the duties of members of that committee
members. Before the passing of the Trade with reference to trade questions. There are also
Union Act of 1871 trade unions were unlawful. powers of fine, of suspension, and even of expul
[ POLLOCK, B . - Yes, but friendly societies were sion of members for violating the rules of the
always lawful.] In Rigby v. Connol (ubi sup.) society with reference to these trade questions;
the Master of the Rolls was dealing with a case that is to say, a person joining this society may
precisely the same as this case, and he there held be expelled if he refuses to obey the rules of the
that the rules could not be enforced in any court society in these matters. This at common law
of law . Some of the rules of the society are for would be illegal, and if any breach of any rule
relief of members, and some are in restraint of contained in these rules is sought to be enforced
trade. The rules in restraint of trade on which | by the society or any member thereof in a court
I rely are rules 26 , 32, 34 , and 35. [He was of law , it could not be enforced . This is laid
stopped.] down in Rigby v . Connol (ubi sup .). That being
Agabeg for the responden:.— This is not a trade the state of the law , an Act of Parliament was
union within the meaning of the Trade Union passed dealing with what are called trade unions ,
Act 1871, for its principal object is not in restraint and it made such unions legal, and this Act
of trade,but for the benefit ofmembers. A trade which made them legal, namely , the Trade Union
union is defined in sect. 23 of that Act, and this | Act 1871, in sect. 4 provided that the Act should
society does not fall within that definition . For not enable any court to entertain legal proceed
& society to come within the definition the ings in respect of breaches of certain agree
principal and substantial objects of the society ments, and amongst others (sub-sect. 3) any
must be directed to that Act , that is, they must agreements for the application of the funds of a
be in restraint of trade. Here the principal trade union to provide benefits to members.
objects of the society are directed to benefits of Nothing can be clearer than this language; and
members, as we see from clause 2 of rule 1, 1 it is also clear that this language is universal,
284 - Vol. LXII., N . 8.). THE LAW TIMES. (April 19, 1890.
Q .B . Div.] PAIN (app.) v. BOUGHTWOOD (resp.). (Q .B. Dry
for the section says that nothing in this Act , not do to say that the society is a legal society
shall enable any court, & c. Now , if a member for some purposes, but illegal for other purposes.
comes to any court, whether to a County Court So far as the present question is concerned the
or any other court, to enforce these rules, the point is left exactly as it was at common law,
only question would be whether the society was at and therefore in my opinion the decision of the
the passing of the Act illegal ; if it were so , then magistrates was wrong .
the court would stay its hand ; that also is ex Appealallowed . Judgment for appellant.
plained by the Master of the Rolls in Rigby v. Solicitors for the appellant. Shaen , Roscoe, and
Connol (ubi sup.). It is said that there is nothing
| Co., for Bainbridge and Barnley, Middlesbrough.
illegal in establishing funds for the relief and
assistance of members, and that might in some forSolicitors
S. F.
for the respondent, Belfrage and Co.,
Thompson, Middlesbrough.
cases raise a question ; but here are the clear
words of the Act , which were in effect a com
promise between masters and men , But the
courts will not enforce any contracts arising ont
of such a state of things. The courts do not Tuesday, Jan . 28.
lend their aid to the enforcement of such con . (Before GRANTHAM and CHARLES, JJ.)
tracts. It is perfectly clear therefore from the Pain (app.) v. BOUGHTWOOD (resp.). (a )
words of the statute, and from the case of Adulteration of food — Alteration of article - Milk
Knowles v. Booth (ubi sup.), that the rules of this - Abstraction of fat from - Selling milk 80
society cannot be enforced in any court of law . altered - Mens rea - Sale of Food and Drugs
In that case there was no suggestion that the
society in question was an illegal society , so that AnActoffence1875 (38 & 39 Vict. c. 63), s. 9.
within sect. 9 of the Sale of Food and
the decision in that case is no authority whatever Drugs. Act 1875 may be committed , although the
for supporting the decision of the magistrates in
this case. This society,which was illegal without seller of the article did not know that the article
sold was“ not of the nature, substance, and quality
the Act of Parliament, was made legal by the demanded ;" and where the article has been so
Act, but in the Act there was a special and altered by abstraction of part of it as to
express provision that no proceedings for enforcing injuriously affect its quality , substance, or nature,
certain rules of the society could be enforced by the seller of the article so altered may be convicted
a court of law . I think therefore the order of under the section , although he had no knowledge
the magistrates must be set aside.
WILLS, J. - I am of the same opinion . The A ofretail such alteration .
seller of milk had sold milk from which
result of the legislation on the subject may be nearly the whole of the fat had been abstracted.
· stated as follows : If a society were illegal at Held , thathemightbe convicted of an offence under
common law as being in restraint of trade, ali the latter part of the 9th section of the Act,
themembers of that society would be indictable, although he had no knowledge of the alteration of
and contracts made by the members inter se themilk .
could not be enforced ; then came the Trade
Union Act 1871, which removed the incapacity trate Case stated by a metropolitan police magis
of members, so that it could no longer be said :--
that they were members of an illegal society . Theappellant, the inspector of nuisances for the
The Legislature has to a certain extent, and to parish of St. Mary 's, Islington , on the 25th July
1889, summoned the respondent for having sold ,
the limits defined by the Act, altered the law , | on
and to a certain extent such societies as these milkthe 24th June 1889, an " article of food , to wit,
should not be treated as unlawful societies ; but disclosure , in its altered state without potice or making
the Legislature goes on to say that in respect of of the alteration , from which 28 per
disputes of members of such societies amongst cent. of its original fat had been abstracted , so as
themselves to enforce their mles, no court should | to affect injuriously its quality, substance, or
enter tain the matter. It seems to me that it is Food nature, contrary to the provisions of the Sale of
immaterial whether this society is a trade union and Drugs Act 1875 (38 & 39 Vict. c. 63),
or not : the only question is, whether this was an and the Sale of Food and Drugs Amendment Act
illegal association at common law . If so , it 1879 (42 & 43 Vict. c . 30).”
· remains so as to this purpose. The consequences At the hearing of the summons, it was proved
of the illegality are gone to the extent to which that the appellant bought a pint of milk at the
· these Acts apply, but only to that extent, and divided shop of the respondent, which milk was duly
not for purposes such as the present. The only into three parts, one of which was sent
· question here is,whether this was a society illegal of for analysis to the public analyst. The certificate
at common law , and on looking at the various the analyst stated that 20 per cent. of the fat
· rules of the society there can be no doubt that it had been abstracted , and as a result only 1'47 of
fat remained . Except the certificate, no evidence
is 80 . There are various provisions, the objects was
of which are in restraint of trade. A man shall given that the milk was altered , and the
not carry on his trade as he likes, but must look defendant gave evidence that he had no know .
to the governance of the society. It is clear who ledge of any such alteration , and his daughter,
therefore that the society is illegal at common sold the milk and managed the shop , also
law , and that the incapacity to appear in court denied all knowledge of the alteration . The
has not been removed by any legislation . It has magistrate held that, as the 9th section contem .
been argued that Knowles v. Booth (ubi sup.) is plated disclosure by the seller ofany alteration in
an authority for the decision of the magistrates of the article, it was necessary to prove knowledge
in this case , but that case does not seem to me to the alteration, and there being no such proof
touch the matter at all. That case applies to he dismissed the summons.
what is a friendly society , and no more. It will i (a) Reported by HENRY LEIGH,Esq., Barrister-at-Law .
April 19, 1890.) THE LAW TIMES . [Vol. LXII., N . 8.- 285
Q.B. Div.] Pain (app.) v. BoughtWOOD (resp.). [Q.B . Div.
The question for the opinion of the court was , which might at first sight appear to be against
whether this decision was right in point of law . me, but is really not so , was & case under the
Sect. 9 of the Act of 1875 provides : 6th section of the Act, and there the customer
No person shall , with the intent that the same may asked the milk seller for “ milk ," and he was
be sold in its altered state withoutnotice, abstract from §₂ /₂ /₂/₂/ņēmēģ₂₂ģētiņ₂₂tiņẦ₂/₂ņģ₂ ÂÒ₂Â?₂ti₂m
an article of food any part of it 60 as to affect it was held that no offence under the section had
injuriously its quality, substance, or natare, and no been committed , for, as Mathew , J. said , what
person shall sell any article so altered without making
disclosure of the alteration , under a penalty in each the purchaser asked for was milk and what he
was supplied with was milk , although it had been
case not exceeding twenty pounds.
skimmed , and it was not shown that in the
J. V. Austin for the appellant. - The magis. | ordinary use of the term skim milk would not
tratewas wrong in holding that mens rea was come under the term “ milk .” Having regard to
necessary, and he ought to have convicted the the fact that the earlier Act 23 & 24 Vict. c. 84, in
respondent of an offence under the 9th section of the corresponding section, sect. 1, contained the
the Act, even though the respondent did not words “ to the knowledge of such person " which
know of the alteration in the milk . With words are omitted in the later Act, we see that
regard to the 9th section this point has never knowledge of the alteration is not necessary to
been settled , though there has been a decision constitute the offence. I submit that the
on another section of the Act. The only point learned magistrate was wrong in saying that
in the present case is, whether mens rea is neces mens rea was necessary here.
sary or not for a conviction under the section . The respondent did not appear.
The magistrate here said that mens rea was
necessary to be proved , but I contend that it is GRANTHAM, J. -- It is to be regretted that no one
not necessary. In previous sections of the same has appeared here for the respondent, but I have
Act the question of " knowledge " or " no know no doubt at all as to what our judgment ought to
ledge ” is differently dealt with ; for example, be ; namely, that it ought to be for the appellant.
under sects. 3 and 4 , no person could be | The Legislature in 1875 found a difficulty in
convicted without proof of knowledge. Sect. 9 stating that absence of knowledge ought to beana
is divisible into two parts, and the learned | defence, and it was thought desirable to passActs
magistrate seems to have been impressed with Act in that year, repealing all the former
the fact that “ intent " was used in one part of the | and incorporating their provisions in one Act, so
section but not in the other, and he thought it as to ensure the sale of drugs in a pure state.
would be a hardship if the seller of an adulterated Now ,the Legislature in the Act of 1875 deal first
article were convicted when he did not know of of all with the question of the adulteration of
the adulteration ; but sect. 25 of the Act protects food and drugs by mixing with them injurious
the seller against any such hardship , as it ingredients ; these are sects. 3 and 4 of the Act.
protects him if he can prove that he bought the Then they put in a special proviso, a proviso
article the same in quality as thas demanded of under sect. 5 , which provides that a person3
him by the prosecutor, and with a written shall not be liable to be convicted under sects.
warranty to that effect. Almost the identical and 4 if he shows that he did not know that the
point raised here was dealt with in the case of article was so adulterated , and that he could not
Betts v. Armstead (58 L . T. Rep . N . S . 811 ; 20 with reasonable diligence have obtained that
Q. B. Dis. 771). That was a case under sect. 6 of knowledge. Then comés sect. 6 , which prohibits
the Act, and it was there held that an offence the sale of articles of food and of drugs “ not of
could be committed , although the seller did not the nature, substance, and quality demanded by
know that the article sold was not of the the purchaser," and provision is there made that
substance or quality demanded . [CHARLES, J. the person shall not be convicted under that
You ought to look at what is prohibited ; here section if he can bring himself within the
what is aimed at is disclosure. How can you exemptions therein specified. That being so,and
disclose what you do not know ? ] The seller is with a full knowledge in the mind of the Legis
bound to find out. (CHARLES, J. - In sect. 6 the lature of what would be the result, they go on to
vendor has under his own hand the article sold .] enact sect. 9, which was passed without any such
In Betts v. Armstead (ubisup.) the justices found exemption . Sect. 9 provides that “ no person
that the defendant did not knɔw that the bread shall, with the intent that the same may be sold
contained alom , and yet it was held that he had | in its altered state without notice, abstract from
committed an offence within the 6th section . an article of food any part of it so as to affect
Although there are no cases which are exactly injuriously its quality, substance, or nature, and
in point on this section , there are some cases no person shall sell any article so altered without
which are perfectly analogous. In Cundy v. Le making disclosure of tbe alteration, under a
Cocq (51 L . T. Rep. N . S . 265 ; 13 Q . B . Div. 207) penalty in each case not exceeding twenty pounds."
an information ,under sect. 13 of the Licensing Act That section is evidently aimed against two
1872 (35 & 36 Vict. c. 94 ), which makes it an classes of persons : in the first place, against the
offence for any licensed person to sell any person who abstracts something from an article
intoxicating liquor to any drunken person , was of food so as to affect injuriously its quality ; and,
preferred against a publican for selling liquor to in thenext place,against the person who ultimately
a drunken person who had given no indication sells the article so altered to the customer. If
of drunkenness, and withoutbeing aware that the that had not been so, and if the seller of the
person served was drunk , and it was held that article had not been made liable , the provision of
knowledge of the condition of the person served the section would have been entirely useless, so
was not necessary to constitute the offence under that the section , in order to prevent frauds in the
the section . Again , the case of Lane v . Collins sale of articles, not only provided that the person
(52 L . T. Rep. N . S. 257 ; 14 Q . B. Dir . 193),a case should be liable who injuriously affected the
286 _ Vol. LXII., N . S.] THE LAW TIMES. (April 19, 1890.
Q . B . Div.] Reg v. THE JUDGE OF THE BLOOMSBURY County COURT AND CATTLE. ( Q .B . Div .
quality of an article by abstracting from it any Bloomsbury County Court, for the administra
part of it, but it also went on to provide that no tion of the estate of the deceased , the action
person should sell the article so altered without being brought against Mrs. Cattle, the widow
disclosing such alteration to the purchaser. A and executrix of the deceased .
protection is afforded by sect. 25 , which gives a The deceased Richard Cattle lived at Holloway,
defendant a power of exonerating himself by out of the jurisdiction of the Bloomsbury County
proving that he bought the article in the same | Court, but within the metropolitan district, and
state as sold , and by getting a warranty to that his widow , the defendant in the present action,
effect from the person from whom he bought,and now lives at the sameplace.
if the defendant does not choose to go at once and The deceased in his lifetime, and his widow
get this warranty , the Legislature thinks he has after his death, carried on business within the
made himself a party to the fraud , and that he jurisdiction of the Bloomsbury County Court.
should be dealt with accordingly. Under these The plaintiff, Taylor, also carried on business
circumstances every provision is put in the Act within the same district.
to enable an honest dealer to protect himself, Under these circumstances the learned County
For these reasons I think that this appeal must Court judge held that, as the action was an
be allowed. administration action , he had no jurisdiction
CHARLES, J. - In my view this case is concluded to hear the matter, by reason of sub -sect. 3 of
by the case of Betts v. Armstead (ubi sup.). It sect. 75 of the County Courts Act 1888.
seems to me that the case of Core V. James (25 Sect. 74 of the County Courts Act 1888
L . T. Rep . N . S . 593 ; L . Rep . 7 Q . B . 135 ) , relied
on by the respondent in Betts v. Armstead (ubi provides :
Except
sup.) points in the direction of mens rea being every action or matter where by this Act it is otherwise provided,
may be commenced in the court
necessary in cases of this kind ; but I do not think within the district of which the defendant or one of the
myself at liberty to go by Core v. James, inasmuch defendants shall dwell or carry on his business at the
time of commencing the action or matter, or it may be
as it was expressly brought to the attention of thecommenced , by leave of the judge or registrar, in the
court in Betts v. Armstead (ubi sup.), and yet the court
court does not seem to have followed it. That i of the within the district of which the defendant or one
defendants dwelt or carried on business, at any
being so, Betts v. Armstead (ubi sup.) is an time within six calendar months next before the time of
authority for saying that in a case of this kind commencement, or, with the like leave, in the court in
the district of which the cause of action or claim wholly
mens rea is not necessary. I feel bound to follow or
that decision, and I think therefore that this in part arose.
appeal should be allowed , and the case remitted Sect. 75 provides :
to the magistrate. The provisions of the next preceding section shall
Appeal allowed. Case remitted to the magis not apply to any of the following proceedings; but
(3 .) Proceedings for the administration of the assets of
trate. à deceased person shall be taken in the court within the
Solicitor for the appellant, William Levis. district of which the deceased person had his last place
of abode in England, or in which the executors or
administrators, or any one of them , shall have their or
his place of abode.
Jan . 29 and 30 . Sect. 84 provides :
(Before Fry, L .J. and MATHEW , J.) Where a plaintiff shall dwell or carry on business in
REG . v. THE JUDGE OF THE BLOOMSBURY COUNTY the district of the Bloomsbury County Court of Middle
sex, or in the district of the Brompton County Court of
COURT AND CATTLE. (a ) Middlesex, or in the district of the Clerkenwell County
Court of Middlesex, or in the district of the Lambeth
County Court – Jurisdiction – Administration County
action - Metropolitan County Court districts Court of Surrey, or in the district of the Maryle
County Courts Act 1888 (51 & 52 Dict. c. 43), bone County Court of Middlesex, or in the district of
the Shoreditch County Court of Middlesex, or in the
8. 74 ; 8. 75 , sub -sect. 3 ; 8. 84. district of the Southwark County Court of Surrey, or
Sect.84 of the County Courts Act 1888 is an exception in the district of the Westminster County Court of
Middlesex . or in the district of the Whitechapel Connty
upon sect. 75 as well as sect. 74 of the Act, so that, Court of Middlesex, or in the district of the City of
notwithstanding the provisions of sub -sect. 3 of London Court, and the defendant shall dwell or carry on
sect. 75, in actions for the administration of the business in the district of any of the said courts, the
assets of a deceased person , where the plaintiff action or matter may be commenced , and all proceedings
shall dwell or carry on business in the district of thereon taken and had either in the court of the district
in which the plaintiff shall dwell or carry on business,
one of the metropolitan courts, and the defendant or in the court of the district in which the defendant
shall dwell or carry on business in the district of shall dwell or carry on business.
the said courts, such administration actionsmay F . J. Lowe, for the defendant, showed cause.
be brought- as provided by sect.84 - either in the
court of the district in which the plaintiff shall The County Court judge had no jurisdiction in
dwell or carry on business, or in the court of the this case. Looking at the sections of the Act, we
district in which the defendant shall dwell or see that sect. 84 uses the words “ actions ” or
carry on business. “ matters," and sect. 74 also uses the words
RULE calling upon the judge of the Bloomsbury "different
actions” or “ matters," but sect. 75 uses a
word altogether, as the word used is
County Court of Middlesex to show cause why “ proceedings ;” from this we see that sect. 84 is
he should not hear and determine certain an exception to sect. 74 , but is no exception to
proceedings for the administration of the estate sect. 75 ; so that sect. 75 is perfectly general and
of one Richard Cattle , deceased . is in no way limited or restricted by sect. 84,
An action had been commenced by a judgment which deals with “ actions ” or “ matters " as
creditor of the deceased , named Taylor, in the distinct from “ proceedings," and which was
(a) Reported by W .Orr, Esq., Barrister-at-Law . intended to extend sect. 74 in the case of the
April 19, 1890 .) THE LAW TIMES. [Vol. LXII., N . 8.- 287
Q.B . Div.] JAMES SHOOLBRED AND Co. (apps.) v. JUSTICES OF ST. PANCRAS (resps.). (Q .B . Div.
metropolitan courts, sect. 75 being general and of the said courts, the action or matter may be
applying to metropolitan courts as well as to commenced either in the court of the district in
other County Courts. These administration pro which the plaintiff shall dwell or carry on
ceedings could not be taken in the Bloomsbury business, or in the court of the district in which
County Court, as by sub -sect. 3 of that section the defendant shall dwell or carry on business.
such proceedings could only be taken in the court Now in this case both the plaintiff and the
within the district of which the deceased person defendant carry on business within the same
had his last place of abode, or in which his County Court district, and, therefore, if this
administratrix has her place of abode, which is section applies, the County Court judge has
untside tbe district of the Bloomsbury County jurisdiction. In my opinion that section does
Court. Sect. 75 , sub-sect. 3, applies and the apply here. But it is said that in sect. 74 the
judge had no jurisdiction . words used are “ action ” or “ matter," whereas
Rose- Innes, contra , was not called upon. in sect. 75 the word used is “ proceedings,” and in
sect. 84 it is " action ” or “ matter," and therefore
Fry, L .J. - The question in this case is as to it is argued that sect. 84 is an exception upon
the jurisdiction of the County Court judge to sect. 74 , but not upon sect. 75. But the answer
entertain the matter. The action is brought by to that is, that the word “ proceedings ” used in
the plaintiff, who carries on business within the sect. 75 includes both “ actions ” and “ matters,"
district of the Bloomsbury County Court, against and is equivalent to them . Besides, sect. 74 is not
Mrs. Cattle, who also carries on business within a local provision, but a general section applicable
the jurisdiction of that court, for the administra to the whole country, and sect. 75 with its
tion of the assets of her deceased husband, of exceptions is general also ; so that these two
whom she is executrix, and the question now is sections are general. But sect. 84 is a localsection
whether the judge of the Bloomsbury County applicable only to the metropolis, and so con
Court has jurisdiction to hear these administration stitutes an exception both on sects 74 and 75 .
proceedings. To answer this question we have to The object of sect. 84 was to consolidate the
consider three sections of the County Courts Act, provisions as to the jurisdiction of the metro
1888. Before coming to these sections, I may politan courts ; that was the object and scope
observe that by the interpretation clause, sect. the section ,and, in my opinion ,it excludes, so farof
186, " action ” shall include suit and shall mean as the metropolitan courts are concerned , the
every proceeding in the court which may be general exceptions contained in sect. 75. There
commenced as prescribed by plaint,and “ matter " is no reason why sect. 84 should not apply to the
shall mean “ every proceeding in the court which administration of the assets of a deceased person
may be commenced as prescribed otherwise than as well as to other matters. It appears to me,
by plaint." Here then , " actions ” and “ matters ” therefore, that this rule wasrightly obtained ,and
include all proceedings in the County Court. must be made absolute.
Coming now to the three sections we have to MATHEW , J. - I am of the same opinion. The
consider in this case, sect 74 prescribes the place 84th section seems to me to apply to these
where the action may be commenced , and it says proceedings ; that is the first section with which
that, except where it is otherwise provided , every we have to deal. Sect. 74 appears to me to stand
action or matter may be commenced in the court clear of sect. 84,and if we transpose the sections,
within the district of which the defendant shall and put sect. 84 before sect. 74 , the meaning
dwell or carry on business , at the time of
commencing the action or matter. Now , if there becomes more clear, for then we have sect. 74
was nothing to qualify that, the judge would standing clear of sect. 84, and therefore also
clearly have jurisdiction in the matter, as the sect. 75 standing clear of sect. 84 . It seems to
defendant, at the time the action was commenced, me, therefore, that the learned judge had juris
carried on business within the district of the diction , and that this rule ought to be made
Bloomsbury County Court. Then sect. 75 is in absolute. Rule absolute
the nature of an exception to sect. 74 , and it Solicitors for the plaintiff, Mann and Taylor,
enacts that the provisions of sect. 74 shall not Solicitor for the defendant, T. A . Lee.
apply to any of the following “ proceedings.”
Now it is obvious that the word " proceedings "
in that section includes both “ actions " and
" matters ," and sub -sect. 3 provides that " pro Thursday, Jan . 30.
ceedings for the administration of the assets of a
deceased person shall be taken in the court (Before Fry L.J. and Mathew , J.)
within the district of which the deceased person JAMES SHOOLBRED AND Co. (apps.) v. THE JUSTICES
had his last place of abode in England, or in OF ST. PANCRAS (resps.). (a )
which the executors or administrators ,or any one Licensing Acts - Licence to deal in game, Dis
ofthem , shall have their or his place of abode." qualification from holding such licence - Grocers'
Now in the present case, both the deceased and Ticence to sell beer to be consumed off premises
his executrix, the defendant, had their place of Seller of beer by retail -- The Game Act 1831
abode outside the jurisdiction of the Bloomsbury (1 & 2 Will. 4 , c. 32 ), s. 18 — 4 & 5 Will. 4 , c. 85 ,
County Court,and it was said , therefore, that the 8. 19 - 26 & 27 Vict. c. 33, s. 1.
judge had no jurisdiction to deal with the case. The holder of an additional licence to sell beer to be
But we have also to consider sect. 84, which consumed off the premises, commonly called a
applies to metropolitan County Courts, and grocer's licence, under the 1st section of the Act
provides that where a plaintiff sball dwell or 26 & 27 Vict. c. 33, is a person " licensed to sell
carry on business in the district of any of the beer by retail” within the meaning of the 18th
metropolitan courts, and the defendant shall
dwell or carry on business in the district of any i (a) Reported by W . W . Orr, Esq .,Barrister-at-Law .
-
Q.B. Div.] JAMES SHOOLBRED AND Co. (apps.) v. JUSTICES OF St. Pancras (resps.). (Q .B . Div .
section of the Game Act 1831 (1 & 2 Will. 4, c. 32), 1st section of 26 & 27 Vict. c. 33, precluded the
and is thereforedisqualified from holding a licence holder thereof from obtaining a licence to deal in
under that section to dealin game game under the 18th section of 1 & 2 Will. 4, c. 32.
Case stated : If the justices had not been of this opinion they
On the 17th July 1889, at a special sessions | would have granted the licence.
held by certain justices of the peace acting for The question of law for the opinion of the
the St. Pancras Dirision of the county of London, court is, whether the justices were right in law
an application was made on behalf of James in deciding as they did .
Shoolbred and Co. (hereinafter called the appel Grain for the appellants. - The Act under
lants) under the 18th section of 1 & 2 Will . 4 , which this application is made is the Game Act
c. 32, for a licence to deal in game, to be granted 1831 (1 & 2 Will. 4 , c. 32), an Act which was
to Alexander Christie, one of their managers. passed for the prevention, as far as possible, of
After the hearing of the said application and poaching, the harbouring of poachers, and the
the evidence adduced by the applicants, the selling of game obtained by poaching, and the
application was refused on the ground that the Act provided that nobody should deal in game
appellants were disqualified by law from holding without getting a licence from justices, and the
such a licence either by themselves or one of statute went on to say that certain persons
their servants. should be disqualified from getting a licence
The appeilants carry on business at Tottenham under the Act. This provision is in sect. 18 of
House , Tottenham -court -road , and various pre the Act, which enables the justices to grant &
mises adjoining, including 13 and 14 , Grafton licence to deal in game to any person being a
street, in which last-mentioned premises it was householder or keeper of a shop or stall within
proposed that game should be dealt in . the division or district, “ not being an innkeeper
The section under which the application was or victualler or licensed to sell beer by retail,
made was as follows: nor, & c.” The question therefore is , whether
And be it enacted, that the justices of the peace of the appellants, by reason of their having a
every county , riding, and division, liberty, franchise, licence to sell beer under 26 & 27 Vict. c. 33,
city , or town, shall hold a special session in the division s. 1, are “ retailers of beer ” within the meaning
or district in which they usually act . . . in the of this section of the Act of 1831. It is important
month of July for the purpose of granting licences to to see what is the meaning of the words “ beer
deal in game, of the holding of which session seven retailers.” In the year 1830, the first Beer
days' notice shall be given to each of the justices acting
for such division or district, and the majority of the house Act (1 Will. 4 , c. 64) had been passed ,
justices assembled at such session , or at some adjourn which created what are well known as beer
ment thereof, not being less than two, are hereby houses. Under that Act licences were granted
authorised (if they shall think fit) to grant under their to sell beer on or off the premises, and one of
hands to any person being a leaseholder or keeper of a
the qualifications was that the applicant should
beingoranstallinnkeeper,
shop within such division oror district,
or victualler, licensed and not
to sell be a resident occupier, but in this Act of 1830
beer by retail, not being the owner, guard, or driver of no definition was given of a “ beer retailer."
any mail.coach , or other vehicle employed in the con In 1834 an amending Act (4 & 5 Will. 4 , c. 85 )
veyance of the mails of letters , or of any stage-coach , was passed , and in sect. 19 of that Act it was
stage-waggon, van , or other public conveyance, nor set out, “ Whereas doubts are entertained as to
being a carrier or higgler not being in the employment
of any of the above-mentioned persons, a licence accord. what is a selling of beer or cider or perry by
ing to the form in the schedule annexed to the Act, retail," be it enacted , “ that every sale of any
empowering the person to whom such licence shall be so beer,or of any cider or perry, in any less quantity
granted to buy game at any place, from any person who
might lawfully sell gameby virtue of this Act, and also than four gallons and a half, shall be deemed
to sell the same at one house, shop, or stall only kept and taken to be a selling by retail.” So that
under that section any person who sold beer in
by him .
The section continued with certain provisoes. a less quantity than four and a half gallons was
The appellants, at the time they made the a beer retailer. So the law remained until 1863,
present application
bottles to be drunk , were
off licensed to sell beer
their premises, underin but it may be mentioned that there was an Act
of Geo. 4 , by which a wine merchant could take
sect. 1 of 26 & 27 Vict. c. 33, which enacts as however, out an Excise licence to sell strong liquors ; that,
follows : was a mere revenue matter. In 1863
it was enacted that before a person could get a
Any person who shall have taken out a licence to sell licence
strong beer in casks, containing not less than four and of this kind he must come to the justices,
a half gallons, or in not less than two dozen reputed and the Act precluded the Excise from giving a
quart bottles at one time, to be drunk or consumed licence, but it provided that the applicant must
elsewhere than on his premises, may take out an addi. first go to the justices and get his certificate,
tional licence on payment of the excise duty of 11 58., and
and the same shall authorise such person to sell in any who then he could go to the Excise authorities,
would give him his licence. That licence
less quantity , and in any other manner , than as
aforesaid, but not to be drunk or consumed on the is now in existence under the Licensing Acts
premises where sold . 1872 and 1874 , and is what is commonly called
It was contended on behalf of the appellants a grocer's licence. That licence under sect. 1
that, as they were only licensed to sell beer under of 26 & 27 Vict. c. 33, is the licence and the
the last -mentioned section , they were not only licence held by the appellants, and that
" licensed to sell beer by retail " within the being so, the justices said that they did not see
meaning of the aforesaid 18th section of the their way to grant to the appellants the required
Game Act, and in support of this contention the licence to deal in game, as they are now in fact
following case was cited : Jones v. Bone (L . Rep . retailers of beer. But I submit that the justices
9 Eq. 674 ). were wrong in so holding. If the appellants
The justices were of the contrary opinion , and I had held a beerhouse licence under i Will 4,
decided that the possession of a licence under the I c. 64, and 4 & 5 Will. 4 , c. 85, sect. 19 of which
W
April 19, 1890. ) THE LAW TIMES. [ Vol. LXII., N . 8.– 289
Q.B. Div .] James SHOOLBRED AND Co. (apps.) v. JUSTICES or St. PANCRAS (resps.). ( Q .B . Div .
Act defines a seller of beer by retail to be a ! by the law from time to time enforced , so long
seller of a less quantity than four gallons and as that law authorises them to grant licences to
a half, then , no doubt,as the holders of such a sell beer. The power of granting licences has
beerhouse licence, they would have been “ beer been from time to timemodified since then , and
retailers ” within the Game Act of 1831, and Messrs. Shoolbred are the holders of a licence to
would have been disqualified from holding under sell beer by retail under subsequent statutes,
that Act a licence to deal in game. But they do which do not require the same formalities, or
not hold any such beerhouse licence, but only a require different formalities from the Act of 1830.
grocer's licence under sect. 1 of the Act of 1863, | Nevertheless there is no doubt about this, they
and as the holders of such a licence they are have a licence to sell beer and to sell it by retail ;
not retailers of beer within the meaning of the they are therefore, in my judgment, persons er
Act, and are therefore not disqualified . There is cepted from the statute of 1831, and excepted
some authority in favour of my contention in the not only by its express language, but by the true
case of Jones v. Bone (23 L . T . Rep. N . S . 304 ; meaning of the Act, and therefore the justices,
L .Rep . 9 Eq. 674 ), where thequestion was whether I think, are right. Now the only authority
a certain person was a beer retailer, and where it pressed upon us is one very properly brought to
was held that the sale of wine and spirits in our attention , but it does not seem in any way
bottle by a grocer in the course of his trade was conclusive. That is the case of Jones v. Bone
not a breach of a covenant in his lease not to use (ubi sup.), which was an action in the Chancery
the demised premises as a site for any hotel, Court before Sir W . M . James, sitting as Vice
tavern , public -house , or beerhouse, or for the Chancellor, in which a grantee of a piece of
carrying on of the trade of a publican or beer building land entered into a covenant with the
house-keeper, or seller by retail of wine, beer, grantor that the piece of land should not for
spirits, or spirituous liquors. That case is twenty years be used as the site for any hotel,
analogous to the present [FRY, L .J. - The tavern , public-house, or beerhouse, nor should
appellants are licensed to sell beer.] Yes. the trade or calling of an hotel or tavern keeper,
[Fry, L .J . - And to sell it by retail.] Yes, but publican , or beershop -keeper, or seller by retail
not to be consumed on the premises ; we are not of wine,beer, spirits, or spirituous liquors, be used ,
entitled to sell it on the premises. If we do not exercised, or carried on at or upon the same;"
sell beer by retail we are not disqualified from and the person who occupied the land was a
holding a licence under the Act to deal in game. grocer who sold wine and spirits in the course of
Bodkin, for the respondents, was not called his trade, under what is commonly called a
grocer's licence. Now , the question there really
upon . was, whether the trade " seller by retail of wine,
FRY, L .J . - In my opinion the justices were beer, spirits, or spirituous liquors," was carried on
quite right in declining to grant this licence. by this grocer who so sold wine and spirits. The
The true interpretation turns on the construction Vice- Chancellor determined that he was not such
to be put upon the Game Act of 1831. Now that a seller within tbemeaning of that covenant. He
Act is shortly to this effect : It gives authority to came to the conclusion that the covenant was
the justices, in the manner described, to grant aimed at a well-known business then carried on ,
licences to deal in game to any person being a and as against that trade this covenant was
householder or keeper of a shop or stall within protective, but not against the trade of a wine
the division or district, and not being an inn merchant. Having come to that conclusion, he
keeper or victualler, or licensed to sell beer by of course dismissed the action , and it appears to
retail, nor being a guard of a mail.coach and so me that does not throw any light upon this
forth . Now , at the time this statute was passed , present case, which is, what is the meaning of
the position of the law seems to have been shortly licence to sell beer by retail in this section . For
this : There were the well-known licences of the reasons I have given I think the justices
victuallers and innkeepers, often spoken of as were right.
full licences, to enable such persons to sell wines, MATHEW , J . - I am entirely of the same opinion .
spirits, liquors, and beer ; in addition to that The subsequent Acts of Parliament do not affect
there was a licence to be granted by the Excise the provisions of this Act of Parliament. The
under the Act of 1830, to a resident occupant number of persons who sell beer by retail has
to sell beer, and the persons who received such increased , and some of the old conditions of
licences were commonly known as beerhouse residence have been withdrawn ; but the question
keepers. That was the position of the law at now before us is, how this Act of Parliament still
that time. Now , the Legislature, when enabling in force is to be construed with reference to these
the justices to grant these licences to sell game, applicants. I cannot hesitate for a moment to
and in excepting the persons who were to sell, say that they come within the description of the
were pleased not to refer to the statute of 1830, Act of Parliament, as persons licensed to sell
but they used general language- an " innkeeper , | beer by retail, and therefore the justices were
victualler, or persons licensed to sell beer by
retail." Now I think that the true meaning of right. Appeal dismissed.
those words is this : it means a person licensed to Solicitors for the appellants, G . H . Barber
sellbeerby retail,according to the law regulating and Son .
licences from time to time and for the timebeing . Solicitors for the respondents, Scadding and
It was not intended to confine the prohibition to Bodkin .
the existing licences to resident occupants under
the Act of 1830 ; if that had been the mind and
intentof the Legislature, it would have expressed
thatmind and intentbyappropriatewords; instead
of that, it uses generalwords which are satisfied
290 _ Vol. LXII., N . S.] THE LAW TIMES. [April 19, 1890.
Q.B . Div.] NEWMAN v. LONDON AND South -WESTERN RAILWAY COMPANY. TQ .B. Div .
Thursday, Feb. 20. ! it — that it cannot now be considered an authority
(Before DENMan and WILLIAMS, JJ.) on the point. I submit , therefore, that Boarder
V. Lindsay (ubi sup.) is now no authority for
NEWMAN v. LONDON AND South -WESTERN RAILWAY saying
COMPANY. (a ) that there is no discretion to dispense
with the deposit ; and looking at rules 25 and 26
Practice - Discovery — Interrogatories — Security
for costs - Deposit — Discretion of judge to l together,
or a judgeitshould
was clearly
have intended thatto the
a discretion court
dispense
dispense with — Order XXXI., nr. 25, 28. with the deposit ; if this were not so, the words
Under rules 25 and 26 of Order XXXI., the court “ unless the court or a judge otherwise order "
or a judge has a discretion to dispense with the would have no meaning whatever .
deposit required by those rules to be given , as Turion for the defendants. — The case of
security for costs, by the party seeking discovery Boarder v. Lindsay (ubi sup.) is an express
by interrogatories or otherwise. authority that there is no discretion to dispense
Boarder v. Lindsay (34 W . R . 473) not followed . with the deposit, and this case very properly
APPEAL from an order of Day , J at chambers. followed the decision of the Divisional Court in
Theaction wasonebrought under Lord Campbell's Aste v . Stumore (ubi sup.), because in that court
Act, by a widow to recover damages from the the point was decided, whereas in the same case
defendants in respect ofthe death of her husband, in the Court of Appeal that point was not
which she alleged was caused by the negligence decided, and although doubt was expressed by
of the defendants. the Court of Appeal as to the decision on
The plaintiff applied to a master for leave that point, the decision of the court below
to administer interrogatories to the defendants, stood , and was properly followed by the court
without depositing the usual security of 51., as in the case of Boarder v . Lindsay (ubi sup.).
required by rules 25 and 26 of Order XXXI. These cases show that the court or a judge has
Themaster made the order, giving the plaintiff no discretion in the matter, and the same result
leave to interrogate the defendants without appears from rule 26 , the terms of which are
making the usual deposit ; but, on appeal, absolute that the party seeking discovery shall
Day, J. at chambers reversed this order, con
sidering that, upon the authority of Aste v. payDENMAX into court the required deposit.
, J. - It seems to me that, as the two
Stumore
Div. 326 ;(49
and LBoarder
. T. Rep. N . S. 34
Y. Lindsay, 742W; .13R .Q 473).
. B . I learned judges of the Court of Appeal in the case
there was no power to dispense with the security. their of Aste v. Stumore (ubi sup.), clearly intimated
The plaintiff appealed . opinion that they did not agree with the
court below on this point, the question may
Order XXXI., r. 25, provides that: fairly be considered to be an open one, and that
In every cause or matter , the costs of discovery, by being so , it seems to me that we are not bound
interrogatories or otherwise, shall, unless otherwise by the case of Boarder v. Lindsay (ubi sup.), but
ordered by the court or a judge, be secured in the first are entitled to form our own opinion on the
instance, as provided by rule 36 ' of this Order, by the
party seeking such discovery, & c. point. I think there is a discretionary power to
And rule 26 provides that: dispense with the deposit in proper cases, other
Any party seeking discovery by interrogatories shall, wise the words in rule 25, " unless the court or a
before delivery of interrogatories, pay into court to judge shall otherwise order," would have no
a separate account in the action , to be called " Security meaning or effect whatever. This view is also
for Costs Account," to abide further order, the sum of consistent with rule 26 , which merely regulates
51.,and if the number of folios exceeds five, the further themode of giving security. I think, therefore,
sum of 10s, for every additional folio. Any party this appealmust be allowed .
seeking discovery otherwise than by interrogatories
shall, before making application for discovery , pay into WILLIAMS, J.- I am oithe same opinion .
court to a like account, to abide further order, the sum Appeal allowed.
of 51., and may be ordered further to pay into court as
aforesaid such additional sum as the court or a judge
shall direct, & c.
Solicitor for the plaintiff, Robert Jenkins, for
Ewart Dukes, Staines.
C . Gregson -Ellis for the plaintiff. — The court Solicitors for the defendants, Bircham and Co.
or a judge has a discretionary power to dispense
with the deposit in cases where, from any reason,
it ought to be dispensed with . Rule 25 clearly
gives this discretion , for it says that the party Wednesday, Jan. 29.
seeking discovery shall give the security “ unless (Before POLLOCK , B . and HAWKINS, J.)
the court or a judge otherwise order.” Rule 26 Hay v. JUSTICES OF THE TOWER DIVISION.(a)
only lays down the mode of giving such security
and fixes the amount. No doubt, in Boarder v. Inn -- Licence — Applicant previously convicted of
Lindsay (ubi sup.), it was held that a judge had felony - Disqualification - Released and pardoned
no discretion to dispense with the deposit , and - Effect of free pardon - Wine and Beerhouse
the reason given by the court for that decision Act Amendment Act 1870 (33 & 34 Vict. c. 29),
was, that rule 26 of Order VVVT XXXI. iis imperative,
mnorotivo 88.. 14
14 .
and must be complied with . This decision followed It is provided by the Wine and Beerhouse Act
the case of Aste v . Stumore (ubi sup.), where a Amendment Act 1870 (33 & 34 Vict. c . 29), s. 14,
divisional court had taken the same view ; but that every person convicted of felony shall for
when the case of Aste v. Stumore (ubi sup.) ever be disqualified from selling spirits by retail ,
came to the Court of Appeal, so much doubt was and no licence to sell spirits by retail shall be
cast upon the decision of the court below on granted to any person who shall have been so
that point - though it was unnecessary to decide convicted as aforesaid .
(a) Reported by W . W . Orr, Esq ., Barrister-at-Law . (a) Reported by W . H. HORSFALL, Esq., Barrister-at-Law.
April 19, 1890.] THE LAW TIMES. [Vol. LXII., N. 8.- 291
Q.B . Div.] Hay v. JUSTICES OF THE TOWER DIVISION. [ Q .B . Div.
The appellant applied to the justices of the Tower | same view is taken in Hawkins' Pleas of the
Division for the transfer to him of the licence of Crown , book 2, ch . 37, s . 48 . By 9 Geo . 4 , c. 32,
a fully licensed house. The application was | s. 3, a person who has received a free pardon is
refused upon the ground that the applicant had placed in the same position as a person whobeenhas
been convicted of felony, although he proved that undergone the punishmentheld
to which he has
that a person may
hehad received a " free pardon ” in respect of the sentenced . It has been
conviction . not with impunity call the editor of a newspaper
Heldin ,thethat the “ free pardon " placed the appellant who has been convicted of felony a “ felon
same position as to status and character as editor " after he has endured the punishment to
he was before his conviction , and that he was which he was sentenced :
therefore entitled to be treated as a person who Leyman v. Latimer, 37 L . T. Rep . N . S. 360, 819 ;
had not been convicted , and to have the licence 3 Ex. Div . 15 , 352.
transferred to him . But there is no case which says that a free pardon
This was a case stated for the opinion of the court can remove a disqualification under a statute as
in this case. A person is not necessarily innocent
by the deputy chairman of the Court of Quarter because
Sessions for the county of London . he gets a free pardon ; he may have given
On the 28th May 1883 the appellant was con information against his confederates to the
victed of felony at the Central Criminal Court, authorities, or he may have behaved in some ex
and sentenced to a term of seven years penal when emplary manner in gaol, as assisting the warders
servitude. a riot has taken place amongst the other
prisoners. Cockburn , C .J. has pointed out “ that
on On
the 8th Nov. 1883 theappellant was released
licerce. the object of this enactment is not to punish
offenders,but to protect the public against public
On the 9th May 1885 the appellant received houses
Her Majesty's free pardon in respect of the con in which spirits are retailed being kept
by persons of doubtful character : ” .
viction. The said pardon was by Her Majesty's
sign -manual. Reg. v. Vine, 31 L . T. Rep . N . S. 842 ; L . Rep. 10
On the 8th July 1889 the appellant duly applied Q . B . 195 .
to the licensing justices of the Tower Division of inA clerk guilty of simony or an officer of bribery,
order to obtain an office, may be saved by a
the said county to transfer to him the licence of a pardon from criminal prosecution , “ yet it shall
fully licensed house called the Devon Arms. The not enable the clerk to hold the church , nor officer
said justices refused the said application , and to retain the office, because they are absolutely
the appellant appealed to the Court of Quarter disabled by statutes : ” (Bac. Abr. 7th ed ., vol. 6 ,
Sessions.
At the hearing of theappeal it was contended p. 145, tit. Pardon H .)
on the part of the respondents that they had no Sir R . E . Webster, A .-G . (with him R . S . Wright),
power to grant a licence to the appellant because | for the appellant. This question , it is submitted,
he had been convicted of felony within the mean must be decided upon general principles, and not
ing of 33 & 34 Vict. c. 29 , s. 14 , which provides upon a particular statute dealing with certain
that “ Every person convicted of felony shall for specialmatters. The free pardon clears the per
ever be disqualified from selling spirits by retail, son receiving it from all the consequences of the
and no licence to sell spirits by retail shall be crime :
granted to any person who shall have been so Cuddington v. Wilkins, Hob. 81.
convicted as aforesaid .” The Court of Quarter The proviso at the end of 7 & 8 Geo . 4 , c. 28 , s. 13 .
Sessions, however,being of opinion that the effect limits the free pardon to the particular crime
of the said free pardon was to remove the dis which is mentioned , and does not relieve the
qualification imposed by the above section, allowed | person pardoned from the consequences of any
the appeal, subject to the opinion of the Queen's felony subsequently committed. Reg. v. Vine (31
Bench Division of the High Court of Justice. L . T. Rep . N . S . 842 ; L . Rep. 10 Q . B . 195 ) only
The question for the opinion of the court is decides that a person who has been convicted
whether the Court of Quarter Sessions is right in and served his sentence is disqualified from
so holding. If the court shall be of opinion that holding a licence. This statute (33 & 34 Vict.
it was right in so holding, then the order allowing c. 29) is clearly speaking of persons who have been
the said appeal is to stand ; but if the court shall properly convicted , and not of persons whose con
be of the contrary opinion , then the order shall victions are wrong, and who have been pardoned .
be quashed , and the order of the said justices of 9 Geo. 4 , c. 32, is an Act for amending the law as
the Tower Division refusing the said application to evidence, and deals with that subject only.
of the appellant shall be restored . Morton Smith in reply.
Morton Smith for the justices.— No words could POLLOCK , B . — This is a case of considerable
be more distinct than those used in 33 & 34 Vict. importance, and the question which has been
e 29, s. 14 : “ Every person convicted of felony clearly raised in it is what is the effect of a
shall for ever be disqualified ," & c. Somemeaning “ free pardon " under Her Majesty 's sign -manual.
must be put upon these words, and I submit that Now , the facts are shortly as follows: John Hay
nothing can remove the disqualification following was convicted of felony on the 28th May 1883
a conviction. There is nothing in the wording at the Central Criminal Court, and sentenced to
of the “ free pardon " that would lead one to sup . seven years' penal servitude. On the 8th Nov .
pose that it removed such a disqualification . By in the same year he was released on licence, and
7 & 8 Geo. 4, c. 28 , s. 13 , a pardon under Her on the 9th May 1885 he received Her Majesty's
Majesty 's sign-manual, is of the same effect as a “ free pardon " in respect of this conviction, the
pardon under the Great Seal. In Hale's Pleas of free pardon being by Her Majesty 's sign manual.
the Crown, vol. 2, p . 278 , it is stated that a par. On the 8th July 1889 Hay duly applied to the
don makes a person a competent witness ; and the licensing justices of the Tower Division of the
292 - Vol. LXII., N . S .] THE LAW TIMES. [April 19 , 1890.
Q . B. Div.] Hay v. JUSTICES OF THE TOWER DIVISION. [ Q .B . Div.
county of London to transfer to him the licence | I think could be more clear than these autho
of a fully licensed house called the Devon rities. Cuddington v. Wilkins (Hob . 81) which
Arms. This application was refused by the was quoted to us, has been dealt with and
justices, but upon Hay appealing to the Court approved of so recently as in the case of Leyman
of Quarter Sessions, it washeld that the effect of v . latimer (37 L . T. Rep . N . S. 360, 819 ; 3 Ex. Div .
the “ free pardon " was to remove the disquali 15, 352). In the former case “ the whole court
fication which Hay would otherwise have been were of opinion that though the plaintiff were
under in consequence of his conviction for felony. a thief once, yet when the pardon came it took
In my opinion, that latter decision was right. away not only pænam but reatum , for felony is
Now , the question arises on the Wine and Beer contra coronam et dignitatem regis. Now when
house Act Amendment Act 1870 (33 & 34 Vict. the King had discharged it and pardoned him of
c. 29),s. 14,which enacts that“ Every person con it he hath cleared the person of the crime and
victed of felony shall for ever be disqualified infamy.” Sir John Bennet's case (Cro ..Car. 55)
from selling spirits by retail,and no licence to is extremely clear upon this point. Sir John
sell spirits by retail shall be granted to any per Bennet was chancellor of the Archbishop of
son who shall have been so convicted as afore York , and for bribery and other misdemeanours
said .” This provision is not new matter, for was fined 20 ,0001. and sentenced to imprisonment
there was a similar enactment in 3 & 4. Vict. and made incapable of any office of judicature.
c. 61, s. 7, which deals with beerhouse licences, He was subsequently pardoned by the king, and
and also in 23 Vict. c. 27, s. 22 , under which it was sought to obtain an injunction to prevent
licences to sell wine are granted . The pardon him acting as chancellor. The question as to
which was granted to Hay was under Her whether he could so act was referred to all the
Majesty 's sign -manual, and not under the Great judges who decided that the “ pardon hath taken
Seal; buc by 7 & 8 Geo. 4, c. 28, s. 13, it is pro | away all force of the sentence except for the fine
vided that pardon granted by warrant under of 20,0001. and all inabilities are discharged
Her Majesty 's sign-manual shall be equivalent thereby." The character position and status
to a pardon under theGreat Seal. It is unneces were restored and all the disabilities which were
sary for the purposes of the present case to consequent on the sentence were removed . I do
pursue the inquiry into all the provisions as to i not think thedecision in Reg . v . Vine (31 L . T . Rep.
the effect of a free pardon in removing the dis- N . S . 842 ; L . Rep . 10 Q . B . 195) affects the present
qualification which a person who had been case ; there the man held a licence for some
convicted might be under as to giving evidence. years after his conviction , but it was not known
This section which we have to deal with (33 & 34 to the authorities at the time thathe had been
Vict. c. 29, s. 14) was not passed with the object convicted ; when it was ascertained that he had
of punishing a person who had already been been convicted the justices refused to renew his
convicted of felony, but for the benefit of the licence and this court held that they were right
public, who are, to a certain extent, dependent on in so doing. There was one difficulty suggested
the persons keeping public-houses, and to ensure during the course of the argument, but I do not
that the characters of those persons was such think it is necessary that we should deal with it.
that they could be trusted to conduct their houses By 9 Geo. 4, c. 32, s. 3, it is enacted that a person
in a proper manner. The general question of who is convicted of felony and has undergone
law which we have to decide is, what is the effect the punishment to which he was sentenced shall
of the pardon that John Hay received . In my thereupon be in the same position as if he had
opinion , it extends tomore than freeing him from received a pardon under the great seal. No
further punishment, and goes so far as purging doubt the words of this statute do conflict some
the offence. It is laid down in Hale's Pleas of what with those in 33 & 34 Vict. c. 29, but as I
the Crown, vol. 2, p . 278 : “ That if the King have said I do not think we need decide this
pardon these offenders, they are thereby rendered point. What we have to decide is, what is the
competent witnesses, though their credit is to be effect of a pardon . Theauthorities which I bave
still left to the jury , for the King's pardon takes referred to appear to me to be clear, and in the
away pænam et culpam in foro humano.” Thus absence of any authority to the contrary I think
pointing out that the character, condition , and that the justices at the quarter session were
status of the prisoner are restored to what they right, and that this appeal must therefore be
were before his conviction . The same view is dismissed .
taken in Hawkins' Pleas of the Crown, book 2, HAWKINS, J. - I am glad to be able to arrive at
c . 37, s . 48 : " I take it to be settled at this day the same conclusion as Pollock , B ., for I think
that thepardon of a treason or felony, even after it would be a great hardship if we decided the
a conviction or attainder, does so far clear the opposite way. I do not think that a person who
party from infamy and all other consequences of has served his sentence is in the same position as
his crime that he may not only have an action a person who has been pardoned for the purposes
for a scandal in calling him traitor or felon after of 33 & 34 Vict. c. 29. The intention ofthe Legis
the time of the pardon , but may also be a good lature in passing that Act was that only persons
witness notwithstanding the attainder or con . of good character should be allowed to keep
viction , because the pardon makes him , as it public houses, and I think that intention disposes
were, a new man , and gives him a new capacity of the suggestion that a person who has served
and credit.” And in Chitty's Criminal Law , his term of imprisonment could hold a licence.
vol. 1,at p . 775, the same proposition is laid down With regard to the effect of the Queen ' s pardon,
in the following words: “ The effect of a pardon , I think that it not only absolves the person
like that of theallowance of clergy, is not merely to receiving it from actual punishment, but also
prevent theinfliction of the punishmentdenounced from all the penal disqualifications following on
by the sentence, but to give the defendant his conviction. To construe it otherwise must
a new capacity, credit, and character." Nothing | be contrary to what the Legislature evidently
Q.B. Div .] Re SUNDERLAND 32ND AND 36th UNIVERSAL BUILDING SOCIETIES, & c. (Q .B . Div .
intended ; for if it be not so a person who was ! The rule of the 36th and the 32nd Society pro
admittedly wrongly convicted would , although he viding for the withdrawal members was in the
received a free pardon , remain for ever under the following terms:
disability , and so possibly be precluded from 40. That on and after the expiration of the first twelve
earning his livelihood in the manner he had been months any member may withdraw the subscription
brought up to . A free pardon would hardly be | money which he may have contributed with such an
given to a prisoner for giving information , and | amount of interest as may be determined by the com
I should think that the course that would pro mittee, such member to give notice of his intention to
bably be taken in such a case would be to remit withdraw (in writing to the secretary ), and should more
than one member give notice to withdraw at one time
the remainder or a portion of his sentence. I the members so giving notice shall be paid in rotation ,
am of opinion that this appeal must be dismissed . according to the priority of notice, provided always that
Appeal dismissed . the said society shall not be required or obliged to make
such payment' as aforesaid until they have sufficient
Solicitors for the appellant, The Solicitor to funds in hand for that purpose, and also to meet the
the Treasury. then existing legal liabilities of the society.
Solicitors for the respondent, Beal, Phillips, This society was one of a series of ten termi
and Beal. nating building societies, named respectively the
Sunderland 28th (29th , & c. — 37th ) Building
Society, all of which were managed by a person
Dec. 19 and 20 , 1889 ; Jan. 13 and 31, 1890 . named Wayland, who died in Aug. 1886 .
(Before Lord COLERIDGE, C.J. and MATHEW , J.)
It was ascertained towards the end of the year
Re SUNDERLAND 32ND AND 36TH UNIVERSAL | 1886 that the affairs of these societies were in an
BUILDING SOCIETIES. unsatisfactory state, and a firm of accountants
KING AND CORDNER (apps.) v. Rawlings (resp.). were employed to investigate theaccounts. On the
Rawlings (app.) v. OLIVER (resp .). 3rd Feb. 1887 they presented their report to the
SAME v. WILKINSON (resp.).(a ) directors of the societies, and on the 14th Feb .
this report was laid before an aggregate meeting of
Building society – Insolvency — Withdrawal of the members of the ten societies, and on the 17th
members — Winding-up - Priority of payment Feb . a separatemeeting ofthemembers ofthe 36th
Interest on paid -up shares - Building Societies Society was held . On the 3rd May the directors
Act 1874 (37 & 38 Vict, c. 42), s. 32. issued a circular in which they requested all the
In 1884 a series of ten building societies was members who had not already done so to give
formed , and it was provided by one of their rules immediate nctice of withdrawal, in order that all
that “ any member may withdraw the subscrip . the members might be placed upon the same
tion money which hemay have contributed with footing. Upon the 17th June a resolution was
such an amount of interest as may be determined passed for winding-up the society , and upon the
by the committee.” Thesocieties being in difficul 2nd July an order was made for the winding-up
ties, an accountant was employed to make a of the society under the supervision of the court
report, which was presented to the members on according to the provisions of the Building
the 3rd Feb. 1887. On the 21st Feb. King gave Societies Act 1874 (37 & 38 Vict. c. 42), s. 32.
notice ofwithdrawal, and on the 4th May Cordner Upon the 22nd March 1889 the County Court
gave a similar notice. Oliver had given notice judge decided that the society was declared to be
of withdrawal on the 8th Oct. 1886 , and Wilkin insolvent on the 17th Feb. 1887, and that the
son on the 3rd Oct. 1885. On the 17th June 1887 notices of withdrawal given by King and Cordner
resolutionswere passed for winding-up the socie. respectively on the 21st Feb . and the 6th May
ties, and on the 2nd July winding-up orderswere 1887 did not entitle them to payment in priority
made by the court. King, Cordner,and Oliver under the rules of the society, and that they
claimed priority of payment over the members respectively ranked for payment pro ratâ with all
who had not given notices of withdrawal, and other members of the society who had not with .
Wilkinson claimed interest on the amount due to
him from the time when his notice expired until drawn prior to the declaration of insolvency .
From that decision the first of the present
payment. appeals was brought by King and Cordner.
Held , that the rules only applied when the cocieties The second appeal was brought by the liqui
were being carried on as going concerns, and not dator of the Sunderland 32nd Universal Building
when they were in a state of insolvency , and that Society from the decision of the same County
King, Cordner, and Oliver were not entitled to Court judge.
any priority over the other members. The respondent Oliver was the owner of 20001.
Held further, that, as the committee had not fixed worth of shares in this society , and on the 8th
any amount of interestunder the rules, Wilkin Oct. 1886 he gave notice of his intention to
son was not entitled to any . withdraw according to the terms of the above
THESE were three appeals from the decision of rule. As in the case of the 36th Society , a report
the judge of the Durham County Court, holden at was made by the accountants in Feb . 1887 upon
Sunderland, and were ordered by the court to be the state of this society , and from that report it
heard consecutively. . appeared that this society was insolvent, and
The Sunderland 36th Universal Building had been so since Aug. 1886.
Society was formed on the 20th Oct. 1884, and On the 16th Feb . 1887 a meeting of the society
the appellants in the first appeal became sub was held to consider the report, and on the 3rd
scribing members.
On the 21st Feb . 1887 King gave notice of his May the directors issued a circular similar to
that issued by the directors of the 36th Society .
intention to withdraw , and on the 6th May 1887 Upon the 2nd July an order was made for
Cordner gave a similar notice . winding-up this society in the same terms as that
(2) Reported by W . H. HORSPALI,Esq., Barrister-at-Law . i made in the case of the 36th Society .
Q.B.Div.] KING AND CORDNER v. Rawlings; Rawlings (app.) v. OLIVER (resp.). (Q.B. Div.
The share certificate of this society was in the The County Court judge appears to have founded
following terms:
This is to certify that . . . has this day paid whojudgment
his decided inupon decision
effectthethat of Lord
rules such Sband,
as these did
to the Sunderland 32nd Universal Building Society the not apply after a society virtually became insol.
sum of . . . as the full subscription or payment for vent:
interestofat .the rate
. . . sum. shares
which society, upon
. in thepersaidcent. Carrick v. The North British Building Society (in
of 5 per annum
will be payable half-yearly , the said . . . to be at liquidation), 22 Scottish L . Rep . 833.
liberty to withdraw the said amount at any time after Sir Horace Davey (with him Haldane) for the
the expiration of twelve months from this day upon liquidator of the society .- Because sect. 32 of the
giving six months notice in writing to the secretary of Building Societies Act 1874 (37 & 38 Vict. c. 42)
the said society , and the said Sunderland 32nd Universal
Building Society to be allowed to repay the same on says that winding-up shall terminate the society,
giving a similar notice to the said . . . it does not mean tbat nothing else shall do so.
The County Court judge held that, under the The rules are made for thepurposes of the society
rules of the society , the notice given by Oliver was as a going concern, and the rule as to withdrawal
valid,and that hewas therefore entitled to priority does not refer to withdrawal from a society that
of payment over the other members of the society . is insolvent. The same law applies to all com
The third appeal was broughtby the liquidator panies ; a shareholder cannot claim to transfer his
of the Sunderland 36th Building Society . shares in an insolvent company and so get rid of
Upon the 6th Oct. 1885 Wilkinson, who was a his liabilities and obligations :
fully paid -up shareholder in respect of ten shares Tennent v. The City of Glasgow Bank, 40 L. T. Rep.
of 501. each in this society, gave notice to the N . S. 694 ; 4 App . Cas. 615.
society of his intention to withdraw . Upon the The case referred to by the other side, and upon
expiration of his notice of withdrawal Wilkinson which the County Court judge relied, is exactly
was not paid off, and he claimed interest at the | in point and rightly decided :
rate of 5 per cent. from that time until he should Carrick v. The North British Building Soctety (in
be paid off. liquidation ), 22 Scottish Rep . 833.
The County Court judge allowed the claim of Cozens- Hardy in reply . — The dispute here is
Wilkinson, he having given a notice of with between members inter se, and not between a
drawal expiring before the date of the declaration member and outside creditors, as in
of the insolvency of the society. Tennent v. The City of Glasgow Bank, 40 L . T. Rep.
KING AND CORDNER v. RAWLINGS. N . S. 694 ; 4 App. Cas. 615 .
Cozens- Hardy, Q .C . (with him H . T. Eve) for the RAWLINGS (app .) v. OLIVER (resp.).
appellants King and Cordner.— The question to R . T. Reid , Q .C . (with him Robson ), for the
be decided in this appeal is, whether the County appellant, the liquidator of the Sunderland 32nd
Court judge was right in deciding that the 17th Universal Building Society .– The respondent
Feb . 1887 was the date on which the society was gave his notice of withdrawal on the 8th Oct.; We
declared to be insolvent. If he was right, the say that it would not expire for six months,
notices of withdrawal given by the present which would be after the insolvency of the
appellants were too late. We submit that the society. The rule (40 ) is silent as to the length of
date of the insolvency was the 17th June, when the notice, but it appears on the face of the share
the resolution for winding-up the society was certificate that it must be a six months' notice.
passed by the members,or the 2nd July , when the The rules, it is submitted, as was argued in
winding -up order was made. A building society the last case, deal with the affairs of the society
can only be terminated by one of the events as a going concern . If this were not so, there
mentioned in the Building Societies Act 1874 would be a scramble amongst the members as to
(37 & 38 Vict. c. 42), s. 32. It is not suggested who could get his notice in first during the
that the society was terminated by any of the period which must necessarily elapse between the
events mentioned in sub-sects. 1, 2, or 3 of that time when the insolvency of the society is first
section , and therefore it comes within the case known and the winding-up order is made :
referred to in sub -sect. 4 " by winding-up , either Re Mutual Society, 24 Ch . Div. 425.
voluntarily under the supervision of the court or Crackanthorpe, Q .C . (with him Wurtzburg), for
by the court, if the court shall so order, on the the respondent Oliver. — The County Court judge
petition of any member authorised by three was wrong in saying that the insolvency of the
fourths of the members," & c. It is the winding. society took place upon the 17th Feb . On that
up order alone that alters the position of the day there was merely the report of the ac
parties and prevents a withdrawing member from countant, and that was not conclusive. When the
Axercising his rights under the rules : circular
Brownlie v. Russell, 48 L. T. Rep. N . S. 881 ; 8 App. directors the society a ongoing
sent out their
they considered the 3rd May,
concern,
Cas. 235 . because they invited themembers to resign , which
In the present case there are no outside creditors, they could not have done if the business of the
the question is only between the members inter society had ceased. By the Building Societies
se and members who have given notice of with Act 1874 (37 & 38 Vict. c. 42), s. 16 , sub -sect. 4,
drawal and whose notices expired before the “ the terms upon which shares may be withdrawn
winding-up began areentitled to be paid in priority and upon which mortgages may be redeemed ”
to those members who have not given notice : must be set forth in the rules. The rules here
Walton v. Edge, 52 L. T . Rep. N . S. 666 ; 10 App. provide for withdrawals, and the appellant has
Cas. 33 ;
Auld v. Glasgow Working Men 's Building Society, complied with the rules. He referred to
56 L . T . Rep . N . S. 776 ; 12 App . Cas. 197 ; Walton v. Edge, 52 L. T. Rep. N . S. 666 ; 10 App.
Re The Middlesborough and Redcar Permanent Cas. 33 ;
Benefit Building Society (No. 2), 53 L . T. Rep. Tennent v. City of Glasgow Bank, 40 L , T . Rep.
N . S . 203 , N . S. 694 ; 4 App. Cas. 615.
Q.B. Div .] RAWLINGS (app .) v. WILKINSON (resp .). [ Q .B . Div.
Reid in reply. This is a question of contract in the winding-up proceedings or whether they
under rule 40 . I submit that it was never in were still members. They contended that they
tended to give any member a priority after the had withdrawn from membership ; in accordance
society ceased to be a going concern . with the rules of the societies, before the winding
up order had been made, and had thus become
Rawlings (app.) v. WILKINSON (resp.). creditors. The liquidator, on the other hand,
Haldane (with him Sir Horace Davey, Q .C .) for contended tbat before the notices to withdraw
the appellant, the liquidator of the Sunderland from membership had been given , or had become
36th Universal Building Society. In this case effective, the insolvency of the societies had
the County Court judge has decided that a become notorious, and therefore that the notices
member who has given notice of withdrawal, and were inoperative.
The learned County Court
whose notice has expired before the date of the judge gave judgment in favour of the liquidator
insolvency, is entitled to interest on the amount in the cases of King and Cordner,and against the
of his shares until he is repaid their value at liquidator in the case of Oliver. The order to
the rate mentioned in his share certificate. It is wind-up wasmade on the 2nd July 1887. In the
submitted that “ interest " is the wrong term to first case the appellant King had given notice of
use, and these are really preference shares . The withdrawal on the 21st Feb . 1887, and the respon
effect of the notice of withdrawal was to substi dent Cordner on the 6th May 1887. In the
tute, in place of the relationship of company and second case the respondent Oliver had given
creditor, a new contractual relationship of credi | notice on the 8th Oct. 1886 of withdrawal at the
tor and debtor, under which there was no contract end of six months. The contention on their part
to pay interest : was that until the winding- up order had been
Re Sheffield and South Yorkshire Perminent Benefit actually made they were entitled to withdraw ,
Building Society, 59 L . T . Rep . N . S . 401 ; 22 Q . B . and so to constitute themselves creditors of the
Div. 470. societies. The liquidator insisted that the
What
in
the new status of the member is, is defined societies were known to be insolvent on the
14th Feb . 1887, and that the right which members
Walton v Edge, 52 L. T. Rep. N . S . 666 ; 10 App. would otherwise have had of quitting the societies
Cas . 33 . was then
thatatten
an benefit
end. Itbuilding
appearedsocieties
from the evi
It has been decided in a case almost exactly simi dence consti
lar to this that a withdrawing member is not tuted in the usual way had been established in
entitled to interest : Sunderland, and that the management of them
Blackburn
Re1836, p. 22.
and District Building Society, W . N . all had fallen into the hands of a person named
Wayland. They were formed on what is called
Cozens- Hardy , Q .C . (with him H . T. Eve), for the terminating principle, and consisted of two
the respondent Wilkinson . The respondent has classes of members - depositors and borrowers,
not ceased to be a member of the society , and is or “ advanced members.” Unfortunately for the
therefore entitled by the terms of his share certi members of the society under Wayland's control,
ficate to interest at the rate of 5 per cent. until there had been gross mismanagement, and after
he is paid off : Wayland's death in Aug. 1886, it was discovered
Walker v . General Mutual Building Society, 57 that a great part ofthemoneys of all the societies
L. T. Rep. N . S. 574 ; 36 Ch. Div. 77. was not forthcoming. In the early part of 1887
In the case of a subscribing member it might be a firm of accountants was employed to investi
different, as appears from the decision in gate the affairs of the different societies and
Re Sheffield and South Yorkshire Permanent Benefit reports were prepared which showed that each
Building Society, 59 L . T. Rep . N . S. 401 ; 24 of them was insolvent. These reports, with
Q . B . Div. 470 . balance-sheets, were submitted to and practically
It is provided by rule 40 that the amount of adopted by an aggregate meeting of members of
the interest is to be determined by the committee, the societies on the 14th Feb . 1887. In pursuance
80 that apart from the contract itself the com of resolutions passed at the meeting, an effort
mittee can fix the rate of interest. There is no was made to reconstruct the societies, and dele
evidence now before the court as to what the gates were appoirted to meet and consider what
practice of the society has been npon this point. should be done. A scheme of reconstruction by
amalgamating all into one was put forward by
Lord COLERIDGE, C .J. — The case must go back the
to the County Court judge to say what appeared delegates, but was found to be impracti.
to him to be the practice. cable, and resolutions were finally come to that
wound -up under
each of the societies should be
Jan . 13, 1899. - The report of the County Court the supervision of the court. In support of the
Judge stated , that from the 1st Sept. 1886 to the contentionand
thatOliver
at thewere
date noof longer
the order King,
12th Mar. 1887, the directors were aware of and Cordner, members,
sanctioned the payment of interest to members they relied upon the rule as to withdrawal, which
whose notices of withdrawal had expired ,but that was in the following terms: “ That on and after
no rate of interest was ever determined or fixed the expiration of the first twelve months any
under rule 40, and that this applied to all the
societies.
member may withdraw the subscription money
Cur. adv. vult. which he may have contributed , with such an
amount of interest as may be determined by the
Jan. 31.- MATHEW , J. delivered the judgment committee, such member to give notice of his
of the court : - These were appeals from orders intention to withdraw (in writing to the secre
made by the County Court judge at Sunderland, tary), and should more than one member give
and raised the question whether the appellants notice to withdraw at one time, the members so
King and Cordner, and the respondent Oliver, giving notice shall be paid in rotation , according
were entitled to rank as creditors of the societies I to the priority of notice, provided always that
296 _ Vol. LXII., N . S.] THE LAW TIMES. (April 19 , 1890.
Q .B . Div.] Re SUNDERLAND 32ND AND 36TH UNIVERSAL BUILDING SOCIETIES, & c. ( Q .B . Div.
the said society shall not be required or obliged had been ascertained and made public by the
to make such payment as aforesaid , until they reports of the accountants, the societies were still
have sufficient funds in hand for that purpose, | kept going. Reliancewas placed upon the fact that
and also to meet the then existing legal liabilties some paymentswere afterwardsmade and received
of the society.” We are of opinion that this rule by the societies' officers. But the fact that the
was not intended to apply where the society was business of the societies was not wholly sus.
no longer able to carry on its business and where pended is explained by the efforts which were
it had become notorious that the scciety could not being made to effect reconstruction ,which turned
meet its liabilities. It would be altogether un- | out to be impracticable. We for these reasons
reasonable to suppose that it was intended , in the hold that the appellants King, Cordner, and the
event of insolvency, to permit one set of members respondent Oliver are not entitled to priority,and
to escape from liability at the expense of the that they must rank in the winding-up with the
others. There would seem to be no adequate other members of the society . We dismiss the
consideration or motive for such an arrangement. appeals in the cases of King and Cordner, and
The rule seems to us not to contemplate any such reverse the judgment of the court below in the
contingency as a suspension of its business, and case of Oliver. In the third case, Rawlings v.
therefore only to provide for a withdrawal from | Wilkinson , the liquidator appealed against the
the society while it was or was believed to be judgment of the learned jadge, who held that
still solvent. There was sufficient evidence to members who had given effective notices of with
show that before the times at which two of the drawal before the insolvency was disclosed , but
notices were given and the third had become had not received the amounts due to them were
effective the members and all others who were entitled to interest until payment. It was not
interested knew that the societies were no longer contended that at common law or under the
in a condition to carry into effect the objects for statute of Will. 4 interest would be payable, but
which they had been formed , or to fulfil their it was said that there was a course of dealing
undertakings with their members. That the between the society and their withdrawing
societies could not go on is shown from the members which was evidence of a contract to pay
scheme of reconstruction laid before themembers, interest. After a further investigation of the
which practically involves the liquidation of the facts made at our request by the learned County
affairs of each of the societies. In this state of | Court judge, a full statement of the evidence bas
things the right to withdraw , it seems to us, no been made to us by his Honour. We are of
longer exists. The case of Brownlie v. Russell opinion that any claim for interest could only
(48 L . T . Rep . N . S. 881; 8 App. Cas. 235), arise under the terms of rule 40 , and that apart
referred to by counsel for the appellants, King from that rule there is no evidence of any con
and Cordner, is only material for the reasons tract, express or implied , to pay interest to
given for the view that the right to withdraw members who had given notice to withdraw .
does not survive a winding-up order. As appears That payments were made without the knowledge
from the judgment of the Lord Chancellor, a | in the first instance of the committee is explained
winding-up order takes away the right,because it from the irregular way in which the business of
necessarily puts a close to the whole concern , the societies was conducted by Wayland. That
terminates at the date of the account of each such payments were ratified up to a certain date ,
shareholder, and cuts off all chance of profit when they were ordered by the committee to be
which , if the thing had gone on , both classes of suspended , is no proof that a liability under any
members might have had . But all these conse contract existed or was admitted to exista Any
quences were as clear and and as inevitable in the inference of an implied contract is repelled by
case of these societies when the report of the the express provision in rule 40 that the interest.
accountants was published in February 1887, as if any, should be such a sum as the committee
if a winding-up order had been actually made. might determine, and it was found by the judge
The case of Walton v. Edge (52 L . T . Rep . N . S . that no determination within the meaning of the
666 ; 10 App. Cas. 33) was relied upon by the rule had been come to by the committee. The
learned counsel for theappellants as an authority appeal in thisforcasemust
Solicitors thereforein betheallowed.
the appellants first and
for the notices
effective beforethat
proposition the date of thewho
members gave second
winding appeal, and for the respondents in the
up order were entitled to priority in payment to third appeal, Maples, Teesdale, and Co., for G . S.
those members who had not given notice. But Lawson , and for Thomas Steel, Sunderland.
tbe question in that case was as to the rights of Solicitors for the respondents in the first
members who gave notice not only before there appeal,and for the appellants in the third appeal,
was any winding .np order, but when there was Clarke, Rawlins, and Co., for Moore, Longden , and
no information that any winding-up was going to Mann , Sunderland.
take place, and when nothing special was alleged Solicitors for the respondents in the second
to affect them with notice that the society was appeal, Wright
not to continue as a going concern . The view we Sunderland. and Pilley , for James Storey,
take is in accordance with the valuable judgment
of Lord Shand in the case of Carrick v. North
British Building Society (in liquidation), 22
Scottish L . Rep. 833. It is not the order to wind
up, but the state of things which to the know
ledge of all concerned renders liquidation
inevitable that, in such a case as this, puts an
end to the rigbt to withdraw . An effort was made
on behalf of the persons seeking to withdraw to
make out that, after the condition of the societies i
April 19, 1890.) THE LAW TIMES . (Vol. LXII., N . S. - 297
Q .B . Dir .) 3.DADO,EN LA
REG . v. J. BRIDGE, Esq . (Metropolitan Police Magistrate).
Wednesday, Feb. 5.
[ Q. B. Div.
the scavenger a reasonable sum for such removal, such
sum , in case of dispate, to be settled by two justices.
(Before Fry, L .J. and MATHEW , J.) Sect. 129. If any dispute or difference of opinion
Reg. V. J. BRIDGE, Esq. (Metropolitan Police arise between the owner or occupier of any such honse
or land and the scavengers required to remove such
Magistrate). (a ) refuse as to what shall be considered as refuse , it shall
Metropolis Management Act 1855 (18 & 19 Vict. be lawful for any two justices, upon application made to
c. 120 ), 88. 125-129 - Summary Jurisdiction Act them by either of the parties in difference, to determine
whether the subject-matter of dispute is or is not refuse
1879 (42 & 43 Vict. c. 49), s. 33 – Refusal of of trade, manufacture, or business, or of any building
magistrate to state a case- Question of law materials, and in every such case the decision of such
Removal of refuse - Ashe84 " Trade refuse." justices shall be final and conclusive.
It is provided by the Metropolis Local Management At the HôtelMétropole, which is situate within
Act 1855 ( 18 & 19 Vict. c. 120) that the vestries the parish of St. Martin 's-in -the-Fields, are three
shall appoint persons to remove all dirt, ashes, furnaces, which are used for supplying steam
& c., within their parish ; that if the owner of power for heating the hotel, pumping water,
any premises shall require the scavenger to re cooking, and working the engines for supplying
move the refuse of any trade, such owner shall the electric light. The vestry of St. Martin 's
pay to the scavenger a reasonable sum for such refused to remove the ashes and clinkers from
removal ; that the justices shall determine these furnaces , upon the ground that they were
whether the matter iš or is not the refuse of trade refuse, unless the proprietors of the hotel
trade, and the decision of such justices shall paid them , under the provisions of sect. 123
be final. abore set out, for so doing. The proprietors of
The Summary Jurisdiction Act 1879 (42 & 43 the hotel refused to make any payment to the
Vict. c. 49), 8. 33, enacts that any person aggrieved vestry , and upon the 27th April 1889 they took
echo desires to question the order of a court of out a summons at the Bow -street Police Court to
summary jurisdiction , on the ground that it is hare the question decided whether the subject of
erroneous in point of law ,may apply to the court dispute was or was not a refuse of trade or busi
to state a case, and, if the court decline to state ness .
the case, may apply to the High Court of Justice The magistrate decided that the refuse was not
for an order requiring the case to be stated . a trade refuse within the meaning of the above
Thevestry of St. M . refused to remove, unless paid section , and that the restry was therefore liable
for doing so, the ashes and other refuse produced to remove it without extra payment. An appli.
by furnaces at an hotel within the parish , such cation was thereupon made to the magistrate to
furnaces being used for supplying the electric state a case for the opinion of this court, but he
light and other purposes. declined to do so upon the grounds (1) that by
The manager of the hotel applied to one of the sect. 129, ahove set out, his decision in the matter
metropolitan police magistrates,who decided that was made final and conclusive, and (2) tbat no
the ashes were not trade refuse, and that the point of law arose in the case.
restry must remove them without extra payment. The Summary Jurisdiction Act 1879 (42 & 43
On behalf of the restry an application was made Vict. c. 49), s. 33, enacts that,
to the magistrate to state a case for the opinion Any person aggrieved who desires to question a con
of the High Court,buthe refused to do so upon the viction
grounds (1) that his decision was final and con court of, order, determination , or other proceeding of a
summary jurisdiction , on the ground that it is
clusice, and (2) that no point of law arose in the erroneous in point of law , or is in excess of jurisdiction ,
case. may apply to the court to state a special case setting
Held, that the decision of the magistrate was not forth the facts of the case and the grounds on which
final and conclusive, and thatthe question whether tbe proceeding is questioned , and , if the court decline to
state the case, may apply to the High Court of Justice
the ashes were trade refuse or not depended upon foran order requiring the case to be stated.
the construction and interpretation to be put Crump, Q .C . (with him J. E . Bankes and
upon the words of a statute, and was therefore a Courthop -Munro) now showed cause. – No
question of law upon which themagistrate must proper application has been made to the magis
state a case. irate to state a case. By rule 17 of the Sum
This was an order nisi calling upon John Bridge, mary Jurisdiction Rules 1880 the application
Esq., one of the magistrates of the police-courts must be made in writing, whereas in this
of the metropolis sitting at the Bow -street Police case it was made verbally directly after the
court, and Frederick Gordon , to show cause why magistrate had given his decision . [MATHEW , J.
the said magistrate should not state and sign a - The object of tbat rule was that the magis
case for the opinion of this court. trate and parties interested should have proper
It is provided by theMetropolis Local Manage notice of the application , and in this case it is
ment Act (18 & 19 Vict. c. 120 ) as follows : admitted that it was made in open court when
Sect. 125. It shall be lawful for every vestry and ereryone was present. I think that the applica
district board and they are hereby required to appoint tion was sufficient. The decision of the magis
and employ a sufficient number of persons, or to contract trate is, by sect. 129 of the Metropolis Local
with any company or persons, for the sweeping and Management Act 1854, made final and conclusive,
cleansing of the several streets within their parish or and that provision is not overruled by the Sum
district, and for collecting and removing all dirt ,ashes, mary Jurisdiction Act 1879. There was no
rubbish , & c., in or under houses and places within their
parish or district question of law in dispute ; the question whether
.
Sect. 128 . In case any scavenger be required by the this refuse was trade refuse was a question of
owner or occapier of any house or land to remove the fact for the magistrate. [Fry, L . J. - The ques
refuse of any trade, manufacture , or business, or of any tion is, what construction is to be put upon the
building materials, such owner or occupier shall pay to words“ refuse of trade or business " in the Act ;
(*) Reported by W . H . HORSFALL, Esq., Barrister-at-Law . I that seems to me to be a question of law .]
298 — Vol. LXII., N. S.] THE LAW TIMES. (April 19, 1890.
Q .B . Div.] DAVIES AND Co. v. ANDRÉ AND Co. [ Q .B. Div.
Glenn in support of the rule.- The magistrate that the magistrate must therefore state a case
has no option under the Summary Jurisdiction for the opinion of this court.
Act 1879 , but must state a case on the applica MATHEW , J.- I am of the same opinion. The
tion of a party aggrieved who desires to question question arising in this case is one as to the con
his order on the ground that it is erroneous in struction to be placed upon certain words in an
point of law . The vestry here says that they are Act of Parliament. It is necessary to find out
aggrieved by the construction themagistrate has what was the meaning of the Legislature, and
put upon thewords of a statute, which , I submit, that is a point of law upon which the magistrate
is a point of law . must state a case. There may be excellert
FRY, L . J. - The facts in this case are shortly reasons for deciding the case either one way or
these. Frederick Gordon , the manager of the the other way, but we must see whether the
Hôtel Métropole, which is situate within the magistrate has decided the point of law correctly ,
parish of St. Martin 's-in-the-Fields, laid an infor and in order that wemay do so he must state
mation before one of the magistrates at the Bow a case.
street Police Court, in which he complained that Order absolute.
the vestry refused to remove the dust, rubbish , Solicitors for the applicant, Fladgate and
and refuse from the said Hôtel Métropole con Fladgate.
trary to the statute 18 and 19 Vict. c . 120 , s. 125 . Solicitors for the respondents, Ingram ,
Upon the hearing of the summons which was
issued upon that information the magistrate Harrison, and Ingram .
decided that the refuse in question was not the
refuse of a trade or business as was contended on
behalf of tbe vestry, and that the vestry must Jan . 29, Feb. 3 and 12.
therefore remove it, and that the hotel manager (Before DenMAN , J. and Wills, J.)
was not liable to pay the vestry any extra
amount for doing so. The magistrate was then DAVIES AND Co. v. ANDRÉ AND Co. (a)
asked , on behalf of the vestry, to state a case for Practice - Action against firm - Service of writ
the opinion of this court. This he declined to Person at place of business - Conditional appear.
do, and upon these two grounds : “ (1) that by ance - Issue whether person partner or not
sect. 129 of 18 and 19 Vict. c. 120 my decision in Order IX ., r. 6 – Order XII., rr. 15 , 16 - Order
the matter is made final and conclusive, and (2) XLII., r. 10.
that no point of law arose in the case." I think The plaintiffs sued the defendants for the balance
that the learned magistrate was wrong , and that of an account for goods sold and delivered . The
a case should be stated. There is no doubt that writ was served upon was
R . atbeing
the place
if sect. 129 of the Metropolis Local Manage defendants' business carriedwhere the
on , but
ment Act (18 & 19 Vict. c. 120 ) stood alone the he was not informed in what capacity hewas
decision of the magistrate would be final and served . R . entered a conditional appearance
conclusive. But by the Summary Jurisdiction denying he was a partner in the defendants' firm .
Act 1879 (42 & 43 Vict. c. 49), which is a general The plaintiffs applied at chambers to strike out the
enactment applicable to all proceedings in courts appearance of R ., alleging that he was only
of summary jurisdiction, it is provided by sect. 33 served as a representative of the defendants' firm .
that " any person aggrieved who desires to ques Field , J.made an order amending the appear
tion a conviction , order, determination , or other ance entered by R ., by striking out the words
proceeding of a court of summary jurisdiction on “ conditional” and “ butwho denies that he is a
the ground that it is erroneous in point of law , or partner in the firm of André and Co."
is in excess of jurisdiction , may apply to the Held, that if the plaintiffs were willing to under
court to state a special case.” Now , the obvious take not to issue execution against R . as being a
meaning of the Legislature was of a very wide member of the firm , the appearance of R . would
description , namely, that whenever a point of law be struck out, and the plaintiffsfirmmight sign judg.
arose in a court of summary jurisdiction and one ment against the defendant , otherwise the
of the parties was dissatisfied with the way in conditional appearance of R . must be restored,
which it was decided , such party should be at and an issue of the question of partnership
liberty to come to this court for the purpose of directed .
obtaining the opinion of this court upon such This was an from tbe decision of Field , J.
point of law . The provision in the Act of 1855 at chambers,appeal and the question arose under the
ismodified by the Act of 1879. The magistrate
has decided thatno point of law arises, but there following
The
circumstances :
plaintiffs upon the 30th Oct. 1889 issued a
I cannot agree with him . The case includes the writ against the defendants
point as to what construction and interpretation 271. 98. 10d ., the balance of an to recover the sum of
is to be placed upon certain words in an Act of account for goods
Parliament. It might be a question of fact if of i sold and delivered to the defendants.
there were no dispute as to the meaning of the | as Upon the writ the defendants were described
of 8, Ribblesdale-place, Hornsey , but it ap
words in the statute, and as to the origin of the peared from the affidavits that the firm had
asbes. But the real controversy between the
parties is what is tbe meaning of this expression carriedshop on business in Piccadilly , and that after
was closed some business was trans
in the statute. The first question is, were they actedthat
“ ashes ? " and the answer to that depends upon at Ribblesdale- place.
the meaning of that word . Then , supposing that Upon the 1st Nov. 1889, the writ was serred
they are “ ashes,” do they comewithin the excep- upon
upg Ferdinand Rath at 8, Ribblesdale-place,
tion, or is the vestry bound to remove them with and the clerk who served it subsequently in
out extra payment. I think that it is clear that | dorsed upon it that he had served it upon the
there is a point of law involved in this case, and I (a) Reported by W . H . HORSFall, Esq., Barrister-at Law.
April 19, 1890.) THE LAW TIMES. (Vol. LXII., N .S.-299
Q.B. Div.] DAVIES AND Co. v. ANDRÉ AND Co. [ Q .B . Div.
defendants by leaving it with a person in charge as André and Co., or was a partner in that firm ,
of the business. or bought the goods or any of them , or had any
Upon the 8th Nov. by leave of a master, a of the transactions mentioned in the statement
conditional appearance was entered for Rath , to of claim indorsed on the writ. Notice of appeal
which was added “ but who denies that he is a was given on behalf of the plaintiffs, asking
partner in the defendant firm of André and Co.” the said order should be reversed or varied ,that and
Upon the 16th Nov. a summons was taken out that the said appearance might be struck out.
by Rath to set aside the service of the writ, On the hearing of this appeal before us three
upon the ground that he was not and never affidavits were used. The first, sworn on the
had been a partner in the firm of André and 21st Jan. 1890 , is by Searle, a clerk to the plain
and Co., but upon that summons no order was tiffs' solicitors, and the person who served the
writ. He says that he went to 8, Ribblesdale.
made.
The plaintiffs then took out a summons to place, where he was informed that André and
strike
hewas out onlytheserved
appearance of Rath ,alleging that | mentioned
Co . carried inonthewrit,and
business, and
as a representative of André thatwhich
he saw ais person
the plwho
and Co. Upon this summons the master made told him he was Mr. Rath , and “ who appeared to
no order, but upon appeal to Field , J., he, upon me to be in charge of the business." He served
Dec. 4 , ordered that the appearance entered by Rath with a copy of the writ. Rath ,he says, told
Rath in this action be amended by striking out him he was not a partner, and in reply , as Searle
the word " conditional ” and the words “ but alleges, he told Rath that he had served him with
who denies that he is a partner in the firm of the writ as being the representative of the firm
André and Co." From that order the present management of André and Co., and as having the control or
appeal was brought by ,the plaintiffs. of the partnership business there.
Upon the same day that this order was made 30th The next affidavit is one by Rath, sworn on the
by Field, J., Rath delivered the following defence : says that Jan. He answers Searle's affidavit, and
The defendant denies that he ever carried on busi André and the information given to Searle that
Co. carried on business at 8, Ribbles.
ness as André and Co ., and that he ever was
in André and Co., and that he ever bought the
a partner dale -place is wholly untrue. That house bas for
mentioned in the statement of claim or any of themgoods, or fifteen years been occupied by Rath and his
that he ever had any of the transactions mentioned in family, and no business of any kind has ever
the statement of claim . been carried on there by anyone. He says that
Upon his defence Rath altered the title of the on being served he told the person making the
case to “ Davies and Co. v. Ferdinand Rath sued service that he was not in any way connected
as André and Co .” with, nor a partner in , Andréand Co ., and that
Lawson Walton for the plaintiffs. the answer given was that he was the right per
T. Tyrrell for the defendants . son on whom to serve the writ. He adds that he
immediately wrote a note on the copy writ to the
Feb. 12. - WILLS, J. delivered the judgment of effect that he was not in any way connected with
the court. - In this case W . H . Davies, trading as the firm of André and Co., and sent it back to
W . H . Davies and Co., sues a firm of the name of the plaintiff's solicitors, and afterwards entered
André and Co. for a balance of account in respect the conditional appearance, being afraid that an
of goods supplied to that firm from October execution would be levied on his property in his
1888 to March 1889. The writ is addressed to private house . He says that his brother-in -law
André and Co. of 8, Ribblesdale -place, Hornsey, Rudolph Andreicovits carried on business for
and it bears an endorsement, dated the 2nd Nov. several years as André and Co., in Piccadilly,and
1889, in the following terms : “ This writ was beyond the fact that Andreicovits is related to
served at 8, Ribblesdale-road, Hornsey , on the him ,he knows nothing of the firm or its business.
defendants by leaving the samewith a person in He swears that he is not, in fact, a partner in the
charge of the business on Friday, Nov . 1, 1889 – firm , nor in any way connected therewith . To
(signed ) F . Sydney Searle ." The memorandum this affidavit the plaintiff has replied by an
contains a contradiction in terms, and no doubt affidavit sworn on the same 30th Jan. He says :
the writ was really served by leaving a copy at " I have received messages through my employés
8, Ribblesdale-place. On the 8th Nov., leave from the firm of André and Co., carrying on
having been obtained from a master, an appear. business at 8, Ribblesdale-place. My traveller
ance was entered in these words : “ Enter a con has also frequently called at that address for
ditionalappearance for Ferdinand Rath , having payment, when , as I have been informed by him
been served as a partner, but who denies that he and believe, he has seen both Rath and his wife,
is a partner in the defendant firm of André and who have at various times,as representing André
Co.- (signed ) Vallance and Co ., solicitors for the and Co., made promises of payment of my
said Ferdinand Rath .” A summons was heard account.” He exhibits a letter from Rath ,
by Field , J. on the 4th Dec. to strike out this dated 8, Ribblesdale-place, 3rd April 1889 , in
appearance. No affidavits appear to have been which he says: “ I send you the following goods
used on this occasion, and the learned judge for your inspection," a list being given ; “ I also
made the following order : " that the appearance inclose notes for goods I had , and which were
entered by Ferdinand Rath be amended by strike ! not sold and goods on memo.” The inclosures
ing out the word " conditional," and the words were memoranda, dated April 1889, on two printed
" but who denies that he is a partner in the firm billheads of André and Co ., bearing the address
of André and Co." On the same 4th Dec. Ferdi. 207A , Piccadilly ; they are addressed to the plain
nand Rath delivered a statement of defence, tiffs ; both have the word “ bought ” struck out
headed “ Between W . H . Davies and Co. and from the printed line “ Bought of André and
Ferdinand Rath, sued as André and Co.,” in Co.;" one has written in place of the erasure,
which he denied that he ever carried on business ! " goods returned ;" the other has " goods memo.
Q .B. Div.] DAVIES AND Co. v. ANDRÉ AND Co. Q . B. Div .
returned by." The affidavit goes on : “ Both Rath | Order XLII., r. 10, seems to be expressly framed
and his wife have called and seer. me at my to meet such a case. He will have been adjudged
business premises, and represented themselves as a partner if the verdict goes against him upon
calling on behalf of André and Co. Rath has this point, and he will have had the opportunity
also purchased and ordered goods ofme,and he has of contesting the debt, and justice will be done.
called on severaloccasions respecting my account And so, again , if a person so served fail to appear,
against André and Co. and promised payment judgment will properly go against him . He has
thereof. During my transactions with André | been served as a partner, and has had notice both
and Co. I have received several letters from them , of the amount alleged to be due and of the
and they are in the handwriting of Rath , though allegation that he is a partner. If he chooses to
signed in the name of André and Co." From contest neither point, execution rightly goes
these affidavits we conclude that the writ was against him . But if he is not served as a partner,
served on Rath without any definite information he is in this position : If he comes forward and
to him in what capacity he was served , and that appears, he treats himself as being sned as a
the indorsement was made after the copy writ partner, wbich is equivalent to admitting that he
left with Rath and returned by him had reached | is one. If he does not make this admission , he
the plaintiff 's solicitors. We also conclude that has no right to appear at all, and , even if he does
at the timeof the service of the writ André and make the admission , it is doubtful whether he
Co. had ceased to carry on business in Piccadilly ; falls within the rules we have cited , inasmuch as
that somebusiness at least was being done from he has not been sued in that capacity ; not being
8 , Ribblesdale - place, though it might be a private entitled to appear, he cannot prevent judgment
house, and that the plaintiff had reason in the going against the firm by default for the full
conduct of Rath for believing that Rath was amount claimed , and then when the piaintiff,
either a partner in André and Co. or their agent ; under Order XLII., r. 10, alleges that he is a
that the circumstances bring the service within partner, though not served or sued as one, he is
the terms of Order IX ., r. 6, as being “ either too late to dispute the amount of the judgment.
upon one of the partners or at the principal Hemay have the question of liability tried, but
place within the jurisdiction of the business of not that of the amount, and the penalty of
the partnership upon any person having at the having failed to admit at the outset that he is
time of the service the control or management a partner is that he may have to pay a debt
of the partnership there ;" and that the service never due at all, or which was really far less than
was a good service upon André and Co. We the amount of the judgment. This might be
think also that, although Rath had no means at all very well if all persons who deny that they
the time when he entered the appearance of are partners, where they really are partners,were
knowing in what capacity he was served , the dishonest, though even then the infliction of such
service must be treated , until and unless it is a penalty would not be consonant with the wide
established that he is a partner, as having been liberty given to a defendant in all ordinary cases
made upon him as having the control of the to deny the case of the plaintiff. But there are
partnership business. We pass to the conse no more difficult questions of fact and law than
quences of such service. By Order XII., r. 15, those which occasionally arise as to the fact of
" Where persons are sued as partners in the name partnership, witness the well-known case of
of their firm , they shall appear individually in Cox v. Hickman (8 H . of L . Cas. 268 ). It cannot
their own names ; but all subsequent proceedings be right that a person against whom a plaintiff
shall nevertheless continue in the name of the may ultimately claim on the score of his being a
firm ." By Order XII., r. 16 , “ Where any person partner in the firm sued can be heard to dispute
carrying on business in the name of a firm the amount of the claim only on the termsof
apparently consisting of more than one person admitting his partnership , or to dispute his
shall be sued in the name of the firm , he shall partnership only on the terms of being shut out
appear in his own name; but all subsequent pro from questioning the amount. It is quite clear,
ceedings shall nevertheless continue in the name from what passed on the argument before us,that
of the firm ." Any person , therefore, who appears the plaintiff has no notion of releasing Rath from
unconditionally to a writ addressed to a firm personal liability, and that, although he objects to
admits either that he is “ sued as a partner " or the interposition of Rath to prevent him from
that “ he is carrying on business in the name" of getting judgment by default against André and
the firm sued . Where, as in the present case, Co., he reserves the right of proceeding against
he is not told by the plaintiff that he is sued as a | him under Order XLII., r. 10, by way of execution,
partner, to appear as a person sued as a partner and he claims to be in a position to call upon
is to confess that he is a partner. Therefore Rath , as soon as judgment is signed , to discharge
under Order XII., r. 15, in circumstances like the as a partner a claim which he now says he ought
present, and under rule 16 in any case, no man not to be allowed to contest because the plaintiff
can appear at all, if he appear unconditionally, is not suing him as a partner. We think the
without admitting that he is a partner. If dilemma is one calling for the attention of the
he is willing to do that, he can then defend Rule Committee. Whatseemsneeded in thewayof
the action , and may dispute the debt in whole / alteration is that wben leave to issue execution is
or in part, and judgment will go against sought under Order XLII., r. 10 the judge should
the firm for the amount, if any, really due. 1 be able to grant to the person sought to beaffected
Execution may then go against the person who has | upon such terms (if any) as he shall think
so appeared under Order XLII., r. 10. If,again , a | fit leave to dispute the claim as well as the fact
person who bas been served with the writ and of partnership. But in the meantime the rules
served as a partner appears in his own name, he stand as they are, and we must endeavour to
can dispute the fact of partnership as well as prevent injustice from being done. If, notwith
the amount of the debt, and the latter part of standing appearances,which are against him upon
April 26, 1890. ) THE LAW TIMES . [Vol.LXII., N. 8.- 301
Q.B. Div.] Re New EBERHARDT COMPANY LIMITED; Ex parte MENZIES. (CT. OP APP.
this point, Rath really knows nothing of the
transactions in respect of which this action is
brought, he ought to be allowed to dispute both
| Supreme Court of Judicature.
the partnership and the existence or amount of
the alleged debt. Whether or not the allegation
that he is unconnected with the firm is true is a
COURT OF APPEAL.
question which cannot be settled upon the affi . Nov. 19 and 20 , 1889.
darits. On the other hand, if the plaintiff does
not seek to hold Rath liable as a member of the (Before Cotton, Bowen,and Fry, L .JJ.)
firm there is no reason why Rath should inter
Rath should inter. | Re New EBERHARDT COMPANY LIMITED ; Ex parte
fere with the right of the plaintiff to have judg. MENZIES. (a )
ment against the firm . If, therefore, the plaintiff APPEAL FROM THE CHANCERY DIVISION.
is willing to undertake that he will not seek to Company - Shares issued as fully paid - Registra .
issue execution against Rath as being a member tion of contract - Contract executed by company
of the firm the appearance will be struck out and only - Companies Act 1867 (30 & 31 Vict. c. 131),
the plaintiff may sign judgment against the 8. 25.
firm . In that case we think Rath ought to have An agreement purporting to be made between a
his costs of this application . If the plaintiff is company and certain persons mentioned in the
not prepared to give the undertaking, we see no schedule thereto, by which the company agreed to
course but to restore the conditional appearance issue to those persons certain shares as fully
with a modification of its terms, and to direct an paid, wasexecuted by the company only and filed
issue as to the question of partnership. The with the Registrar of Joint Stock Companies.
form of the conditional appearance being : “ Enter Held, that the agreementwas not " a contract duly
a conditional appearance for Ferdinand Rath , made in writing ” within sect. 25 of the Com .
who, unless the plaintiff will undertake not to panies Act 1867.
seek to hold him liable as a partner in the firm of Decision of Stirling J. reversed .
André and Co., desires to appear, though denying IN 1888 the Eberhardt and Monitor Company
that he is a partner, or that he carried on busi Limited went into voluntary liquidation . A
ness under the name of André and Co.” If in scheme for the reconstruction of the company
the result Rath should be found to be a partner under 33 & 34 Vict. c. 104, was proposed, and by
the conditional appearance will be struck out, order made in the winding-up by the judge, a
and he will have leave to appear as a partner . meeting of debenture-holders was held on the
If he should be found to be not a partner then 31st Aug . 1888 , and a resolution approping of the
the appearance will be struck out, and the proposed scheme was duly passed . All the
plaintiff will have judgment against André and debenture-holders voted in support of the resolu
Co. It may be that this is an extension of the tion . This scheme provided that the property,
procedure by way of conditional appearance. If assets, effects, and business of the Eberhardt and
it be so, however, it is one rendered necesary in Monitor Company should be transferred to the
the peculiar circumstances of this case by the New Eberhardt Company, and that the deben
impossibility under the rules of doing justice. tures in the old company should be exchanged for
The statement of defence is clearly wrong and preference shares in the new company.
must be struck out; Rath has no right to alter On the 19th Sept. 1888 an order was made by
the title of the action. The proceedings under the court in the winding-up sanctioning the
the rules must be continued in the name of above-mentioned scheme.
André and Co. as defendants, and the statement The new company was accordingly formed
that he is not a partner is nihil ad rem ,he not under the name of the New Eberhardt Company
having been served as a partner. It was objected Limited.
on behalf of Rath that when judgment is obtained By an agreement dated the 25th Sept. 1888 .
against the firm of André and Co. he might and expressed to bemade between the Eberhardt
ander Order XLII., r. 10, have an execution Monitor Company and its liquidator, and the
levied on the property in his house as partnership New Eberhardt Company, the latter company
property. This is an inconvenience that might purchased the assets and business of the old
happen to any person . The sheriff may make a company, on the terms (inter alia ) that the new
mistake in respect of any one's property, and company should pay and satisfy all the debts and
Rath has no claim upon this score to any special liabilities of the old company, and should allot
consideration. and issue to the holders of debentures of the
Solicitors for the plaintiffs, Learoyd, James,and Eberhardt and Monitor Company four fully paid
Miller . up preference shares of 58. each in the new com
Solicitors for the defendant, Vallance and Co. pany for every ll. debenture issued by the old
company, such preference shares to be entitled to
a non -accumulation dividend of 10 per cent.
This agreement was duly sealed with the seals
of both companies, but was not filed with the
Registrar of Joint Stock Companies under sect.
25 of the Companies Act 1867.*
On the 28th Sept. 1888 the new company exe.
cuted a document which expressed to be made
between the New Eberhardt Company of the one
part and the several persons named in the sche
dule thereto (who were the holders of debentures
(a )Reported by W . C. Biss, Esq., Barrister-at-Law .
Vol. LXII., N , S., 1589.
302 – Vol. LXII., N . S.] THE LAW TIMES. [April 26, 1890.
CT.OF APP.] Re New EBERHARDT COMPANY LIMITED ; Ex parte Menzies. [CT. OF App.
in the old company) of the other part, which given for valuable consideration - viz., in satis.
recited the agreement of the 25th Sept. 1888, and faction of a prior obligation subsisting under an
that the liquidators of the old company had agreeinent which had been previously made
requested the new company to allot and issue to l between the existing company and the liquidator
the persons named in the schedule thereto fully of another company. It seems to me, therefore,
paid shares of 5s. each to the amountof their deben - that it is a contract duly made in writiug. That
tures ; and it was witnessed that, in pursuance of 1 is all that the Act of Parliament requires. The
such agreement and of such request and direc Act does not say that the contract shall be signed
tion to the liquidators as aforesaid , the new com by all tbe parties to it, and I do not see why I
pany should allot and issue to the persons named should , or that I am bound to add these words to
in the schedule thereto the number of shares set the Act. It may be that it would none the less
opposite their names respectively ; and it was satisfy the terms of the Act if the parties of the
agreed and declared that the shares included in second part had signed it, but not the less is
the schedule should be held as shares upon wbich this a contract made by the company, and in
the full sum of 5s. had been paid , and should be writing. It seems to me, therefore, to satisfy the
liable to no further payment. The document terms of the section , and adopting the words of
concluded , “ As witness whereof the New Eber the late Master of the Rolls in Firmstone's case
hardt Company Limited has caused its common (L . Rep . 20 Eq. 524 ), I ask , is this a contract made
seal to be affixed hereto on the day and year first by the contracting party ? Surely it is. Who is the
above written .” The seal of the company was contracting party here : The company. Under
duly affixed to the document, but none of the the statute every shareholder in the company is
debenture-holders named in the schedule executed bound to pay up his shares in cash except upon
it. This agreement was duly registered on the certain terms. Then a contract is made by the
1st Oct. 1888 under the 25th section of the Com company that the shareholder shall not be bound
panies Act 1867. to pay them up in cash. That contract is the con
In Nov. 1881 the company allotted 400 fully tract of the company, and not the contract of the
paid -up shares of 58. each to Mr. Menzies, who shareholder. Therefore, it seems to me that the
was the holder of debentures in the old company, contract is made in writing by the contracting
of which he received notice on the 8th Nov . party, as the late Master of the Rolls said
1888 , and a certificate was subsequently sent to it was required to be. Then it is said that
him , the contract must show there was some con
· Doubts having arisen whether the document sideration moving from the shareholders. I
of the 28th of Sept. was such a contract as was am unable to follow that argument. It is
contemplated by the 25th section of the Com . necessary that the contract, in order that it may
panies Act 1867,Mr. Menzies took out a summons be valid , should have some legal consideration ;
before Stirling, J., asking that the register might but it does not appear to me that it was necessary
be rectified by removing his name from the list that that consideration should on the face of the
of shareholders, and that the company might be contract move from the party to whom the
ordered to execute and register a proper agree shares were to be issued . I think that this
ment for the purpose of securing him 400 fully document completely satisfies the terms of the
paid -up preference shares. Act, and therefore the foundation for this appli
The summons was heard before Stirling, J. on cation fails. There will be no order as to the
the 28th June 1889. costs.
Whinney for the applicant. From this decision Mr. Menzies appealed .
Grosvenor Woods for the company. Whinney for the appellant. It is enacted by
STIRLING. J. (after stating shortly the facts sect. 25 of the Companies Act 1867 that every
above mentioned) said :-- The agreement of the share shall be deemed to be issued and held sub
28th Sept. 1888 is a documentwhich is under the ject to the payment of the whole amount thereof,
seal ofthe company ; it is a document which con “ unless the sameshall havebeen otherwise deter.
stitutes an agreement between the company and mined by a contract duly made in writing, and
the persons named in the schedule thereto ; and filed with the Registrar of Joint Stock Companies
it shows that the company had come under an | at or before the issue of such shares," and, unless
obligation to issue to the holders of debentures of this provision is strictly complied with , the
another company, being the persons named in the appellant and the other debenture -holders named
schedule, shares witb five shillings paid up ; and in the schedule to the document of the 28th Sept.
it is an agreement in satisfaction of the obliga will be liable for the fu 'l nominalamount of their
tion to issue shares accordingly, and declaring shares. That document has never been signed by
that the shares as issued shall be deemed to be the appellant or any of the parties mentioned in
shares on which the full sum of five shillings has the schedule to it. It was not therefore a con
been paid, and liable to no further payments. tract duly made in writing, because it was only
Now , I have to ask myself this question. In this signed by one of the parties to it, namely , the
à contract duly made in writing determining that | new company, and it is necessary that both
the shares so issued , and to which it relates, are should sign :
to be held otherwise than as subject to the pay. Firmstone's case, L . Rep. 20 Eq. 524 ;
ment of the whole amount thereof in cash ? It Bewley v . Atkinson , 41 L. T. Rep. X . S. 603 ; 13 Ch .
seems to me that it is. In the first place, it is a Div. 283.
contract binding on the company. It is a legal | In Ex parte Munro (35 L . T. Rep . N . S . 847 ; 1
document made in accordance with the form in Q . B . Diy. 724 ) it was held that an agreement
which documents under seal are, required to be as to the payment of costs by the client, but
made according to the English law . It is under signed by the solicitor only, wasnot an agreement
the sealof the company, and it shows that it was I in writing withiu the Attorneys and Solicitors
April 26, 1890 .] THE LAW TIMES. (Vol. LXII., N . 8.- 303
CT. OF APP.] Re New EBERHARDT COMPANY LIMITED ; E . parte MENZIES. [CT. OF APP.
Act 1870. There must be a contract which is | honest and well intentioned, but I am afraid the
binding on both parties : statute has not been complied with . There was
Re Almada and Tirito Company, 59 L . T . Rep. N . S. a proposal on the winding-up of the old company
159 ; 38 Ch. Div. 415 . to transfer all the assets of the old company to
The usual form of such an agreement is, that the the new company on certain terms; that is to
contract is made between the company and a say, that all the debenture-bolders of the old
trustee or agent of the shareholders who signs on company were to have fully paid -up 58. shares in
their behalf ; and,when each shareholder accepts the new company to the amount of their deben
the shares, he thereby ratifies the act of his agent, tures. The law has enabled that to be done :
and the ratification dates back to the execution but under the Act of 1862 it was necessary that
of the contract. there should be a special resolution passed by
Grosvenor Woods for the company. - At the date the debenture-holders in this company, and that
when the document of the 28th Sept. 1888 was was done;that is to say, they authorised thedirec
filed there was an agreement between the old and tors of theold company to make a contract with the
new companies, which bound the new company to new company and to transfer to the new comany
allot fully paid -up shares in exchange for deben . the property of the old company in those shares.
tures in the old company. The appellant had To that the appellant assented. Then what was
assented to this agreement by voting for the done ? A memorandum of agreement was pre
scheme, and he was bound to take the shares . pared , expressed to be made between the new
The written agreement of the 25th Sept. was company and the persons named in the schedule
recited in the document of the 28th Sept., and it thereto ,which recited a contractbetween the liqui.
therefore contained full particulars relative to dator of the old company and the new company,
the issue of the shares. In Anderson 's case (37 and then wenton in this way : “ And in pursuance
L. T. Rep. N . S.560,564 ; 7 Ch. Div. 75) Baggallay, of the said agreement," that is the agreement
L.J. quotes and approves of the statement of between the liquidator of the old company and
James, L .J. in Crickmer's case (L . Rep. 10 Ch. the new company, “ and of such request and
App. 614 ), where he says that a contract in direction to the liquidator as aforesaid , the com
writing required to be registered under sect. 25 pany shall allot and issue to the persons named
ofthe Act of 1867 “ must be a contract which in the schedule hereto the number of shares set
shows what sbares are to be issued fully paid -up , opposite their respective names in the 4th column
and for what consideration they are to be issued ." and having the distinctive numbers set opposite
The document registered here shows those facts. to them in the 5th column of the schedule and
It is not necessary that the contract in writing credited as having the full sum of 58. per share
should be signed by all the parties to it : paid up thereon . And it is hereby agreed and
Laythoarp v. Bryant, 2 Bing. N . C . 735. declared that the shares included in the schedule
When the appellant accepted his shares,he did so 80 to be allotted as aforesaid are to be held as
on the basis of the agreement, and his acceptance shares upon which the full sum of 58. per share
related back , and constituted the document a con has been paid .” This document, which was the
tract binding on both parties. There was an offer thing that was registered, contained , in my
opinion , no agreement at all, but I think it
in writing subsequently accepted by parol, and contained an offer to give all the debenture
that is sufficient : holders named in the schedule fully paid -up shares
Reuss v. Picksley , 15 L. T. Rey. N . S. 25 ; L. Rep. 1 to the amount standing in their names, and so
Ex. 342.
The object of the statute is to let the public soon holdersas then
that was accepted by the debenture
there became a contract between
know the terms of the contract, the names of the them and the new company in the terms of and
parties, and the consideration for it, and the in accordance with this memorandum . But I
document filed shows all this. He also re cannot see here that there is anything registered
ferred to which can amount to a contract in writing,
Williamsv . Børnes, 1 Moo. P . C . N . S. 154 ; because one must look and see what it was in
Smith v. Neale , 2 C . B . N . S. 67 ; fact that was registered. As I have before
Warner v. Willington , 3 Drew . 523. intimated , it merely comes to this, an offer made
COTTON, L .J. — This is an appealagainst a judg by them in this form ; that is to say , to issue
ment of Stirling, J., refusing to remove the shares as fully paid up to those persons named in
name of the applicant (the appellant here) from the schedule who would accept them . Now , I
the list of shareholders of the new company cannot see how that can be , within the words of
which is the New Eberhardt Company Limited . this section , “ a contract duly made in writing
Now , there is no question that he contracted and and filed with the Registrar of Joint Stock Com
agreed with this company to take from it certain panies at or before the issuing of such shares.”
paid -up shares ; that is to say, shares which in At the time when this was filed there had been
law could have no further claim made upon them , no acceptance by any person to whom it was
but he says that the 25th section of the Act of intended to allot these paid -up shares, and if that
1867 has not been complied with because there be so there was no contract at all. I doubt
had not been before the shares were issued a whether there would bare been a contract in
registration of such an agreementas is required by writing, even although an agreement had been
the statute. That section is as follows: [His made by the acceptance by these persons of the
Lordship then read the section and continued :] terms offered . The words of sect. 25 are “ a
The question upon which this case turns is this : contract made in writing.” That is very differ
Whether before the issue of the shares there was ent from the terms of the Statute of Frauds,
a contract made in writing and registered with because the Statute of Frauds provides that no
the Registrar of Joint Stock Companies ? What action shall be brought " unless the agreement
has been done here may have been perfectly i upon which such action ', shall be bronght,
304 _ Vol. LXII., N . S.] THE LAW TIMES. [April 26, 1890.
CT. OP APP.] Re New EBERHARDT COMPANY LIMITED ; Ex parte Menzies. [Ct. Of APP.
or some memorandum or note thereof shall | been no offer made by the appellant to the com
be in writing and signed by the party to be pany which could be accepted , but only a consent
charged therewith . It may be — I do not intend given to a resolution which authorised the agree.
to express any opinion upon it — that in accordance ment between the two companies. If this is not
with the decisions there might be an acceptance
the acceptance of an offer already made,what is
by the party , even if the acceptance was not in
it ? It is an offer duly made in writing , and only
writing and signed by him , merely by circum an offer till it is accepted, and it was filed while
stances which were afterwards taken to amount it was an offer only. The offer being something
to an acceptance. But the judges have decided short of the contract, it was not a complete con
those cases upon these special words, “ a note or tract when it was filed . It is true that it did
memorandum " in writing of the agreement. It turn afterwards into a contract when it was
was held in Reuss V . Picksley that there was accepted , but it did not turn into a contract, I
an agreement made by circumstances which think , which was duly made in writing, because
amounted to an acceptance of the offer con . the offer only was made in writing, and it
tained in thememorandum which was in writing, certainly did not turn into a contract which had
and there being an agreement the court held that been made in writing at the date when the docu
there was within the Statute of Frauds a good ment was filed , and it only became a contract
memorandum in writing of the agreement long after the document was filed . It is obvious
because all the terms were stated in the docu therefore that, unless we are to fritter away this
ment. That was apparently the ground upon section by putting a forced construction upon it ,
which the court decided , because it was said the section has not been complied with . I regret
(15 L . T . Rep. N . S .29 ; L . Rep . 1 Ex. 351) : “ All the necessity of giving this judgment. I think
difficulty as to the terms of the proposal is out it a most unfortunate slip ; and that in substance
of the case. It contained the names of the the object of the Act has been fulfilled ,although
parties and all the terms by reference to the certain requirements have not been complied
letter of the 8th Sept. which must be taken to be with . But we must see that the Act of Parlia
recited in the letter of the 9th. The only ques. ment is carried out in its letter as well as in its
tion is, whether it is sufficient to satisfy the spirit. The cases on the Statute of Frauds can
statute that the party charged should sign what 'l have nothing to do with it, and it would not
he proposes as an agreement and that the other follow because the document would be held to be
party should afterwards assent without writing a note or memorandum within the Statute of
to the proposal.” But the words of this statute Frauds that therefore it is a contract which
are, “ an agreement made in writing,” which is fulfils the requirements of a different section in
something very different from a “ memorandum a different Act. Reu88 V. Picksley and the case
made in writing," and in my opinion it is im that preceded it (Smith y . Neale) were not deci.
possible to say that at the timethis document was | sions that the document amounted to a contract,
registered there was in fact an agreement in but only that it amounted to thememorandum of
writing signed , or that an agreementmade in writ - a contract. We are bound by Reuss v. Picksley,
ing was signed at or before the time when the and that no doubt pushed the literal construction
shares were issued . In my opinion, subject to the of the Statute of Frauds to a limit beyond which
point that I will deal with now , the case entirely | it would perbaps be not easy to go ; but unless
fails. But it was ingeniously suggested by Mr. we found the language of the Statute of Frauds
Grosvenor Woods that here there was not a pro repeated in this section we should not be bound
posal at all — that it was an acceptance of a pro by Reuss v. Picksley, and if we were to follow it
posal previously made. As I understood him to we should be following that which has not a real
say, he assented at the generalmeeting of deben analogy.
ture-holders to the proposal which was made by FRY, L .J. - I am of the same opinion . The
the resolution placed before them that the liqui | 25th section of the Companies Act 1867 requires
dator should be authorised to enter into the certain conditions to exempt shares from liability
agreement with the new company . There was to be paid in cash . Now , those conditions are as
no proposalmade by the debenture-holders to the follows: first, there must be at or before the date
new company ; it was merely that they gave autho of the issue of these shares a contract ; secondly ,
rity to the liquidator to make the proposal to the that contract must be duly made in writing ;
new company. In my opinion the document and thirdly , that contract must be filed with the
registered does not purport to be an acceptance registrar. Now , all those thingsmust be done or
of any offer made by the persons named , so as to must be in existence at or before the date of the
constitute an agreement in writingmade by them . i issue. You cannot have a contract filed before
In the present case, being merely a proposal in the issue of the shares if it is not a contract till
writing, an offer made in writing by these persons, after the issue of the shares. You cannot have it
it cannot be considered to be an agreement in duly made in writing at that time unless it has
writing within the 25th section , or that that been made before the issue of the shares. All
section has been complied with . Therefore, as these things therefore must be done at or before
we do not take the same view that Stirling , J. that time. Now , what we have here is this :
did , we must make an order that the name of There was a contract between the old and the new
the appellant be taken off the register of share company which provided for the issue of these
holders.
shares, but that was never registered ; therefore
Bowen, L .J.- I am of the same opinion, and I that is out of the question . But a certain memo
only express my individual view because we are randum of agreement of the 28th Sept. 1888 was
differing from the learned judge in the court filed . That purported to be between the new
below . For the reasons given by the Lord Jus- company and the several persons whose names
tice it is plain that this document which has been and addresses were set forth in the schedule. Not
filed is not an acceptance of an offer. There had one of those persons signed the agreement. Not
April 26 , 1890.) THE LAW TIMES. [Vol. LXII., N. 8.- 305
Ct. Or APP.) GLASIER v . ROLLS. [CT. OF APP.
one of those persons is shown to have given coupled with the notes of counsel, ought generally
any assent to the agreement until by acceptance to be sufficient.
of the shares after issue they may be said to have | On the 26th July 1889 judgment was given by
concurred in the agreement. Therefore it appears , the Court of Appeal on the hearing of this case
to me there was at the time of the issue of the (52 L . T. Rep. N . S . 133 ; 42 Ch . Div . 436)
shares no contract between the parties on the reversing the decision of Kekewich, J., and the
terms of this instrument; still less was there any order had now been passed and entered .
contract duly made in writing. Now we have been On the hearing of the appeal transcripts of the
asked to attend to cases on the Statute Frauds,
of shorthand notes of the evidence in the court
but nothing can be more different than the below , which had been made for the purposes of
language of this statute and the language of the the appeal, were used by the court and counsel.
Statute of Frauds. The latter is satisfied if ! The hearing of the appeal had been postponed
the memorandum of the contract be in writing until one week after a pending judgment of the
signed by the party to be charged therewith ; | House of Lords in Derry v. Peek (61 L . T . Rep.
but here the contract must be made in writing, N . S . 265 ; 14 App . Cas. 337) had been delivered ,
by which I understand that both parties to and on the hearing of the appeal shorthand notes
the contract must signify their assent to the of the judgment of the House of Lords were used,
terms of it in writing, and without going as the decision had not then been reported .
beyond the writing you can see the exis. When judgment on the appeal was given , no
tence of the contract between the contracting application was made that the costs of the short
parties. That is the ground on which it appears hand notes of the evidence and judgments should
to me that we cannot convert this into a contract be allowed , and that order as passed and entered
satisfying the language used by reason of the contained no direction as to those costs.
subsequent acceptance of its terms by some of T'he defendants, the successful appellants, now
the persons making the contract. But then it is applied that the costs of the transcripts of the
said that this is not an offer by the company ; it shortband notes of the evidence taken in the
is an acceptance by the company of an offer court below , and of the transcripts of the judge
previously made to them . But the misfortune is, ments in the House of Lords in Derry v. Peek ,
that this document does not contain any writing might be allowed as part of their costs of the
stating the offer ; it does not purport to be an appeal.
acceptance of the offer ; it proceeds on an entirely
different footing. Therefore, if it were the fact Muir Mackenzie for the applicants. - The
that there was any such offer (I agree there was transcripts of the shorthand notes of the evidence
not), that is not embodied in this writing, and were made expressly for use on the hearing of
therefore is not a contract duly made in writing. the appeal. The Court of Appeal could not have
I regret to have to come to this conclusion , properly decided the point before it without
because thedocument registered is an honest one, them . The judge's notes and the notes of
and obviously discloses the real transactions counsel would not have been sufficient in this
between the parties. case, which was one of fraud . The case stood
over for the decision of the House of Lords in
Solicitors for all parties : Snell, Son , and Derry v. Peek , and, as it was not reported by the
Greenip . time this appeal was heard , the only way the
judgment could be brought before this court was
by means of shorthand notes. (COTTON , L .J.
Wednesday, Nov. 20 , 1889. The application should have been made imme
(Before Cotton, BOWEN, and Fry, L .JJ.) diately after the judgment of the Courtof Appeal
GLASIER v. Rolls. (a) was delivered . FRY, L .J. - Earl De la Warr v .
Miles (45 L . T . Rep. N . S . 424 ; 19 . Ch . Div . 80)
Appeal- Shorthand notes — Evidence - Judgmentslays down the time at which the application
--entered
Costs. - Application after order passed and
should be made. Though the application should
be inade generally before the order is drawn up,
The hearing of an appeal was ordered to stand it may be made afterwards :
over until one week after a pending judgment of Ex parte Steed ; Re Day, 33 W . R . 80 ;
the House of Lords had been delivered . After the Phillips v . Phillips, 5 Q . B . Div . 60 ;
final order of the Court of Appeal had been Bigsby v. Dickinson , 35 L. T . Rep. N . S.679 ; 4 Ch.
passed and entered the successful appellant Div. 24 .
applied to the court to direct that the costs of the | Warmington, Q .C . and Solomon, for the re
transcript of the shorthand notes of the evidence spondent, were not called upon.
on the trial of the action and of the judgmeut Cotton, L .J. - This is an application made to us
of the House of Lords, all of which were used at to direct that the appellants should be allowed
the hearing of the appeal, should be allowed. the costs of the shorthand-writer's notes of the
Held ,that the application must be refused, as such evidence in this case of Glasier v. Rolls, and that
a direction would alter a final order of the court, he should be allowed also the costs of the short
which will only be done where, through some hand -writer's notes of the judgments in the
slip, the order does not express the intention of | House of Lords in Derry v . Peek . The order has
the court.
Applications for the allowance of such costs been passed and entered, and, except under a slip
order - where there has been a slip in not embody
should be made at the hearing of the case or ing in the order what was really the intention of
immediately after judgment has been given . the court - that order cannot be varied, because
The cost of shorthand notes of evidence will only the effect would be to alter a final order of the
be allowed in extreme cases ; the judge's notes, court already completed . Even if we thought it
(a) Reported by W . C. Biss, Esq., Barrister -at-Law , right to allow the costs of the shorthand notes,
305 - Vol. LXII., N . 8.] THE LAW TIMES . [April 26, 1890.
CT. OF APP.] LONDON , TILBURY, & c., Rail . Co . & TRUSTEES OF GOWER 'S -WALK SCHOOLS. [CT. OF APP.
we cannot do it now . The order made has directed ! asking that something may be embodied in it the
that the costs be paid by one party to the other, demand for which was not even thought of at
and has ordered these costs to be taxed, and as the time, and was never brought to the attention
regards the costs of the shorthand notes of of the court, is really to ask us to make a diffe
evidence, the taxing master is directed not to rent judgment from that which has already been
allow them unless there is some special direction perfected . It seems to me, therefore, that it is
given by the judge or by the court which hears too late for the applicant to come with any part
the case ; and it has already been laid down by of his request. I quite agree with what the Lord
this court that any application for that purpose Justice has said about the general practice as
ought to be made immediately after or at the | regards shorthand notes. Of course it is a
hearing at which the order was made, because matter of discretion . We cannot bind the discre.
then the court is in possession of all the facts of tion of the court, nor do we pretend to do so, in
the case, and can say whether or not it is reason any similar case ; but, looking at the practiceof
able that these costs shonld be allowed. As the court, I think it most expedient that suitors
regards the costs of the shorthand notes of the should know that it would require an extreme
evidence, I must say - although that is not what | case to induce the court to exercise such a discre
my judgment turns upon that we should never tion. To easily allow the costs of the shorthand
have allowed these costs here. Either the judge's notes of evidence on appeal would be, in my
notes, or if these notes were not sufficient the opinion , to add a new terror to litigation of which
notes taken by counsel, would be quite sufficient, there are plenty. It seems to me that this appli.
especially in a case like the presentwhich did not cation must be dismissed with costs.
turn on the minutiæ of evidence, but on the FRY, L .J. - I am of the sameopinion .
question what the law applicable to the case was.
I am only now speaking from recollection , but I Solicitor for the appellant, E . T. Tadman.
think Kekewich, J. did not hold that there was Solicitors for the respondent, Byrne and Lucas.
any fraud on the part of the appellants, the
defendants in the action , but only that they made
a mis-statement as to the capital, which was an
inference to be drawn from the facts. There was Nov. 28 and Dec. 19, 1889.
some discussion as to what was properly called (Before Lord ESHER, M .R ., LINDLEY and
capital, & c. Butcertainly we ought never,except LOPES, L .JJ.)
in very extreme cases, to allow the costs of da I Re AN ARBITRATION BETWEEN THE LONDON , TIL
the shorthand notes of the evidence ; judge's BURY, AND SOUTHEND RAILWAY COMPANY AND
notes, coupled with the notes of counsel, ought the TRUSTEES OF THE GOWER'S-WALK FREZ
generally to be sufficient. But I decide this SCHOOLS. (a )
case on the ground only that to allow these
costs would in effect be altering the order which APPEAL FROM THE QUEEN'S BENCH DIVISION .
the court made on the hearing of the appeal, and Lands Clauses Consolidation Act 1845 (8 & 9 Vict.
that we cannot and ought not to do so after that c. 18 ) - Railway Clauses Consolidation Act 1845
order has become the final order of the court. (8 & 9 Vict. c. 20 ), 88. 6 and 16 - Land injuriously
That ground applies to the application as regards affected - Obstruction of ancient and new lights
the shorthand notes both of the judgments in - Compensation .
the House of Lords, in Derry v . Peek and of the A railway company, by the erection of a warehouse
evidence. As regards the notes of the judgments under the powers conferred on them by their
of the House of Lords, they stand in a different special Act, which incorporated the Lands
position from the notes of the evidence ; and if Clauses Act 1845 and the Railway Clauses Act
the taxing master, having regard to the circum 1845, obstructed the passage of light to an
stances of the case, thinks that they can be adjacent building. This building had been
allowed , then no alteration of the order will be lately erected on the site of an old building
required . But I am of opinion that we cannot which had acquired a right of free access of light
and ought not to make any alteration , even as under the Prescription Act 1832, and certain
regards these costs, so as to make the order direct portions of the windows in the new building
that which in fact at present it does not direct. coincided with certain portions of the windows
I do not say at all what the effect of the order which had existed in the old building. The
as it now stands is with regard to the taxation of owners of thenew building claimed compensation
these costs ; but I decline to make any alteration for damage by obstruction of light in respect of
in the order in the events which have happened, the whole of their windows, including the
namely, after the order has become the finalorder windows and portions of windows which did not
of the court and is passed and entered , and there coincide with their ancient lights.
has been no slip in expressing what the order of Held , that the claimants were entitled to be com
the court was . pensated by the railway company for the obstruc
Bowen, L .J. - I entirely agree with Cotton , L .J., tion to the passage of light not only to those
and think the judgment of the court in this portions of windows which coincided with the
matter ought to rest upon the ground on which ancient lights, butalso to the new windows.
he has put it. It is quite a different thing to This was an appeal from a judgment of the
come after a judgment and ask that it should be | Queen 's Bench Division , reported 61 L . T . Rep.
amended so as to express the real intention of the N . S . 693 ; 24 Q . B . Div. 40 .
court, entertained by the court at the time the The question arose on a special case stated by
judgment
tained was court
by the givenis. not
If an intention
expressed so enter
in the order an arbitrator in an arbitration under the Lands
there has been a miscarriage, and you set it right | Clauses Act.
as a slip ; but to seek to alter the judgment by 1 (a) Reported by E .MANLEY SMITH, Esq., Barrister-at-Law .
April 26, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.- 307
CT. OF APP.] LONDON, TILBURY, & c., Rail. Co. & TRUSTEES OF GOWER'S-WALK SCHOOLS. [CT. OF APP.
The railway company had built a warehouse, railway company has been authorised by statute
under their statutory powers conferred on them to erect a large warehouse close to one side of a
by their special Act, which incorporated the street, a somewhat narrow street, on the other
Lands Clauses Act and the Railway Clauses Act side of which were the school-houses of the trus
1845, on land abutting on Lambeth - street, in tees. In the school-houses were some windows
the parish of St. Mary , Whitechapel, which which were ancient lights, and also many other
diminished the light enjoyed by a school-house, | windows which were not, and the warehouse
printing-house, workshop, and other premises undoubtedly interfered with the light of all the
on the other side of the street which were known | windows. The railway company are bound to
as the Gower's -walk Free Schools. The trustees indemnify the trustees for any damage suffered
ofthese schools had lately erected these premises by them by their land being injuriously affected .
upon the site of old buildings, the whole of the | It is not denied that the land has been injuriously
lights of which were ancient lights. In the new affected , for the company have done what would
buildings some of the window spaces did not have been an actionable injury unless it had been
coincide with or incorporate any of the ancient authorised by an Act o Parliament. The arbi
window spaces, while others included the whole or trator to whom the matter was referred fixed on
substantial parts of the arcient windows,but were two figures - one sum to be for the injury to the
larger in area than such ancient windows. The ancient lights, the other for the injury done to
trustees claimed compensation for injuries occa allthe lights in the school. The first of these two
sioned to the said schools by the loss of light sums the company is certainly bound to pay, but
consequent on the erection of the warehouse, in the question for us to consider is whether they are
respect of the whole of the windows of their new bound to pay the larger sum . The doubt which
building. The company contended that they has affected us, or, at all events,myself, consider
were liable only for the obstruction of such parts | ably was this : If the railway company had only
of the new windows as coincided with the ancient | interfered with lights that were not ancient, the
lights. The claim was referred to arbitration trustees would have no claim for compen
under the provisions of the Lands Clauses Act sation against them ; then should they now under
1845,and thearbitrator, in a special case submitted the Act be compensated for the injury ? I had
for the opinion of the court, assessed the | some doubtwhether , supposing the company had
damages at 14501., if the trustees' contention was | been ordinary owners of their land unaffected by
right, or at 7251. if the damages were to be any Act of Parliament, and the trustees had sued
assessed on the basis suggested by the railway them in a common law action for interfering with
company . their ancient lights, they could have recovered
The Divisional Court (Mathew and Wills, JJ.) in that action damages for the injury done to
gave judgment for the trustees for 14501. their other lights which were not ancient. What
The railway company appealed . is the common law rule in such a case as this ?
R . S. Wright and C . Haigh for the appellants. It seems to me a plaintiff would be entitled to
- The Act gives no right of compensation unless, recover for all the damage caused to him by the
wrongfulact which is a direct consequence of it,
apart from the statute, there was a right of and such a probable consequence of it that the
action . The only exceptions to this are, defendant must have foreseen that it would be
Re The Stockport, Timperley, and Altrincham Rail caused by what he has done. Then , if a plaintiff
way Company, 10 L . T. Rep . N . S . 426 ; 33 L . J.
Q . B . 251 ; has a house with some ancient and somemodern
Essex F. The Acton District Local Board , 61 L . T. lights, and a defendant puts up a building the
Rep. N . S. 1 ; 14 App. Cas. 153 ; inevitable consequence of which is that he
and those cases do not govern this. In this case obstructs not only theancient but also themodern
only an easement has been taken away, and land lights, must he not be taken to have foreseen
does not include easement : that in obstructing one kind of light he would
Pinchin v . The London and Blackwalt Railway be obstructing the other ? He must see that he
Company, 5 De G . M . & G . 851. must at the same time and by the sameact injure
Bosanquet, Q .C . and Houghton for the trustees themodern as well as the ancient lights. If in a
- Damage in the Act means much more than common law action a plaintiff would be entitled
legal damage,and includes any injurious affecting | to damages for the whole injury done by the
ofthe land ; and when the owrer of land has his wrongfulact both to the new and old lights of his
interest in the land injuriously affected under building, then compensation must be also given
statutory powers, he is entitled to compensation in the same way in the case of a claim under the
for all the damage to that land which he has Railway Clauses Act. But, supposing that a
sustained by the exercise of the statutory powers, I plaintiff could not recorer at common law in such
although no part of his land is taken . The a case as is before us, can he under the Railway
following cages were also cited : Clauses Consolidation Act 1845 get compen
Ricket v . The Metropolitan Railway Company , sation for injury done to his modern as well as to
16 L . T . Rep. N . S. 542 ; L . Rep. 2 H . of L . 175 ; his ancient lights ? The question depends on the
Duke of Buccleuch v. The Metropolitan Board of construction of sect. 16 of that Act, which pro
Works,
418 ;
27 L. T. Rep. N . S. 1; L. Rep. 5 H . of L . vides that the company shall make full satisfac
Hammersmith Railway Company v. Brand, 21 L. T. tion to all parties interested for all damage by
Rep. N . S. 238 ; L . Rep . 4 H . of L . 171 ; them sustained by reason of the exercise of the
The Metropolitan Board of Works v. McCarthy, company's powers. The question is, whether, if
31 L . T . Rep . N . S. 182 ; L . Rep . 7 H . of L . 243. something be done in exercise of powers given by
R . 8. Wright replied . the Act, it gives the plaintiff not only what he
Cur. adv. vult. might legally claim as compensation, but some
Dec. 19. - Lord Esner, M .R . - In this case a thing more. Does not “ full satisfaction for all
question has been raised by a special case. Al damages " mean something more than mere legal
308 — Vol. LXII., N . 8.] THE LAW TIMES. [April 26, 1890.
CT. OF APP.] LONDON , TILBURY, & c., Rail. Co. & TRUSTEES OF Gower's-WALK SCHOOLS. (CT. OF APP.
claims for damage ? If the words “ full ” and ! blöcked up the modern windows, but I take
“ all ” were left out of the section , it would give it that a wrongdoer cannot reduce his liability
legal damages to the injured person , and the | for an injury he has doneby saying that he might
words, it might be said , would be mere tautology | bave done a greater injury. The trustees say the
and therefore might as well be left out. If it were company has injuriously affected their land, and
not for a higher authority I should say that, the injury having been done under the authority
unless the words were quite clear, an Act of of an Act of Parliament which gives compensa
Parliament should not be construed to givemore tion for it,the railway company is obliged to give
than legal damages. But there is the case of full compensation for all the damage done by
Essex v. The Acton District Local Board (ubi sup.), their exercising their rights under the Act. What
in which there was an appeal from this court to authority there is on this point is, I think, in
the House of Lords. In that case some land had support of the trustees' claim . It has been
been taken , and some other land was thereby argued that this case is not like the Stockport
injuriously affected. On the question of the case (ubi sup.), nor like the case of Essex v. The
. . amount of damages on account of the injury to | Acton District Local Board (ubi sup.), because the
the land injuriously affected it might have been question there was on sect. 63 of the Lands
said that the injury done was that for which Clauses Consolidation Act, while here we are on
. . legal compensation could be gained , but the the meaning of sect. 16 of the Railway Clauses
House of Lords · said that something more Consolidation Act. But in the latter case the
than that should be given . The Lord Chancellor controversy was whether the owner of the land
said in his judgment : “ Where part of a pro was entitled to any compensation . The House of
prietor's land is taken from him and the future Lords thought he was, and whether the compen .
use of the part taken may damage the remainder sation be claimed under sect. 63 or sect. 16 the
of the proprietor's land, then such damage may measure of compensation is the same. I think
be an injurious affecting of the proprietor's other that the decision of the Court below was right,
land , though it would not be an injurious and this appeal should be dismissed.
affecting of the land of neighbouring pro Lopes, L .J. - Having regard to the authorities
prietors from whom nothing had been taken and the words of sect. 16 of the Act, this case does
for the purpose of the intended works.” not seem to me a difficult one. As a matter of
That seems to me, so far as I understand it , to fact it is physically impossible to obstruct the
mean that there may be an injurious affecting for light to the modern windowswithout obstructing
the purpose of compensation which would not be also the ancient ones. If there had been no Act
an injurious affecting for which an action would of Parliament the trustees would have had a
lie at common law ; because it is obvious that the cause of action against any one obstructing
use of the land in that case would not have their ancient lights ; if an individual without the
supported a common law action , unless it were a authority of an Act of Parliament had begun to
nuisance. The House of Lords approved of the erect this warehouse the trustees would have
cases of Re The Stockport, Timperley , and Altrin . been entitled to ask for an injunction to restrain
cham Railway Company (ubi sup.) and The Duke the erection. But an Act of Parliament has
of Buccleuch v . The Metropolitan Board of Works authorised the erection of the warehouse, there
(ubi sup.). But in the latter of these two cases fore no action can be brought by the trustees of
there was taken something equivalent to land the school. The remedy of the trustees has been
which brought the case within the statute. taken away, and they have lost the enjoyment of
Compensation was given to the Duke for the use light to both their old and new windows by the
of the embankment after it was made in front of exercise of the powers given by the Act of Parlia.
his house, which could not have been given at
common law , and this view the House of Lords ment.Legislature
If it had not been for the interference of
adopted . There is this difference : that in the the the school would have kept all
their lights to their full extent. Their property,
present case no land was taken ; but how can by the exercise of the powers given by the Act,
this signify in a question of assessing damages ? has been deteriorated in value to the extent of
The ratio decidendi is to give, not merely
legal damages, but compensation for all damage 14501. In my opinion, therefore, the school is
suffered by the plaintiffs' land If the land is “entitled under the Act to recover this sum as
full satisfaction for all damage " in accordance
injuriously affected this seems to me to bring the with the principle of the cases of The Duke of
case within the section , and the plaintiff is Buccleuch v. The Metropolitan Board of Works
entitled to recover as compensation a larger (ubi sup.) and Essex v. The Acton District Local
amount than he could have recovered as damages Board (ubi sup.). Shortly stated , I believe the
at common law. I think therefore that the principle to be this ; directly a party becomes
trustees were entitled to the larger amount, and under the statute entitled to compensation , then
that the judgment of the Divisional Court should he is entitled to full compensation for all damage
be affirmed and this appeal dismissed . sustained by his property. I think , therefore,
LINDLEY, L .J. - I am of the same opinion . The that the appeal should be dismissed.
key to this case is to be found in considering
what the railway company have in fact done. Appeal dismissed.
The trustees have a schoolhouse and buildings.
The railway companyhave erected a largebuilding
Solicitors for the trustees, Hanbury, Hutton,
and Whitting.
on the opposite side of the street,and by so doing Solicitors for the railway company, F. C.
have infringed the rights of the trustees to light, Matthews and Browne.
and diminished the value of their land by an
amount found by the arbitration to be 14501.
That is the necessary result of their wrongful
act. The railway company say they might have
CT. OF APP.] SWAINE V. WILSON. [CT. OF APP.
Nov. 4 and Dec. 19, 1889. rule until the time for which he received wages shall
have expired .
(Before Lord Esher, M .R ., LINDLEY and 42. Should any disagreeable circumstance arise
LOPES, L .JJ.) between any member and his employer or manager
SWAINE v. Wilson. (a) which would justify such member in giving notice to
APPEAL FROM THE QUEEN 'S BENCH DIVISION. leave his situation, he shall inform the president of the
circumstances of the case , who shall bring the same
Friendly society - Trade union — Illegality of rules | before the committee at once, and if they consider it
- Restraint of trade- Legality of society - Trade advisable so to do, shallclaim
give such member consent to
the benefits under rule 41.
Union Acts 1871 (34 8 35 Vict. c. 31) and 1876 leave his situation , and
Shonld any member leave his situation without eroh
(39 & 40 Vict. c. 22). consent, he shall not be entitled to benefit.
When the fundamental object of a friendly society 46. Should any member be working where there is, or
which is a trade union within the Trades Union likely to be, a situation vacant, or if he gives or receives
Acts 1871 and 1876 is a legal one, the illegality notice to leave his employment , he shall give infor
of some of its rules on accountof their being in mation ofofthethe work
nature samecarried
to theon,president, with the
within 'twenty-four
restraint of trade does not make the society an hours from the time such notice begins or situation
illegal one or prevent the enforcement of those of be vacant, if he reside within three miles of the Town
its rules which are not illegal ; nor will the fact Hall (if above three miles, forty- eight hours), or be fined
that some of these last-mentioned rules may, if two shillingsand sixpence for each neglect. Any member
carried out, to a certain extent restrain trade giving notice
holding of a situation
any important being invacant,
information and with
connection with
render them illegal if they were bonâ fide made the same, shall be fined two shillings and sixpence
xp ence.. ( If
for the purposes of carrying out the fundamental there be a member out of employment, or one wishful
object of the society. to change bis situation, the president shall immediately
This was an appeal from a judgment of direct
tion .] one suitable
Should for the work
any member who tois apply the situa
out offoremployment
Denman , J. at the trial without a jury. get a situation , he shall inform the president of the
The plaintiff was a member of the Bradford samewithin twenty -fourhours, or be fined two shillings
Power-Loom Overlookers' Friendly Society, an and sixpence. If a letter be posted to the president the
same
unregistered society , and claimed a benefit under be day containing
considered necessary
sufficientthenotice information , it shall
of above.
the 51st rule of the society. The defendants 47. Any member knowing of a situation being vacant,
were officers of the society, and their only ! and acquainting anyone not belonging to this society
members out of employ
defence was that the society was an illegal one, of the same, when there areshall
the object of some of its rules being restraint of ment, or wishing to change, be fined not less than
trade. ten shillings, and not more than 21., as the committee
may decide. The committee shall also have the power
The rules of the society, so far as they are suspend such member until the fine is paid .
material,were as follows : 48 . Should any member apply for a situation where
1. This society shall be called “ The Bradford Power there is any member of this society working , he shall
Loom Overlookers ' Friendly Society," and shall consist first inquire of one of the said members if there be, or
is about to be , a vacancy before he applies for work : and
of such persons as are well qualified tooverlookers
manage and should he apply, after being informed by the said
following the business of power- loom at
the time of their admission ; but should any member member that they are not in want of a man, he shall be
change his calling he may remain a member so long as offendfined , for the first offence five shillings, and if he again
be conforms to the rules of the society. . ten shillings.
Should any member be requested to teach a person
2. The objects of this society are the raising of funds the49 .trade
by entrance fees, subscriptions, fines, donations, levies, of a power-loom overlooker , and not being
accumulated capital, and interest arising therefrom , inclined so to do, he shall inform the president of the
for the following purposes, namely : - The rendering same, who shall bring the case before the committee at
of assistance to members when out of employment, the once, and if they consider it advisable shall give such
Euperannuation of aged members, the insuring sums of member permission to decline to teach such person ;
money to members in case of accident, and to defray and if he should lose his situation through such refusal,
the expenses of the burial of deceased members and he shall be entitled to the same amount as the wages he
of members' deceased wives ; and all moneys received receiving when he was discharged until he again
was employment
on account of subscriptions. fines . donations, or other find .
Wise, shall be applied towards carrying out the objects who51. mayAny free member not twelve weeks in arrears
of the society according to the rules thereof. , by losing a limb, or having one disabled
41. Should any member be thrown out of employ. by accident or otherwise, or through blindness, be
ment, or having received notice to that effect, he shall rendered permanently unable to follow his employment
inform the president, who may be in possession of such 41,in any of the branches of trade mentioned in rule
provided
information as will procure him another situation . or other improper such was not the result of intemperance
Should sach member claim pecuniary benefit , the 501, on the production conduct, shall receive the sum of
president shall lay such claim before the committee at to the committee of satisfactory
its first meeting after such claim is made, and if the medical and other testimony of such permanent dis
circumstances are satisfactory to the committee as ablement.
66. Should
being in accordance with the rules, such member shall situation apply any member of the society who is in a
be entitled to receive the sum of 108. per week for advertised, for any situation which shall be
fourteen weeks, and 59. per week for twelve weeks, not attach their and to which the parties who advertise do
provided he has not been thrown out of employment be fined ten shillings. name or address of the firm , he shall
by his own misconduct or neglect. Any member baving situation through applyingShould any member lose his
for a situation so advertised
received the above amounts shall be in a regular situa he shall be suspended from the benefits of the society for
tion as overlooker,manager, piece taker-in , or designer six months.
for six months before he be entitled to receive pay
again . Any member having received any portion of the
above pay, who may obtain a situation , and lose it
Denman
The defendants judgment
, J. gaveappealed . for the plaintiff.
again within six months, shall commence where he Tindal Atkinson , Q .C . and Morton Smith for
left off his pay, so that he shall not receive more than
101 ., unless he be in a situation for six months without the defendants. - Many of the rules of the society
restraint of trade, and therefore illegal ;
receiving any benefit . Should any member
charged from his employment, and receive wages in
be dis
the inwhole
are society is therefore vitiated and
lieu of notice, he shall not receive the benefit of this illegal, and the plaintiff cannot recover. The
(9)Reported by E. MANLEY SMITH, Esq., Barrister-at-Law . I society is a trade union within the Trades Union
H
310 - Vol. LXII., N . 8.] THE LAW TIMES. [ April 26 , 1890 .
CT.OF APP.] SWAINE v. WILSON . [Ct. OF APP.
Acts 1871 and 1876 (34 & 35 Vict. c . 31, and 39 & 40 | are some rules of the society which if carried out
Vict. c. 22), and under sect. 4 of the first Act will be in restraint of trade, although that is not
this action cannot be maintained . They cited their object. But, supposing that that is so , does
that make the society an illegal society, or will
T
Hilton v . Eckersley, 6 E . & B. 47 ;
Hornby v. Close, 15 L. T. Rep. N . S. 563; L . Rep. | the only effect be that those particular rules cannot
2 Q . B . 153 ; be enforced ? I think that, even where some of
Rigby v. Connol, 42 L. T. Rep. N . S. 139 ; 14 Ch . the rules of a society are illegal as being in
Div. 482 ; restraint of trade, if the general objects of the
Wolfe v. Matthews,47 L . T . Rep . N . S. 158 ; 21 Ch. society
Div . 194 ; are not illegal, the existence of those
Strick v. The Swansea Tin Plate Company, 57 L . T. rules which cannot be enforced does not prevent
Rep . N . S. 392 ; 36 Ch . Div . 558
. other rules being enforced which are not in
Waugh (Waddy, Q .C . with him ).-- This society restraint of trade or otherwise illegal. The rule
is a friendly society, and its true objects are those upon which the plaintiff has brought this action
of a friendly society . Possibly some rules may be is not tainted with any vice, and the fundamental
illegal as being in restraint of trade, but the rule object of the society is not illegal ; therefore I
upon which the plaintiff is suing now is not such think that the plaintiff is entitled to succeed .
a rule , and the existence of someillegal rules will This view of mine is, I think , in strict accordance
not make the whole society illegal. There is with what was laid down in the Privy Council in
nothing in the Trades Union Acts to prevent the the judgment delivered by Sir Montague Smith
plaintiff from recovering. He cited in the case of Collins v. Locke (41 L . T . Rep. N . S.
292 ; 4 . App. Cas. 674 ). But I can say, further,
Farrer v. Close , 20 L . T. Rep. N . S. 802 ; L. Rep. that
4 Q . B . 602. I do not think that the rules which have been
challenged are vicious as being in restraint of
Tindal Atkinson , Q .C . in reply. trade. They were not intended for this purpose,
Cur. adv. vult. but for the purpose of preventing an extravagant
Dec. 19. - Lord ESHER, M .R . - In this case the outlay by the society on any of its members, and
plaintiff , a member of a society, sues the officers of economising that which the society is to do for
of the society for payment of somemoney which them , and I think they do not exceed that object.
be alleges is due to him under the rules of the Although, if carried out,they may to a certain
society . His claim is admitted to be within the l extent restrain trade, yet, that not being their
rules ; but the defence set up is, that the society is object, and being sufficient for a legal object, I
an illegal society , and that therefore the plaintiff think we ought not to extend the doctrine with
cannot take advantage of anything in the rules regard to restraint of trade so far as to hold
that may be in his favour. He had fulfilled all | them illegal as being in restraint of trade. in
his obligations to the society under the rules,and my opinion , no rule of this society is in restraint
it is hardly necessary to say that the defence is a of trade ; but, even if some of the rules are
mean one, but that the court must decide accord - | tainted , the plaintiff is not thereby prevented
ing to law , and uphold it if well founded . If the from recovering under a rulewbich is not tainted .
society is illegal to this extent, that the object of The appeal should therefore be dismissed .
the society is illegal, so that any stipulation in LINDLEY, L .J. - This is an appeal by the defen
favour of a member would come into effect in con dants from the judgment of Denman , J. The
ground of the appeal is that this society is a
sequence of his assisting in the illegalobject ofthe
society, I could not doubt but that the society trade union, and its rules are in restraint of
wonld be altogether illegal, and the court would | trade, and as it is therefore illegal no relief ought
refuse to help any member by enforcing any rule to be given to the plaintiff. This defence is not
in his favour. If, for instance, the object of the a very creditable one, but if it is well founded the
society was to commit a crime and there was a court should give effect to it. The question is an
rule in favour of members that if anyone, while | important one, not only to this, but to many
a member,became ill or disabled payments should other similar societies. The first point is the
be made to him by the society , the court would bearing of the Trades Union Acts (34 & 35 Vict.
refuse to enforce such a stipulation . If the object c . 31 and 39 & 40 Vict. c. 22 ) upon societies of
of the society were not criminal, but were to do this description . The definition of a trade union
something illegal, the same result would follow . | is given in the earlier of these Acts and modified
So if the object of the society was to restrain in the later one. The effect of the two is that
trade, and every member was bound to assist in | “ trade union " means any combination , whether
establishing and carrying out such a monopoly as | temporary or permanent, for regulating the rela
would be in restraint of trade and unlawful, and tions between workmen and masters, or between
there were a stipulation that any such member workmen and workmen , or between masters and
on becoming old or disabled should have pay- | masters, or for imposing restrictive conditions on
mentsmade him by the society, I think that such the conduct of any trade or business, whether
a society would be so illegal that the court would such combination would or would not, if the
not assist any of the members by enforcing such principal Act had not been passed , have been
a stipulation . The question, then ,here is, whether deemed to have been an unlawful combination by
this is such a society - whether the object of this reason of some one or more of its purposes being
society, as a society, is to establish and enforce a in restraint of trade. Then there are certain
monopoly of trade, which would be illegal as provisoes which are not material in this case.
being in restraint of trade. It seems to me | The importance of that definition is that in sect. 2
clearly not. It is a friendly society, the object ofof the earlier Act it is provided that “ The pur
which is to assist its members, who are working poses of any trade union shall not, by reason
people, in case of their being disabled by sickness merely that they are in restraint of trade, be
or old age. Therefore the fundamental object of deemed to be unlawful so as to render any
the society is not illegal. But it is said that there member of such trade union liable to criminal
April 28, 1890.) THE LAW TIMES. (Vol. LXII ., N . 8.- 311
Ct. OF APP.) SWAINE v. WILSON . [CT. OF APP.
prosecution for conspiracy or otherwise,” and or crimes, and before examining them in detail
by sect. 3 " the purposes of any trade union shall it is desirable to ascertain the principles which
not, by reason merely that they are in restraint of render rules illegal, simply by reason of their
trade,be unlawful so as to render void or voidable being in restraint of trade. The general propo
any agreement nr trust." That is a very general | sitions that every society which has rules in
section, but it is followed by sect. 4, by which restraint of trade is unlawful that is, criminal
nothing in the Act is to enable any court to and that its members are punishable at common
entertain any legal proceedings instituted with law , was denied by the court in Reg. v . Stainer
the object of directly enforcing or recovering (21 L . T . Rep . N . S . 758 ; L . Rep . 1 C . C . R .
damages for the breach of certain specified agree- | 230 ), and cannot be supported ; see also Hilton v .
ments, among which is included " any agreement Eckersley (ubi sup.), Hornby v . Close (15 L . T . Rep .
for the application of the funds of a trade union N . S. 563 ; L . Rep.2 Q .B . 153), and per Patterson ,
to provide benefits to members.” But even then J. in Price v . Green (16 M . & W . 353), such societies
nothing in that section is to constitute such an are not necessarily indictable as nuisances,
agreement unlawful. The practical results of or as conspiracies, and their rules, although
this enactment when applied to this particular | in restraint of trade, are not necessarily un .
society are as follows : (1) The society is a trade lawful in any criminal sense. Whether such
union within the definition clause ; (2 ) it is legal rules can be enforced by civil legal proceedings
by virtue of sect. 3 ; (3) the action brought by is quite another matter, and depends mainly on
the plaintiff is an action brought by a member of the reasonableness of the rules. But even if
the society for the payment to him ont of its somerules of a society cannot be enforced , it by
funds of a sum due to him as a member under no means follows that other rules of the same
and by virtue of the rules of the society . Such society cannot. Collins v. Locke (ubi sup.) is a
an action is brought with the object of directly clear authority to this effect, if authority be
enforcing an agreement for the application of wanted for so reasonable a proposition . No doubt
the funds of the society to provide benefits to if the real object of this society were unduly to
members, and the action is in fact " a legal pro fetter trade, its rules might all be tainted by the
ceeding instituted with the object of directly vice of the object, and none of the rules might
enforcing or recovering damages for an agree be enforceable - see Hornby v. Close (ubi sup.)and
ment” of the kind mentioned in sect. 4 . Not Farrar v. Close (ubi sup.), where the court was
withstanding sect. 3 of the Act, this action there. equally divided , and where Cockburn , C . J. and
fore cannot be maintained unless it can be main Mellor, J. relied on evidence which , in their
tained independently of that section . The cases opinion, showed that the rules were used to
which have already been decided on the Act are support strikes. But it is quite impossible in
all consistent with this view . They are Rigby v. this case to hold that the arowed objects of this
Connol (ubi sup.), where the plaintiff sought relief
society, as set out in rule 2, are not the real
against expulsion ; Wolfe v. Matthews (ubi sup.), objects of the society . There is no evidence here
where an injunction was granted not directly to that the rules are in fact used for the purpose
enforce an agreement, but to restrain a misappli of supporting strikes, or for any illegal purpose.
cation of funds ; and Strick v. The Swansea Tin Wehave nothing but the rules before us. If the
Plate Company (ubi sup.), where, after a winding objects of the society are themselves legal, the
up order had been made, the assets were held introduction of some objectionable rules will at
distributable according to such rules as were most only have the effect of rendering those par
legal, including those made legal by sect. 3. The ticular rules invalid . The other rules will not be
abore observations, however, do not exhaust the affected by them (Collins v. Locke, ubi sup.). I
case; for although the plaintiff cannot avail him . might stop here, for enough has been said to
self of sect. 3 of the Trades Union Act 1871, he show that illegality fails to be a defence to this
will be entitled to relief if the society is a legal action ; but, having regard to the importance
society apart from that section . Is then the of the case, I pass to the consideration of each of
society a legal society ? Illegality is not to be the rules alleged to be invalid . The test of
presumed ; it must be established by those who validity, in a case like this, is reasonableness with
rely upon it . The defendants rely on certain reference to the real and legitimate objects of
rules of this society , and contend - first,that they the society (Collins v. Locke, ubi sup.). One of
are illegal, being in restraint of trade ; and the main objects of this society is to provide a
secondly that being illegal, the society itself is an fund for the payment of members when out of
illegal society , and cannot therefore be sued by work . Rules made for the bona fide purpose of
one of its own members for money payable to him protecting the funds of the society from claims
under its rules. Before dealing with this argu which can be avoided by reasonable care and
ment, it is to be observed that the particular rule management will not be invalid , on the ground
sought to be enforced is not even alleged to be that they are in restraint of trade, provided the
illegal, and that the illegality relied upon is the rules are not unduly oppressive or obviously
illegality of other rules, and of the objects of the detrimental to the public. To render rules for
society . The primary and arowed objects of the the above purposes invalid, it must be clearly
society are set out in rule 2, and are perfectly shown that they go beyond what is necessary for
legal; but it is said that there are subordinate those purposes - see Tallis v. Tallis (1 E . & B . 341).
objects which are illegal, and which render the These observations apply to rules made bona fide
society itself illegal. These objects are to be for the purpose of protecting the funds of the
found, and are sought to be attained, by rules society from the claimsof members who are out
42, 47, 48 , 49, and 66 , and it becomes necessary of work by their own fault ; and to rules made
to examine each of them in turn. These rules,or bona fide for the purpose of protecting the funds
some of them , impose fines ; but they in no way from claims which will be made if one member in
tend to excite or encourage ill-treatment, violence, I work seeks to displace another who is himself in
CT. OF APP.] Re GATLING GUN LIMITED. [Chan . Div .
work ; and to rules made bona fide for the pur- | the case. It is clear from the case of Collins y.
pose of enabling members out of work and on Locke (ubi sup.) that some rules of a society like
the funds to obtain work and relieve the funds. this may be enforceable, and others, if in restraint
Tried by thuse principles, rule 42 is clearly valid . of trade, unenforceable. The rule upon which
It merely prevents a member from obtaining the plaintiff is suing in this case is not in restraint
relief from the society if he leaves his situation of trade, and therefore I think he is entitled to
when the committee think a reasonable man succeed. With regard to the rules of the society
might properly retain it. Rule 47 is also valid , which have been objected to , I will only say that
for although it imposes a fine varying from 108. in my opinion they are not in restraint of trade.
to 408., its object is to relieve the funds of the They were not so intended , and were meant only
society by assisting a member out of work to get to afford fair protection to the parties in whose
& situation known to another member to be favour they were made ; nor do they interfere
vacant. There is nothing in the rule which with the general interests of the public. I think
affects non -members, except that when there is a the appeal should be dismissed .
member out of work or wishing to change, non . Appeal dismissed .
members are not to be informed by a member Solicitors for the plaintiff, Elliott and Ash, for
of the fact that there is a vacancy . This is notRobinson and Robinson , Keighley .
unreasonable, nor are the consequences to
members who disobey the rule unduly oppressive. forSolicitors for the defendants, Jaques and Co.,
George Curry, Cleckheaton.
Rule 48 presents more difficulty . Its object is
to prevent a member in work from being dis
placed by another member. But the rule
is 80 worded as to make no distinction
between cases where the funds of the society are HIGH COURT OF JUSTICE.
affected and cases where they are not. If two
members are in work and one is displaced by CHANCERY DIVISION .
the other, a burden is thrown on the funds. Saturday, Feb . 1.
But the funds of the society are not affected if
one member out of work and on the funds sup (Before NORTH, J.)
plants another member in work and off the funds. Re GATLING GUN LIMITED , (a )
There is a change of claimants on the funds, but Company - Reduction of capital- Reducing part
no extra burden thrown on them . The rule only - Companies Act 1867 and 1877.
applies to both classes of cases. But there is There is nothing in the Companies Act 1867 which
always the chance that a member who applies prevents a company reducing some of its shares
for a situation filled by another may create a without reducing the others.
vacancy and yet not obtain it himself, in which | Re Barrow Hæmatite Steel Company (59 L . T.
case there will betwo claimants on the funds instead Rep . N . S. 500 : 39 Ch. Div. 582) followed
of one. Moreover, there is something mean in
one member trying to supplant another when | Re327
Union Plate Glass Company (61 L . T . Rep. N . S .
; 42 Ch. Div.513) not followed .
there is no vacancy , and the rule being confined
to cases where there is no vacancy it is not PETITIO N.
This was a petition by the above-mentioned
unreasonable , and cannot be held invalid . | company
for the confirmation by the court of a
Rule 49 is unobjectionable ; it merely says that special resolution
& member who declines to teach a person his for the reduction of the com
trade, and who is supported by the committee in pany's capital.
his refusal, shall be supported by the society if The company was formed by registration under
he loses his place. The member is at liberty to the Companies Act 1862, with a nominal capital
exercise his own judgment in the first instance ; of 800,0001., divided into 45,000 ordinary shares
if he elects to teach , the rule does not apply ; if of 101. each and 35 ,000 preference shares of 101.
he refuses without consulting the committee or each . Of the ordinary shares 37,590 had been
contrary to their decision , and he loses his place, issued , and of the preference shares 28 ,559 had
it will be his own fault, and he will have no been issued .
claim on the funds of the society - see rule 41. All the shares issued had been paid up in full.
The rule really protects the society from claims A large number of each class of shares had been
by persons who, in the opinion of the committee, originally issued in pursuance of a duly regis
unreasonably refuse to teach, and is in this tered contract as fully paid-up to the vendor to
respect similar to rule 42. Rule 66 is also rea the company of certain patents. By a deed dated
sonable when understood. It applies only to the 10th Aug. 1889 the vendor surrendered to
members in employment who apply for other the company 16,325 of the ordinary shares and
situations anonymously advertised, and which 12,697 of the preference shares originally issued
may or may not be vacant. Persons answering to him to the intent that the same should be
such advertisements run serious risk of dis cancelled for the benefit of the company, and so
missal without obtaining any other situation . that no dividends, interest, or profit of any kind
The rule is both a warning to members against should at any future time be payable upon or in
tricky advertisements, and also a protection respect of the shares so surrendered , and so that
against claims on the funds by members who such shares should be cancelled as though the
same had never existed or been issued . This
unnecessarily lose their places. The appeal, surrender was the result of an arrangement
therefore, must be dismissed .
which had been made between the company and
LOPES, L .J.- Iagree, and have only a few words the vendor for an abatement of the purchase
to addto. fetter
If the general object of this
were thedue course of trade, all itssociety
rules money agreed to be paid by the company for the
would be tainted with illegality . But this is not (a) Reported by G . E. JEFFERY, Esq., Barrister-at-Law .
Chan. Div.] THE MARQUIS OF NORTHAMPTON v. POLLOCK. [Chan. Div.
patents on the ground that it exceeded their real his father. It wasagreed that thetrustees should ,
value by the sum of 290 ,2201., the nominal value as an additional security , effect a policy of
of the 29,022 shares thus surrendered . To the assurance for 34,5001. on the life of C . against
extent of this sum of 290,2201. the capital of the that of his father, that the interest on the loan .
company was not represented by available and the premiums should be allowed to accumu.
assets. late for five years, and after that, if the
By a special resolution of the company, passed premiumswere not paid by C ., the trustees were
on the 12th Nov. 1889 and confirmed on the authorised to pay the interest and premiums
3rd Dec. 1889, it was resolved to reduce the themselves, and add the amount to the debt. It
capital of the company to 371,2704 , divided into was also provided that if C . should die in the
21,265 ordinary shares of 101. each, and 15,862 lifetime of his father without having paid to the
preference shares of 101. each , and that the trustees principal, interest, premiums, and costs,
reduction should be effected by cancelling the the moneys recovered on the policy should belong
7410 ordinary shares, and the 6441 preference to the trustees absolutely . A policy was accord .
shares which had not been issued , and by accept. ingly effected with the above company in the
ing the surrender of and cancelling the shares names of the trustees for the sum of 34,5001.
comprised in the deed of Aug. 1889. The policy was kept up by the trustees. Nothing
The petition asked for the confirmation by the was ever paid by C . either by way of principal,
court of this resolution. interest, premium , or otherwise. C . died in the
Farwell for the company.- Sect. 9 of the Act lifetime of his father intestate. The trustees
of 1867 authorises a company to reduce its claimed to retain the policy moneys. The per.
capital. There is nothing in that Act which pre sonal representative of C . consequently brought
vents a company from reducing part only of its an action against them to redeeni the policy and
shares without reducing the remainder. In the obtain payment of the policy moneys less the
present case the shareholders whose shares are amount which should be found to be due to them .
to be reduced assent to the reduction . Your from the estate of 0 . for principal, interest,
Lordship sanctioned such a reduction in Re premiums, and other proper charges .
Barrow Hæmatite Steel Company (59 L . T. Rep. Held , that the whole transaction was a mortgage
N . S. 500 ; 39 Ch. Div. 582). [NORTH, J. referred transaction , that the policy was part of the
to Re Union Plate Glass Company (61 L . T. Rep. security, and that consequently the plaintiff was
N . S . 327 ; 42 Ch . Div . 513).1 The decision in entitled to redeem the policy, notwithstanding the
that case is inconsistent with your Lordship's express stipulation that, in the events that had .
decision in Re Barrow Hæmatite Steel Company happened , the same should belong to the
(ubi sup.). Re Quebrada Land and Copper Com . defendants .
pany (60 L . T. Rep. N . S. 482; 40 Ch. Div. 363) ARGUMENT of a point of law raised by the plead
was also referred to. ings under Order XXV., r. 2 , of the Rules of the
NORTH, J.- I think I must make the order Supreme Court 1883.
asked for. I see that Kay, J. says in Re This was an action by the Marquis of North
Union Plate Glass Company (ubi sup.) that he ampton as the administrator of his deceased son,
Cannot find in the Act of 1867 the smallest inti Earl Compton , against the trustees of the
mation that that Act gives a company power to National Life Assurance Society, to redeem a
reduce certain of its shares without reducing policy of assurance effected on the life of Earl
the others ; but, on the other hand, I cannot find Compton in the names of the defendants with the
anything in the Act which prevents a company society.
from reducing certain of its shares without The facts of the case as they appeared from
reducing the others. I still adhere to what I said the pleadings are as follows:
in Re Barrow Hämatite SteelCompany (ubi sup.), In or about the month of May 1879 the defen
viz., that there is nothing in the Act which dants agreed with Earl Compton that they would
requires that the reduction should be spread , lend him the sum of 10,0001. on interest at the
either equally or rateably, over all the shares of rate of 5 per cent. per annum upon the security
the company, and that if it is a proper case for of a charge on his reversionary interest in certain
assenting to the reduction there is nothing in the freehold property in Scotland to which he was
Act which prevents me from so doing. I think entitled in the event of his surviving the plaintiff ,
the present application is a reasonable one, and I and also upon the security of a policy ofassurance
therefore make the order. for 34 ,5001. to be effected upon the life of Earl
Solicitor, E . F . B . Harston . Compton as against the life of the plaintiff.
In pursuance of this agreement Earl Compton
executed a bond and disposition in security in
Feb . 11 and 12. Scotch form dated the 26th May 1879 whereby,
in consideration of the sum of 10,0001. instantly
(Before NORTH , J.) advanced and paid to him by the defendants , he
THE MARQUIS OF NORTHAMPTON v. POLLOCK . (a) bound himself, his heirs, esecutors, and adminis
Mortgagor and mortgagee — Redemption - Agree the trators to make payment to the defendants of
ment excluding right to redeem in a certain event fifth sum of 10 ,0001. at Martinmas 1879 (with a
part more of liquidate penalty in case of
- Validity . failure), and the interest of the said sum at
The trustees of an insurance company advanced to 5 ) per cent. per annum from the date of the
C ., the eldest son of N ., a sum of 10,0001. on the deed to the said term of payment, and thereafter
security of a reversionary interest in land to half yearly during the nonpayment of the prin
which hewas entitled in the event of his surviving cipal sum , with a fifth part more of the interest
(a) Reported by G . E. JEFFERY,Esq., Barrister-at-Law . | due at each term of liquidate penalty in case of
314 - Vol. LXII., N . 8.) THE LAW TIMES. [April 26, 1890.
CHAN. Div.] The MARQUIS OF NORTHAMPTON v . POLLOCK . [Chan . Div.
failure of the punctual payment thereof. And he | be entitled to exercise their full powers and privileges
under the said bond and disposition in security as if no
also bonnd himself so long as the said principal such
sum or any part thereof should remain unpaid to policy or policies had been effected .
make payment to the defendants of the annual party 5. In the event of the second party paying the first
before the death of the most noble marquis bis
sum of 4311. 58., being the amount of the premium father the whole sumsdue to them , the first party shall
on the said policy of assurance with a fifth part be bound forthwith to assign the said policy or policies
more of the said annual sum of liquidate penalty of assurance to the second party , but that always at his
in case of failure in the punctualpayment thereof owu expense.
and interest thereon at the rate aforesaid from said6 . most
In the event of the second party predeceasing the
the respective terms of payment until paid , and paid the noble marquis his father, and without having
first party the whole sums due to them , the
in case he should go beyond the limits of Europe first party shall prepare a statement . . . showing
at any time during the subsistence of the said the amount due as at the date of the death of the second
policy to pay the defendants such additional party, and they shall be bound to impute to the amount
as brought out in the said statement the whole sums of
premiums as the insurance society should be money they may receive in respect of the said policy or
entitled to require. And in case he should at any policies of assurance, and in the event of the said sums
timenot pay one or more of the said premiums so received exceeding the amount due under the said
as aforesaid , it should be in the power of the statement to account for and pay over the difference or
defendants to pay such premiumsthemselves, and excess to the representatives ofthe second party entitled
in the event of their doing so they should be to receive the same, and in the event of the sums so
received being inadequate, to meet the amount bronght
entitled to charge the amount so paid against out in the said statement, then the first party shall
him in like manner as was provided in respect of have full right to exercise the powers and privileges
the said principal sum , and in security of the conferred on them under the said bond and disposition
personal obligation therein contained he charged in security to recover from themeans and estate of the
second party the balance due to them after deducting
his interest in the said lands in the manner all expenses and any excess interest which may be
therein mentioned . charged in respect of the said sums not being paid to
By a minute of agreement of even date with the first party urtil a certain time after proof of the
the said bond and disposition in security made death of the second party , and also of interest at the
between the defendants of the one part and Earl rate of 3 per cent. as provided in art. 3 hereof in the
Compton of the other part,after reciting the said event of the said amount being paid between terms.
bond and disposition in security , and that it had In accordance with the terms of the above
been agreed between the parties that, notwith arrangement a policy was effected in the names
standing the termsof the said bond and dispo of the defendants with the National Life Assur.
ance Society on the life of Earl Compton against
sition in security, and witbout prejudice thereto that
in any manner of way, the terms on which the of the plaintiff for the sum of 34 ,500l. at an
said advance of 10,0001. had been given should be annual premium of 4311. 58., and the sum of
10,0001. was advanced by the defendants to Earl
as thereinafter mentioned .
Compton .
It was agreed between the parties as follows: By an agreement dated the 14th June 1879, and
. 1. The first party sball effect a policy or policies of made between the defendants of the one part and
assurance on the life of the second party as against that
of the said most noble marquis his father to the extent Earl Compton of the other part, after reciting
of 34,5001. with such assurance company as they may (inter alia ) clause 6 of the minute of the agree
select, and in such terms as to them shall be deemed ment of the 26th May 1879,and after reciting that
advisable.
2. The interest payable on the said advance of 10,0001. such clause did not accurately state the terms
upon which the said advance of 10 ,0001. was
and the premiums payable on the said policy or policies agreed to be made, it having been agreed that
ofassurance shall be allowed to accumulate for a period
of five years ; that is to say , the term of Whitsan-day in the event of the said Earl Compton pre .
1884, and compound interest with half-yearly rests at deceasing his father withouthaving repaid allthe
the rate. of 5 ) per cent. per annum shall be charged principalmoneys , interest, and costs due to the
thereon
3. On the expiry of the said period of five years it defendants the said policy and the sums thereby
shall be in the power of the first party , in the event of assured should belong absolutely to the defen
the said advance of 10,0001. premiums of assurance, dants, it was witnessed that, in consideration of
interest, and others accumulated as aforesaid not the said advance, it was thereby agreed that in the
having been paid to them by the second party as afore event of the said Earl Compton predeceasing his
said , forthwith to exercise their full powers and privi. father without having paid all principal moneys ,
leges conferred on them hereunder or under the said interest, and costs due to the defendants under
bond and disposition in security, and in the event of the said bond and disposition in security, then
their not exercising their powers and privileges they and all moneys
the said policyabsolurely
may continue to pay the said premiums and interest as and in such case should belong to the
before provided , and the principal sum , premiums, | thereby secured
interest, and others may be allowed to accumulate as defendants.
aforesai d , and that so long as the said first party may The premiumswere paid by the defendants by
think proper to do so , and the first party shall be
entitled to use all diligence against the person or estate means of writing up the debt of the borrower in
of the second party for payment of the interest or the books of the insurance society .
premiums paid by them after the expiry of the period of
the said five years, and that without prejudice to the
Nothing was ever paid by Earl Compton by
powers and privileges in regard to any som due by the way of interest, preminm , or otherwise. Hedied
second party before or otherwise. on the 5th Sept. 1887 intestate in tho lifetime of
4. In the event of the second party not having paid to | the plaintiff, his father, without having paid to
the first party the whole sums due by him to them the defendants any part ofthe said sum ofAfter
10,0001.
the
before the death of the said noșt noble marquis his The plaintiff was his administrator.
father, then the policy or policies of assurance effected death of Earl Compton the plaintiff as his
by the first party as aforesaid shall belong absolutely | administrator applied to the defendants for pay .
to the first party, and neither theclaim
secondor party nor his l'anno
representatives shall have anyv claim or right there.
there- 1 ment of the amount of the insurance
ma
moneys,
under in any manner of way, and the first party shall i after deducting therefrom the amount due to
CAAN. Div.] THE MARQUIS OP NORTHAMPTON v. POLLOCK . [Chan. Div.
them for principal, interest, costs, and premiums. | The following cases were also referred 10to ::
The defendants refused to do so, claiming that James v. Kerr , 60 L . T . Rep. N . S. 212 ; 40 Ch . Div .
they were entitled to retain the same as their 449 ;
absolute property under or by virtue of the agree Williams v. Owen , 5 Myl. & Cr. 303 ;
ment of the 14th June 1879. The plaintiff accord Goodman v . Grierson , 2 B . & B . 274.
ingly brought this action , claiming (1) a declara Beaumont (Sir Horace Davey, Q .C . with him )
tion that the defendants were entitled to the said for the defendants. - The plaintiff has no right to
policy of assurance and the sum or sums assured set aside part of the agreement and enforce the
thereby as a security only for the sum of 10,0001. rest. He cannot approbate and reprobate. This
with interest thereon at the rate of 5 per cent. was not an assurance by Lord Compton at all .
per annum , and for the amount of the premiums He never paid any premiums, and therefore he
on the said policy paid by them , with interest never had any right to redeem the policy. In all
thereon at the rate aforesaid ; (2 ) a declaration the cases cited relating to policies there was no
that the said agreement of the 14th June 1879 express contract as there is in the present case .
was void , and that the samemight be set aside The parties cannot be restored to their original
accordingly , and consequential relief. position . Lord Compton 's right springs out of
The plaintiff, by his statementof claim , stated the contract. His right was to acquire the policy
thathe was ready and willing,and thereby offered by certain payments. These payments were never
to pay to the defendants any sum thatmight be made, and therefore, according to the contract, he
found due to them after deducting the sums so could not acquire the policy :
received by them as aforesaid . Brown v. Freeman , 4 De G . & S. 444 .
The defendants by their statement of defence (NORTH, J. referred to Foster v. Roberts, 2 Q . B
relied on the agreement of the 14th June 1879. 467.] The court will not find out a man 's rights
The plaintiff by his amended reply joined issue
on the statement of defence, and further con by looking at part of an agreement, and then
striking out the other part of the agreement
tended as a point of law that, even admitting the which is inconsistent with those rights.
allegations of fact contained in the defence to be
true, the agreement of the 14th June 1879, so far Crackanthorpe replied .
as it purported to vary the minute recited in it NORTH, J. - I think in this case on the whole
or to limit the right of redemption in the said the plaintiff is entitled to relief. An arrange
policy to the lifetime of Earl Compton , was not ment is made between Earl Compton on the one
valid in law , and did not bind the plaintiff. hand, and the insurance office on the other,
By an order dated the 4th July 1889 it was through the medium of certain persons who are
ordered that the point of law raised by the trustees for them ,that he is to receive an advance
amended reply should be tried before the court of 10 ,0001.; that a policy is to be effected in the
prior to the hearing of the action on the merits. names of those trustees with any office this
The point of law now cameon to be argued . society may select. They select their own office,
Crackanthorpe, Q .C . and Reginald Winslow for and the policy is effected , therefore, in the names
the plaintiff . The transaction in question was of the trustees of that office. The arrangements
clearly a mortgage transaction. The sum of for effecting the policy provided that the
10,0001. was lent, and there was a covenant to pay premiums for the first five years were not to be
principal and interest. The old equitable rule paid by Earl Compton , but the insurance office
“ once a mortgage always a mortgage " therefore were to pay them , and there were certain pro
applies, and the agreement, so far as it provides visions with respect to redemption . The policy
that the policy should be irredeemable, is illegal. was to be a policy on the life of Earl Compton ,
A mortgage cannot bemade irredeemable : who was entitled to a reversionary interest in
Howard v. Harris, 1 Vern . 190 ; certain real estate in the event of his surviving
Jenning v . Ward, 2 Vern . 520 ; his father. The advance is charged on that
Toomes v . Constet, 3 Atk . 261 ; reversionary interest, and the object of the
Spurgeon v. Collyer, 1 Eden , 54. policy was to provide a fund out of which the
[NORTH , J. - The rule is, that a man on paying off lenders might be safe in the possible event of
a debt may redeem his property. The question is, their security not taking effect by the death of
whether the policy ever was the property of the the borrower in the lifetime ofhis father. Then ,
borrower.] Can it make the slightest difference | as I say, the office was to find the money for the
that the policy was effected in the names of the premiums for the first five years,and it was part of
trustees of the company ? We submit it cannot : the bargain made between the parties that that
Drysdale v. Piggott, 27 L. T. Rep. 0 . S. 193 ; 8 De should be done. In my opinion , the result of the
G . M . & G . 546 ; transaction must be taken to be exactly the
Lea& Gv.. Hinton,
823 ; 24 L. T. Rep. O .S. 101; 5 De G . M . sameas if this office had selected another office
Morland
389 ;
v. Isaac, 25 L . T. Rep. O . S.137 ; 20 Beav. as that in which the policy should be effected .
If that had been done the result would be that,
Courtenay v. Wright, 2 Giff. 337. on the death of Earl Compton , this money would
Lord Compton was liable to pay the premiums.
have been received by the defendants, and the
The fact that the policy was stipulated for as question wonld have been to whom the surplus
part of the bargain for the loan makes the policy belonged after applying it for the purpose for
in equity the property of the debtor , and it was which it was effected , namely, securing the defen
not therefore competent for the company to make dants everything that was due to them under
a bargain thatwhen the policy becamevaluable it their security for principal, interest, and costs,
was to be lost to the debtor if he had not paid and whatever premiums they had paid . No
principal, interest, and costs : doubt there would be a considerable surplus left
Freme v . Brade, 2 De G . & J. 582 ; after all those sums were satisfied . In my
Holland v . Smith , 6 Esp. 11. I opinion , this transaction was from beginning to
316 – Vol. LXII., N . 8.] THE LAW TIMES. [April 26, 1890 .
Chan. Div.] THE MARQUIS OF NORTHAMPTON v. POLLOCK. [Chan , Div.
end a mortgage transaction , and nothing else. I something and having advanced nothing was
What the rights of the parties in the policy admitted , and the fact that he had not actually
moneys may be is not concluded by this fact ; paid anything was relied on here. In my opinion,
but, looking at the whole transaction, I have not that does notmakeany difference. If the bargain
the least doubt that it was intended to be a had been that he from the first was to pay the
borrowing of money by Earl Compton , which he premiums, and if he went to the office of the
covenanted to repay, for which he gave security, | society and said, “ I have not the money here.
and for which the lenders of the money had as Will you advance it for me! I will repay you,"
security for the repayment of it the land or the and if the society had done it, it would have been
proceeds of the policies, as the event might turn a payment by him ; and I think that if, instead
out, and they were intended to be repaid in that of going through that form , it is agreed between
way. Then there are certain provisionsmade as them that the premiums shall be provided by the
to redemption , and then there is this peculiar society for him ,and that they shall be his creditors
provision only found in the instrument bearing for the amount of such premiums, his position in
date the 14th June 1879 , in which there is a respect to the policy is exactly the same as if he
memorandum of what really was the bargain had himself actually found the money. Under
between the parties from the first. Unfortu these circumstances I hold that the transaction
nately the original bond did not correctly express between the parties was a mortgage transaction,
that bargain , and the minute of arrangement and that as part of that transaction a policy was
which was drawn for the purpose of correcting | effected on the responsibility and on the credit of
it was itself insufficient to substitute what was Earl Compton , although in point of fact the cash
right for what was wrong, and merely substituted for the purpose of keeping up the policy must be
one wrong thing for another, and it was not until taken as between the parties to have been
the last memorandum of the 14th June that advanced by the society. In pointof fact, itnever
there was really expressed what was the bargain was advanced at all, because the whole arrange
of the parties at the time the advance was made. ment is a book -keeping matter: but, in my
Tbat bargain is contained in these words— I do opinion , Earl Compton was liable to the society
not read the preamble showing that the former for the premiums, and he had the same rights in
document was wrong — but in the witnessing part respect of the policy as if, instead of borrowing
are these words : “ Now these presents witness the money to provide for the premiums, he had
that in consideration of the said advance being himself found the money out of his own pocket.
made to the said Earl Compton it is hereby Under these circumstances the transaction was
agreed and declared by and between the said clearly a mortgage transaction, and that trans
parties hereto that in the event of the said Earl action has to be worked out in some way or
Compton predeceasing his father the Marquis another. It seems to me that, that transaction
of Northampton without having paid all principal standing, the legal right of the society will be to
moneys, interest, and costs due to the said Henry sue Earl Compton 's representatives for the
Pollock , John Charles Salt, and Sir Henry advance that was made. Mr. Beaumont says the
Whatley Tyler under or by virtue of the bond in society have never contemplated doing anything
the said recited agreement mentioned that then of the kind ; but I cannot test the rights of the
and in such case the policy or policies and all parties by any intention they may have, if it is
moneys thereby secured shall belong absolutely distinct from or raises any question as to the legal
to the trustees.” In other words, the policy was rights of the parties, and it seems to me as the
to belong to the society. Now , Earl Compton, in bargain stands they would have a right at this
point of fact, never did pay any premiums. moment (if it is binding) to sue for the return of
According to my view of the agreement, the the money adyanced by them , and in point of
society or its trustees were bound to effect the fact, if the contract is not binding, if it were set
policy under the contract between them , and aside altogether, they would be creditors of Earl
they were bound to find the premiums for the Compton 's estate for the money so advanced , and
first five years, and although they may not have would have a right to sue him for it as so much
been bound to do it afterwards, they at any rate money lent. Then we come to the terms of the
had the option of doing it, and had the right to redemption . What Earl Compton 's representa
charge the premiums so paid with interest tive says is this : " I admit his liability to repay
against their society ; that is to say, the policy the loan." An account must therefore be taken
moneys or the land,as events might turn out. of what is due in respect of it, and the insurance
In point of fact, the society did make the advance, society must have full credit for everything due
and the policy was kept up by them , and the to them ; but then the question remains as to
policy moneys would , if the policy had been who is entitled to the policy moneys. As to that,
effected in another office, have actually been the insurance society rely on the clause in the
received by them ; but the policy having been agreement of the 14th June, which says that in a
effected by the defendants in their own office , the certain event the policy is to be the property of
moneys must be taken to be now in their hands. the society . It is a very startling clause,
It is said that there is a difficulty by reason of because it comes to this : if in point of fact Earl
the fact that Earl Compton never himself paid Compton had paid the principal, interest, and
any part of the premiums, and Mr. Beaumont costs, the policy would be his ; but if he paid the
very fairly admitted that he would have been in principal and the whole of the interest, but, by
a difficulty if even one premium had been paid by reason of a bill of costs nothaving been delivered ,
Lord Compton . I do not wish to take what he costs had not been paid, the policy would become
admitted as prejudicing his client at all, because distinctly out and out the property of the society .
it was said there was another way out of the In my opinion , a provision of that sort in a mort.
difficulty in that case ; but the distinction of the gage transaction is not one which the law recog.
case between Earl Compton having advanced I nises or will give effect to , and the result, there.
April 26, 1890.] THE LAW TIMES. [ Vol. LXII., N . S.- 317
Chan.Div.] Re WILCOCK ; WILCOCK v. JOHNSON. [Chan. Div.
fore, is that Imust treat the clause,not as giving 1873, and made between Charles Wilcock and
the society an absolute title to the policy , but Mary his wife of the onepart and Thomas Charles
only a title to the policy as part of their security , Wilcock and Robert Slater of the other part,
and nothing else. Mr. Beaumont has argued certain real estate of which the said Charles
that the policy is entirely outside the mortgage Wilcock was seised in right of his wife was con
transaction, but that does not seem to me to be 1 veyed to the use of the said T . C . Wilcock and
SO. There was a bargain existing between the Robert Slater, their heirs and assigns for ever,
parties, and the policy formed part of that bar | upon the trusts thereinafter declared . And it
gain ,and I think the right to the surplusmoneys was by the said indenture declared that the said
arising from it belongs to the mortgagor or his | T . C . Wilcock and Robert Slater, or the survivor
representatives after all the liabilities have been of them , should stand possessed of the said real
satisfied. The order I shall have to make will estate upon trust to sell the same, and to invest
be to take an account of what is due to the the proceeds as therein mentioned ,and to pay the
defendants on the footing of the security , and income of the investments to William Wilson for
declare that, notwithstanding the provision in life or until he should become bankrupt, & c. ;
the agreement of the 14th June, the legal repre and after the determination of the trust declared
sentative of Earl Compton is entitled to the in favour of William Wilson the trustees were to
surplus remaining in their hands in respect of stand possessed of the trust property upon trust
the policy after satisfying all liabilities . There for the children of the said William Wilson at
will have to be an inquiry, if necessary, what twenty -one or marriage; and it was by the said
sums the defendants would have received under settlement declared that, if there should be no
the policy if it had been effected in another | child of the said William Wilson who being a son
office, and the policy moneys had been paid to should attain the age of twenty -one years, or
them in due course . being a daughter should attain that age or marry ,
Solicitor for the plaintiff, H . T. Boodle. . the trustees should stand possessed of the trust
Solicitors for the defendants, Wilde, Berger, property, as to one moiety thereof,
and Moore. In trust for the benefit of Ann Johnson , wife of
Edward Johnson of St. Helen 's aforesaid , colliery pro
prietor, and her child or children , subject to the like
Wednesday, Jan . 22. trasts, limitations, provisoes, declarations, and agree
ments as are expressed and declared of and concerning
(Before NORTH, J.) certain trust property and premises settled , comprised
Re WILCOCK ; WILCOCK v. JOHNSON. (a) in , and assured by a certain indenture bearing even date
with these presents, and made between the said Charles
Settlement- Ultimate trust by reference to “ inden Wilcock and Mary his wife of the one part and the said
ture of even date, and made between the same Thomas Charles Wilcock and Robert Slater of the other
parties " - No such indenture ever executed part.
Resulting trust. No such indenture as was referred to in the said
settlement was ever executed . It appeared , how
By a voluntary settlement executed on the 2nd Dec. | ever
1873 certain property was settled upon trust for , from the evidence of Thomas Brewis , the
W . during his life, with remainder to his solicitor who prepared the said settlement, that
it was originally proposed by the said Charles
children . And it was declared that, if there Wilcock and Mary his wife that such an inden
should be no child of the said W . who should ture should be executed , and a draft of the same
toke a vested interest in the trust property, the
trustees were to stand possessed of the trust pro was prepared in June 1873, and read over to the
perty in trust for J. and her child or children , said Charles Wilcock and Mary his wife, and
* subject to the like trusts, limitations,provisoes approved by them and afterwards engrossed .
The said settlement of the 2nd Dec. 1873 was
declarations, and agreements as are expressed drawn
and declared of and concerning certain trust time. and engrossed for execution at the same
property and premises settled , comprised in , and Questions, hɔwever, arose between the said
assured by a certain indenture bearing even date Charles Wilcock and Mary his wife and the said
with these presents , and made between the said Ann Johnson as to the amount of property to be
Charles Wilcock and Mary his wife of the one given to or settled for the benefit of the said
part and the said Thomas Charles Wilcock of Ann Johnson , and as to whether such property
the other part." No such indenture was ever should be settled upon the trusts of the said pro
executed . At the time, however, when the settle posed indenture or conveyed to the said Ann
ment was prepared an indenture was prepared Johnson absolutely ; and ultimately, after a delay
and engrossed by which certain property was of several months, instead of such indenture of
settled upon trust for J. for life, with remainder even date being executed , another deed was pre
to her children . This indenture, however, was pared and executed on the 2nd Dec. 1873, and
never executed , but instead thereof a deed was made between the said Charles Wilcock and
prepared conveying the property to J. absolutely . Mary his wife of the first part, the said Thomas
This deed was executed on the same day as the Brewis of the second part, and the said Ann
settlement, but it was not made between the same Johnson of the third part, by which the said
parties. W . died without leaving a child . Charles Wilcock and Mary his wife conveyed the
Held , thatno trusts were sufficiently declared either property originally intended to be comprised in
for J. or for J. and her children . Consequently the said proposed indenture to the said Ann
there was a resulting trust for the benefit of the
settlor. Johnson absolutely, instead of settling the same
in the manner originally proposed .
ADJOURNED SUMMONS. William Wilson died on the 18th March 1889
By a voluntary settlement, dated the 2nd Dec. without leaving any child . Charles Wilcock (one
(4) Reported by G . E . JEFFERY, Esq., Barrister-at-Law . I of the settlors) died in 1877 . Mary Wilcock (the
318 — Vol. LXII., N . S.] THE LAW TIMES. [April 26 , 1890.
Chan. Div.] Re WILCOCK ; WILCOCK v. JOHNSON . [Chan. Div.
other settlor ) died on the 4th July 1889, having a moiety of certain property therein described
devised all her real estate to the plaintiff and was settled , after the death of William Wilson
the defendants Thos. McLachlan and C . B . without leaving a child (which event happened),
Wilcock . Thomas McLachlan and C . B . Wil “ in trust for the benefit of Ann Johnson , wife of
cock were also the trustees of the will of Edward Johnson, and her child or children , sub
Charles Wilcock , and Thomas McLachlan was ject to the like trusts, limitations, provisoes,
the sole surviving executor of the same will. declarations, and agreements as are expressed
The said Ann Johnson was living and had several and declared of and concerning certain trust
children . property and premises settled, comprised in , and
This originating summons was taken out for assured by a certain indenture bearing even date
the purpose of having it determined who, in the with these presents, and made between the said
events that had happened , were entitled to the Charles Wilcock and Mary his wife of the one
property settled by the said settlement of the | part and the said Thomas Charles Wilcock and
2nd Dec. 1873 in trust for the benefit of the said Robert Slater of the other part." Now it is
Ann Johnson and her child or children as therein quite clear that no such document as is referred
mentioned . to was ever executed . Mr. Farwell and Mr.
The defendants were Ann Johnson and her Methold both say that the document referred to
children and the said Thomas McLachlan and is a document which has notbeen aptly described.
C . B . Wilcock . Mr. Farwell, on the one hand, says that the docu
The said Thomas Brewis (who had acted as ment referred to is the conveyance which bears
solicitor for all parties throughout the whole of the samedate as the settlement of the 2nd Dec.
the above proceedings relating to the settlement 1873. That conveyance is, no doubt, an inden
of the trust property) stated in hisaffidavit, which ture of even date with the settlement, but it is
was filed on behalf ofthe defendant Ann Johnson, not made between the same parties ; and further
that he fully believed , when the proposed than that, it contains no trust for the benefit of
settlement of even date referred to in the settle Ann Johnson and her children ; it is a convey .
ment of the 2nd Dec. 1873 was not proceeded ance to her absolutely. Mr. Methold , on the other
with , and the conveyance to Ann Johnson was hand, says that the document referred to is the
substituted in its place, that it was the intention document which was prepared at the same time
of Mr. and Mrs. Wilcock that not only the trust as the settlement, but which in fact has no
property and premises therein comprised , but existence, since it was never executed . The facts
any interest which Ann Johnson might take are shortly these : The draft of this document
under the said settlement of the 2nd Dec. 1873, was prepared at the same time as the settlement,
should belong to the said Ann Johnson abso and a considerable time before the execution of
lutely in the same manner as the property pro the settlement, and no doubt at the time it was
posed to be settled was, instead of being so intended that both drafts should be executed at
settled , conveyed to her absolutely . He also the sametime. A dispute, however, arose between
stated that Mary Wilcock , after the death of Mrs. Johnson and Mr. and Mrs. Wilcock , the
William Wilson, regarded Ann Johnson as settlors, as to whether the property should be
being entitled to the property and made no claim settled on Mrs. Johnson or conveyed to her abso
to it. lutely, Mrs. Johnson wishing to have the pro
Micklem for the plaintiff. perty given to her absolutely. Considerable dis
cussion took place,and ultimately it was arranged
Farwell for Ann Johnson.- Ann Johnson is that she should have the property absolutely , and
entitled absolutely to the trust property. The accordingly by a deed which was executed on the
deed referred to in the settlement of the 2nd Dec. same day as the settlement the property was con
1873 is the conveyance of that date. It is of even veyed to Mrs. Johnson absolutely. " But I do not
date, although no doubt it is notmade between see how it can possibly be said that, because
the same parties. The question is simply one of Mrs. Johnson succeeded in persuading the
identification of a document referred to. I submit settlors to give her an absolute interest in this
the conveyance of the 2nd Dec. 1873 is the docu property, it must be presumed that she also suc
ment referred to, though it is not quite aptly ceeded in persuading the settlors to give her an
described. If there is no trust property declared absolute interest in the property comprised in
there is a resulting trust. That is a presumption the settlement of the 2nd Dec. 1873. There is
of law which Imay rebut by parol eridence. He nothing whatever to show that such was the case.
referred to Then can I give effect to the document which was
Biddulph v. Williams, 1 Ch. Div. 203. engrossed and never executed ! I am of opinion
Methold for the children of Ann Johnson . — The that I cannot. The intention as regards that
document referred to is the indenture which was document was altered . As far as intention goes,
prepared and engrossed at the time when the there is not,in myopinion , anything to show either
settlement of the 2nd Dec. 1873 was prepared and that Mrs. Johnson was to have the property abso
engrossed . There is a latent ambiguity, and lutely or that it was to be settled on her. There
parol evidence is admissible to explain what was is nothing to show any intention one way or
intended . another. Construing the trust in the settlement
Cozens-Hardy, Q .C . and Wurtzburg for the of the 2nd Dec. 1873 as a voluntary trust, I do
trustees of Mrs.Wilcock 's will. There is a result not see that any trusts are sufficiently declared .
There has, in fact, been a slip. I do not think
ing trust for the benefit of the settlors . there is any trust either for Mrs. Johnson abso
NORTH, J. — The question in this case is as to lutely, or for her for life with remainder to her
wbo, in the events that have happened , are now children . I must simply leave the words in the
entitled to the property comprised in the settle settlement as they stand. They cannot operate
ment of the 2nd Dec. 1873 . " By that settlemert | in favour of either Mrs. Johnson or her children.
April 26, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.- 319
Chan . Div.] DUNCAN v. Dixon . [Chan. Div.
I hold , therefore, that there is a resulting trust the contract was void or voidable ab initio, being
for the benefit of the settlors. admittedly governed by English law , now came
Solicitors : Sharpe, Parker, Pritchard , and on for decision .
Sharpe . Warmington , Q .C . and Ribton for the plaintiff .
In this case the plaintiff was under two dis
liabilities, infancy and marriage; and as rever
Feb . 15, 24,and 28. sionary interests were settled no actof acquiescence
(Before KEKEWICH, J.) or confirmation can bind her :
DUNCAN v. Dixon. (a ) Smith v. Lucas, 45 L. T. Rep. N . S. 460 ; 18 Ch .
Div. 531 ;
Infant - Married woman - Settlement - Void or Seaton v . Seaton , 58 L . T. Rep . N . S. 565; 13 App.
voidable - Infants' Relief Act 1874 (37 S. 38 Vict. Cas. 61.
c. 62), 88. 1, 2 . We rely mainly upon the Infants' Relief Act
A lady of eighteen , when domiciled in England , 1874.(a ) The preamble of thestatuteshowsthatthe
entered into an ante -nuptial marriage contract, object of the Legislature was “ to amend the law
in Scotch form , for the settlement of her pro as to the contracts of infants ;" that is, all the
perty. The marriage was subsequently dissolved contracts of infants generally. The first section
in Scotland at the instance of the husband. then enacts that contracts by infants shall be
Held , that a contract of this character was un void, giving as examples three different kinds of
affected by the Infants' Relief Act 1874, 8. 1, contracts, and then there is a proviso excepting
and that, as regarded the lady, it was voidable contracts entered into under any existing or
asdistinguished from void . future statute, and then an exception is grafted
Tuis was an action by Alice Margaret Alexandrina upon the proviso , making all voidable contracts
Duncan, suing as a feme sole, against her former absolutely void. The whole clause is crabbed ,
husband, George Dixon , the trustees of her but, unless read as we suggest, the proviso and
marriage settlement, and her infant son. exception become absurd . The clause must be
By an ante-nuptial contract of marriage, dated read therefore generally :
the 19th and 21st Jan . 1878, and made in Scotch Ex18parte Jones ; Re Jones, 44
Ch. Div. 109.
L . T . Rep . N . S. 588 ;
form ,between George Dixon ,of Glasgow , and the There are clear decisions that the 2nd section
plaintiff, then Alice Margaret Alexandrina Shirer,
of Southcourt, Leckhampton , Gloucestershire, of this Act is not to be read in a restricted
certain property of the husband, the intended manner, but generally :
wife's reversionary interest in real and personal Coxhead v. Mullis, 39 L . T. Rep . N . S. 349 ; 3 C . P .
property, and also a sum of money coming from Div . 499 ;
the lady's mother, were settled upon trust for the Northcote v . Doughty, 4 C . P . Div. 385 ;
plaintiff for her life for her separate use, exclud . Ditcham v. Worrall, 43 L . T. Rep. N . S. 286 ; 5 C . P .
Div. 410 .
ing the jus mariti of George Dixon , and after We submit, therefore, that this marriage contract
her death , to her husband if he should survive is wholly void ab initio, and so could not be
her , and on the death of the survivor upon trust ratified under the 2nd section . They also referred
for the children of the marriage. to
On the 24th April 1878 Miss Shirer married Kingsman v. Kingsman , 44 L . T. Rep. N . S. 124 ;
George Dixon . She was then eighteen years old ,
having been born on the 14th Dec. 1859. They Ex60.
parteB .Kibble;
Div . 122 ;
ŘeOnslow , 32 L. T. Rep.N . S. 138 ;
lived at Glasgow until shortly before the 2nd Aug 10 Ch . 373 .
1883, on which day a decree dissolving the S . Hall, Q .C . and E . Ford for the defendants.
marriage was pronounced by a Scotch court, at ' It is clear that before 1874 this settlement would
the instance of George Dixon . There was one have been voidable and not void . We contend
child of the marriage, the defendant George that the contract is still voidable, and not void .
Clifford Dixon, who was born on the 7th April A contract which is " voidable ” means either a
1879. contract that is valid until it is rescinded , or one
On the 28th April 1884 the plaintiff brought an which is invalid until it is confirmed . We submit
action upon the settlement in Scotland, claiming that the former is the correct definition ; and the
payment by the trustees of the arrears of her burden of proof to show that the contract is
income up to the date of the dissolution of the
marriage. A decree was ultimately obtained cancelled lies upon the plaintiff :
Oakes v . Turquand , 16 L. T . Rep. N . S . 808 ; 2 Eng.
ordering the trustees to pay these arrears. & Ir. App . 325.
In Sept. 1884 the plaintiff's solicitors, Messrs.
(a) Sect.
Smith , Lever, and Lewis, gave formal notice that simple contract, 1. All contracts,whether by specialty or by
the plaintiff repudiated and disaffirmed the the henceforth entered into by infants for
settlement, on the ground that she was an supplied repayment of money lent or to be lent, or for goods
or and
to be contracts for
infant at the date thereof, and was domiciled in necessaries), allsupplied
accounts(other
statedthan
with infants, shall
England . be absolutely void : provided always, that this enact
On the 13th Nov. 1888 the writ in the present mnent shall not invalidate any contract into which an
action was commenced, and a declaration was infantmay, by any existing or future statute, or asby now the
claimed that the contract of the 21st Jan. 1878 by rules of common law or equity, enter, except such
law are voidable .
was void , and that the property and funds com Sect. 2. No action shall be brought whereby to charge
prised therein , which belonged to the plaintiff, any person upon any promise made after full age to pay
might be reconveyed and transferred to her. any debt contracted during infancy, or upon any rati
Some preliminary questions of law were set fication made after full age of any promise or contract
down for decision, and the question as to whether made during infancy, whether there shall or shall not
be any new consideration for such promise or ratification
(a) Reported by G .Macan ,Esq., Barrister-at-Law . | after full age.
320 _ Vol. LXII., N . S.) THE LAW TIMES. [April 26, 1890.
CHAN . Div. ] DUNCAN V . Dixon . [Chan. Div.
Here the plaintiff has brought an action upon to be found expressions ofother judges apparently
this marriage contract, and has succeeded . The in conflict with this, as, for instance, the language
settlement is good so far as the husband is con- l of Lord Cairns in Codrington v, Codrington
cerned , and we submit that the first section of (34 L . T. Rep . N . S. 221 ; L . Rep. 7 E . & I. App.
the Infants' Relief Act does not apply at all. 854) ; but it must be borne in mind that in cases
That section only deals with certain specified of that class (to which this also belongs) the
contracts made by infants, which contracts are quondam infant is claiming to repudiate the
to be void . The object of the Act was to relieve settlement, and other parties are endeavouring
infants from contracts of that particular nature to set up, adversely to that claim , conduct or acts
made with money -lenders. According to the equivalent to ratification. The language of the
argument on the other side the words “ such as " judgments in such cases is directed to those con
must be inserted after the word “ infants ” in tentions, and must not readily be construed as
the second line of the 1st section . As to the expressing a difference from Sir George Jessel's
proviso , that does not help the matter, as you statement of the law . This so far brings the
must first find out what the substantive enact case in hand within sect. 1 of the Infants: Relief
ment is,and then the proviso will naturally relate Act 1874, that it takes it out of the proviso. In
to the contracts mentioned in the substantive other words, the contract being voidable, is not
part. [KEKEWICH , J. - But then the Legislature by the proviso excepted from the operation of the
has apparently made an exception which is no earlier part of the section. Before considering
exception at all.] The proviso may have been that earlier part, let me put aside the decisions
put in out of excess of caution . Besides, if all which have been quoted on sect. 2 - decisions
contracts were to be void under the 1st mainly directed to the question whether a promise
section , what was the use of the 2nd section ? of marriage is a contract within it, and, if so,
The wife having received henefits under the what is the proper application to such a promise
settlement cannot now repudiate it. There are of the provision respecting ratification . I do not
some expressions, no doubt, in the cases cited | say chat it was useless to refer to those antho
pointing to a wide construction of the section, rities. The case could not have been thoroughly
but those were cases of breach of promise of argued without a reference to them , and at one
marriage, and came under the 2nd section , and time I thought that they would throw more light
the expressions must also be considered having | on the question for my decision than they now
regard to the relation in which they were used . appear to do. In the result I pass them by with
Warmington, Q.C. in reply . less hesitation , because I find it difficult to
connect the lst and 2nd sections of the Act
* KEKEWICH , J.- Upon theargument of the point together so as to make a coherent whole, and I
of law now to be decided the Infants' Relief Act do not understand how , if the 2nd section
of 1874 was freely criticised . Further considera | receives the wide construction which was given
tion has convinced me not only that the questions to it by the Lord Chief Justice in Cowhead v.
then discussed were real and serious, but Mullis (39 L . T. Rep. N . S . 349; 3 C . P . Div. 439),
that there were also many others of equal diffi there is much , if anything, left for the operation
culty . It is not, however, convenient to discuss of the 1st section . This puzzle, if it be one, I
the provisions of the Act further than is neces. must leave for solution elsewhere or on another
sary for the decision before me, and I must not occasion . The contract in this case is what is
be understood to intimate an opinion on any sometimes termed a marriage contract, but the
questions not decided. Nor is it necessary to more familiar description tous is that of a marriage
discuss at length the law respecting infants' con settlement. Is a contract of that character within
tracts independently of the Act. Suffice it to say the purview of the Act ? For the present purpose
that such contracts are, with some exceptions or one need not closely distinguish between settle
qualifications, which there is no need here to ments purporting to operate by way of grant and
specify, voidable— which term I understand to settlements operating only by way of covenant.
mean that they are valid until repudiated. It The particular settlement is of the latter kind,
was suggested in argument that " voidable ” may and is therefore essentially a contract. It was
equally well signify “ invalid until confirmed ;" said that this, and indeed every other contract
but to my mind that, apart from the ordinary into which an infant can possibly enter, must be
use of langnage, does not express the technical within the statute, because it is an Act to amend
sense of the word. As regards those contracts the law .as to contracts of infants, and therefore
which operate as covenants and affect property , I all contracts of infants must be affected by it.
apprehend that you must look back to the date Theargument having been advanced , I have thus
of the contract for the purpose of ascertaining noticed it ; but a branch of law is no less amended ,
its operation , and, unless there has been a subse because somesubdivisions of it are untouched by
quent repudiation within the limits of time and the amendments. Take at a venture the Trustee
in the manner allowed by law , treat it as binding Act 1888 , which is stated to be an Act to amend
the property according to the expressed intention the law relating to the duties, powers, and
of the instrument. For that I have the high liabilities of trustees. One would not expect to
authority of Sir George Jessel, who, in Smith v. find every duty, every power, and every liability
Lucas (45 L . T. Rep . N . S . 450 ; 18 Ch. Div. 543), brought within the purview of the Act, nor is it,
says : “ If, therefore, this is a covenant to settle in fact, thus extensive. A more plausible argu
the future-acquired property of the wife, and if ment was raised on the words " all contracts "
nothing more is done by her, the covenant will with which the 1st section commences. The
bind the property . There is no reason , so far as next seven words are doubtless parenthetical, but
I am aware, for distinguishing a voidable cove- | omitting them , and omitting also the exception
nant from any other covenant. Till it is avoided of contracts for necessaries, it was urged that the
it is a binding covenant." There are, no doubt, I particular contracts mentioned were mentioned
April 26, 1890.] THE LAW TIMES. [Vol. LXII., N . S.- 321
Chan. Div.] WARD (app.) v. THE FOLKESTONE WATERWORKS COMPANY (resps.). (Q .B . Div.
only as examples, and without any intention to ! Parliament has clearly said , and not to limit plain
cut down the universality of “ all contracts." | words in an Act of Parliament by considerations
This argument claimed and derived support from of policy , if it be policy , as to which minds may
the proviso, of which , according to the ordinary differ, and as to which decisions may vary." I
rules of construction, the effect must be to except think that the two questions of law submitted to
out of the earlier part of the section something me by consent when the case was last before the
which , but for the proviso , would be within it. court ought to be answered by declaring that the
Therefore, it is said , the section is intended to marriage contract set out in the statement of
cover every contract by law voidable, and the claim was, as regards the plaintiff, voidable as
contract in question being of that character the | distinguished from void .
section covers that. The answer to this argu. Solicitors for the plaintiff, Bennett and Leaver.
ment is found in the true construction of the Solicitors for the defendants,McKenna and Co.
proviso . The meaning of the proviso that the
enactment shall not invalidate any contract, & c.,
is that no contract which the enacting part would
by force of language render void shall be so QUEEN 'S BENCH DIVISION .
rendered if it falls within a specified class . It Tuesday, Feb . 4.
may be, and I think it is, difficult to determine
precisely what is comprehended in that class, and (Before Cave and Smith , JJ.)
the difficulty is increased by the sweeping excep WARD (app.) v. THE FOLKESTONE WATERWORKS
tion with which the section concludes. Still, I COMPANY (resps.).(a)
think it would not be right to construe the Waterworks - Prevention of waste — " Apparatus
proviso as enlarging the class of contracts falling for regulating supply ” - Water company, notice
within the enactment, when it can be fairly and by to occupier to lay down stop -valve under street
properly construed without attributing to it that - Inability to comply with notice - Refusal by
effect. The enactment, standing alone, is, in my company to supply occupier with water - The
judgment - but subject to a remark to be pre Folkestone Waterworks Act 1858 (21 Vict. c. 2 .),
sently made - free from difficulty . The contracts 88. 13, 14 – Waterworks Clauses Act 1847 (10 Vict.
specified are of three classes - (1) contracts for c. 17), 88. 43, 48, 51,52.
the repayment of money lent ; (2) contracts for The 14th section of the Folkestone Waterworks Act
goods supplied ; and (3) accounts stated. To all 1858, provides that all persons supplied with
contracts of these classes the enactment is water by the company shall " provide proper ball
expressly applied , and contracts of other classes or stop cocks, or other necessary apparatus of ap.
remain unaffected . That seems to me to be the proved construction for regulating such supply,"
plainmeaning of the language, and I can discern no and in case any such person shall after being
reason for placing a forced construction on it. It required by the company neglect to provide such
is said that I am not at liberty to follow the bent ball or stop cocks, or other necessary apparatus,
of my own opinion on this point, and that it has the company may cut of the pipes, or turn off
been otherwise decided by judges to whose the water from the premises of such persons
authority I must bow . I must indeed bow to respectively .
them , and should not hesitate to do so if I By sect. 5, sub-sect. 2, of the Folkestone Water
thought they had really decided , or even expressed works Act 1888, the company were required to
a definite judicial opinion on that point, but I do provide a constant supply of water which prior
not. In Ex parte Jones (44 L . T. Rep . N . S . 588 ; to this Act was only intermittent. For the
18 Ch. Div. 109) Sir George Jesselused language
which, apart from the contract, certainly favours
purpose of preventing waste the company, after
the argument which I am rejecting. Hesays (18 the passing of this Act,made certain regulations
by which inter alia ) the consumers were required
Ch.Div . 122) that the words of the Actapply to all to provide and insert in their communication
contracts of an infant except those which are pipes under the street outside their premises
expressly excepted , and that the words “ are of sound and suitable screw -down stop -valves,
universal application .” But he was considering whereby the water could be shut off from any
the question whether the words cover trade con premises where it was being allowed to run to
tracts for the supply of goods as well as those waste. A notice was served on the appellant
into which a non -trader, or a trader apart from requiring him to comply with these regulations,
trading, may daily enter ; and there was no and on his neglecting to do so the supply of water
occasion for him to consider - nor do I tbink thatto his premises was cut off.
he did consider - whether contracts wholly dis Held , that a screw -down stop -valve was not an
similar to those specified in the section were " apparatus for regulating the supply ” within
intended to be governed by it. There really is no the meaning of the Folkestone Waterworks Act
other authority which can fairly be cited as 1858, and that,under the above circumstances, the
deciding or expressing a definite opinion on the company were not justified in cutting off the
point. I have already eliminated the cases on the supply of water to the appellant's premises.
2nd section , which include Ex parte Kibble Case stated by justices of the borough of Folke
(32 L. T . Rep . N . S . 138 ; 10 Ch. 373) ; but I revert
stone, under 20 & 21 Vict. c. 43, and 42 & 43 Vict.
to Coxhead v. Mullis (3 C . P. Div. 439) to say, c. 49. The facts set out in the case were, so far as
first,that although Lord Coleridge, on page 442,
notices the argument in favour of the restricted material, as follows:
a petty ses sions holden at the townhall in
meaning of sect. 1, he does not either uphold or andAt for
reject it; and, secondly, that while applying it Oct. 1889the borough of Folkestone, on the 2nd
differently - because to different language - 1 | hereinafter,an information preferred by John Ward ,
called the appellant, against the
Fenture respectfully to agree with him that it is
better " to suppose that Parliament meant what ' (a) Reported by ALFRED H . LEFROY, Esq., Barrister-at-Law .
322 _ Vol. LXII., N . S.] THE LAW TIMES . [April 26 , 1850.
Q .B . Div.] WARD (app.) v. THE FOLKESTONE WATERWORKS COMPANY (resps.). ( Q .B . Div
Folkestone Waterworks Company, hereinafter | with
called the respondents , was heard and deter
ditionwater.
of requiring his premises to be supplied
mined by us. The said information charged It was contended on behalf of the respon
that the respondents on the 26th Sept. 1889 did dents that, having regard to the same statutory
unlawfully neglect and refuse to furnish to the provisions, they had power to require the appel
appellant a supply of water, he, the appellant, lant to provide a screw -down stop - valve and
being an occupier entitled to receive such supply, guard -box, and to insert the same in the street,
and the rates for such supply having been duly and that in default of his so doing they had
paid or tendered , contrary to sect. 43 of the power to cut off the supply of water to his
Waterworks Clauses Act 1847 (10 Vict. c. 17). premises, and were entitled to refuse to restore
The appellant is the owner and occupier of a such supply while he continued to make default.
dwelling-house No. 12, Guildhall-street, in the The special Acts relating to the respondents
borough of Folkestone. The said house is of the are the Folkestone Waterworks Acts 1848, 1855,
annual value of 281. 158. 1858 , 1864, 1871, and 1888. And with these Acts
On or about the 13th Sept. 1889 the appellant, the Waterworks Clauses Acts 1847 and 1863 are
who had for some years previously been receiving incorporated save in so far as they are expressly
a supply of water from the respondents, was varied or excepted by the said special Acts. The
served by them with a notice requiring him material provisions of the said Acts are as
(inter alia ) to comply with certain regulations follows :
made by the respondents, and in particular to The Folkestone Waterworks Act 1858 (21 Vict.
provide within seven days after receipt of the C . X .) :
said notice a sound and suitable stop -valse of Sect. 13. It shall be lawful for the company or the
the screw -down kind, and to insert the same in directors thereof from time to time, for the purpose of
his communication pipe under the street or pave preventing the waste or misuse of water, to prescribe
ment of the street outside of and at or near its the size,nature,and strength of the pipes,cocks, cisterns,
point of entrance into his premises with an area and other apparatus to be hereafter altered or fixed,and
to interdict any arrangements and the use of any pipes,
of waterway not less than that of a half-inch pipe, cocks, cisterns , or other apparatus, which may tend to
and not greater than that of the communication such waste or misuse as aforesaid .
pipe, the size of the valve within these limits being Sect. 14. All persons supplied with water by the com
at his own option , such stop -valve to be protected pany shall provide proper ball or stop cocks, or other
by a proper cover and guard -box to be laid necessary apparatus of approved construction for regu .
flush with the street or pavement. lating such supply , and shall keep the same in good
repair so that the water may be properly drawn off and
The appellant was willing to comply with the effectually prevented from running to waste , and in
foregoing notice, and to provide and insert in case any such person shall after being required by the
the pavement of the street a suitable stop- valve company neglect to provide such ball or stop cocks, or
and guard box, but was unable to do so, as he other necessary apparatus, or to keep the same in good
repair to the satisfaction of the company or their
was prohibited hy the corporation of the borough surveyor, the company may cut off the pipes, or turn
of Folkestone, in whom the street is vested , to off the water from the premises of such persons respec
break open or interfere with the street or pave tively until such ball or stop cocks or other necessary
ment for this purpose. The respondents, on the apparatus shall be provided or repaired as the case may
25th Sept. 1889 , gave the appellant notice that if require.
Sect. 15.who
Every
their former notice was not compled with the company shallperson
suffersupplied
any pipewith water
, cock by ,theor
, cistern
supply of water to his premises would be cut off . other apparatus belonging to him to be out of repair , so
On the same day the appellant tendered the rates that the water supplied to him by the company shall be
wasted, shall forfeit to the company for every such
due to the respondents for the current quarter,
but such tender was refused , and on the 26th offence a sum not exceeding five pounds.
The Folkestone Waterworks Acts 1888 (51 & 52
Sept. 1889, upon the appellant continuing to make Vict. c . xxv.) :
default in providing and inserting in the pave Sect. 5. Sect. 21 of the Act of 1864, that
and soa supply
much of
ment of the street a stop-valve and guard-box as sect. 12 of the Act of 1871, as enacts of
aforesaid, the respondents cut off the supply of water
water to the appellant's premises, and refused to shall beshall be afforded for at least two hours every day
and the same are hereby repealed , and in lieu
restore such supply unless and until such stop thereof the following provisions shall have effect (that
valve and guard-box were inserted in the pave. is to say),
ment as aforesaid . (1.) From and after the passing of this Act the com
It was proved that the dwelling-house of the pany shall afford a sufficient supply of pure water for
the domestic use of the inhabitants of every house
appellant is within the district in which a con within the limits of the company's special Acts to be
stant supply of water is provided by the respon turned on in districts at such a pressure as to reach the
dents pursuant to sect. 5 of the Folkestone top story of every such house, and so that every such
Waterworks Act 1888 hereinafter mentioned ,and house shall be supplied with water for at least five hours
that it is necessary for the prevention of waste daily, namely, for three hours between six o 'clock in the
and misuse of water that screw - down valves morning
twelve atand
noontwelve at noon
and six , andin forthetwo
o 'clock hours between
afternoon , and in
should be inserted in communication pipes in a addition,
district where a constant supply of water is (2.) From and after the 1st day of July 1889, the com
provided . It was contended by the appellant pany shall afford for the domestic use of the inhabitants
that, having regard to the statutory provisions of so much of the district within the borough of Folke
hereinafter set out, he had no power to comply stone as is defined within a circle coloured red upon
the Ordnance map . . . a sufficient supply of pure
with the notice aforesaid , or to break up the water constantly laid on at sach pressure as will make
street or pavement without the consent of the such water rise 130 feet above the Ordnance datum
corporation in whom such street and pavement beyond which height the company shall not be required
respondents had no to furnish a constant supply of water.
are vested
power to require that totheinsert
; and him a stop-valve and theSect. The company
point6 . atwhich may outside ofpipe
the communication andforat the
or near
con
guard-box in the street or pavement as a con - i veyance into any premises of the water supplied by the
April 26 , 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 323
Q .B . Div .] WARD (app .) v. THE FOLKESTONE WATERWORKS COMPANY (resps.). ( Q .B . Div.
company enters those premises attach to that pipe a | always, that every such owner or occupier desiring to
sound and suitable stop-valve of the screw -down kind break up the pavement of any street, or any sewer or
with an area of waterway not less than that of a half. | drain therein, shall be subject to the same necessity of
inch pipe , and not greater than that of the communi giving previous notice, and shall besubject to the same
cation pipe , the size of the valve within these limits control, restrictions, and obligations, in and during the
being at the option of the consumer, and every such time of breaking up the same, and also reinstating the
stop-valve shall be protected by a proper cover and same, and to the same penalties for any delay in regard
guard -box, and the provisions of the Waterworks thereto, as the undertakers are subject to by virtue of
Clauses Act 1847 with respect to thebreaking up of the this or the special Act.
streets for the laying of pipes shall extend and apply Sect. 53. Every owner and occupier of any dwelling
to and for the purpose of inserting the said valves, house or part of a dwelling-house within the limits of
covers, and guard -boxes. the special Act shall, when he has laid such communi
The Waterworks Clauses Act 1847 (10 Vict. cation rate
pipes as aforesaid, and paid or tendered thewater
payable in respect thereof according to the pro
c. 17) : visions of thisfromandthe
the undertakers
specialAct,be entitled tosupply
demandof
Sect. 28 . The undertakers, under such superin . and receive a sufficient
tendence as is hereinafter specified may open and break water for his domestic purposes.
up the soil and pavement of the several streets and The Waterworks Clauses Act 1863 (26 & 27 Vict.
bridges within the limits of the special Act, and may c. 93) :
open and break up anysewers, drains,or tunnels,within
or under such streets and bridges, and lay down and Sect.
place within the same limits pipes, conduits, service andertakers 16. Ifwrongfully
any persondoessupplied with water by the
or canses or permits to be
pipes, and other works and engines , and from time to done anything in contravention of any of the pro
time repair , alter, or remove the same, and for the visions of the special Act, or wrongfully fails to do
purposes aforesaid remove and use all earth and materials anything which under any of those provisions ought to
in and under such streets and bridges, and do all other be done for the prevention of the waste , misuse, undue
acts which the undertakers shall from time to time consumption , or contamination of the water of the
deem necessary for supplying water to tho inhabitants undertakers, they may (without prejudice to any remedy
of the district included within the said limits, doing as against him in respect thereof) cut off any of the pipes
little damage as can be in the execution of the powers by or through which water is supplied by them to him
hereby or by the special Act granted , and making com or for his use , and may cease to supply him with water
pensation for any damage
execution of such powers.
which may be done in the so long as the cause of injury remains, or is not
remedied .
Sect. 35. The under takers shall provide and keep in Sect. 17. If any person supplied with water by the
the pipes to be laid down by them a supply of pure and | undertakers wilfully ornnegligently causes or suffers any
wholesome water sufficient for the domestic use of all pipe, valve-cock , cister , bath , soil-pan , water-closet, or
the inhabitants of the town or district within the limitsother apparatus , or receptacle to be out of repair or to
of the special Act, who as hereinafter provided shall be | be so used or contrived as that the water supplied to
entitled to demand a supply , and shall be willing to pay him by the undertakers is or is likely to be wasted ,
water rate for the same, and such supply shall be con misused , unduly consumed , or contaminated , . . .
stantly laid on at such a pressure as will make the water
excee every
dingforfive
he shall suchs. offence be liable to a penalty not
pound
reach the top story of the highest houses within the
said limits, unless it be provided by the special Act that Having regard to the foregoing statutory pro
the water to be supplied by the undertakers need not be visions, we were of opinion that the respondents
constantly laid on under pressure.
Sect. 43. If, except when prevented as aforesaid , the had power under 21 Vict. c. x., sect. 13, to require
undertakers . . : neglect or refuse to furnish to any the appellant to provide a stop -valve and guard
owner or occupier entitled under this or the special Act box, and to fix it in the street or pavement to
to receive a supply of water during any part of the time prevent the waste of water ; that upon the appel
for which the rates for such supply have been made or lant making default in providing and fixing such
tendered , they shall be liable to a penalty of ten pounds,
and shall also forfeit . . . to every person having stop -valve and guard -box, the respondents had
paid or tendered the rate the sum of forty shillings for power under sect. 14 of the same Act to cut off
every dayafter
during which such
continue notice in writing refusal or peglect shall
shall have been given to the supply of water to his premises, and that,
the undertakers of the want of supply. upon the true construction of the provisions of
Sect.or48 .part
Anyof owner or occupierwithin
of any the Waterworks Clauses Acts hereinbefore set
honse a dwelling-house the dwelling.
limits of out, the appellant had legally power to open the
the special Act, who shall wish to have water from street or pavement for the purpose of fixing a
the waterworks of the undertakers brought into his stop-valve and guard-box, and on these grounds
premises, and who shall have paid or tendered to the
undertakers the portion of water rate in respect of such we dismissed the information . of the conrt is,
premises by this or the special Act directed to pipes The question
be paidof whether, for the opinion
in advance, may open the ground between the having regard to the facts hereinbefore
the undertakers and his premises, having first obtained stated, and to the provisions of the statutes
the consent of the owners and occupiers of such ground, hereinbefore set out, we were right in our deter
and lay any leaden or other pipes from such premises
to communicate with the pipes of the undertakers, such mination. If the court is of opinion thatwe were
pipes to be of a strength and material to be approved of right, then the information is to stand dismissed .
by the undertakers, or in case of dispute to be settled in If the court is of opinion that our determina
England or Ireland by two justices, and in Scotland by tion was wrong, then the court is solicited to
the sheriff, or in either case by the inspector to be remit the matter to us with the opinion of the
appointed as aforesaid . court thereon, or to make such other order in
Sect.51. Any person who shall have laid down any
the relation to the matter as the court shall think
pipe or other works, or who shall have become
proprietor thereof, may remove the same after having fit.
to the undertakers
offirsthisgiven
removal.
six days
intention do, andinofwriting
so tonotice the timeof such proposed of theH . E . Duke for the appellant. - Sects. 13 and 14
Folkestone Waterworks Act 1858 (21 Vict.
Sect. 52 . Any such owner or occupier may open or C. X.), which empower the respondents to require
break up so much of the pavement of any street as shall the consumer to provide apparatus proper “ of or stop
ballapproved
be between the pipe of the undertakers and his house, I cocks, or other necessary
building , or premises, and any sewer or drain therein , construction for regulating such supply," do not
for any such purposeas aforesaid , doing as little damage apply to thecase of a screw -down valve in the street.
asdone making of
mayin be,theandexecution compensation
any such work. damage | The “ other apparatus ” referred to is something
for anyProvided
324 - Vol. LXII., K . s.] THE LAW TIMES. [April 26, 1890
Q .B . Div.] Ward (app.) v. THE FOLKESTONE WATERWORKS COMPANY (resps.). (Q .B. Div.
ejusdem generis with ball-cocks, some apparatus the company may prescribe what kind of pipe or
to be used inside the house in connection with the apparatus you are going to put down." Seet. 14
cistern . The object of placing stop -valves in the is more to the purpose, because it does prescribe
street is admittedly to enable the respondents' | what it is that has to be done by the consumer.
servants, who come round at night timewhen no It says : “ All persons supplied with water by the
water is being used , to ascertain whether any company sball provide proper ball or stop cocks."
water is flowing into a house, which they do by Now , we all know what a ball or stop cock is ;
opening the guard -box and applying an iron test | it is the apparatus which is used in a cistern ,
rod to the communication pipe, and in the event fo and which opens or shuts as the water in the
their finding it so flowing they screw down the cistern is low or high , and consequently admits
valve and stop the water . This cannot be con water into the cistern when it is not full, and
sidered in any way an apparatus for regulating excludes the water when it is full. The person
the supply . The owner or occupier of a house has supplied shall provide that, “ or other neces.
no statutory power to break open thepavement for sary apparatus ; ” that is, there must be a
the purpose of laying down a stop-valve and ball or stop cock or something else akin to
guard -box, and, therefore, even if the respon a ball or stop cock , “ of approved construction ,
dents were entitled to require the appellant to for regulating such supply." The object of the
lay down a stop- valve and guard -box if he could ball or stop cock is, to regulate the supply of
obtain the consent of the corporation in whom water— to let it in when wanted , and to exclude it
the pavement is vested , they had no power to when not wanted, so that the consumer shall
require him to do so in the absence of such always have the water that he requires for his
consent. purposes and shall not have more, and that in
G . L . Denman (Murphy, Q .C . with him ) for the the case of the waste pipe or other pipe being
left open there shall be no running away or waste
respondents. — The only limitation on the kind of of the water, “ so that the water may be properly
“ other apparatus ” that the respondents under drawn off and effectually prevented from running
sects. 13 and 14 of 21 Vict. c. x. may prescribe to waste.”
and require the consumer to lay down is that it and it seemsThat is the object of that section,
to me perfectly clear that under it
shall " be necessary for regulating the supply." | the company had no authority at all to compel
Here it is admitted that stop-valves are neces
sary for the prevention of waste, which is the the consumer to put down a particular screw .
very object for which ball and stop cocks are used down valve. It may be added that, at the time
in à cistern. In the case of the East London when the Folkestone Waterworks Act 1858 was
Waterworks Company v. Vestry of St. Matthew , passed, the company were compellable only to
Bethnal Green (54 L . T. Rep . N . S. 919 ; 17 Q . B . give an intermittent supply ; they were not
Div. 475), it was held that the laying down of required to give a constant supply till the Act of
stop-valves and guard -boxes was an act “ neces. 1888 , and as the case finds that this particular
screw -down valve is necessary where there is a
sary for supplying water ” within themeaning of constant supply , I think we must assume that
the 28th section of the Waterworks Clauses Act
1847 (10 Vict. c. 17). Lord Esher, M . R . there it was not necessary when the supply was only
treated it as indisputable that a stop -valve was intermittent. Then secondly, it was urged that
“ necessary for the regulation of the supply of this power is contained in theWaterworksClauses
Act 1847 . I pass over sect. 44 of that Act,
water." The appellant had power under sect. 52 because it is perfectly obvious that, whatever
of the Waterworks Clauses Act 1847 to break
open the pavement. Sect. 48 of that Act having may be the works which an owner of a house
provided that a consumer may lay down a com under 101. may be compelled to do, à fortiori
the owner of a more important bouse and a house
munication pipe, and sect.51 that hemay remove of greater value would be obliged to do ; and what
the same, sect. 52 provides that he may open or
break up so much of any street as shall be an owner of a large house cannot be compelled to
do, à fortiori the owner of a small tenement
between the pipe of the undertakers and his under 101. cannot be compelled to do either.
house “ for any such purpose as aforesaid," which
must include repairs and alterations such as the Sect. 47 says : [reads it.] Then sect. 48 says :
insertion of these stop-valves. (reads it.] Then , by sect. 53, “ when he has
laid such communication pipes as aforesaid , and
CAVE, J. - In this case the waterworks com paid or tendered the water rate payable in
pany claim the right to compel the consumer of respect thereof," he shall be entitled to demand
water to insert a screw -down valve in the pipe and receive from the undertakers a sufficient
which connects his house with the company's supply of water for his domestic purposes.
main , under the street or pavement near its That is not a case in which they can compel
point of entrance into his premises. Now , the him to lay down pipes. It is a question of
water company must show , by very clear and his laying down pipes ; and by doing so,
unmistakable language, that they are entitled to and tendering the water rate, he is entitled to
call upon the consumer to undertake an expense call upon them to supply water. In this par
of this kind. It was said , first, that they were ticular case that had been done long before, and
entitled to require it under sects. 13 and 14 of the there was an actual supply of water going into
Folkestone Waterworks Act 1858 . That Act by this house at the time when the waterworks
sect. 13 entitles the company to prescribe the companymade this demand ,and sought to enforce
size, nature, and strength of the pipes, cocks, it by cutting off the supply. In point of fact
cisterns, and other apparatus to be altered or no one, as far as we know , ever seems to have
fixed ; but that alone does not entitle them to considered the necessity of these screw -down
make the consumer lay down any pipe or valves. It does not appear from the case that
apparatus of any kind . All the section says is : they were ever put down at all, or deemed to be
“ If you do put down any pipe or apparatus, then necessary until the company were compelled to
MET
April 26, 1890.) THE LAW TIMES. [Vol. LXII., N . S.- 325
Q .B. Div .) WARD (app.) v. THE FOLKESTONE WATERWORKS COMPANY (resps.). (Q .B. Div.
furnish a constant supply. When , by the Act of the owner, remained his property ; because power
1888, they were compelled to furnish a constant is given in some of the sections of that statute
supply, it became necessary to consider what to the owner to retake possession of his service
protection they would require under these circum pipe - that is to say, if he was leaving his house,
stances, what new powers it might be necessary he could take away his service pipe on giving
to give the company in order to enable them to notice to the company. Therefore I only wish to
give this constant supply with the least possible point outthat, in this Waterworks Actwaterworks
of 1847,no
inconvenience and damage to themselves; and that compulsion could be exercised by the
being so,sect. 5 repeals the previous provisions, company upon the owner, or, as he has been
and compels the company to give this supply ; termed , the consumer. The first Act which has
and sect. 6 provides : reads it.] Now , that was been brought to our attention in this case
perfectly legitimate and proper. The screw -down whereby compulsion was exercised or allowed to
valves and guard -boxes had become a necessity , be exercised by the waterworks company upon
because there was going to be a constant supply the consumer is the Folkestone Waterworks Act
of water, and therefore there was a provision 1858 , and undoubtedly compulsion is there for
inserted enabling the company to put these down ; the first time allowed to be exercised by the
and I think my brother Smith pointed out in the waterworks company upon the consumer, because
course of the argument that it is a necessary pro it compels the consumer - I am using now collo
vision wherever the pipes are, as they may be, quial language, I am not citing the section
the property of the consumers of the water, and - to keep a ball-cock in an efficient state,
& prorision without which the company would | so that the water should not leak and run
not have been able to meddle with the pipes away. That is the first statute which gives the
already laid down, and to insert these screw -down water company compulsory powers over the con
valves where there was already a connecting pipe sumer, and it only deals with a ball-cock . Now
through which water was at that time being we come to the Folkestone Waterworks Act 1888 ,
supplied by the company to the consumer. If thirty years afterwards. What is the purview of
under those circumstances it had been intended that statute ? It is perfectly obvious, when one
by the Legislature that screw -down valves should reads it, that the company either had been
be put down by the consumer, or that the con - | empowered or put under the obligation to main .
sumer should be compelled to pay for them , then tain a constant supply of water at high pressure.
one would have expected that there would have The company then wanted protection for them .
been a proviso or an additional section giving selves ; they wanted more protection than the
the company power to compel the consumer to ball-cock could give them , because there was to
lay down these stop-valves, or providing that the be a constant supply of water at high pressure
company might lay them down and the consumer to every one of those houses which were supplied
should pay for them , or giving, in case the con from the main . Then sect. 6 was inserted , as it
sumer was to do it, power to the consumer to seems to me, in the statute of 1888, by the com
break up the streets for the purpose ; but no pany in their favour. That allows them to put
power whatever is given to the consumer to down this stop -valve on the screw -down system
break up the streets ; the section applies to the upon a property which they would not have been
company, and to the company only ; and not a entitled to interfere with at all if it had not been
word is said , nor is a suggestion to be found any. for this section , namely ,the pipe belonging to the
where in the Act, that the consumer is to pay for consumer. That being the true construction of
having this done, the power to do which has this section , it is said by the company, “ Yes, but
been inserted by the company for their benefit we obtain power to do something ; it is the con
and in their favour. Under these circumstances sumer 's property ; it is his pipe ; he ought to lay
it appears to me perfectly clear that the justices down this stop - valve ; or if he does not, he must
came to a wrong conclusion , and that the com pay us for doing that which we have obtained
pany have no power to require the consumer to power under this section to do.” It seems to me
put down these screw -down valves, nor to compel there is nothing in this section at all compelling
him to pay for them when they are put down. I the consumer to put down this stop - valve of a
am of opinion , therefore, that the justices ought screw -down kind. The consumer does not care a
to have convicted the respondents. The case must bit about it. It does not advance the occupation
go back to them with a statement of our opinion isofnothing
his premises in any
showing thatway.
a stopIn- valve
this of
section there
the screw
that effect.
to Smith , J . - I am of the same opinion .Mr. down kind is to be put in at the expense of, or by
Denman has urged everything that could be the consumer himself. It seems to me, therefore,
urged in favour of his clients, but, when you look that the justices in this case have erred , and that
at these statutes in order of date, it seems to me the company, having unlawfully cut off the water,
to be a very clear case. I must protest against | are liable to a penalty .
an attempt to construe a statute by the light of Case remitted to the justices.
an Act passed thirty years after its date. Now Solicitors for the appellant, Law and Worssam .
let us see what was the law in 1847, when the Solicitors for the respondents, A . R . and
Waterworks Clauses Act was passed . Under that
Act the waterworks company were empowered to H . Steel, agents for J. Minter, Folkestone.
lay down a main , and then the consumer might
join his house if he pleased to that main by
means of a service pipe. Under that Act there
was no compulsion upon the owner to join his
house to the main - he was not compelled to do so
unless he liked . It seems to me that under the
Act of 1847 the service pipe, when put down by
Q .B. Div.] MAYOR v. COLLINS. IQ .B. Div.
Friday, Feb . 7. The Judicature Acts and rules have carefully
(Before Cave and SMITH, JJ.) preserved the rights of infants as established by
Mayor v. COLLINS.(a ) the Court of Chancery, and there is certainly no
new provision such as would be expected if it
Practice – Discovery — Interrogatories — Infant's had been intended to alter the old practice in
liability to answer - Rules of Supreme Court | this respect. In Daniell's Chancery Practice
1883, Order XVI.,r. 16 , 21; Order XXXI., r. 1. i (6th edit., vol. ii., part 1, p . 1812 ) it is stated
An infant,whether he appears as plaintiff or defen - that, as infants cannot make admissions, inter
dant in an action , cannot be compelled to answer | rogatories for their examination should not be
interrogatories. delivered . The answer of an infant has been
APPEAL from chambers. held to be no evidence against him :
The plaintiff, who was an infant, brought an Eccleston v. Petty , Carth . 79 ;
action for libel against the defendant. A master Holden v . Hearn , 1 Beav. 415 ;
at chambers Savage y. Carroll, 1 Ball & Beatty, 548.
the defendantmade an the
under orderRules
on the
of application
the Supremeof | In the cuse of Dyke v. Stephens (53 L . T . Rep.
Court 1883, Order XXXI., r. 1, that the defen . N . $ . 561; 30 Ch. Div. 189) it was unsuccessfully
dant should be at liberty to deliver interrogatories attempted to make the next friend of an infant
for the examination of the plaintiff , and that the plaintiff swear an affidavit of documents ; and in
plaintiff should answer the same. The plaintiff Ingram v. Little (11 Q . B . Div. 251) the court
appealed to Pollock , B . at chambers, who referred refused to compel the guardian ad litem to the
thematter to the court. defendant in that case to answer interrogatories.
The Rules of the Supreme Court 1883 provide If the legal representatives of parties under
as follows: disability possess this immunity, it would seem
to follow that the parties under disability must
Order XVI., r. 16 :
| themselves
also referredpossess the same immunity . They
Infantsmay sue as plaintiffs by their next friends, in to
the manner heretofore practised in the Chancery Divi. Rhodes v. Swithinbank, 60 L . T. Rep. N . S. 856 ;
sion , and may in like manner defend by their guardians 22 Q . B . Div. 577.
appointed for that purpose .
Rule 21. In all canses or matters to which any infant E . W . Hansell for the defendant. The reason
that an infant was not bound by the answer of
or person of unsound mind , whether so found by inquisi
tion or not, or person under any other disability , is a
party, any consent as to the mode of taking evidence, his next friend or guardian was, that it was not
the answer of the infant. No case goes to the
or as to any other procedure, shall, if given with the length of saying that an infant is not bound by
consent of the court or a judge by the next friend,
guardian , committee, or other person acting on behalf his own admissions. In the case of Shaw v.
of the person under disability , have the same force and Wilder (2 Molloy 's Ir. Rep . 532 ) Sir William
effect as if such party were under no disability and had McMahon says : “ Though the court holds that a
given such consent. minor is to be protected against mispleading or
Order XXXI., r. 1 : unauthorised admissions in his suit, yet, as to
In any action where relief by way of damages or proceedings in the cause, he is as to the opposite
otherwise is sought on the ground of fraud or breach of party, his adversary, as much bound, and the
trast, the plaintiff may at any time after delivering his other party equally entitled to take advantage
statement of claim , his
and defence,
a defendant may any
at or order
after the of
time of delivering without for them as if the minor was adult." Infants can
that purpose, and in every other cause or matter the at certain age be punished for perjury ; they
plaintiff or defendant may by leave of the court or a area liable to be cross -examined when called as
judge, deliver interrogatories in writing for the exami witnesses, and must be bound by their answers
nation of the opposite parties, or any one or more of given in the witness-box. There can be no reason
such parties, and such interrogatories when delivered why they should not be compellable to answer
shall have a note at the foot thereof, stating which of
such interrogatories each of such persons is required to interrogatories, more especially in a case where
answer . such interrogatories cannot beadministered with
Aspland , Q .C . and W . Blake Odgers for the out leave. It has been held that admissionsmade
plaintiff. - The master had no power to order an by an infant are receivable in actions brought
infant to answer interrogatories. The answer to | against him after he has attained fall age :
a bill in Chancery against an infant was always O'Neill v. Read , 7 Ir. L , Rep. 434 ;
sworn by the guardian ad litem and not by the Willins v. Smith , 4 E , & B . 180.
infant, and that answer did not bind the infant : R . S . C . 1883, Order XXXI., r. 1, has no excep
Simpson on Infants (edit. 1875),pp. 457, 459 ; tion as to infants. [CAVE , J. - Nor as to other
Daniell's Chancery Practice (4th edit.), p . 165. persons under disability.]
The age of the infant is not material in consider Aspland, Q.C. in reply .
ing whether he is capable of answering, for, as Cave, J. - I am of opinion that these interro
Parke, B . says in the case of Morgan v. Thorne
(7 M . & W . 400, at p . 408 ), “ the law knows of nogatories must be disallowed . It is impossible to
distinction between infants of tender and of read the cases which hare been decided without
mature years.” Discovery from an infant has coming to the conclusion that the Court of
never been permitted : Chancery did not allow an infant to be interro
Lucas v.Lucas, 13 Ves. 274. gated . Where an infant was a party to a suit his
opponent might obtain what information he could
Itmaywell bethat a plaintiff cannot be compelled out of the infant's next friend, but admissions
to make discovery, and yet has a right to sue as by the next friend did not necessarily bind the
in the case of a foreign sovereign state :
United States of America v. Wagner and others, infant. The fact that
this unsatisfactory a party
process had to resort theto
of interrogating
16 L . T. Rep . N . S. 86 ; 2 Ch . App . 582. next friend appears to me to show that interro
(a ) Reported by ALFRED H . LEFROY, Esq., Barrister-at-Law . I gatories could not be administered to the
April 26, 1890. ] THE LAW TIMES. (Vol. LXII., N . 8.- 327
In Bank.] Re HIND ; Ex parte Hind. [IN BANK
The rule seems to have been clearly established B.'s separate estate. A . put in a proof for his
that infant defendants could not be interrogated , 11,6421.,which was rejected . A. appealed.
and no difference has been suggested in the case Held , on appeal (dismissing the appeal), that inas
of infant plaintiffs. It cannot be said that the much as the joint creditors had been admitted
Judicature Acts have made any difference in the to prove against B .'s estate A .'s proof must be
position of infants in this respect. Such an rejected ,as otherwise A. would beproving in com
alteration in the law has not been expressed in petition with them .
the Acts or rules, and it cannot be contended Eæ parte Topping (12 L . T. Rep. N . S. 3 ; 11 Jur.
that it has been made sub silentio. It seemsto me N . S. 210) distinguished.
that Mr. Aspland has made out that part of his Tuis was an appealfrom the refusal of the judge
case; for when he had pointed out what the old of the Nottingham County Court to admit the
practice was, it was incumbent on Mr. Hansell proof of the appellant, H . Hind, against the
to show that a change had been introduced by estate of the bankrupt to the extent of
Act or rule. The argument which has been 11,6421. 178. 3d., and for an order that such proof
pressed upon us that the rule is unreasonable we
cannot entertain , for the practice against which should The
be admitted .
two Hinds, father and son , had prior to
it was directed is of long standing, and we cannot the year 1888
alter it now on the suggestion that the principle partnership , and carried
in July
on business together in
of that year the partner
or idea on which it is founded cannot be carried ship was dissolved. By the of the dissolu
out to its full extent. I think that this appeal tion the son was to pay to histerms father as his share
must be allowed. of thebusiness from which the father retired the
Smith, J. - I am of the same opinion . Mr. sum of 11,6421. 178. 3d . ; and the son took over
Hansell has contended with much force that the partnership debts and carried on the business
it is unreasonable that an infant should be by himself, giving his father a mortgage over the
entitled to bring an action, and yet not be liable property to meet the debt of 11,6421. 178. 3d . due
to give discovery . Mr. Aspland, however, has to him . Shortly afterwards the son became
convinced me that infants, whether they appear bankrupt. There was no joint estate, but only a
as plaintiffs or defendants, are not subject to separate estate, and proofs to theamount of 70001.
that liability ; at least that appears to me to be in respect of debts due and owing by the old
the general result of the cases which he cited , par nership of the father and son at the time the
although rone of them is exactly in point. It father went out were admitted against the son's
has been suggested that the practice has been estate. The father also put in a proof in respect
altered , but no ground has been shown for this of his 11,6421. 178. 3d.
suggestion , and no case has been cited to us in The total creditors of the bankrupt bad debts
which an infant has been subjected to an order amounting to 23,7001. The assets amounted to
for discovery. It does not appear to me that the 38421. The trustee rejected the proof of the
rules as to interrogatories were intended to change father for 11,6421. 178. 3d. on the ground, amongst
the old practice in this respect. It is true that others, that a creditor partner could not prove
the language of Order XXXI., r. 1, " the plaintiff in competition with his own firm 's creditors
or defendantmay . . . deliver interrogatories against the separate estate of his partner. The
for the examination of the opposite parties,” is County Court judge upheld the decision of the
perfectly general, but it must obviously be read trustee, and the father appealed .
in connection with that of other rules which Hextall for the appellant. The rule precluding
relate to parties under disability . a partner creditor from proving against the
Appeal allowed . separate estate in competition
Solicitors for the plaintiff, Bower, Cotton, and of the firm is an artificial rule with the creditors
on which another
Bower, agents for Ainsworth , Sanderson , and rule has been , by the decision in Ex parte
Howson , Blackburn . Topping (12 L . T. Rep. N . S. 3; 11 Jur. N . S.
Solicitors for the defendant, Brooks, Jenkins, and 210 ), engrafted . That rule is, that if the separate
Co., agents for Samuel Sandeman , Accrington . estate is insufficient for the payment of the
separate debts, then, as there can be no possi
bility of a surplus for the joint creditors, the
partner can prove against the separate estate.
BENCH DIVISION , IN
QUEEN'SBANKRUPTCY. Here there can be no possibility of a surplus, as
the total debts are 23,7001. and the assets are
Thursday, Feb . 13 . 38421., and if you deduct the father's debt of
(Before Cave and SMITH , JJ.) 11,6421. 178. 3d . and the joint debts of 70001.,
Re Hixd; Ex parte Hind.(a ) there still remain debts to the amount of 52001.,
with assets of 38421. to meet them , which pro
Bankruptcy — Proof of debt — Partnership - duces a deficiency of 12541. That deficiency
Separate estate- Proof by copartner against brings the case withir E . parte Topping. The
Bankruptcy Act 1883 (46 | 47 Vict. c . 52). " County Court judge said that Ex porte Topping
In 1888 the partnership carried on between A. and, had no application . He was wrong, and the
B. was dissolved, A . receiving as his share the proof ought to be admitted,
sum of 11 ,6421., which he left on mortgage. Cooper Willis, Q .C . and H . G . Stanger for the
B. proceeded to carry on the business alone until respondent. — The County Court judge was cor
bankruptcy. On B .'s bankruptcy there were rect in his decision . The rule was laid down in
debts to the amount of 23,7001. and assets Ex parte Sillitoe (Gl. & J. 374), that a partner in
38421. Joint creditors of the old firm to the | a firm shall not prove in competition with the
amount of 70001. were admitted to prove against creditors of the firm , who are in fact his credi
(@)Reported by WALTER B, YATES,Esq ., Barrişter-at-Law . I tors, and shall not take part of the fund to
328 – Vol. LXII., N . S.] THE LAW TIMES. (April 26, 1890.
IN BANK.] WARTER v. WARTER. [PROB.
the prejudice of those who are not only credi. | creditors, i.e., the creditors for 70001., and the
tors of the partnership, but of himself. This judge thought that was so. Now , the rule of
rule was adopted in Nanson v . Gordon (34 L . T . law as laid down in Ex parte Sillitoe is , that a
Rep. N . S. 401 ; 1 App. Cas. 195), where all partner in a firm against which a commission of
the cases on the subject are dealt with . It bankruptcy issues shall not prove in competition
is to be taken as an admitted fact that the with the creditors of the firm , who are, in fact,
70001. of creditors here were creditors of the his own creditors, and shall not take part of the
firm when the father went out of it, and it is fund to the prejudice of those who are not only
argued that, though the rule in Ex parte Sillitoe creditors of the partnership, but of himself. In
may be true, yet that here Eæ parte Topping Nanson v. Gordon (ubi pup.) the rule in Ec
applies, and takes this case out of Ex parte Sillitoe. parte Sillitoe was adopted, but it is said, if
Eæ parte Topping, however, does not apply here that is the rule, then Ex parte Topping applies.
at all. So long as these 70001. of joint creditors I cannot agree. The ratio decidendi of Ex
remain , and their proofs are not expunged, the parte Topping was, that there was no com
father will, if his proof be admitted , be competing petition at all, as there could be no overplus
with them , and thus be breaking the rule in Ex from the separate estate, and so nothing to
parte Sillitoe. He also cited go to the joint estate ; and the Lord Chan.
Ex parte Blythe ; Re Blythe, 16 Ch . Div. 620 ; cellor put a note to the effect that, inasmuch as
Ex parte Andrews; Re Wilcoxon , 50 L. T. Rep. N . S. contingencies might arise which might render the
679; 25 Ch . Div. 505. separate estate larger than was contemplated , the
Hextall in reply.- [CAVE, J. - What is said proof was to be expunged in rase an overplus
against you is this, that a partner cannot prove from the separate estate occurred for the benefit
in competition with his own creditors. You have of the joint creditors. Whether the creditors for
laid no foundation in the court below for sug: 70001. ought to have been allowed to prove or
gesting here that tbe proofsadmitted of the joint | not I do not know . Appeal dismissed .
creditors were wrongly admitted .] No ; but
allowing that they are admitted , in no event Solicitor for the appellant, Henry P. Day, of
could there be any available surplus, and so Ex Nottingham .
parte Toppingapplies. [CAVE, J.-- Here the joint | Solicitors for the respondent, Taylor, Hoare,
creditors at present stand on the same footing and Box , for Acton and Marriott, of Nottingham .
as separate creditors.] Ex parte Topping applies
even though there is not a formal separate estate
and a formal joint estate.
CAVE, J.- I am of opinion that the County PROBATE , DIVORCE, AND ADMIRALTY
DIVISION
Court judge was right, when you come to look PROBATE BUSINESS.
into the facts of the case. Now , the rule is that
one partner may not prove in competition with Tuesday, Jan. 14 .
the general creditors of the firm , and this rule (Before Butt, J.)
has been carried to tbis extent, that he cannot WARTER v. WARTER. (a )
prove against the separate estate of one of Probate suit- Declaration of legitimacy - Writ
his partners, because there is a possibility Indorsement - Claim for probate and declaration
that the separate estate may leave a surplus 1 of legitimacy included in same writ - Legitimacy
after satisfaction of the separate creditors which Declaration Act 1857 (21 & 22 Vict. c. 93)
surplus would go to the joint creditors, and Practice .
if the partner were allowed to prove he would
diminish that surplus. In Ex parte Topping the A prayer for a declaration of legitimacy cannot be
distinction was drawn, and it was there said that, included in a writ in a probate suit, but must be
where one partner seeks to prove against the by petition .
separate estate of another, he may do so if it can FRANCES ISABELLA O 'CALLAGHAN , as guardian and
be shown that there will not be enough to pay next friend of Ellen Annette Warter, claimed
the separate creditors themselves, and therefore probate of the will of Colonel Henry de Grey
no surplus to go to the joint estate. Apply these Warter, father of the said Ellen Annette Walter.
principles to this case. Here the joint creditors The Rev. W . H . Redman, the guardian ad litem
have been admitted to prove against Hind 's of Henry de Grey Warter, a son of the testator,
estate, and therefore, if the elder Hind is allowed opposed probate. The writ bore the following
to prove too, the result is that all the creditors indorsement :
will find their dividend reduced . Whatever was The plaintiff claims, as one of the natural and lawful
the reason , it is a fact that the joint creditors children of Col. Henry de Grey Warter , a declaration
have been admitted to prove, and so the effect of that the marriage had and solemnised on the 3rd Feb .
allowing the father to prove would be that he 1880 between her father the said Colonel Henry de Grey
would prove in competition with them . Warter and her mother Annette Louisa Warter (then
Annette Louisa Taylor), was a good and valid marriage,
SMITH , J. - This partnership was dissolved in and that the plaintiff is the naturaland lawfuldaughter
July 1888 , and on that dissolution the son had to of the said Colonel Henry de Grey Warter and his said
pay his father 11,6001. on his going out, and a wife Annette Louisa Warter.
A declaration that the last will and testament of
mortgage was given for that sum . Shortly after Colonel Henry Warter
de Grey , late of He
wards the son became bankrupt, and proofs to Royal Artillery, who died at Umballa , E .I., on the
the amount of 70001.were put in against the old 23rd day ofMarch 1889, the said will bearing date the
partnership of the father and the son . The father 6th day of Feb . 1880 , is of true force and validity ; and s
also put in a claim for his 11,6001., and the ques. declaration that the said will was not revoked by reason
tion arose as to whether the father could carry in of the ceremony ofmarriage gone through between the
that claim , as he was competing with his own | (a)Reported by H . DURLEY-GRAZEBROOK,Esq., Barrister-at-L& F.
April 26, 1890 .] THE LAW TIMES. [ Vol. LXII., N . S.- 329
Div.] BENYON v . BENYON AND O 'CALLAGHAN . [Div.
said Colonel Henry de Grey Warter and the said order the
anashusband
subsequently made by the registrar,
Annette Louisa Taylor on the 2nd day of April 1881. upon 's petition to vary the marriage
The registrar refused to allow the writ to issue settlement, directing the wife to pay to the hus
in the above form , on the ground that, this being band , out of the income receivable by her under
a probate action , the indorsement on the writ the settlement, an annual amount of 3001. in
could not properly include a claim for a declara addition to an allowance for themaintenance and
tionTheof legitimacy.
plaintiff appealed from the registrar's
education of the only child of themarriage. The
respondent subsequently married the co-respon
decision . dent, who , however, had since died . Her income
Bargrave Deane for the plaintiff . - The writ having become considerably reduced , through
ought to be allowed to go in the form proposed . depreciation of foreign securities comprised in
He cited the settled property and through the conversion of
In 3 the Goods of Tharp, 33 L . T. Rep . N . S. 867 ; consols, she now applied to have the order varied
P. Div. 76 . by reducing the amount payable by her to her
[BUTT, J. - The difficulty seems to be that the former husband from 3001. to 1501. a year.
plaintiff is endeavouring to join two causes of Held , that subsequent circumstances are not a
action, one of which is triable according to the ground for such an application , and that an
Probate Rules, and the other by the Divorce order made upon a petition to vary marriage
Rules, and these rules differ in some respects. settlements can only be varied for reasons existing
Moreover, a probate suit is commenced by writ, befure the making of such order, and which
while a suit for a declaration of legitimacy must, might have been thereupon submitted to the court
in terms of the Legitimacy Declaration Act, be to induce it to make a different order to that which
commenced by petition. Suppose the writ were was, in fact,made.
to issue in the form proposed , under which set of Gladstone v. Gladstone (35 L . T. Rep. N . S. 380 ;
rules should it be tried ?7 The Judicature Act 1 P. Div. 442) followed .
1873 (36 & 37 Vict. c. 66), s. 24 , sub-sect. 7 , This was a motion for a further variation of
removes the difficulty, by providing that the marriage settlements.
High Court, in the exercise of the jurisdiction On the 4th Aug. 1874 the courtpronounced a
vested in it by the Act, in every cause or matter decree absolute upon the husband's petition on
pending before it , shall have power to grant,and the ground
shall grant, all such remedies whatsoever as any co -respondent of his wife 's adultery with the
O 'Callaghan , to whom she was sub
of the parties thereto may appear to be entitled sequently married , but who had since died .
to in respect of any and every legal or equitable After the dissolution of themarriage a petition
claim , to the end that, so far as possible, all was presented by the husband to vary the terms
matters so in controversy between the parties
may be completely and finally determined , and of the settlement made upon themarriage of the
allmultiplicity of legal proceedings concerning petitioner and respondent.
The total income then arising from the settled
any of such matters beavoided .
BUTT, J. - The section of the Jndicature Act to property perty
amounted to about 16501. a year. Pro
producing 13501. of the income had been
which reference has been made can only apply to brought into settlement by the wife, and the
cases in which the subject-matters to be tried remainder by the husband .
have been properly brought before the tribunal On the 6th July 1876 the registrar ordered
that is to try them . How can it be said that the respondent to pay to the petitioner 3001. a
this claim for a declaration of legitimacy is 1 year, and a further 2001. a year for the mainte
properly raised in the present case, when , by the nance and education of the only issue of the
Legitimacy Declaration Act, it is expressly pre marriage, a son .
scribed that all such snits must be commenced
by petition, not by writ ? If the plaintiff is con to At the date of the order the income remaining
the respondent, after making the above-men
tent to confine his claim under the writ in the | tioned payments, amounted to 7081. a year.
probate suit to the issue of the validity of the In consequence of the depreciation of certain
will, no further difficulty need arise. I cannot, foreign securities comprised in the settlement,
however, decide a question of legitimacy under a
claim in a probate snit. I must therefore uphold | and also from the conversion of consols, the
the decision of the registrar and refuse this respondent's balance of incomewas now reduced
from 7081. to about 4901. a year. Under these cir
motion cumstances,
Solicitors, Le Brasseur and Oakley. Inderwick, Q.C. (Gregory with him ) now moved
to vary the order by reducing the sum payable
by the respondent to the petitioner from 3001. to
DIVORCE BUSINESS. 1501. per annum . Sect. 5 of the Matrimonial
Tuesday, Jan . 14 . Causes Act 1859 confers upon the court power to
vary its orders whenever necessary. The use of
(Before Butt, J.) the word “ orders " indicates that more than one
BENYON v. BENYON AND O 'CALLAGHAN. (a ) order may be made, and that the Legislature
Divorce - Decree - Variation of settlements - Order so contemplated. The most important matter
- Subsequent circumstances — Reduction in for the court's consideration is the interests of
income- Motion to reduce amount of payments the parties, and the court may exercise its powers
ordered — Refusal to make further variation of from time to time, as and when necessity arises.
settlement. They referred to
Themarringe having been dissolved by reason of March v. March and Palumbo, 16 L . T. Rep. N . S .
the wife's adultery with the co-respondent, an 366 ; L . Rep. 1 P . Div. 440 ; and
Gladstone v. Gladstone, 35 L . T. Rep . N . S. 380 ;
(8) Reported by H .DURLEY-GRAZEBROOK, Esq ., Barrister -at-Law . i. 1 P . Div . 442.
330 - Vol. LXII., N . S .] THE LAW TIMES. [April 26, 1890.
Div .] DICKINSON v. DICKINSON . [Div.
Bayford, Q . C . (Searle with him ), for the hus. | with these settlements once and for all ; and that,
band,opposed theapplication . - It is intended that | whatever may be the state of the law as to the
these arrangements should be final. An order amendment of such orders in consequence of any
of this kind creates a marketable asset, which mistako haring crept into the order as drawn up,
the petitioner could at once dispose of. This there is no power to make any variation on the
court has no power to vary such an order. ground of change of circumstances. On the
[Butt, J.- If the respondent's income were | other side it is contended that the use in the
reduced to the actual amount payable by her to section referred to of the word in the plural- .
the petitioner, could she not come to the court " orders ” - goes a long way to show that the
and ask to have the order varied ? ] The court court must have power to make orders from time
would not have power to alter it. It might well to time dealing with marriage settlements. If
happen that, in a case where both ante-nuptial | I were under the necessity of deciding the ques
and post-nuptial settlements existed , more than tion, I should rather lean to the viev
one order might be necessary . At all events, the Legislature intended the court to interfere once
court will not interfere with an order of the for all in dealing with marriage settlements, and
kind in question by reason of circumstances | I am influenced in no slight degree towards that
which have arisen since the date of the order. view by the fact that sect. 32 of the principal Act
(Butt, J.- Has there been any decision under 1 (20 & 21 Vict. c. 85 ) contemplates that security,
20 & 21 Vict. c. 85, s. 32, to the effect that where whether for a gross sum of money or for periodical
the court has ordered security to be given , and payments, shall , if and when ordered, be giren
such security has been given , the order may be once and for all. But I do not think I am called
altered ? ) If a deed had been executed , it could upon to decide for myself whether the court has
not bare been varied , and the liability of power to vary an order when once made dealing
trustees could not have been affected by an with a marriage settlement. A dictom of a
order such as the respondent is now apply learned judge has been referred to , which rather
ing for. When the real intentions of the seemed to indicate that the court might vary
court are not accurately represented in the such an order. There is, however, a positive
order as subsequently drawn up, the court decision by the President (Sir James Hannen),
would vary the terms of the order thus made which ,although it has been spoken of as only &
really per incuriam . But such an application as dictum , is not an obiter dictum . In Gladstone .
the present has never been granted , and that Gladstone (35 L . T. Rep. N . S. 380 ; 1 P . Div. 442)
seems strongly to point to our contention that Sir James Hannen said that he had come to the
the court has not the power to do so, for many conclusion that, whatever other considerations
cases must have arisen in wbich , if it had been might apply, those who may be seeking to vary
possible, it would have been highly desirable to an order of this kind must confine themselves to
vary the original order. matters which had occurred before the date of
Butt, J. - In this suit,which was for dissolu . the order they were seeking to vary, and which
tion of marriage, brought some years ago, a might have been submitted to the court at the
decree was pronounced in favour of the husband time to induce it to make a different order ; but
on account of his wife's adultery, and the court that they were not at liberty to go into anything
subsequently made an order under the Matri which had occurred since the making of the
monial Causes Act 1859 (22 & 23 Vict. c. 61), s. 5, order. That decision, I understand , has never
by which the wife, who had a considerably larger been challenged in the Court of Appeal,and I
settled income than that possessed by the hus. must therefore treat it as binding upon me, and
bard, was directed to pay to the latter a yearly as precluding me, in the present case, from
sum of 3001. out of the settled income during entering upon the consideration of any circum
her life. There was also a provision directed to stances which have occurred since the order of
be paid by her to her husband for the benefit of 1876 was made. I do not lose sight of the obser
their son , the only issue of their marriage; but to vation which was addressed to me in argument,
this I need not further advert. As I gather, that, although this Act was passed as far back as
that income has been duly paid up to this time. 1859 , there is no recorded case in which an order
The respondent and co -respondentmarried each dealing with marriage settlements having been
other after the decree absolute had been pro once made under sect. 5, any fresh application
nounced, and the co -respondent has since died . to vary the first order has ever been granted. I
Now the respondent comes to the court, and I | must therefore refuse to interfere in the present
am asked to vary the order made in 1876 , upon case with the order made in 1876 , and I dismiss
the husband's petition to vary the marriage the motion with costs.
settlement, by reducing the annual payment Solicitor for the petitioner, W . Brewer.
which the petitioner is entitled to receive under Solicitors for the respondent, Longbourne,
that order. It appears that the securities | Stevens, and Powell.
originally brought into settlement have greatly
depreciated in value,and those who representthe
wife maintain that,as the depreciation has taken
place without any default of hers, that consti Monday, Oct. 28 , 1889.
tutes a good and sufficient reason why the amount (Before Butt, J.)
of the allowance ordered in 1876 should now be
reduced . Thereupon arises the first and main Desertion - Undefendedv.divorce
DICKINSON DICKINSON . (a)
suit by wife - Adul.
question : Have I the power to make any further teress brought to house by husband - Wife's
order with reference to thismarriage settlement ? I refusal to remain in consequence — Decree.
It is contended
tioner that sect.by5 ofcounsel on behalf ofCauses'
the Matrimonial the peti.
Act | A wife petitioned for the dissolution of her mar
1859 (22 & 23 Vict. c. 61) contemplates dealing ' (a) Reported by H . DURLEY-JBAZEBROOK,Esq., Barrister-at-LaF.
Drv .] ELLAM v. ELLAM — THE ARRATOON APCAR . [Priv. Co.
riage on the grounds of adultery and deser. ) of Mrs. Evelina Richards by marriage ; she is my
tion . The parties were married in 1866 , and brother 's wife.”
in 1872 the husband brought to the house a Bargrave Deane, for the petitioner , submitted
woman with whom he had immoral relations. that the descriptions of the deponents were full
The wife refused to admit her, but the husband | enough to satisfy the rule.
insisted . Thewife remained a short time in the BUTT, J. - I have admitted evidence of adultery
house, and then told her husband that either she | upon affidavit as quite an exceptional thing, and
or the woman must leave the house. The hus. | Ilaid special stress on the evidence to be so
band told her she might do as she liked, but that given being that of respectable persons. How
the woman would remain . The wife thereupon can I tell, from the descriptions given, that the
left, and never afterwards cohabited with her deponents are respectable ? The first one does
husband. not state the occupation of her husband , and the
Held,that the husband was guilty of deserting his second does not give the occupation of her
wife. father,and does not say that she resides with her
This was a wife's petition for the dissolution of parents at the address she gives. The rule has
her marriage on the grounds of adultery and not been complied with , and I will not find
desertion . adultery proved upon these materials . The case
The suit was undefended . must stand over again , in order that theaffidavits
The adultery was clearly established , and the may be put in proper form .
only question was whether what had happened Solicitors : Godfrey, Rhodes, Firth, and Co.,
amounted in law to desertion . agents for J. W . Piercy, Huddersfield .
The facts are stated in the head -note.
Bargrave Deane for the petitioner.
BUTT, J. found the plea of desertion esta - | JudicialCommitteeofthe Privy Council.
blished , and on that ground, coupled with the
adultery, granted the petitioner a decree nisi
with costs . Saturday, Nov . 30, 1889.
Solicitors, Waterhouse and Co. (Present : The Right Hons. Lord MacNAGHTEN,
Sir BARNES PEACOCK , and Sir R . Couch .)
THE ARRATOON APCAR. (a)
Friday, Nov. 1, 1889. ON APPEAL FROM THE VICE -ADMIRALTY COURT OP
THE STRAITS SETTLEMENTS (SETTLEMENT AT SINGA .
(Before Butt, J.) PORE).
ELLAM v. ELLAM . (a) Collision - Risk - Engines — Regulations for Pre
Affidavits - Rule 138 Divorce Court Rules - Descrip venting Collisions at Sea, art. 18.
tion of deponents.
The affidavit of a married woman must state the
Where one of the Regulations for Preventing
Collisions at Sea has been infringed by a vessel,
description of her husband , and that of an the fact that the infringement is comparatively
unmarried woman should give the description of venial, and that the reckless navigation of the
her parents in order to comply with the rules. other vessel is the principal and primary cause
This was an adjourned hearing of a wife's of the collision , does not justify the court in
petition for divorce on the grounds of adultery , absolving the vessel guilty of infringement from
bigamy, and desertion . blame unless necessity for such infringement is
At the former hearing (see 87 L. T. 72) the established .
bigamous marriage and desertion were proved , This was an appealby the owners of the steamship
but the adultery of the husband was not fully Hebe from the decision of the judge of the Vice
established to the satisfaction of the court. Admiralty Court at Singapore in a damage
The learned judge who tried the case gave action holding the Hebe alone to blame for a
leave to complete the evidence by the affidavits collision with the steamship Arratoon Apcar.
of two respectable witnesses. There had already The collision occurred about 3.35 a.m . on the
been a commission to America to examine wit | 22nd May 1888 in the Straits of Malacca.
nesses,and it was to save the heavy expense of The learned judge below accepted the evidence
another commission, and owing to the court of the witnesses from the Arratoon Apcar and
having but littlemoral doubt that adultery had, disbelieved the evidence of the witnesses from
in fact, followed on the bigamous marriage, that the Hebe.
the court, as an exceptional favour, acceded to The appellants admitted that the Hebe was to
the request that the additional proof of adultery blame, but contended that, on the respondents'
should be furnished by affidavits, to be filed there evidence, the Arratoon Apcar was also to blame
by two persons of respectability. for breach oi article 18 of the Regulations for
The application being now renewed , affidavits Preventing Collisions at Sea , which is as follows :
- sworn the 21st Aug. 1889 — were tendered , Every steamship when approaching another ship so as
headed as hereunder : to involve risk of collision shall elacken her speed or
Evelina Richards, being duly gworn according to law , | stop and reverse if necessary .
deposes as follows : " I am the wife of James Richards. The facts of the case are sufficiently stated in
and reside at 1724 , Barker-street , in the city of Phila the judgment.
delphia, with my husband .”
Susie B . Richards.- “ I live at 1728, Cherry-street, Nov. 7. - The Attorney-General (Sir Richard
Philadelphia , and am twenty years of age. I am a | Webster, Q .C .) and Kennedy, Q .C . (with them
daughter ofMr. and Mrs. James Richards and a sister
(a) Reported by H . DURLEY-GRAZEBROOK,Esq., Barrister-at-Law . I
(a) Reported by J. P. ASPINALL and BUTLER ASPINALL, Esqrs ,
Barristers -at-Law .
Priv. Co.] THE ARRATOON APCAR. [Priv. Co.
J. P. Aspinall), for the owners of the Hebe, in | a-port,” and went himself to the wheel-house
support of the appeal. to make sure that the order was carried out.
Sir Walter Phillimore and Hollame, for the He saw his vessel beginning to come round before
owners of the Arratoon Apcar, contra. he left the wheel. Then he went to the telegraph
The following cases were cited : and stopped the engines. The collision took place
almost immediately afterwards, the starboard bow
The Ceto, 62 L . T. Rep. N . S . 1 ; 14 App. Cas. 670 ;
The Beryl, 51 L . T. Rep . N . S. 554 ; 9 P . Div. 137 ; of the Hebe which was still going full speed striking
5 Asp. Mar. Law Cas. 321 ; the port bow of the Arratoon Apcar at something
TheLawBenares, 48 L. T. Rep. N . S. 127 ; 5 Asp. Mar. less than a right angle. The engines of the
Cas. 171 ; 9 P. Div. 17 ; Arratoon Apcar were not reversed until after the
The Khedive, 43 L . T. Rep . N . S. 610 ; 5 App. Cas. collision . On this state of facts it was contended
876 ; 4 Asp. Mar. Law Cas. 360 ;
The Jesmond , 25 L . T. Rep . N . Ś. 514 ; L. Rep. 4 by the learned counsel for the appellants that the
P . C . 1; 1 Asp. Mar. Law Cas. 150 ; Arratoon Apcar infringed the Regulations for
The Emme Haase, 50 L , T. Rep . N . S . 372 ; 9 P . Div. Preventing Collisions at Sea in three particulars.
81 ; 5 Asp. Mar. Law Cas. 216 ; They argued (1) that the Arratoon Apcar ought
The 'Rhondda,49 L. T. Rep . N . S. 210 ; 5 Asp . Mar. to have slackened speed before the green light of
Law Cas. 114 ; 8 App. Cas. 549. the Hebe came into view the third time; (2) that
Cur. adv. vult. the engines of the Arratoon Apcar ought to have
Nov. 30. - Judgmentwas delivered by been stopped and reversed at the time when the
Lord MacNAGHTEN. — The collision which led to officer in charge gave the order “ hard -a-port" ;
this litigation took place in the Straits of and (3 ) that at any rate the engines of the
Malacca on the 22nd May 1888, about 3.35 a.m ., Arratoon Apcar ought to have been reversed as
between the s.s. Hebe and the s.s. Arratoon Apcar. well as stopped before the collision . The learned
Both vessels were under steam alone. The wind | judge in the Vice- Admiralty Court, who does not
was southerly and moderate. The weather was | seem to have had the assistance of nautical
fine and the sky clear . The regulation lights of assessors, appears to have felt little or no difficulty
both vessels were in order and burning brightly . upon any point of the case except upon the one
Both vessels were considerably damaged by the question , whether it was the duty of the officer in
collision . Cross-actions were brought in the charge of the Arratoon Apcar to reverse as well as
Vice -Admiralty Court of the Straits Settlements. to stop . The excuse put forward at the trial for
Each vessel accused the other of being the sole not reversing was that the Arratoon Apcar had
cause of the disaster. The actions were con - | a left-handed screw , and that its action would
solidated , and tried together. Judgment was have “ deadened " the effect of the port helm if
given on the 3rd Aug. 1888 . The learned judge the engines had been reversed . With some hesi.
found the Hebe alone to blame. He accepted the tation the learned judge accepted this excuse,
account given by the witnesses for the Arratoon and exonerated the Arratoon Apcar from all blame.
Apcar and came to the conclusion that the Hebe Their Lordships are however compelled to take
was navigated with reckless negligence, and that a different view . They are advised by their
the persons in charge of her at the time of the nautical assessors that before the green light of
collision were, one and all, ignorant and in the Hebe appeared the third time there were
competent. From the decree founded on this sufficient indications to the officer in charge of
judgment the owners of the Hebe appealed . At the Arratoon Apcar (supposing him to have been
the hearing before their Lordships the learned a person of ordinary skill, using reasonable care)
counsel for the appellants did not deny that the to show that the two vessels were approaching
Hebe was to blame; but they contended that the so as to involve risk of collision . They are further
evidence of the respondents' own witnesses advised that a prudent seaman in the position in
proved that the Arratoon Apcar was also in fault. which that officer was placed by the conduct of
The facts of the case as they may be gathered those on board the Hebe would have stopped , or
from the evidence on behalf of the Arratoon Apcar at the least have slackened speed, until the course
are in substance as follows : The Arratoon Apcar, of the approaching vessel could be made out with
steering S . 60 degrees E ., sighted the masthead something like certainty . Under any circum
light and the red and green lights of the Hebe stances their Lordships would be slow to differ
when the two vessels were about five miles apart, from their nautical assessors on a question of
and apparently as nearly as possible on opposite navigation . In the present case, thinking as
courses. The Arratoon Apcar was going about they do that the risk of collision was not deter.
ten knots an hour at the time. She ported one mined when the Arratoon Apcar ported the second
point, and in about two minutes lost the Hebe's time, they see no reason for not giving effect to
green light,and then she steadied on that course. the advice which they have received. They are
Shortly afterwards the green light of the Hebe therefore obliged to hold that the Arratoon Apcar
appeared again about two points on her port bow . was to blame for not slackening speed in good
The Arratoon Apcar then ported another point and time, before the third appearance of the Hebe's
again lost the Hebe's green light, and kept on green light. The error on the part of the Arratoon
that course until the Hebe, being about two and a Apcar may seem venial compared with the mis
half points on the port bow , suddenly shut out | conduct of those on board the Hebe. But their
her red light and showed her green light for the Lordships have no power to absolve a vessel
third time. It is impossible to determine the which infringes the Regulations for Preventing
distance between the two vessels at this moment ; Collisionsat Sea from the consequences prescribed
but their Lordships think that the learned judge by statute, unless a plea of necessity is made out.
was probably right in supposing that it must The view which their Lordships have taken under
have been a little more or a little less than half a skilled advice renders it unnecessary to pronounce
mile. The officer in charge of the Arratoon Apcar | an opinion on the conduct of the officer in charge
at once saw his danger. He gave the order “ hard of the Arratoon Apcar after the Hebe's green light
May 3, 1890.) THE LAW TIMES . (Vol. LXII., N . 8 . - 333
CT. OF APP.] STUART v. DIPLOCK . [CT. OF APP.
appeared the third time. It was probably tool Willicombe and Oakley afterwards sold their
late then to prevent a collision . Their Lordships, reversion in the leases of the shops to Andrews
however, think it right to say that they are not and Stone, and they , in Sept. 1885, entered into
satisfied that the excuse for not reversing ought an agreement for a lease of No. 9, Mount Plea
to have been accepted as sufficient, nor are they sant, to the defendants. It was admitted that
convinced that the officer in charge of the Arratoon they took the premises with notice of the restric
Apcar after he saw the danger was justified in tive covenant by the lessors contained in the
going to the wheel before giving orders to stop . lease of 1879.
Though the time lost was short, there was an In March 1888 Andrews and Stone granted a
appreciable delay in complying with the regu : | lease of No. 9 to the defendants for twenty -one
lations. In the result their Lordships will humbly years, the lease containing a covenant by the
advise Her Majesty that the decree under appeal defendants with Andrews and Stone not to carry
ought to be varied by pronouncing the Arratoon on upon the said premises the businesses of
Apcar to blame as well as the Hebe, with the usnal “ ladies' underclothing (except rests and stock
consequences, including a direction to assess the ings,which the trade term ' hosiery ' includes),
damages sustained by the Hebe, and by dis- i juvenile outfitting (except vests and stockings),
charging the order as to costs. There will be no or sale of baby linen , being the business carried
costs of the appeal. on at the adjoining shop by Mrs. Stuart.”
Solicitors for the appellants, Pritchard and The defendants carried on at No. 9 the busi
Sons. ness of fancy drapers and hosiers, in the course
Solicitors for the respondents, Hollams, Sons, of which they sold certain articles of ladies'
Coward ,and Hawkesley. | underclothing, such as vests, drawers, and com
binationsmade of merino,wool, cotton, or Anglo
Indian (a mixture of silk and cotton ), but not of
linen .
Supreme Court of Indicature. This action was brought by Mrs. Stuart to
restrain the defendants from carrying on at No. 9,
Monnt Pleasant, the trades or businesses of ladies'
COURT OF APPEAL . outfitting, juvenile outfitting, or sale of baby
linen .
Dec. 10 and 11, 1889. The plaintiff contended that the sale by the
(Before Cotton, Bowen, and Fry, L.JJ.) defendants of the above-mentioned articles was a
STUART v. DIPLOCK . (a ) breach of the restrictive covenant contained in
APPEAL FROM THE CHANCERY DIVISION . the lease of No. 9, Mount Pleasant.
The defendants
Restrictive covenant- Particular business - Sale of l articles complainedcontended
of in the that they course
ordinary sold the
of
articles also sold in other business. their business as fancy drapers and hosiers, and
A covenant not to carry on the business of a ladies' that it was not carrying on the business of a
outfitter is not broken by a hosier selling, in the ladies' outfitter.
ordinary course of his business, certain articles The evidence showed that the business of a
also sold by a ladies' outfitter, although the articles ladies' outfitter included the sale of all articles of
80 sold form a substantial part of the business underclothing and of hats, caps, and hand .
of a ladies' outfitter. kerchiefs.
Fielden v. Slater (20 L. T. Rep . N . S. 112 ; L. | Kekewich , J . held that the articles complained
Rep.7 Eq. 523) distinguished . of formed an essential part of the business of a
Decision of Kekevich, J. reversed. ladies' outfitter , and that the defendants had
This was an appeal from Kekewich, J. broken the restrictive covenant, and granted the
In 1879Messrs. Willicombe and Oakley granted injunction claimed .
to one Stuart a lease of a shop, No. 10, Mount From this decision the defendants appealed .
Pleasant, Tunbridge Wells , for a term of twenty Everitt, Q .C . and Dauney for the appellants.
one years. The lease contained a covenant by There is no covenant here not to sell any parti
the lessors (who were the owners of the adjoin cular articles, but only not to carry on the parti
ing dwelling-houses and shops known as Nos. cular business. If the contention of the plaintiff
9, 11, and 12, Mount Pleasant) with the lessee
that the lessors would not " permit or suffer to iscluded
right, the sale of any one of the articles in
in the business of a ladies' outfitter would
be carried on in or upon the adjoining dwelling . be a breach of the covenant. The covenant is
houses and shops, known as Nos. 11 and 12, that the lessors will not consent to the business
Mount Pleasant, the trades or businesses of being carried on at No. 9, and it is doubtful
ladies' outfitting, juvenile outfitting, or sale of
whether that covenant can be enforced against
baby linen , nor give their consent to such trades the defendants. They referred to
or businesses being carried on at or upon the
shop No. 9, Mount Pleasant, now occupied by German v. Chapman, 37 L. T.Rep. N . S. 685; 7 Ch.
Div . 271 ;
Mr. Kempson as a wine merchant." Holt v. Collyer, 44 L. T. Rep. N . S. 214 ; 16 Ch.
Stuart carried on at No. 10 , Mount Pleasant, Div. 718 .
the business of ladies' outfitting, juvenile out
fitting, and sale of baby linen down to the time forChadwyck Healey (Warmington , Q .C . with him )
the respondent. — The defendants took the
of his death , in Aug. 1886 , since which time the lease of their house with notice of the covenant,
same business had been carried on by the plain
tiff in this action ,who was his widow , executrix, and it can therefore be enforced against them :
and universal legatee . The Nottingham Patent Brick and Tile Company v .
Butler, 54 L . T. Rep. N . S. 444 ; 15 Q . B . Div.
(a) Reported by W . C.Biss, Esq., Barrister-at-Law . 261 ; 16 Q . B . Div. 778 .
VOL LXII., N . S., 1590 .
334 - Vol. LXII., N . S.] THE LAW TIMES . [May 3, 1890.
CT. OF APP.] STUART v . DIPLOCK . [CT. OF APP.
The articles which the defendants sell are a sub- | not sold by ladies' outfitters ; they are also selling
stantial part of thebusiness of a ladies' outfitter, in the ordinary course of their business the
and therefore they have committed a breach of articles complained of which are sold by ladies'
the covenant. Fielden v . Slater (20 L . T . Rep . outfitters, and the question is, whether they are
N . S. 112; L . Rep. 7 Eq. 523) is in favour of the carrying on the business of ladies' outfitters.
plaintiff, The corenant does not restrain them from selling
COTTON , L .J.— This is a claim by a lady, who any of the articles sold by a ladies' outfitter. If
carries on the buisness of a ladies' outfitter at a there was a mere colourable omission of some of
house which she holds under a lease, to restrain the articles sold by ladies' outfitters it would be a
the defendants from carrying on the trade or different matter. It is admitted, however, that
businesses of ladies' outfitting, juvenile outfitting, there is no evidence of that kind here. There
or sale of baby linen , and she makes her claim on fore, in my opinion , assuming the covenant re
the ground that the defendants took the lease of stricts the defendants from carrying on the busi
their house with notice of a covenant entered ness of ladies' outfitters, there is nothing on the
into by their landlord with her predecessor in evidence to show that they are carrying on the
title, which she says prevents them carrying on bnsiness of ladies' outfitters, though they sell
the business which they are carrying on. The some of the articles sold by ladies' outfitters.
covenant, so far as it relates to the house The respondents relied on the case of Fielden v.
occupied by the defendants, was that the landlords Slater ; but in that case the covenant was not
would not give “ their consent to such trades or merely not to use or occupy or permit to be used
businesses being carried on at or upon the shop or occupied a certain house " as an inn , public .
No. 9 , Mount Pleasant.” It has been suggested house, or tap -room ,” but also not to use it for
whether there is anything in that covenant which the sale of certain specified articles - namely,
can be enforced against the defendants. The spirituous liquors, ale, or beer. In my opinion,
question whether a covenant which only bound we ought not to bold that the defendants should
the lessors “ not to consent " to the carrying on be restrained from selling thearticles complained
of certain businesses in the house occupied by of, and the appealmust be allowed.
the defendants can be enforced at all against Bowen , L .J. - I am of the same opinion . I will
the defendants under the principle of Tulk v. assume that of which I am by no means con
Moxhay (2 Phil. 774) is one of some importance. vinced, that
I do not intend to give any opinion , because it tion not to the defendants are under an obliga
carry on the business of a ladies'
has not been seriously argued by the appellants . outfitter . Assuming that to be so, it is not the
But weare all of opinion that the defendants are same thing as an obligation
not carrying on the business of ladies' outfitters. part of the same business. not to carry on any
The business of a
The evidence shows that thebusiness of a ladies' ladies' outfitter is one business,
outfitter is to sell all articles of ladies' under a hosier is another and distinct the business of
clothing, and it appears that ladies ' outfitters two businesses overlap each otherbusiness. The
in the sale of
also sell other articles, such as hats, caps, and some four common articles. A man
handkerchiefs. The defendants are carrying on become a ladies' outfitter by sellingdoes in
not
the
a hosier's and draper's business, and are selling ordinary course of a wholly distinct business
some articles which are often sold by drapers, some of the articles which are sold by ladies'
but are also sold by ladies' outfitters. Keke
wich , J. came to the conclusion that the business outfitters. In my opinion , the obligation is not
of a ladies' outfitter could not be successfully broken by taking an essential part of the business
carried on without the sale of these articles, and of a ladies' outfitter if that part was also an
essential part of the business the defendants were
that therefore the defendants by selling the bona fide carrying on ; nor even by taking a
articles were carrying on the business of ladies' substantial part of the former business if that
outfitters, and on this ground he granted the part was also a substartial part of another
injunction . In my opinion, that view is
erroneous. If the articles sold by the defendants business which the defendants were not pro
hibited from carrying on . Of course the case
made up the business of a ladies' outfitter it would be different if the defendants, under the
would be a different thing ; but the sale of one colour of carrying on the business of hosiers,
or two articles essential to the business of a really carried on the business of ladies' cutfitters.
ladies' outfitter is not enough to constitute a The appeal succeeds, and the action must be dis
carrying on of the business of a ladies' outfitter. missed with costs.
For example, the sale of stays or corsets is part
of the business of a ladies' outfitter ; but could it FRY, L .J. - The plaintiff sues on the ground
be said that anyone who was carrying on the that the defendants took with notice of a core
business of making and selling stays or corsets nant in the lease of 1879 , by which, as to the
was carrying on thebusiness of a ladies' outfitter ? houses Nos. 11 and 12 , the lessors covenanted not
As Bowen, L .J. said in the course of the argu to permit certain businesses to be carried on , but
ment, if a man sells a number of articles which a as to No. 9 they only covenanted not to consent
ladies' outfitter does not sell, and does not sell a to these businesses being carried on . I am not
number of articles which a ladies' outfitter does convinced that the defendants, who occupy No. 9,
sell, though he sells some of them can it be said could be restrained on the ground that they had
that he is carrying on the business of a ladies' | notice of such a covenant. But even if they
outfitter ? The sale of one or two articles could , the plaintiff must fail. The covenant is
essential to the business of a ladies' outfitter is not to carry on three businesses mentioned ; it
not enough to make the vendor carry on the does not relate to any parts of these businesses,
business of a ladies' outfitter . Here the defen - | or to the sale of any particular articles . A cove
dants,who are drapers,are selling in the ordinary nant of this sort must not be stretched beyond
course of their business many articles which are the ordinary meaning of the words. The business
May 3, 1890.) THE LAW TIMES . (Vol. LXII., N . S. - 335
CT Gp App.] GRAY v. SMITH . [CT. OF APP.
of a ladies' outfitter is principally confined to | should retire and transfer his interest to the
underclothing, and a ladies' outfitter sells some plaintiff in consideration of the plaintiff under
goods sold by hosiers and some goods which are taking to pay him 1001. on the 1st Jan . 1890 , and
not sold by hosiers. The two businesses overlap | 1001. on erery succeeding 1st Jan. for the nine
as to the sale of some goods. Can it be said that following years.
a hosier is carrying on the business of a ladies' On the 31st May 1888 the defendant Bennitt
outfitter because in the course of his business wrote and signed and gave the plaintiff tbe fol
he sells four articles which are sold by a ladies' lowing document, which was written on paper
outfitter ? If that is so, the converse will be true on which the nameof the firm was printed :
in the case of a ladies' outfitter selling articles Rough draft. - Memorandum from Gray, Smith , and
sold by a hosier, and the result will be that every Bennitt. This is to record that, in consideration of
hosier will be a ladies' outfitter and every ladies' his
William Graythe
assigns or sum
his executors paying Hpounds
of one hundred . C . Bennitt or
on the
outfitter will be a hosier. I think, therefore, that 13t Jan . 1890, and the sum of one hundred pounds
the plaintiff has no cause of action ,and the appeal every 1st Jan . for the nine succeeding years, H . C . on
must sncceed . Bennittagrees towithdraw from the firm of Gray, Smith ,
Solicitors for the plaintiff, Sole, Turner, and and Bennitt.
Knight, agents for W . C . Cripps and Son, In July 1888 the defendant Bennitt repudiated
Tunbridge Wells, the agreement, and refused to execute any assign
Solicitor for the defendants, Edward Chester. ment to the plaintiff of his share and interest in
the partnership assets, and the plaintiff then
commenced this action , claiming specific per
Friday, Dec. 13, 1889. formance of the agreement, and a declaration that
the partnership had been dissolved by virtue
(Before Cotton, BOWEN , and Fry, L .JJ.) thereof, and that the plaintiff was entitled to the
GRAY v. SMITH . (a ) partnership business and assets. The defendant
APPEAL FROM THE CHANCERY DIVISION. Smith did not put in any defence, and at the time
Partnership - Interest in land — Agreement to of the trial had in fact carried out his part of the
agreement. The defendant Bennitt pleaded ,
retire- Informal agreement- Statute of Frauds among other things, that there was no sufficient
- Specific performance- Right to use name of memorandum of the agreement within the
retired partner. Statute of Frauds, having regard to the fact that
G ., S., and B . carried on business under that name it involved the sale of an interest in land , and he
as partners, a part of the partnership property counter-claimed for dissolution of the partner
consisting of a lease. In pursuance of an agree ship .
ment among the partners that S, and B . should At the trial the plaintiff gave evidence to the
retire from the business and assign their respec effect that it was a term of theagreementbetween
tite shares to G ., the following memorandum was him and the defendants that he should be entitled
signed by B., and given to G .: " Rough draft. to use the firm name,“ Gray, Smith,and Bennitt,"
Memorandum from G ., S ., and B . - This is to until the retiring partners had been paid out.
record that, in consideration of G . or his exe It also appeared that the parties intended
cutors paying B . or his assigns the sum of 1001. signing a more formal document than the rough
on the 1st of Jan . 1890 , and the sum of 1001, on draft.
every 1st Jan. for the nine succeeding years, B . Kekewich , J. held (61 L . T. Rep. N . S. 481)
agrees to withdraw from the firm of G ., S., that theagreement involved theassignmentof an
and B .” It was proved that the parties conteme interest in land, and came within the 4th section
plated the signing of a more formal contract. of the Statute of Frauds, but that the rough
Held , that the memorandum implied that B . should draft contained all the essential terms of the
retire at lonce, and should assign his share to agreement, and was a sufficient memorandum
G ., and that G . should indemnify him against within the statute, and gave judgment in favour
the liabilities of the partnership ; and , therefore, of the plaintiff, but held that he was not entitled
as the memorandum contained all the essential to continue to use Bennitt's name as a part of the
terms of the agreement, it was a sufficient memo name of the firm .
randum within sect. 4 of the Statute of Frauds. Bennitt appealed from this judgment, so far as
Held also , that, as there was no express agreement it was in favour of the plaintiff, and the plaintiff
for the assignment of the goodwill, G . had no appealed from that part of the judgment which
right to continue to use B .'s name by carrying on presented him from using Bennitt's name.
business in the name of the old firm .
Decision of Kekewich, J. (61 L. 7. Rep. N . S . 481) wasH .noTerrell for the defendant Bennitt.- There
concluded agreement between the parties.
affirmed . The documentwas a mere memorandum , and was
At the date of the agreement mentioned here subject to the approval of Bennitt's solicitor.
after the plaintiff Gray and the defendants But if there was a concluded agreement, it is an
Smith and Bennitt carried on business in part agreement dealing with an interest in land, and
nership as soap manufacturers, part of the part therefore within the 4th section of the Statute of
nership property consisting of some leasehold Frauds. It is not a sufficient memorandum
premises, the lease being vested in the three within that section , as it does not express all the
partners . In May 1888 , the firm being in pecu . material terms of the agreement. It does not
niary difficulties, it was agreed among the mention the agreement between the parties that
partners that the defendant Smith should retire the plaintiff should give Bepnitt an indemnity ,
from the firm and transfer his share therein to nor does it state the date at which Bennitt is to
the plaintiff , and also that the defendant Bennitt withdraw from thepartnership, or make any pro
(a) Reported by W . C. Biss, Esq., Barrister-at-Law . | vision that Bennitt shall assign his share in the
335 - Vol. LXII., N .8.] THE LAW TIMES. ( May 3, 1890.
CT. OF APP.] Gray v. Smith. [CT. OF APP.
assets to Gray. An obligation to indemnify | nature of the agreement, and need not be stated
cannot be implied in this case : in thememorandum . It was urged that it was
Bainbridge v. Kinnaird , 8 L. T . Rep. N . S. 417 ; necessary that the terms of the indemnity should
32 Beav. 346 . be stated . That argument would go to this :
Crackanthorpe, Q.C . and Upjohn, for the plain that if the memorandum had said that full indem
tiff, were called on only with reference to his nity should be given , without stating its nature
cross-appeal.-- The name of the old firm is im . or terms, that would not suffice. I cannot agree
pressed on a large stock of soap, and if he is not with this. In my opinion, in the absence of ex.
entitled to use the name he will not be able to press stipulation for anything else, a covenant by
sell it. The other partners having agreed to the plaintiff would be the proper indemnity .
withdraw from the partnership , the plain Then the appellant says that the plaintiff relies
tiff has a right to an assignment of the on an alleged stipulation that he should be at
property of the partnership . That includes the liberty to use the appellant's name. The judge
leasehold premises and the goodwill, and an below has not given the plaintiff a right to do so,
assignment of the goodwill confers the right to and the plaintiff now does not insist on any right
use the name of the old firm : to use the defendant's name beyond such right
Levy v. Walker, 39 L . T. Rep. N . S. 654 ; 10 Ch. (if any) as according to the general law is to be
Div . 436 ; inferred from the agreement to retire. The
Banks v. Gibson , 34 Beav. 566. absence of such a term cannot, therefore,be treated
[Bowen, L .J. referred to Lindley on Partnership, as an objection to specific performance of the
5th edit. 446. ] agreement if otherwise complete. It is urged that
Curtis Price for Smith . the memorandum is insufficient, because it does
not state the timeat which Bennitt was to with .
COTTON , L . J. - The first appeal to be con - | draw . I think the true construction of the
sidered is that of the defendant Bennitt. His memorandum is that he is to withdraw forthwith ,
first point is, that there was no conclnded agree and there is, therefore,no uncertainty . Then, as
ment at all, and that the memorandum was to the cross -appeal of the plaintiff, in my opinion
only given subject to its being approved by the plaintiff has no right to continne the use of
his solicitors. I agree with Kekewich , J. in the name of Bennitt in any way which might
thinking that this was not so . The evidence subject him to further liabilities, and Keke
shows that the parties intended to have a formal wich , J. has decided that the plaintiff is not
agreement drawn up, and the drawing it up they entitled to use the name. The appellant says :
would leave to their solicitors. But they did not " I take all the property of the firm ; the goodwill
intend to leave to their solicitors whether they is part of that property, and includes the use of
should make aa agreement, but only how the the name of the firm .” Wemust look to the con
agreement they had made should be carried out. tract, and see whether there is any stipulation to
Bennitt's evidence does not appear to me to sup: assign the goodwill. A contract to retire from
port his contention , and the form of the document, the firm bas not the same effect as a contract
which is not in the shape of a proposal, but dis expressly bargaining for the assignment of the
tinctly states an agreement to have been entered goodwill. The agreement by Bennitt to with
into, is strongly against his argument. The appel. draw from the firm entitles the plaintiff to an
lant next contends that the agreement is within assignment of Bennitt's share of the stock , but
the 4th section of the Statute of Frauds, as being does not imply that the plaintiff is to be at liberty
an agreement relating to an interest in land, and to continue to nse Bennitt's name. As to Levy
that the memorandum in writing is insufficient to v. Walker, which was relied upon by the plaintiff,
satisfy the statute, on the ground that it does not there a gentleman of the name of Levy had mar.
include all the material terms of the agreement ried Mademoiselle Charbonnel, a partner in the
alleged to have been entered into . We have not firm of Charbonnel and Walker. Mr. and Mrs.
beard any argument on the former point, but, Levy could not be subjected to any liability by
as at present advised , I agree with Keke- the use of the name of “ Charbonneland Walker "
wich , J. that the agreement is within the 4th by the defendant, as the use of that name could
section , so that à memorandum in writing is not suggest to anyone that Mr. or Mrs. Levy
necessary. But is thememorandum insufficient ? was a partner. Then there was an agreement for
When a memorandum is intended to be worked the sale of the leasehold premises, trade fixtures,
out by a more formaldocument, it is not necessary stock -in -trade, goodwill, and business as a going
that every stipulation which would be contained concern to Miss Walker. That was quite different
in the latter document should be indicated , but from the present case, where there is only an
the memorandum must contain all the essential agreement by a partner to retire from the firm .
terms of the agreement. It is urged that there In that case it was held that the contract for
is no stipulation that Bennitt shall assign his sale of the goodwill included a right to use the
share in the assets, and that there is no stipula - | name of the firm . Here there is no such
tion that he shall be indemnified . But I think Bowen , L .J. concurred .
that any person instructed to carry out an agree
ment that a partner should retire from the firm , FRY, L .J.— I am of the same opinion . We all
would carry it out by making him assign his of us, however, think that it is desirable to
share in the assets, including his share inis the modify the declaration as to the use of Bennitt's
leaseholds. What the retiring partner
partner is to name, so as to show that it is not intended to
assign is not what would be coming to him on a prevent the plaintiff from disposing of the esist.
winding-up, but his share in the assets in their ing stock which bears the nameof the firm .
existing state ; and a right to indemnity against | Solicitors for the plaintiff, Torr, Janeways,
the rent and covenants of the leases and against Gribble, and Oddie, agents for Dibb and Clegg,
the debts of the partnership is implied from the ' Barnsley.
May 3, 1890 .] THE LAW TIMES. [Vol. LXII., N . 8. - 337
CT. OP APP.) Re SHEPHARD; ATKINS v. SHEPHARD. [CT.OF APP.
Solicitors for the defendant Smith, Pilgrim | tative was constituted , and for administration as
and Phillips, agents for Smith, Smith, and Co., | soon as a representative was constituted .
Sheffield . On the 21st Aug. Pollock , B . in chambers
Solicitors for the defendant Bennitt, Inder appointed Mr. Pratt interim receiver in this
maur and Brown , agents for F . W . Fisher, action , with power to act at oncebefore his secu.
Doncaster. rity had been given .
On the 22nd Aug. the adjourned summons in
Cory v. Shephard came on again , no revivor
Wednesday, Nov . 20, 1889. having taken place and the heir-at-law not being
(Before Cotton , BOWEN ,and Fry, L .JJ.) served. Pollock , B . appointed Mr. Pratt, upon
Re SHEPHARD ; ATKINS v. SHEPHARD. (a) first giving security, receiver of the rents,
profits, and moneys receivable in respect of the
APPEAL FROM THE CHANCERY DIVISION. interest of Shephard in the above-mentioned
Death of judgmentdebtor - Appointmentof receiver freehold property , subject to the rigbts of prior
- Abatement - “ Equitable execution " — Order incumbrancers, the balances due from him to be
XVII., rr. 1, 4 - Order XLII., r. 23. paid towards satisfaction of the judgmentdebt.
S. was entitled to freehold property subject to a The order as drawn up appeared to be made in
mortgage, and a judgment creditor applied for the presence of the defendants, though Mark
the appointment of a receiver by way of equitable Shephard was in fact dead. Pratt did not give
execution . The hearing of the application was any security under this order.
adjourned, and S. died. Two days after his On the 17th Sept. letters of administration
death the receiver was appointed without the of the estate of Mark Shephard were granted
action being revived or the heir-at-law being to Stuart Shephard . The action was on that day
brought before the court. discontinued as against the widow , and on the
Held, that there was no jurisdiction to make the same day an order was made continuing the
order, as there was no one to representhis estate ! receiver until further order.
before the court. On the 20th Sept. an order was made allowing
DecisionXVII.,
of Chitty the plaintiff to continue the action against Stuart
Order r. 1,, J.applies
affirmedand
. keeps an action Shephard in the character of administrator.
alive when on the death of a party there is a On the 25th Sept. an order was made for
devolution of his interest upon a person who is a | administration of Shephard's estate , and for con
party to the action ; but it does not apply when tinuing the receiver.
the devolution is upon a person who is not a On the 25th Oct. Cory moved before Chitty , J .
party .
Whether execution at common law can be issued
that the receiver might be ordered to appropriate
all moneys received in respect of the rents and
against the estate of a deceased person without profits of Mark Shephard's real estate in or
notice, quære. towards satisfaction of the judgment debt.
Re Parker ; Cash v. Parker (40 L . T. Rep. N . S. Chitty , J. refused the application , on theground
878 ; 12 Ch . Div. 293) distinguished . that as the receiver in Cory v . Shephard had not
“ Equitable execution ” is not execution properly given security he was not competent to act, and
80-called , but is merely equitable reliefwhich can that if he had given security he could not have
be obtained only by an order of the court founded interfered with any receiver appointed in the
on the fact thatlegalesecution cannot be obtained , administration ac ion ; and wasalso of opinion that
and the Judicature Act gives no right to such there was no jurisdiction to make the order for a
relief where there is no difficulty in obtaining | receiver in Cory v. Shephard , as it wasmade after
legalexecution. Shephard's death and in the absence of the heir.
On the 25th Oct. 1888 R . W . Cory recovered at-law , in whom the property had then by law
judgment in an action in the Queen 's Bench become vested .
Division for 20321. and costs against Mark Shep | Cory appealed.
hard and Son, the partners being Mark Shephard Romer, Q .C . and Haldane for the appellant.
and his son Herbert. The case of Ex parte Evans (41 L . T. Rep. N . S.
Cory having discovered that Mark Shephard
was entitled to certain freehold property subject 565; 13 Ch. Div. 252), which was not cited to
Chitty, J., showshis decision , that the judgment
to a mortgage, on the 3rd Aug. 1889 took out a creditor could obtain no priority by the appoint
summons in Cory v . Shephard , the action in the ment of the receiver in Cory F. Shephard as he
Queen's Bench Division , to have a receiver had not given
appointed over that property. The summons appellant, havingsecurity, was erroneous. The
came before Pollock , B ., and was adjourned to entitled to priorityobtained equitable execution, is
. The rights of the receiver
the 15th Aug. On that day the solicitors for in the Queen 's Bench action prevailed against ali
Cory pressed for an order, but, Shephard's clerk
producing a certificate that Shephard was seri persons office
except the interim receiver, and,when his
came to an end by the appointment of the
ously ill, Pollock , B . adjourned the summons to legal personal representative, on the receiver in
the 22nd. the Queen 's Bench action giving security his
Shephard died on the 20th Aug. On the same authority related back to the date of the order
day the action of Atkins v. Shephard was com
menced by a creditor, on behalf of himself and appointing that an
him . Order XVII., r. 1, provides
action shall not abate by the death of
all other the creditors of Shephard , against any of the parties.
Shephard's widow and Stuart Shephard ,his heir . to apply to the court inTherefore the
Cory was entitled
action for the appoint
at-law , asking for administration of his estate, ment of a receiver, and to do so ex parte. Hecould
and for a receiver until a legal personal represen have obtained execution at law against the
(a) Reported by W . C. Biss, Esq., Barrister-at-Law . i chattels of Mark Shephard after his death , with
338 - Vol. LXII., N . S.] THE LAW TIMES. [May 3, 1890.
Ct. OP APP.] Re SHEPHARD ; Atkins v. SHEPHARD. [CT. OP APP.
out notice to his executors. He was entitled to l pointment of a receiver be likewise made after
obtain an order for the appointment of a receiver the judgment debtor's death ? In my opinion , the
of the real estate of Mark Shephard without whole argument in favour of that view arises from
giving notice to the persons to whom it passed a confusion in the use of the term “ equitable
on Mark Shephard's death , because the appoint- | execution .” The term itself is an erroneous ex .
ment of a receiver by way of equitable execution pression . It ismerely a term which has often been
is equivalent to legal execution. In Manchester | used as a short mode of expressing the fact that
and Liverpool District Banking Company V . by a receivership order the same benefit might
Parkinson (22 Q . B . Dir. 173) the order appoint- be obtained in equity as in common law was
ing a receiver of the furniture of the judgment obtained by legal execution ; but it is quite a
debtor was rescinded , on the ground that there different thing from execution at common law .
was no legal impediment to obtaining execution A receiver was appointed by way of equitable
in the ordinary course of law , and there were no relief only when difficulties existed in the way of
special circumstances showing it to be just or obtaining legal execution . Under the old practice
convenient that a receiver should be appointed . of the Court of Chancery, a plaintiff came into
In Eldridge v. Burgess (38 L . T . Rep. N . S. 232 ; equity in order to obtain the same benefit which
7 Ch. Dir. 411) the right to sue had devolved he might have got by means of his legal right if
opon someone not before the court. They also there had been no impediments in his way. It
referred to is, however, wrong to say that the Judicature
Judiceture Act 1873, s. 25, sub -sect. 8 ; Acts gave any right to obtain this equitable
Order XLII., r. 23 ; relief against the estate of a legal debtor when
The Anglo-Italian Bank v. Davies, 9 Ch . Div . 275 ;
Re Parker ; Cash v. Parker, 40 L . T. Rep. N . S. there was no difficulty in obtaining execution at
law , and if any practice contrary to this has
878 : 12 Ch. Div. 293 ; grown up of late, such practice is in my opinion
Jackson v. North -Eastern Railway Company , 30 entirely wrong. But, passing from that, does the
L . T . Rep. N . S. 779 ; 5 Ch . Div. 814 .
Byrne, Q .C . and Dibdin , for the plantiff in the appointment of a receiver stand in the same
position as legal execution ? By the appointment
administration action, and Kingdon, for the of a receiver the judgment creditor obtains relief
administrator, were not called on . | arising no ; from the mere fact of having obtained
COTTON , L . J. - This is an appeal from a decision judgment at law , but relief to which under the
ofChitty, J. A judgment for a sum ofmoney bad circumstances he is entitled in equity against the
been obtained in an action of Cory v. Shephard , in estate of the judgment debtor ; the appointment
the Queen 's Bench Division , against Mark Shep - of a receiver, therefore, cannot be obtained with .
hard and his son. Mark Shephard afterwards out an order of the court - a new order giving the
died . Immediately after his death the action of applicant equitable relief. Such an order can only
Atkins y . Shephard , for the administration of his be obtained against a person over whom the court
estate , was commenced,and an order appointing an has jurisdiction . In the present case the order
interim receiver was made. On the day following, was obtained against property which by reason
Mr. Cory, the judgment creditor in the Queen's of thedeath of the defendant and by operation
Bench action , applied to and obtained from of law had then become the property of his heir ,
Pollock , B . an order appointing the same person and the order was obtained without notice to the
receiver, upon his first giving security, of Mark heir. It is against the heir this order is made,
Shephard's interest in certain realestate,although and thecourt had no jurisdiction over him , he not
Mark Shephard was in fact then dead . Chitty, J. having had notice. It is said that the rules and
decided that the judgment creditor could obtain orders admit of this being done. It is said that
no priority by this appointment of a receiver on by Order XVII., r. 1, the action is kept alive,
the ground that it was only effectual on the because it was brought against father and son .
receiver giving security, which he had never done, The action , no doubt, is alive against the son , but
his attention not having been called to a case of not against the deceased father. That rule
Ex parte Evans, which was a decision of this applied when by reason of the death of a party
court. It is admitted now that that view was there was a devolution of his interest upon a
erroneous, and it was not contested on this appeal. person who was a party to the action ; but it did
But the learned judge also expressed an opinion not apply when the devolution was upon a person
that the court had no jurisdiction to make an who was not a party to the action . The action
order appointing a receiver against an estate was not alive against him . The right to make
which at the time the order was made was no an order against the father was gone by reason of
longer the estate of Mark Shephard , for he was his death , and no order could be made against
then dead , but had become the estate of his heire | the property which had been his until the person
at-law , who was not a party to the Queen 's Bench on whom it had devolved had been made a party
action . In my opinion, there was no jurisdiction to the action. Reference has been made to the
to make that order. It was said that the order order made by Fry, L . J. in Cash v. Parker . There
was an equitable execution , and that, as legal | the plaintiff was a person entitled to take out
execution might be had after the death of a judg. | administration if no one else did , and there, by
ment debtor, there was no reason why equitable analogy to the practice in the Probate Division of
execution should not be granted after the death of appointing a receiver pendente lite, the plaintiff,
the judgment debtor as well as legal execution. on his undertaking to take out administration ,
I by no means assent to the proposition that legal was appointed receiver in order to protect the
execution could have been obtained after the judge property until a legal personal representative
ment debtor's death at once, without any other was constituted . In that case, therefore, a person
steps being taken . I think there are strong who was entitled to invest himself with the legal
reasons for saying that it could not. But as right to the property was before the court , and
suming that it could, can an order for the ap . I the object of the order was to protect the pro
May 3, 1890 .) THE LAW TIMES . [ Vol. LXII., N . 8. - 339
CT. OF APP.] NIEMANN B. NIEMANN. [Cr. OF APP.
perty until he had done so. The argument is only when the applicant had shown that he had
based on a misconception of Order XVII., r. 1. obtained judgment, and had sued out the appro
That rule does not enable the court to make an priate writs of fi. fa . or elegit, and was then met
order adverse to a person not a party to the by certain difficulties arising from the nature of
action,without hearing what such person mayhave the property of the de'otor - then , and then only,
to say,or without taking the legalmeans to bring | did the Court of Chancery grant a receiver in
such person before the court. In my opinion aid of the enforcement of legal judgments for
this receivership order was made per incuriam , legaldebts. Reliefby way of the appointment of a
the court having no jurisdiction against the heir. | receiver proceeded on the view that no execution
The decision of Chitty, J, is therefore right, could be had on the writ. Further, the appoint
though he decided the case on different grounds. ment of a receiver was an act requiring the exer
BOWEN, L . J. - I am of the same opinion . A cise of judicial power on thepart of the court. The
judgment had been obtained against Mark Shep circumstances I have referred to would have to
hard and his son Herbert in the Queen 's Bench be proved before the court would make the order.
Division. Mark Shephard died , and departed The relief therefore granted by the Court of
this world and the suit at the same time. After Chancery was not an execution of the judgment.
wards the plaintiff in the Queen's Bench action All this has been summarised by judges at
obtained an order ex parte (drawnup erroneously, different times under the expression “ equitable
stating that the defendants appeared in person ) for execution ; " but I am apprehensive that the con
a receiver of the rents and profits oftheproperty of densed expression has led to misapprehension ,
the dead man. That property had been his , but by and to the idea that the obtaining the appoint
his death and by law it had passed to somebody ment of a receiver is a mere form of execution
else, and it is snggested that an order may be which can be obtained without the attention of
made ex parte against property which no longer the court being called to the circumstances which
belongs to the dead debtor, but which belongs to create the equity on which alone the jurisdiction
somebody else who has not been served with arises. It has been said that in all cases at
notice of the application . That, I think cannot, common law execution could be had without
be right, for it seems contrary to natural justice. notice against the estate of deceased persons. On
But that is not all. It is said that this can be that point I will confine myself to expressing
done because the appointment of a receiver is great doubt whether it is so.
only equitable execution , and that at common law Solicitors : Deacon,Gibson, and Medcalf ; R . J.
execution might issue as of right without any Witty ; Mark Shephard and Son .
one being served . I doubt if it is the practice
at common law that you may as of right execute
a judgment obtained against a debtor who has
since died , against his executor. If such is the Tuesday, Dec. 10, 1889.
practice, I am not aware of it. There are certain
statutory provisions which allow execution after (Before Cotton, Bowen, and Fry, L.JJ.)
death, but I think notice is required for these NIEMANN v. NIEMANN. (a)
proceedings. Certainly this is not a case in APPEAL FROM THE CHANCERY DIVISION.
which at common law execution could issue as of Partnership - Dissolution - Power of one partner
course. Now , equitable execution is not merely to compromise debts - Power to accept shares in
execution , but it is relief granted because mere
execution at law could not be obtained ; it is a satisfaction of debt - Power of receiver.
substitute for legal execution where that cannot One partner has no power,withoutspecial authority
be had. It is wrong to say that an order for a or a special course of dealing, to accept shares
receiver may beobtained in the Chancery Division in a company in satisfaction of a debt due to the
ex parte withoutnotice being served on the person firm , even though the shares are fully paid up.
entitled to the property to be affected. But it is In an action for winding-up a partnership, the
said that it can be done under Order XVII., r. 1. court has no jurisdiction to authorise a receiver
To my mind, that is not so ; rule 1 must be read to do anything which it cannot authorise one
with rule 4 [his Lordship read the rule, and partner to do against the will of the other.
continued ] : The fact that there was a co -defen | Weikersheim 's case (28 L . T . Rep. N . S . 653 ;
dant who survived kept alive the action against L . Rep. 5 Ch. App. 831) distinguished .
him , but not as against the dead man so as to The plaintiff C . G . A . Niemann and his brother,
enable proceedings to be taken against the person the defendant H . W . F . Niemann , carried on busi
entitled to the property of the dead man without ness in partnership as merchants in Fenchurch
notice. Order XLII., r. 23, does not govern this street.
case, as it deals with execution , not with the By an indenture dated the 3rd June 1887
appointment of a receiver, and, if it did , still the it was agreed that the partnership between them
order could not be made ex parte. should be forthwith dissolved , and that the
Fry, L .J.- The appellant appears to me to defendant should undertake the whole burden of
assert that the appointment of a receiver is a the liquidation of the firm and the payment of
kind of execution which may be had against a the creditors, and should indemnify the plaintiff
dead man 's estate withoutnotice to his executors, against the claims of the creditors ; that neither
and giving priority to the person obtaining it of the partners should make any claim upon the
over other creditors. The idea that the appoint other in relation to the partnership , but the
ment a receiver Itis isa quite of execution defendant should pay and account to the plaintiff
entirelyoferroneous. kind true that the oldis for his share of any dividends which might
be
Court of Chancery exercised this jurisdiction | received in respect of any debts or claims which
where a legal judgment had been obtained, but 1 (a) Reported by W . O. Biss,Esq., Barrister-at-Law .
340 - Vol. LXII., N . 8.] THE LAW TIMES. (May 3, 1890
CT.OF APP.] NIEMANN v. NIEMANN . [CT. OP APP.
should be received by him , after all the creditors | be wound -up in what he considered the best
of the firm had been paid . way the partnership in dispute here. The action
All the principal assets of the partnership had was brought to take the accounts of the partner
been realised with the exception of a debt of ship and for a receiver, the plaintiff and defen .
about 29,0001. due from Messrs. Bultzingslowen dant being partners and having carried on a
and Co., of Java . All the partners in this firm business which a few years ago was dissolved by
were dead, and the estate of the surviving partner agreement. What the judge has done has been
was not sufficient to pay the creditors. It was to appoint a receiver, but he has appointed a
proposed to form a limited company in Amster receiver with liberty to come before him for the
dam to work certain sugar factories and coffee purpose of discussing the terms of a proposed
estates in Java belonging to that firm , and to arrangement to be entered into. There is a large
allot fully paid -up shares to the firm of the debt due to the firm which has not been paid ,
plaintiff and defendant in satisfaction of their and of which the defendant says that he has no
debt. The defendant approved of this arrange chance of getting payment except by the arrange
ment, and intended to accept the shares under ment which he desires to carry out. He has
the power given him for winding-up the partner . filed an affidavit which contains what may be
ship . The plaintiff did not approve of it, and called a skeleton of the arrangement, and he says
commenced the present action against the defen that they have a very large claim on a certain
dant, claiming to have the partnership wound -up firm , but that there are many other creditors,
under the direction of the court, and an injunc and that the only way of getting anything is
tion restraining the defendant from compromising to enter into an arrangement to form a company
or settling the claim on the estate of Bultzing which will take over the property, and that
slowen and Co. without the consent of the plain certain shareswill be handed over to the different
tiff, and for a receiver. creditors. That is in fact all that is stated in
The defendant entered an appearance to the the affidavit of the defendant. To-day we get a
action, and immediately moved before Kekewich , detailed statement, from which it appears that
J.,asking that he mightbe authorised by the court there is to be not a limited company in England ,
to carry out the proposed compromise, or that he but in Holland. We have no evidence what a
might be appointed receiver to get in the out limited company in Holland is, but it is said to
standing debts of the partnership . The affidavits be a limited company. Well, this is strongly
in support of the motion alleged that the objected to by the plaintiff, one of the partners
arrangement would be a very beneficial one, and in the firm , and he says that the learned judge
the only way of realising any part of the debt. had no right or power to compel him to assent to
Kekewich , J. approved generally of the pro a compromise to be entered into by the defen
posed compromise, and ordered ,upon 20001.being dant on these terms. I do not enter into the
paid into court by the defendantas security for question whether it is properly called a compro
the eventual share of the plaintiff under the deed mise or not, but I hold that he had no power to
of dissolution , that the defendant should be authorise the defendant to enter into such an
appointed receiver, with liberty to compromise arrangement. How does the defendant justify
the claim in question upon terms to be approved it ? He could not exercise the powers given to
by the judge in chambers, the defendant to pro him by the deed made between the two brother3
duce details of the scheme of compromise. except under the authority of the court. He
From this decision the plaintiff appealed. must get the leave of the court to do it , and the
Cozens- Hardy, Q . C. and C. James for the appel court could not give any extra powers beyond
lant. The court has no jurisdiction to force this the authority which he had as partner. The
arrangement on the plaintiff . It is not a simple effect of the action was simply a limit on his
compromise of a debt, but a scheme by which the power, so as to prevent him exercising that power
two partners will become members of a new without the sanction of the court. And then we
speculative company in a foreign country and come to the question, whether the court could
subject to unknown liabilities. North , J. refused sanction the agreement which he proposes to
to sanction such a scheme in an administration enter into . Is there anything in this deed which
action : enables him to do that ? I do not think it would
Re Crawshay ; Dennis v. Crawshay, 60 L . T . Rep . be contended, subject to one case quoted by Mr.
N . S. 357. Ingle Joyce to which I shall presently refer, that
Napier Higgins, Q .C . and Ingle Joyce for the there would be power for one partner, though he
defendant. The termsof the arrangement are to was the partner who was carrying out the
be brought before the judge in chambers, winding-up of the affairs of the partnership, to
will take care that thedefendant is relievedandfromhe enter into such an arrangement unless some
all personal liability with reference to the new power was given him by the other partner ; and
company. A receiver can always accept a smaller here in this deed , which is laudably short, I
sum than that which is due, by way of com cannot see anything which will give him any
promise, and therefore can accept money's worth special power to enter into any arrangement like
instead of money. The defendant has power to this. He is made the person to wind -up the con
accept those shares in payment of the debt : cern ; he is to pay all the debts,and I think it
West of England prevents (though that question has not been
Murch , 48 L . T . and
Rep .South
N . S.Wales District
417 ; 23 Bank138v.;
Ch. Div. much argued ) the plaintiff from interfering with
Weikersheim 's case, 28 L . T. Rep . N . S. 653 ; the exercise of the powers given by this deed to
L . Rep . 8 Ch. App. 831 ; the defendant, his brother. The defendant is to
Lindley on Partnership, 5th edit. 141. take upon himself the whole burden of the liqui
Cozens-Hardy in reply. dation of the firm and payment of the creditors,
COTTON, L .J. - This is an appeal against an and indemnify the plaintiff against the claims of
order made by Kekewich , J., who ordered to l the said creditors, “ and neither of the said
May 3, 1890 .) THE LAW TIMES . [Vol. LXII ., N . 8. - 341
Cr. Of App.] NIEMANN V . NIEMANN. * [CT. OF APP.
partners will make any claim upon the other of appointment of the defendant as receiver was
them , but the said H . W . F . Niemann ” - that is, simply machinery for the purpose of enabling
the defendant — " shall pay all the existing debts that to be carried out in such a way as that
of the firm and indemnify the said C . G . A . the court might have control over it. I think
Niemann " — that is, the plaintiff — " against the Kekewich , J. was acting in the way he thought
same,and shall also pay and account to him for most advisable for the interests of both these
the share of any dividendswhich may be received parties, but in my opinion it was not right in the
in respect of any debts or claims after all the cre court to authorise such a scheme to be carried
ditors of the firm shall have been paid out of the into effect under the guise of compromising a
existing assets of the firm ." Well, that does not claim on a debtor to the firm . The only thing,
givehim any specialpoweras regards dealing with therefore, I think we can do is altogether to
the assets ; it only defines the burden he under - | discharge the order, as it was made simply for
takes, and ,sofar as there are any indicationsthere, that purpose without prejudice to any other
it shows that he would not have any authority to application to be made for the appointment of a
take shares in a new company, because the deed receiver. I doubted whether it would not be
supposes primâ facie that what will be received best to leave the receiver as appointed , but to
by him in respect of the assets of the firm would declare that this scheme could not be carried into
be divisible as dividends between himself and his effect ; but I think , as the sole object of ap
partner. I think that is valuable in this way ; pointing this receiver was to carry into effect the
it looks to the firm being wound-up, and the | scheme which has been proposed , the best course
assets of the partnership being realised in the is to discharge the order altogether,and the appel
ordinary way, which wonld be to collect and get lant must have the costs both here and below .
payment of whatever could be got - payment in There is only one case which I think I ought to
full, or if not, payment of such sum as could be refer to, which was cited as an authority for
obtained. Then , has the court any power to do what has been done, and that was Weikersheim 's
what is proposed by appointing a receiver ? case ; and I refer to it especially , because it was
That seems to be the point most relied upon quoted as sanctioned by the opinion of Lindley ,
here on the part of the respondent. It is very L .J. in his book on Partnership. The case there
true the receiver is appointed on behalf of both | was really this : that one member of a firm of
the parties to the action ,but it is only for carrying bankers took as security, and caused to be
into effect on behalf of both of them those powers registered in the name of the bank, shares in
which are settled and determined by the contract company which involved liability , and it was said
between them . There is nothing to enable ihe that that is an authority in favour of the receiver
court to authorise the receiver to make a new here doing what he is proposing to do . When
contract between the parties, or to assume to one looks at the case one finds this : that the
himself that which by the contract between the judges who decided it (James and Mellish ,
parties is not given by one to the other. There- | LJJ.) were of opinion that, in the business of
fore in my opinion it would be wrong to hold that bankers, it was so ordinary to take shares in com
the court can by appointing a receiver enable the panies as a security for a debt, that it was part
receiver to do that which it cannot authorise one of the implied contract between them ; but then
partner to do against the will of the other. Then | James, L .J. points out that in fact all the
how does the case stand bere ? I do not enter partners assented to this being done. I rather
into the question whether it is correct or not that think that Lindley, L . J .'s statement here has
this proposed schemewill give the most profitable been a little misunderstood . He does say, “ one
result to the two partners if they like to accept partner has implied authority to accept in the
it. The only question we have here is, whether ordinary course of business security for a debt
the plaintiff, one of the partners, is right in due to his firm ." I do not think there is any
saying that the defendant has no power to do doubt about that. Then he goes on : “ And
this, and the court was wrong in purporting to where one member of a firm of bankers accepted
give him authority to do it, for it is not merely a as security for moneys due to the bank shares in a
payment of a debt, or a compromise of a payment company,and caused them to be registered in the
of a debt, but it is sanctioning the defendant to name of the bank, it was held that he had implied
enter, on behalf of himself and his partner, into a authority so to do, although the consequence was
speculation in order if possible, with others, to that he thereby rendered himself and his co
work out the estate of a debtor of the firm in partners liable as contributories to the company."
such a way as to produce a profitable result. In At first sight the sentence does look as if it did
my opinion the court has no power either to not refer to the authority of the partners in that
authorise the defendant to do it without the case, but was a general statement of the law that
appointment of a receiver, or to authorise the there would be an implied authority to accept
receiver to do it when the contract between the shares under these circumstances. But, when we
parties does not authorise it. Then , what ought look to the case to which he refers, we see that
we to do as regards this order ? There is some that was not its effect, and I cannot think that he
little difficulty in it from this, tbat the order only intended to lay down as a generalrule of law that
porports to be the appointment of a receiver, what was done in Weikersheim 's case could be
and it was pressed upon us that the appointment done on the ground that the judges held in that
of a receiver, in consequence of the difficulties case that a partner in a bank would have that
between the parties, is almost of course, and implied authority , though they really decided it
therefore there can be no valid objection to that on the ground that, in that particular case, the
I do not think one can quite deal with it in this partners had known and assented to what was
way. The appointment of a receiver under this | done. I thought it right to mention this because
order was simply made for the purpose of enabling that statement in Lindley , L .J.'s book might mis
that scheme to be carried into effect, and the lead those who do not look at the authority
342 - Vol. LXII., N . S.] THE LAW TIMES. (May 3 , 1890.
CT. OF APP.] Re Rhodes ; Rhodes v. RHODES. [CT. OF APP.
referred to, which I always like to do, even in a | winding-up is, in my opinion , not the case. I
book like Lindley, L . J.'s. In my opinion , the think, therefore, that, looked upon from the
appellant is right, and the appeal must be general point of view , the contention cannot be
allowed . successfully urged . Then it is said that the deed
BOWEN , L .J. - I am of the game opinion . I of theshows 3rd June 1887 makes a difference,
that the defendant was to be made so
and
think the decision turns on a very broad and a that completely the dominus of the winding-up that
very short point, that here there is no power under he has power to do this. I find nothing in that
the deed to do what is desired . It seems to me, deed in support of such a contention . It appears
for the reasons given by the Lord Justice, that
the court has no power to clothe a receiver with to me only to contemplate an ordinary liquidation
an authority which would wholly transcend the of the partnership affairs, with this exception ,
that the plaintiff is not to interfere in matters of
nature of the original arrangement between the discretion arising in that winding -up . It does not
parties. It does not seem to meto be necessary
to decide that in no case can anything but cash | clothe the defendant with any larger power, or
be taken by way of compromise. One can imagine anying
power, of doing anything else than a liquidat.
partner might do. As has been already
that it would depend on the circumstances of each observed by Cotton , L . J., the third section of the
particular case whether anything can be received , which refers to the plaintiff accounting to
as an equivalent for cash ; but here it is really not deed
a compromise at all - it is the mere substitution the defendant for bis share of any dividends
received , looks as though the intention of the
for the payment of a debt, of a speculation to take parties was that these outstanding claims were to
shares in a new and unformed company in
Amsterdam , the object of which is by the be got in by way of receipt of dividends on the
employment of the assets to recoup the creditors. claim , and not by way of any such arrangement
That is something far more than a compromise, as is now proposed . In my opinion , the appoint
and therefore I think it is not what the court can ment of the defendant as receiver would not en
impose on an unwilling partner. I agree entirely large his powers, because, whilst the court by
with what hasbeen said about Weikersheim 's case. appointing the defendant receiver protects his
The whole ratio decidendi there was what was the operations and gives him power of having re
ordinary scope and authority of a partner in a course to the court for assistance and advice, it
does not enable him to do that which as against
banking business . It seems clear, as soon as the
the plaintiff the existing convention or agree
judgments of James and Mellish , L .JJ . are ment between the parties does not justify . I
referred to , that both base their views on the repudiate the notion that the court has a general
broad foundation of their commercial opinion as discretion to do what it thinks best for the
to what is the ordinary business of a banker ; but parties in the winding-up of their affairs, which
James, L .J. assumes also as a reason in that par
ticular case that the authority was not only to be are the subject of agreement and obligation
implied from the scope of business of the partner between them . The argument urged upon us,
ship , but was actually an express authority con that the court can do what it thinks best, cannot
hold . There appears to me to be no authority
ferred by the knowledge and assent of the other really cited in support of that contention . I will
partner. That shows that Weikersheim 's case is say nothing more about Weikersheim 's case except
not an authority for the proposition for which it that I entirely agreein the commentsmade upon it.
was cited , and that the passage in Lindley , L . J.'s
With regard to the case pressed upon us, and
book if it did imply that (and perhaps it does not) perhaps
would be an oversight. especially upon me, of the West of Eng
FRY, L .J. - If I were not differing from the land and South Wales District Bank v. Murch, I
will only say that it has nothing to do with this
decision of the learned judge below I should pro case as it appears to me. I will only state that
bably say nothing , but I will shortly state the the conclusion which I arrived at in that case
reasons why I concur with my learned brethren . | (whether rightly or wrongly seems for the present
The arrangement contemplated in this case is purpose immaterial) was that there was a com
shortly of this kind : that the claim which the promise by an executrix, and that that com
partnership had against the Java firm shall be promise came under Lord Cranworth 's Act. It
given up to a new company which is intended to has nothing to do with the power of a receiver
be formed , and that the partners in the old or appointed in a suit , the object of which is the
dissolved firm shall become shareholders in a winding-up the affairs of a dissolved partnership .
concern which is to be carried on with the pro I think , therefore, the order must be discharged ,
perty of the Java firm . In other words, instead | and that theorder suggested by the Lord Justice
of remaining creditors of the Java firm , they are is right.
to becomepartners by way of a limited company Solicitors : Druces and Attlee ; Hollams, Son ,
in the business of their debtors. That is the
nature and whole scope of the arrangement pro Coward , and Hawksley.
posed. Now , it appears to me that such an
arrangement as that is not within the ordinary Feb. 15 and 17.
powers of a partner who is charged with the
liquidation of a dissolved partnership . It is not (Before Cotton, LINDLEY, and LOPES, L .JJ.)
necessary to say whether he is bound to receive Re RHODES ; RHODES v. RHODES. (a )
all the property which he collects in the form of APPEAL FROM THE CHANCERY DIVISION .
cash , or whether, under some circumstances, he Lunatic - Implied obligation to pay for necessaries.
may proceed in another way. That point does Where
not require decision ; but that he has power to necessaries are supplied to a lunatic by a
enter into a company or partnership to carry on person who knowshim to be a lunatic, there is an
the business of the debtor to the firm which he is ( a)Reported by W . C . Biss, Esq., Barrister-at-Law .
May 3, 1890.] THE LAW TIMES . [ Vol. LXII., N . 8. - 343
CT. OF APP. ] Re RHODES ; RHODES v. RHODES. [CT. OF APP.
implied obligation on the part of the lunatic to ! brother and his sisters, and as the legal per
pay for them . sonal representative of his father, for several
Dictum in Re Weaver (48 L . T. Rep. N . S. 93 ; sums expended in the support of the lunatic in
21 Ch . Div.615 ) overruled . excess of the income of her own property. The
Decision of Kay, J. (ante, p. 22) affirmed . case raises several questions, one of which is of
This was an appeal from a decision of Kay, J. considerable importance ; and although in the
The facts (which are fully stated in the report view which we take that question is not necessary
in the court below , ante , p . 22) were shortly as to the decision of the case, yet, as it has been
follows: fully argued , we think we ought to express our
Eliza C. Rhodes , a lunatic not so found by in opinion upon it. That question is,whether there
quisition , had certain property of her own which can be an implied contract on the part of a
produced a small income. Her brother placed lunatic not so found by inquisition to repay out
her in an asylum at the cost of 1401. a year, being of her property sums expended for necessaries
more than the lady's private income. The supplied to her. Now , the term " implied con
brother died , and his son , A . C . Rhodes, and tract ” is a most unfortunate expression , because
other members of the family , continued to pro there cannot be a contract by a lunatic. But,
yide for the maintenance of the lunatic in the whenerer necessaries are supplied to a person
samemanner. On the death of the lunatic intes who by reason of disability cannot himself con
tate, A . C . Rhodes, as executor of his father, and tract, the law implies an obligation on the part
administrator of that person to pay for such necessaries out
so much of theoflunatic's
the intestate,
estate asclaimed
would repayto retain
the of his own property. It is asked , can there be
extra cost of the maintenance of the lunatic an implied contract by a person who cannot
which had been defrayed by his father and him contract
self and brothers and sisters.
? The answer is, that what the law
implies on the part of such a person is an obli
In an administration action brought by the gation , which has been improperly termed a
next of kin of the lunatic against A . C . Rhodes, contract, to repay money spent in supplying
the chief clerk refused to allow the extra pay necessaries. I think the expression " implied
ments made as above mentioned towards the contract ” is erroneous and a very unfortunate
maintenance of the lunatic . one. In the case of Re Weaver,which was before
A . C . Rhodes then took out a summons to vary this court, we did not decide the question whether
the chief clerk 's certificate by allowing this extra there could be what has been called an “ implied
expense to be repaid out of the lunatic's estate on contract " by a lunatic, and Jessel, M .R . did
express an opinion that there could be no im .
the
saries,ground thatthe
and that theevidence
paymentsdidwere for neces
not show that plied contract on the part of a lunatic, as he was
they were made with an intention of making a all incompetent to make an express contract. We
gift of the same. agree with theview that I have now expressed ,
Kay, J. held that it had not been proved that and I have stated it in order to prevent any
the placing of the lunatic in an expensive asylum being doubt arising in consequence of the question
was a necessary, and also that the payments mentioned left undecided in Re Weaver, though it was
made were in the nature of a gift. . But then, though there may be an
From this decision A . C . Rhodes appealed. implied obligation on behalf of the lunatic, the
Renshaw , Q .C . and W . F. Phillpotts for the necessaries
appellant. — There is an implied contract on the | implying
must be supplied and paid for under
circumstances which would justify the law in
part of a lunatic to pay for necessaries supplied spent upon anthemobligation to repay the money
. I have no difficulty as to the
for bis use : question whether this expenditure was for neces
Manby v , Scott , 1 Sid . 112 ; 2 Sm . L . C . 471 ;
Wentworth v . Tubb, 1 Y . & C . C . Cas. 171 ; on appeal, saries, for the law is well established that, when
the necessaries supplied are suitable to the posi
6 Jur. O . S . 980 ;
Wentworth v. Tubb, 2 Y . & C . C . Cas. 537 ; tion in life of the lunatic, an implied obligation
Williams v . Wentworth , 5 Beav. 325 ; to pay for them out of his property will arise.
Nelson v . Duncombe, 9 Beav. 211 ; But then the provision of money or necessaries
Howard v. Digby, 2 CI. & Fin .634 ;
Re Gibson , 25 L . T. Rep . N . S. 551; 7 Ch . App. 52 ; must be made under the circumstances which
would justify the law in implying an obligation.
Brockwell v. Bullock , 22 Q. B. Div. 567. His Lordship then discussed the evidence, and
But in Re Weaver (48 L . T. Rep. N . S. 93 : 21 came
Ch . Div . 615 ) a doubt on this point was expressed lunaticto inthemaking conclusion that the relatives of the
the payments for her main
by Jessel, M . R . and Brett, L .J. The point was, tenance did not intend to constitute themselves
however, not decided in that case. Then , con creditors against her estate. ]
sidering the position in life of the lunatic, the
amount paid for her maintenance in the asylum is.LINDLEY, L ,J. — The question we have to decide
whether a sum of 11001. is payable as a debt
was not too large. It is therefore a necessary ,
and the appellant is entitled to be repaid out of out of the assets of the deceased lady. The
the estate. The evidence shows the money was claim is made on the ground that the money
has been properly expended for necessaries.
not paid as a gift. I think that the facts are all in favour of the
Millar, Q.C. and Curtis Price for the respon money having been reasonably and properly
dent. — The amount paid was more than was expended for necessaries. Against that it is said
necessary , and the evidence shows that the sum that the lady might have been supported at an
advanced beyond the amount of the lunatic's expense which her own income would have been
income was intended as a gift. sufficient to meet ; but, as in the case of a claim
COTTON, L .J. - This is an appealagainst a deci- | made for necessaries against the estate of an
sion of Kay, J., refusing to allow a claim made by infant the claimant is not always bound to show
the defendant on behalf of himself and his i that he sent the infant to the cheapest school
344 - Vol. LXII., N. 8.] THE LAW TIMES. (May 3, 1890.
CT. OP APP.] BUTLER v. BUTLER ; BUTLER v. BUTLER AND BURNHAM . (CT. OP APP.
that could be found , so in this case the fact 88 . 30, 31 - Divorce Court Act 1860 (23 & 24
that some cheaper place of residence might Vict. c. 144), 8. 7.
possibly have been found for this lady is not Upon the intervention of the Queen 's Proctor
necessarily an answer to this claim , assuming in a case where a decree nisi for diskolu
that it can be made. The question whether an tion of marriage has been pronounced on
implied obligation arises in favour of a person the wife's petition it is not necessary, in order to
who supplies a lunatic with necessaries is a deprive her of her right to a decree absolute to
question of law , and in the case of Re Weaver a prove that she has been guilty of a matrimonial
doubt was expressed whether there was an obli. offence ; for by virtue of sects. 30 and 31 of the
gation on the part of the lunatic to repay . I Matrimonial Causes Act 1857 the wife may be
confess I cannot participate in that doubt. I deprived ofher right to a dissolution of marriage
think that that doubt has arisen from the un . if there has been a withholding of material facts
fortunate terminology of our law , owing to which through collusion , although no matrimonial
the expression “ implied contract ” has been used offence is proved .
to denote an obligation implied by law which is not The case of Alexandre v. Alexandre (23 L . T .
a contract at law . Obligations of this class have Rep . N . S. 268 ; L . Rep. 2 P . & D . 164) considered .
also been called obligations quasi ex contractu . This was an appeal from an order of Butt, J.
But that a lunatic's estate may be liable for rescinding a decree nisi for divorce obtained by
necessaries has been settled as farback as Manby Emma Butler against her husband Robert
V. Scott (ubi sup.),where the three learned judges Mrs.
Butler.
who heard that case, after holding that an infant On the 26th Nov. 1887 Mrs. Butler presented a
might be bound for necessaries provided for him , petition
proceeded : “ And what has been said of an ground offor divorce from her husband on the
his cruelty and adultery. The husband
infant is applicable to an idiot in case of house filed an answer denying the charges against him ,
keeping." I do not doubt that the cost of neces and presented a cross-petition for dissolution of
saries can be recovered against a lunatic's estate the marriage on the ground ofthe wife's adultery
in a proper case. [His Lordship then dealt with with Walter James Burnham by reason of which
the evidence, and agreed with the conclusion she had in 1885 given birth to a female child ,
arrived at by Cotton , L .J.] Mabel Winifred . Mrs. Butler, by her answer,
LOPES, L . J. - If a person provides necessaries denied the adultery charged against her, and
for a lunatic, and intends to be repaid for so alleged that her husband was father of the child
doing and to constitute a debtagainst the lunatic's born in 1885 . The two cases were consolidated ,
estate, I do not doubt that the law implies an and were heard
obligation on the part of the lunatic's estate to 23rd June 1889. byAfter Butt, J. with a jury on the
the first day's hearing,
repay the amount spent on such necessaries. It which took place on a Saturday , and before the
seems to me strange that the law to this effect second day's, Mr. and Mrs. Butler and their
could be doubted . I have known several cases solicitors entered into the following agreement :
in the Queen 's Bench Division of this kind : Butler v . Butler ; Butler v, Butler and Burnham .
Action brought for goods sold and delivered ; Petitioner
plea , insanity ; replication , necessaries. And I court and ofto respondent'
give evidence of cruelty to satisfaction of
s adultery with Miss Wissburg ,
have never heard any doubt expressed that that and if court satisfied on that evidence decree for disso
was a perfectly good replication. [His Lordship lution to go . Petitioner accepts her husband 's denialas
then discussed the evidence, and came to the to adultery with Mrs. Johnson and withdraws such
same conclusion as the rest of the court.] Then charge, and being satisfied that the witnesses who
deposed to adultery with Smith and Simpson are mis
the question arises whether these payments were taken as to identity, withdraws such charge. The
for necessaries. I should not myself have felt husband 's petition to be withdrawn As to alimony , no
any difficulty as to that, because what are neces application for same to be made, but the husband in lieu
saries has to be determined according to the thereof to pay a lump sum of 1501. to his wife. The deed
circumstances of each particular case, and things of separation to be cancelled . The wife to maintain
the child Mabel Winifred . The husband to pay the
may well be necessaries in one case which would costs of the suit.
not be so in another. The question wbat are On this agreement being brought to the know
necessaries must always be considered with refe
rence to the reasonable requirements of the ledge of Mrs. Butler's counsel they considered it
person under disability , having regard to his improper, and resolved to proceed as though it
means and station in life. The appeal fails , and did not exist. The husband, however, acted upon
must be dismissed with costs. it,and the leading counsel for Mr. Butler on the
next day of the trial stated that he and his junior,
• Solicitors : Grover and Humphreys; Spencer, in consequence of instructions they had received ,
Gibson, and Co. did not mean to cross-examine Mrs. Butler , but to
withdraw , except so far as to defend Mr. Butler
from the charge of adultery with Mrs. Johnson .
Friday, Jan . 17. The jury found that Mr. Butler had committed
(Before Cotton, LINDLEY, and LOPES, L .JJ.) adultery with Miss Wissburg, but not with John
son, Smith , or Simpson, and that he had been
BUTLER v.BUTLER
BUTLERv. AND
BUTLER.
BURNHAM . (a) guilty of cruelty . They also found that Mrs.
APPEAL FROM THE PROBATE ,DIVORCE, AND ADMIRALTY Butler had not committed adultery with
DIVISION (DIVORCE ). Burnham .
Divorce- Collusion — Withholding material facts
Butt, J. thereupon pronounced a decre nisi, but
referred the case to the Queen 's Proctor.
Rescission of decree nisi , Divorce and Matri. The Queen 's Proctor filed a plea charging that
monial Causes Act 1857 (20 & 21 Vict. c. 85 ), 1 material facts had been withheld from the know
(a) Reported by A. J. SPENCER,Esq., Barrister-at-Law . | ledge of the court, and that the decree had been
May 3, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 345
CT. OP APP. ] BUTLER v . BUTLER ; BUTLER v . BUTLER AND BURNHAM . [CT. OF APP.
obtained by collusion between the husband and suit are or have been acting in collusion for the purpose
wife, and asked that the decree nisi might be he of obtaining a divorce contrary to the justice of the case ,
rescinded . Mr. and Mrs. Butler both traversed and may under the direction of the Attorney -General,
by leave of the court, intervene in the suit, alleging
this plea , and the issue was tried before Butt, J.
such case of collusion , and retain counsel, and subpona
and a jury. witnesses to prove it.
Evidence was adduced which tended to show Buszard , Q .C . and Priestley (Bargrave Deane
that Mrs. Butler had coinmitted adultery with with them ) for Mrs. Butler. The court should
Burnham , and that Burnham was the father of
the child Mabel Winifred, who, as it was proved, not have rescinded the decree nisi, as no matri
monial offence was proved at the second trial:
was registered in his name. Butt, J. left three Divorce and Matrimonial Causes Act 1857, ss. 30, 31;
questions to the jury , namely : Were material
facts withheld from the knowledge of the court ? The Divorce Court Act 1860, s. 7.
mere suppression of material facts is not
Was there collusion ? Did Mrs. Butler commit sufficient; a matrimonial offence must be proved :
adultery with Walter Burnham ? Alexandre v. Alexandre, 23 L . T. Rep. N . S. 268 ;
The jury found that material facts had been L . Rep. 2 P . & D . 164.
withheld from the court, and that there had been Collusion hus been defined to be the suppression
collusion, but they were unable to agree whether of a matrimonial offence :
Mrs. Butler had committed adultery with Burn Crewe v. Crewe, 3 Hagg. Eccl. Rep. 123.
ham . Upon these findings, Butt, J. made an Here the jury have not found that the wife has
order discharging the decree nisi.
Mrs. Butler appealed from this order, on the committed adultery, and that being so , there is no
ground that the decree nisi should not have been collusion within the Act.
dissolved , no matrimonial offence having been Lockwood, Q .C . and Jacques, for the Queen 's
proved against her. Proctor, were not called on.
The material portions ofthe Matrimonial Cotton , L .J.— This is an appeal from a judg
Causes Acts are as follows :
Divorce and Matrimonial Causes Act 1857 ment of Butt, J., who, upon the Queen 's Proctor
(20 & 21 Vict . c. 85) : intervening andupon thefindings atwhich the jury
arrived , refused to make a decree absolute, and
Sect. 30. In case the court, on the evidence in relation discharged the decree nisi. I will not enter into
toadultery
any such
haspetition , shall not ,beorsatisfied
been committed shall findthat
thatthealleged
the peti. the question as to what Butt, J. ought to have
tioner has during the marriage been accessory to or done when this agreementwasbroughtbefore him ,
conniving at the adultery of the other
marriage , or has condoned the adultery complain
party to the though I have some doubt as to whether he ought
or that the petition is presented or prosecuted in colla made to have gone on with the case, or ought to have
sion with either of the respondents, then and in any of any decree nisi after the fact was discovered .
the said cases the court shall dismiss the said petition . But he communicated with and sent the papers
Sect. 31. In case the court shall be satisfied on the to the Queen 's Proctor, who intervened , and then
evidence that the case of the petitioner has been proved ,
and shall not find that the petitioner has been in any there was a trial before a jury, who came to the
manner accessory to or conniving at the adultery of the concluzion to which I will refer presently. The
other party of,
to themarriage, or has condoned the oradultery ground of the Queen's Proctor's intervention was
complained or that the petition is presented prose a strong suspicion, in the circumstances brought
cated in collusion with either of the respondents, then before him , that the decree was obtained by
the court shall pronounce a decree declaring such collusion and suppression of material facts. The
marriage to be dissolved. Provided always, that the
court shall not be bound to pronounce such decree if it petition of the wife charged the husband with
shall find that the petitioner has during the marriage cruelty and adultery with four named persons ;
been guilty of adultery, or if the petitioner shall in the then there was a counter petition by the husband
opinion of the courthave been guilty ofunreasonabledelay charging the wife with adultery with a particular
in presenting or prosecuting the petition, or of cruelty person . After the case had gone on for one day,
towards the other party to the marriage, or of having Saturday,and bad been adjourned, on the Sunday
deserted or wilfully separated himself or herself from the the solicitors acting
otherreasonable
party before theadultery for the wife and husband
out excuse, or of suchcomplained of,andorwith
wilful neglect mis . met together, and they came to an agreement,
conduct as has conduced to the adultery . which has been read to us. The agreement was
Divorce Court Act 1860 (23 & 24 Vict . c. 144) : this, that the charge of adultery against the
husband with the particular named persons
Sect. 7. Every decree for a divorce shall in the first should not be proceeded with ; that the wife
instance be a decree nisi not to be made absolute till should bring forward such evidence as would
after the expiration of such time not less than three
months from the pronouncing thereof, as the court shall satisfy the court of his adultery with another
by general or special order from time to time direct ; named person, and then that the husband should
and during that period any person shall be at liberty , not press the charge against his wife. It is very
in such manner as the court shall by general or special true that Mr. Buszard ,when it wasbrought before
thebehalf
in that
order why from time to time direct, to show
cause said decree should not be made absolute
by reason of the same having been obtained by collusion
him on the Monday, saw the vice of the agree
| ment, and refused to act upon that, and concluded
or by reason of material facts not brought before the the case as if no such agreement had been come
court ; and on cause being so shown, the court shall to, but the husband did in fact act upon it, and
deal with the case by making the decree absolute, or by did not support the charge he had made against
reversing the decree nisi, or by requiring further inquiry, the wife, and did not anyway cross-examine her.
or otherwise as justice may require ; and at any time
during the progress of the cause, or before the decree is The jury have found this, and it is not a finding
made absolute , any person may give information to Her which is altogether satisfactory — that there was
Majesty's Proctor of any matters material to the due | collusion between thehusband and wife. Then the
decision of the case ,who may thereupon take such steps jury do not say that the wife had not been guilty of
as the Attorney-General may deem necessary or expe adultery,but do not come to a conclusion whether
dient ; and if from any such information or otherwise
the said proctor shall suspect that any parties to the i she had been or not, and as to that issue there
346 — Vol. LXII., N . S.] THE LAW TIMES. (May 3, 1890.
CT. OF APP.] BUTLER v. BUTLER ; BUTLER v. BUTLER AND BURNHAM. [CT. OP APP.
was no verdict at all. Then the question is, was , because I think there may be collusion indepen
that finding at which they arrived sufficient to dently of the question as to whether it is proved
justify the conclusion at which the learned judge ultimately that one of the parties has in fact
has arrived , and upon which he acted ? I think | been guilty of the act complained of, where the
it was. Under the Act the decree was first of parties have agreed together not to bring before
all to be a decree nisi ; then there was to be a the court facts which are relevant to the case,
certain timebefore it could be made absolute, and which might enable the court to decide
and during that period the Queen 's Proctor, and one way or the other . And here we can see
in certain cases other persons, could apply to pre that certain facts were never submitted to the
vent the decree nisi being made absolute. Then first jury, or put before them in such a way as
what is said is this : His Lordship read sect. | they ought to have been by the husband present
7 of the Act of 1860, and proceeded :) That ing his charge. They were before them in a
power was given to the Queen's Proctor to bring certain way, and they came to the conclusion in
the matter before the court ; and certain direc the way they did ; but I think it would be wrong
tions are given as to what shall be done by the to assume, after what has taken place, that they
court for the purpose of ascertaining whether would have doubted as the second jury did . We
those charges against the decree nisi being made cannot possibly surmise what the jury in the
absolute can be supported or not. It is argued first case would have done, because in our cpinion
here that the court has no right to withhold an the proper facts were not broughtbeforethe jury,
actual decree from the petitioner unless she has and whether the petitioner ought or ought not to
been found guilty of a matrimonial offence . But have been found guilty of the charge against her,
I do not at all understand that. It cannot be said there was collusion between the husband and
that she can obtain a decree nisi followed by a wife as to the prosecution of the petition . In
decree absolute, if under the original Act, of which my opinicn the judgment of Butt, J. is right,and
this is a mere amendment in certain details, she the appeal fails.
could not have obtained a decree nisi in the LINDLEY, L . J . - If we were to accede to this
original suit. Sects. 30 and 31 of the Act of | appeal it appears to mewe should be doing that
1857 to my mind are conclusive that she is not which would be a perfect scandal. The facts are
to be deprived of the decree simply and only very short. Mr. and Mrs. Butler were married
if she is guilty of a matrimonial offence, but some time before 1882 ; in 1882 they separated .
that the court is prevented from making a In 1885 she had a child alleged to be illegitimate,
decree in her favour if collusion has been found and registered under the nameof its supposed
against her. In my opinion it is very important father, not her husband. Afterwards, in 1887 ,
that any case brought before the court shall she sought in the Divorce Court for a dissolution
be conducted as cases ought to be, that judg- of her marriage on the grounds of her husband's
ment shall be obtained fairly, and that the court cruelty and adultery. He presented a cross
shall not give judgment where it finds not that petition against her , alleging adultery with the
the facts suppressed might lead to the conclusion person to whom I have alluded . In the course
that a matrimonial offence has been committed , of the trial during an adjournment the solicitors
but that the parties by an agreement between for both sides met, and they signed an agree
them have prevented material facts from being ment to the effect that she should prove just
brought before the court. And that is what is enough to get a divorce, and that he should not
meant by collusion . I do not suppose it could be object. Then this letter is handed to the counsel
said here that, if there was collusion, the peti for the wife ; he sees the difficulty, and he takes
tion was not prosecuted in collusion . it is not the bold course of going on just as if that had
necessary that it shall be presented in collusion , not been written . The husband does nothing of
but presented or prosecuted . It is said there is the kind ; he acts upon the letter, he does not
no collusion here because facts were not brought oppose the divorce in any serious way, and he
before the court which led to the conclusion that | does not adduce any witness in support of his
the wife had committed a matrimonial offence. counter-allegation , which he still believes to be
Perhaps they were not ; but, in mymind, in such a true. It is not that he withdraws the opposi
state of things, it is not a question of whether it tion on the ground that he has made a mistake
appears that the wife is guilty of a matrimonial no such thing - but in pursuance of this arrange
offence ; but if the partiesagree together not to put ment ho ceases to oppose his wife's petition , and
before the courtmaterial facts relevant to the issue under those circumstances a decree nisi is
tried , not facts material in this sense that they obtained . There is an absence of material facts
necessarily prove anything one way or the other, beyond all doubt or question. It is perfectly idle
there is collusion . I think all facts are material and absurd to suppose that the facts which we
if they are substantial facts which will tend to have to deal with , and which were withheld by
assist the court in arriving at a conclusion the husband from the jury, were not material for
whether the charge made was right or wrong. the consideration of the jury who had to try the
Here the husband agreed with the respondent case. What view they would have taken of them
that he should not support his charge against his | I do not know , but the materiality of it does not
wife ; that he should not cross-examine her , and depend upon that, it depends upon whether they
that he should withdraw his counter -charge. In might have taken a hostile view upon these
my opinion that was a suppression of material materials, and if they might have done so then
facts and collusion. It is said that Alexandre r. i those facts were material. Under those circum
Alexandre (ubi sup.) is inconsistent with that. stances the decree nisi is obtained . In considera
We are not bound by Alexandre V. Alecandre, tion of this letter the learned judgesendsthe case
and, if it does really make any such rule as that, to the Queen 's Proctor, who intervenes and alleges
I must express my opinion ,with every respect for that the decree nisi has been obtained by col
the judge who decided that case, that it is wrong, I lusion . That is the issue for the jury, who find
May 3, 1890.) THE LAW TIMES. (Vol. LXII., N . S.- 347
CT.OF APP.] Re UXBRIDGE AND RICKMANSWORTH Railway Acts. [CT. OF APP.
this : that divers material facts were withheld ! tions to the jury . There were two questions,
from the consideration of the court when the I think , relating to the collusion , and the
decree nisi was obtained, that thewife and husband | jury found both those questions in favour of the
on that occasion had been guilty of collusion Queen's Proctor. But the learned judge left
together to withhold from the court material , another question to the jury, and that was,whether
facts,but they cannot agree whether the wife was the petitioner, Emma Butler, had on divers
guilty of adultery or not. What their difficulty occasions committed adultery. With all respect to
was I do not know , and now it is said that,asthey the learned judge, I think that was an immaterial
leaving that
could not agree as to that, their finding of what | fact, and I think he was wrong in collusion
took place on the earlier occasion , ihat there was question to them . The question of was
collusion and a suppression of material facts , an independent issue, and it was an issue which
cannot be used to prevent the wife from having found one way or the other was sufficient to
her decree made absolute. I say that in my enable the judge either to rescind the decree nisi
opinion it would be a perfect scandal if we did or make it absolute. I think, therefore, that this
allow that contention to succeed . A more scan appeal should be dismissed .
dalous case of attempted imposition upon the Solicitors : Clinton and Buckby ; The Queen's
part of the parties — I do not say by counsel, Proct or.
because they threw them over - I cannot con
ceire. The appeal ought to be dismissed with
costs. Jan . 18 , 20, and 25.
LOPES, L . J. - In my opinion the agreement of
the parties to a divorce suit to withhold from the (Before COTTON, LINDLEY, and LOPES, L .JJ.)
court pertinent and material facts, which might Re UXBRIDGE AND RICKMANSWORTH RAILWAY
have been adduced on the trial in evidence in Acts. (a )
support of a counter -charge of the respondent APPEAL FROM THE CHANCERY DIVISION .
and co-respondent amounts to collusion, even | Railway company - Abandonment - Winding-up
though the suppressed facts might not have been - Deposit fund - Notice to treat - Compulsory
sufficient to hare established the counter-charges. powers - Claims of creditors - Special Acts.
I believe that to be the correct definition of collu
sion as applicable to the circumstances of a case | A Act railway company was incorporated by special
of Parliament in 1881. Sect. 35 ofenthe Act
like this, and I believe also that definition to be um tary
strictly in accordance with Hunt v. Hunt (39 L . T . provided
osi t for
nd the application
d ena cte d of the
ic trparliamentary
Rep . N . S . 45 ). Whether it is entirely in accordance aeposit fu
dep fund,, an
and enacted that if the company did
with Alexandre v. Alexandre I do not express an not complete and open their railway as therein
opinion . But in point of fact I agree with what mentioned , the deposit fund should be applicable
was said by Cotton, L .J. with regard to Alexandre towards compensating landowners and other per
v. Alexandre. If it is intended to mean that sonswhose property had been interfered with or
which is suggested I doubt very much if it is rendered less valuable by the commencement, con
correct. Applying the definition which I have struction ,or abandonment of the railway ,or who
just given to the present case, let us see how it had “ suffered injury or loss in consequence of the
stands. In this case there was a counter-charge compulsory powers" conferred upon the company,
of adultery made against the petitioner by the hus . and subject thereto should be forfeited to the
band, and issue was joined thereon. The husband Crown, or, in the discretion of the Chancery
and wife during the trial, which I believe began Dirision , if the company had been “ ordered to
on a Saturday,agreed on the Sunday to do what ? be wound-up,” should be applied as part of the
Agreed to withdraw from the jury the considera assets of the company for the benefit of creditors.
tion of this issue of whether or not the wife had The railway wasnot constructed ,and in 1888 an
Abandonment Act was passed , which provided
committed adultery . If the wife had committed
adultery it must be remembered that she, the (sect. 6 ) that after the passing of the Act the
petitioner ,would havebeen disentitled to the relief company should proceed to wind-up its affairs,
for which she prayed . Tomymind it is impossible and discharge all debts, liabilities, and engage
to say that those circumstances do not bring this ments ; and (sect. 7) thatwhen all the debts, lia
case within the definition that I have given . And bilities, and engagements should be satisfied , the
this should also be observed : not oniy was that coinpany should be dissolved . It was also enacted
agreement come to — and I think that would have that, subject to the provisions of that Act, and
been sufficient — but that agreement was acted of sect. 35 of the Act of 1881, the deposit fund.
upon, because at the trial Mrs. Butler , the peti should be returned to the depositors.
tioner, was not cross-examined with regard to The assets of the company being of no value, claims
were made against the deposit fund by a judge
this alleged adultery by her, nor did the husband ment creditor of the company, and by landowners
(no doubt in accordance with his agreement) give
any substantive evidence, or any evidence in who had been served with notice to treat by the
chief, or of any kind to that effect. Now , what company, orwho had entered into agreements for
is the object of the special provision with regard purchase with the company, which had not been
carried out.
to collusion ? I think that its object is certainly Held
to compel the parties to come into the Court of , that, as the company could not be wound -up
Divorce with clean hands. It is to oblige them to by petition in theordinary way, sect. 6 of the Act
bring all materialand pertinent facts to the notice of 1888 must be construed as an order to wind -up
of the court, to prevent their blinding the eyes the company, which would enable the court to
apply the deposit fund for thebenefit of creditors.
of the court in any respect, and to do that which | Held
will enable the court to do justice between the also, that notice to treat was not by itself an
parties. At the trial, when the Queen 's Proctor exercise of the compulsory powers of the company
intervened, the learned judge left several ques- | (a) Reported by A. J.SPENCER. Esq.,Barrister-at-Law .
348 - Vol. LXII., N . S.] THE LAW TIMES. (May 3, 1890 .
CT. OP APP.) Re UXBRIDGE AND RICKMANSWORTH RAILWAY Acts. [CT. OF APP.
which would give a landowner served a prior 1 of surveying and taking levels or probing or boring to
ascertain the nature
claim for injury or loss “ in consequence of the of the soil or setting out the
compulsory powers," but such landowner Inight, lines of railways, and shall not prejudice or affect the
right of the owner
if he could show injury or damage suffered in or occapier of any land which may
have been temporarily
consequence of the non-completion of the contract,
claim against the deposit fund with other credi I receive compensation for occupied by the company to
such temporary occupation , or
for any loss , damage, or injury which may have been
tors of the company . sustained by such owner or occupier by reason thereof,
or of the exercise as regards such land of any of the
The Uxbridge and Rickmansworth Railway Com powers contained in the Railways Consolidation Act
pany was incorporated by an Act of Parliament 1845Sect. , or the Act of 1881, or the Act of 1886 .
4 . Where before the passing of this Act any con
passed in 1881 (44 & 45 Vict. c. clxxv.) which ,
after reciting the payment of a parliamentary tract hasbeen entered into or notice given by the company
deposit of 52331. Consolidated Three per Cent. forthe purchasing of anyland for the purposes ofor in rela
Annuities,under the provisions of 9 Vict. c. 20, totionbeto abandoned
any portion of the railways or works authorised
by this Act, the company shall be
enacted as follows: released from all liability to purchase or to complete
the purchase of any such lands, but notwithstanding
Sect. 34. The said deposit fund shall not be paid or full compensation shall be made by the company to the
transferred
the to or on the application of the persons or
majority of the persons named in the warrant or owners and occupiers, or other persons interested in
order issued in pursuance of the said Act, or the sur such lands, for all injury or damage sustained by them
vivors or survivor of them (which persons,majority of respectively by reason of the purchase not being com
persons, survivors or survivor as the case may be, are pleted pursuant to the contract or notice, and the
amount and application of the compensation shall be
or is in this Act intended by the expression “ the deposi
tors ” ), unless the company shall , previously to the determined
Consolidationin Act
manner provided by the Lands Clauses
expiration of the period limited by this Act for com Act for determining1845 as amended by any subsequent
the amount and application of com
pletion of the railway, open the same for the public pensation paid for lands taken under the provisions
conveyance of passengers. thereof.
Sect. 35. If the company do not previously to the Sect. 5. Subject to the provisions of this Act and of
expiration of the period limited for the completion of sect. 35 of the Act of 1881 with respect to compensation
the railway complete and open the samefor the public to landowners and other persons injured , and for the
conveyance of passengers, then and in every such case protection of creditors, the High Court of Justice may
the deposit fund , or as much thereof as shall not
been paid to the depositors, shall be applicable and application of the time
and shall at any after the passing of this Act, on
after due notice in the London Gazette shall be applied Act of 1881, orderdepositors mentioned in sect. 34 of the
that the sum of 52331. Consolidated
towards compensating any landowners or other persons £3 per
whose property has been interfered with or otherwise of 1881,Cent. Annuities mentioned in sect . 34 of the Act
rendered less valuable by the commencement, construc may haveorbeen any other stocks or funds in which the same
invested , and the interest or dividends
tion, or abandonment of the railway or any portion thereon , shall be paid or transferred to the depositors,
thereof, or who have been subjected to injury or loss in or as they may appoint in that behalf.
consequence of the compulsory powers of taking pro Sect. 6. Forthwith , after the passing of this Act, and
the
perty conferred upon the company by this Act, and for company shall proceed to wind-up their affairs,
which injury or loss no compensation , or inadequate sball pay, satisfy, and discharge all their debts,
compensation , has been paid , and shall be distributed in liabilities, and engagements .
satisfaction of such compensation as aforesaid , in such Sect. 7. When all the debts, liabilities, and engage
manner and in such proportions as to the Chancery Divi.
sion of the High Court of Justice in England may seem ments of the company are paid, satisfied , or discharged,
fit, and if no such compensation is payable , or if a and the affairs of the company are wound-up, the com
portion of the deposit fund has been found sufficient to pany shall be by this Act dissolved and shall cease to
exist, and the Act of 1881 and the Act of 1886 shall be
satisfy all just claims in respect of such compensation , by this Act repealed .
then the deposit fund, or such portion thereof asmay not Under the Abandonment of Railways Act 1869
be required as aforesaid, shall either be forfeited to Her
Majesty,and accordingly be paid or transferred to or for (32 & 33 Vict. c . 114 ), s. 4 , power was given upon
the account of Her Majesty's Exchequer, in such manner a warrant of abandonment obtained from the
as thesaid Chancery Division thinks fit toorder on the ap Board of Trade, in pursuance of the Railway
plication of the Solicitor of Her Majesty's Treasury , and Companies Act 1867 ( 30 & 31 Vict. c. 127), to
shallbe
of carried Kingdom
the United to and form,orpartof
in the the Consolidated
discretion of theFund
said present a petition for winding-up the company
Chancery Division , if the company is insolventand bas under the Companies Acts 1862 and 1867, but
been ordered to be wound -up or a receiver has been before the Act of 1881 was passed the Board of
appointed , shall wholly or in part be paid or transferred 'Trade bad determined not to grant any such
to such receiver or to the liquidator or liquidators of warrant in the future in respect of any company
the company, or be otherwise applied as part of the
assets of the company for the benefit of the creditors formed after 1867 ; so that at the time when the
thereof, provided that until the deposit fund has been
paid to the depositors or bas become otherwise appli
Act of 1881
wind-up was passed
a railway companythereformed
was nobypower to
private
cable ashereinbefore mentioned , any interest or dividend Act of Parliament, except by special Act in that
accruing thereon shall from timeto time, and as often as | behalf.
the same shall become payable, be paid to or on appli
cation of the depositors. The total assets of the company were 58.
only, and claims were now made against the
The railway was never completed and opened deposit fund of the railway company.
for use. The first claimant was McIntyre, who had
By an Act passed in 1886 the time for com
pleting the work and for the exercise of the been engineer of the company, and had obtained
a judgment for the sum due to him for his ser
compulsory powers was extended . vices.
In 1888 an Act (51 Vict. c. x.) was passed The other claimants - W . J. Grainger, W . H .
authorising the abandonment of the railway, of Way, and S . and W . Harman - were landowners
which the following clauses are material: who had received notices to treat under the
Sect. 3. The abandonment by the company under the
authority of this Act of the railways shall not prejudice Lands Clauses Consolidation Act 1845 from the
company, or who had entered into contracts with
or affect the right of the owner or occupier of any land the company, but whose lands had not been
to receive compensation for any damage occasioned by
the entry of the company on such land for the purpose I actually taken or injuriously affected .
Yay 3, 1890 .) THE LAW TIMES. [Vol. LXII., N . 8.- 349
CT.OP APP. ] Re UXBRIDGE AND RICKMANSWORTH RAILWAY ACTS. (Cr. OF APP.
The case came on before Stirling, J.,who held | Graham Hastings, Q .C . and S . B . L. Druce
that none of the claimants were entitled to com - | replied . Cur. adv. vult.
pensation out of the deposit fund, L . J.- These are four appeals which
The claimants appealed . Cotton,
Graham Hastings, Q .C. and Farwell for raise in a somewhat different way,as to one or two
of them , the question as to what is to be done
McIntyre. - We claim under sect. 35 of the Act | with regard to the fund which there is in court
of 1881. The company has been in effect " ordered deposited under the parliamentary rules when
to be wound-up ” by the Act of 1888 , and the
deposit fund must therefore be treated as assets application was made for the Act to incorporate
the Uxbridge and Rickmansworth Railway Com
for the payment of creditors. Except by a pany. That company has been abandoned , and
special Act of Parliament there was no power to the value of its assets seems to have been five
wind-up this company, and no other form of shillings,or they were sometimeago, but that we
winding-up could have been contemplated by the have not to deal with . In the year 1888 an Act
Act of 1881. They referred to
Re Birmingham and Lichfield Junction Railway was obtained for the abandonment of the railway.
Company , 45 L . T. Rep . N . S. 164 ; 18 Ch . Div. 155 . The question turns really on sect. 35 of the Act
Graham Hastings, Q .C. and Gaselee for of 1881, and the section to which I shall refer of
W. H . Way . the Act of 1888 . Under sects. 34 and 35 of the Act
S. B. L . Druce for W . J.Grainger. — This claim . of 1881 there was a parliamentary deposit which
ant received notice to treat from the company, is referred to in sect. 34, and sect. 35 directed
and he can therefore claim against the deposit what was to be done with that money . It was
not of course in any way assets of the company,
fund in priority to general creditors, under but only a deposit which was required to bemade
sect. 35 of the Act of 1881,as one who has been sub . application wasmade to Parliament to give
jected to “ injury or loss in consequence of the when
this company parliamentary powers, and sect. 35
compulsory powers of taking property conferred directed what was to be done with the deposit in
upon the company.” In consequence of the the event of the company not carrying its under .
notice to treat he incurred expense and loss ; for into execution . At the time the Act of
instance,he was obliged to consult a surveyor and taking
1881 was passed, there had been an Act of Parlia
solicitor in order to make outhis claim . A notice ment enabling railway companies which had been
to treat has been held to be an exercise of the com abandoned or had come to grief, to have appli
pulsory powers conferred upon railway com cations made against them for a winding -up
panies : order, but before the Act of 1881 was passed the
Marquis of Salisbury v. The Great Northern Railway Board of Trade had come to the conclusion that
Company, 17 Q . B . 840 ; they would not grant the necessary certificate
Tiverton and North Devon Railway Company v .
Loosemore, 50 L . T. Rep. N . S. 637; 9 Åpp . to enable application to be made for a winding
Cas. 480. up order by petition as regards companies which
Taking under compulsory powers means the were formed after 1867. Whether they were
taking by powers put into force for acquiring right or wrong we have not to consider ; but in
lands otherwise than by agreement. The | fact it was known at the time of the Act of 1881
case of Guest v. The Poole and Bourne passing, and still remained the fact at the time
mouth Railway Company (22 L . T.Rep. N . S.589 ; the Act of 1888 was passed , that the Board of
L. Rep. 5 C . P . 553) only decides that a notice Trade had come to that conclusion . I think I
to treat is not necessarily in all cases an exercise ought to mention that at the time when the
Act of 1881 was passed there had been an Act
of compulsory powers,as, for instance, where it is
followed by an amicable agreement. No such with reference to the abandonment of a railway
agreement took place in this case. At any rate I which had given special powers, without any
can claim as a creditor of the company. certificate from the Board of Trade, to apply to
Grosvenor Woods for S.and W . Harman. the Court of Chancery in the ordinary way by
Phipson Beale , Q.C. and Ingle Joyce for the petition for a winding-up order. Now, what we
have to say is, whether or not there is any claim
company. - Notice to treat is not necessarily an independently of the claim in terms given to
exercise ofthe compulsory powers. That is shown compensate landowners by sect. 35 as against this
by Guest y. The Poole and Bournemouth Railway deposit. Sect. 5 of the Act of 1888 I think we
Company (ubi sup.). A special Act directing that ought to read , “ subject to the provisions of this
the company shall wind-up its affairs is not Act and of sect. 35 of the Act of 1881 with
equivalent to a winding-up order. The winding. respect to compensation to landowners and other
up referred to in sect 35 of the Act of 1881 is a persons injured , and for the protection of creditors
winding -up in the ordinary way by the Chancery the High Court of Justice may and shall at any
Division . No general creditor can therefore timeafter the passing of this Act,on application
make any claim on the deposit fund, as it is not by the depositors mentioned in sect. 34 of the
part of the assets of the company, and only Act 1881," order that the sum be handed over to
meritorious creditors have any right : them . This Act does interfere in some way with
Re Bradford Tramways Company, 35 L . T. Rep. the provisions of sect. 35 , because sect. 35, after
N . S. 827 ; 4 Ch . Div. 18. saying that out of the fund provision shall be
Landowners can only claim compensation on made to pay compensation to landowners injured
account of acts done or omitted to be done by by the action taken under the compulsory powers,
the company under their statutory powers : , did direct an alternative, namely, that what
Re Potteries, Shrewsbury , and North Wales Railway
ay remained after making provision for that com
Company, 50 L . T. Rep . N . S. 104 ; 25 Ch . pensation should either be paid to the depositors
Div. 251 ; providing for certain claims, or should be
Re Ruthin and Cerrig-y- Druidion Railway Act, 1 after
paid to the Crown, and then in the alternative, if
55 L. T. Rep . N . 8. 237 ; 32 Ch . Div. 438.
Vol. LXII., N . S., 1590*.
Ct. or App.] Re UXBRIDGE AND RICKMANSWORTH RAILWAY Acts. [CT. OF APP.
a receiver had been appointed or a winding-up after that when Parliament knew at the time
order had been made, the Court of Chancery that without special legislation no petition could
might apply it for the purpose of payment be presented under the Act of 1862 so as to get a
of the creditors, by payment to the receiver winding-up order, there was not in this Act
or to the liquidator, or otherwise apply it something which would enable them without
for the benefit of the creditors. Those are that petition being presented , and without any
the terms of sect. 35 which I think I order being made under that petition equivalent
need not read in detail. It first provides for to the winding-up of the company, to get that
compensation to be paid out of the depositors' benefit. Then is not sect. 6 something which
fund for compensating any landowner whose pro enables us and requires us to say that the
perty has been interfered with , or who has been company has been ordered to be wound-up ?
subject to injury or loss in consequence of the “ Forthwith after the passing of that Act the
compulsory powers for taking property . Then company shall proceed to wind-up their affairs,
when that is done, and after that compensation and shall pay, satisfy , and discharge all their
is made, what remains shall be forfeited to debts, liabilities, and engagements.” In my
Her Majesty, or at the option of the Court of opinion it would not enable the company, or a
Chancery . “ If the company is insolvent and creditor of the company, to present a petition
has been ordered to be wound-up, or a re- under the Act of 1862 for obtaining the winding
ceiver has been appointed, shall wholly or in part up order which is pointed at primâ facie by
be paid or transferred to such receiver, or to the sect. 35,but in my opinion this is a section which
liquidator or liquidators of the company, or be enables creditors of the company to say that the
otherwise applied as part of the assets of the company has been ordered to be wound-up . It
company." Unless there is an order so to apply it , is very true it does not say that the company
it is not assets of the company, and all the claim shall be wound-up, but it does say that the com
creditors can have must be under the special pany shall proceed to wind-up their affairs, and
powers of the Act, they not having any claim as shall pay, and satisfy, and discharge all their
against the company, although they were credi- debts, liabilities, and engagements. That is in
tors. Then practically it comes to this : What terms that the company shall be wound-up, but
should we say as to the Act of 1888 ? Does it in my opinion it would be too narrow à con
contain a provision ordering the company to be struction to put upon this section to make a dis
wound -up : Undoubtedly sect. 35 of the Act of tinction between what is said and what would
1881 does contemplate a winding -up in the ordinary have been the case if it were an order or an en
way by an order of the court when an application actment for the company to be wound -up, and
is made under the Companies Acts, because there say, “ No it is not an order for the company to
is a reference to the liquidator, and that points to be wound-up, it is only that the company shall
someone being appointed under a certain order wind-up its affairs.” It orders the company to
in order to distribute the assets of the company. do that which if it were wound -up under The Act
But is it confined to that ? If we can find that of 1862 and a liquidator wereappointed , would be
which in the Act of 1888 ought to be counted as done by the liquidator. But here it is left to the
an order to wind-up the company, although it is liquidators of the company to do that which they
not that kind of order to wind-up which is finally are ordered to do, which would be what would
contemplated by this sect. 35 which I have read , have to be done if the company were wound -up
yet in my opinion we ought not to say that that by a common order. In my opinion, having re
does not comewithin the provision of this Act and gard to what must be taken to bave been in the
is not an order to wind -up the company enabling mindsof the Legislature at the timethis Act was
us to say that the company has been ordered to passed , when they recognise as still existing in
be wound-up so as to deprive the creditors of that sect. 35 of the Act of 1881 something for the pro
which primâ facie Parliament intended to give tection of creditors, we ought to give to this sect. 6
them , namely, a claim against the company. I the meaning which I give to it, that there is a pro
have already mentioned that sect. 5 does inter tection for the creditors which only exists under
fere with the claim of the Crown. I think sect. 35 if the company is ordered to be wound-up.
Stirling, J. considered that that was not so, but One must remember that at this time, without
undoubtedly it does,because,when theprovisions specialparliamentary authority,there could be no
of that Act and of sect. 35 of the other Act for winding-up under the Act of 1862 by any order,
the protection of creditors have been complied because, as I say, the Board of Tradehad refused
with , then the Crown cannot apply at all for what | to give, as regards companies incorporated as this
remains of this fund, but the Court of Chancery company was, any such certificate as would enable
may and shall order what remains of this fund application to be made. In my opinion , therefore,
after paying compensation to the landowners to the proper conclusion to arrive at, not forcing
be handed over to the depositors. There the | the meaning of this section at all, but giving to
depositors do get a benefit . Do they get that it what under the circumstances known to Parlia,
benefit without making provision for the credi- ment is a proper and reasonable construction,
tors of the company ! We have the words in is, that this is an order by Parliament, and irno
sect. 35 with respect to compensation to land. | by the Court of Chancery, that this compar ay be
owners and other persons injured , and for the wound -up. Therefore , in my opinion, t ''me pro
protection of creditors, and it is subject to that visionsof sect. 35 doapply, and the protr, ection for
being duly performed that the depositors can the creditors exists, which would not fiandrist if there
claim . There is a reference to the protection of was no order to wind-up and nonecont undbeobtained .
the creditors, and of course that means payment There therefore power exeito
the which isI think it ought toto the Cç 1845
con Ft ofChancery,
of ordering
which primâ
hat wbich
to them of that sect. 3535 ofof the
facie sect.
primâ facie
Act of 1881 gives them , and then the depositors that these sums should be als hadic in satisfac
have a right to this fund ; but it is curious if I tion of the creditors of the lectedd.. railway company.
May 3, 1890.) THE LAW TIMES. [Vol. LXII., N . S.– 351
CT. OF APP .] Re UXBRIDGE AND RICKMANSWORTH Railway Acts . [Ct. OF APP.
Of course there will be a question here arising | powers to enable persons to come in under
as to the different claims which we have sect. 35. One must remember, as I have said
now before us, because some of them it is said | before , that this is in no way an asset of the com ,
will bare priority over others. As I ' stated pany. It is only that certain rights are given to
before, compensation under sect. 35 to land certain persons as against the depositors and
owners must be paid before the fund is so against the fund which they deposit. It is very
cleared that it may in the discretion of the true the power to give notice to treat is included
Court of Chancery be either handed over to in that bunch of clauses in the Lands Clauses
the Crown or be applied in payment of credi. Consolidation Act 1845, which are headed ,“ With
tors. Now let ns look at these different claims. respect to the purchase and taking of lands
The first is McIntyre's claim . He was simply a otherwise than by agreement be it enacted
creditor of the company, and not in any way a land as follows: " Then there follow provisions
owner. He had obtained judgment, and it is not as to the notice to treat ; but although brought
necessary for us in that case to say anything about within that bunch of clauses there may never
a meritorious creditor. He has no claim under the be any step taken as regards compulsory powers,
first part of sect. 35, but, in my opinion , he will| because, if the company have not got their
come in under the words with regard to other capital subscribed, they cannot exercise any
creditors against this fund , and will take out of compulsory powers, and the notice to treat, as
the residue of this fund after providing for such was the case in one instance here, may be merely
compensation as landowners are entitled to. the beginning of an agreement with the land
Then we come to the other claimants, and I owner to ascertain whether he is willing to make
think I may say practically that the other claim the contract with the railway company, saying,
ants appear to be creditors of the company in “ I want that land , will you sell it mepu In my
respect of loss or damage that they may have opinion it cannot be said that that alone is the
sustained either by reason of the contracts exercise of compulsory powers. We are not
entered into by the company with them , or in deciding that for the first time, because we have
consequence of notice to treat which has been a decision which was given in 1870. It was
given to them . I need not read the words, but decided, in the case of Guest v. The Poole and
sect. 4 of the Act of 1888 does say that compen Bournemouth Railway Company (ubi sup.), that
sation is to be made to the owners and occupiers notice to treat was not an exercise of the compul.
or other persons interested in land for any sory powers. It was said that that was not
injury or damage sustained by them by reason of necessary to the decision of the case, that it was
the purchase not being completed pursuant to only decided that the company could not give the
the contract or notice to treat. That must mean, notice ; butall the judges (and they were judges of
therefore, that they must have a claim as creditors considerable authority) in their judgment say that
in respect ofany loss they inay have sustained in this was not an exercise of the compulsory powers.
consequence of the contract not being completed, And in the events which had happened it was
shown not to have been an exercise of the com
or in consequence of notice to treat having been
served upon them . But it was urged that they
pulsory powers at the beginning . It is very true
were entitled to something more than that, notice to treat is a step towards the compulsory
because they say, “ We come under the first part powers - that is to say , the compulsory powers as
of sect. 35, which gives us a right to be paid in regards the purchase of land cannot be exercised
priority out of this fund before it comes to be until the notice to treat has been given - but they
divided between the creditors of the company." cannot be exercised unless the capital has been
The only thing they rely upon is really this subscribed . Subscribing the capital is not an
notice to treat, because nothing was done in exercise of the compulsory powers, although it is a
exercise of the compulsory powers - if there was necessary step towards the exercise of those
an exercise of compulsory powers - by the rail. powers ;and just so a notice to treat is not an exer
way company beyond notice to treat. In my cise of the compulsory powers, though it is a step
opinion , it cannot be said that notice to treat is thatmust be taken before the compulsory powers
an exercise of the compulsory powers. It was can be exercised and put into force. So, in my
argued that it was not necessary that there opinion ,all these persons here, the three separate
should be any actual exercise of compulsory claimants, can only come in under sect. 4 , so
powers. I cannot take that view . There are the far as they can show that they have suffered
words “ subjected to injury or loss in consequence loss in consequence of the notice to treat, or in
ofthe compulsory powers for the taking of pro consequence of an agreement to purchase not
perty conferred on the company.” That does not having been completed by the railway company.
mean because compulsory powers have been I differ from the judgment of Stirling, J. In my
granted , but becanse there has been an exercise of opinion what I have said is the right construc
them , and I think from what follows it would be tion of these Acts of Parliament. It is very true,
wrong to say that " in consequence of the compul- and I nught to havementioned itbefore, it would
sory powers” means simply " in consequence ofthe have been very much plainer if the Legislature
existence of those compulsory powers.” If that in 1888 had said , “ After this any creditor or
Was so, directly the Act was passed powers would shareholder may present a petition without any
be granted , though they could not be exercised certificate from the Board of Trade;" but Acts of
until the capital had been subscribed . In my Parliament are not always as plain as they might
opinion it would be quite wrong to hold , if there be, and the true construction of this Act is , in
were found any loss or damage incurred, that a my opinion, what I have expressed . I think ,
creditor could come and say, “ This loss was therefore, we ought to make a declaration letting
thrown upon me because the Act of Parliament all these persons come in the judgment creditor
has been passed ." That is not it. In my opinion and others : the judgment creditor as a creditor
there must be some exercise of the compulsory of the company by reason of this judgment ; the
352 - Vol. LXII., N . S.] THE LAW TIMES . (May 3, 1890.
Cr. OF APP.] Re UXBRIDGE AND RICKMANSWORTH RAILWAY Acts. [CT. OF APP.
other persons as having a right under sect. 4 to , a petition under the Companies Act 1862;
become creditors of the company. In my no creditor could do it ; it could not be done.
opinion, therefore, this appeal should succeed . Now in 1888 the Legislature was in this position :
* LINDLEY, T..J. — The case before us raises two It intended the affairs of this company to be
questions : first of all, whether these claims are wound -up, but overlooked the fact that it could
to be paid out of the money which is in court not be done. It orders it to proceed to wind-up
and represents what is called the parliamentary its affairs. Now what does that mean ? Weare
deposit ; and secondly, supposing they are, driven into this corner : wemust either say that
whether they or any of them are entitled to this means nothing, or that it is a legislative
any priority of payment over each other, or order to wind-up, substituted for the order con .
over the persons who have not made claims on tained in sect. 35 — there is no alternative. We
the fund . Both those questions turn upon the must either say the Act of Parliament is
construction of two Acts of Parliament, one of utterly useless, and not workable, or we must
which , to say the least of it, is anything but say this is a statutory order to wind -up substi
clear. The parliamentary deposit is a fund tuted for one previously made. The latter, I do
which does not belong to the company. The not hesitate to say, under those circumstances
creditors of the company have no more right is the true construction and meaning. In other
to be paid ont of the deposit than any other words, when you come to look at these two
creditors, except by Act of Parliament. There Acts of Parliament, and work them together as
is no à priori right on the part of the credi. you must, you must hold that this company has
tors of the company to be paid out of money been ordered to be wound-up. It is insolvent
provided by the depositors, and they must look l enough in all conscience, and the time has come
to the words of the statute or statutes upon and the contingency has arrived for paying the
which they rely to give them any claim at creditors of the company out of the deposit.
all upon that fund. The mere fact that they As I understand the judgment of Stirling, J.,
are creditors of the company will not do. That he seemed to be under the impression that it
is not ad rem . The Acts before us, to which was still in the discretion of the judge to
Cotton , L .J . has adverted , give them certain hand the balance of this fund, after paying
rights, and the question is, what rights. Under those who were entitled in priority to it, over to
the Act of 1881 the parliamentary deposit the Crown. I cannot say that is so on reading
is applicable in this way : First of all, those the Acts, because sect. 5 of the Act of 1889 does
landowners and persons who have really sus. not say “ subject to the provisions of sect. 35
tained injury by reason of the compulsory of the Act of 1881; " but it says “ subject to the
powers or the works done by the company provisions of that section with regard to com .
were entitled to be paid in priority to everybody | pensation to landowners and other persons
else. That is under sect. 35 , which I will not read injured , and for the protection of creditors, that
at present. Then subject to that the rest of the fund is to go to the depositors." That seems to
fund was dealt with in this way : it was in the me to exclude the Crown entirely. Therefore,
discretion of the court to hand it over to the the net result seems to me to be this : that this
Crown, but if the court was of opinion it would parliamentary deposit is to be applied , in the
not be just to hand it over to the Crown, then first place, in payment of those people who are
the court could , if the company was insolvent entitled to priority under sect. 35 of the Act of
and ordered to be wound-up, apply the deposit in 1881, and subject to that it goes to the creditors.
payment of the creditors of the company. The They were all excluded by Stirling, J ., but I am
governing idea there was this, that, subject to the of opinion that they should all come in . Now
payment of those who were entitled to priority, I pass to the second question , whether any
the balance of the fund was to be handed over to of them are entitled to priority . They are
the Crown or to the creditors of the company if creditors of the company, and are entitled
the company was insolvent. That is the governing to come upon this particular fund, which is
idea . The languageused is “ insolvent and has been not an asset of the company, by the joint
ordered to be wound-up," which was one method operation of sects. 4 and 5 of the Act of 1888,
of disposing of the assets of insolvent companies. to which Cotton, L .J. has alluded . But for
But there can be no question that, when those those sections they would not come in at all.
words were used , what was contemplated would | Now , are they entitled to priority ? Sect. 4
be an order to wind-up in the ordinary sense gives them no title at all to priority ; it gives
of that expression . There was only one sort of them title to be paid as creditors pari passu with
order familiar to lawyers or to draftsmen of Acts other creditors. To make out their claim to
of Parliament, and that was an order to be made priority they must make out that they are
by tbe Chancery Division under the Companies amongst the class of people entitled to priority
Act of 1862. It was overlooked that such an under sect. 35 of the Act of 1881. The persons
order could not be made without a special Act of so entitled are formed into two classes : first ofall,
Parliament, and when we cometo 1888, when the landowners and other persons whose property
Legislature passed an Act enabling this railway has been interfered with or otherwise rendered
company to abandon this undertaking, the same of less value by the commencement, construction ,
thing was overlooked. Now , in 1888 , the position or abandonment of the railway . None of these
of affairs was this : the railway company was claimants come under that clause ; but they
not a registered company under the Act of 1862. may come under the next class, who are thus
Whether it could be is well known to be one of described , “ or who have been subject to injury
those thorny points which havenot been decided. | or loss in consequence of the compulsory powers
It was not registered , and not being regis- of taking property conferred on the company by
tered there was no possible procedure by which this Act, and for which injury or loss no com
it could be wound-up . It could not present | pensation or inadequate compensation has been
May 3, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. - 353
CT. OF APP.] Re BRIGHTON AND DYKE RAILWAY COMPANY. [CT. OF APP.
paid.” They say they come under that ; but I do should not pay any greater dividend on the two
not think they do. In the first place, the half shares than would have been payable on the
language is peculiar. I think it is rather forcing entire share if the same had not been divided ;
the words to say that any of these gentlemen and the Act further provided that the preferred
have been subject to injury or loss in con half share should be entitled to the dividend
sequence of the compulsory powers of taking attached to it in priority to the deferred half
property conferred upon the company. I think share, but should not be entitled to have any
that is straining the language. But when we deficiency made good out of the profits of subse
look at the interpretation which has been put upon quent years, and that the half shares should be
the expression " compulsory powers ” in Guest v. registered and certificates issued. Part of, but
The Poole and Bournemouth Railway Company not all, the shares of the company had been
(ubi sup.), and acted upon invariably and without divided under these powers. The company being
hesitation ever since, it appears to me that these unable to meet their engagements, on the 11th
gentlemen are excluded from the benefit con Dec. 1889 filed a scheme for arrangement under
ferred by the section , and I do not think the Railway Companies Act 1867, and petitioned
they can make out satisfactorily that they do for the confirmation of that scheme without first
come within the words “ persons subjected to obtaining the assent of the holders of preferred
injury and loss in consequence of the compulsory half shares as a separate body.
powers of taking property conferred upon the Held , that the holders of preferred half shares did
company by this Act." That being so , the net not form a class of preference shareholder 8within
result is this : all these claimants are entitled to the meaning of sect. 12 of the Railway Com
claim against this fund as creditors, but subject panies Act 1867, and that it was therefore not
to the prior right of such persons, if any, as may necessary to obtain the consent in writing of
be entitled to priority under sect. 35. three-fourths of such shareholders before the
LOPES, L .J. - I have had an opportunity of scheme could be confirmed by the court.
talking this case over with the rest of the court. Decision of North, J. reversed .
I entirely agree with what has been said , and I The Brighton and Dyke Railway Company was
have one. observation to make with regard to the incorporated by the Brighton and Dyke Railway
priority of the landowners. In my opinion , even Act 1877 (40 & 41 Vict. c . clxxxix .) with a capital
if notice to treat is an exercise of the compulsory of 72,0001. in 7200 shares of 101. each .
powers, which I do not think it is, I do not think The Act contained the following provisions:
any injury or loss has accrued to any of these
claimants in consequence of the notice to treat. company,10.with
Sect. Subject to the provisions of this Act the
the authority of three-fourths of the
I quite agree with the rest of the court that this shareholders present in person or by proxy at a general
appeal should be allowed . meeting of the company specially convened forththe eir
Solicitors for the appellants, Burchell and Co. ; purpose ,into
may from time to time divide any share
Thompson and Groom ; Gamlen and Burdett, “capital half shares, of which one shall be called
preferred half share " and the other “ deferred half
agents for Woodbridge and Sons, Uxbridge; share ;" but the company shall not so divide any share
Paterson and Sons, agents for W . Garner, Us under the authority of this Act unless or until not less
bridge . than 60 per cent. upon such share has been paid up, and
upon every such division 50 per cent. upon the entire
Solicitors for therespondents, Williamson, Hill, share shall be carried to the credit of the deferred half
and Co. share (being the whole amount payable thereon ) and the
residue to the credit of the preferred half share.
Sect. 11. The dividend which would from time to timo
Tuesday, Feb. 11. be payable on any divided share if the samehad continued
(Before COTTON, LINDLEY, and LOPES, L.JJ.) an entire share shall be applied in payment of dividends
on the two half shares in manner following : (that is to
Re BRIGHTON AND DYKE RAILWAY COMPANY. (a) say) first in payment of dividend after such rate not
exceeding 5 per centum per annum as shall be deter
APPEAL FROM THE CHANCERY DIVISION . mined once for all at a general meeting of the company
Railway company - Scheme of arrangement- Pre specially convened for the purpose on the amount for
ference shareholders - Divided shares - Assent to the time being paid up on the preferred half share, and
scheme - Railway Companies Act 1867 (30 & 31 deferredthe remainder, if any, in payment of dividend on the
half share, and the company shall not pay any
Vict. c. 127), 88. 12, 17. greater amount of dividend on the two half shares than
By the Brighton and Dyke Railway Act 1877 would have from time to time been payable on the
power was given to the railway company thereby entire Sect.
share if the same had not been divided .
12. Each preferred half share shall be entitled
incorporated to divide any share in their capital out of the profits of each year to the dividend which
into halfshares, of which one half should be called may have been attached to it by the company as afore
" preferred half share." And it was provided said in priority to the deferred half share bearing the
that the dividend which would from time to time same number, but if in any year ending the 31st day of
be payable on any divided share if the same had ment December there shall not be profits available for pay.
continued an entire share should be applied in that year of the full amount on any preferred half share for
payment of dividends on the two half shares in out of thenoprofits part of the deficiency shall be made good
of any subsequent year or ont of any
manner following, riz. : first, in payment of divi. other funds of the company.
dend at such rate not exceeding 5 per cent. per The company were also empowered to borrow
annum as should be determined once for all by on mortgage or by issuing debenture stock to the
the company in general meeting, on theamount amount of 24,0001.
for the time being paid up on the preferred half The company issued all their share capital, and
share, the remainder in payment of dividend on created debenture stock to the full extent of their
the deferred half share, but that the company powers. The company had also passed a reso
(a) Reported by J. R . BROOKE and A . J . SPENCER , Esqrs., lution under sect. 10 giving all shareholders an
Barristers-at- Law . | option to divide their shares, and about .4960
354 - Vol. LXII., K . s.] THE LAW TIMES. (May 3, 1890.
Ct. OP APP.] Re BRIGHTON AND DYKE Railway COMPANY. SCT. OP APP.
out of the 7200 ordinary shares had been divided , of issuing preference shares had continued to be
in pursuance of that resolution . The remaining | the same as at the passing of the Act no diffi.
2240 ordinary shares in the company had not been culty would arise. But since the date of the
divided . Act a practice has arisen of dividing shares so
The line was opened for traffic in 1887, and as to give one-half a preference over the other,
was being worked by the London , Brighton , and it is with shares so divided that I have to
and South Coast Railway Company under a deal. [His Lordship read the sections of the
working agreement, but the stations and some of company's special Act above set out.] Now ,
the works were of a temporary character only . under those sections a certain number of what
On the 11th Dec. 1889 the company, being were originally ordinary shares of the company
unable to meet its engagements, filed a scheme of have been divided . It is clear that the whole
arrangement under the Railway Companies Act object of the sections is, that a holder may
1867. The scheme was for the raising of money divide his shares and deal with the two halves
by the issue of new debentures to rank behind the separately. If the same person continued to hold
existing debenture stock . The holders of this both halves the division would be useless to him .
stock, therefore,were not interfered with by the The whole advantage of the transaction is, that
scheme. A meeting of the ordinary shareholders the holder may dispose of his two halves in
had been held , and approved the scheme, but different directions. If, therefore , all the shares
there had been no separate assent of the holders were split it is clear that the holders of one set
of the preferred halves of divided shares. The of halves would be preferred, and the holders of
directors petitioned for the confirmation of the the other set deferred, and we have at once the
scheme, and the question arose whether they were two classes of shareholders referred to by the
a class of preference shareholders under the Rail Act. But it is said , because there are some
way Companies Act 1867. ordinary shares in existence which are not split,
T'he sections of that Act which deal with the there is no class of preference shareholders. I
question are the following : think there is, because there has come into exis
Sect. 12. The schemeshall be deemed to be assented tence a class of persons who hold preferred shares
to by the guaranteed or preference shareholders of the to the amount ofhalf the number of shares which
company when it is assented to in writing as follows : have been divided . I think the strongest way of
If there is only one class of guaranteed or preference
shareholders, then by three-fourths in value of thatclass ; putting the case against that view is the one I
and if there are more classes of guaranteed or preference suggested in the course of the argument, that if
shareholders than one, then by three-fourths in value of the holders of one-fourth of the ordinary share.
each such class . holders disapprove the scheme they might
Sect. 13. The scheme shall be deemed to be assented
to by the ordinary shareholders of the company when it simply by dividing their shares obtain an absolute
power of veto ; whereas, if they retained them
is assented to at an extraordinary general meeting of undivided, they would be overruled. But I do
the company specially called for that purpose .
Sect. 17 . After hearing the directors and any creditors. not think that is conclusive, for it would not
shareholders, or other parties whom the court thinks apply if all the shares were
entitled to be heard on the application , the court, if make the construction ofthedivided , and I cannot
Act depend upon the
satisfied that the schemehas been within three months particular number which happen to bave been
after the filing of it, or such extended time (if any) as divided . I cannot see that there is any difference
the court has allowed, assented to as required by this between a holder of a preferred share which was
Act, and that no sufficient objection to the scheme has
been established, may confirm the scheme. originally half an ordinary share and the holder
Cozens-Hardy, Q .C . and Grosvenor Woods for of one originally issued as preferred . If a share
the petition . Theholders of preferred half shares were divided, and both halves continued to be
are not preference shareholders within the mean held by the same person, he would have the
ing of the Act ; they have no preference over the rights of a preferred shareholder as to one-half,
ordinary undivided shares. Such dirided shares and of a deferred shareholder as to the other. I
take only the same dividend as an undivided see no reason why he should be deprived of his
share, and the preference is only in the division rights as a preference shareholder, and I think
of that dividend between the two halves of the that where preference shareholders exist they
same share. [ NORTH , J. - If all the shares had must be dealt with as required by the Act, what
been divided, would not the holders of preferred ever their origin may be. It is plain that a
halves form a class of preference shareholders ?] scheme might be proposed as to which there
We submit that the existence of one-third of the would be a great conflict of interest between the
capital of the company in undivided ordinary preference and the ordinary shareholders in this
shares over which there is no preference prevents as in any other case, and it was to meet such a
these halves being preference shares. case that the Act requires their assent. The
Samuel Stephens for shareholders opposing the assent of the holders of these preferred half
shares must be obtained as required by the Act,
scheme.
Prior watched the case for the London, and the petition must stand over for three weeks
for that purpose.
Brighton,and South Coast Railway Company. The directors appealed.
NORTH, J. - I can only confirm this scheme if I
am satisfied that the assents required by the Act Cozens-Hardy, Q.C. and Grosvenor Woods for
have been obtained . [His Lordship read sects. 12 tte appellants. — When the ordinary sbares were
and 13 of the Railway Companies Act 1867.] The under the statutory power divided into preferred
assent of the holders of ordinary shares has been and deferred halves, the preferred halves did not
obtained , as the Act requires, but the assent of a become preference shares within sect. 12 of the
certain class of holders of half shares has notbeen Act of 1867. At the time when the Act of 1867
separately obtained , and the question before me was passed there was no power to divide shares,
is, whether it must be so obtained . If the model such power being given by the Regulation of
May 3, 1890.) THE LAW TIMES. [Vol. LXII., N . S.- 355
CT.or APP.] Re BRIGHTON AND DYKE Railway COMPANY. [CT. OP APP.
Railways Act 1868 (31 & 32 Vict. c. 119), s. 13. At right of voting that they would have done if
the time ofthe passing of the Actof 1867 the only they had been one entire share ? Wehave a little
definition of a preference share is found in the difficulty thrown upon us in this, that when these
Companies Clauses Act 1863 (26 & 27 Vict. c. 118 ), classes of split shares were introduced those who
ss. 13 and 14. Here the shares have not lost framed the Act had not their attention called to
their character of ordinary shares because they the question arising here, and did not provide
have been split into halves. There is no class of whether one of these two halves was to be
preference shareholders. More than one-third of considered as a preference share or not. I do
the shareholders have not exercised the option to not think we can hold the preferred halves to
divide their shares. If the preferred halves are be so, because preference shares, as defined by
preference shares it will enable one-fourth of the the Companies Clauses Act of 1863,mean this :
holders of preferred half shares to control share. " That the preference shares or the preference
holders holding nearly five times as much of the stock so issued shall be entitled to the pre
capital as themselves. Preferred shares of this ferential dividend or interest assigned thereto
description would not be held to be an authorised out of the profits of each year in priority to the
investmentas preference stock under the Trustee ordinary shares and ordinary stock of the com
Investment Act 1889 (52 & 53 Vict. c. 32). pany." That is not what is done here. The
S. Stephens for holders of some ofthepreferred dividend attributable to the ordinary stock is to
half shares.— The company have treated these be given to these sbares which have been split ;
holders of preferred half shares as preference but then with respect to that dividend one half of
the split share is to have a fixed dividend given
shareholders. The object of sect. 10 of the to it, and the remainder of the dividend is to go
special Act was to enable the creation of
preference shares without the necessity of obtain to the deferred half of the split share. One sees,
ing a new Act of Parliament. notwithstanding the arguments which have been
used , there may very likely be differences of
Cozens-Hardy, Q. C. replied . interest as between those who hold the preferred
Cotton, L .J. - I should hardly like to give an half which might make it very reasonable, if the
opinion , in a case where all the shares in a com judge thinks it right to say so, that there shall be
pany like this had been divided into preferred some assent obtained from those who hold the
and deferred shares, whether the result would preferred half shares ; but I cannot see that
not be that the former were preference shares in Parliament here by sect. 12 has dealt with these
the ordinary acceptation of the term ;but I think holders of half shares as a class of preference
there are at present here not a class of preference shareholders. I think we have in this case, as in
shares within the meaning of sect. 12 of the many others, to deal with this matter au some
Railway Companies Act of 1867. Of course this thing which ought to have been provided for,and
matter was not pointed at in the Act of 1867, 1 has not been provided for, and what we have to
because these split shares were not then in exist do is to see how best we can fit in a new state of
ence or authorised by law as far as I know . In things to legislation which was passed without
consequence of power to that effect having been any reference to that state of things. I differ
introduced into the Act of this railway company from the view which was taken by North , J., that
we are called upon to determine whether the the assent of the preferred half shares is required
shares which have been so split do form a class by sect. 12 ; but I express no opinion as to what
of preference shares within the meaning of the had better be done if he sees there is any difference
Act of 1867. I am afraid I do not entertain so of interest between the holders of the preferred
clear an opinion as my learned brethren do ; but and the deferred half shares.
I think these are not preference shares. We LINDLEY, L .J. - Mr. Justice North has ordered
have not the same nomenclature in the Act of a petition to confirm this scheme to stand over on
1877 , under which this company was formed , as the theory that this company contains a class of
in the Regulation of Railways Act 1868 , which persons who are preference shareholders within
treats part of the split shares as “ preferred ordi the meaning of sect. 12 of the Railway Com
nary stock," and the other part as “ deferred panies Act 1867, and that the requisite assents of
ordinary stock ;" but I think in substance we that class of shareholders to this scheme have
cannot say there is any class of preference shares not been obtained . There is no doubt, from the
here, for this reason, that in the Act of 1877 form of the order as drawn up, that that was his
there is nothing mentioned but ordinary shares, view , and we have to consider whether it was
there is no statement that there are to be any right. I have come to the conclusion that this
preference shares or stock at all, and on looking company has no class of shareholders who are
at the Act I see this, that when two of the shares preference shareholders within the construction
which are split cometogether they never dobecome, of sect. 12 of the Act of 1867, and that there
as far as I can see, one entire share. It merely fore there is no necessity for convening a meeting
is this , that the Act gives to anyone who holds such as is referred to in that section or for obtain
two split or half shares,whether they be deferred | ing the assents which would be necessary if there
or preferred , the same right of voting as if he | were a class of preference shareholders. It is
held an entire share ; but that is entirely different quite obvious that the confusion which has
from saying that the shares, when there are two arisen in this case arises from the practice which
united together , of whatever class they may be, has originated since 1867 so far as I know . The
do become one entire share. That to mymind method which is now not very uncommon of
creates a difficulty in the way of the view taken dividing stocks or shares into two halves was
by North, J., because, how can it be said there unknown in 1867, and when we come to look at
was any class of preference shares when there are the rights of the holders of the various halves,
no preferred shares, but only these two halves, although unquestionably there is a preference to a
which when they come together, give the same I certain extent between the holder of the pre
356 - Vol. LXII., N . 8.] THE LAW TIMES. (May 3, 1890.
CT. OP APP.] Smart v. TRANTER. [CT. OF APP.
ferred halves over the holder of the deferred | sue them in respect thereof, and recover subject to
halves, the holders of the preferred halves are not the payment of the probate and testamentary
what is commonly called preference shareholders expenses incurred in reference to these assets.
and are not within the class of people denoted by Decision of Kay, J. (59 L. T. Rep. N . S. 890 ;
that expression in the Act of 1867. Under these 40 Ch. Div . 165) reversed.
circumstances it appears to me that North, J. The plaintiff in this action was married to his
has erred in the construction which he has put wife before the Married Women 's Property Act
upon the 12th section of the Railway Companies 1882
Thecame
wife into
died operation . July 1887, having by
Act 1867. When the case comes before him he will on the 3rd
have to deal with it as prescribed by sect. 17,and her will dated the 26th July 1886 appointed
of course these holders of the preferred half executors, and having left all her property upon
shares will be entitled to be heard in opposition trust for her mother for life, with remainder to
to that scheme, and it will be the duty of the her brothers and sisters. She had no testa
judge to see that they are not unfairly dealt with , mentary capacity by consent of her husband.
and that their rights are sufficiently protected ; At the time of her death the wife was entitled
and of course he can , if he wishes, decline to con to a legacy of 501., payable upon the decease of
firm the scheme unless they assent. That is all her mother, and 1001., which was due from her
within his power under sect. 17, but this par. brother-in -law , but these assets had not been
ticular method of doing it appears to me not to | reduced into possession by the husband during
be necessary or required or wanted by the Act of her life .
1867. I think , therefore, the appeal must be The plaintiff entered a caveat against the proof
allowed and the case remitted to the learned judgeof the will, but afterwards withdrew it, and on
to be dealt with upon its merits. the 14th Nov. 1887 general probate of the will
LOPES, L .J. - In this company there were no was granted to the defendant, one of the executors
preference shares, they were all ordinary shares, of the wife, in accordance with the Probate Rules
but these ordinary shares have been split into of April 1887, r. 15 of which is as follows :
preferred and deferred shares. What I under
stand to be the definition of a preference share or Inofa the
grantwillof probate of the willdaring
of a married woman,
of a widow made coverture, or
is this, a right conferred upon the holder to letters of administration with such wills annexed , it
shall not be necessary to recite in the grant or in the
receive interest in priority to the ordinary share oath to lead the same the separate personal estate of
holders. Now , I cannot think that the holders of the testatrix,
these split shares are in that position , and I am the will has been or the power or authority under which
or purports to have been made. The
of opinion thatthis case does not comewithin the probate or letters of administration with will annexed
terms of sect. 12 of the Act of 1867. I have in such cases shall take the form of ordinary grants of
no doubt that in 1867 this plan of splitting the probate or letters of administration with will annexed,
shares into preferred and deferred shares had not without any exception or limitation , and issue to an
executor or other person authorised in usual course of
been devised , and that the Act of 1867 was passed representation to take the same ; a surviving husband,
without any reference to the state of things however, being entitled to the same in preference to the
which has happened in regard to this company . next of kin in case of a partial intestacy.
I think this appeal should be allowed . The plaintiff brought this action against the
Solicitors: Powell and Rogers; F. J. Blake ; executor who had proved , claiming the 501. and
Norton, Rose, and Norton . 1001. on the ground that his late wife had no
power to make a will.
Kay, J. held (59 L . T. Rep. N . S . 890 ; 40 Ch .
Div . 165 ) that the husband had mistaken his
Jan . 30 and 31. remedy, and should have applied to the Probate
(Before Cotton, LINDLEY, and LOPES, L .JJ.). Division to recall the probate, and then taken
SMART v. TRANTER. (a ) out administration to his wife.
APPEAL FROM THE CHANCERY DIVISION. The plaintiff appealed .
Husband and wife - Probate granted of will of no Itseparate
was stated before Kay, J. that the wife had
estate, but it had since appeared that
wife- Right of husband to wife's choses in action she died possessed of separate estate of trifling
- Probate Rules 1887, r. 15. amount.
A married woman married before the 1st Jan . 1883, Higgins, Q .C . and Barnard for the appellant.
possessing a small separate estate but having no The old practice was to grant limited adminis
testamentary capacity ,by consent of her husband tration to the wife's executor, and the husband
made a will by which she left all her property to could obtain a grant ceterorum . But subsequently
persons other than her husband, and appointed to the Married Women 's Property Act 1882 the
executors. ' She died in 1887, entitled to certain practice was altered by the Probate Rules 1887.
choses in action ,which had not been reduced into Notwithstanding that he may not have obtained
possession by her husband. Probate of the will administration the husband is equitably entitled
was granted to the wife' s executors in accordance to his wife's choses in action not reduced into
with the Probate Rules 1887, r . 15 . The husband possession . The persons
brought an action against the executors for the probate are trustees for thewhohusband have obtained
of these
choses in action . choses in action :
Held , that, although the husband could not have Re Lambert ; Stanton v. Lambert, 59 L. T. Rep.
sued the persons liable to his wife
in action without taking
for the choses
administration N . S. 429 ; 39 Ch. Div . 627 ;
out to Cart v.'Rees, cited in Squib v. Wyn , 1 P . Wms.
her, yet he had the beneficial interest in them 381.
when received by thewife's executors, and could | It is said we can obtain revocation of the grant
(a) Reported by A. J. SPENCER, Esq., Barrister-at-Law. I to the wife's executors ; but that is not so, as by
May 3, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 357
CT. OF APP.] SMART v. TRANTER. [CT. OF APP.
its rule the court is now bound to make a general , reduced into possession during her life without
grant. The ceterorum grant used to be made to taking outadministration to her ? It was because
the husband because the wife's executors could the choses in action not reduced into possession
only collect property settled to the wife's separate were assets of the wife to which the husband was
use. The new probate rule was passed in conse entitled by virtue of sect. 25 of the Statute of
quence of the case of In the Goods of Amelia Price Frands, which prevented the Statute of Distri
(57 L . T. Rep. N . S . 497 ; 12 P. Div. 137), and on butions from giving any right to the next of kin
account of the great inconvenience which would to the prejudice of the husband's previously
result if there were two grants out at the same existing right. It is under the joint effect of
time. In a case of Elliot v. Collier (3 Atk . 526 ) these two statutes that the husband is entitled
a husband, who had died without taking out as next of kin to assets of the wife which she
administration to his wife, was held entitled to l had no power to dispose of by will. The choses
her choses in action . in action in this case were the wife's assets, but
Whitehorne, Q .C . and Eustace Smith for the assets which , having regard to the existing law ,
she could not have disposed of by will, because
respondent. - The new probate rule of 1887 makes they came to her before the Married Women 's
no alteration as to the rights to the wife's pro Property Act 1882 was passed , and were not
perty. They cited settled to her separate use. How is the husband
Re Tharp ; Tharp v. Macdonald, 38 L . T. Rep . N . S. deprived of his rights as against the executors
867 ; 3 Ø. Div. 76 . to that portion of the wife's estate which she
COTTON, L .J. - In this case a very learned and could not dispose of by will, and which accordingly
ingenious argument has been addressed to us forms part of the undistributed personal estate
with regard to a very small sam , about 1501. of the wife ? If there were no husband, the next
which is nearly , if not all, reversionary . It is an of kin could bave claimed this property under
appeal from a judgment of Kay , J. to the effect the Statute of Distributions; but there being a
that the husband of the deceased ,whose executors | husband, he is entitled to that part of the estate
the defendants are, is not entitled to any indg. | of his wife which she could not dispose of by
ment in this action, butmust go to the Probate will. He has therefore a beneficial interest in it,
Division and get the grant of probate which has although he could not sue the person who was
been made to the defendant revoked ,and a grantof liable for the chose in action to his wife without
letters of administration made to bimself in respect taking out administration to her. But, as the
of any property which his wife could not dispose executors as her representatives are able to sue
of by will. The subject-matter of the plaintiff's such person and obtain payment, he (thehusband)
claim is two choses in action which did not fall can sue the executors for the money as being
into possession during his wife's life, but still their cestui que trust, when they have so obtained
remained reversionary choses in action , forming payment. But then it is said , and Kay, J. has
part of her estate at her death . She purported held here, that the plaintiff is wrong, and must
to make a will, and appointed two executors, go to the Probate Division , because the appoint
namely the defendants. According to the present ment of an executor amounts to some extent
practice of the Probate Court as laid down by to a disposition of the property of the tes
some recent orders, probate is not now as for tator or testatrix. It is said that the married
merly granted in respect only of so much as the woman makes a will and appoints executors, and
married woman had power to dispose of by will, the will has been proved , and that gives power to
and a grant of administration ceterorum granted her executors to dispose of the property accord
to the husband, but the grant of probate is in ing to their oath, and to pay debts,asthe appoint
general terms. The court assumes that the ment of an executcr and probate by him gives,
married woman has power to make a will as to to a certain extent, the power of disposition and
her separate estate, and as regards any property of paying debts and legacies and performing
which may have come to her after the passing of other duties imposed by the will. But there is a
the Married Women 's Property Act 1882 ; and so, fallacy in that. The mere appointment of an
without entering into the question whether there | executor and probate granted does not amount
is any property which she was not able to dispose to an admission that the testatiix can properly
of,and which would go to the husband, makes bequeath all her property which the executors
general grant of probate to the persons named by get in . The probate grant names the executors
her will as executors, instead of a limited grant as the persons who are recognised by the Pro
to her and a ceterorum grant to the husband. | bate Court as the persons named by the testator
Kay, J.has held that the husband could not claim or testatrix to get in the estate and assets of the
anything from the executors, but that he must deceased . The choses in action in the present
obtain revocation of the full grant to the execu case are property of the deceased which the
tors, and that there must be a limited grant to husband could not have claimed without taking
them , and a grant ceterorum made to himself, on out administration , and this he has not done.
the footing that a husband on the death of his But the mere appointment in this case of exe
wife can only claim her choses in action not re cutors and grantof probate to them in generalform
duced into possession on taking out adminis by the Probate Court did not amount to a recog.
tration to her estate , and that not having done nition of the right of the testatrix to dispose
60 he could not make the claim ; and that by beneficially of this particular property, but
bringing this action against the executors he merely recognised that they as representatives of
had admitted a title in them to all the estate the deceased were the proper persons to get in
of his wife, which the probate purported to grant everything forming part of her assets. That
to them . I think that there is a fallacy there. ingenious argument therefore fails. I think the
How did it come about that the husband was not plaintiff is entitled to say he is the beneficiary
able to obtain his wife's choses in action not i entitled to that part of his wife's assets when
358 _ Vol. LXII., N . S.] THE LAW TIMES. (May 3, 1890 .
Ct. Or APP.] SMART v. TRANTER . [CT. OF APP.
got in by the executors , but he must take it plaintiff to pay the costs of theappeal, but each
subject to such liabilities as he would be under party must bear his cwn costs of the previons
if he had himself taken out administration . He litigation .
would , if he had taken out administration , have LINDLEY, L .J . - A small sum of money is in dis .
had to pay the costs of taking out administra pute, but it has raised a discussion of consider
tion , and the debts of his deceased wife (if any) able importance, and the legal points involved are
which might have been contracted by her as a obscure and difficult. It is an action by a husband
single woman and be payable out of her pro against persons who have obtained probate of the
perty . It is said that there were such debts in will of his late wife. Part of the assets consist
this case. There might also be debts contracted of reversionary choses in action which had not
by her with reference to her separate estate, but been reduced into possession . The husband says
these are not debts of a married woman in the by his claim , “ Hand those effects over to me, ”
proper sense of the word ; that is to say, debts and the defendants oppose that demand. Kay,
payable by her administrators or executors out of J. has held that the husband has no locus standi,
the assets, but merely debts in the view of a court that he cannot claim from the defendants the
of equity which a married woman, although not assets of his late wife unless he can get the pro
liable for at law , could contract upon the credit bate granted to them recalled , and administration.
of her separate property. But are there in this to her estate granted to him . That is an intel
case any debts which would be payable by the ligible view ; but, having considered the case and
administrator of the married woman as such out heard the argument, I think Kay, J . has taken an
of her assets ? It is said there are several ; but I erroneous view of the position of the husband.
think we can find no such debts,because, although His right involves some inquiry as to the old law .
it is very true that the husband if he had taken His position will be found explained accurately
out administration might have had to pay for and clearly in Williams on Executors (8th edit.),
something for his wife, for instance, for neces p. 1494 , where it is said : “ It has been shown in
saries supplied to the wife in the shape of medi a former part of this treatise that the husband is
cines or otherwise, yet those would be his own entitled to the grant of administration of his
debts and not debts of the wife. There may wife's effects ; and consequently before the Statute
therefore be certain claims here for debts against of Distributions he was entitled, as all adminis.
the husband, but none against the wife, by which trators were, to exclusive enjoyment of the
I mean debts payable out of her assets by the residue. Doubts, however, arose whether the
administrator as such . Take the funeral expenses : | husband's right was not superseded by the force
a husband is bound to bury his wife, but here al of the statute ; and whether he was not thereby
portion of this expense has been borne by him bound to distribute her personal estate among
and the other portion by her executors. Of course the next of kin .” That doubt was set at rest by
a husband would not be bound to pay unreason sect. 25 of the Statute of Frauds, which said that
able expenses in burying his wife ; but an arrange neither the Statute of Distributions nor anything
ment was come to that he should pay a portion , therein contained “ shall be construed to extend to
while the greater portion of these expenses, in the estates of feme coverts that shall die intestate,
curred in consequence of the funeral having but that their husbands may demand and have
taken place in some part of the country , was | administration of their rights, credits, and other
agreed to be paid by the mother, and those extra personal estates, and recover and enjoy the same
expenses the executors must look to the mother as they might hare donebefore the making of the
to repay. We must therefore declare that the said Act." That left the husband where he was
husband is entitled to these disputed assets, before the Act, but it gave rise to another doubt.
subject to the payment of the probate and testa If a husband takes out administration he can get
mentary expenses properly incurred by the the reversionary choses in action of his wife ; but
executors with reference to these assets, there if he does not , in whom is the right to those
appearing to be no debt of the wife or funeral choses in action vested ? That doubt was solved
expenses properly payable out of her estate, I very early in the case of Cart v. Rees, which is
say nothing about her separate estate, which is cited in Squib v.Wyn (ubi sup.). There “ A wife
untouched by our judgment. It has reference died possessed of choses in action , and the husband
only to that portion of her estate which consists survived and died without taking out letters of
of the choses in action . We must therefore dis administration to his wife, after which the next
charge the order of Kay, J., and order repayment of kin of the wife administered to her, and Lord
to the husband by the executors of the costs Parker held that the administrator to the wife
ordered to be paid by him to them . The defen was but a trustee for the executors ofthe husband,
dants having persuaded the judge to make an the right to the wife's choses in action being by
order which turns out to be erroneous, we must the Statute of Distributions vested in thehusband
give the plaintiff the costs of the appeal. With as next of kin to the wife ; and whereas there is a
reference to the costs of the action , I am not proviso in 29 Car . 2 saying that the Statute of
well satisfied with the terms of the claim made Distribution shall not extend to the estates of
by the plaintiff 's notice ; but that notice was sent feme coverts that die intestate, but that their hus .
to the executors before tbey took out probate, and bandsmay have administration of their personal
after receipt of the notice of the plaintiff's claim estate as before the making of the Act, his
they still persisted in taking out probate. By | Lordship said this clause was made in favour of
resisting the plaintiff's claim without having any the husband and not to his prejudice ; so that it
good ground for so doing they really caused the was intended by the Parliament that the hus
whole litigation . If they had left the husband band should be within the Statute of Distribu
to take out administration to his wife, hemight tion so as to take the wife's choses in action as to
have got in these choses in action . It would be 1 his benefit, but should not be within the same as
improper under these circumstances to order the I to his prejudice ; and that this was not a new
May 3, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 359
Cr. OF APP.] SERLE v. FARDELL AND Co. [Chan. Div .
point, but had been settled and upon very good Solicitors for the plaintiff, Moore, Hewitt, and
reason ; for were the construction to be otherwise, Farman, agents for Å . W . Boodle, New Swindon .
the husband of the wife intestate would be in a Solicitors for the defendant, Collyer-Bristow
worse case than the next of kin , though ever so and Co., agents for Wood and Awdry, Chippen
remote, which was not the intent of the statute." ham .
There are other cases on the same point to be
found cited in Williams on Executors, 8th
edit., p . 1495, which have settled that doubt HIGH COURT OF JUSTICE.
whether the husband, if he survives, is
beneficially entitled to thewife's choses in action . If CHANCERY DIVISION .
he does not take out administration ,then thewife's Jan . 24 and Feb. 20 .
legal personal representative is the person to get (Before Kay, J.)
them in , but he holds them when got in in trust
for the husband. How does that case affect the SERLE v. FARDELL AND Co.(a)
rights of thehusband here ? It was not in former Practice - Official referee - Entering up judgment
times the practice of the Court of Probate to Motion to set aside judgment — Jurisdiction .
grant general administration to the estate of a Where an award has been made by an official
married woman, but it granted it to a limited referee, and judgment has been actually entered
extent to the executors, and to the husband the up, a court of first instance hasno jurisdiction to
administration of the rest. After the Married alter the findings of fact, so as to make the
Women 's Property Act 1882 that course was judgment inconsistentwith the findings, the only
found extremely embarrassing in practice. If, for remedy of the parties being to go to the Court of
instance , there were two legal personal represen . Appeal on the whole case.
tatives of the wife, to which of them was a person This was an action for an injunction to restrain
who was indebted to the wife to make payment? the defendants from interfering with the
So the practice was altered in 1887, when the plaintiff's ancient lights, and damages. There
present rule was made, and in conformity with was no question as to the plaintiff's right to
that rule, when a married woman dies leaving a ancient lights.
will, the court grants probate of the will to her On the 11th July 1839, when the action came
executors in general terms, and will not grant on for trial, Kay, J. thought that it was proper
partial probate to the executors and letters of to refer cases of this kind to the official referee,
administration as to part to the husband. It is a under sect. 57 of the Judicature Act 1873, as the
mere matter of machinery. The defendants here trial might be greatly assisted by local investi
obtained probate of the wife's will. They there gation,and made an order to the following effect :
fore are the only persons entitled in law in this Direct the official referee to try the action ,
country to get in her personal estate. These including particularly the following issues of fact :
reversionary choses in action forming part of her First,whether the defendants ' new buildings have
estate could not have been obtained by any person been raised higher than their old buildings ; and
without taking out administration to her estate.secondly , if so, whether such additional height
Before the Act of 1882 passed , assets such asmaterially diminishes the access of light to any
these, as they belonged solely to the husband, and which of the ancient windows of the
could not be willed away without his consent; plaintiff 's house, the officialreferee to have power
bnt it was quite open to contention that by to assess damages, and to deal with the costs,
common law , without reference to separate estate,
and to direct judgment to be entered accordingly.
there may have been debts of the wife contracted By his award , dated the 3rd Dec. 1889, the
and properly payable out of these assets ; for official referee found that of the defendants' new
instance, debts incurred before marriage, or buildings part had been raised higher than the
again, the married woman might have been a soleold , but part not ; and that the part raised higher
trader under the custom of the city of London . did not materially diminish the access of light
But it is obvious here that there are no debts to the plaintiff's ancientwindows; and hedirected
properly payable out of these particular assets.
“ judginent to be entered for the defendants
The result will be that, subject to the paymentof
against the plaintiff with costs."
probate and testamentary expenses, these assets On the 7th Dec. 1889 judgment was duly
belong to the husband, and he is entitled to a entered accordingly.
declaration to that effect. On the question of The plaintiff now moved, under notice dated
costs both parties are in the wrong, and I think
the 21st Dec . 1889, “ on appeal from the judg
the plaintiff should have the costs of the appeal,
ment of the official referee," for an order that
and each side should bear their own costs of thesuch judgment might be reversed and judgment
previous litigation. .. entered for the plaintiff, or a new trial had, on
Lopes, L . J. - The form in which probate isthe ground that the official referee was wrong in
granted does not alter the right of the bene point of law in giving judgment for the defen
ficiaries. When that is borne in mind, I do not dants, and that his findings were against the
think the case is so difficult to deal with as it at
weight of evidence ; and also that the time for
first sight appeared . It appears to me that theappealing against the judgment of the official
execators are the persons to get in the outstand.
ing choses in action , and the husband gets pay referee might be extended .
To this motion the preliminary objection was
ment from them , subject only to such deduc raised
tions as they would have been subject to if the diction that a court of first instance had no juris
to set aside an award of the official
husband had taken out administration under referee after judgment had been entered upon it .
the old practice. I agree with what has been
said by the other members of the court on the Marten , Q .C . and F . Boyle for the plaintiff.
other points. (a)Reported by E . A. SCRATCHLEY, Esq., Barrister-at-Law .
360 - Vol. LXII., N . S .] THE LAW TIMES. [May 3, 1890.
Coan. Div .] Re BUILDING SOCIETIES TRUST ; Ex parte LAUGHTON ; Ex parte Pooley. (Chan. Div.
Millar, Q. C. and E . Knowles Corrie, for the į The preliminary question was, whether this latter
defendants, referred to motion was a proper course, and the court
Dyke v. Cannell,49 L. T. Rep. N . S. 174 ; 11 Q. B . decided that it was. In giving judgment,
Div . 180 ; Cave, J., after referring to rule 34 of the then
Bedborough v. The Army and Navy Hotel Company , Order XXXVI., which was substantially identical
51 L . T. Rep. N . S. 173 ; 53 L . J. 658, Ch. with the present rule 52 of the same order , said :
Kay, J. said : - Order XL., r. 6 , provided that “ If the party seeking to impeach the report (of
“ where at a trial by a referee he hasdirected that the referee) does not do so before judgment has
any judgment be entered, any party may move been given upon it he is too late, because after
to set aside such judgment, and to enter any | judgment the report has no further value, and it
other judgment, on the ground that upon the is the judgment and not the report that is relied
finding as entered the judgment so directed is on by the successful party ; but so long as the
wrong.” The case there expressly provided for report of the referee is unconfirmed by a judg.
appeared to be the only case in which, after a ment of the court, I think it may be impeached.”
referee had directed judgment to be entered , a The effect of that was that after judgment had
court of first instance, or a divisional court, could been entered it was too late to move to set aside the
deal with that judgment. The question here was, referee's report. That seemed reasonable. How
could this court alter the finding of the official could the court more formally adopt the report
referee after judgment had been actually entered of the official referee than by entering up judg.
up ! This question could not occur very often ment . And the Act of 1884 enabled the official
again , because the power of the official referee to referee to do that which otherwise the court only
enter up judgment, and the power of the court to could do, namely , to direct the judgment of the
give him leave to do so, were now at an end. court to be entered up. In his Lordship's
Sect . 9 of the Judicature Act 1884 prorided that opinion it was too late after judgment had been
in any cause or matter “ the court or a judge entered up on the referee's finding to come and
may at any time, on such terms as may be say the finding was wrong. If the question was
thought proper, order the whole cause or matter whether the plaintiff against whom judgment
to be tried before an official referee, who shall was entered should comehere or go to the Court
have power to direct in what manner the judg. of Appeal to set it aside, his Lordship 's opinion
ment of the court shall be entered , and to exer was that his only remedy was to go to the Court
cise the same discretion as to costs as the court of Appeal, and that therefore this motion must
or judge could have exercised .” That section be dismissed with costs.
was repealed by sect. 26 of the Arbitration Act
1889, but was re-enacted by sect. 14 of that Act, Feb. 20.— KAY, J. referred to his judgment in
except the latter part as to directing entry of the this case, and said that in the argumentthe atten .
of the court was not called to Order XXXVI.,
judgment of the court. The re-enactment was, tion r. 50 , which provides that a referee “ shall have
that in any cause or matter requiring, amongst the
other things, as in the present case, local investi andsame in the
authority with respect to discovery , & c.,
conduct of any reference or trial, and
gation , “ the court or a judge may at any time the same power direct that judgment be
order the whole cause or matter, or any question entered for any or toeither party as a judge of the
or issue of fact arising therein , to be tried before High Court." His Lordship said that this case
a special referee or arbitrator respectively agreed was treated as though the Arbitration Act 1889,
on by the parties, or before an official referee or having repealed sect. 9 of the Judicature Act 1884,
officer of the court.” It did not go on to say that had taken away from the official referee the
the official referee should have power to direct in power of entering up judgment. But although
what way judgment should be entered. But the sect. 9 of the Judicature Act 1884 gave the official
order under which the official referee had acted referee power to deal with costs, and mentioned
in this case was made before that repeal. It was his power to enter up judgment, yet such last
made on the 11th July 1889, and the repeal took ! mentioned power was not derived by him from
place from the 1st Jan . 1890, so that at the time
the order was made there was jurisdiction to that Act, but from Order XXXVI., r. 50. That
rule was not abolished. Before the judgment was
direct the official referee to enter up judgment, entered
and the order made was an order in the form finding ofup the notice could be given to review the
then usually adopted . The referee having entered up any referee, and after judgment was
party could go to the Court of
decided the question referred to him , and having Appeal.
directed judgment to be entered , and judgment
having been entered , the question was whether Solicitors for the plaintiff, Digby and Liddle.
this court of first instance had jurisdiction to andSolicitors Son .
for the defendants, Saffery, Huntley,
entertain this application, to set aside the referee's
finding of the facts, and to enter a different judg.
ment. What was the practice existing in 1883 Saturday, March 15 .
was laid down in Dyke v. Cannell (49 L . T. Rep .
N . S . 174 ; 11 Q . B . Div. 183). The question in (Before CHITTY, J.)
that case was as to the proper course to be | Re THE BUILDING SOCIETIES TRUST LIMITED ; Ez
adopted by the unsuccessful party to a reference parte Laughton ; Ex parte Pooley.(a)
under sect. 57 of the Judicature Act 1873, where Practice- Company - Winding-up — Two creditors'
he desired to question the finding of the referee : petitions — Priority Advertisement - Answering
and it was decided that it was proper to move on petition - Companies Act 1862 (25 & 26 Vict.
notice to set aside the findings. There were two C. 89), 88. 82, 84 - General Order Nov. 1862, r. 2.
motions before the court - one for judgment on Where two or more petitions are presented to the
the findings, and the other to set aside the find
ings and to remit the action to the official referee. I (a) Reported by A. COYSGARNE SIM, Esq., Barrister -at-Lar.
May 3, 1890 .) THE LAW TIMES. [Vol. LXII., N . S.- 361
Chan . Div.] Re BUILDING SOCIETIES TRUST; Ex parte LAUGHTON ; Ex parte POOLEY. [Cuan. Div.
court for the winding- up of a company the order | on the file. Laughton 's petition might have been
will be made upon the petition first presented, advertised in the Gazette of the 25th or the 28th .
although the second petition may have been the This heneglected to do . The petition first adver
first advertised ,unless the first petition be proved tised will take priority :
RenotNorton
to have Iron Companybona(47fide.L. J. 9, Ch.)
been presented Re United Ports Company, 39 L . J. 146, Ch. ;.
Re Trades Bank Company, W . N . 1877, p . 268 ;
followed . Chadwyck Healey on the Companies Acts, p. 458,
PETITION . 2nd edit.
The above-named company was registered on At any rate, Pooley is entitled to his costs up to
the 26th July 1888 under the Companies Acts the time when he became aware of Laughton 's
1862 to 1886 as a limited company , the nominal | petition :
capital being 50001., divided into 490 shares of ReGeneral Financial Bank,47 L. T. Rep. N . S. 1;
101. each and 100 founders ' shares of ll. each . 20 Ch . Div . 276 .
This capital was subsequently increased by Pooley believed ,with good cause,that Laughton 's
15,0001., divided into 500 shares of 101. each and petition was presented in collusion with the com
2000 shares of 51. each pany. He should have his full costs.
Daniel Charles Laughton was a creditor of the T. Douglas, for a judgment creditor, supported
company for 431. 108., due on a dishonoured the prayer for a winding-up order.
acceptance, and for 481. 158. 2d . for work done,
making together 921. 58. 2d . CHITTY, J. - In this case thereare two petitions
to wind-up the company, one presented by
On the 25th Feb . 1890 he presented a petition Laughton
to have the company wound-up. on the 25th Feb ., and the other by
George Pooley was a judgment creditor of the Pooley on the 4th March . Both are answered
for the 15th March . When a petition is pre
company for the sum of 651. 28., due for work
done and services rendered upon a judgment sented the registrar, according to the present
obtained on the 19th Feb . 1890 . He issued a practice, allows the petitioner's solicitor a choice,
writ of fi. fa ., upon which the sheriff made a to some extent, on which day the petition is to
return of no assets. be answered ; but a request for a long period
Accordingly Pooley onpresented for instance, several weeks— will not be granted
wind-up the company the 4th a March
petition1890,
to without some good reason being shown. A peti
having been informed , it was alleged , on the tioner who has his petition answered for a later
26th Feb . previous, that Laughton 's petition had day than is necessary does so at the risk of
been presented . another petition coming in and getting priority
Pooley's petition was advertised in the London by being heard before the first can comeon. In
Gazette of the 4th March and in the Times and this case Laughton might have had his petition
Standard of the 6th March . answered for the 8th March , wbich would have
Laughton's petition was advertised in the given him time to insert the necessary advertise
London Gazette of the 7th March and in the ments ; and if Pooley could have had his petition
Standard of the 7th March . Both the petitions answered for that day, hemight have obtained a
were fixed to come on for hearing on the sameday , winding-up order, notwithstanding Laughton 's
the 15th March . petition. Now Laughton adrertised his petition
Rule 2 of the General Order under the Com . his on the 7th March , in time to allow by the rules
petition to come for hearing on the
panies Act 1862 provides that :
Every such petition shall be advertised seven clear imputed to. Laughton
15th March I do not think any blame can be
for choosing the 15th
days before the hearing as follows : (1) In the case of instead of the 8th March , or for not advertising
a company whose registered office, or if there shall be
no such office , then whose principal or last known his petition earlier, for there may have been cir
principal place of business is or was situate within ten cumstances on account of which the advertise
miles from Lincoln 's-inn Hall , once in the London ment was fairly postponed . I hold therefore that
Gazette and once at least in two London daily morning Laughton 's petition was properly presented . As
newspapers. (2) In the case of any other company once to Pooley's petition , which was presented on the
in the London Gazette, and once at least in two local
newspapers circulating in the district where such regis 4th March , advertised on the same day, and
tered office, or principal or last known principal place answered for the 15th March , he, as the second
of business (as the case may be) of such company is or petitioner, had , according to the rule, notice that
was situate . The advertisement shall state the day on
which the petition was presented, and the name and an earlier petition had already been presented .
I adopt the rule laid down by Jessel, M .R . in Re
address of the petitioner, and of his solicitor and London The Norton Iron Company (ubi sup.), and say
agent (if any).
The petition now cameon for argument. that the second petition would have been
rightly presented had Pooley been in a position
Romer, Q .C., Oswald, and Pochin in support of
Laughton 's petition . - If there are two petitions to prove that Laughton's petition was not properly
presented ; that is, presented collusively, or in
before the court the priority will be gone into bad faith . In that case he would have been
with the utmost strictness. Pooley presented justified in going on ; but here the suggestion
his petition with a full knowledge of the facts, that Laughton 's petition was not bonâ fide has
so that petition was wrongly presented : been disposed of, so the right course , following
Re Norton Iron Company,47 L . J. 9, Ch . Re ThetheNorton Iron Company (ubi sup.), is to
The order should be made on Laughton's make winding-up order on the first petition
petition . and to dismiss the second . It is said that
Byrne, Q .C . and T. B. Napier in support of James, L .J., then Vice-Chancellor, in Re The
Pooley's petition. — Pooley's petition was the first United Ports Company (ubi sup .) held that the
advertised . He waited purposely some days petition first advertised ought to have priority ;
after discovering that Laughton 's petition was I but, on looking into that case, I cannot find ,
362 - Vol. LXII., N . S.] THE LAW TIMES. (May 3, 1890.
Chan. Div .] Re Rees; WILLIAMS v. DAVIES. [CHAN. Div .
though there are some expressions of his which Mary Rees for the determination of a question
seem as if he thought priority of advertisement arising out of a bequest contained in the will.
gave priority, that he laid down any such abso The testatrix, who died on the 18th Oct. 1888,
lute rule, and if he did so it was not adopted by by her will, dated the 20th Dec. 1881, recited that
Jessel, M . R . in Re Norton Iron Company (ubi she was entitled under the will of her late
sup.) in 1877 . I find also in the report before husband Rev. Josiah Rees to a life interest in
James, V .C . that the first and second petitions her said husband's personal estate, and was also
were considered to be improperly presented . In i absolutely entitled as his widow , under the Statute
the case of Re The London and Australian Agency of Distributions, to one -half of the corpus of his
Corporation (29 L . T . Rep. N . S. 417), where said residuary personal estate ; and that her said
there were three petitions all properly presented , husband died on the 18th July 1881, and that his
the carriage of the order was given to the peti personal estate at the timeof his death ,after pay
tioner who first presented his petition . In Re ment of debts, amounted to about 12,0001. ; and
Trades Bank Company (W . N . 1877, p . 268 ) that she was anxious that the property of her late
there was really only one petition before the | husband should return to his own family . She
court, Frodsham 's, upon which the order was then gave and bequeathed 48001. (which she stated
made, and it is clear that the Master of the Rolls was equivalent to the moiety of her husband's
did not intend in that case to overrule what he estate to which she was absolutely entitled , after
had laid down a short time before in Re The deducting therefrom the amount of an advance
Norton Iron Company (ubi sup.). The case of which she had made to him in his lifetime) and
Re General Financial Bank (47 L . T . Rep. N . S . certain plate " to such person or persons aswould
1 ; 20 Ch. Div . 276 ) is in accordance with Re The have become entitled to my said husband's per
Norton Iron Company (ubi sup.). There a bona sonal estate under or by virtue of the Statute of
fide creditor presented a petition which he was Distributions had he died intestate and without
justified in continuing. If I had two petitions, leaving any widow him surviving." Then , after
each properly presented, before me I might have certain other dispositions, she gave her residuary
given the carriage of the order to the petitioner real and personal estate unto and to the use of
who first advertised . That is not the case bere. the plaintiff Elizabeth Williams and the defen
The result is, that I make an order for a compul. dant Thomas Rhys Saunders absolutely, in equal
sory winding-up on the first petition , Laughton's . shares ; and she appointed the defendant H .
Pooley and Mr. Douglas's client will have their Davies, and another person who did not act, to be
costs, one set between them , as appearing to sup executors of her will.
port the winding-up order , and Pooley will have By a codicil, dated the 17th Sept. 1885, the
his costs up to the time of presenting his petition . testatrix gave a pecuniary legacy ,and , in all other
No order as to costs will be made against Pooley, respects, she ratified and confirmed her said will.
the company not appearing. The statutory next of kin of the Rev. Josiah
Solicitors: Herbert F. Oddy ; W . A. Bilney, his Rees at the time of his death were, exclusive of
E . Todd. widow , his sister Mrs. Mary Saunders and
his niece the defendant Rosannah Rees. Mrs.
Saunders died on the 16th June 1882, in the life
Feb. 5 and 12. time of the testatrix, though after the date of her
(Before STIRLING, J.) will, a widow and intestate, leaving the defen
dants Thos. Rhys Saunders and Eliza Saunders
Re REES ; WILLIAMS v. Davies. (a ) her only children her surviving,and they ,together
Will — Next of kin of person dead at date of will with Rosannah Rees, were the sole statutory next
When to be ascertained . of kin of Josiah Rees at the time of the death of
Testatrix ,who died in 1888, by her will, dated the the testatrix .
20th Dec. 1881, gave a sum of money to such The question was, who were the persons to take
person or personsas would have become entitled the legacy given by the testator's will, the persons
to her late husband's personal estate under or by who were the next of kin of Josiah Rees at his
virtue of the Statute of Distributions had he died death , or those who were his next of kin at the
intestate, and without leaving any widow him timeof the death of the testatrix. This summons
surviring . was taken out asking for a declaration that, upon
Some of the persons entitled under the statute to the the true constraction of the will, and in the events
husband's personal estate at the death of the which had happened (i.e., the death of Mrs.
testatrix were different from those 80 entitled at Saunders in the lifetime of the testatrix ), there
his own death . was a lapse as regards one equal moiety of the
Held , that the persons to take must be ascertained legacy of 48001, and plate, and that by reason of
at the date of the death of the husband, and the such lapse such one equal moiety fell into and
gift read as a gift to such persons as would at the became disposable as part of the residuary estate
husband's death have become entitled to his per of the testatrix.
sonal estate under the statute, had he died intes Graham Hastings, Q .C . and Peck for the plain
tate and without leaving a widow . tiff. - Where there is a gift to the next of kin of
Held , also, that, as regards theshare of one of such a person by reference to the statute, unless an
persons who had died in the lifetime of the artificial class is created , the persons to take
testatrix, there was a lapse, and such share fell must be ascertained at the death of the person to
into and became disposable as part oj the resi whom they are next of kin :
duary estate of the testatrix . Bullock v. Downes, 3 L. T. Rep . N . S. 194 ; 9 H . of
L . Cas. 1 ;
This was an originating summons by one of the Mortimore v. Mortimore, 40 L . T. Rep . N . S. 696; 4
residuary legatees under the will of the testatrix App. Cas. 448.
(a) Reported by A. J. HALL, Esq., Barrister-at-Law . In this case there is nothing to show that the
CHAN , Div .] Re REES ; WILLIAMS v. DAVIES. [Chan. Div.
testatrix intended the persons to take to be to the rule. There is rothing in the present case
ascertained at any other time. The persons to to take it out of the general rule. There is no
take are to take in the same manner as they evidence to show that the testatrix knew either
would have taken under the statute. That is not at the date of her will, or the date of the codicil ,
a gift to a class so as to give the shares of those who her husband' s next of kin were.
dying before the period of distribution to the Graham Hastings, Q.C . in reply.— Where in a
survivors. The share of any so dying would will or settlement there is a reference to the
therefore lapse, and fall into the residue : Statute of Distributions, thestatute regulates the
Re Ham 's Trusts, 2 Sim . N . S. 106 . nature of the interest, as well as the persons who
In that case there was a recital, similar to the are to take under it :
one in this case, as to the intention of the testator Re Rawling's Settlement Trusts, L .Rep . 6 Eq. 601.
that the fund should go to his wife's relations. [ STIRLING, J. referred to Doody v. Higgins, 2
Philps y. Evans (4 De G . & Sm . 188 ), in which the K . & J. 729.]
Vice-Chancellor adhered to the principle laid Cur. adv.vult.
down by him in Bird v . Luckie (8 Hare 301), is only Feb. 12. - STIRLING, J. stated the facts, and con
an authority that where there is a gift to a tinued :- At the death of the widow some of the
tenant for life, followed by a gift to a class, the persons entitled to the husband's estate under the
class is to be ascertained at the death of the Statute of Distributions were different from those
tenant for life. entitled under the same statute at his own death ,
B . Eyre for the executor and the defendant and the question is , whether the persons to take
T. R . Saunders . under the gift are to be ascertained at the death of
Phipson Beale, Q .C . and Waggett for Rosannah the husband or at the death of the widow . The
Rees. - We claim the whole fund,Miss Rees being rule applicable to this case is stated thus by
the survivor of the persons who were the hus. Lord Hatherley, when Vice-Chancellor, in
band's next of kin . The testatrix must have Wharton v. Barker (4 K . & J. 483, at p. 502 ) :
meant to give the fund to those of them who “ According to Philps v. Evans, a bequest to the
were alive at the time at which she speaks, that next of kin of a person who is dead at the date of
is, the date of her will. The Statute of Distribu the will must, under ordinary circumstances,
tions shows the persons to take, and says they are receive an interpretation analogous to that
to take as tenants in common. The testatrix has adopted in the case of a bequest to the testator's
incorporated that provision in her will, and where own next of kin , as regards the period of ascer
there is a gift to a class as tenants in common , taining who are the persons intended, and if there
and one of the class dies before distribution , be nothing in the context to make the words
there is no lapse, but his share goes to the others applicable to a class to be ascertained at any
of the class. When there is a gift to the rext of other time than that of the testator's death , those
kin of a person dead at the date of the will, the who at the testator's death are the next of kin of
general rule is that the persons to take must be the deceased person named in the will would
ascertained in the same way as on a gift to the naturally be the persons to take." This view of
testator's own next of kin , so that those persons the law appears to be in accordance with the
who are the next of kin of the deceased at the decision of Sir William Grant in Vaux v . Hen
testator's death will be the persons to take, in the | derson , and that of Lord Romilly in Re Philps'
absence cf any context to show that the words Will . I have then to consider whether there is
were meant to apply to a class to be ascertained anything in the present case to take it out of
at some other time: the general rule, and it appears to me that the
Wharton v . Barker, 4 K . & J.483. words “ without leaving any widow him sur
There is ample context in this will to take the | viving " are sufficient to do so . One test appears
case out of that rule. The words are “ would to me to be conclusive. Ifthe testatrix really con
have become entitled " as the husband's next of templated that the class should be ascertained at
kin if he had died intestate,and “ without leaving her own death , it ought to be possible to insert in
any widow him surviving.” That shows that the the gift words expressly defining this period ,
testatrix looked upon her husband's death as the without making the language of the testatrix
time when the persons were to be ascertained ; inaccurate as regards the grammar, or repugnant
those words were not applicable to the time of or inconsistent as regards the meaning, and I
her own death . The testatrix made her codicil invited counsel to do so. The first suggestion
three years after the death of Mrs. Saunders, of | was to insert the words “ at my death ” after
which she must be taken to have known ; if her “ would ," so that the clause would run , “ to such
share had lapsed , that would have revived it in persons as would at my death have become
favour of the next of kin then living. entitled to my said husband's personal estate
Buckley, Q .C .and T. C . Wright for the defen . under or by virtue of the Statute of Distributions
dant Eliza Saunders. — The next of kin must be had he died intestate and without leaving any
ascertained at the testatrix 's death . The rule is widow him surviving.” Now , this is not gram
the same whether the gift is to the testator's own matically accurate ; strictly it ought to run, " to
such persons as would at my death become en
next of kin , or to those of a person dead at the titled,” & c. A more serious objection , however,
date of the will : is this, that the words “ without leaving any
Vaux v. Henderson , 1 Jac. & W . 388 ; widow him surviving ” become unmeaning ; the
Philps v. Evans (ubi sup .) ; testatrix was her husband's widow , and at her
Wharton v . Barker (ubi sup.) ;
RePhilps' Will, 19 L. T. Rep. N . S. 713 ; L . Rep . death there would be no widow entitled to share
7 Eq. 151. under the statute upon an intestacy. It was then
Re Ham 's Trusts (ubi sup.) was decided upon the suggested that the clause ought to be read thus ,
words of the particular will, and is not contrary | " to such persons as would have become entitled
364 - Vol. LXII., N . 8.] THE LAW TIMES . (May 3, 1890.
Chan. Div.] Re SHARP ; RICKETT v. SHARP. [CHAN . Div.
toor by
my virtue
said husband's personal estate under and Co., agents for Morgan and Richardson ,
of the Statute of Distributions Cardigan .
had he died immediately before me intestate | Solicitors for the other defendants, Clarke,
and without leaving any widow ." This hardly | Rawlins, and Co.
mends the matter, for, in the first place,
it appears to me to add something to the lan
guage of the testatrix, and, in the next place, Thursday, Feb. 20.
to make it really inconsistent. The testatrix was (Before STIRLING, J.)
her husband's wife at the time of his death , and
what she is really thus made to say is, “ had he Re SHARP ; RICKETT v. SHARP. (a )
died immediately before me intestate and without Will - Investment— “ Railway or other public
leaving me his widow him surviving." If the company.”
words “ immediately after me" were inserted Testator,by his will,authorised asa mode of invest
after “ died ," then , no doubt, the language would ment for his trust estate (inter alia ) " debentures
be consistent, but the words “ without leaving or securities of any railway or other public com
any widow " would be superfluous, for
hardly be supposed that the testatrix contem
it could pany carrying on business in any part of the
United Kingdom ." It was admitted that deben .
plated the possibility of her husband marrying tures of companies incorporated by Act of Parlia
in the brief interval between her own death and ment were within this power, and the question
his. On the other hand, if the words “ at my was whether debentures of companies formed
husband's death ” are inserted , so that the clause under the Companies Acts 1862 to 1886 were also
is read, “ to such person or persons as would at within it.
my late husband's death have become entitled to The F . Company,which was taken as typical of the
my said husband's personal estate under or by other companies upon the debentures of which it
virtue of the Statute of Distributions bad he was desired to invest, was a company formed
died intestate and without leaving any widow ," under the Act of 1862,with a capitalof 600,0001.
the language of the will becomes both gram ofwhich 480,0001.had
matical and self-consistent, and every word has of 161. each,with 11l. been issued The
paid -up. in 30,000
shares shares
of the
its natural force and meaning. I am of opinion , company had an official quotation on the Stock
therefore, that the persons to take are to be Exchange, and the debentures were dealt with
ascertained at the husband's death . Now , it is there, though they had no quotation .
laid down in Bullock v . Downes, that where there Held , without deciding what was in general a
is a gift to persons entitled under the Statute of " public company," that the debentures of this
Distributions, the statute regulates the interest company were a mode of investment authorised
taken as well as the parties to take ; and further , by the will.
that that rule applies even where the persons to This was an originating summons by the trustees
take are not all the next of kin according to the of the will, dated the 1st Sept. 1869, of the tes
statute, but all entitled as being members of tator William Sharp for the determination , under
that class, and entitled to property which Order LV., r. 3, sub-rules ( e) and (9 ) of the Rules
the next of kin would have taken under the of Court 1883, of the question whether the plain
statute. That case related to a gift to
persons entitled under the Statute of Distri tiffs as such trustees had power to invest part of
butions to the personal estate of the testator, the money forming the testator's residuary
and no case has been cited in which it has estate in the debentures of certain companies
been applied to a gift to the statutory next of incorporated under the Companies Acts 1862 to
kin of a person dead at the date of thewill; but 1886 , or some or which of them , as being within
I can see no valid ground for drawing any dis the meaning of the words “ debentures or securi
tinction . In my opinion,therefore, the gift must ties of any railway or other public company
be read “ to such persons as would at my hus. carrying on business in any part of the United
band's death have been entitled to his personal Kingdom ” in the investment clause in the will.
The defendants were an annuitant under the
estate under the Statute of Distributions had he will, and Mr. Joseph Sharp , one of the persons
died intestate and without leaving any widow
him surviving, in the shares and proportions in contingently entitled to the testator's residuary
which they would have taken under that statute." personal estate under the will, subject to certain
I think, therefore, that, as was held in Re Ham 's annuities and trusts. The companies upon the
Trust, and for the like reasons, there is an intes debentures of which the trustees were desirous of
tacy as regards the share of that one of the investing were the following : The Fore Street
husband's next of kin who died in the lifetime of Warehouse Company Limited , the India Rubber ,
the testatrix. It was indeed suggested that the Gutta Percha, and Telegraph Works Company
first codicil revived the will, or operated as a Limited, Pawson and Co. Limited , Carter Pater
fresh gift in favour of the next of kin then son and Co. Limited , the Hastings and St.
living. Even if the language admitted of such Leonards-on -Sea Baths and Aquarinm Company
a construction (which I do not think it does ), Limited , the Salt Union Limited , the Liverpool
there is no evidence that the testatrix knew who United Gas Light Companies, the Debenture
her husband's next of kin were, or that any of Corporation Limited , the Manchester Ship Canal
them had died . I make a declaration as asked Company, the London and St. Katherine's Docks
by the summons. The costs of all parties to Company, and the South Metropolitan Gas Com
come out of the residuary estate, and, if the pany. As regards the Liverpool United Gas
residuary legatees consent, as between solicitor Light Company, the Manchester Ship Canal Com
and client. pany, the London and St. Katherine's Docks
Solicitors for the plaintiff and the defendants, Company, and the South Metropolitan Gas Com
T . R . Saunders and H . Davies ; G . L . P . Eyre I (a) Reported by A. J. HALL, Esq., Barrister-at-Law .
May 3, 1890 .) THE LAW TIMES. [Vol. LXII., N . 8. - 365
Chan. Div.] Re BERRIDGE ; BERRIDGE v. TURNER . [Chan. Div .
pany, which were companies incorporated by Acts company within 1 & 2 Vict. c. 110, s. 14 , so that
of Parliament, it was conceded that the deben - a charging order could be made upon shares in
tures of such companies would come within the it. In Re Griffith ; Carr v. Griffith (ubi sup.)
investment clause . Sir George Jessel only decided that a particular
As regards one of the other companies, which company was a public company within sect. 5 of
were companies incorporated under the Com the Apportionment Act 1870, but he declined to
panies Acts 1862 to 1886 , the Hastings and st. give any definition of a " public company,”
Leonards-on -Sea Baths and Aquarium Company beyond saying that it was not a private partner
Limited , the information before the court as to ship . I object to investment in the debentures
the nature of the company was not sufficient for of all the companies other than the parliamentary
the determination of the question . The Fore companies .
Street Warehouse Company Limited was taken as STIRLING , J. - Unless it is desired to call my
typical of the remaining companies. That was a attention to the particulars of the other com
company iucorporated under the Companies Act panies, I will decide the question upon the Fore
1862 with an authorised capital of 600,0001., of Street Warehouse Company, which I think is
which 480,000l. had been issued in 30 ,000 shares clearly a public company. I will follow the
of 161. each , of which 111. was paid up. The course adopted by Sir George Jessel in ReGriffith
shares of the company had an official quotation Carr v. Griffith , and I simply expressmy opinion;
on the London Stock Exchange, and the deben - | that the debentures of these companies, other
tures which were issued were dealt with thereon, than the Hastings and St. Leonards Baths and
although they had not at present any official Aquarium Company, are within the power given
quotation . The summons was adjourned into by this investment clause. That is all that I say .
court, and now came on fur hearing. I do not say whether they are desirable invest
E. Beaumont for the summons.— The term ments or not, and I say nothing as to the Hastings
" public company ” would include a company and St. Leonards Baths and Aquarium Company .
incorporated under the Act of 1862 and the Neither do I say what, in general, is the meaning
amending Acts, as well as one incorporated by of the expression “ public company."
Act of Parliament. It is not quite clear what is Solicitors for the plaintiff, Beaumont and
a public company, but it would seem to be a com | Son .
pany which is incorporated , or, if unire ncorporated , Solicitors for the defendants , Steadman , Van
endowed by the Crown or Legisl atu with some Praagh , and Son.
special privileges , and bound to make some kind
ofreturn or list of its officers or members , which
the public have a right to see : Saturday, Feb . 15 .
Lindley on Company Law , 5th ed. pp . 9, 10, 462 ; (Before STIRLING , J.)
Macintyre v . Connell, 1 Sim . N . S. 225 ; Re BERRIDGE ; BERRIDGE v. TURNER. (a)
Re Griffith ; Carr v. Griffith, 41 L. T. Rep. N . S. 540 ;
12 Ch. Div. 655. Will — Charitable bequest - Validity of - Advance
In the last case Sir George Jessel, without ment of education in economic and sanitary
defining what was a “ public company," said that science in Great Britain .
one distinction between a public company and a Testator by his will gave 200,0001. to trustees, to be
private partnership is the right of transfer of paid exclusively out of such part of his personal
shares, though whether that is the test of what estate as might by law be bequeathed for
is a public company would seem doubtful from charitable purposes, and he directed that his
what was said in Macintyre v. Connell. trustees should stand possessed of the said legacy
Percy Wheeler for the defendant. - The words upon trust to apply the same " for the advance
here point to a company of the same nature as a ment and propagation of education in economic
railway company, that is, a company formed for and sanitary science in Great Britain ."
the purpose of some public undertaking under Held , that this was a perfectly valid charitable
bequest
the provisions of an Act of Parliament. The .
word “ railway " has no meaning in this clause, This was an originating summons, taken out by
unless it is intended to govern the succeeding one of the persons interested in the personal
words. If not so intended , the testator might estate of the testator Richard Berridge , for the
as well have said “ public company ” only. The purpose of obtaining a decision as to whether a
difference between parliamentary companies and charitable bequest in the will of the testator was
those formed under the Companies Acts, both as valid,
unc or whether the purpose of it was too
ertain
to their formation and termination , is so great .
that a testator might well wish to confine his The testator , who died in 1887, by his will gave
trustees to those of the former class. A company 200,0001. to trustees , and directed that such
formed under the Act of 1862 might be a mere legacy should be paid exclusively out of such
trading company , and if it had power to lay out part of his personal estate as might by law
its capital on properties of a wasting nature , be bequeathed for charitable purposes , and he
might trade away the whole of its stock : directed that his trustees should stand possessed
Lee v. The Neuchâtel Asphalte Company, 58 L , T . of the said legacy upon trust to apply the same
Rep . N . S. 553 ; 61 Ib. 11 ; 41 Ch . Div. 1 ; “ for the advancement and propagation of edu
Traford v. Boehm , 3 Atk . 440, 444 . cation in economic and sanitary science in Great
Cock v. Goodfellow (10 Mod. Rep. 489, 496 ) shows Britain .” And he declared that, if he gave no
that from a very early date the court has been | further directions as to the manner in which this
against the investment of trust money in trading charitable gift was to be carried out, his trustees
concerns. Macintyre v. Connell (ubi sup.) only might settle a scheme for the purpose at their
decided that a particular company was a public (a) Reported by A. J.HALL,Esq., Barrister -at-Law .
366 - Vol. LXII., 7. 8.] THE LAW TIMES . (May 3, 1890.
In Bank.] Re LLOYD ; Ex parte LLOYD. [ In BANK.
discretion , and such scheme, if approved by the sequentperiod if he is able to show that he has
Attorney -General for the time being, should be during that time displayed qualities the absence
valid and binding in all respects. of which lost him his discharge on the first
Graham Hastings, Q .C . and J. G . Wood for the occasion .
plaintiff.— The plaintiff is an infant, and it was This was an appeal from the decision of the
thought right to obtain the opinion of the court County Court judge of Manchester refusing the
upon this legacy. There was a somewhat similar bankrupt absolutely his discharge.
gift in Whicker v. Hume (1 De G . M . & G . 506 ). On the 19th May 1837 the debtor was adjudi.
The gift there was for the benefit, advancement, cated bankrupt, and on the 13th Jan. 1888 an
ard application by him for his discharge came before
everypropagation of education
part of the world as far asandcircumstances
learning in the County Court judge at Manchester and was
would permit, and it was held that that was a valid refused absolutely . On this occasion the official
charitable bequest. It is suggested that this receiver reported that the bankrupt had (1)
case is covered by that, but in that the gift was omitted to keep proper books ; (2) had continued
for the benefit of education generally, while in to trade after knowing himself to be insolvent;
this it is for the benefit of education in economic (3) had contracted debts without having any
and sanitary science, whatever that may mean . reasonable expectation of being able to pay
[SLIRLING , J. - Those words seem to me to be them ; and (4with ) had on a previous occasion made a
his creditors.
less vague than the words in Whicker v. Hume.] composition
On the 11th April 1889 a second application
Sir R .Webster (A .-G .) and Ingle Joyce for the was made by the bankrupt for his discharge, and
Attorney -General. was refused on the ground that thematter was
Fischer, Q .C . and George Henderson for the res judicata , as the order of the 13th Jan. was
trustees, final, and no second order could be made, the
STIRLING, J. - In my opinion this is a perfectly County Court judge saying that the proper course
valid charitable bequest ; it is for the purpose of for the bankrupt to pursue was to apply under
education of a particular kind, and I feel no sect. 104 .
doubt as to its being a valid gift. A scheme for Notice of motion was given under sect. 104 to
the more definite application of the fund will review , rescind, or vary the order, and on the
have to be settled . “ I make a declaration that 1st June an application was made and heard on
this legacy is a valid charitable bequest. The | the merits and was dismissed . The bankrupt
trustees must forthwith settle a scheme with the | appealed from the order refusing his discharge ;
Attorney -General for theapplication of the legacy , the facts of the case were as follows :
although it may not perhaps be possible to carry In 1836 the bankrupt commenced business as a
it out at once. designer of patterns for calico works; in 1840 he
Solicitors for the plaintiff, A. F . and R . W . became a drysalter and carried on business as
Tweedie. N . Lloyd and Co.
Solicitors fortheAttorney-General, The Solicitor In 1858 he sold his share in that business for
to the Treasury . 25,0001., and went into partnership with two
Solicitors for the trustees, Hunters and Haynes. others as calico printers.
In 1860 one of the partners retired ; and in
1871 the partnership went into liquidation, and
paid a dividend to creditors of fifteen shillings in
QUEEN'S BENCH DIVISION, IN the pound.
BANKRUPTCY . In 1875 the bankrupt commenced another
printing business at Church.
Wednesday, Nov. 13, 1889. In 1877 the bankrupt purchased , from the
(Before Cave and CHARLES, JJ.) trustees of the will of the owner of the premises,
ReLLOYD ; Ex parte Lloyd.(a) certain premises at Foxhill, where calico printing
Bankruptcy - Refusal of discharge— Application was carried on, the trustees retaining a mortgage
de novo for — Bankruptcy Act 1883 (46 8 47 Vict. overIn the premises.
1878 the bankrupt started bleaching and
c. 52), 88. 28, 104. finishing works Church at .
Where a bankrupt,who has been refused his dis In 1882 he leased the Foxhill printing works,
charge, applies a second time for it to the County
Court judge, such application , if founded upon andInmade over the business to his nephew.
the bleaching aud finishing works at
what was or what might have been before the Church1883 were taken over by a company, the bank
judge on the original hearing, should be an rupt receiving 50001. in cash, and 25,0001, in fully
application by way of revievo, and not an appli
cation to rehear. An application of this kind paidIn -upNov. shares.
ought to be made and decided upon before the destroyed by 1885 the company's works were
fire, the actual loss being covered
facts are gone into ,and should not be ex parte ; by insurance ; but the business was stopped , and
the applicant must make out a primâ facie case, in Feb . 1887, the company having got into diffi
and until such a primâ facie case is made out, no culties, the mortgagees entered and seized.
answer need be given by the other side. In March 1887 the company went into liqui.
Semble, an application for an order of discharge can . dation. The bankrupt's liabilities when the
not be made merely on the same materials which petition was filed were 19,9001., and his assets
were or might have been before the court on the 1121.
first occasion, but where the order of discharge has
Joseph Walton for the bankrupt. — The bank .
been refused on account of the bankrupt's mis. rupt has committed no misdemeanour. The
conduct, the bankruptmay apply again at a sub official receiver's report is misleading. The
(a) Reported by WALTER B. YATES, Esq., Barrister-at-Law . bankrupt's collapse was due to the failure of the
In Bank.] Re FREEMAN ; Eæ parte FREEMAN. [ In Bank.
Star bleaching company ; his books were per original order was right ; ” but that is a different
fectly correct. matter. When under ordinary circumstances the
judge comes to the conclusion that there are
Sidney Woolf for the petitioning creditor, and primâ
for thetrustee.- The question is , could this rehear his facie grounds which lead him to think that
ing take place ? No new facts were brought first order ought to be reviewed , if the other
forward. There was no jurisdiction to rehear, side are dissatisfied with that, they ought to
as this was the rehearing of a refusal to dis appeal against his determination to review his
own order. If they do not do that, but wait
charge.
Muir Mackenzie for the Board of Trade. The till the order has been reviewed , they run the
risk of being out of time in any appeal they
Board of Trade wish to leave the matter entirely might bring, and if they do not give notice that
in your Lordship 's hands. they intend to appeal against the order, they
CAVE , J., after dealing with the facts of the ought not to be heard to appeal against the order
case, continued : - The discharge has been in made on the review . These are all the remarks I
effect refused for two years, and in my opinion it desire to make on that part of the case, and I
should now be granted . I should like to say only make them for the purpose of preventing
something with regard to what was said by Mr. any misunderstanding, and that it may not be
Sidney Woolf as to the conduct of the learned supposed that I have assented to the view which
judge in granting the review . I should rather appears to have been taken by the learned judge
like to consider the matter before I entirely assent upon that part of the case .
to the view that he cannot entertain the appli CHARLES, J.- I am of the same opinion .
cation afresh . I should be disposed to go along
with him to this extent, that the application Appeal allowed .
cannot be made afresh merely on the samemate Solicitors for the bankrupt, Cobbett, Wheeler,
rials which were before him , or which mighthave and Cobbett.
been before him , when the application was made ; Solicitors for the petitioning creditor and the
but I am not at all satisfied , where the order of trustee, Rowley and Co., agents for Rowley , Page,
discharge has been refused on the ground of the | and Rowley , Manchester.
conduct of the bankrupt, that he may not come Solicitor for the Board of Trade, The Solicitor
at a subsequent period after some years, if he to the Board of Trade.
is able to show that he has during those years
displayed qualities, the want of which caused bis
discharge to be refused at the earlier period . A Tuesday, Feb . 18.
man , for instance, may have had his discharge (Before Cave and Smith, JJ.)
refused because he has kept his books very badly ,
and has committed other offences against the Re FREEMAN ; Ex parte FREEMAN. (a )
Bankruptcy Act ; but, after a lapse of someyears, Bankruptcy - Discharge - Considerations affecting
he may show thatthrough the schoolof adversity , -- Bankruptcy Act 1883 (46 & 47 Vict. c. 52),
either by serving as manager or in other ways, 8. 28 .
he has learned to do that which he has failed to | On the application by a debtor for his discharge
do before, and it may under the circumstances the County Court judge, upon the report of the
appear right to the court to restore him to that official receiver being of opinion that the debtor
position which the court was compelled to refuse had committed two offences under sect. 28 , and
to restore him to before. I do not desire to decide had otherwise been guilty of misconduct, refused
that point; I wish it to be known that it is not the debtor his discharge, but gave him liberty to
to be supposed that I think an application cannot apply again on his proving that he had paid to
be made de novo on these grounds. Where, how the official receiver such a sum as would , with the
ever, as here, the application to the judge is dividend already paid , make up a dividend of
founded upon what was or what might have been fifteen shillings in the pound. The evidence
before the judge on the original hearing, then showed that the debtor was in receipt of a small
undoubtedly it should be an application by way salary , and that a sum of 40001. would be neces.
of review , and not an application to entertain sary to makeup the required dividend.
over again the same facts as were or might have | Held , on appeal, that the order was too severe, and
been before him on the previous application which that,under the circumstances, the proper order to
he had already heard . The proper course in such make was to suspend the discharge for a period
& case as that is to ask for a review of the former
judgment, which was done here. Now , that un . Asofa three years .
general rule an order suspending a debtor's
doubtedly ought not to be an ex parte application : discharge for a period of three months or six
it ought to be an application made and decided months, should not be made, inasmuch as such
upon by the judge before the facts are gone into. period of suspension amounts to more than a
Of course the party asking for the review will nominal punishment, and yet is not sufficiently
have to give very good reasons why the review severe to be of any effect in discouraging debtors
should be granted, but it is not necessary that he from committing offences.
should do more than make out a prima facie case ,
which it is not necessary for the other side to This was an appeal from the decision of the
answer until the court has determined there is a judge of the Yeovil County Court refusing the
debtor his discharge, but giving him liberty to
prima facie case for granting an order for review .
No doubt the other side may, if they think fit, apply again for it on his proving by the report
of the official receiver that he had paid such a
say, “ I am able to show that there ought not to sum as, with the dividend already declared ,
be an order for review ,and if I do not satisfy you would amount to fifteen shillings in the pound .
that there ought not to be an order for review ,
I do not expect to be able to satisfy you that the I (a)Reported by WALTER B. YATES,Esq., Barrister-at-Law .
In Bank.] Re FREEMAN ; Ex parts FREEMAN. [ In Bank.
On the 14th April 1887 the debtor filed his own to one of his creditors. It would seem that he must
petition, upon which a receiving order was made, also have been guilty of a fraudulent breach of trust
| within sect. 28 , sub-sect. 3 (h ), and if the court is of
and he was adjudicated bankrupt. The state | this opinion it appears that the order of discharge
ment of affairs published by the bankrupt showed
ought to be wholly refused : (see the case of Re Payne ;
assets amounting to 41001. and liabilities to Ex parte Castle Mail Packet Company, 18 Q . B . Div .
19001. On the bankrupt applying for his discharge, 154.). The debtor also gave a charge on a promissory
note in favour of the Whittington Life Office, which was
the official receiver reported : so clearly a fraudulent preference that the office aban.
That as reported by the trustee a first dividend of 58. doned their claim when the trustee intimated he should
in the pound has been paid, and that a further dividend move the court in this case also. On applying to the
of 18. 6d , in the pound is expected to be paid to the trustee for the books of account to report as to theway
creditors. That the bankrupt does not appear to have in which they had been kept, I was informed that they
committed any misdemeanour under the Bankruptcy had been sold to Mr. Gatehouse with the business. In
Act 1883 or the Debtors Act 1869 . I am unable in my opinion this is a case in which , in the interests of
this case to report to the court in the ordinary way as the trade creditors, the order of discharge should be
to offences under sect. 28 of the Bankruptcy Act for the refused . the bankrupt to be at liberty at any time to
following reason : A receiving order was made on April apply again for his discharge on being able to satisfy
14, 1887, on the petition of the debtor himself, filed the the court by a report from the official receiver that he
same day, and at the first meeting of creditors held at has paid to the official receiver or trustee a sum suffi.
the official receiver's offices at Salisbury on the 28th cient to pay a further dividend making up a total
April 1887, Mr. Herbert Stowell, of Shaftesbury , high dividend of 20s, in the pound.
bailiff of the County Court, was appointed the trustee
by creditors, who were relatives and friends of the The County Court judge found that the bank .
bankrupt, against the wishes of the trade creditors, rupt had been guilty of a fraudulent breach of
whose nominee was Mr. T . J. Denman, chartered trust, that he had been guilty of a fraudulent
accountant, of Yeovil. Mr. Stowell has realised the preference, and that he sold his business before
estate, and up to the present time has paid a first divi. the date of the receiving order without the con
dend of 58. in the pound to the creditors, and it is pro sent of his creditors, and thereupon refused the
bable a further dividend of 18. 6d . in the pound will be
declared . It will be seen , on making a reference to the bankrupt his discharge, but gave him liberty to
notes taken at the public examination, that on the 25th apply again for it on his being able to satisfy the
or 26th March - hardly three weeks before the filing of court by a report from the official receiver that
he had paid to the official receiver as trustee a
the petition - the debtor sold his business, as he alleges,
to Mr. G . H . Gatehouse, an auctioneer of Shaftesbury,sum sufficient to make up the total dividend to 158.
for the sum of 20421., payment of this sum being made
by bills at four, eight, and twelve months, and it was in the pound.
further elicited that at the timewhen the business was The bankrupt appealed .
sold the debtor knew himself to be insolvent. The Herbert Reed for the bankrupt. - The bankrupt
bankrupt further stated that some of his creditors has, it is alleged , been guilty of three things :
expressed but
business, themselves in favour
others were of his having
of an adverse opinion .soldI may
his (1) Fraudulent breach of trust ; (2) fraudulent
point out that those in favour of the sale were the bank . preference ; (3) selling his business before re
rupt's own friends and relations, but the trade creditors ceiving order without the creditors' consent. As
attending the first meeting expressed great disatisfac to the first, the only evidence of it is his own
tion at the bankrupt having disposed of the business,
knowing himself to be insolvent, without consulting statement, and there is nothing to show that the
them ,and especially as he had taken bills, someof them breach of trust was fraudulent. Asto the second,
not payable for twelve months. This is a matter
to be specially brought before the court, and I ask for
that must be admitted . As to the third , he had
an opinion on this point with a view to publicity in the previously consulted his solicitors, and they
interest of creditors and the trading public gene advised him to dispose of his business. At the
rally . Further, one of the notes of hand was for 1301., most, therefore, he has been guilty of an error
and this the bankrupt indorsed to his solicitors, of judgment. The bankrupt is in receipt of a
with a direction in writing to them to hold the very small salary, and it is almost impossible for
same as representing the trust estate of Isaac Vining, him ever to comply with the order, which
deceased , of whose will the bankrupt was sole executor
and trustee. Vining at some time previous to his death means that he can never obtain his discharge.
in Oct.
his 1883,advanced
business, and this was bankrupt
thestill owing at
to be used
1001.Vining's in In Re Lloyd ; Ex parte Lloyd (ante , p. 366),
death , Cave, J. expressed an opinion that a bank.
and at the date of the receiving order. As trustee of rupt might at a subsequent date apply for his
Vining's will the bankrupt got in two sams of 501. each , discharge if he could show that he had since
and paid these into his general banking account, and the last application for it displayed qualities the
prior to the bankruptcy he paid 701. to the beneficiaries want of which caused his discharge to be refused
under the will , leaving a balance of 301. still to his
account, which be used in business. This 301., together on the previous occasion. Here he cannot prac
with the 1001.advanced by Vining before his death,made tically apply again at anytime. This order ought
up the 1301.which the note indorsed to his solicitors was not to have been made, as it is contrary to thelaw
to make good . The trustee moved the court to set aside laid down in
the transaction as fraudulent preference. The bankrupt
(who at his public examination stated that he was ReN .Shackleton
S . 648 ;
; Ex parte Shackleton, 61 L. T. Rep.
authorised by Vining to use the two sums of 501. aswell
as the first 1001. in his business) filed an affidavit
that he was in great apprehension as to his liabi.
ReC.Bullen
A.
; Ex parte Arnauld, 5 M . B. R. 243,
lity, and that his solicitors informed him he had com . He also referred to
mitted a breach of trust, and was liable to imprison
ment, and in order to make the money good and in
consequence of his solicitors' advice, to protect
Re Rankin ; Ex parte Rankin, 5 M . B. R. 23.
himself,
the judgeheheld,
indorsed the tonote
that as the to1001.
themadvanced
. His Honour
to the
Muir Mackenzie for the Board of Trade. He
has admitted the breach of trust. SMITH , J.
bankrupt by Vining there had been a fraudulent pre Where is the jurisdiction given to the official
ference in repaying the sum . The bankrupt therefore
brought himself within sect. 28 . sub -sect. 3 ( ) of the
receiver to advise the County Court judge? Is
Bankruptcy he not to report on the facts ?] as Yes. [CAVE, J.
date of the Act, as within
receiving order,three months
when unablepreceding
to pay the— The more important point is
his to the form of
debts as they became due, he gave an undue preference I the order ; in order to comply with it he has to
May 3, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8.- 369
In Bank.] Re FREEMAN ; Ex parte H'REEMAN . [ IN BANK.
pay 40001. or more.] I do not defend that part | him is, that he did what he ought not to have
of the order. done, and was thus guilty more of an error of
Cave, J. - I am of opinion that the order in judgment than moral misconduct when he sold
this case must bemodified. The charges brought the business. Now , these being the circum
against the bankrupt resolve themselves into stances, what is the order that should have been
three : First, it was said he was guilty of a made ? I have had occasion more than once to
fraudulent preference ; secondly, that he had say that I do not concur with orders suspend
been guilty of a fraudulent breach of trust ; and, | ing the discharge only for a period of three
thirdly, that he had sold his business shortly | months, or six months. I fail to see how they
before the receiving order without his creditors' | can be justified under any circumstances. There
consent. Now the first is made out : he was may be circumstances under which by the Act
guilty of a fraudulent preference to the extent of the judge has no discretion, and must suspend
1001., and that sum of money has been recovered the operation of the order, or in someway qualify
for the benefit of the estate. I do not think the it for some time, and when he thinks that sub
second charge is satisfactorily established. It stantially there has been no great fault committed
rested mainly upon a statement, which he made by the debtor. Then he does that which criminal
in a previous affidavit that he had been advised judges do in similar cases, e.g., gives a nominal
that he had committed a breach of trust, and was punishment ; but three or six months is not a
desirous of repaying the money he had diverted nominal punishment- it is more,and yet it is not
from its original purpose. All that is consistent sufficiently severe to be of any effect in dis
with a breach of trust not having been fraudulent. couraging debtors from committing offences of
There is a wide difference between the two. A that kind . That is why I always have a very
man commits a breach of trust when he applies great suspicion of sentences of such duration
money to any purpose not warranted by the deed without saying there would be no case in which
of trust. Such breaches do exist, and lead to they would be justifiable. I think those sentences
civil remedies not involving any dishonour or are passed by judges in the country very much
conduct which is morally blamable. Trustees more frequently than they ought to be, and that
are often induced to invest trust funds in un they hardly take a sufficiently grave view of the
authorised securities, in order to get a higher offences which bankrupts from time to time
rate of interest, and this is a breach of trust for commit. In this case, the learned judge has
which they have been made liable ; but no one certainly not erred on the side of leniency. He
willsay that this oughtto betaken into account, in has refused the order, and has given the bank
the event of bankruptcy following, in considering / rupt liberty to apply and renew his application
whether a trustee ought or ought not to obtain when he has satisfied the court by the report of
his discharge. I do not think the facts satisfac. | the official receiver that he has paid a total divi
torily show that the breach of trustwas fraudulent. ' dend of 158. in the pound. At present he has
Assuming Mrs. Harvey 's statement is correct, it paid only 68. 6d . in the pound, which leaves
would appear not to have been fraudulent in the 88. 6d . to be paid , and in all probability it will
sense that it was committed against the will and take nearly 40001. to provide this amount. So
without the knowledge of the cestuis que trust, long as he is an uncertificated bankrupt he is
who were deceived by false accounts. If the unable to trade,and, even ifhe could do so, is it pro
statement is true she knew and acquiesced in the bablethat hewould ever be ableto wipeoffthis very
breach of trust. The learned County Court seriousdebt ? I have said hefore that it is not good
judge, while warranted in coming to the conclu : policy to tie a millstone like this round a man's
sion that there was a breach of trust, was not neck , and thereby discourage him from all exer
warranted in coming to the conclusion that it tion of any kind. If there is a reasonable pro
was fraudulent. That undoubtedly was the point bability that he will at somefuture time be able
that weighed most heavily against the debtor. to pay an additionaldividend, and the dividend he
When a breach of trust is fraudulent it assumes bas paid is so small as to make it only right that
a criminalaspect, and is undoubtedly a matter of | he should if he has an opportunity make it up to
serious consequence which ought properly to be | his creditors, then an order that is framed for
taken into consideration by the judge on an the purpose of effecting that object is permissible
application for discharge. As to the third charge, and right. This, however, sems to me to go
I agree with the suggestion that that wasconduct beyond what could possibly be justifiable without
which was not justifiable. When a man is insol. evidence of a character which is entirely wanting
vent he has no right to take upon himself to in this case. I think in all probability that
decide whether or not his business ought to be it was passed by the judge because he had
sold or carried on . He is then carrying on his the idea that the bankrupt had committed a
business at the expense of his creditors, and fraudulent breach of trust ; but that, as I have
thongh sometimes by good fortune he may pull said , is not made out to my satisfaction , and I
through , yet as a rule going on trading under think that a simple suspension would be suffi .
these circumstances generally leads to bank . cient in this case. I have said that I rather
ruptcy and to a greater deficiency than favour an order with liberty to apply again than
there otherwise would have been . A man a simple suspension in many cases. It is espe
is not justified in going on, or selling, or in cially desirable where the report of the official
fact taking any step when he is insolvent, receiver shows that the bankrupt has shown an
without the concurrence of his creditors . In that incapacity to carry on his business in an ordinary
sense,then , thebankrupt wasguilty ofmisconduct. and proper manner by not keeping hooks or not
It is not, I understand, said that he did this in making out a balance-sheet. Whenever a man
order to put by secret gains for himself, or to has shown that he is not a proper person , in his
unduly favour persons to whom he sold . It present state of knowledge at all events, to be
seems to me the worst that can be said against allowed to trade, then it would be very proper to
370 _ Vol. LXII., N . S.] . THE LAW TIMES. (May 3, 1890.
.
IN Bank.] Re Jones; Eæ parte JONES. [IN BANK
make an order of refusal with power to comeup ! with his father, who refused to consent to the
again , in order that he may be able to show , when ma rriage, which the bankrupt thereupon broke
he does comeup again , that he has acquired that
knowledge of which he was deficient before, and In July 1885 an action for breach of promise
which in all probability contributed very much of marriage was brought against the bankrupt,
to his bankruptcy . In this case I do not see and in that action the plaintiff recovered judg .
tbat the bankrupt would be able to learn any- ment for the sum of 5001.
thing of which he is at present ignorant. Under In Jan. 1886 the bankrupt's father died , leaving
the present circumstances - that is to say , as long behind him personalty valued for probate duty
as he remains out of trade- he cannot possibly at 23151., and realty to the value of 13001. or
be guilty of anything in the nature of undue | 14001.
preference, nor can be possibly sell a business | By his will,made five days before his death ,
which he has not got, and keeping him in the posi all the children took a substantial share of his
tion of a clerk does not tend to teach him to property except the bankrupt, to whom a legacy of
avoid these things by anything which he learns 101. only, payable on his mother's death , was left.
while he is a clerk . That will be taught by On the 1lth April a receiving order was made
suspension of the certificate for a definite time. against the bankrupt on his own petition, and he
On the wbole case it seems to me that it would be was adjudicated bankrupt.
sufficient to suspend the order of discharge for a The assets amounted to the sum of 51., and
period of three years from the date of the order practically the only creditor was the plaintiff in
of adjudication . the breach of promise action , who proved for
SMITH , J. - Three years from the order of 5961. made up of damages, costs, and interest on
adjudication
case.
will meet the requirements of the herShortly
judgment debt.
before the petition was filed the bank .
Solicitors : for bankrupt, E. C . Rawlings, for | rupt's family offered the plaintiff 2501, in satis .
Rutter and Rutter, Shaftesbury ; for the Board of faction of her judgment,which was refused .
Trade, The Solicitor to the Board of Trade. On application being made to the County
Court by the bankrupt for his discharge, the
County Court judge granted the bankrupt an
order of discharge subject to his consenting to a
Feb . 12 and March 21. judgment for 2501. being entered up against him ,
such judgment to be deemed to be satisfied if
(Before Cave and SMITH , JJ.) the bankrupt paid the official receiver 2001. within
Re JONES ; Ex parte Jones. (a) a month .
Bankruptcy - Discharge - Considerations affecting From this order the bankrupt appealed .
conduct - Affairs - Bankruptcy Act 1883 (46 $ Sect. 28 of the Bankruptcy Act 1883 provides
47 Vict.c. 52), 8. 28. that :
Onunder
an application
sect. 28, thebycourtmay
a debtortake
for into
his considera
discharge (2) On the hearing of the application (for a discharge;
the court shall take into consideration a report of the
tion all the circumstances connected with the official receiver as to the bankrupt’s conduct and affairs,
bankruptcy, and is not bound merely to consider and may either grant or refuse an absolute order of dis
whether or not there has been miscond uct as charge or suspend
fied time, or grant the operation
an order of the order
of discharge for a tospeci.
subject any
defined by sect. 24 and sect. 28 , as conduct in conditions with respect to any earnings or income
sect. 28 isnot confined to the particular instances which may afterwards become due to the bankrupt, or
of misconduct mentioned in that section or in | with respect to his after-acquired property : Provided
sect. 24 , though it must be limited to conduct con - | that
wherethethecourt shall has
bankrupt refuse the discharge
committed in all cases
any misdemeanour
nected with or arising out of the bankruptcy . | under this Actor Part II. of the Debtors Act 1869, or any
Therefore, where a man against whom judgment amendment thereof, and shall , on proof of any of the
was recovered for 5001. in an action for breach of facts hereinafter mentioned , either refuse the order, or
promise of marriage was adjudged bankrupt on suspend the operation of the order for a specified time,
the petition of the plaintif in the action ,and the or grant an order of discharge subject to such conditions
as aforesaid ,
court granted his discharge subject to his con (6) The court may, as one of the conditions referred
senting to judgment being entered up for 2501., to in this section , require the bankrupt to consent to
such judgmentto be satisfied on payment of 2001. : judgment being entered against him by the official
On appeal, it was held that the judgment was under receivertheor bankruptcy
trustee for any balance of the debts provable
which is not satisfied at the date
correct,as the court was at liberty to take into of his discharge ; but in such case execution shall not be
consideration all the circumstances of the case, issued on the judgment without leave of the Court,
amongst which was an offer by the debtor's which leave may be given on proof that the bankrupt
mother before petition to pay 2501. in satisfaction bas since his discharge acquired property or income
of the debt. available for payment of his debts.
Re Betts ; Ex parte Board of Trade (56 L. T. Rep. Cooper Willis, Q . C. and F. C . Willis for the
N . S . 804 ; 19 Q . B. Div. 38 ; 59 L . T. Rep . N . S. appellant. — The judge had no power to take the
734 ; 13 App. Cas. 570) considered. facts and circumstances of this case into con
This was an appeal from the order of the County sideration , but he ought to have granted an un .
conditional order of discharge. The conduct
Court at Wrexham granting an order of dis which can be taken into consideration by the
charge, subject to the condition of the bankrupt's
consenting to judgment being entered against || referred
judge is limited to the species of conduct
to in sub -sect. 3 of sect. 28 , and that
him for the sum of 2501.
In Aug. 1884 the bankrupt became engaged to referred to in sect. 24 :
be married . At the time the bankrupt was living Re Betts and Block ; Ex parte The Board of Trade,
56 L . T. Rep. N . S. 804 ; 19 Q . B . Div, 38 ; 59 L. T .
(a) Reported by WALTER B. YATES, Esq., Barrister-at-Law . Rep . N . S. 734 ; 13 App. 570.
May 3, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8. - 371
IN BANK.) Re JONES; Ex parte JONES. [IN BANK.
The conduct here does not come within the either refuse the order or suspend the operation
meaning of either of these sections. The other of the order for a specified time, or grant an
thing that must be considered besides “ conduct ” | order of discharge subject to such conditions
is “ affairs." Affairs cannot be taken to include as aforesaid.” By sub-sect. 6 : “ The court may,
the magnitude of a particular debt. The court as one of the conditions referred to in this section ,
cannot regard moral actions; the Legislature require the bankrupt to consent to judgment
never intended they should be dealt with at all. being entered against him by the official receiver
The section saysunder what circumstancesthe dis or trustee for any balance of the debts provable
charge may be refused , and the inference is that under the bankruptcy which is not satisfied at
it cannot be refused under any other circum the date of his discharge ; but in such case execu
stances. Next, assuming the County Court tion shall not be issued on the judgment without
judge bad power to deal with this case, has he leave of the court, which leave may be given on
exercised that power rightly ? Thisman is a poor proof that the bankrupt has since his discharge
man, and to put a judgment upon him of so large acquired property or income available for pay
an amount is a hardship. There is no possibility ment of his debts.” Now , looking at this section
of this judgment being met, so it ought not to according to its natural grammaticalmeaning, it
have been imposed as a condition that he should seems clear that the court is to take into con
consent to judgment : sideration the bankrupt's conduct and affairs,
Re Bullen ; Ex parte Arnaud, 5 M . B . R . 243 ; and after such consideration may in the exercise
Re Shackleton , 61 L . T. Rep . N . S . 648 ; of a judicial discretion grant, refuse, or suspend
Re Brocklebank ; Ex parte Dunn v. Raeburn ,61 L , T. the order of discharge, or grant it subject to
Rep . N . S . 543 ; 23 Q . B . Div. 461. conditions. Then comes a proviso, which in
Muir Mackenzie for the official receiver. The certain cases takes away this discretion , and
original proofwas for 5961., and this judgment is compels the judge to refuse ormodify the order.
for 2501. They have made an offer to settle for According to its natural and grammatical con
2501. What Lindley, L .J. said in Re Bullen ; struction the proviso does not cover the wbole of
Ex parte Arnaud, was only an obiter dictum . This the ground taken up by the first part of the
question has been settled in section , and still leaves room in cases not covered
Re Clarkson ; Ex parte Allestree, 2 M . B . R . 219 ; by the proviso for the exercise of the discretion
and Re Shackleton (ubi sup.). of the judge. What then is to be understood
The point in Re Betts and Block : Ex parte the by the words “ conduct and affairs P” We
Board of Trade, was the conduct of the bankrupt, were invited by the appellant to hold that
sucb conduct as the registrar must take into the conduct which can be considered by the
consideration. In Re Cook (61 L . T . Rep. N . S . judge is limited to the species of conduct
335) the court took into consideration the general referred to in sub-sect. 3 of sect. 28 , and that no
conduct of the bankrupt. The County Court conduct outside that sub -section and sect. 24 can
judge was right in the order hemade. be looked at. In support of this contention
Lankester for creditors. reliance was placed on Block 's case. In that case
F . C . Willis in reply. the debtor, after his bankruptcy, had refused to
Cur. adv. vult. comply with the request of the trustee that he
should be medically examined in order that an
March 21.- The judgment of Cave, J., in which insurance might be effected on his life with the
Smith , J. concurred , was delivered by Law view of selling a reversionary interest he
rence, J . possessed to the best advantage. It is obvious
CAVE, J. — This was an appeal against an order that, unless a duty to comply with such a request
of the judge of the County Court at Wrexham is somewhere imposed on the bankrupt, a refusal
granting an order of discharge subject to the to submit to medical examination is not mis
condition of the bankrupt consenting to judg. conduct, and therefore that it was necessary to
ment being entered against him for 2501. The find something in the Bankruptcy Act from
facts of the case were as follows : [His Lordship which it could be inferred that it was the duty of
stated the facts of the case and continued : ] , the bankrupt to submit to such an examination .
For the appellant it was contended that the The case turns entirely on the question whether
learned judge had no power to take the above | there is or is not such a duty to be inferred , and
facts and circumstances into consideration , and it was held, both in the Court of Appeal and in
ought to have granted an unconditional order of the House of Lords, that no such daty is imposed
discharge. Sect. 28 , sub-sect. 2, of the Act of on the debtor, that being so, such refusal was not
1883 provides that : “ On the hearing of the appli misconduct within the meaning of sect. 28, and
cation (for a discharge) the court shall take into consequently not conduct which the judge could
consideration a report of the official receiver as consider on the application for a discharge. Our
to the bankrupt's conduct and affairs, and may attention was, however, particularly called to cer
either grant or refuse an absolute order tain dicta in that case which deserve our respectful
of discharge, or suspend the operation of the consideration . In the Court of Appeal Lord
order for a specified time, or grant an order of Esher remarked that “ the conduct which is to
discharge subject to any conditionswith respect be taken intoaccount under sect. 28 in determining
to any earnings or income which may afterwards whether the bankrupt should be discharged, if it
become due to the bankrupt, or with respect to be not one of the matters specified in that section ,
his after-acquired property. Provided the court must be something described in sect. 24 .” The
shall refuse the discharge in all cases where the observations of Lopes, L .J. in the same case were
bankrapt has committed any misdemeanour ) also urged upon us. His Lordship says : “ In my
under this Act or part 2 of the Debtors Act opinion the word ' conduct ' in sect. 28 does not
1869, or any amendment thereof ; and shall, on include what I will call generalmisconduct. For
proof of any of the facts hereinafter mentioned, I instance, it .could not, I imagine, be said to include
In Bank .] Re JONES; Ex parte Jones. [ IN BANK.
immoral conduct, however culpable or however and of the way in which credit is given to persons
unreasonable. Nor again, in my opinion , would of that class. Take again such a case as that of
it include a breach of an obligation not connected Re Clarkson ; Eæ parte Allestree, where, on a con
with the bankruptcy, such for instance as a sideration of the bankrupt's affairs,my brother
breach of promise to marry , however dis Smith and I modified the order of discharge in
honourable and however unreasonable the con - the manner pointed out by sub-sect. 6 . It was
duct of the bankrupt in that respect might be." | indeed suggested there that the bankrupt bad
In the House of Lords, Lord Macnaghten is brought himself within sub-sect. 3, because he
reported to have said : “ The question is , was had pleaded a defence to an action for breach of
such refusal conduct which ought to have promise ofmarriage, which defence he had after
been taken into consideration when the bank wards withdrawn ; but, assuming that the plain
rupt applied for his order of discharge ? That | tiff in an action of breach of promise of marriage
depends on sects. 24 and 28 of the Act of 1883 is a creditor within sub-sect. 3, the expense the
The case does not fall within any of the cases plaintiff was putto by pleading a defence which was
specified in sect. 28. The appellants are | afterwards withdrawn could be butsmall,and sub
therefore driven to rely on sect. 24 ." The argu stantially the result would have been the same if
ment founded on those dicta was that they estab he had let judgment go against him by default.
lished the position that the only conduct of the In my judgment, therefore, the learned judge was
bankrupt which could be taken into consideration justified in taking into consideration the affairs
was that specifically described in sub-sect. 3 of of the bankrupt, and if on such consideration he
sect. 28 . Now , in the first place, this argument came to the conclusion that the bankrupt would
gives no meaning to theword “ affairs" in sect. 28 , probably come into possession of property in the
sub-sect. 2. It has been pointed out by Lindley, future, and had presented his petition in order
L . J. in Bullen 's case that the condition which may that he might get rid of his creditors first,
be imposed under sub-sect. 6 is not to be imposed and enjoy his subsequently -acquired property
as a general punishment for misconduct.' His without having to pay any portion of his debt, it
Lordship there says : “ There is no evidence that I was within his power to make the order which he
the man (the bankrupt) will ever have any after has done. In my opinion , looking at the offer to
acquired property , and under these circumstances pay 2501., which was made shortly before the
I think primâ facie one ought not to tie a man petition was presented, and to the circumstances
up by such a judgment (under sub-sect. 6 ). A and position of the bankrupt, the judge was
man ought not to be placed in such a position justified in coming to that conclusion , and I have
unless something is likely to be gained by it." very little doubt that themoney will ultimately
In these observations, if I may respectfully say be paid . These considerations are sufficient to
so, I entirely concur ; and in Shackleton 's case I dispose of this appeal ; but I should like to
endeavoured to express the same idea . But the | add a few words with reference to the dicta
conclusion I draw from the use of the word in Block 's case above cited, because in some
“ affairs ” in sect. 28 , and from this particular quarters they have been taken as amounting
condition in sub -sect. 6 , is, that it was not the to a decision that the “ conduct ” referred
intention of the Legislature that a man who was to in sect. 28 must be confined to the in
not able to pay his debts at a given time,but who stances of misconduct specified in sub-sect. 3
had reasonable expectations of acquiring property or in sect. 24 . Now , the subject of complaint
afterwards, should take advantage of the Act to in Block 's case was that the bankrupt had refused
get rid of his debts on payment of a small to submit to a medical examination , which the
dividend, or perhaps none at all, and by getting trustee desired him to submit to in order that
an unconditional discharge put himself in a he might insure the bankrupt's life. This was
position to enjoy without molestation from his conduct of a negative character, and in order to
creditors that property which he had every reason establish that such a refusal is misconduct, it is
to believe would shortly devolve upon him . Let necessary to show that the bankrupt is by law
me take the very common case of a man who has required to do the thing which he has refused to
reason for thinking that he will take large pecu do . The only sections which were referred to for
niary benefits under the will of his father, or an this purpose were sects. 24 and 28 . Sect. 28 , sub
uncle, or some other wealthy relative. Such sect. 2 , refers to particular kinds of misconduct
expectations are very naturally shared by those enumerated in sub-sect. 3. Sub-sect. 7 prescribes
who are acquainted with his position , and trades the conduct of thebankrupt after his discharge.
men and others are ready to give such a man Sect. 24 imposes certain duties on the bankrupt
credit in the expectation of being paid when with reference to giving information to the
these expectations are realised . If the contention trustee and the creditors and aiding in the realisa
of the appellant is correct, such a man might, tion of his property and the distribution of the
after he had enjoyed the benefit of his credit, and proceeds among the creditors. According to the
when all his creditors were content to wait till view of themajority of the Court of Appealand
these expectations were realised , file his petition of the House of Lords respectively, neither of
in the Bankruptcy Court, and in the absence these sections required the bankrupt to submit
of fraud demand his discharge without paying to a medical examination , and therefore he was
his creditors any dividend, thus leaving himself | not guilty of any misconduct within sect. 28.
free to enjoy the benefits of his relative's gene This view of the subject amply explains all that
rosity without sharing a sixpence of it with those was said by Lord Macnaghten , and leaves only
who had trusted him in the expectation of being the dicta of theMaster ofthe Rolls and Lopes, L .J .
paid out of this fund. That such a state of to be dealt with . The Legislature has nowhere
things could be brought aboutwithout any actual expressly defined what is the “ conduct " which
fraud on the part of the expectant heir is obvious is to be considered under sect. 28 , sub -sect. 2 .
to anyone with the least knowledge of the world i To mymind, it is quite impossible to hold that
W
May 10, 1890 .] THE LAW TIMES. [ Vol. LXII., N . 8. - 373
IN Bank.} MANNING v. COMMISSIONER OF TITLES. [Priv . Co.
the proviso in that sub -section is co -extensive bankruptcy which the bankrupt had failed to
with the first pare the sub-section , for if that account for satisfactorily . Surely it cannot be
were so, and if no conduct could be considered that in all these cases the bankrupt is entitled to
except such as is specified in sub-sect. 3, it would insist upon an unconditional and immediate dis
necessarily follow thatmisconduct coming within charge as soon as his public examination is con
sect. 24 could not be considered , nor yet conduct cluded . None of these considerations were before
coming within sect. 29, which , however, by the the Court of Appeal in Block's case. The court
express language of the Act is to be considered . was not dealing with blameworthy acts of com
There is , therefore, necessarily conduct to be con mission which had brought on the bankruptcy, or
sidered other than that specified in sub-sect. 3 , had caused any creditor to trust the bankrupt,
and it is conduct which the Legislature has or which had squandered the assets before they
considered may be dealt with by a lighter were handed over to the trustee. It was dealing
punishment than the conduct specified in sub with a refusal to do an act after all the assets had
been handed over to the trustee, and which , in
sect. 3, for the Legislature has invested the judge
with more discretion with regard to it. Of course the opinion of the majority of the court, was a
the word " conduct ” must have some limitation . refusal to do something which had no relation to
It cannot apply to the man 's bebaviour from the his property or to the distribution of it, and
timehe becameresponsible for his actionsdown to therefore it was necessary to find, either in sect. 28
the day of the hearing. As was held in Brockle or sect. 24, an express or implied prohibition of
bank's case, the conduct referred to must be con such conduct, or at all events of conduct of an
duct connected with or arising out of the bank analogous nature, and, as the Court of Appeal
ruptcy. So far as I can judge, that is all that and the House of Lords beld , no such express or
Lopes, L . J. meant to say in that part of his implied prohibition is to be found. I need hardly
judgment in Block 's case which has been cited say that I accept unhesitatingly the decision of
above. Of what nature is the conduct specifi - | the House of Lords in Block's case, which indeed
cally referred to in sub-sect. 3 ? It is conduct of affirms in effect a decision of my own ; but I do
Farious kinds connected with the bankruptcy ; not think that the dicta referred to have the wide
as for instance, in the case of a trader neglecting import which has been attributed to them , because
to keep proper books or continuing to trade after I believe that the Master of the Rolls and Lopes,
heknew himself to be insolvent, or in the case of L .J. had before them very different considerations
any bankrupt contracting a debt without reason. | than those which I have been discussing above.
able prospect of payment, bringing on the bank . | The appeal must be dismissed with costs.
ruptcy by blameable speculation or extravagance, Smith , J. concurs in this judgment.
putting a creditor to expense by a frivolous or Appeal dismissed .
vexatious defence to an action, undue preference,
former bankruptcy , fraud , or fraudulent breach Solicitors for the appellant, Rookeand Son, for
Wynne Escans, Wrexham .
of trust. It is difficult to reduce these kinds of Solicitor for the respondent, The Solicitor to
conduct to any general head. They are all con the Board of Trade.
nected with the bankruptcy under investigation Solicitors for creditors, Morgan, Son , and
except (9), which refers to a previous bankruptcy
or arrangement with creditors. They are all Upjohn, for Williams and Millard , Dolgelly.
acts of commission except (a) the omission to
keep proper books of account. Let us suppose
that the bankrupt has been guilty of conduct
analogous to that referred to in sub-sect. 3, and
injurious to his creditors in the same kind of
JudicialCommittee of thePrivy Council.
way, is he nevertheless to be entitled as a matter Feb . 6 and 22.
of right to an absolute order of discharge ? (Present : The Right Hons. Lords WATSON ,
Suppose it were proved that the bankrupt had
caused his clerks to keep the books required by HOBHOUSE, MACNAGHTEN , and MORRIS, and
clause (a ) but had neglected to look at them , and Sir BARNES PEACOCK .)
therefore had continued to trade after he was MANNING v. COMMISSIONER OF TITLEs. (a )
insolvent without knowing himself to be so ; or ON APPEAL FROM THE SUPREME COURT OF WESTERN
suppose that he had not brought on but contri. AUSTRALIA .
buted to the bankruptcy by rash and hazardous Law of Western Australia - Transfer of Land Act
speculation or unjustifiable extravagance in living , 1874 — Registration of title - Powers of com
or had brought on his bankruptcy by gambling missioner.
orby culpable neglect of his business , or that he By sect. 19 of the Transfer of Land Act 1874
had pat any of his creditors to unnecessary (38 Vict. No. 13) the Commissioner of Titles is
expense by bringing a frivolous or vexatious
action or counter -claim against him , or that he directed , upon certoin conditions as to in .
had dissipated his assets by making payments cumbrances having been complied with , to
which were undue preferences within sect. 48 , advertise an application for the registration of
but not within sub -sect. 3 (which substitutes a a title , and to serve notices on persons affected ,
different starting point for the three months " and shall appoint a time . . . after the
to run from ), or which would have been undue expiration of which " he “ shall, unless a caveat.
preference if the petition had been presented shall be served forbidding the same, bring the
three days earlier ; or (to take a case not so cognate land under the operation of this Act."
to the cases in sect. 28 as those already given ) Held (affirming the judgment of the court below ),
that the bankrupt's assets were insufficient to pay that, after the commissioner had expressed
any dividend, or that there had been a very large himself satisfied with the title ,and had advertised
loss or disappearance of assets shortly before the 1 (a) Reported by O. E .MALDEN , Esq., Barrister-at-Law .
VOL LXII., N . S., 1591.
374 - Vol. LXII., N . S.) THE LAW TIMES. [May 10, 1890.
Priv. Co.] MANNING v. COMMISSIONER OP TITLES. [Priv . Co.
in accordance with the section , he still had a l title fairly made out, and that he should
discretion to refuse to register should any furtheradvertise. He advertised according to sect. 19,
information casting doubt on the title come to and fixed the 29th Oct. as the last day for
his knowledge, even though no caveat was served . entering caveats. No caveatwas entered , bat,in
This was an appeal from a judgment of the the language of the special case, " on the 24th
Supreme Court of Western Australia , delivered Oct. the commissioner forwarded to the solicitors
for the applicant a declaration and certain deposi
by the Acting Chief Justice (G . W . Leake, Esq.), tions
Stone, J. dissenting, upon a special case. on oath which he had taken without notice
The facta, and the sections of the Act of Parlia to the applicant, and which tended to throw
ment upon which the case turned , are fully set doubt on the applicant's possession." On the
28th Oct. the commissioner formally notified to
out in the judgment of their Lordships. the solicitors that the application was rejected.
Bowen Rowlands, Q.C. and Cowell appeared The course then taken by the solicitors and
for theappellant. the commissioner is thus stated in the special
Rigby, Q.C . and J. G . Wood for the respondent. case : “ 7. The applicant's solicitors consider the
rejection is beyond the power of the commissioner,
At the conclusion of the arguments their Lord . and
ships took timeto consider their judgment. contend that the commissioner having once
expressed himself satisfied
and with
havingtheadvertised
title as
Feb. 22.— Their Lordships' judgment was de proved by the applicant,
livered by under sects. 19 and 20 of the Act, and no careat
Lord HOBHOUSE.— The appellant alleges that having been entered , his power to reject has
her predecessor in title, L . A . Manning, was gone, and it is imperative upon the registrar,
in a position which entitled him to call upon the under sect. 21 and the general scope of the Act,
respondent to register his title under the Trans to bring the land under the Act by registering
fer of Land Act 1874. The respondent denies the same in the name of the applicant. 8. A
this, and on a special case stated by him under formal application to the registrar to perform
sect. 12 of the Act, for the opinion of the Supreme his duty in this respect has been made, but he,
Court, judgment has been given in his favour. relying upon the fact that the application had
The court, consisting of two judges,was divided in been rejected by the commissioner, who was not
opinion, and the judgment is in accordance with prepared to sign a certificate of title,' refused to
the opinion of the Chief Justice. The question register." Upon these facts the commissioner
turns on the construction of the 19th and 21st stated the special case , in which Manning's
sections of the Act, which it will be convenient solicitors concurred , and it was beard with the
here to set out: - “ 19 . If it shallappear to the com result above mentioned . Nothing was stated to
missioner thatany such transaction asaforesaid has show the nature of Manning's title except that
been registered , and that all incumbrances affect. it rested on possession , or the nature of the
ing the land (excepting such as are hereinafter evidence against it except that it brought the
mentioned as not requiring special notification ) allegation of possession into doubt. The neat
have been released , or that the owners thereof question raised by the case, and argued in the
have consented to the application , or that any Supreme Court and here, is whether on the 8th
incumbrance (not being a mortgage, the owners Aug. 1887 the commissioner and the registrar
whereof shall not have consented to the applica became mere machines for registration in case
tion ) may be specified in the certificate of title , no caveat should be lodged . It mast be
and continue outstanding, the commissioner admitted that the strict literal construction of
shall direct notice of the application to be adver the sections above set forth is in favour of the
tised once at least, in one newspaper, published appellant's view . But the whole purview of the
in the city of Perth , or circulating in the neigh Act must be lcoked at. We find that the
bourhood of the land, and to be served on any commissioner is to be a lawyer of seven years'
persons named by him , and shall appoint a time standing and practice, and that, amongst other
not less than fourteen days, nor more than twelve things, he is to investigate applications for
months from such notice, or from the adver bringing land under the provisions of the Act.
tisement, or the first of such advertisements, if And it is very important to see what is the
more than one, on or after the expiration of language of the Act with regard to the appli
which the registrar shall, unless a caveat sball cations which the commissioner is expected to
be served forbidding the same, bring the land investigate. Sect. 17 says that land alienated
under the operation of this Act. 21. If before in fee by the Crown before the Act may be
the expiration of the time limited in the notice brought under the operation of the Act by an
aforesaid for lodging a caveat the registrar shall application made by, among other persons, the
not bave received a careat forbidding thebringing person claiming to be owner of the fee simple
of the land in question under the operation of the either at law or in equity. Sect. 18 says that
Act, he shall bring such land under this Act the registrar shall submit the application to the
by registering in the name of the applicant, or commissioner for his direction . Then sects. 18
in the name of such person as may have been and 19 go on to deal with properties which are
directed in that behalf, a certificate of title to found differently circumstanced . If the com
such land in the form in the second schedule missioner finds that no transaction affecting the
hereto .” The material facts are as follows : land has been registered under any general Act,
Manning having applied on the 25th July 1887 sect. 18 says that " he shall direct the registrar
to be registered as the proprietor of a certain to bring the land under the operation of this Act
location by virtue of possession , the commis- by registering a certificate of title." According
sioner made requisitions on his title which were to the literal force of sects. 17 and 18 , any
answered by his solicitors. On the 8th Aug. | person may appear claiming to be the owner of
the commissioner stated that he considered the land alienated in fee by the Crown, and if there
May 10, 1890 . ) THE LAW TIMES. (Vol. LXII., N . 8.- 375
Priv. Co.] Re Giles ; REAL AND PERSONAL ADVANCE COMPANY v. MICHELL. [Cr. OP APP.
has been no previons registration the com
missioner has absolutely nothing to do but to
direct the registrar to enter a certificate of title.
It is felt by all that such a conclusion is COURT OF APPEAL .
irrational, and the appellant's counsel do not
contend for it . They admit that the com
missioner must have some power of inquiry and Tuesday, Jan . 28 .
somediscretion to accept or reject an application ; (Before COTTON ; LINDLEY, and LOPES, L .JJ.)
but they cannot point to any words of the Act Be GILES ; REAL AND PERSONAL ADVANCE
which expressly confer those powers upon him . COMPANY LIMITED v. MICHELL. (a )
As regards sect. 18 then it is not dispnted APPEAL FROM THE CHANCERY DIVISION .
that the commissioner is an official bound to
exercise his intelligence, and not a mere machine Practice - Order in chambers — Motion to discharge
as the literal force of the words would make him . - Final order - Time- Judicature Act 1873 (36
Now , when we have once reached the conclusion Originating summons
& 37 Vict. c. 38 ), 8. 50 -
that such a meaning must be read into sect. 18, Priorities– Jurisdiction - Order LV., rr. 3, 5 a.
we cannot refuse to read it into sect. 19 , and then The mortgagees of certain property commenced pro
it is for those who insist on his mechanicalaction ceedings for foreclosure by originating summons
to show at what point his discretion ceases and against the mortgagors, who were husband and
his obligation to follow a rigid rule begins. wife, and against the trustees of the property for
It is not contended that the Act anywhere defines them . The trustees set up a charge to themselves,
this point, or that it orders the commissioner to and claimed priority to the mortgage of the plain
sign a certificate oftitle except so far as such an tiffs. The plaintiff's disputed this priority, and
order may be implied by the direction to the the judge in chambersmade a common foreclosure
registrar ini sect. 21. The appellant's counsel order against the husband and wife, but dis
contend that, in a case falling within sect. 19,the missed the summons against the trustees without
discretion of the commissioner is at an end when prejudice to any action the plaintiffs might com
he has decided to advertise and serve notices. mence by writ.
By that time, they argue, he must be taken to Held, that the order in chambers was right, because,
have completed his investigations, and in fact in even assuming that there is jurisdiction to deter
this case he did intimate to the applicant's mine a question of priority of mortgages upon an
solicitor that the title had been fairly made ont. originating summons (which Cotton and Lopes,
But it appears to their Lordship : that the L .JJ. thought there was not, Lindley , L . J. doubt.
investigations cannot be complete until it is seen ing ), it is not convenient that such a question
what the notices produce. They may not should be determined upon an originating sum
necessarily produce caveats, for those can only mons.
be lodged by personsmaking claimson their own Held further (approving of the decision of Kay, J.
behalf, but they may produce information show . in Re Johnson ; Manchester and Liverpool
ing that registration of the applicant would not Banking Company v. Beales, 61 L. T . Rep. N .
be right. If a certificate of title is issued in S . 160 ; 42 Ch. Div. 505 ), that the time for
error, the commissioner may, under sect. 117 , moving to discharge a final order made in
take steps to cancel it. Supposing then that, chambers should be the same as for moving to
before certificate, the commissioner finds, either discharge an order which is not a final order,
from fresh information or on reconsideration , viz., twenty-onedays from the date of the order.
thathe is in error, what is he to do ? The appel A TESTATOR devised certain real estate to W .
lant's counsel contend that, if he has issued Giles and P . Giles, upon trust to pay onemoiety
notices and there is no caveat, he must give the of the rents and profits thereof to Fanny Michell,
certificate and then take steps to cancel it. It the wife of W . Michell.
seems to their Lordships that such a course is On the 19th Jan . 1883 Mrs. Michell executed
not rational and is not obligatory under the Act, a charge upon her interest in this property to
but that the proper course in such a case is to secure the repayment of sums advanced to her
refuse the certificate. The applicant is not by W . Giles and P . Giles.
without remedy in such a case. If the com In May 1883 Mr. and Mrs. Michell mortgaged
missioner exercises his discretion wrongfully or their interest in the property, which mortgage
erroneously the applicant may, under sect. 120 ,
first require him to set forth his reasons, and was subsequently , in Aug. 1884 , transferred to
then summon him before the Supreme Court to the Real and Personal Advance Company Limited .
maintain his case. In that proceeding the whole The company gave notice of the transfer to the
substance of the case may be thoroughly exa trustees .
mined . Here the applicanthas not chosen to take In 1886 the company commenced proceedings
that course, but has preferred to insist that the by originating summons, under Order LV., r . 5 A ,
commissioner is bound, by the issue of notices on against Mr. and Mrs. Michell, and W . Giles and
the 8th Oct. and by the non -appearance of any P . Giles, and thereby claimed an account of what
caveat, to register the claim of title. As the was due to them on their mortgage ; and in
applicant fails in that contention this appeal default of payment, sale or foreclosure, and as
must be dismissed , and with costs. Their against W .Giles and P . Giles, they asked for an
Lordships will humbly advise Her Majesty in account of the rents and profi :s of the property
accordance with this opinion. comprised in the mortgage to the company
received by them since Jan. 1885 as trustees of
Solicitor for the appellant, W H . Herbert. the testator's will.
Solicitor for the respondent, Sutton and The defendants, W .Giles and P .Giles, furnished
Ommanney . (a) Reported by A. J. SPENCER, Eaq., Barrister-at-Law .
H
376 _ Vol. LXII., N . 8.] THE LAW TIMES . (May 10, 1890.
CT. OF APP.] Re GILES ; REAL AND PERSONAL ADVANCE COMPANY v. MICHELL. [CT. OF APP.
an account of the rents and profits of the pro- | the order ; but it does not seem to have been
perty , but by their affidavits claimed to retain a settled until the case of Re Johnson ; Manchester
large portion thereof under their charge of Jan . and Liverpool Banking Company v . Beales (ubi
1883. sup.), that the same rule applied to final orders.
The company alleged that the trustees had I think that decision was right, and the same
concealed the existence of this charge from them , | rule ought to be applied . The motion to dis
and that they had no knowledge of it until they charge is not an appeal in any way, and, in my
received the affidavit of the trustees. opinion , North , J. wasright in saying he could not
The summons came on before North , J. in rehear tbe matter after the twenty -one days had
chambers, on the 26th July 1889 . He dismissed elapsed . But the point was a doubtful one until
the summons as against W . Giles and P . Giles the case of Re Johnson ; Manchester and Liverpool
with costs, but without prejudice to any action Banking Company v. Beales (ubi sup.), had been
the plaintiff company might bring by writ. As reported . The application to discharge an order
against Mr. and Mrs. Michell he made an order made in chambers is under the Judicature Act
for foreclosure in default of payment. 1873, s. 50 , which is as follows : “ Every order
The judge gaveno certificate of the case having made by a judge of the High Court in chambers,
been sufficiently argued before him in chambers, except orders made in the exercise of such dis.
and expressed his desire that it should be further cretion as aforesaid , may be set aside or dis
argued in court. charged upon notice by any divisional court or
The plaintiff company, on the 16th Nov . 1889, by the judge sitting in court . . . and no
gave notice of motion to discharge that part of appeal shall lie from any such order to set aside
the order of the 26th July wbich dismissed the or discharge which no such motion has been
summons against W . Giles and P . Giles. made unless by special leave of the judge by
When the motion came on for hearing on the whom such order was made, or of the Court of
22nd Nov. the counsel for W . Giles and P .Giles Appeal." I am not quite satisfied that the con
took the preliminary objection that it was out of dition there mentioned of making a motion to
time as not having been made within twenty-one discharge the order has not been performed by
days of the 26th July 1889. North , J., on the the appellant in this case, although it was so
authority of Re Johnson ; Manchester and Liver made that the judge refused to hear it. But the
pool Banking Company v . Beales (61 L . T. Rep . | Court of Appeal has discretionary power to allow
N . S. 160 ; 42 Ch. Div. 505),allowed the objection, an appeal to be heard without a previous motion ,
and dismissed the motion . and I think that, as there is no order or rule
The plaintiff company appealed from the orders dealing with this matter, we ought to give
ofthe 26th July and the 22nd Nov. leave to proceed with this appeal, although the
D . L. Alexander for the respondents.-- I take motion to discharge was not made in time in the
the preliminary objection that the appellants are court below . I certainly agree with Kay, J.,
out of time, and there is no right of appeal. The that a motion to discharge an order made in
judge has given no certificate that the case has chambers should bemade within twenty-one days,
That rule must be followed in the future. I do
been sufficiently argued in court, and no motion not say what we should do in a case where no
has been heard in court to discharge the order in
chambers. He referred to the Judicature Act motion to discharge had been made and no certi
1873 , 8 . 50 . ficate given by the judge.
Eustace Smith for the appellants. There is no LINDLEY, L .J.- The difficulty here arises from
rule of court laying down within what time a the fact that there is no rule saying within what
motion should be made to vary a final order time a motion to discharge a final order made in
made in chambers. Order LVIII., r. 15, does not chambers should be made. The point had not
lay down any such rule . At the timewhen our | been decided until the case of Re Johnson ;
notice of motion was given the case of Re | Manchester and Liverpool Banking Company F.
Johnson ; Manchester and Liverpool Banking Com Beales (ubi sup.), which did not appear in the
pany v. Beales (61 L . T. Rep. N . S. 160 ; 42 Ch. Law Reports until December last. I agree with
Div. 505), had only recently been decided. North , the decision of Kay, J. in that case, and think
J . should have heard the motion . At any rate that notice of motion to discharge an order made
the Court of Appeal will give special leave to in chambers should be given within twenty-one
appeal under the circumstances. days. There is no rule to that effect, but the
D . L . Alexander in reply.- Misconstruction of a limit of time has been got at by & process of
rule is not a sufficient ground for enlarging the | will
reasoning which appears to me satisfactory. It
time to appeal. follow that in this case there has been no
Cotton, L .J. - A preliminary objection is taken such motion to discharge as is required by
50 of the Judicature Act 1873. This is,
here. An order was made by the judge in sect. however, quite a new point, and I do not think
chambers dismissing the summons against two of anyone has been to blame in the present
the defendants, and he asked to have the case case for not arriving at the rule, and I think
further argued . Accordingly a motion was made the appeal should be allowed to proceed . In
in court to discharge the order made in chambers.
Now , such a motion is in no way an appeal, but future I think we ought strictly to abide by the
merely an application for rehearing. The notice rule.
of motion was given more than twenty -one days LOPES, L .J. - I quite agree with Kay, J. as to
from the date of the order in chambers. I think the rule laid down by him with regard to motions
that was wrong. It has been established for to discharge final orders made in chambers.
some time that the time for giving notice of But there are circumstances in this case which
motion to discharge an interlocutory order made make it desirable that we should give leave to
in chambers is twenty -one days from the date of ! appeal, as at the timewhen the case was decided
May 10, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. — 377
Ct. Of App.] Re GILES ; REAL AND PERSONAL ADVANCE COMPANY v. MICHELL. [CT.OF APP.
there was no rule of court or reported case ) in the ordinary way . But, if the plaintiff chooses
bearing on the point. to come to the court by way of originating
The appeal was then proceeded with . summons because it may be more convenient to
Eustace Smith for the appellants. The defen - him on the ground of saving expense or other
| wise,
dants claim under a mortgage which they say yet, unless the relief claimed comes within
was prior to our mortgage, but which we never the terms of the rule of court, the court has no
heard of until they made their affidavit in these jurisdiction to deal with it . Even if there be
proceedings. The court has jurisdiction under jurisdiction to decide such a question as this on
Order LV., r.upon
3, clauses (c), (e), or (g), to decide originating summons, it would , in my opinion , be
this question an originating summons, as it wrong to deal with it in these informal proceed
is a question beween trusteesand their cestuis que ings. An originating summons is a mode of pro.
cedure intended for the decision of matters of a
trust. It is a qnestion arising in the administra simple uninvolved nature, and is not calculated
tion of this trust. Order LV., r. 5 A, also gives for the determination of complicated matters. In
jurisdiction to decide this question as being one
relating to the priority of mortgages. An order my opinion , therefore, the decision of North , J. is
for redemption necessarily involves thedetermina right. The only point on which I have felt some
doubt is,whether it would not have been right to
tion of priorities. order theas
defendants to hand over to admitted
the plaintiff
D. L. Alexamder, for the respondents , was not company mortgagees the balance by
called upon . the defendants to be in their hands. I think,
Cotton, L .J. — This is an appeal upon special however, the judge acted rightly, as these defen
leave given by us to the appellant, though he bad dants were willing to hand it over, and the
not got any certificate from the judge, from an plaintiff company, thinking that some difficulty
order made by North , J. in chambers dismissing might be caused by this, refused it. The order,
so much of an action commenced by originating therefore, is right, and the appeal must be
summons as raises the question whether the dismissed .
two defendants, who are the present respondents , LINDLEY, L .J. - In this case an originating
have priority in respect of their charges asagainst summons was taken out by their mortgagees
the mortgage under which the plaintiffs claim . against Mr. and Mrs. Michell, claiming as
The defendants are trustees, but their claim is against them the ordinary foreclosure decree.
not as trustees in any way, but as mortgagees The plaintiff company have obtained that under
under a contract between them and one of their Order LV., r. 5 A, and no difficulty arises as to
cestuis que trust. That claim is therefore en that. But the company have added defendants
tirely independent of their position as trustees, to the summons two persons namedas Giles, who
and the question to be determined as to priority are the trustees of the property comprised in the
is not a question in any way arising in the plaintiff company's mortgage, and the company
administration of the trust. North , J. held either ask as against them to have in effect an order for
that he had no jurisdiction to decide the question the administration of the trust. These defen
of priority upon an originating summons,or, that dants say that they have a mortgage in the trust
if he had , it was not desirable to decide that ques. l estate which is prior to the mortgage of the
tion upon an originating summons. I agree with plaintiff company. The company dispute the
him . In my opinion the court has no jurisdiction priority , and the point, therefore, which we have
to decide such a question on an originating sum to decide is whether that is a question which it is
mons, and even if it had, I am decidedly of opinion proper to determineupon an originating summons.
it is not a proper matter to be so decided . The I am not sure that the court has no jurisdiction to
question of jurisdiction depends upon whether do it. I am not so sure as Cotton, L . J. is that in a
the points in issue in this case are matters which summons for administration of the trust under
the rules of court bave given power to determine Order LV., r. 3 (g) there might not be an inquiry
on an originating summons. I cannot find in the as to priorities. But I am perfectly sure that
rules or orders of the Supreme Court anything North , J. was quite right in declining to deal
to justify such a point as this being determined with such a .question as this upon an originating
on originating summons. Order LV., r. 3 (g) summons. The procedure on an originating
was relied on by the appellants, but that rule summons is plainly laid down in the rules. Order
only relates to questions which arise in the LV ., r. 10 , gives the judge a discretion to make
administration of the trust as between the an order or not for the administration of the
trustees and their cestuis que trust. The pro | trust. Under rule 7 the application is to be
cedure was intended , so far as I am aware, to supported by such evidence as the judge may
enable simple matters to be settled without the require, which is generally evidence by affidavit,
expense necessarily involved in bringing an and rule 8 provides that it shall be lawful for the
action begun by writ, not to enable the court to judge to pronounce such judgment as the nature
determine matters involving serious questions of the case may require. The procedure does not
which do not comewithin the terms of the rule. seem appropriate for deciding such a question as
Order LV., r. 5 A, was also relied on , and it was
the present. No judge would like to decide a
argued that, in order to effectually work out a question of priority between mortgagors on
judgment for redemption , it is often necessary affidavit evidence. If it comes, therefore, to be a
that priorities should be ascertained and deter. mere question of expediency and convenience, it
mined , and therefore that the rule empowers this fol'ows that it woull not be right to decide this
to be done. I do not agree with that argument. It point upon an originating summons. Therefore ,
is true that in actions for redemption such ques. whether the court has jurisdiction or not, I am of
tionsoften arise, andmight haveto bedetermined , opinion that North, J. was on the ground of
and the court has no difficulty in dealing with expediency quite right in declining to deal with
such questions in an action commenced by writ I the matter upon an originating summons.
378 — Vol. LXII., N . 8 .] THE LAW TIMES. [May 10, 1890.
ET. OP APP.) Reilly v. Bootu. [CT. OF APP.
LOPES, L .J. — The jurisdiction of the court in inches,
to west on the north side thereof thirty feet eleven
from the north to the south on the east side of
proceedings commenced by originating summons
is new , and depends upon the Rules of Court. I ing the gateway forty-one feet six inches, then return
from east
to west across the said gateway four
can find nothing giving jurisdiction to decide a feet nine inches, then returning from south to
question of priority of mortgages either under north on the west side of the said gateway twelve.
Order LV ., r. 3 or r. 5 A, or elsewhere. I agree, feet six inches, then continuing from east to west
therefore, that the appealmust be dismissed . abutting on the back fronts of three newly -erected
houses
Solicitors : Nye, Greenwood , and Moreton ; returning in Oxford-street thirty-two feeteightinches, then
from north to south on the west side ninety
Welman ,agent for R . E . Geach , Guildford . feet, then returning from west to east on the south side
seventy-nine feet three inches, then returning from
south to north on the east side eighty -eight feet eleven
inches, then returning from east to west three feet, and
lastly from south to north abutting on premises in
Jan . 17, Feb . 4, 5, 6, and 7. Oxford -street twenty -seven feet nine inches, togeth
with the exclusive use of the said gateway into Oxford .
(Before COTTON, LINDLEY, and LOPES, L .JJ.) street, being ten feet eleven inches in the clear on the
REILLY v. Booth. (a ) north side, eleven feet seven inches on the south side, in
APPEAL FROM THE CHANCERY DIVISION. depth forty-one feet six inches, and height fifteen feet
. : . which said piece of ground and premises are
Deed — Construction - Conveyance of " exclusive use more particularly delineated anddescribed by theportion
of gateway ” — Easement. on the plan or ground plot thereof drawn in themargin
of these presents coloured pink , together with all and
By lease and release, excecuted in 1839, M . and singular
others conveyed to W . a piece of freehold ground, areas . houses . . . walls, ways . . yards,
. . privileges, easements, rights, members,
with a messuage thereon ,adjoining a covered gate and appartenances whatsoever to the said messuage or
way, " together with the exclusive use of the said tenement, buildings,hereditaments,and premises . . .
gateway." The dimensions of the gateway or belonging or in anywise appertaining.
passage, as to length, breadth , and height, were The piece of ground first mentioned was
mentioned in the deed ; and the said " piece of coloured pink on the plan , but the gateway was
ground and premises ” were stated to bemore par. not coloured , though its site was delineated there.
ticularly delineated by the portion in the plan upon .
thereto, and coloured pink . The covered gate . Atthe samedate Nos. 277, 279, and 281, Oxford .
way was not coloured on the plan . street, were leased to Wimbush for twenty -two
Held , that the conveyance to W . did not merely years.
confer on W . and his successors in title a right By indenture of lease, dated the 6th Oct. 1885 ,
of way through the covered gateway , but enabled F . H . Fowler,who claimed under the indenture of
them to use the gateway for all purposes. release of the 10th July 1839 , demised to the
Semble, the conveyance to w . passed the ownership defendant W . Booth the said premises in the rear
of the gateway, and not merely an easement. of themessuages above mentioned formerly used
Decision of Kekewich , J. (61 L. T. Rep. N . S. 294) for stables and a stable-yard , and subsequently
affirmed . as a skating-rink , and since that time as a meat
At the date of the indentures of 1839, herein market, " together with the entrance way and
after referred to, C . W . Manningham and others passage thereto belonging," for the term of fifty
were owners in fee, as trustees of the will of the three and a quarter years from the 25th Dec.
Rev.George Pollen ,of certain freehold messuages 1884, less the last seven days thereof.
(known at the time of the commencement of this The premises had been taken by the defendant,
action as 271, 273, 277, 279, and 281 Oxford who was the representative of a religious society
street, in the county of Middlesex), and also of known as the Salvation Army, for the purpose of
certain lands in the rear of the said messuages, holding religiousmeetings therein.
and then used for stables and a stable-yard . This action was brought on the 16th May 1888
Through the messuage No. 277 there was an by the present trustees of the will of the Rev.
opening which formed a covered entrance or George Pollen and by E . M . Reilly, who was
gateway for horses and carriages from Oxford lessee of No. 277, Oxford -street, alleging that the
street to the said stables and a stable-yard. defendant was entitled to only a right of way
The walls of No. 277 inclosed the gateway at the through the said entrance or gateway above
top , and on the eastern and western sides thereof, mentioned , and that he had nevertheless done
and below the floor of the gateway was a vaulted various acts in relation thereto ; e.g.,hehad fised
shooting-gallery, which also formed part of the match boarding along the roof of the said
same messuage, and at the date of the inden . entrance over the whole length and width thereof;
tures of 1839 the gateway had largewooden gates he hadrooffixedof upthein entrance
the front and
and extending above
at By
the north end abutting the leaning against
indentures of lease on
andtherelease,
street.dated the No. 277, Oxford-street, a large transparency ; he
9th and 10th July 1839, the said trustees and had painted inscriptions on the walls of the said
others conveyed to Samuel Wirnbush in fee entrance and fixed thereon notice boards ; he had
certain of the premises above mentioned , which placed a large bookstand in the said entrance, at
included the premises afterwards known as which were sold books, newspapers, and tracts ;
Nos. 271 and 273, Oxford -street, and also the and had in short converted the said entrance into
stables and stable -yard in the rear by the descrip a sort of room or shop , and used it not in exer
tion following : cise of a right of way only , but as to the floor
All that piece or parcelof ground and all thatmessuage and walls and roof and everything belonging to
or tenement and other buildings erected and built the said entrance as if it were his owr. It was
thereon situate, standing, and being on the south side of also alleged that the defendant's acts increased
Oxford -street . . . containing in length from east the risks of fire to the said premises, No. 277,
(a) Reported by A . J. SPENCER ,Esq ., Barrister-at-Law . | Oxford -street, and prejudicially affected their
Cr. OF APP.] REILLY v . Booth . [ CT. OF APP.
appearance and character, and the plaintiffs | so long as they are used as stables, but they say
claimed a declaration that the defendant was not there is only a right of way granted . As far as
entitled to use the said entrance otherwise than I can see, their argument depends on two things,
in exercise of a right of way, and an injunction. that it is " the exclusive use of the said gateway
By his statement of defence the deferdant said into Oxford -street," and that the words are used
that he was entitled for the term of his lease to not in the ordinary way of adding to parcels, a
the exclusive use, occupation , and ownership of part of which has been already enumerated , but
the said entrance, and not merely to a right of are introduced by the words “ together with."
way through the same. In my opinion , one cannot by the mere reference
Kekewich , J. held , that the defendant was to this as the gateway confine that to the use for
entitled to use the gateway for all purposes : (61 the purpose of a way. It is “ the exclusive use."
L . T . Rep. N . S . 294.) It is not “ the use for the purpose of getting
The plaintiffs appealed. into Oxford -street or from Oxford -street into
S . Hall, Q.C . and Maidlow for the appellants. the stables,” but “ the exclusive use of a
- The defendant is not entitled to use the passage gateway into Oxford -street." It is said the
for all purposes. The word “ use ” must be gateway is to be restricted to a use for the
limited to the purposes for which it is given , that purposes of a way. In my opinion , that is not so.
is, a gateway. There is no easement known to One finds here a gateway to that which I have
the law which amounts to a right of user for all sometimes called a tunnel, but which I would
rather call a passage through this house. It is
purposes. A right of user for all purposes is a defined as an existing thing called by that name,
grant of the fee. The words of the indenture of
1839 and the accompanying map in which the and to give the exclusive use ofan existing thing,
passage is not coloured show that no grant of my though it may be called a gateway , does not in
the fee was intended . The words “ together with " be opinion convey this restriction , that it is to
show that an easement only was conveyed . The used only for the purpose of a way. It is not
case is covered by the decision of the Court of the use of the right of way through the gateway,
Appeal in London Taverns Company v . Worley , but it is “ the exclusive use of the said gateway."
on the 24th Nov. 1888 , which is not reported , Then one finds, as I have read in the parcels, that
where there was a conveyance of a house with a by particular thing called the gateway is described
reservation of an exclusive right of gateway height, by length , and by width . In my
under part of the house, and it was held that à way opinion , that is inconsistent with theterm “ gate
right of way only was reserved . " being referred to as a limit to the use to
which that which was described was to be put.
Warmington, Q.C. and C. H . Sargant for the Although here these words are not very apt, yet
respondent. - The words “ together with ” are not there is nothing in them which can enable us to
exclusively used with reference to an easement : restrict the exclusive use which is granted in fee
Willis v. Watney , 51 L . J. 181, Ch. to Wimbush . No one else had any right or
The grant of “ the exclusive use ” of the gate interest in this for ever ; the exclusive use is
way entitles us to use it for all purposes, and is granted to him in fee, and the grantors retain
practically ownership : no interest in that use of it at all. They only
Rabbeth v. Squire, 4 De G . & J . 406 ; had a use in the walls and ceilings and the floor,
Mannoæ v.Greener, 27 L . T . Rep. N . S. 408 ; L. Rep. because they had a shooting-gallery underneath
14 Eq. 456 ; the floor, and they had the rooms of a house
Newcomen v. Coulson,
Ch . Div . 133 ;
36 L. T. Rep. N . S. 385 ; 5 above, and they had on one side certainly the house
Finch v. Great Western Railway Company, 41 L . T . which was afterwards Reilly 's. Therefore, they
Rep. N . S. 731 ; 5 Ex. Div . 254 ; had an interest in the floor, in the ceiling, and in
Perkins' Profitable Book , sect. 641. the walls of the side. Of course they had a right
The wall inclosing this passage is a party wall with respect to the wall on the east side, but not
within the Metropolitan Building Act : any with respect to the honse belonging to it,
Knight v. Pursell, 40 L. T. Rep. N . S. 391 ; 11 Ch. except to support theportion of their house which
I was
Div. 412 ; built over that wall. In my opinion, it
Weston v. Arnold , L. Rep. 8 Ch. 1084. would be wrong to say that there is anything to
There is no other access to the building in rear restrict the user. It is the exclusive user which
except by this gateway, and a right of passage the defendant can use in any way and employ for
would bave passed without any express words at any purpose not inconsistent with the rights of
all. It is for the grantor to show that the words his neighbours or with the rights of the public.
used are to bave a restricted construction . Therefore, we must consider this as intended to
S. Hall, Q .C . in reply.- The defendant must be not only “ exclusive," that is,excluding others,
either have acquired the fee of this passage or an but a right to use this passage which is called a
easement. If it was an easement it lies upon gateway for any purpose which the law will allow ,
him to show what easement has been granted . and which does not interfere with the rights of
the neighbours. It is said that will be granting
The measurements do not include thewalls. a new kind of easement not laid down by the law .
COTTON, L .J. (after stating the facts of the case There would be a difficulty, I think in granting,
and referring to the release of the 10th July by way of easement the right to use, not defining
1839, proceeded ) :- What interest is conveyed in it in any way as a gateway or passage. I do not
that gateway to Wimbush by this deed ? It is at all think, even if this is a mere grant of ease
contended by the plaintiffs that there is a right ment, it would be right to construe it as a cove
to use that passage simply for the purpose of a nant on the part of the grantee that this passage
way from the stables into Oxford -street and from shall not be used for any lawful purpose to which
Oxford-street into the stables ; not that anything it might be applicable by Wimbush . If there is
was to restrict them to a passage to the stables, la grant of this portion of the house, it is a grant
380 _ Vol. LXII., N . 8.] THE LAW TIMES. (May 10 , 1890.
Cr. or APP.] REILLY v . Booth . [CT. OP APP.
of that portion just as there might be a grant The matter is a very trifling one, although I
of a set of chambers, which would give a right agree it was a wrong, that is to say, an excess
to the chambers with certain restrictions as to by the defendants of any right which was granted
the use of the walls, the ceiling, and the floor. || to them . If that is removed , I do not think we
It is not necessary , and I think it is undesirable ought to make any other order in favour of the
when the question does not arise here, to decide plaintiffs. In my opinion, the substantial ques
what are the rights, when a person has a set of tion is, whether the defendants are entitled only
chambers conveyed to him , as regards floors, to a limited user of this passage so as to enable
walls, and ceiling. He cannot do anything to them to go out into Oxford -street and to go in
interfere with the rights of his neighbours, which from Oxford - street ; as to that I think the plain
still exist notwithstanding the grant to him of tiffs are wrong. That was the substantial ques.
this particular portion of the house . What we tion, but we ought to deal with it so as to
have to consider is this : whether, looking to this prevent it being said that we allowed the defen .
as a grant for ever of a use for all purposes of dants to do what was an excess of the rights
this portion of the building which is now occupied which , in our opinion , were granted to them , and
by Reilly, or looking upon it as a conveyance which they possess under the conveyance con
of the property, there is anything done of which tained in that deed .
the plaintiffs can complain ? My view is, that it LINDLEY, L .J. - I have studied this deed of
is a conveyance really of the property in that 1839 and the map annexed to it with all the
passage which is so described . It is said that on care I can, and the conclusion at which I have
the plan this passage is not coloured . I think arrived is, that there are not sufficient grourds
the reasonable answer as regards that has been to authorise us judicially to limit the exclusire
given by Mr. Warmington , that this was not a use of the gateway which is granted to those
conveyance of the property in that portion through whom the defendant claims. The words
of the building so as to give the right to of the grant here are very different from the
the soil down below , and so as to give the words of the grant which we had not very long
right to the air upwards, because that was ago in a case which arose in the City , which were
dealt with in a contemporaneous deed . In the " the exclusive right of gateway ." There is
conveyance of the building now occupied by nothing here about any right as distinguished
Reilly, there were some rights given to him in from use. Now , the first thing to ascertain is
the house over that passage, and so it would what is meant by the word " gateway.” Gate
have been wrong to have coloured this as the way is an ambiguous word . It maymean a right
rest of the plan, which would have intimated of passage ; it may mean a place, and in this
there was an absolute conveyance of this piece particular deed it appears to me that gateway is
of the building, giving the right to the ground used to denote a place, a strip of land the
below and giving the right to everything dimensions of which are given . It is obviously
above this passage. Therefore, I think that is a so used , to mymind, in the first place in the deed
reasonable explanation which has been given by wbere it occurs. Where we have a grant of the
Mr. Warmington . That being my view of the exclusive use of the gateway leading into Oxford
true effect and construction of this deed , has street, and then the dimensions given , it appears
anything been done here of which the plaintiffs to me that what is conveyed is the exclusive use
can reasonably complain ? If anything had been of that strip of land the dimensions of which are
done which would injure the walls so as to pre there given , and which is denoted by the word
vent the walls supporting the building above ; if “ gateway .” It is said that we ought to construe
anything had been done to the ceiling or roof so the use of the gateway into the use of a way , and
as to prevent that supporting what was above ; or that it is a mere easement. That, to my mind, is
if anything had been done to the ground so as to to limit, withoutsufficient warrant or justification ,
cause injury to the shooting - gallery which was the words used in the grant. It was pressed
below , the plaintiffs, in my view , would have a upon us by Mr. Hall very ingeniously that, if we
right to complain . The dado and the lights which construe this grant as the exclusive nse for all
have been affixed are not shown to have been purposes, it involves the ownership, and he says
affixed or dealt with in such a way as to cause that is inconsistent with the manifest intention
any interference with the support, or anything of the parties,as is to be gathered from the deed
else which the plaintiffs as owners of the house and the map . I thought there was a great deal
on the side and above or below were entitled to in that, but the more I think of it the less I am
complain of. The only thing, in my opinion, disposed to attribute the weight to it which he
which the plaintiffs have a right to complain of desires. The grantor has granted the exclusive
- I mean by that, to call upon the court to use of the gateway , and if, in order that the
interfere in respect of— is this,that a transparency grantee may enjoy the exclusive use of the gate
has been fixed up in part to the house of the way, it is necessary for us to say that the grantee
plaintiffs ; that is to say , a large transparency, has got the ownership of the gateway , so be it.
which extends down over part of the gate which That will be the necessary legal consequence. I
goes into this passage, is fixed by screws to that am not sure that it is not so ; I rather think it is .
part of the house which clearly belongs to Reilly . The inferences to be drawn from the map are
In my opinion , that is wrong. If Mr. Warming explained in this way. It is quite obvious that
ton had been here before I began my judgment, the grantor, assuming a grant of this gateway as
I should have asked him whether he was willing a corporeal hereditament, was not granting it to
to undertake that those screws affixed to the the same extent as he was granting the yard at
house of Reilly should be removed , and the the back in the ordinary way without limit up or
transparency should be brought down so as to down. Hewas not granting this gateway in the
cover only the passage and not to cover any same way at all; he was not granting it up or
portion of the house belonging to the plaintiffs. I down. He was reserving to himself that which
May 10, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8.- 381
Ct. Or APP. ) BENYON v. BENYON AND O 'CALLAGHAN. [CT. OF APP.
was above it, and he was reserving to himself which has to pass, and it cannot in any way be
that which was below it. That is a sufficient construed as restrictive of the previous words
reason for not colouring the gateway in the plan “ exclusive use." This case seems to me very
in the same way as the land which was at the much like the illustration I am about to give.
back , which was granted and which was coloured . A . is owner in fee simple of a certain set of
That appears to me to remove what at first chambers in the Temple, and he grants to an
seemed a strong argument, that the gateway is under -tenant the exclusive use of one of the
not coloured in the plan . Now , ife look at | rooms in that set of chambers. I take it the
the matter, wemust see what has been granted ownership in that room passes, and the person
and what has been reserved . What has the who takes is entitled to use the room in every
grantor granted ? He has granted the exclusive reasonable way . I take it he may use the floor of
use of the gateway which I have mentioned . the chamber in a reasonable way, the walls of the
What has he reserved ? In termsnothing ; but chamber in a reasonable way, and the ceiling, if
by necessary implication he has reserved a right ! it were necessary to use it, in a reasonable way .
of support so far as the floor goes of that part of The conclusion in this case that I arrive at is
the house which is under the gateway. There is this, that there was conveyed to Wimbush an
nothing said about it ; but that follows as a absolute ownership in the passage subject to this,
necessary implication, and it appears to me these that he must use the passage reasonably, that
rights which he necessarily has reserved impose he must not in any way interfere with the
the only limit to that which is granted. That concurrent rights of his grantor, that he may
being so, I think the plaintiffs are asking us to use what I may call the floor of the passage or
put a limit which cannot be justified ,and that the the ceiling of the passage, or the walls of the
defendants are not exceeding their rights except passage in every reasonable way - I need scarcely
as regards the transparency . So far as I under add not in any way creating a nuisance, or in any
stand that transparency, it is not in the gateway | way infringing upon the rights of the grantor.
at all ; it is in the wrong place, but we will hear For myself, I entertained a very strong opinion
what Mr. Warmington has to say about it. somewhat early in the case that Mr. Warming
LOPES, L . J. - In the year 1839 there was a con- | ton 's contention was right, but there was one
Teyance to Wimbush , which conveyance we are matter which caused me to pause and hesitate,
called upon to construe, and it becomes material and that was the plan . For some time I felt a
to my mind to consider in the first place what difficulty in understanding why,whilst the other
the state of the property was in 1839. There was parcels passing by the deed of 1839 were coloured
this large yard , and there was this passage pink , this passage was not coloured pink,what
leading from Oxford -street into the yard, and passed being described in the deed by reference
from the yard into Oxford -street. Then in the to a plan . But to mymind that has now been
deed of 1839 certain parcels are conveyed to satisfactorily explained . I think the explanation
Wimbush , which beyond all question he takes is this : With regard to that portion of the
absolutely, and then follow these important property which is coloured pink everything
words: “ Together with the exclusive use of the above and below was being conveyed ; with
said gateway into Oxford -street," and the dimen - | regard to this part of the property, the passage,
sions are given . Now , what passed in respect of nothing below and nothing above was conveyed .
this gateway ? It is said by Mr. Hall that a I take it that is the reason why we find this
mere easement passed , an incorporeal heredita- | diversity in the colouring. I think , therefore,
ment, a right on the part of Wimbush to pass 1 that the judgment of the learned judge was
from Oxford-street into the yard and from the | right, and that this appeal should be dismissed .
yard into Oxford -street, and nothing more. It is The defendant subsequently, by his counsel,
said on the other hand by Mr. Warmington that gave an undertaking to reduce the size of the
a corporeal interest passed ; in point of fact, that, transparency, so as to bring the same within the
property or ownership passed . In my opinion limits of the gateway as referred to in the release
Mr. Warmington 's contention is right. I think of the 10th July 1839.
ownership passed . The “ exclusive use of the Solicitors for the plaintiffs, Janson , Cobb,
said gateway " was given . The exclusive or
unrestricted use of a piece of land, I take it, Pearson , and Co.
Solicitors for the defendants, Ranger and
beyond all question passes the property or Burto n.
ownership in that land, and there is no ease
ment known to the law which gives exclusive
and unrestricted use of a piece of land. It is not Wednesday, Feb. 12.
an easement in such a case ; it is property that
passes. Again , a mere easement can be conveyed (Before COTTON, LINDLEY, and LOPES, L .JJ.)
ormay be conveyed by wordsother than these,and BENYON v . BENYON AND O 'CALLAGHAN . (a )
would pass under generalwords. Butherewehave APPEAL FROM THE PROBATE DIVISION (DIVORCE).
the words to which I hare called attention . A Husband and
mere easement or right of way, as a general rule ment - Powerwife- to
Divorce - Variation of settle
vary order originally made
I venture to think, is not set out by measure Matrimonial Causes Act 1859 (22 & 23 Vict.
ments in the way that what passes here is set c. 61), 8. 5.
out by measurements. But then it is said by Upon
Mr. Hall you have the word " gateway,” as was a made decree for divorce obtained in 1876 an order
under the Matrimonial Causes Act
meaning a right of way and nothing more. Now , 1859, 8. 5, that out of the income to which the wife
in my opinion , Mr. Hall is not entitled to rely on was entitled under the provisions of themarriage
the word “ gateway " to that extent. I think the settlement the sum of 3001. a year should be paid
word " gateway " is mere description of the
thing, a mere mode of identifying the thing 1 (a) Reported by A. J. SPENCER, Esq., Barrister-at-Law .
CT. OF APP.] BENYON v. BENYON AND O'CALLAGHAN . [Chan . Drv.
to the husband . Since 1876 the total incomeof the the order was made. Gladstone v. Gladstone (ubi
wife's settlement fundshad considerably decreased , sup.) is in our favour. Under sect. 4 of 22 & 23
and application was now made to vary the order Vict. c. 61, which deals with provisions for the
by reducing the sum payable to the husband . maintenance and education of children , it is
Held , that, an order having once been made under enacted that orders may be made “ from time to
sect. 5 of the Matrimonial Causes Act 1859, the time,” but no such wordsare used in sect. 5.
court had no power to vary such order. Inde rwick, Q .C . replied.
Decision of Butt, J. (ante, p . 329 ; 15 P . Div . 29) Cotton, L .J. - Butt, J. in this case refused to
affirmed . make an order varying the order as to the allow .
On the 4th Aug. 1874 a decree absolute was pro ance to be paid to the husband , which had been
nounced for the divorce of Mr. and Mrs. Benyon made on the dissolution of the marriage. The
on the ground of the wife's adultery with Mr. application is made under sect. 5 of 22 & 23 Vict.
O 'Callaghan . A petition was then presented for c.61. That Act gave an entirely new power, which
variation of the settlement made on the occasion was only to arise upon the dissolution of a
of the marriage. The income of the wife's settled marriage, to make orders with reference to the
property amounted at this time to about 13501. application of property settled by marriage
a year, and that of the husband to about 3001. a settlements for the benefit of the parents or the
year. children . That was different from the power
By an order made on the 6th July 1876 under which the court already had to make provision
the Matrimonial Causes Act 1859 (22 & 23 Vict. for the alimony of the wife. Of course, upon a
c . 61) it was ordered that the wife should pay to dissolution of marriage, the relation of parents
the husband 3001, a year, and in addition 2001. a to children is a continuing one, but that of
year for the education and maintenance of the husband and wife is entirely put an end to . That
only child of the marriage. is a strong reason for arguing that there should
sinceBenyon
hadMrs. died . married Mr. O 'Callaghan, who not be a power to vary an order made under this
The residue of the settled income left to Mrs. section which is itself a variation of the termsof
O 'Callaghan , which amounted at the time the the original settlement. The court has at the
order was made to 7081., had, owing to deprecia . time of the dissolution to consider how the settle
ments should be varied . In this case it seems to me
tion of securities, since fallen to about 4901. me that the question which has now arisen was
It appeared that the husband's income had taken into considerat ion in 1877, when the order
during the sameperiod considerably increased. was made, because the registrar drew attention to
An application was now made to vary the order the nature of the securities in which thefunds were
of the 6th July 1876 by reducing the annual sum invested , and suggested that an allowance of one
payable to Mr. Benyon to 1501. third of the income should bemade to the husband ,
At the time the original order was made atten. but that suggestion was not adopted . The court
tion had been drawn by the registrar to the never has varied orders made under this section,
fluctuating nature of the securities upon which but I see no reason why it should not provide for
the wife's property was invested , and he had future events by including in the original order &
made a suggestion that one-third of the income direction that the allowance should increase or
should be payable to the husband, but this sug decrease thereafter according to circumstances.
gestion was not adopted . The order here made was final, and I think the
The case was heard by Butt, J. on the 14th order of Butt, J. was right and should be
Jan . 1890 (see ante, p. 329 ; 15 P . Div . 29), who affirmed .
refused to make the order asked for. LINDLEY, L . J.-- I think the court bas power,
·Mrs. O'Callaghan appealed. under sect. 5 of the Act of 1859, to make ar, order
Inderwick, Q.C. and P . S. Gregory for the appel varying a settlement once only. The more the
lant. - The question is , whether the court has reason of the thing is worked out, the more plain
power to make successive orders under 22 & 23 it is that the order under this section must be
Vict. c. 61, s. 5 , or whether it has power to make final. At first sight nothing seemed more reason
one order only . Under the Act there is no limit | able than that the amount should be varied
within which an order must be made. The only accordingly as the circumstances vary ; but I think
cases bearing on the question are : the principle on which the court should act are
Gladstone v. Gladstone, 35 L. T. Rep. N . S. 380 ; 1 P . | explained by the President of the Probate and
Div . 442 ; Divorce Division in Gladstone v . Gladstone (ubi
March v. March , 16 L . T. Rep. N . S . 366 ; L . Rep . 1 | sup.). When you bear in mind that persons
P . & D . 440. making settlements dispose of their property
In the latter case the question was left open . In once for all, and a settlement might be made of
Gladstone v. Gladstone the subsequent conduct of the property dealt with by an order under this
the parties was considered, and it was held that section , you see at once that an infinitude of
the court had power to review or vary an order injustice might be done if orders so made were
for the variation of marriage settlements, hut it varied . I think the construction put upon this
will not do so only by reason of the subsequent section by Butt, J ., and the practice of the Divorce
conduct of one of the parties. Court for thirty years, are right, and the appeal
Bauford, Q .C . and Searle for the respondent. should be dismissed.
The court is given very wide power under the Lopes, L . J.- The court has only power to act
Act to deal with either the income or capital of | under this section when the marriage has been
the settled property, but when once an order has altogether put an end to . I think the court can
been made the power of the court is exhausted . | make one order, and one order only. I had great
In this case the possibility of the wife's income ! doubt in this case until I heard Mr. Bayford's
subsequently diminishing was considered when I argument, which showed the distinction between
May 10, 1890 .) THE LAW TIMES. [Vol. LXII., N. 8.- 383
Cuan . Div.] Re HOLMES; HOLMES Y. HOLMES. [Chan. Div .
an order for maintenance and education , and and those of the said Sheffield General Infirmary, the
an order varying settlements under sect. 5 . | only executrises and executors of this my last and only
Sect. 4, which refers to an order for maintenance will and testament.
and education , speaks of it asan order to be made The testator died on the 14th May 1889, a
from time to time, but sect. 5 contains no such bachelor, leaving Sarah Mariah Holmes and
words. I think the order of Butt, J. was right, Emma Josephine Holmes, his natural and lawful
and I agree with what Sir James Hannen said in nieces, and John Gooddie Holmes,his natural and
Gladstone v. Gladstone (ubi sup.). lawful nephew , and only next of kin, him
Solicitor for the appellants, W . Brewer. surviving.
Solicitors for the respondent, Longbourne, The testator having made no disposition of his
Stevens,and Powell. residuary estate, an originating summous was
taken out, on behalf of Sarah Mariah Holmes and
Emma Josephine Holmes, against John Goodie
Holmes and others, to determine (inter alia ) the
HIGH COURT OF JUSTICE . question who were entitled to the residue of the
testator's estate, after setting apart a fund to
provide for theannuities ; and whether or not such
CHANCERY DIVISION . residue was immediately distributable, or at what
Monday, March 3. date.
(Before Kay, J.) The summons was adjourned into court, and
now came on to be heard .
Re HOLMES ; HOLMES v. HOLMES.(a) Davis (Marten,
Bramweilreferred Q .C . with him ), for the
Will - Exclusion of persons who were next of kin - plaintiffs, to
Intestacy as to residue. Vachell v. Breton , 5 Bro, Parl. Cas. 51 :
A testator, who died in 1889, by his will, dated in Lett v . Randall , 3 Sm . & Giff . 83 ;
1887, gave varicus pecuniary bequests to indi Bund v. Green , 12 Ch . Div. 819.
viduals and charitable institutions, and ended [KAY, J. referred to Fitch v. Weber, 6 Hare, 145.]
his will thus : “ And now revoking and hereby for the
making utterly and for ever void and powerless , Q .C.Gooddie
Renshaw John
defendant Holmes. Sturges
and Decimus
any and all wills by me at any time heretofore Haldane, Q.C. and Hornell for other defendants
and for ever beneficially interested.
utterly except
by me made, and herebyrelatives
excluding any and all my two
dear nieces aforesaid . . . from any and all KAY, J.-- The general rule of law which is be
advantages or benefit in this my last will and yond all question is so consistent with common
testament, I hereby lastly nominate, constitute, sense that it cannot possibly be doubted . A
and appointmy said two dearnieces," and certain testator cannot deprire those who are by law en
other persons executrixes and executors of his titled to his estate by words of exclusion only .
will . He can only do that by giving the estate to
The two nieces of the testator named in his will somebody else. The simple case is where a
were not his only next of kin , and the question testator makes a will and says, “ I declare that
therefore arose, who were entitled to the residue of my heir-at-law shall take no part of my real
the testator's estate, of which no disposition was estate.” That is a perfect brutum fulmen . The
contained in the will heir-at-law does not take under the will, but by
Held , that the residue of the testator's estate was the general law of succession, and the testator
undisposed of and devolved upon his statutory can only deprive him of it by making a will and
next of kin without any person of that class giving the property to somebody else. The same
being excluded . rule applies, and has been held to apply again and
ADJOURNED SUMMONS. again , in the case of the next of kin . A testator
George Holmes by his will,dated the 29th Nov. cannot deprive his next of kin who take in suc
1887, bequeathed to each of his nieces, Sarah cession to him by law except by making a will
Mariah Holmes and Emma Josephine Holmes, and disposing of the property to somebody else.
the sum of 1001. per annum , and charged the If he does not do that, the next of kin have, by
whole of his property and estate, both real and law , the right of succession to his personal estate .
personal, with the payment of such annuities. But then there is an intermediate class of cases,
After the death of the annuitants, the testator of which, I suppose, Vachell v. Breton (ubi sup.)
gare tbe capital required to provide their annui. is an example. The testator may give to one of
ties to certain charitable institutions named in his next of kin , or to one or two coheirs -at-law
his will. He then gave certain pecuniary legacies possibly, a part of his estate, and say, “ Now I
to certain individuals and charitable institutions, direct that that is the only part which that heir
and concluded his will in the following words : or those next of kin shall take.” Of course that
And now revoking and hereby making utterly and for would put the heir-at-law or next of kin in ques
ever void and powerless any and all wills by me at any tion to his or their election. If the heir -at-law or
time heretofore by memade, and hereby utterly and for next of kin came to take under the will,and said ,
ever excluding any and all relatives except my two dear “ I claim that property given by the will,” the
nieces aforesaid , viz ., Sarah Mariah Holmes and Emma answer would be, " Very well, then you must con
Josephine Holmes, the only daughters of the aforesaid form to the will, and if you take that property
Henry Holmes, Esq., M . D ., from any and all advan you must take that as your only part of the
tages or benefit in this my last will and testament, I estate because the testator has said so." But if
hereby lastly nominate, constitute, and appoint my said
two dear nieces, Sarah Mariah Holmes and Emma the next of kin or heir-at- law said that they
Josephire Holmes,and the aforesaid Wesleyan Metho- would not take anything under the will, but
dists and the directorsoftheaforesaid Totley Orphanage, would rely on their title as next of kin or heir -at
(a) Reported by E . A . SCRATCHLEY, Esq ., Barrister-at-Law . I law , what would there be to prevent them ?
384 - Vol. LXII., N . 8.] THE LAW TIMES. [May 10, 1890.
CHAN . Div .] Re Gooch ; Gooch v.Gooch. [CHAN . Div.
Nothing can prevent them unless the testator by I Solicitors : Arthur Toovey , agent for Bennett,
mere words of exclusion without disposition can Boycott, and Orme, Buxton ; Meredith , Roberts,
deprive them of the right which the law gives and Mills , agents for Birch , Cullimore, and
them . The testator cannot do that. There is of Douglas, Chester ; F . Brooke, agent for J. J.
course a third class of cases which is quite Wheat, Sheffield .
obvious, which is this : Supposing the testator
frames his will so that the words of exclusion of
someof the next of kin amount in fact to a gift March 3 and 4.
of the whole of his residue to others of the
next of kin. I quite admit that is like the (Before KAY, J.)
case before Hall, V .C . which was cited to me, Re Gooch ; Gooch v. Gooch.(a )
namely, the case of Bund v. Green (12 Ch. Div. Parent and child - Advancement- Presumption
819). There you do find that which was necessary Rebuttalof — Resulting trust - Director 's qualifi
in order to exclude some of the next of kin , cation .
namely , a gift to the others. Now , in the present A father made his eldest son, who was living near
case, I have to determine within which of these him ,and wasmarried , a liberalannualallowance.
categories the will comes. Stating it shortly , the Being desirous of providing his son with some
testator gives an annuity to his two nieces, and occupation , he took, in the son 's name, 100 shares
charges the whole of his estate of every sort and of 101. each in the A . company , that number of
kind for the payment of their annuities, capital, shares being the necessary qualification for a
income, and so on . After the death of the annui. director ; also fifty shares of 1001. each in the B.
tants he gives over the capital required to pro company, ten shares " at least " being a director's
vide those annuities to certain charities. He qualification ; and transferred from his own name
gives certain legacies also (which I need not into that of the son 's 500 shares in the C . com
further refer to) to other people, and he ends his pany, a director's qualification being " at least"
will thus : “ And now revoking and hereby making 100 shares. The son thereupon became a director
utterly and for ever void and powerless any and of these companies, and received the fees as
all wills by me at any time heretofore by me director, but voluntarily transmitted the dividend
made, and hereby utterly and for ever excluding warrants on the several shares to the father.
any and all relatives except my two dear nieces Afterwards, at the father's suggestion , the certifi
aforesaid , namely, Sarah Mariah Holmes and cates of the shares were handed to him for safe
Emma Josephine Holmes, the only daughters of custody, and they were retained by him until
the aforesaid Henry Holmes, Esq., M .D ., from his death . The three lots of shares were then
any and all advantages or benefit in this my last found in three envelopes, each indorsed by the
will and testament," and he appoints the nieces father with the number of certificates it con
and several other persons executors . Well, it is tained , two of the envelopes bearing the words
said that that excludes all the next of kin except “ belonging to me.” The and fatherpersonal
by hisestate
will
the two nieces, who happen to be next of kin . settled the bulk of his real
What are they excluded from ? They are only upon his eldest son for life,with remainder to his
excluded from any advantage under the will. children .
But there is no advantage given to them under Held , that the shares were taken in the son 's name
the will. The testator has madeno disposition of merely for the purpose of qualifying him as a
his residuary estate, and the next of kin comeand director ; that that being the purpose, the pre
say, “ The residue belongs to us." Then they are sumption of advancement which might otherwise
met by this : " No, you are excluded from any have come under consideration was rebutted ;
advantage under the will." But the answer is : and that the son held the shares as trustee.
“ We are not claiming any advantage under the Childers v. Childers (1 De G . & J. 482) followed .
will. We are claiming an advantage outside the ADJOURNED SUMMONS.
will which the law gives us, and we cannot be Sir DanielGooch , Bart., by his will, dated the
deprived of that unless you can sbow that the
will has given the property to somebody else.” 2nd Feb. 1886, after making divers specific and
The claim is unanswerable. The will has not pecuniary bequests, bequeathed his general per
given the property to somebody else ; therefore sonal estate unto his original trustees upon trust
the next of kin are entitled to all the residue just for conversion , with power to postpone such con
as if there had been no will whatever as to that version ; and the testator declared that his trustees
residue. With respect to the charities, of course should stand possessed ofthemoneyswhich should
I cannot determine anything now as to who are be produced from such conversion upon trust to
entitled. The charities are only entitled when pay kis funeral and testamentary expenses and his
the annuities shall have ceased . But it is quite just debts and liabilities, including unpaid calls
proper now to ascertain how much of the tes (if any) on shares in joint-stock or other com
tator's estate consists of pure personalty and how panies belonging to him at his decease, at such
much consists of real estate or personalty which times and in such manner as they or he should
is impure, because of course these annuities, think fit ; and upon further trust to pay all
being charged on all the estate,must be provided legacy or residuary duties (but not any succession
for by setting aside a proportionate part of the duties) payable upon or in respect of the several
pure and impure personalty. Hereafter, when dispositions thereby by him made of his general
the annuities have ceased , the charities taking personal estate, and the proceeds of the con
the charitable legacies will claim so far as that version thereof into money ; and upon further
fundset apart consists of impure personalty. There trust to pay the several pecuniary legacies therein
will be an inquiry therefore as to the different before bequeathed, or such of them as should not
characters of theestate and their respective values lapse or otherwise fail of effect ; and upon further
at the time of the death of the testator. (a) Reported by E. A . SCRATCHLEY, Esq., Barrister-at-Law ,
May 10, 1890.) THE LAW TIMES. . [Vol. LXII, N . 8.- 385
CHAN . Div. ] Re Gooch ; Gooch v . Gooch . [Chan. Div .
trust to pay or apply such of the interest of the of Sir Daniel Gooch for 500 shares. Certificate No. 157
general trust moneys as should from time to time in the name of Sir Daniel Gooch for 50 shares. Certifi.
cate 1896 in the name of Henry Daniel Gooch for 250
remain after performing or satisfying, or making shares. Certificate 1886 in the name of Sir Daniel
due provision for the performance or satisfaction , Gooch for 3524 shares.
of the several trusts aforesaid to or forthe person SirOrdinary shares : Certificate No. 409 in the name of
Daniel Gooch for 50 shares. Certificate 1383 in the
or persons to whom or for which respectively the name of Henry Daniel Gooch for 250 shares. Certifi
rents and profits of the hereditaments to be pur
chased as thereinaftermentioned with themoneys cate 1356 in the name of Sir Daniel Gooch for 3524
producing the same interest would be payable shares. Indorsed on the envelope, in the testator's hand
in case such hereditaments had been actually
purchased and settled as thereinafter mentioned ; writing, was the following:
Globe Telegr. Shares - 7648 of 101. each.
and upon further trust that his trustees should 76 ,4801.
at one time or several times lay out or invest the 5,0001. Jany. 1874 .
residuary general trust moneys in the purchase
ofmanors, messuages, lands, tenements, or other 81,4801. :
hereditaments situate in England or Wales, and 4324 101. -
sharesof
38,2401.
101. - Preference 43,2401. 3824 ordinary of
holden for a clear and indefeasible estate of
inheritance in fee simple in possession , free from 2. An envelope containing three certificates for
incumbrances except chief or quit rents and other together 1150 shares of the Brazilian Submarine
incidents of tenure ; and should cause and pro Telegraph Company Limited , such certificates
cure all manors,messuages, lands, tenements, or being as follows :
other hereditaments , which should be purchased forCertificate No. 1916 in the name of Sir Daniel Gooch
1000 shares. Certificate 513 in the name of Sir
pursuant to the present trust, to be conveyed , Daniel
settled and assured to , upon , and for the same HenryGooch for 50 shares. Certificate 516 in the name
usee, trusts, intents,and purposes, and with and of Indorsed DanielGooch for 100 shares.
on the envelope, in the testator's
subject to the same powers, charges, and pro
visions (but not so as to multiply or increase the handwriting, was the following :
1050 shares in the Brazilian Telegr. and 100 shares in
amount of such charges) as were thereinafter
limited and created and authorised respectively same, standing in the name of
ing to me- 11,5001.
H . D .Gooch , but belong
of and concerning his freehold estates as that ex 3. An envelope cortaining a certificate No. 2
pression was thereinafter defined . And after
various other provisions the testator derised his in the name of Henry Daniel Gooch for fifty
freehold estates to the use that his wife Emily shares of the Ruabon Coal and Coke Company
Gooch should receive a yearly rentcharge of Limited.
should
25001. during her widowhood , and , if she thence
marry again , a yearly rentcharge of 5001.
Indorsed on the envelope, in the testator's
handwriting, was the following :
forth during her life, and subject thereto to the Certificate of 50 shares in Ruabon Coal Co, standing
use of his eldest son Henry DanielGooch during in the name of H . D . Gooch , belonging to me.
his life without impeachment of waste, with All the certificates in the name of Sir Henry
remainder to the use of each son of Henry Daniel Daniel Gooch were claimed by him as being his
Gooch born in his (the testator's) lifetime during own property.
his life, with remainder to the first and other An originating summonswas accordingly taken
sons successirely of Henry DanielGooch accord out on behalf of W . F . Gooch and T. M .Merriman
ing to their respective seniorities in tail male, against Sir Henry Daniel Gooch and others asking
with remainders successively to the use of the for the determination of (inter alia ) the question ,
testator's other sons and their sons as therein whether the shares referred to, which were
mentioned , with remainder to the use of the tes. standing in the name of Sir Henry Daniel Gooch
tator's original trustees upon trust for sale , and at the Ceath of the testator, belonged to Sir
to stand possessed of theproceeds thereof in trust Henry Daniel Gooch for his own use, or were
forall the testator's children as therein mentioned . part of the assets of the testator; and that, if
And the testator appointed his brother William necessary, an issue might be directed as to who
Frederick Gooch and his sons Henry Daniel were entitled to the shares, or that directions
Gooch and Charles FulthorpeGooch , and Thomas
Mark Merriman , the original trustees and also might be given as to how the plaintiffs ought to
act with regard to the same.
the executors of his will. In support of his claim to the shares Sir
The testator died on the 15th Oct. 1889.
T'he testator left him surviving bis widow and Henry Daniel Gooch made an affidavit as
his son Sir Henry Daniel Gooch, and two other follows :
1. At the beginning of the year 1873 I was residing in
sons. Sir Henry Daniel Gooch was married on London , near my father, the late Sir DanielGooch. He
the 23rd Nov. 1865. desirous of providing me with some occupation ,
Shortly after the testator's death the executors, was
and suggested my becoming a director of certain com
Sir Henry Daniel Gooch and T. M . Merriman , panies in which he took an interest. He accord
ingly caused me to be appointed one of the first
took possession of the personal property and directors of the Brazilian Submarine Telegraph Com
effects of the testator. Such property and effects
pany Limited. The qualification of a director in the
included the following : said company consists in his being the registered holder
1. An envelope, containing four certificates for of 100 shares in the company , My father applied in
together 4324 preference shares of the Globe my name for 100 shares of 101. each , which were allotted
Telegraph and Trust Company Limited ,and three to me in Feb . 1873, and registered in my name. My
certificates for together 3824 ordinary shares of father gave me cheques for the amounts payable on
application and allotment and for subsequent calls, and
the same company, such certificates being pinned these cheques I paid over to the company. The certi.
together in the following order : ficate for the shares is dated 12th Feb. 1873, and is made
Preference shares : Certificate No. 3012 in the name out in my name. . .
386_ Vol. LXII., N . S.] • THE LAW TIMES. (May 10, 1890.
Chan. Drv.] Re Gooch ; Gooch o.Gooci. [Chax. Div.
2. I have ever since continued to be and am still a | marine Telegraph Company Limited ; that her
director of the said company. I have always received husband paid for 100 100. shares of that company.
and retained the fees appertaining to that office .
3. Subsequently , in the month of July 1880, and in and the son was appointed one of the original
directors. She also deposed that she remem
order to qualify mefor a seatat the board , Iatmyfather's
bered in 1880 her husbard informed her that he
suggestion applied for fifty shares of 1001. each in the
Ruabon Coal and Coke Company Limited , and fifty had taken steps for the son to be appointed a
shares were allotted to me, and registered in my name. director of a company then being formed , and
The certificate dated 8th Oct. 1880 is made out in my
name. . . . In this case my father handed me known as the Ruabon Coal and Coke Company
Limited , and her husband paid for fifty 1007.
cheques for the amounts payable on application, allot
ment, and calls, which cheques I paid over to the said shares of such company ; that she also remem
company.
4 . I was appointed one of the first directors of the bered that in 1881 her husband informed herthat
last-named company, and I have ever since continued to he had transferred into the name of the son
be and am still a director thereof. I have always 250 101, shares of the Globe Telegraph and Trust
received and retained the fees appertaining to that Company Limited , and 250 101. preference shares
office , and exercised voting powers, & c . of the same company, in order that the son
5. In or about themonth 250of November 1881 my father might be aware a director
qualifiedherashusband ; that so far as
transferred into my name preference shares of 101. she was did not at any time
each and 250 ordinary shares of 101. each in the Globe make any stipulations with the son with refer
Telegraph and Trust Company Limited . The cer . ence to the terms upon which he held the shares
tificates for these shares are idated respectively the above mentioned ; but that to the best of her
23rd Nov. 1881, and are in my name. . . .
6 . I was appointed a director of the last-named com knowledge, information , and belief he considered
pany on the 22nd Nov . 1881, and I have ever since con they were the son 's own property ; that during
tinued to be and am still a director thereof. I have
always received and retained the fees appertaining to the life of her husband the son handed over to
that office, and exercised voting powers , & c. The him the dividends received in respect of the
qualification of a director in the said company consists shares ; and that to the best of her knowledge,
his being the holder of at least 100 shares in the information, and belief there was no agreement
incompany
. to this effect ; and, if the son had not handed
7. The certificates for all the said shares were in my over such dividends voluntarily, she did not
possession up to the month of January 1886 , when
they were handed over to my father for safe custody as think her husband would ever have asked the
hereinafter mentioned . son for them .
8. The shares and the money representing them were She further deposed that,when going through
always considered by me to be a gift from my father, the scrip relating to his securities, her husband
and I believe were so considered by him .
9. The warrants for the dividends payable in respect always referred to the shares above mentioned
as “ Harry's shares,” meaning thereby, as she
of the said shares were sent to and received by me. I believed, that such shares belonged to the son.
voluntarily and without any suggestion on the part of
my father indorsed them and sent them to him . I did The summons was aajourned into court, and
80 for the reason that my father was making me an now came on to be heard .
annual allowance far in excess of the income derived Marten , Q .C . (Marcy with him ), for the plain
from the shares, and I thought it nothing but right
that, as he had provided the capital, he should during tiffs, thetrustees, stated the facts of the case, and
his life receive the income so far as the dividends were submitted the questions to the court.
concerned . Renshaw , Q .C . and Hornell , for the defendant
10. The circumstances under which I handed the cer. Sir Henry Daniel Gooch , referred to
tificates of the said shares to my father are as follows :
In the month of October 1885 I had a very serious Grey v. Grey, 2 Swanst. 594 ;
illness, and after I recovered my father suggested to Sidmouth v. Sidmouth , 2 Beav. 447 ;
me that it would be safer to have the said share certifi. Williams v . Williams, 32 Beav. 370 ;
cates placed with his in a strong room in his house May v. May, 33 Beay, 81 ;
where he kept his securities. To this I agreed. I Childers v. Childers, 1 De G . & Jo. 482 ; 3 K . & J.
accordingly handed them over to him on January 20th , 310 ;
1886. They have ever since remained with my late Christy v. Courtenay , 13 Beav. 96.
father , although I could have had them returned to me Church and Norman Pearson , for other defen
at any time during my father' s lifetime by merely asking dants beneficially interested , were not called upon
for them .
11. In the month of November (23rd ) 1865 I was to argue.
married to my present wife . No settlement was made KAY, J. - I am of opinion that the presumption
by my father on me on the occasion ofmy marriage, nor of advancement in this case is rebutted . One
at any time subsequently during his lifetime. He how must look at all the facts of the case, and the
ever, as before stated , made mean allowance. main facts here are these : Sir Daniel Gooch,
An affidavit was also made by the testator's who was a wealthy man , was interested in various
widow, in which she deposed that, during the companies. His eldest son, who has succeeded to
whole of her married life, she had enjoyed the | the baronetcy , was living near him in London,
confidence of her husband in all matters relating and to that son he made, according to the evi
to his private affairs, and was in the habit periodi dence before me, a liberal allowance. [ His Lord
cally of assisting him in making up his accounts ship then read the affidavit of Sir H . D .Gooch ,and
of his income and expenditure, and his invest continued as follows:) Well, it appears from the
ments,and also used to assist him in cutting off the 1 time when the son became, in this way , the holder
coupons from bis numerous bonds, as he kept all of shares in these several companies he received
his bonds and other scrip relating to his invest the dividends, and, without any request, handed
ments in a strong room which he had constructed them to his father. Then afterwards he had a
in his residence ; that she well remembered that serious illness, and in 1886 ne says his father
in 1873 her husband informed her that it was his suggested to him that the certificates should be
wish that his eldest son, Sir Henry DanielGooch, handed to his father to bekept withhis (thefather's)
should be made a director of a company then | cwn certificates in a strong room belonging to
being formed, and known as the Brazilian Sub- | the father. Accordingly the son handed the cer
May 10, 1890.] THE LAW TIMES. [Vol. LXII., N . S. - 387
Chan . Div.] Re Gooch ; Gooch v.Gooch . [CHAN, Div.
tificates over , and upon the envelopes containing ! he wanted him to have some occupation , and
two sets of the certificateg - namely, the Brazilian that therefore he should like him to be a director
Telegraph Company and the Ruabon Coal Com , of these companies, and for that purpose he pro
pany - the father in his own handwriting in vided the qualification . I should say that the
dorsed , in the one case, “ 1050 shares in the purpose was not, on this evidence, to give these
Brazilian Telegr. and 100 shares in same, standing shares ont and out to the son . The purpose
in the name of H . D . Gooch , but belonging to | clearly was to provide the son 's qualification. It
me;" and in the other case, " certificate of fifty is argued,“ But if the father wanted to find an
shares in Ruabon Coal Co., standing in the occupation for his son, and bought him a share
name of H . D .Gooch, belonging to me." In the in a partnership, that clearly would be an ad
other case he simply indorsed , “ Globe Telegr, vancement." The answer is : “ The father did
shares," but he seems to have had a great many not buy him a share in the partnership . He
more shares in that company than those which only made him a shareholder in these com
were in the name of the son , and they all, I am panies in order that, being a shareholder, he
informed , were included in the envelope which I might be appointed a director . Now , no one
hold in my hand. Those are the bare facts of denies — in fact it is admitted by counsel — that the
this case, and I have to consider whether the holding of shares as a trustee for somebody else
father intended these shares as a gift to the son , would be an ample qualification ; because it is
or what was the intention. Now , first of all, in obvious that it would make a shareholder liable
the case of the Globe Telegraph Company, where to pay calls personally , and that the company
the father had transferred to the son 500 shares, would take no notice of the beneficial interest.
the qualification was to be the holding of at least There are no such words in the articles of associa
100 shares. In the case of the Ruabon Coal tion as the words " in his own right" which have
Company the article is as follows : “ No person been canvassed in two or three recent cases . But
shall be capable of being appointed a director the holding as trustee for somebody else would
unless he shall be entitled to ten shares at least." | be a proper qualification in every sense . I cannot
In that case the holding was fifty shares. But in distinguish this case from the case of Childers v .
the third case - that of the Brazilian Telegraph Childers (4 De G . & J. 482 ; 3 K . & J. 310 ), which
Company - the qualification is worded thus in was referred to during the argument. In the
the articles : " The share qualification of a case of Childers v. Childers the father transferred
director shall be his being the registered holder into the name of his son a certain piece of land in
of 100 shares " - not " at least," but 100 shares order to qualify him to be a bailiff on the Bedford
simply . In that case the number of shares put Level Commission . He did not communicate it
into the name of the son was 100. The shares to the son , and of course the son received no part
were paid for by the father in every case. Now , of the rent of the land, and the son died . It was
it is quite plain that the purpose of the father submitted in that case that there was no decla
was, as the son says, to provide the son , who was ration of trust at all to satisfy the Statute of
living as a rich man, with a liberal allowance Frauds. However, the difficulty did not impress
made by the father , with an occupation. I ought the judges for a moment, because they said the
to add , because it seems to me to throw light on whole transaction showed that the purpose was
the whole of the transaction , that the son , at the qualification . But the dry trusteeship would be
father's death , succeeded to the baronetcy. By sufficient qualification , and therefore the property
his will the father made him , in the usual sense originally belonging to the father, being trans
of the phrase, “ an eldest son ” -- that is to say, I ferred into the son 's namemerely to give him the
he gave him an interest in the bulk of his pro qualification , and the dry trusteeship being
perty. He made a larger provision for him than sufficient qualification, the inference is that no
he did for any of the other children . He does more was intended than was sufficient to effect
not notice one way or the other these shares that purpose. Therefore the son was a trustee,
specifically. What is the inference to be drawn and the trust need not be declared because it re
from all this ? Is it that the father intended to sulted to the father. So I say in this case. Here
make a present to the son of these sbares ? Was the purpose was qualification and nothing else,
it an advancement, or what was it ? The father and it was sufficient qualificacion — that is ad
was making the son such an ample allowance mitted . The father had no other purpose what
that the son never thought of keeping the divi. ever. It is not the case of a needy son with
dends himself. He says, as to that, “ I volun. property transferred into his name. The son was
tarily and without any suggestion on the part of not needy ; he bad a large allowance from his
my father indorsed them and sent them to him . father, so large that it never occurred to him to
I did so for the reason thatmy father wasmaking pocket the dividends, but he handed them all to
me an annual allowance far in excess of the his father, and, on his father's suggestion some
income derived from the shares, and I thought it | years afterwards, he har.ded the certificates over.
nothing but right that, as he had provided the I think I am entitled to look at the indorsement
capital, he should , during his life, receive the | the father made, not as being evidence of the
income so far as the dividends were concerned.” state of the father's mind at that time, but as
Well, I am to inquire what was the intention of consistent with the whole thing from the very
these parties at the time. These acts are, to my first. I cannot find that the father or the son
mind, infinitely more striking and forcible and ever understood this transaction as being any.
eloquent than any affidavit made by the son after thing more than such a transfer to the son , or
the father's death . It is obvious that the son such a purchase of shares in the name of the son ,
never anywhere says that the father told him as should be sufficient to give him a director's
that these shares were to be for his benefit. qualification . Of course the son can retain the
Nothing of the sort ever passed between them . / shares still as trustee and remain director as he
He says, in effect, that his father told him that I is now . I hold that all that was intended , and all
Chan. Div .] SIBUN v. PEARCE AND THE EAST DULWICH BUILDING SOCIETY. [Chan. Div .
thatwas done, as the conduct of both parties and In the month of April 1889 a notice was sent
the affidavit of the present baronet show , was for to all the shareholders of the society, except
the purpose of qualifying the son simply. That those who had given notice of withdrawal, of
being the purpose, it seems to me the presump a special meeting for the 26th April. This
tion of advancement which otherwise might have notice was informal, written at the back of the
been taken into consideration is rebutted . I balance - sheet for the year ending the 28th
therefore answer that question by finding that Feb . 1889, and did not state the objects of the
the shares in question belong to and form part of meeting, or that any proposal to wind -up the
the assets of the testator ; and there will be a company would be discussed . The meeting was
declaration that the son is a trustee of them . Of held on the 26th April 1889, and a resolution
course he will take the director's fees- there is passed that the company should be wound-up.
no question about that. He is tenant for life in In pursuance of this resolution an instrument
possession of the shares, and the shares will of dissolution , ultimately dated the 14th Oct.
remain in his name in order to continue his 1889, was prepared by the defendant Pearce.
qualification as a director. This deed purported to be made pursuant to
Solicitors: Merriman, Pike and Merriman ; sect. 34 of the Building Societies Act 1874
John Scott Heron . (37 & 38 Vict. c. 42), and stated the number of
members of the company to be seventy-four, and
their shares 247 ; that the liabilities of the com
Friday, Feb. 7. pany were 14521. 23. 9d . due to creditors, and
(Before NORTH, J.) 20911. 148. due to members, total 35431. 168. 9d .,
· SIBUN v . PEARCE AND THE East DuLWICH and its assets, consisting of bank balance and
BUILDING SOCIETY. (a ) sumsdueon investments,about 1001. less; and that
Building society - Dissolution - Consent of three the amount standing to the credit of the members
fourths of the members - Member having given in the books of the society was 35431. 168. 9d .
notice to withdraw - Building Societies Act 1874 It provided that the creditors should be paid out
( 37 8 38 Vict. c. 42), 8. 32 (3). of the first sums coming to the hands of the
The East Dulwich Building Society was a society | trustee, and that subject thereto and to the
costs of dissolution the funds and property
registered under the Building Societies Act 1874 . of the society should be divided among its
That Act provides (sect. 32) that a society under members in proportion to the amount standing
the Act may terminate or be dissolved , among to their credit in the books of the society. The
other ways (sub-sect. 3), by dissolution with the deed then appointed the defendant William
consent of three-fourths of the members holding Henry Pearce trustee, and the other directors of
than two-thirds of the number of shares the company a committee of inspection . It directed
in thelesssociety, testified by their signatures to the that
not
the trustee and committee of inspection
instrumentof dissolution . S.,the plaintiff in this
action, had token shares in the society, and on should be paid by way of remuneration 10 per
the 7th Sept. 1886 had given notice of withdrawal. cent. upon the gross amounts received by them ;
and that the trustee should have full powers to
The rules provided that a member having given
notice of withdrawal should thenceforth take no negotiate
return of
with themortgagors for the immediate
the balance due from them , and for
part in the affairs of the society. On the 26th such remuneration the trustee should allow com
April 1889 a meeting of the society was held, of pensation .
which no notice was sent to S . or the other mem defendant Pearce was himself indebted to
bers of the society who had given notice of with theThe society on mortgage.
drawal, and a resolution was passed that the The deed was prepared and its execution pro
society should be wound-up. On the 24th Oct. 1889 cured
a deed was executed by the statutory majority of societyby's solicitor
him withoutany consultation with the
.
the members of the society, who had not given
notice of withdrawal,providing for thedissolution none of whom had given by
The deed was executed fifty-seven members,
notice to withdraw .
of thesociety and appointing P . trustee. The deed The deed was registered on the 20th Dec. 1889,
was not executed by any members who had given upon production of a statutory declaration by
notice of withdrawal, and , if they were to be W . E . Pearce that it was signed by not less than
counted as members, it was not executed by the three-fourths
statutory majority . S . brought this action to than two-thirds of the members holding not less
restrain P. from acting under the deed . of the shares of the society.
In fact, at the
Held , that, for the purposes of voting concerning a seventy -four members date of the deed there were
dissolution under sect. 32 (3) of the Building of withdrawal, and sixty-nine who had not given notice
Societies Act 1874 , withdrawing members must members who had
be counted as members, and that the rule stated given such notice. Thememberswho had given
notice were scheduled to the deed as creditors,
above did not deprive them of this right. and were the only creditors so scheduled , but the
Injunction granted .
The East Dulwich 295th Starr Bowkett Building amounts due to them were in the deed included
in the 35431. 168. 9d . stated to be the amount
Society was incorporated under the Building | standing to the credit of the members in the
Societies Act 1874 on the 10th March 1880. books of the society, as well as in the same sum
The plaintiff in this action became a member stated to be amount due to creditors. No one of
of the society on the 29th March 1881, and was the members who had given notice to withdraw
the holder of sixteen shares, upon which 931. had had executed , or been asked to execute, the deed
been subscribed . of dissolution .
On the 7th Sept. 1886 the plaintiff gave notice This action was brought by Sibun for an
ofwithdrawal according to the rules. injunction to restrain Pearce from acting as
(a) Reported by J. R. BROOKE, Esq., Barrister-at-Law . i trustee of the deed , or receiving any of the pro
May 10, 1890. ) THE LAW TIMES . (Vol. LXII., N . 8. - 389
CHAN . Div. ] SIBUN v . PEARCE AND THE EAST DULWICH BUILDING SOCIETY. (Caan . Div .
perty of the society, and to restrain the society| apply, because this is not a dissolution under the
from disposing of any of its property to him , rules, but a proceeding under the Act of Parlia
upon the ground (amongst others) that withdraw ment which overrides the rules. There is nothing
ing members were members for the purpose of in the rule which can alter the primâ facie construc
executing a dissolution deed under sect. 32 of the tion of the Act of Parliament. If the deed is
Building Societies Act 1874 , and that therefore not good the certificate of the registrar cannot
the deed was not executed by the necessary possibly make it so .
statutory majority. Higgins, Q .C. and Bramwell Davis for the
Sect. 32 is as follows: defendants. - All the cases
cited were decided upon
A society under this Act may be terminated or dis the question whether a withdrawing member was
solved : (1) Upon the happening of any event declared a member in the sense that he was bound to sub
by its rules to be the termination of the society ; (2) by
dissolution in manner prescribed by its rules ; (3 ) by dis mit to arbitration . The Act, sect. 16 (9), makes
solution with the consent of three-fourths of themembers that a question to bo decided by the rules, and
holding not less than two-thirds of the number of shares those cases do not lay down any generalprinciple
of the society , testified by their signature to the instru that a withdrawing member is a member for all
ment of dissolution. purposes. In Re The Sheffield Building Society
The section goes on to direct what the instru. (60 L . T. Rep. N . S . 186 ; 22 Q . B . Div. 470) shows
ment of dissolution must contain , and the mode that he is not a member for all purposes. In this
of altering it, and proceeds : case the rules, which are an express contract
· The instrument of dissolution , and all alterations between the members binding on the plaintiff,
therein shall be registered in the manner provided for provide that a withdrawing member shall not
the registration of rules,and shall be binding upon all take part in the affairs of the society . Consent
the members of the society.
Sect. 20 . Any certificate of incorporation orofregistra ing to a dissolution deed is taking a part, and a
tion, or other document relating to a society under this very important part, in the affairs of the society .
Act, parporting to be signed by the registrar, shall in If the consent of withdrawing members is neces
the absence of any evidence to the contrary, be received sary to a deed , the continuing members will be
by the court, and by all courts of law and equity, and deprived of this mode of dissolution altogether.
elsewhere,without proof ofthe signature ; and a printed
copy of the rules of a society certified by the secretary, NORTH , J. - first question is, whether the
or other officer of the society to be a true copy of its deed which hasThe been executed in this case is bind
registered rules, shall, in the absence of any evidence to
the contrary, be received as evidence of the rules ing on all the members of the society under the
The rules of the society contained no provi. provides 32nd section of the Act of 1874 . That section
sions as to dissolution . The 18th rule contained four ways in which a society may termi.
the following provisions as to withdrawing nate or be dissolved . It is not suggested that
members : this society has been dissolved in any of these
Members wishing to withdraw shall give threemonths' ways except that provided by sub -sect. 3. The
notice in writing to the secretary to receive back sub only question therefore is whether it has been
scriptions standing to their credit, less all fines due and validly dissolved under that sub- section . [His
anpaid, and one-third per share per annum for working Lordship read the sub-section and proceeded :]
expenses. . . In the event of there not being Now , a certain number of members of the society
sufficient funds in hand at the time a notice of with have signed an instrument
drawal expires the withdrawal shall be paid from subse porting to be made under that ofsub-section dissolution pur
, and to
quent repayments as received . , . . In case of any à considerable extent it conforms with its
loss to the society from whatever cause the member
withdrawing shall have deducted from his account a fair requirements . The important point raised is
proportion with other members if such loss happens this : The requisite consents have been obtained
before his notice to withdraw is received by the secre if members who have given notice to withdraw
tary . All notices of withdrawal shall be preserved and their shares have ceased to be members. If, on
entered by the secretary in a book for that parpose in
the order they are received , and the withdrawing the other hand, persons who have given such
members be paid in the same order of rotation . The notice are still members, it is admitted that
secretary shall inform the member in writing when the the consent of three-fourths of the members
money is ready for him . holding more than two-thirds of the shares have
Members having given notice of withdrawal shall from not been secured . The question , therefore, is
the date of such notice cease to take part in the affairs
of the society, but may cancel such notice at the discre. whether the plaintiff Sibun and the other per
tion of the board of management. the return of sons who have given notice are or are not share
subscriptions the withdrawing memberOnshall cancel his holders of the company. To ascertain that, we
paes-hook and surrender it to the society.
Farwell (Cozens- Hardy, Q.C .with him ) for the must look at the rules to see when a person who,
beyond all question , has become a member of the
plaintiff. — The question here is merely one of | society , has ceased to be a member. Has he
construction of the word member in sect. 32 of so ceased to be a member when he gave his notice
the Act of 1874. The dissolution there provided to withdraw , or has he done so when that notice
for may seriously interfere with the rights of a has been complied with by his being paid off ?
member who has given notice to withdraw . It What has happened in this case is that the plain
would be very unfair that he should have no tiff gave his notice to withdraw in 1886 , and he
voice in the matter , and we submit that he is a | has not yet been paid off. Now , the 13th rule is
member within the meaning of the section . that which relates to the withdrawal of unappro
Wright v. Deley (4 H . & C . 209) and Walker V . priated shares. [His Lordship read so much of
The General Mutual Building Society (57 L . T. the rule as is above set out down to the words
Rep . N . S . 574 ; 36 Ch. Div. 777) and other cases “ shall inform the member in writing when the
lay down the general rule that a notice to with | money is ready forhim .” ] Now ,there is nothing
draw does not convert a member into a creditor. down to that point saying that a person ceases to
The rule that a withdrawing member is to take be a member when giving notice to withdraw .
Bo part in the affairs of the company does not ! Primâ facie a three months' notice to withdraw
390 — Vol. LXII., N . 8.] THE LAW TIMES. [May 10, 1890.
Chan . Div .] SIBUN v. PEARCE AND THE East DuLWICH BUILDING SOCIETY. (Chan. Div.
means a notice to withdraw at the end of the ) was essential should be procured. I do not find
three months for which the notice is required , that the cases cited assist me very much . The
and the repayment is only to take place at that generalprinciple laid down in Wright v . Deeley and
time at the earliest, it may be postponed a little Walker v. The General Mutual Building Society
longer, and it must be postponed till the (ubi sup.) apply, but the particular rules in those
amount payable is ascertained. No evidence has cases are different from the rules here. In those
been produced that the amount has been ascer cases it was clear that the rules did not make a
tained in this case. Then the person who has man who had given a notice to withdraw cease
given notice is spoken of as a member when the to be a member. The question in the present
money is ready to be paid . No doubt that might case is, whether the rules here had that result or
be explained by something clear and definite in not ; but the observations of Fry, L . J. in the
the rule saying that in accordance with these case of Walker v. General Mutual Building
rules a man shall cease to be a member at the date Society are notwanting in point. He says, speak
at which he gives the notice. But, in my | ing of the rule in that case (57 L . T . Rep .
opinion , unless there is something to that effect N . S . 576 ; 36 Ch. Div. 786 ) : “ Now , is this a dis
the withdrawalwould date from the maturity of | pute beweeen the society and the plaintiff in his
thenotice,and not from an earlier date. And the capacity of member ? I have no hesitation in
words " shall inform the member in writing when saying that, in my judgment, it is. The plaintiff's
the money is ready for bim ” are entirely incon - | rights arise entirely from his membership ; he is
sistent with the idea that the person to whom the j a withdrawing member, and till he has received
notice is to be given , and who is described as a payment it appears to me he remains a member.
member, has ceased to be a member three months Rule 10 treats the person who has given notice as
at least before the notice is sent. Then there are a member, and, in my judgment, rightly treats
these further words : “ Members being thirteen him as a member.” Well, I see no difference in
weeks in arrear, or having given notice of with that respect between the rules of that society
drawal, shall, from the date of such notice , cease and the rules of the society now before me,
to take part in the affairs of the society.” It because I cannot hold that the direction that he
seems to me that that would be absolutely should cease to take part in the affairs of the
unmeaning if the person could not, whether society is in any sense an equivalent to a rule
these words were there or not, take any part in that he should cease to be a member when the
the affairs of the society because he was not a notice is given . The case of the Sheffield Building
member. It points to the diminution of the Society (ubi sup.) was also referred to, but it
power of a man who is a member. But, seems to me to be a very long way from
although the rule prevents him taking part the present case, because in that case it is
in the affairs of the society , I see nothing in seen from a note that the question did not
it to show that he is not a member. On the arise as to whether the person who had given
contrary, the existence of such a rule is only notice to withdraw had ceased to be a member or
consistent with his being a member at the time. not. Under the rules in that case notice to with
Then it goes on : “ But may cancel such notice at draw was not to withdraw a share at all, but to
the discretion of the board of management." withdraw the whole or any part of the amount
I confess I do not know what is meant by a man due to themember. In that case theman had not
cancelling a notice at the discretion of the board only given his notice, but he had been paid every .
of management. It may mean possibly that he | thing that was due to him , and the question was,
may cancel if they allow him to do so. But, at whether a person whose notice had been acted
any rate, the rule shows that the notice may be upon , and themoney repaid on the withdrawalof
cancelled , and if the notice is cancelled , the the notice, was still a member. That was a
member is what he was before ; cancellation different question to the present case. Then the
of notice does not make him a member second point contended for by Mr. Higgins is
de novo, but it puts an end to his right to with that, assuming the view I have taken is correct,
draw and to the obligation not to take part in and the deed is not in accordance with the Act,
the affairs of the society. Now , looking at that still the fact that it has been registered makes
rule, which I am told is the only rule bearing it binding,and prevents my holding that it is not
upon the subject, I have no doubt what its according to theAct. Now ,the 3rd sub-section of
meaning is . Then it comes to this, that under sect. 32 provides that the instrument of dissola
the rules Mr. Sibun has not ceased to be a tion ,and all alterations therein , shall be registered
member ; though he has given notice of with - | in manner provided for the registration of rules,
drawal, he has not been paid off, and he is still and be binding upon all the members of the
a member of the society , and I see nothing to society. What instrument of dissolution ? In
prevent his coming within the class of persons | my opinion ,itmeansthe instrument of dissolution
referred to in the Act, where it says that the | which has been drawn up and completed in con
dissolution must be with the assent of three formity with the provisions already laid down.
fourths of the members holding not less than The construction is just the same as if it were
two-thirds of the number of the shares in the “ such instrumerit of dissolution." This instru
society. He is a member, in my opinion, and he ment is not such an instrument of dissolution .
does hold a definite number of shares in the It is said that the 20th section of the Act makes
society. It has been asked what number ? It registration conclusive. But that section only
is the number which he can resume the full en provides that the signature of the registrar shall
joyment of by cancelling his notice to withdraw be accepted without proof. I do so accept it.
- in other words, the number of shares which he The rest of the section provides that a printed
had from the first. Therefore, as far as the copy of the rules of a society shall be received as
section goes, I am of opinion that Mr. Sibun is a evidence of therules. But I do not find anything
member of the society , and one whose consent it i binding me to hold that the deed is in accordance
tay U, I500.] THE LAW TIMES. [Vol. LXII., N. S. - 391
Chan . Dir .] Re WHITTEN ; KING v. WITTEN. [Chan . Div.
with the provisions in the Act simply because ! Henry Whitten , her surviving. There were five
the registrar has certified that it is registered children of the said Henry Whitten living at the
I hold , therefore, that the deed is invalid , and death of the testatrix, of whom the eldest, Wilfrid
not binding on the society . | Whitten , had attained twenty- five at the tes
Solicitors : Savery and Stevens ; Crawford and tatrix's death .
Henry Whitten was the testatrix's sole next of
Chester.
kin and heir-at-law .
This was an originating summons taken out by
Thursday, Feb. 13. the trustees of the will, to which Henry Whitten
(Before North J.) and his children were made defendants , for the
ReWHITTEN ; King v. WHITTEN . (a ) determination of the question whether the gift of
the testatrix 's residuary estate was wholly or to
Will — Construction – Gift to children of A . at what extent void for remoteness. “
twenty -five — Substitutionary gift to grand Farwell for the trustees.
children of A. attwenty -five - Perpetuity .
W ., by will, gave her residuary estate in trust for theCozens- Hardy,Henry
defendant. Q .C .Whitten
and Grosvenor Woods
. - The gift for
is yoid
twenty-five,of lier
all the children
attain
son H . W . who should for remoteness ; the shares of the grandchildren
or, being daughters, marry of Henry Whitten will certainly not necessarily
under thatage,with a gift over in case any child be ascertained within twenty -one years after his
died under twenty -five leaving children who death . In Picken v. Matthews (39 L . T. Rep.
should attain twenty - five, or, if daughters, marry
under it, to such last-mentioned children in equal inN .construing
S. 531; 10 Ch. Div. 264) Malins, V .C. held,
a gift to such of the children of the
shares of the sharewhich their parent would have testator's daughter
taken if he or shehad attained twenty-five. One that where one of astheshould attain twenty -five,
children had attained
son of H . W . attained twenty- five before the twenty -five at the testator 's death the gift was
testatrix 's death . not void for remoteness , because the period of
Held , that the giftwas void for
no
perpetuity
gift over
.
to grand distribution had arrived as soon as the eldest
Semble, if there had been child attained twenty - five, and therefore the gift
children , then , as the period of distribution had must be construed as a gift to each of thechildren
arrived upon the eldest child attaining twenty living at the testator's death as attained twenty
five, and no after-born children could take, the five. That case does not apply here, because this
giftwould have been good . will constitutes a double class of children and
Picken v . Matthews (39 L, T. Rep. N . S. 531 ; 10 grandchildren , and though ,as one child of Henry
Ch . Div. 264) distinguished . Whitten has attained twenty- five, the maximum
MARIA WHITTEN, widow , by her will, dated 5th number of shares might have been ascertained at
April 1876, devised and bequeathed all her real the testatrix 's death , the exact share of such child
and residuary personal estate to trustees upon and the number of grandchildren why would take
trust for sale, conversion , and investment, and some share would not necessarily be ascertained
directed them to stand possessed of the invested within twenty -one years from Henry Whitten 's
proceeds death . That brings this case exactly within Hale
In trust for the children of my son Henry Whitten v. Hale (3 Ch. Div. 643), which was expressly
who being sonsora son shall attain or shall have attained approved as a correct statement of the law in
the age of twenty- five, years or, being daughters or a Pearks v. Moseley, 43 L . T. Rep. N . S. 443 ; 5 App.
daughter shall attain or shall have attained that age or
marry or have married under that age , in equal shares, Cas. 714 .
and if there shall be only one such child the whole to be If Picken v . Matthews is not distinguishable from
in trust for that one child ; provided always that if any the present case by the absence of the substituted
child or children of my said son Henry shall die in my gift it has been overruled by that case. It seems
lifetime or before he, she, or they shall attain the age
of twenty -five years leaving a child or children who being a to have been followed by Stirling. J. in Re
son or sons shall attain the age of twenty - five years or Coppard ; Howlett v. Hodson , 56 L . T . Rep . N . S .
being a daughter or daughters shallattain or marry under | 359 ; 35 Ch. Div . 350 ), but in that case again
that age, then and in every such case the last-mentioned there was no substituted gift ; and in Re Wenmoth ;
child or children shall take, and if more than one, Wenmoth v. Wenmoth (57 L . T. Rep . N . S . 709 ;
equally between them , the share or respective shares
which his, her, or their parent or respective parents 37 Ch. Div. 266 ) Chitty, J. throws doubt upon both
would have taken of and in the said residuary mon those cases. The only other case in which Picken
if such parent or parents had attained the age of twenty v. Matthews appears to have been referred to is in
five years ; Re Moseley's Trusts (41 L . T . Rep . N . S . 9 ; 11
and the testatrix directed her trustees to pay the Ch.inconsistentDiv. 555), where Baggallay, L .J. speaks of it
income of the shares of any child or remoter issue as with Smith v . Smith (L . Rep .
who had not attained twenty -fire or married as 5 Ch. 342), which was there followed .
aforesaid to Henry Whitten for his life, and after Everitt, Q .C . and Bramwell Davis for the
his death to accumulate such income,and gave children of Henry Whitten . - The eldest child
her trustees the usual powers of maintenance having attained twenty -five at the testator's
and education . death no child born after that date could take
By a codicil the testatrix directed that the said any share :
Henry Whitten should receive only an annuity Gillmann v . Daunt, 3 K . & J. 48 .
of 1001. out of the income of trust funds, and Consequently the maximum number of shares
the residue of such income should be used or was ascertained at theentitled
testatrix's
allowed to accumulate as her executors should Whitten was then to death.
one- fifth Wilfrid
share.
deem most for the benefit of her grandchildren
her,leaving
grandchildren .
The testatrix died in 1889, her son. , I and the gift is not made void by the
he might afterwards become entitled to more. fact that
(a) Reported by J. R. BROOKE, Esq., Barrister-at-Law . | Kenner v. Williams (5 Sim . 171) and Elliott v.
392 — Vol. LXII., N . S.] THE LAW TIMES. [May 10, 1890.
Chan . Div .] Pullips v. Ivel CYCLE COMPANY. [Chan . Div.
Elliott (12 Sim . 276) are precisely in point. Feb. 8, 10 , and 11.
Hale v. Hale (ubi sup.) is distinguishable ,because (Before KEKEWICH, J.)
the gift to the children at twenty -four in that case
was preceded by a life interest. PHILLIPS v. IvEL CYCLE COMPANY. (a)
Grosvenor Woods in 'reply . - The rule that Patent — Infringement - Pleading — Denial of
children born after the period of distribution infringement — Anticipation - Common know
cannot take is one of convenience only, and cannot ledge-- Costs of issues.
affect the construction . Where a defendant in an action for infringing a
NORTH , J. - In this case I have to determine patent denied by his pleading the factof infringe
the construction of the will of a lady who died in ment, which issue was decided against him , but
1889,leaving one son ,to whom she gave an annuity, judgment was given in his favour on the ground
whether for his life or a less period is a ques . that a similar article to that of the plaintiff had
tion to be determined ; and subject thereto been made and used before the date of the plain
she gave all her property, “ In trust for all the tiffs' patent :
children of my son Henry Whitten, who having | Held, that the defendant was not entitled to the
costs of the issue of infringement.
sons or son shall attain the age of twenty- five
years, or having daughters or a daughter, shall | Where the defendant to an action for infringement
of a patent relies upon common knowledge as
attain that age, or marry under it, in equal shares." distinguished from anticipation , this defence
Stopping there, it is clear that the rules laid
down in Gillman v . Daunt (ubi sup.), and Lloyd should be pleaded distinctly.
v . Lloyd (3 K . & J. 20 ) apply. At the death of The plaintiffs, Phillips and Hall, were co
the testatrix , Henry Whitten had five children . patentees of an invention of an improvement in
He may have more ; but it is clear on those autho . tandem bicycles of which tbe plaintiff Hall
rities that the gift must be confined to the claimed to be the true and first inventor. The
children who were born before and living at the letters patent were dated the 29th Sept. 1887,
period of distribution. Children who died under and the plaintiff Hall had subsequently assigned
twenty -five are not within the class at all ; and all his interest in the patent to the plaintiff
so at the testatrix's death the class consisted of Phillips.
the children who should afterwardsattain twenty . The plaintiffs brought this action alleging
five. Wilfrid , the eldest, had already done so, that the defendants had infringed the patent, and
and therefore the period of distribution had claiming an injunction and damages.
arrived , and no after-born children could take. By their pleadings the defendants denied the
Five was then established as the maximum infringement, denied that the plaintiff Hall was
number of shares. Wilfrid became entitled to the true and first inventor, denied novelty ,
one-fifth . He might afterwards take more if one and alleged that the patent was invalid on the
or more of the other children happened to die ground of anticipation. At the trial of the
under twenty -five ; but he could not in any case action the plaintiffs were put to prove the fact of
have less. If the trust stopped there I should infringement, and it was established that the
be of opinion that Wilfrid was entitled to one. machine complained of was a clear infringement
fifth as soon as he attained twenty - five ; and, if of the plaintiffs' patent, assuming the same to be
his share was vested , I have no doubt that there valid . Judgment, however, was given for the
was nothing in the fact that the others might defendants on the ground that a machine similar
not live to take their shares which would to that of the plaintiff had been made and used
deprive him of it . But the gift does not end prior to the date of the plaintiffs' patent.
there. [His Lordship read the rest of the clause Aston, Q.C ., Chadwyck Healey, and Fryer for
set out above.] The class contemplated there
does not consist only of children living at the the plaintiffs.
testatrix 's death , but includes the families of any Moulton , Q.C. and Morton Daniel for the
children who might die in her lifetime, or before defendants.
attaining twenty -five leaving children . Some of KEKEWICH , J. — There were many points opened
the grandchildren belonging to that class might by Mr. Aston and dealtwith by Mr. Daniel which
be unborn at the time. Wilfrid attained twenty I think I may entirely put aside. There is no
five . It seems to me that this gift to the grand occasion for me in this case to depart from the
children introduces so much uncertainty into the wholesome rnle that it is well to decide only
case, that it cannot be said what share is accruing those points which fall for decision . But I think
to anyone until after the period fixed by the law there is one exception to be made from thatnot
against perpetuities. Admitting to the fullest exactly in the way of decision but by way of
extent the authority of the cases cited by Mr. remark . There was a discussion at one period of
Everitt, and thinking that they would apply here this case with respect to a distinction between
if the class consisted of children only , I am of | evidence given to prove anticipation of a patent
opinion that they do not apply where the class and evidence of that common knowledge, as it is
includes grandchildren who cannot possibly be called , existing at the date of the patent, which,
ascertained within the legal period . if proved to be sufficient to enable the public to
Solicitors : Pritchard, Englefield , and Co., be in possession of the invention , of course upsets
agents for Mann and Rooke, Manchester ; Snell, the patent, and reference was made to the case of
Son , and Greenip . Holliday v. Heppenstall (61 L . T. Rep . N . S . 313 ;
41 Ch. Div. 109 ; 6 Pat. Rep. 320). I shall not, at
any rate on this occasion , endeavour to express
in my own language what is expressed there by
the Lords Justices, because they draw the distinc
(a) Reported by F.GOULD, Esq., Barrister-at-Law .
May 10, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8.- 393
Chan . Div.) LONDON AND NORTH -WESTERN RAILWAY COMPANY v . Boulton . [Cuan . Div.
tion clearly aud forcibly, and, apart from my of its having been anticipated. The onus of
proper respect for them and the Court of Appeal, proving infringement where it is denied is on
it would be better that the law should be stated the plaintiff ; but if the defendant admitted
in one court and once for all. The passage infringement, the explanation would be cast
which states it most incisively is in the judgment | upon him . He is not bound to admit anything.
of Cotton , L .J. (6 Pat. Rep. 326 ), but Lindley, | It is for the plaintiff to explain to the court in
L .J.'s judgment is also worthy of close attention. what way the defendant has infringed . [KEKE
Taking the distinction to be what is there stated , WICH , J. - I do not see why the defendant should
and which is, I think, equivalent to what I myself not say at once, “ My machine is the same as
stated in the course of the argument, I wish to yours, and I have a right to make it so," and
point out this - that it will probably be necessary join issue on that.] We submit the denial of
for those who draw pleadings and particulars of infringement is the only way of raising the
objection which are part of the pleadings in question , and it is the usual form which has
patent cases to consider whether some improve. been long in use .
ment of the common form is not now required . The KEKEWICH , J . - Mr. Daniel has put it fairly
common form which is adopted in this case is to enough, but I do wish , so far as in me lies, to
deny novelty ; that is to say, to allege in the reduce these patent pleadings, including defence
particulars of objection that the said alleged
invention was not new at the date of the said and particulars of objection , to something like
concise form , a form in which they shall raise
patent. It occurs to me that that has hitherto | the issue which is to be tried between the parties
been generally understood as being very little so as to avoid the great expense - and expense
more than introductory to what invariably which of course is increased by the time taken
follows, some statement of the different publica up in the court — which is necessarily attendant
tions which are relied upon as anticipations. I upon points being raised which are nnt intended
think there are some words to be found in the
case to which I have referred supporting the to be decided . I think that, in order to promote
that end, I shall be right here in saying that the
notion , and certainly it is) a notion to my mind defendants should not have any costs of that
well founded, that if the defendant intends to issue of non -infringement ; but I do not think,
depend for resistance to the plaintiff 's claim having regard to what has taken place, and what
upon common knowledge as distinguished from has been done in other cases of common form ,
anticipation , it will be found convenient if not
necessary to plead that distinctly . I can foresee that I ought to make them pay costs .
that that may lead to some difficulty,and I am by Solicitor for plaintiffs, John Phillips.
no means sure that it will not lead to a new Solicitors for defendants, Martin and Baker.
chapter in the law of discovery ; but be that as
it may , those questionsmustbe dealt with as they
arise, not forgetting that it is often extremely
difficult to draw the line between evidence which Wednesday, March 5.
is given of common knowledge and evidence (Before KEKEWICH, J.)
which is given of anticipation , and therefore LONDON AND NORTH -WESTERN RAILWAY
what properly comes into particulars and what COMPANY v. Boulton . (a )
does not may be extremely difficult to determine. Building agreement – Time — Implied waiver —
Yet I venture to think it desirable for those who Vendor and purchaser - Notice - Covenant for
are engaged in these cases to consider whether
in the future some alteration will not be title- Statutory declaration.
convenient if not absolutely necessary . These A certain
land companyestates
were in possession of part of
observations I have only made as they occur to settled under building agreements
me, for the advantage of those engaged in patent providing for leases to be eventually granted ,
cases ; as regards this particular case it seems to such agreements to expire in case the buildings
methat, if I believe Mr. Sims, there is an end of were not completed in 1881 and 1885 respectively .
the plaintiffs' case. (His Lordship then dealt A railway company projected a scheme which
with this evidence and stated his conclusion that would involve taking part of the premises and
the plaintiffs' case failed on the ground that a interfere with the building operations. The
machine so far similar to that of the plaintiffs as tenant for life,the leasing authority of the estates,
to leave no room for invention in the way of the under these circumstances , without making any
alleged improvement had been made and used agreement to that effect, did in fact, through his
before the date of the plaintiffs' patent.] agent's conduct, waive the obligation of the
land company to complete within the specified
Aston, Q.C . — The defendants ought not to have
put the plaintiffs to the expense of proving that
time. In 1883 the railway company, with know
ledge of these circumstances, agreed to pur
the defendants' denial of infringement was chase the fee subject to the building agreements.
improper. The plaintiffs have been obliged to In 1886 the railway company entered without
prove that the machine in question was an making a deposit or giving a bond to the land
infringement, and we ask that the costs of this company under the Lands Clauses Act, though
1889e may be apportioned and set off, as in the knowing that the land company claimed that
Badische case (53 L . T . Rep. N . S. 751 ; their agreements were subsisting in equity . The
29 Ch. Div . 366 ). land company brought an action against the
Morton Daniel for the defendants . — The railway company, and established that the rail
defence of non -infringement is the only defence way company had wrongfully entered , the land
which raises the question whether, if, on the true companybeing equitably entitled to an extension of
construction of the patent, it covers what the time. Therailway company took their conveyance
defendants has done, the patent is bad by reason 1 (a) Reported by F.GOULD, Esq., Barrister-at-Law.
394 - Vol. LXII., N . 8.) , THE LAW TIMES. (May 10, 1890.
Chan. Div.] LONDON AND NORTH -WESTERN RAILWAY COMPANY v. Boulton. [Chan. Div.
of the fee, the tenant for life, who joined as bene- of the lands subject to the land company's build
ficial owner,and his land agent, giving statutory ing agreements, all parties being at this time
declarations that they knew of no negotiation of aware, as was subsequently held, that there
any kind with the land company having reference had been a waiver of the strict terms of the
to any extension of time under the building building agreements in respect of time for
agreements. The conveyance was expressed to be completion .
subject, so far as the premises were affected The agreement was expressed to be subject to
thereby, to the building agreements . The land all leases and contracts for leases as set forth in
company subsequently obtained compensation the schedule thereto annexed . The schedule
from the railway company in respect of their included the three building agreements above
interest in the lands taken . mentioned , with copies of which the railway
Held , in the absence of fraud, that neither under company were supplied on their investigation of
the statutory declarations nor under the covenant the title. On the 18th Sept. 1884 the railway
for title supplied by the Conveyancing Act 1881 company gave the land company notice that they
were the railway company entitled to be recouped required to take part of the lands comprised in
the compensation they had paid the land com - | their building agreements. No claim was sent
pany . in by the land company. On the 4th Jan. 1886
The defendant was the tenant for life under the railway company, without giving the land
the Boulton Estates Act of certain hereditaments | company security under the Lands Clauses Con
in or near Birmingham , and had power under solidation Act, took possession of part of the
that Act to grant leases and enter into the build lands comprised in the land company's building
ing agreements with respect to such heredita agreements , on the footing that the terms pro
ments as hereinafter mentioned . vided by the building agreements having espired
By an agreement, dated the 5th Feb . 1877, without the land company having completed their
made between Boulton and the Birmingham buildings the land company's interest therein
and District Land Company, the land company had come to an end, being, however, fully warned
were authorised, as the intending lessees, to that the land company claimed that there had
enter upon certain parts of the Boulton estate been the waiver abore mentioned , and that there
for ten years, to expire on the 30th Dec. 1885, for fore their building agreements were subsisting.
the purpose of building houses thereon , the land On the 2nd Feb . 1886 tbe land company brought
company paying rent as therein mentioned until an action against the railway company, claiming
the leases should be granted. a declaration that as between them and the
The agreement provided that the reversioner railway company the said building agreements
might vacate the contract and re-enter upon the were subsisting, it being alleged by the land
land in case the buildings should not be com company that the railway company before they
pleted according to the agreement within the bought the premises in question had express
specified term . notice of the extension of the time limited
By a similar agreement of the 5th April 1877, | by the building agreements,and that the arrange
which was to expire on the 30th Nov. 1881, the ment was binding on the railway company ; and
land company agreed to take a further portion the land company claimed that the price and
of the same estate for building purposes under compensation payable to them by the railway
similar conditions. company ought to be assessed on this footing.
By a further agreement, dated the 27th Oct. They claimed alsoan injunction against the railway
1879, certain variations in the said two agree company remaining in possession without giving
ments were made which are immaterial for the security under sect. 85 of the Lands Clauses Con
present purpose . solidation Act 1845. The railway company in
Not long after these agreements a scheme was defence alleged that they purchased with notice
proposed by the plaintiffs in the present action , of the building agreements, and that they had no
hereinafter called the railway company, which notice of any other agreement or arrangement
might materially affect the building operations between the land company and Boulton. Issue
of the land company by enabling the railway was joined on this defence, and the action was
company to take possession of part of the pre tried in July 1887 before Kekewich , J. (see
mises included in their agreements, and in con Birmingham and District Land Company F.
sequence thereof meetings took place between London and North -Western Railway Company,
the land company and F . G . Thynne, the agent 57 L . T . Rep. N . S . 185 ; 36 Ch. Div. 650), and on
for the Boulton estates, the result of which was appeal from his Lordship's judgment it was held
(though there was no express contract to that by the Court of Appeal (60 L . T. Rep. N . S. 527 ;
effect) a waiver on the part of Boulton and his 40 Ch . Div. 268), concurring with the view of
trustees through Thynne of the strict per Kekewich , J., that though there had been no
formance of the building agreements on the actual agreement on the part of Boulton for an
part of the land company with regard to the extension of time in favour of the land company,
time of completion of their buildings, Thynne the behaviour of the parties had been such that
in fact authorising the stoppage of the building it would have been impossible for the reversioner
operation until it could be seen what would to enter on the lands in possession of the land
become of the railway scheme. In the year company at the end of the specified terms, there
1882 the railway company gave notice to the having been such a waiver in this respect as to
landl company of their intention to promote their prevent such entry except on reasonable notice
Bil . and after a reasonable time; and, further, that
On the 31st July 1883 the railway company the railway company had bougbt with notice of
agreed with the Boulton estate trustees and and subject to the equitable rights of the land
Boulton to purchase the fee simple of certain company in this respect, whatever they might be,
parts of the Boulton estate, including therein part 1 and had therefore wrongfully entered upon the
Chan . Dr .] LONDON AND NORTH -WESTERN Railway COMPANY v. Boulton. [Chan. Div.
premises while the land company were lawfully | amount : (see Birmingham and District Land
in occupation . Company v . London and North -Western Railway,
Pending the said action , and before the trial 60 L . T . Rep. N . S . 317 ; 22 Q . B . Div . 435 .)
thereof, Boulton pressed the railway company to The present action was now brought by the
complete their purchase agreement of the 31st railway company against Boulton , the railway
July 1883. The railway company at first refused company alleging by their statement of claim as
to complete , on the ground that the land com - | follows:
pany's claime were inconsistentwith the terms of Par. 31. “ The plaintiff railway company submit that,
the said agreement of the 31st July 1883, and in having regard to the form of the said conveyance and to
order (as the railway company alleged ) to induce therefrom
thecovenants on the part of the defendant to be implied
the railway company to complete, Boulton and tiff railway, the defendant is bound to repay to the plain
company the amount paid by the plaintiff
his agent Thynne made and delivered to the railway company to the said land company under the
railway company two declarations, which , omit said judgment, together with the costs incurred by the
ting formal parts, were as follows : plaintiff railway company in defending themselves from
I, Matthew Piers Watt Boulton . . . declare as the said claims, or paid by them to the said land com
follows : I have no knowledge of any contract or agree . pany in respect of the proceedings hereinbefore referred
ment with the . . . land company, except the three to .Par. 32. Theplaintiff railway company in the alterna
contracts which are scheduled in the contract between
me and the London and North -Western Railway Com . tive submit that the defendant is bound to make good to
the plaintiffs all losses sustained by the plaintiffs by
pany dated in 1883, and I have no knowledge of any reason of the plaintiff railway company having acted on
communication or negotiation of any kind with the said the faith of the representations contained in the said
. . . land company having reference to any extension statutory declarations.
of the respective times within which the building opera
tions mentioned in such agreements with the . . . And the railway company claimed accordingly .
land company were to be completed. By his statement of defence the defendant ad
I have been assured by my lagents, Messrs. Thynne mitted that the statutory declarations above set
and Thynne, and my solicitors, Messrs. Wynne and Son , out had been delivered by his authority ; be
that no contract, agreement, or negotiation as aforesaid alleged , however, that it was for the satisfaction
has ever been submitted or mentioned by them to meor
has ever come to their knowledge. of the railway company that they had been de
I have never had any communication of any kind with livered , and not by reason of any obligation in
the . . . land company except those communications that behalf on the part of the defendant, the rail
which have taken place through the medium of my way company being at the time they were
agents, Messrs. Thynne and Thynne, and my solicitors, delivered compellable to perform the agreement
Messrs. Wynne and Son .
I, Frederick George Thynne . . . have myself for purchase. He alleged further that none of
for upwards of thirty -five years been acquainted with the statements in the said statutory declarations,
the said estate , and for over twenty -three years were at the time they were made untrue to the
now last past especially so as having during that knowledge of the defendant or of Thynne. He
period almost exclusively attended to the manage denied that they were made in order to induce
ment and letting of snch estates as a member of the railway company to complete, or that it was
the said firm . I negotiated the sale to the London
and North-Western Railway Company of part of on the faith of the statutory declarations that the
the land agreed to be purchased by them under the railway company had in fact completed . The
contract entered into with them in July 1883, and the action now cameon for trial.
terms of the three contracts with the . . . land
company scheduled to such agreement for sale were also Cozens-Hardy, Q .C . and Clare for the plaintiffs.
settled by me. I have no knowledge of any contract or
land company except
- First as to notice : The fact of the land com
agreement with the said . . pany being in possession did not give us notice
the three contracts as scheduled . . . as aforesaid ,
and I have no knowledge of any communication or of what those interests were, and the plain
negotiation of any kind with the . . . land com tiffs might have refused to specifically perform
pany having reference to any extension of the respective their contract with the defendants :
times within which the building operations mentioned Caballero v. Henty (30 L. T. Rep. N . S. 314 ; L . Rep .
in such agreements with the . . . land company
were to be completed . 9 Ch. App. 447.
If the only agreements between the land com
By an indenture dated the 31st Dec. 1886 pany and the defendant had been those disclosed
Boulton and his trustees conveyed to the railway to us we should not have had to pay the compen
company the premises the subject of the contract sation to the land company for which we now sue.
of the 31st July 1883, the conveyance being We claim also the costs of defending the action
expressed to be directed by Boulton as beneficial against us by the land company to recover the
owner, and to be made subject “ so far as the compensation :
same are respectively affected thereby to the Rolph v. Crouch,17 L. T. Rep. N. S. 249; L. Rep.
leases and contracts specified in the second 3 Esch . 44 .
schedule hereto." As to the covenant in the convevance to the
The schedule included the three building plaintiffs, which by the Conveyancing Act 1881,
agreements above mentioned with a note .
“ N .B . Sereral leases have been granted in s. 7 , is deemed to be included , it is an express cove
pursuance of the above contracts." nant by Mr. Boulton as beneficial owner, and he
On the 13th Feb. 1889 the land company is of course responsible for the acts of his agent,
brought an action against the railway company Mr. Thynne. The judgment in the previous case
to recover the compensation which had been in the Ch. Div, decides that there had been no
assessed as payable to them (on the footing of real agreement for extension of time, and the
the judgment of Kekewich , J.) in respect of building agreements themselves had expired .
their interest in the lands so taken by the railway Warmington, Q .C . and Creed for the defendant.
company, which damage had been assessed at 1 - The convevance was expressly made subject to
19371. for land taken , and 43701. 1-28. 8d . for land the building agreements which were in the
injuriously affected , and they recovered the schedule, and how can it be said that they were
396 - Vol. LXII., V. .] THE LAW TIMES. (May 10, 1890.
Cann. Div .] LONDON AND NORTH-WESTERN Railway COMPANY v. Boulton. [Chan. Div.
not subsisting ? Their insertion in the deed must contains some covenants by the builder to erect
have meant something, and the plaintiffs knew houses within a certain time, according to
perfectly well that the land company rested their certain specifications, and otherwise according
claim for compensation on the ground that the to terms which are settled between the parties.
time for building had been extended . The con There is a covenant by the owner of the
veyance is also made subject to leases which had | land, who becomes the lessor, to grant leases
been granted under the building agreements, and of those houses as and when they are erected ,
attention is called thereto by a note to the at a rent, also specified , and the right of the
schedule implying that other leases might after- owner to have a lease is commensurate with his
wards be granted . The equitable principle with | liability to erect the houses. On the other hand,
regard to waiver of legal forfeiture is stated by the lessor is called upon to grant a lease only
Lord Cairns in Hughes v. Metropolitan Railway when the house is there to be leased according to
(36 L . T. Rep. N . Š. 932 ; 2 App. Cas. 439, 448). the terms of the agreement. But we are also
Then as to the statutory declarations, Derry v . familiar with many instances in which those
Peek (61 L . T . Rep . N . S . 265 ; 14 App. Cas 337) terms are departed from , not necessarily by dis
shows the wide difference between an action for tinct agreement between the parties, but as the
deceitand an action formisrepresentation without result of their conduct or some behaviour on
fraud. No damages can be given after convey their part upon which the court is bound to con
ance apart from someagreement for compensation clude that the particular terms of the agreement
or in case there is fraud . There is no fraud here, were not intended to be carried out in their
for the plaintiffs knew exactly as much of the strictest accuracy. That was the sort of agree
circumstances as Mr. Thynne himself knew . But ment which the land company had , and so far as
we say that there was not any misrepresentation the terms of their agreements were concerned
in the declarations ; they do not touch the point one of them expired in 1881, and the other in
whether the building agreements were subsist 1885 , that is to say, at the date of what has
ing or not ; that question did not occur to either been called the expiration of the contract the
party, nor can it have been intended that the | right of tbe builder under his agreement to
declaration should deny what the railway knew call upon his lessor to grant him lease came
already by the correspondence. True, the lan to an end. Assume time to be of the essence
guage, if taken apart from the known facts, is of the contract, if he had not built, roofed in,
inaccurate, bnt having regard to the knowledge and completed his houses — I am not quoting the
of the parties,it is perfectly true. words in the particular agreementby that time
Cozens- Hardy, Q .C . in reply .- Derry v. Peek has to a minute he was, according to the strict
no application . Mr. Thynne, who makes the terms of the agreement, excluded , and the land
declaration , was the very person who was engaged did not revert to but remained the property of
in the transactions which amounted to a waiver theowner, with all theadvantage of thehouses per
haps all but completely erected upon it . That
of the strict terms of the building agreements. is the stringency of
Allowing thathe forgot these circumstances at the applied an agreement of that kind
to those dates ; not only is it possible,
time, yet the declaration states what was not the but extremely
fact, and the plaintiffs paid their money on the probable in a case of this kind,
faith of it. It is not necessary to show that it particularly when the intervention of a railway
was a wilfulmisstatement. company might render the parties unwilling to
proceed , as was the fact here, hat there should
KEKEWICH, J. - It is extremely difficult in this be negotiations between thebuilder and the lessor,
case to sever one from another the two questions and that some new terms should be made; that
which I am asked to decide. They are separate a new date should be inserted by substitution for
and distinct, but they depend altogether up to a an old date for the expiration of the agreement,
certain point on the same facts, and the same or, in other words, that the agreement between
propositions of law bear equally on both . I the two should be modified . But beyond
think it convenient to dispose of the two ques. and outside that there are equitable doctrines
tions separately , and in order to do that I must which when applied by the Court of Equity
go back and see what tte contest between these really introduce new terms or modifications
parties was in the first instance, and how that according to the honest intention of the parties,
contest was dealt with by the court in the case without there being any agreement or eren nego
before me and the Court of Appeal. There were tiation at all, and so each party gets the benefit
three parties to that contest, not three parties to of the contract into which he bas entered accord .
the actual litigation , but three parties interested ing to what is honest and right between them ,
in the subject matter, and each may fairly be said
and yet each party is at liberty to say, and can
to be contending with either of the other two. say , that he never modified his agreement in the
There was Mr. Boulton (I leave out any mention least. That arises out of the application of the
of his trustees, and treat him as the owner), who
| doctrine of waiver. Now , in the case which came
wasthe vendor, there were the London and North before meof Birmingham and District Land Com
Western Railway Company who were the pur. pany v. London and North -Western Railway Com
chasers from Mr. Boulton , and then there were pany (ubi sup.), the plaintiffs there, the land
also the Birmingham Land Company, who claimed company, claimed that there had been an exten
an interest through Mr. Boulton in the land,and sion of the time during which they might com
therefore had also a claim against the railway plete the houses mentioned in their agreements
company. The land company were the owners and, completing those houses within the extended
of two building agreements or contracts, the time, claim leases. If they succeeded in estab
nature of which iswell understood in these courts, lishing that proposition they were entitled ob
and need not be specifically described. It is viously to an interest in the land which they said
familiar to us that a building agreement always i the railway company were bound to purchase
May 10, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8. - 397
Chan . Div.] LONDON AND NORTH -WESTERN RAILWAY COMPANY v. BOULTON. [CHAN . Div.
and pay for before they could take the land. assured by my agents Messrs. Thynne” (Mr.
The conclusion at which I arrived was that there Thynne says it more positively ) " that no contract,
was no agreement in the ordinary sensc, certainly agreement, communication , or negotiation as
no written agreement, nor even a parol agree. aforesaid has ever been submitted or mentioned
ment, for an extension of the time, but that the by them to me, or has ever come to their know
parties had so behaved to each other that it was ledge. I have never had any communication of
impossible for Mr. Boulton , the lessor , then to any kind with the Birmingham and District Land
insist that the agreements had in fact come to an Company Limited , except those communications
end , and were not still subsisting. I am unwilling which have taken place through the medium of
in this case, as in any other case,to refer to my myagents.” I do not hesitate to say that I think
own language, but I am forced to do so in order the language unhappy. I think that,knowing as
to explain how the case stands on the present a matter of fact that there had been this waiver,
occasion . At 36 Ch . Div . 657 I said : “ It is quite which waiver led to enlarged rights on the part
unnecessary for me to consider whether time is of the land company, and with enlarged rights
of the essence of the contract, or whether the on the part of the land company enlarged privi
landlord could have entered at the end of ten leges also on the part of Mr. Boulton , it put
years withoutmore,because the ordinary doctrines them in a very different position from thatwhich
of equity apply , and anything like a waiver of they would have occupied if the strict terms of
time would have this consequence, that it would the agreement had been adhered to, and I think
be impossible for the landlord to enter except on it is unfortunate that such language, admitting
reasonable notice, and after a reasonable time. of the criticism which I have given it, was used
That is too plain to require further argument. The | on that occasion , though I quite understand from
question is, whether there is a waiver.” Then what I have been told that these declarations
examining the evidence, I cameto the conclusion were drawn, not by the railway company who
that there was a waiver which let in the doctrine required them , but by the persons or the agents
of equity to which I have referred. The Lords of the persons who were to make them ; yet, who
Justices all three took pains to express their con is to blame for their having been inaccurate : for
currence with that view . [ His Lordship then their having made this precise point, and not
read certain passages from the judgments of the having gone to the whole truth and root of the
Lords Justices on the hearing of the case on matter ? It is the railway company, who were
appeal, and continued :) So that there is no ques. | perfectly well aware throughout that the land
tion whatever what the view of the Court of company were making a claim on the ground
Appeal was, namely, that there had been no agree that they had got this interest ; who had been
ment for extension , but that there had been that told in letter after letter,and particularly in one
conduct and behaviour which prevented or dis of the 27th May 1885, that the obligation of the
entitled the lessor to set up the actual figures time for building had been waived , and who fail
and words of the agreement, and say, “ As from a to see that this equitable doctrine might very
certain date mentioned therein you have no longer well be applied to give the land company greater
any rights whatever ; your contractual rights rights, and, through those greater rights, an
have come to an end, and the land is mine to sell interest in the land which might presumably have
and convey to whom I will, and you have no to be purchased . Now they turn round and say,
estate or interest in it at all.” That was the “ because it does not tell the whole truth , or
view . Now let me apply that view to these because it can be construed to tell the truth only
declarations, which it is said contain misrepre. by a critical examination of the language, we,
sentations upon which the plaintiffs are entitled who knew everything, and who ought to bave
to sue. I need only take that of Mr. Boulton . seen the result have been deceived , and we are
There has been no question here thatMr. Boulton entitled to have damages by reason of that deceit.”
is liable for the acts of his agent, Mr. Thynne, It seems to me, quite apart from the case of
but, Mr. Thynpe's language being precisely the Derry v . Peek (ubi sup.), and without going into
same as that of Mr. Boulton , except that it is just that case, for I do not find it at all necessary,
varied so as to make the language of the agent that the plaintiffs are not entitled to succeed on
apply to his position of agent, whereas the that ground . Then it is said that Mr. Thynne
language of the principal applies to his posi cannot possibly have been mistaken at this time ;
tion of principal, what does Mr. Boulton say ! that he cannot have forgotten his own act. I am
He says : “ I have no knowledge of any contract not sure that what I have already said would not
or agreement with the company called the Bir be a complete answer to that, but I see no such
mingham and District Land Company Limited, impossibility . There might have been negotia
except the three contracts which are scheduled tions without end between these people,and yet
. . . and I have no knowledge of any communi there might have been no extension of time. The
cation or negotiation of any kind with the said point to which everything was directed was the
Birmingham and District Land Company Limited extension of time. Suppose, for instance, the
having reference to any extension of the respec . lessee- the builder - had omitted to build one of
tive times within which the building operations his houses according to specification - had used
. . . were to be completed .” There had been , 1 bricks where he ought to have used stone, or
as I understand the facts, no communication or iron where he ought to have used wood, and so
negotiation of any kind having reference to any forth - those departures from the strict covenant
extension of time. What had been done was frequently occur — there might very well have
this , that they had waived the particular time been matters of that kind and negotiations con .
within which the building was to be done, and cerning them . Would the railway under those
the equitable result of that was this, to give circumstances havebeen liableto stand in the shor's
to the land company the rights which they were of Mr. Boulton , and to submit to grant a lease of
claiming. He goes on to say, “ I have been l a house the precise terms ofwhich lease had been
Chan. Div .] LONDON AND North -WESTERN RAILWAY COMPANY v. Boulton. [Chan. Div.
waived , or would they be entitled to say, as Mr. : ported from that into the conveyance,and I find that
Boulton would not, “ Oh, you have not built this an exception to these contracts is subsisting : it
house according to the termsof the agreement, is absurd to suppose that the conveyance means
and therefore you cannot have the lease.” I have that these are contracts which have no operation
made that remark in anticipation of the second whatever. It is true that Lindley, L . J. said when
point, because it seems to me to illustrate what I the case was before the Court of Appeal (40 Ch.
am dealing with here, that the parties might very Div. 282) : “ If they were treated as at an end we
well, acting honestly and without any intention should not expect to find them in the schedule,
to deceive, have stated what they did state here though it does not necessarily follow because
in writing, and not intended at all to refer to they were in the schedule that they had not
anything which did occur as to the waiver of the come to an end . It is perfectly competent
exact time of building, and the completion of the for the railway company to contend that,
houses according to the terms of the contract. , although they had notice of the plaintiffs'
Then I must not forget that these gentlemen rights, those rights were really determined ; "
came here on the trial beforeme and supported which no doubt does not conclude the question ,
the statements they then made. It is not but one does expect to find that they were sub
attempted to say here that their evidence in any sisting at the time. At any rate, it seems to me
way deviated from what they stated in the decla that,by being there, whether subsisting or not,
ration , and that at any rate gives them an honesty they are taken out of the powers of the covenant
of purpose which I do not wish to deny them , by the very words of the covenant itself, which
and it strengthens to my mind their case on that excepts those contracts subject to which the con
point. Passing then to the second point, and veyance is expressly made. This conveyance is
bearing in mind what I have just said about the expresslymade subject to these contracts,therefore
railway company taking the land subject to such these contracts cannot be incumbrances on which
little minor alterations of an agreement where the plaintiff is entitled to sue as being any breach
they take subject to the agreement at all, I of the covenant into which the vendor has entered .
feel no difficulty in holding that the defen To my mind, on that short point the plaintiffs
dant is not liable to indemnify the plaintiff case fatally breaks down, and there is really an
company by reason of the covenant into which he | end of the matter. But, having heard the whole
has entered . That covenant is in the ordinary case, and gone back and heard the whole story, I
form - a covenant for title. It is the covenant am satisfied that the railway company did pur
which is put in by virtue of the Conveyancing chase subject to what there was in the contracts.
Act 1881 without being actually written out in They contended I have no doubt that the con
the conveyance. I entirely concur with Mr. tracts had no valid existence ; that they had
Cozens-Hardy's remark , that it is not an implied come to an end ; that they had been in some way
but an express covenant. It is a covenant with determined , so that buying Mr. Boulton 's interest
which we are familiar, and which we call common in the freehold they were entitled to enter and
form . Of course the words of each covenant hold the land discharged from the rights of the
hare to be regarded , however common the form land company altogether. That was their view ;
may be. It excepts from all liability under the but though that was their view , and what they
covenant and takes outside the covenant those contended for, I do not think they were in posses.
contracts subject to which the purchase is made, so sion of facts, or ever supposed themselves to be
that it has no operation whatever upon them , and in possession of facts, which entitled them to
I am bound to look at the conveyance with refer prove that in any way. They were bound to take,
ence to those words. If I find that the railway and did take the land, subject to the contracts
company have purchased subject to these con for what they were worth . They said they were
tracts, though I cannot find any liability under worth nothing,but they take their chance of that.
the covenants for title, it is not to my mind right That seemstometheonly view which is atall recon
on this part of the case to go back to the agree cilable with the course they have pursued. It is
ment. I think I must take the conveyance of said they were not bound by the terms of these
the 31st Dec. 1886 , and construe that. I find that contracts, and that according to Caballero v.
that is, by the recitals, and in form in the opera Henty (ubi sup.) they could have refused to speci.
tive part, a conveyance of the particular property fically perform , because they had not the interest
specified subject to the leases and contracts men of the builders under these contracts disclosed to
tioned in the schedule. I find three contracts them ,and that they might have said , “ We will
between the vendor and the land company speci. not perform on these terms, which terms were
fied in this schedule , and I find a statement that on the faith , or at any rate we thought they were
several leases have been granted in pursuance of on the faith, of our having a complete title.” It
the above contracts , which certainly seems to me | may be that that was the right view . I do not care
to imply at any rate - I will not say more than whether it was or not, because the case does not
this that all the leases which ought to be granted seem to me to come within Caballero v. Henty ;
in pursuance of those contracts have not yet been but, if that was the right view , why did they
granted . At the date of this conveyance the two specifically perform ! I cannot myself under
contracts of the 5th Feb . 1877 and the 5th April stand the conduct of the railway company except
1877 (the third , which is of the 27th Oct. 1879 on the hypothesis tbat they hoped to win , and, at
being a modifying contract and not one for the any rate, took their chance of success against the
erection of other houses) had both expired ; one land company . They have, it seems to me, taken
of them had expired five years before and the their chance ; the chance has failed , and I do
other at least one year before. They are recog not think they can now turn round against Mr.
nised here as subsisting contracts. Therefore on | Buulton and say, “ You shall repay us what we
themere terms of the conveyance I have cove have been obliged to pay,because you have entered
nanus expressed in the Conveyancing Act im - ' into a covenant to indemnify us against contracts,
May 10, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8. - 399
Q .B . Div. ] STUBBS v. THE DIRECTOR OF PUBLIC PROSECUTIONS. ( Q .B . Div.
subject to which we expressly took our convey . I 4 . The said John Cubitt Gostling, at the
ance." On all grounds it seems to me the plain - sessions of the said court, held the 3rd May 1886 ,
tiffs' claim fails, and there must be judgment for preferred a bill of indictment for the said offence
the defendant with costs . against the plaintiffs before the grand jury, who
Solicitors for plaintiffs , C . H . Mason . found a true bill.
Solicitors for defendant, Wynne and Son . 5. The trial of the said indictment was
adjourned to the subsequent sessions at the
plaintiffs' request. The defendant, on or before
QUEEN'S BENCH DIVISION . the 30th May 1886 , and after the finding of the
Feb. 10 and 13 . said bill, as Director of Public Prosecutions
under the Prosecution of Offences Acts 1879 and
(Before Cave and SMITH , JJ.) 1884, and the regulations made thereunder,
STUBBS 2. THE DIRECTOR OP Public PROSE undertook the prosecution of the said indictment.
CUTIONS. (a ) The plaintiffs were tried at the session of the
Criminal law - Private prosecution - Charge dis said court held on the 3rd lug. 1836 before the
missed - Prosecutor borind over -- Bill preferred Recorder ofLondon , and were both acquiited .
by prosecutor - True bill - Case undertaken by 6 . The plaintiffs bad not been committed to or
Public Prosecutor - Acquittal- Costs of defen . | detained in custody, or bound by recognisance to
dants - 22 & 23 Vict. c. 17 – 30 . 31 Vict. c. 35 , | answer such indictment. The said John Cubitt
8. 2 – 42 8. 43 Vict. c. 22, s. 7 . Gostling gave no security for costs.
It is provided by 30 & 31 Vict. c. 35, 8. 2, that ! 7. At the session of the said court held on the
when an indictment is preferred under 22 & 23 | 13th Sept. 1886 the said Recorder made the
Vict, c. 17 , and the person accused is acquitted , | following order :
the courtmay order the prosecutor or other person Central Criminal Court to wit. - At the general
by or at whose instance such indictment shall session of Oyer and Terminer, and general session of
have been preferred to pay the costs of the prisons the Delivery of the Queen 's Gaol of Newgate and other
accused person . holden for the jurisdiction of the Central
CriminalCourt at the Justice.hall in the Old Bailey in the
42 is& bound
43 Vict. c. 22,s. 7, enacts that, if any person suburbs of the City of London on Monday, the 13th day
over to prosecute, or has given security of September 1886 . Whereas the 7th day of April
for costs, he shall, upon the Director of Public | 1886 one John Cubitt Gostling, onunder theprovisions of
Prosecutions undertaking the case, be released the in
Act 22 & 23 Vict. c. 17, entered into
the sum of 2001. to prefer , or cause
recognisance
to be pre
from such obligation , and the Director of Public ferred, at the then next session of this court a bill
Prosecutions shall be liable to costs in lieu of of indictment against George Laurie Stubbs and
such person . Thomas Irving for conspiring to cheat and defraud the
Where a person ,who was bound over to prosecute a shareholders of a company called J . C . Gostling and
charge under 22 8. 23 Vict. c. 17, preferred a CompanytheLimited of divers sums of money . And
bill of indictment and a true bill was found, the whereas said bill of indictment was preferred by or
Director of Public Prosecutions undertook the the grand jury at the said
at the instance of the J. C . Gostling, and found by
session of this court held on the
case, and the accused were acquitted . An order 3rd day of May in the year aforesaid. And whereas,
wasmade that the Director of Public Prosecu after the preferring of the said bill of indictment the
tions should pay the costs of the persons prosecution Director of Public Prosecutions undertook the said
acquitted . under the provisions of the Prosecutions of
Held , that the order was bad. Offences Act 1879,which prosecution was thereupon and
thereafter carried on by the said Director of Public
Prosecutions. And whereas at the sostion of this court
The following case was agreed to by the parties held on
for the purpose of raising the questions therein George Laurie Stubbs Tuesday, the 3rd day of August 1886 , the said
and Thomas Irving were severally,
for the opinion of the court :
1. At all the times hereinafter referred to the acquitted upon the said indictment. Now this court,
in pursuance of the provisions of sect. 2 of thestatute
defendant was and still is holding the office of 30 & 31 Vict. c. 35, doth order that the prosecutor or
Solicitor for thc Affairs of Her Majesty's other person by or at whose instance the said indict
Treasury within the meaning of the Prosecution ment was preferred do pay unto the said George Laurie
Stubbs and Thomas Irving the sum of 1641. 178., being
of Offences Act 1884. the just and reasonable costs, charges, and expenses of
2. In the month of November 1885 one John the said accused persons and their witnesses caused or
Cubitt Gostling made a charge before an alder occasioned by or consequent upon the preferring of
| such bill of indictment, and taxed by the proper officer
man of the city of London that the plaintiffs had of the court. Dated theof25th
committed the offence of a criminal conspiracy | AVORY, Deputy Clerk theday
saidofCourt.
October 1836 . - H . K .
within the jurisdiction of the said alderman , and The defendant subsequently applied on the
the said alderman , after hearing evidence , refused 24th Nov . 1886 to rescind the said order, but the
to commitoffence
or to bail the plaintiffs to be tried for Recorder refused such application.
the said . 8. At the session of the said court held on the
3. Thereupon the said John Cubitt Gostling 31st Jan. 1887absence
the said order was amended
desired to prefer an indictment respecting the defendant's by ordering thatin the
the
said offence, and the alderman , pursuant to Director of Public Prosecutions (instead of the
22 & 23 Vict. c. 17, took the recognisance of the prosecutor or other person by or at whose
said John Cubitt Gostling to prosecute the said instance the said indictment was preferred )
charge, and transmitted such recognisance and should pay unto the said George Laurie Stubbs
the information and depositions to the Central and Thomas Irving the sum of 1611. 178., being
Criminal Court in the same manner as he would the just and reasonable costs, & c.
have done in case he bad committed the plaintiffs I The notice of an application for the above
to be tried for such offence. | amendment was given on the 2nd Jan . 1890 to
(a) Reported by W . H . Horstall.Esq ., Barrister-at-Law . I the defendant, who informed the plaintiffs' soli
400 — Vol. LXII., N . 8.] THE LAW TIMES. (May 10, 1890.
100 YouLi,N.S copus un bu binabanos Pontde part
Q .B . Div.] STUBBS v. THE DIRECTOR OF PUBLIC PROSECUTIONS. [ Q .B. Div.
citor that he intended to take no steps with | Prosecution of Offences Act 1879 (42 & 43 Vict.
respect to the application , of which notice had c. 22), s. 2 , when the Director of Public Prosecu
been given by the said notice, and that he did not tions undertook the case the original prosecutor
assent to such application . was released from all liability to pay costs, and
9. The defendant has refused to pay the sum the Director of Public Prosecutions became
mentioned in the said order. The said orders liable to costs in lieu of the original prosecutor.
were served on the deferdant. The Director of Public Prosecutions, when he
The questions for the opinion of the court takes up a case, stands in the shoes of the
are : - (1) Had the recorder power under the cir original prosecutor, he becomes the effective
cumstances aforesaid to make the said orders or person carrying on the prosecution , and the
either of them (2) Are the said orders or either defendant is entitled to the security of that
of them made lawfully , and in accordance with person .
30 & 31 Vict. c. 35, s. 2, and the Prosecution of Sir R . E . Webster, A .-G . (with him R . S.
Offences Acts 1879 and 1884 ? (3 ) Is the defen - | Wright and Horace Avory) for the defendant.
dant now entitled to raise objection to the validity The Recorder bad no power to alter in January
of the said orders or either of them ? (4 ) Can the order which he had made the previous
the plaintiffs enforce in any manner against the session . But, irrespective of that point, the
defendant the payment of the sum ordered to be defendant is not liable to pay these costs, and
paid by the said orders or either of them ? the order is bad. Prior to 1879 the Crown had
The Vexatious Indictments Act (22 & 23 Vict. the right to take up a prcsecution at any time
c. 17) provides as follows : without any liability as to costs. It was intended
After the 1st day of September 1859no bill of indictment by the Prosecution of Offences Act 1879 (42 & 43
for any of the offences following , viz., conspiracy (inter Vict. c. 22), s. 2 , that when the Director of Public
alia ) shall be presented to or found by any grand jury, Prosecutions undertook a case the original prose
unless the prosecutor or other person presenting such cutor should be relieved from liability as to
indictment has been bound by recognisance to prosecute future costs, but not that the Director of Public
or give evidence against the person accused of such Prosecutions should be liable for the costs
offence. . . .
The Criminal Law Amendment Act 1867 he incurred before he undertook the case, and that
(30 & 31 Vict. c. 32) enacts : should only be liable when security for costs
Sect. 2. Whenever any bill of indictment shall be pre had been given by the original prosecutor. It
was never intended that a public officer acting
ferred to any grand jury , under the provisions of the under the directions of the Secretary of State or
Act 22 & 23 Vict. c . 17, against any person who has not
been committed to or detained in custody, or bound by the Attorney -General should be liable for costs.
recognisance to answer such indictment, and the person The order as originally made was right, because
accused thereby shall be acquitted thereon , it shall be the person who prefers the indictment is the
lawful for the court before which such indictment shall
be tried, in its discretion , to direct and order that the person to bemade liable.
prosecutor or other person by or at whose instance such Finlay in reply .
indictment shall have been preferred shall pay unto Feb. 13. - Cave , J. - The question raised in this
the accused person the just and reasonable costs,
charges , and expenses of such accused person and his case is, whether the order of the Central Criminal
witness (if any) caused or occasioned by or consequent Court of the 25th Oct. 1886 , as amended by the
upon the preferring of such bill of indictment, to be order of the 31st Jan. 1887 , is good. The court
taxed by the proper officer of the court. thereby orders the Director of Public Proseco .
The Prosecution of Offences Act 1879 (42 & 43 tions to pay to Stubbs and Irving 1641. 178. for
Vict. c. 22), s. 2, is in the following terms: costs. This order, it is said, is properly made
Where any criminal proceeding is instituted, under. under 30 & 31 Vict. c. 55 , s. 2. In November
taken , or carried on by the Director of Public Prosecu . 1885 Gostling charged Stubbs and Irving with
tions, such director shall not be bound over to pro
secate or conduct such proceedings, or required to criminal conspiracy , but the alderman who heard
give security for costs , and it shall not be necessary to the charge declined to commit them for trial.
bind over any person to prosecute or conduct such pro. Thereupon Gostling entered into recognisances
ceedings, and if any person is so bound over, or bas under 22 & 23 Vict. c. 17, and preferred a bill of
given security for costs, he shall, upon the Director of indictment against Stubbs and Irving at the
Public Prosocations undertaking the case , be released Central Criminal Court on the 3rd May 1886,
from such obligation , and the security shall be deemed which bill was found by the grand jury . After
to have been cancelled , and the Director of Public Pro
secutions shall be liable to costs in lieu ofsuch person. the finding of the bill the Director of Publie
The Prosecution of Offences Act 1884 (47 & 48 3rd Prosecutions undertook the prosecution . On the
Vict. c. 58 ) enacts : Aug. 1886 Stubbs and Irving were tried and
acquitted . Gostling had given no security for
Sect. 2. On and after the passing of this Act, all
appointments made in pursuance of the principal Act costs. On the 13th Sept. 1886 the Recorder made
the order dated the 25th Oct. 1886 , ordering the
are
officerevoked, and theforperson
of Solicitor for the oftime
the Affairs Herholding
Majestythe's prosecutor or other person by or atwhose instance
Treasury shall be Director of Public Prosecutions, and the indictment
perform the duties and have the powers of such Irving's costs, was preferred to pay Stubbs' and
and on the 31st Jan . 1887 he
Director. amended the order by ordering the Director of
Finlay, Q .C . (with him Willes Chitty) for the Public Prosecutions to pay them . For the
plaintiffs.- The prosecutor was bound over to plaintiffs it was contended by Mr. Finlay that
prosecute under the above provision of the the order was good under 30 & 31 Vict. c. 35 , 8. 2
Vexatious Indictments Act (22 & 23 Vict. c. 17). / and 42 & 43 Vict. c. 22, s. 7. By 22 & 23 Vict. c. 17 .
By 30 & 31 Vict. c. 32, the prosecutor, as be pre intituled “ An Act to prevent vexations indict
ferred the indictment, was liable to be ordered ments for certain misdemeanours," no indictmen :
by the court to pay the costs of the accused for (amongst other offences) conspiracy is to be
persons, as they were acquitted. Then by the i presented to any grand jury unless among other
Q.B. Div.] STUBBS v. THE DIRECTOR OF PUBLIC PROSECUTIONS. [ Q .B . Div .
alternatives) the prosecutor has been bound over should certainly have expected to find in the pre
to prosecute the accused . By 30 & 31 Vict. c. 35, ceding words some indication of an intention
8. 2, it is enacted that whenever any billof indict. | that the original prosecutor should be relieved
ment shall be preferred to any grand jury under from them . If, then , this is the natural interpre
the provisions of 22 & 23 Vict. c. 17, against any tation of the language of the section , is it also
person who has not been committed or detained the reasonable one ? It is said that it is unreason
in custody or bound by recognisance to answer able that the original prosecutor should remain
such indictment, and the person accused thereby | liable for the costs when he has lost all control
shall be acquitted thereon , it sball be lawful for over the conduct of the prosecution . There
the court before which such indictment shall be would be more force in the observation if the
tried in its discretion to direct and order that liability to the costs followed automatically on
the prosecutor or other person by or at whose the acquittal of the accused . But this is not so ;
instance such iodictment shall have been pre the court is to make the order in its discretion ;
ferred shall pay to the accused person his just and considering that the object of the section
and reasonable costs to be taxed . By 42 & 43 giving the court power to order theprosecutor to
Vict. c. 22, s. 7, when any crimical proceeding is pay the costs was to discourage vexatious indict
instituted, undertaken , or carried on by the ments too frequently preferred for purposes of
Director of Public Prosecutions, such director extortion , it seems far more consistent with
shall not be bound over to prosecute or conduct reason that in such a case as the present the
such proceeding, or required to give security for liability should remain upon those who originally
costs,and it shall not be necessary to bail orer started the prosecution and preferred the indict
any person to prosecute or conduct such proceed . ment, rather than that it should be transferred to
ing, and if any person is so bound over or has the Director of Public Prosecutions, whose action
given security for costs, he shall, upon the in undertaking a prosecution already commenced ,
Director of Public Prosecutions undertaking the and taking up a bill already found, the Legisla
case, be released from such obligation, and the ture cannot reasonably have intended to dis
security shall be deemed to have been cancelled , courage. If the defendant has been acquitted by
and the Director of Public Prosecutions shall be reason that the prosecution was vexatious in its
liable to costs in lieu of such person . Now , it inception, there seems no adequate reason why
is clear that in this case no order such as that in the original prosecutor should be relieved from
question could have been made on the Director of theburden of paying costs simply because, in the
Public Prosecutions under 30 & 31 Vict. c. 35 interests of justice, the Director of Public Prose
alone, seeing that he was not the person by or at cutions has thought it right to intervene. If the
whose instance the indictment was preferred . prosecution was not vexatious in its inception ,
42 & 43 Vict. c. 22, s. 7, is quite general, and is i but has failed by reason of the difficulty of
not confined to cases coming under the Vexatious proving the case, or even by reason of the inter
Indictments Act. Where the Director of Public vention of the Director of Public Prosecutions,
Prosecutions undertakes the prosecution it those seem reasons, not why the Director of
releases the prosecutor , who hasbeen bound over, Public Prosecutions should pay the costs, but
from his obligation , and where he has giren why the defendant should not get his costs ; and
security for costs, the security is to be deemed to | unless it was shown that the prosecution was
bave been cancelled . So far, there is no indica - vexatious, that is, begun and continued without
tion of any intention to relieve the prosecutor reasonable and probable cause, or frivolous, I
from any costs he may be ordered to pay under imagine that the court, in the due esercise of its
30 & 31 Vict. c . 35 , s. 2. The concluding words discretion,would decline to give the defendantthe
of the clause are relied on for this purpose. They costs of the trial. It is not necessary in this case
are : " and the Director of Public Prosecutions to consider the wider question whether an order
shall be liable to costs in lieu of such person ." | under 30 & 31 Vict. c. 35 can in any case be
Looking, however, at the grammatical construc made on the Director of Public Prosecutions. It
tion, I think these words must be read to impose is enough to say that in this case, for the reasons
nomore liability on the Director of Public Prose - / given above , such an order could not be made,
cutions than that from which the original prose. and therefore our judgment must be for the
cutor is relieved by the preceding words ; that is, defendant. I should like to add for myself that
the costs forwhich he is liable under his security . of course we have not had before us the merits of
But for the words " the Director of Public Prose the case, and are deciding simply on the point of
cutions shall be liable to costs in lieu of such law ; but I find it very difficult to conceive what
person ," no onewould bavebeen liable for thecosts the circumstances could be which would justify
for which security had been given , and it seems such an order being made on the Director of
more natural to read these words as imposing on Public Prosecutions.
the Director of Public Prosecutions tbe liability SMITH , J. - In this case the Recorder of London ,
from which the original prosecutor had by the pre at the termination of a case before him at the
ceding words been released , rather than to con Central Criminal Court, in the first instance
strue them as imposing a liability on the Director made an order that the prosecutor or other
of Public Prosecutions greater than that from person by or at whose instance the indictment
which the original prosecutor had just been was preferred should pay the costs to the defen
released , and so to give the original prosecutor dants, and at a subsequent session he altered
an immunity which there is nothing in the pre that order by making an order on the Director of
ceding words to show that he was intended to Public Prosecutions to pay the said costs. Now ,
bare. If it had been intended by the last clause Gostling in this case instituted a criminal prose
that the Director of Public Prosecutions should cution against Stubbs and Irving for conspiracy ,
bear the costs which might be ordered to be paid but the charge was dismissed by the alderman
under 30 & 31 Vict. c. 35, in such a case as this I i who heard it. Thereupon Gostling was bound
402 _ Vol. LXII., N . S.] THE LAW TIMES. [May 10, 1890.
Q .B . Div.] TOWNEND V. SHERIFF OP YORKSHIRE. ( Q . B . Div.
over under the provisions of the Vexatious | he has given any. The section then proveeds
Indictments Act (22 & 23 Vict. c. 17) to prose- with these words : “ and the Director of Public
cute at the Old Bailey, and entered into recog. Prosecutions shall be liable to costs in lieu of such
nisances in that behalf. Having been so bound person .” Liable to what costs ? In my opinion,
over, he preferred an indictment at the Central what the original prosecutor is released from the
Criminal Court against Stubbs and Irving, and Director of Public Prosecations comes under
having so preferred that indictment, he then obligation to. And what the original prosecutor
brought himself within 30 & 31 Vict. c. 35, s. 2, here has been released from is his obligation to
which enacts that at the termination of a criminal prosecute, which was undertaken by the Director
prosecution the judge who tries it may, if he of Public Prosecutions, and his obligation as to
thinks right, order that the prosecutor pay the security for costs, if any had been given , and for
costs of the defendant if the defendant is those costs only does the Director of Public
acquitted . In these circumstances the Director Prosecutions become liable . It seems to me that
of Public Prosecutions intervened,and conducted on this reading of the section the case is clear,
the case at the trial, and at the trial failed . and that this order, even if it could have been
Thereupon the order was made first of all that made in the court in which it was made, is not
the prosecutor or other person should pay the an order which should have been made. For these
defendants' costs, and subsequently the Recorder reasons I think that judgment must be for the
altered that order by making it an order upon defendant. Judgment for the defendant.
the Director of Public Prosecutions. The ques
tion which has been argued before us is, whether Solicitor for the plaintiffs, C. 0 . Humphreys and
or not the Director of Public Prosecutions can be Son .
ordered under these circumstances to pay the Solicitor for the defendant, The Solicitor to the
costs of the defendants. Now , it is clear that he Treasury .
could not be ordered to pay by reason of 30 & 31
Vict. c. 35, s. 2, for the simple reason that he was
not the person who in this case had preferred the Monday , Feb . 24.
indictment. But it was alleged that he could (Before Lord COLERIDGE, C.J.and SMITH, J.)
be made to pay by reason of 42 & 43 Vict. c. 22,
s. 7, the last words of which enact that in certain TOWNEND V. SHERIPP OP YORKSHIRE. (a)
cases the Director of Public Prosecutions shall Sheriff - Inquiries and seizures - Fees — Taxation
be liable to costs in lieu of such person ; that is, - Appeal - Sheriffs Act 1887 (50 & 51 Vict. c.55),
in lieu of the original prosecutor. That is a cap - 8. 20 - Order as to fees.
tivating argument until one looks carefully into By an order made under the provisions of the
the section to see what it provides. It is a section Sheriffs Act 1887 the fees lo be taken by a sherif
under which in certain events the Director of upon the execution of writs of fi. fa . shall be,
Public Prosecutions may be put under certain “ For expenses incurred in making inquiries, one
responsibilities ; but it seems to me that he is guinea . For each building or place separately
only to be put under that responsibility from rated atwhich a seizure is made,one guinea." It
which the original prosecutor has been relieved . is also provided that “ the amount of any costs
The section provides as follows : “ Nothing in and charges payable under this scale shall be
this Act shall interfere with the right of any taxed by a master of the Supreme Court or dis
person to institute, undertake, or carry on any trict registrar of the High Court (as the case may
criminal proceeding. Where any criminal pro be) in case the sheriff and the party liable to pay
ceeding is instituted , undertaken, or carried on such costs and charges differ as to the amount
by the Director of Public Prosecutions, such thereof."
director shall not be bound orer to prosecute or Held , that no appealwould lie from the decision of
conduct such proceedings, or required to give a district registrar fixing the amount of the fees
security for costs." The meaning of that is due to the sheriff in respect of certain seizures
obvious, because the Director of Public Prosecu made by him .
tions is an officer of state, and it would not be | This was an appeal from the decision of Day, J.
necessary to bind him over or to make him give at chambers, who followed a decision of Field , J.,
security for costs. “ And it shall not be neces and held that no appeal would lie from the
sary to bind over any person to prosecute or decision of a district registrar on the taxation of
conduct such proceedings; " that is, when the
Director of Public Prosecutions intervenes. Then the fees due to a sheriff for making certain
the section proceeds : “ And if any person is so seizures.
bound over ” (as the original prosecutor,Gostling, s. 20, The Sheriffs Act 1887 (50 & 51 Vict. c. 55).
was in this case), “ or bas given security for costs " sub-sect. 2, enacts :
Any sheriff or officer of a sheriff concerned in the
(Gostling had not done so, because it was not a execution
case in which he could be called upon to do so ), of process directed to the sheriff , other than
" he shall, upon the Director of Public Prosecu process for the recovery of the aforesaid soms due to
tions undertaking the case, be released from such poundage as demand
Crown, may , take, and receive such fees and
may from time to time be fixed by the
obligation ” (that is, the obligation which he Lord Chancellor, with the advice and consent of the
entered into by reason of his recognisance to judges of the Court of Appealand High Court of Justice,
prosecute), “ and the security (for costs) shall be or any three of them , and with the concurrence of the
deemed to have been cancelled .” So far there is Treasury.
no liability as to the payment of costs placed Upon the 31st Aug. 1888 an order (Annual
upon the Director of Public Prosecutions, but Practice 1889-90 , Supplement p. 77 ) was made,
the private prosecutor is released from two under the above provision , fixing the fees to be
things, namely, from his obligation to prosecute taken by the sheriff at the following rates :
and from his obligation as to security for costs if i (a) Reported by W . H . HORSFALL, Esq., Barrister -at-Lar.
May 10 , 1890.] THE LAW TIMES. [ Vol. LXII., N . 8.- 403
Q.B. Div.] TOWNEND v. SHERIFF OF YORKSHIRE. [ Q .B . Div.
TABLE OF FEES vires. [Lord COLERIDGE, C .J. - You must first
Execution of Writs of Fieri Facias. show that you have any right of appeal from the
1. For expenses incurred by the sheriff's officer £ 8. d . district registrar.] The language used in the
in making inquiries as to the goods of an order, " the amount shall be taxed," renders the
execution debtor, and as to claims for rent proceedings the same as a taxation in the
and other claims on the goods, the actual Supreme Court, and therefore it is subject to
expenses not exceeding un...ler any circum
..................... 1 1 0 review . The Sheriffs Act 1887 is a consolidating
stances ....
2. For seizure by the sheriff 's officer. For Act, and re -enacts sect. 2 of 1 Vict. c. 55 , which
each building or place separately rated at provides that the taxation of a sheriff's fees shall
which a seizure is made........................... 1 1 0 be proceeded with in the same manner as any -
3. For mileage, & c....... ..... 0 1 0
other taxation in the Superior Courts. If the
The foregoing fees, numbered 1, 2, and 3, shall be paid
by the execution creditor, and shall not be recoverable question was whether the sheriff was entitled to
by him , although the execution proves abortive. one guinea or some smaller sum , the decision of
[ Then follow fees, numbered 4 to 11, which the district registrar would be final; but when it
is a question of principle as to whether the sheriff
are not material to this case .]
The foregoing fees, numbered 2 – 11, shall be levied in is entitled to any fee at all, there is an appeal
every case in which an execution is completed by sale, from bis decision . “ Taxed by a master of the
as fees payable to sheriffs were levied before the making Supreme Court or district registrar of the High
of this order. In every case where an execution is with Court (as the case may be) ” means taxed in the
drawn, satisfied , or stopped , the fees ander this order case in which the execution is issued , and if this
shall be paid by the person issuing the execution , or the is a taxation in the case it is subject to review .
person at whose instance the sale is stopped, as the case
may be ; and the amount of any costs and charges pay. Austin , for the sheriff,was not called upon.
abls under this scale shall be taxed by a master of the
Sapreme Court or district registrar of the High Court Lord COLERIDGE, C . J. - In my opinion the
(as the case may be), in case the sheriff and the party decision of Day , J. at chambers was right in this
amount
pay such costs and charges differ as to the
liable tothereof. case . This is an attempt to review the taxation
by the district registrar at Manchester of certain
The appellant recovered judgment in the fees due to the sheriff of Yorkshire, which taxa
action of Townend v. Dunn , and execution tion had taken place under the order drawn ap
issued. It appeared from the writ of fi. fa ., which under the provisions of the Sheriffs Act 1887
was placed in the hands of the sheriff of York . (50 & 51 Vict. c. 55 ), and dated the 31st Aug. 1888 .
shire, that the defendant Dunn resided at Don . Now in that order there is a table of the fees to
caster, and the sheriff accordingly seized the be allowed to the sheriff upon the execution of
goods in his house there, but then found that writs of fieri facias, and the second fee in the
the goods were the property of Dunn 's wife. table is, * For seizure by thesheriff's officer. For
Hearing that the defendant had two places of each building or place separately rated at which
business, one at Doncaster and the other at a seizure is made, 11. 18." Then there follows
Goole, the sheriff , after making inquiries, seized | another fee,which is not material in this case,
the goods at these two places, but in each case and after that the following rule : “ The fore
the holder of a bill of sale came forward and going fees, numbered 1, 2, and 3, shall be paid
claimed the goods. The holders of the bills of
sale, upon interpleader issues, proved their titles by the execution creditor, and shall not be
recoverable by him ,although the execution proves
to the goods, and the sheriff withdrew . Upon abortive." There next follow eight other fees,
the taxation of the sheriff's fees by the district and a rule wbich applies to all the fees from the
registrar at Manchester he allowed the sheriff second to the eleventh , and which states that
six guineas, being one guinea for each of the “ the foregoing fees shall be levied in every case
three places about which the sheriff had made in which an execution is completed by sale, as
inquiries, and one guinea for each of three fees payable were levied before the making of
seizures. From this taxation the appeal was this order.” Then the order deals with the case
brought before Day, J. where the execution is withdrawn , and concludes
C. A . Russell for the appellant. - Under the with the words upon which the argument which
provisions of the Sheriffs Act 1887 (50 & 51 Vict. has been addressed to us in this case has been
c. 55), 8. 20, sub-sect. 2 , the sheriff may demand, founded , and these words are as follows : " And
take, and receive such fees and poundage as may the amount of any costs and charges payable
from time to timebe fixed . A general order was unaer this scale shall be taxed by a master of
made under that sub-section on the 31st Aug. | the Supreme Court or district registrar of the
1888, and by rule 1 of thatorder the sheriff may High Court (as the case may be) in case the
demand one guinea for expenses incurred in sheriff and the party liable to pay such costs
making inquiries as to the goods of an execution and charges differ as to the amount thereof." It
debtor, and a further sum of one guinea for each has been argued before us that, from the word
building or place separately rated at which a “ taxed ” being used in this order, it follows that
seizure is made. It is admitted in the present in every taxation of a sheriff 's bill of costs an
case that the sheriff is entitled to two guineas in appeal lies in effect from the decision of the
respect of the inquiries he made as to the goods master or district registrar to the House of
and the seizure at the residence of the execution | Lords ; and it is said that this consequence
debtor, and that he is entitled to two guineas follows from this particular word being used,
for the inquiries he made as to the goods and that, if another word had been in its place,
atthe two places of business, but it is denied that there would not have been an appeal. It is a
he is entitled to two guineas for the seizures he word , it is said , which carries certain incidents
made at the places of business. The district with it, and that an appeal is one of those inci
registrar has taxed the amount at two guineas dents. But we must construe the words with
for each place. It is submitted the order is ultra | reference to the subject-matter which is being
Q . B . Div .] HOBY AND Co. LIMITED v . BIRCH . (Q .B . Div.
dealt with, and if it need not mean more than Court of Justice, or any three of them , and with
ascertained or settled , I think it would be foolish the concurrence of the Treasury." In accordance
to strain the word so as to extend its meaning. with that provision an order with reference to the
It has been suggested that the framers of this fees to be taken by a sheriff was drawn, and by
order had not in their minds any intention of the latter part of the last rule of that order it is
limiting the right of appeal from a master or provided that “ the amount of any costs and
district registrar ; but I can say as one who was a l charges payable under this scale shall be taxed
party to the drawing of this order that it never by a master of the Supreme Court or district
crossed my mind that there should be appeals to registrar of the High Court (as the case may be)
any extent, and at any amount of costs, or that in case the sheriff and the party liable to pay
the word “ taxed " was used here with any such such costs and charges differ as to the amount
intention . If the words here mean what Mr. thereof." That is to say, the amount, and the
Russell suggests, it cannot be helped, and we amount only, of the fees is to be settled by the
must so construe them ; but if they do not mean master or district registrar ; it is, in fact, a
that, let us see what other interpretation is to matter of figures and calculations. There is no
be put upon them . The taxing officer is to power given to themaster or district registrar to
decide the amount if the amount is disputed by order the person to pay the fees, and if such
the party liable to pay such amount. Mr. Russell person refuses to do so , other stepsmust be taken
says that in the present case it is not a question to compel bim . In this case the district registrar
of amount, but a question as to the right of the could not go into the question of whether the
sheriff to receive anything at all, a right which sheriff was right in seizing the particular goods
is precedent to the fixing of the amount ; that in question . Under the rule, the only power he
the taxing officer must settle first whether the has is to fix the amonnt of the fee due to the
sheriff is entitled to any fee at all, and then what | sheriff for such seizure. I therefore agree that
the amount of such fee is to be. I am of opinion the appeal must be dismissed .
tbat the taxing officer must not act in that way Appeal dismissed .
any more than he would in the case of an ordinary Solicitor for the appellant, Arthur Harris, for
bill of costs of a solicitor. The taxing master Sims,Manchester.
does not decidewhether there has been a proper
retainer of the solicitor by the client, or whether GraSolicitors
y.
for the sheriff, Bell, Brodrick , and
the solicitor has acted with negligence or not.
All that the taxing master can determine is that,
granting the solicitor had the right to do some Tuesday , Feb . 11.
thing, the amount which he charges for doing (Before DENMAN and Wills, JJ.)
that something is right, and in accordance with
the scale of costs he is entitled to charge. As a HOBY AND Co. LIMITED v. BIRCH. (a )
matter of fact in the present case, three seizures | Company - Voluntary liquidation - Shareholder
were made by the sheriff, and the law appears Action for calls — Right to set off debt due from
to say that the sheriff shall have a fee in respect company - Companies Act 1862 (25 & 26 Vict.
of each seizure. Where the taxing officer is c. 89 ).
only given jurisdiction as to the amount of fee Where a limited company is in voluntary liquida
to be allowed, the word amount is expressly used. tion , a shareholder, against whom an action is
He cannot give himself any further jurisdiction , brought by the liquidator to recover money due
and if he has given the amount right, but for in respect of calls upon his shares, is not entitled
things which were never actually done by the to set off a debt due to him from the company.
sheriff, that can be questioned by the execution This was an appeal from an order of Charles, J.
creditor
case thatin the
an decision
action . ofI have
Day, no doubt
J. was in this
right, and at chambers, giving the plaintiff liberty to sign
that thiswhether
appeal the
mustorder
be dismissed. The ques judgment in the action in default of the defen
tion of of the 31st Aug. 1888 | dant paying 501. into court within seven days.
is ultra vires cannot be raised now , but I should The action was brought by George Hoby and
wish to say , although it is only a passing opinion , Co. Limited , by Charles Kean Vokins their
that I think that it is not ultra vires. voluntary liquidator, against Edward Birch , and
Smith , J. - In this case an appeal was brought the writ, which was specially indorsed under
from the district registrar at Manchester, who Order III., r . 6 , claimed : (1 ) 401. from the
had taxed the amount to be paid by an execu defendant as themaker of a promissory note for
that sum dated the 12th March 1888 , payable on
tion creditor to the sheriff of Yorkshire. Upon demand ; (2) 501.money due from the defendant as
the appeal coming before Day, J. at chambers he a member of George Hoby and Co . Limited
followed the decision of Field, J . in another case, (being a company
and held that no appeal would lie ; so that the panies Act 1862) in incorporated under the Com
respect of fifty shares of ll.
point which we have to decide is whether the dis. each , which shares the defendant applied for by
trict registrar is the sole judge as to the amount
which is to be paid to the sheriff. Now , by the signing the memorandum of association of the
company on Feb . 29, 1888 ; and also (3)401. 11s. 5d.,
Sheriffs Act 1887 (50 & 51 Vict. c.55), s. 20, sub moneys had and received by the defendant
sect. 2 , it is enacted that “ any sheriff or officer of for the use company and not accounted
a sheriff concerned in the execution of the process for : makingofa thetotalof 1301. 118. 5d., from which
directed to the sheriff , other than process for the was deducted a sum of 171. 38. 5d . for cash wages
recovery
may of thetake,
demand. aforesaid
and sumsdue
receire suchto thefeesCrown
and paid by the defendant on behalf of the company,
poundage as may fromwithtime
the Lord Chancellor, thetoadvice
timeand
be fixed by ! leaving
consent
1131. 88. due.
The plaintiff having applied under Order XI) .
of the judges of the Court of Appeal and High I (a)Reported by ALFRED H.LEFROY,Esq.,Barrister-at-Lar.
May 17 , 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 405
Q .B . Div.] HOBY AND Co. LIMITED v. BIRCH . [ Q .B . Div .
r. 1 , for liberty to sign judgment, an order was | The only authority to the contrary is that of Re
made by a master at chambers, that, upon pay . Whitehouse and Co. (39 L . T. Rep . N . S . 415 ; 9
ment into court of 631. within seven days, the Ch. Div. 595), which came before Jessel, M . R . in
defendant should be at liberty to defend the 1878 . That was a case of a voluntary winding-up,
action , and that in case default was made in but the learned judge nevertheless held that a con
such payment the plaintiff should be at liberty tributory could not set off a debt due to him from
to sign judgment for the amount indorsed on the companyagainst calls madeagainst him either
the writ , with interest if any, and costs to be by the company before or by the liquidator after
taxed . the resolution to wind-up. “ On considering the
On appeal Charles, J. varied the order of the matter,” he says,“ I cameto the conclusion that it
master , and ordered that the sum directed was open to meto decide the case, notwithstanding
therein to be paid into court should be reduced the case in point decided by the Court of Common
to 501. Pleas ( The Brighton Arcade Company v. Dowling,
The defendant appealed. ubi sup.), and notwithstanding that the case was
decided ten years ago and was a decision of
Ambrose, Q .C. for the defendant.-- The learned the full Court of Common Pleas ;" and the
judge at chambers has decided that,as to the claim conclusion to which he came was that there
for 501. upon the promissory note and for 231. for | was no possible distinction between the duty of
the balance of money received on behalf of the the court when applied to by a voluntary
company after giving credit for wages paid, the liquidator and the duty of the courtwhen applied
defendant has a good defence. The only question to by an official liquidator. It is submitted ,
now is as to whether a debt due from the however, that this opinion of a single judge,
company to the defendant can be pleaded by way sitting alone, has no weight by the side of the
of set-off in an action by the liquidator of the judgment of the full Court of Common Pleas.
company for the amount of calls which have [ DENMAN J. - Is not the case of Re Paraguassu
become due upon the shares of the company. The Steam Tramroad Company ; Black and Co's case
learned judge has decided that such a debt is no (28 L. T . Rep. N . S. 50 ; L . Rep. 8 Ch. App. 254)
defence to an action against a contributory for also against you ? ] No, that was a case of a
calls, and has given the plaintiff leave to sign compulsory winding-up by order of the court,
judgment unless the defendant pays into court and simply follows Grissell's case. Nothing in
the sum of 501. in respect of the calls. The state the decision in that case can affect the case of a
of the authorities upon which this question company in course of being voluntarily wound
depends is this : In 1866 it was decided , in Re up. With respect to companies in this position
Overend, Gurney , and Co. ; Grissell's case (14 L . T. there is so far upon this point on the one side the
Rep . N . S . 843 ; L . Rep. 1 Ch . App. 528 ), that a decision of Jessel, M .R . sitting alone, and on the
shareholder in a limited company, who is also a other that of a full court of four judges of the
creditor of the company , is not, in the event ofCourt of Common Pleas. The latter judgment
the company being wound -up, entitled to set off has the further authority of Kelly , C . B . and
the debt due to him against the calls. In 1868, Stephen , J. in Groom v. Rathbone (41 L . T . Rep .
however, the same point came before the Court of N . S . 591). In that case, which was decided in
Common Pleas, consisting of Borill, C . J. and 1879, the liquidator of a company, which was
Willes, Keating, and Montague Smith, JJ., in The being voluntarily -wound up under the Companies
Brighton Arcade Company v . Dowling (17 L . T . Act 1862 , applied for leave to sign final judgment
Rep . N . S . 541, 543 ; L . Rep. 3 C . P. 175). It was under Order XIV . in an action for calls . The
there pointed out that a distinction existed case of The Brighton Arcade Company v. Dowling
between a voluntary winding-up and a winding (ubi sup .) was cited on behalf of the defendant,
up by or under the supervision of the court,and | while in support of the plaintiff's case Grissell's
it was held that, in a voluptary winding-up under case (ubi sup.), Black and Co.'s case (ubi sup.), and
the Companies Act 1862, a defendant is entitled to Re Whitehouse (ubi sup.) were cited, and it was
set off a debt due to him from the company. argued that the decision in The Brighton Arcade
Bovill, C .J. there distinguishes Grissell's case as Company V. Dowling had been distinctly dis
follows: " The attention of the Lord Chancellor approved of and must be taken to be overruled ;
and of the Lords Justices," he says, “ does not but the court held that, although subsequent
appear to have been drawn to the fact that that decisions had thrown some doubt on the case, it
was not a case of voluntary winding-up, or to the had not been expressly overruled by the Court of
distinction between the two cases. There the Appeal, and gave the defendant leave to defend.
winding.up, which had originally been voluntary, The decision of the Court of Common Pleas in
had been converted into a winding-up under the The Brighton Arcade Company's case, dealing, as
supervision of the court, and so had for most it does , with companies in course of being
purposes become the same as a winding-up by the voluntarily wound -up, has never been overruled
court. To such a state of things the provision by any court of superior jurisdiction . It has,
in sect. 101 would of course apply . The result is moreover, been followed by a divisional court in
that, where the winding-up is by the court or Groom v. Rathbone, and it is submitted that it
under the supervision of the court, a set-off | is binding upon this court,and that the defendant
cannot be allowed in a court of law in an action is entitled to leave to defend . In any case,
for calls ; but that, the Act of Parliament being whatever view the court may take as to the 501.
silent on the subject, there is nothing to prevent claimed for calls, the defendant is, upon the
a set-off where the action is brought by a view taken by the learned judge at chambers,
company which is in course of winding - up entitled to unconditional leave to defend as
voluntarily. This judgment does not at all to 631.
conflict with the decision in Grissell's case, which |
Spokes, for the plaintiffs, admitted that the
proceeds upon an entirely different principle.” | order waswrong in giving the plaintiffs leave to
Vol. LXII., N . S., 1592.
405 – VOL. LXII., N . S.] THE LAW TIMES. [May 17, 1890.
Q.B.Div.] THE Batavier. [CT. OF APP.
sign judgment for the whole amount in default :
of the payment into court, and was not called
upon to argue against the contention of the
defendant, that he was entitled to set off a debt
against the money due in respect of calls. COURT OF APPEAL.
DENMAN, J. I am of opinion that the order Monday, Dec. 9, 1889.
of the learned judge at chambers must be varied . (Before Lord Esher, M .R ., LINDLEY and LOPES,
In substance I think he was right upon the L.JJ.)
point which has been argued before us, but in
detail I think the order is incorrect. The order THE BATAVIER. (a)
of the master was, that the defendant should Collision — Inevitable accident — Costs - Special
have leave to defend on bringing into court the circumstances.
sum of 631. within seven days, but that in case As a general rule a defendant relying upon and
default should be made in the payment into court succeeding upon the defence of inevitable accident
of this sum , the plaintiff should be at liberty to in a case of collision is entitled to his costs, but
sign judgment for the whole amount, and the there may be exceptions to this rule where, in
learned judge allowed this order to stand , only addition to such defence, the defendant alleges
reducing the amount to be paid into court to 50%. facts inconsistent therewith and fails in establish
This form of order is admittedly wrong, since, if ing their truth.
the defendant has shown that he has a good This was an appeal from a decision of Butt, J.
defence to the claims upon the promissory note finding the full-rigged ship the Batavier to blame
and for money received , he is entitled to uncon for a collision with the steamship New Pelton .
ditional leave to defend as to them . As to the
claim for money due in respect of calls upon 5.30Thep.mcollision occurred in the river Tyne about
. on the 20th March 1889. The defen
shares in the company, I am quite clear that the dants counter -claimed .
defendant has failed to show that he has a good The facts alleged by the plaintiffs were as fol
defence. Although the Court of Appeal has lows: Shortly before 5 .30 p .m . on the 20th March
not expressly overruled the decision of the Court 1889 the New Pelton , a screw -steamship of 525
of Common Pleas in the case of The Brighton | tons register, laden with a cargo of coal and
Arcade Company v. Dowling (17 L . T. Rep. bound on a voyage from the Tyne to London,
N . S. 541, 543 ; L . Rep. 3 C . P . 175), yet I was coming down the river to the south of mid
think that the judgments delivered in Re channel. There were passing showers of sleet
Paraguassu Steam Tramroad Company ; Black
and Co's case (28 L . T. Rep. N . S. 50 ; L . Rep . and rain , the wind was blowing a gale from the
N .E ., and the tide was just turned high water.
8 Ch. App . 254), are inconsistent with that de In those circumstances those on board the New
cision, and I am unable to reconcile the two cases. Pelton observed a ship, which proved to be the
I do not overlook the case of Groon v. Rathbone Batavier,
(41 L . T . Rep. N . S . 591), in which Kelly, C . B . head to thelying athwart the stream with her
northward and distant about a mile ,
and Stephen, J. reversed a decision at which I bearing about one or two points on the port bow
had arrived at chambers. If the decision at of the New Pelton . The two topsails and fore
chambers had been mine alone, I should have
acquiesced in the reversal of it by a divisional sail of the Batavier were partly clewed up , but
court. But it was not my decision alone, but loose . Shortly after seeing her, the speed of the
New Pelton was eased , and then reduced to slow .
that of the Court of Appeal. Kelly, C .B . and The Batavier was seen to be still lying athwart
Stephen, J. thought that they were bound by the stream with her head towards the lower tier of
case of The Brighton Arcade Company v. Dowling Commissioners' buoys, apparently for the pnr.
(ubi sup .), because it had not been expressly over the
ruled by the Court of Appeal. We, on the con pose or in the act of making fast to one of them .
She had two tugs ahead of her, with long scopes
trary, feel ourselves bound by Black and Co's case of
(ubisup.), which is a decision of the Court of andhawser out which were between the said buoys
thespouts, and she had two other tugs fast, one
Appeal. We think , therefore, that the plaintiffs on her port and the other on her starboard side, all
must be at liberty to sign judgment for the 501. apparently engaged in keeping her in the afore
claimed in respect of the calls upon the shares, said position . With the Batavier lying as she then
and that the defendant should have leave to was there was ample room and all was clear for
defend as to the residue of the claim . the New Pelton to pass to the southward of her.
Wills, J. concurred. The New Pelton was accordingly kept going
Solicitor for plaintiff company, J. B. Purchase. ahead slow , making about two to three miles
an bour. When the New Pelton had approached
Solicitors for defendant, Cragg and Smith . to within about a hundred feet of the Batavier
the latter was observed by those on board the
New Pelton to be suddenly coming astern
with her sails aback . The helm of the Nero
Pelton was at once hard -a -ported and her engines
stopped and reversed full speed astern , and the
tugs were loudly hailed to tow the Batavier
ahead, but the Batavier continued to come astern
fast and with the round of her stern struck the
New Pelton abaft the port fore rigging, doing her
much damage.
(a) Reported by J. P. ASPINALL and BUTLER ASPINALL, Esqrs.,
Barristers -at- Law .
May 17, 1890 .) THE LAW TIMES . [Vol. LXII., N .8.- 407
CT. OF APP.] THE ORCHIS. [CT. OF APP.
The facts alleged by the defendants were as wins gets his costs, and the party who loses pays
follows: Shortly before 5.30 p.m . on the 20th | the costs. Here, therefore, if the defendants
March 1889 the Batavier, a Dutch full-rigged had not so complicated the case, but had set up
ship of 1616 tons register , laden with a cargo of the defence of inevitable accident alone, they
sugar, was in the Tyne in charge of a duly would have got their costs. But I think
licensed pilot, having put in from stress of there are special circumstances in this case .
weather while in the course of a voyage from From first to last the witnesses from the Batavier
Java to Leith . The wind was blowing a violent told a story which was outrageously false, and
gale from N . N . E ., the weather was clear with consequently the same story is pleaded in the
occasional showers of rain , and the tide was the defence. I cannot help thinking that such a
first of the ebb . The Batavier had heen driven false defence, persisted in from the beginning,
by the force of the gale almost into the Tyne may have had great effect upon the conduct of
Dock entrance, and was proceeding thence to the the plaintiffs, and that when they found the
Commissioners' buoys on the north side to make defendants relied upon such an impossible and
fast there. All her sails had been taken in and improbable story they may hare naturally
made fast as far as possible . She had two tugs concluded that their own story was right.
ahead of her, and one on each side of her, and Therefore, on account of the untruthful story
was athwart the river just moving ahead . In of the defendants persisted in from beginning to
these circumstances a steamship which proved to end, I think the circumstances are such that the
be the New Pelton was seen coming down the plaintiffs ought not to pay all the costs of the
river in mid -channelabout three-quarters of a mile defendants. Each party must pay their own
distant on the port beam of the Batavier, and the costs in the court below , but the appellants are to
Batavier went over to the said buoys, and was have the costs of the appeal.
being made fast to oneof the buoys, being held LINDLEY and LOPES, L.JJ. concurred .
there by her tugs, but the New Pelton , instead of
keeping clear of the Batavier, came on , and with Solicitors for the appellants, Botterell and
Roche.
her port side abreast the forerigging struck the
stern of the Batavier . Solicitors for the respondents, Gellatly and
The defendants denied that the Batavier ever Warton .
came astern , and alleged that the collision was
wholly caused by thenegligence of the New Pelton
in not keeping clear of the Batavier . Wednesday, Feb. 12.
In paragraph 11 of the defence, thedefendants (Before Lord COLERIDGE, C.J., Lord ESHER, M .R .,
alleged as follows : and FRY, L .J.)
In the alternative the defendants say that if the THE ORChIs. (a)
Batavier did come astern as alleged which they deny
as aforesaid, she did not come astern so as to cause or Mortgage - Co-owners Arrest of ship - Master's
contribute to the said collision , but that if the said claim - Priorities — Compulsion of law - Bristol
collision was caused or contributed to thereby (which Dock Act 1881 - Harbours, Docks, and Piers
they also deny) the said coming astern was solely caused Clauses Act 1847.
by the weather then prevailing , and the said collision ,
so far as the Batavier was concerned , was an inevitable
accident but they say that so far as the New Pelton
Thelegally
arrestof a ship in an action in rem for a claim
due from the owners of the ship, although
was concerned the said collision was caused or con there benomaritime lien ,is a sufficient compulsion
tributed to by those in charge of her in manner herein of law to entitle mortgagees of part of the shares
before alleged . in the ship paying off the claim in order to get
Butt, J. held the Batavier solely to blame, possession to recover from the owners of the
on the ground that, when the New Pelton was remaining shares the amount so paid .
approaching, the two tugs alorgside the Batavier The owner of 44 /64th shares in the steamship 0 .
were ordered to ease their speed , and hence the mortgaged them to the plaintiffs. Subsequently
Batavier came astern and caused the collision . the 0 . was arrested in the Admiralty Court
The defendants appealed . at the suit of her master for disbursements. The
The Court of Appeal allowed the appeal, and mortgagor being insolvent, 'andpaidthethemaster's
plaintiff's
while holding that the Batavier did come astern , wishing to realise their security,
and that her coming astern was the cause of the claim and the ship was released . The plaintiffs
collision, found that it was solely occasioned by then took
the severity of the weather, and not by the negli selves andpossession
the other of the 0 . onandbehalf
co-owners, of there.,
it was them
gence of those in charge of the Batavier, and that upon arranged between the plaintiffs and the
therefore the Batavier was not to blame. co -owners that the 0 . should be sold on
Sir Walter Phillimore (with him J. P. Aspinall), behalf of all parties and this was eventually
for the appellants, asked for costs. . done. Whilst the plaintiffs had possession of the
Barnes, Q .C . (with him L. Pyke), for the 0 . she was lying in the Bristol Dock , and,
respondents, contra . they paid the necessary dock dues. In the event
The following cases were cited : of the dock dues not being paid , the 0 . was
The Monkseaton, 60 L. T. Rep. N .'S. 662; 6 Asp . liable to seizure and sale by the dock authorities
Mar. Law Cas. 383 ; 14 P . Div. 31 ; under the Bristol Dock Act 1881, and the
The Marpesia , 26 L . T. Rep. N . S . 333 ; 1 Asp. Mar. Harbours, Docks, and Piers Clauses Act 1847.
Law Cas. 261; L . Rep . 4 P . C . 212 ; In an action against the co -owners to recover the
The Condor, 40 L . T . Rep . N . S. 442 ; 4 P . Div . 115 ;payments madeby the plaintiffs:
4 Asp . Mar. Law . Cas. 115. Held , that, in the circumstances, there was an
Lord ESHER , M .R . - It is time that it should implied promise in law by the co-owners to pay
be laiddown once for all in all cases, unless (a ) Reported by J. P . ASPINALL and BUTLER ASPINALL, Esqrs.,
there are special circumstances, the party who I Barristers-at- Law .
408— Vol. LXII., N . 8.] THE LAW TIMES. [May 17, 1890.
CT. OF APP.] THE ORCHIS. [CT. OF APP.
back the plaintiffs all the money paid by them to The defence, so far as is material, was as
release the ship ; and that the defendants were follows :
also liable to pay their proportion of the dock defendants deny that they were or that any
dues, the payment thereof by the plaintiffs being of 2.themThewas on the 14th May, or at any other time,
necessarily made on behalf of all the owners. jointly or severally or at all liable to Lewis Alexis
Leslie for the sum of 4221. 158. 7d . or any other sum .
This was an appeal by the defendants from
a decision of Butt, J. in an action by Smith ,
The plaintiffs were not compelled to pay the said sum
of 4221 . 158, 7d , or any other sum or sums. If they paid
Brothers, and Co., the mortgagees of 44 /64th anything (which the defendants do not admit), they paid
it voluntarily , and not for or at the request of these
shares in the steamship Orchis, against certain defendants, or any of them .
of the owners of the said steanship . 3. The defendants do not admit any of the allegations
The plaintiffs
shares hadbelonging
in the ship, been mortgagees of 44/64th
to one Hornstedt, contained in paragraphs 6 , 7, 8 , 9, and 10 of the state
ment of claim .
who had been the managing owner up to May 4 . The defendants deny that the plaintiffs have atany
time incurred any expenses for the owners of the said
1886. ship . If the plaintiffs did spend the said sum of
The defendants were Hornstedt and the owners 6721. 118. ld ., or any other sum (which is not admitted),
of 16 /64th shares. The owners of the remaining they did so voluntarily, and not for or at the request of
shares were not proceeded against, as they were these defendants, or any of them . They deny that the
not in a position to pay in the event of the said expenses were necessary or reasonable, and that
plaintiffs getting judgment against them . they were incurred for the purposes alleged .
5 . The plaintiffs have never paid any sam or sums
In 1886 the plaintiffs took possession of the whatever for or at the request of these defendants,
ship, and then incurred the expenses in respect or any of them .
of which they now sought contribution from the his6.handsThe defendant Claude Andrew Hornstedt had in
at the time of the arrest of the said ship ,and
defendants in the circumstances hereinafter of the alleged payments, monuys of the defendants
stated . sufficient to pay the said sums, and upon the accounts
The statement of claim , so far as is, material aspaybetween him and the defendants it was his duty to
the said sums, and the samewere payable by him ,
was as follows: and not by these defendants.
5. The plaintiffs became and were at all times 7. The defendants farther say, that they have since
material hereto the duly registered mortgagees of the the 14th May 1886 been compelled to pay large sums
defendant Claude A . Hornstedt's 44 /64th shares in the of money in respect of liabilities necessarily incutred
said steamship , ander two mortgages dated respectively for the maintenance and repair and insurance of the
the 14th Oct. 1882 of 30/64ths, and the 12th June 1884 said vessel.
of 14 /64ths. 8. The defendants claim that an account be taken of
6. On or about the 14th May 1886 the defendants the payments and transactions hereinbeforementioned,
were jointly and severally liable to Lewis Alexis Leslie, and that they may be allowed to set off in this action
the master of the said steamship , for coals and other such amounts as may, upon the taking of such account,
necessary disbursements incurred while the said steam be found chargeable against the plaintiffs.
ship was prosecuting a voyage for the joint benefit of the
defendants , and amounting to the sum of 4221. 158 . 7d .. By order of the judge the issues of fact raised
and the said master instituted in the Admiralty in the pleadings were referred to the registrar,
Division of this court an action in rem against the said who found as follows :
steamship to recover the same, and the said ship was First. That the plaintiffs in this action did pay the
duly arrested in the said action , and the plaintiffs after sum of 4221, 158 , 7d ., and also the sum of 181, 98, 3d .
and during such arrest having sought to take possession
of the said steamship ander the said mortgages in order costs, as pleaded in paragraph 6 of the statement
to obtain the release of the said steamship, were of claim ..
compelled to pay and did pay the said sum of 4221. Secondly. That the plaintiffs did pay the sum of
158. 7d . together with a further sum of 181. 98. 3d , for 6721. 11x. ld ., as pleaded in paragraph 8 of the said
costs due to the plaintiff in the said action in order to statement of claim , and we are of opinion that such
obtain the release of the said steamship, and upon payment was reasonable and necessary .
payment thereof the plaintiffs did obtain possession of Thirdly. That the defendants since the 14th May
the said steamship under their said mortgage. 1886 , and prior to the 11th July 1888 ,have paid various
7. The defendant Claude A . Hornstedt was at the sums of money, amounting to 21931. 38. 10d., for the
time of arrest of the said ship and the said payment by maintenance, repair, and insurance of the said vessel,
the plaintiffs, and still continues , insolvent, and has not as ploaded in paragraph 7 of the defence, and in addition
thereto have in themonth of March last paid the further
paid and cannot pay any portion of the said sum so sum of 1111. 58. 4d . for the same purposes, making a
expended by the plaintiffs as aforesaid . total sum of 23041. 98. 2d . paid in respect of liability
8. After the plaintiffs took possession of the said incurred before the 14th May 1886 . Against that sum
steamship, and until the plaintiffs sold the 44 64th shares they have to give credit for 4521., thevalue as estimated
in the said steamship of which they were mortgagees, by as of four shares, formerly belonging to the defendant
on the 18th the
Bristol,and Juneplaintiffs
1887 the said ship was in a dock at Claude A . Hornstedt, and mortgaged by him to Earle 's
during that period incurred for Shipbuilding
the owners of the said ship certain necessary
reasonable expenses amounting to 6721. 118. id. in and
and against the shipCompany, as security
, and which for their
shares were account
subsequently
about payments for dock dues and for watching and defendants transferred by the said building company to the
caring for the said steamship and for other charges in on their account being settled, thus leaving
and about the inspection and repair of the said ship , full a balance of 18521. 98. 2d . which the defendants are
particulars whereof have been given by the plaintiffs to entitled to bring
Fourthly. at account.
Thatinto the time of the arrest of the
the defendants.
9. The defendants are jointly and severally liable to | vessel
had
on the 14th May 1886 the said C . A . Hornstedt
notmoney in hishandsto the amountof 13241. 178.6d .,
indemnify the plaintiffs as to tłe payments referred to or any other sum , as pleaded in paragraph 6 of the
in paragraph 6 hereof, and to contribute in respect of said defence ; but on a balance of accounts to that date
their shares to the payments referred to in the 8th the defendants were in debt to the said C . A . Hornstedt
paragraph . on the ship's account to theamount of 8451.
10. In the alternative the plaintiffs say that they are
entitled to contribution as to the payments referred to It appeared that, during the time the Orchis
in the said 6th paragraph as well as to those in the said was in the dock at Bristol, negotiations were
8th paragraph . going on between the plaintiffs and the defendants
· The defendant Horn ; iedt admitted ilability. i as to the sale of the ship, which eventually took
May 17, 1890.) THE LAW TIMES. [Vol. LXII., N .8.- 409
CT. OF APP.] THE ORCHIS. [Ct. Or App.
place. The dock in question was the property Company (ubi sup .) is not in point. In the
ofthe Bristol Corporation, and the payment of present case the plaintiffs were only mort
the dock dues and rates were regulated by the gagees of a part of the ship , and hence there is
following Acts of Parliament : no privity between them and the defendants.
The Bristol Dock Act 1881, sect. 2, incorporates Since the arrest of the Orchis by her master, it
the Harbours, Docks, and Piers Clauses Act has been decided that masters' disbursements do
1847 ; sect. 6 prescribes the fees payable for using not give a maritime lien ( The Sara , 61 L . T.
the docks. Rep . N . S . 26 ; 14 App . Cas. 209; 6 Asp . Mar. Law
The Harbours, Docks, and Piers Clauses Act Cas. 413 ) ; and hence the mortgagees had a prior
1847 : right to the master, and could have protected
Sect. 3 . The following words and expressions in both their shares from sale by intervening in this
this and the special Act and any Act incorporated there action .
with , shall have the meanings hereby assigned to them , BUTT, J.- This is a suit by Messrs. Smith Bros.
nnless there be something in the subject or context and Co.,who are mortgagees of forty -four sixty
repugnant to such construction ; (that is to say ) . : . fourth shares of the ship Orchis, which were
The word " rate " shall mean any rate or duty or other
payment in the nature thereof, payable under the mortgaged to them by one Hornstedt, who was
managing owner, against the defendants, who are
special Act.
Sect. 44 . If the master of any vessel in respect of owners of sixteen sixty -fourths.
which any rate is payable to the undertakers, refuse or before the mortgagees entered Itintoappears that
possession
neglect to pay the same, or any part thereof, the one Leslie , the master of the ship , had incurred
collector of rates may, with such assistance as hemay
deem necessary , go on board of such vessel, and demand a debt for disbursements, which together with
such rates, and on nonpayment thereof, or of any part the costs of suing for recovery announted to
thereof, take, distrain, or arrest, of his own authority , 4441. 48. 10d . To recover thatmoney the master
such vessel, and the tackle, apparel, and furniture instituted proceedings in rem against the ship ,
belonging thereto , or any part thereof, and detain the
matters so distrained or arrested until the rates are and arrested her in this court. There she lay
paid ; and in case any of the said rates shall remain properly arrested by the master in the enforce
anpaid
or for the sospace
arrestment made,of seven
the said
nextafterany
dayscollector distress ment of his claim by virtue of the Act of
may cause the Parliament, which gave him a right to proceed
matters so distrained or arrested to be appraised by in rem . At that timeit was supposed , upon the
two or more sworn appraisers , and afterwards cause the authority of certain decided cases, that a ship 's
matters distrained or arrested , or any part thereof, to master a maritime lien for disbursements.
be sold, and with the proceeds of suchof sale may satisfy But, by hada decision of the House of Lords,
the rates so and
appraising, unpaid,selling theexpenses
and the taking, keeping ,
matters so distrained or subsequently given , it appears that that was
arrested , rendering the overplus (if any) to the master an erroneous view of the law , and that the master
of such vessel upon demand. never had any maritime lien at all for his
There was a long correspondence between the disbursements , but only a claim against the ship
parties, setting out the negotiations in regard to | which he had a right to enforce in rem , or rather
the sale of the ship, and it was contended , on a claim against the owners which he had a right
behalf of the plaintiffs, that this correspondence to enforca against the ship in rem . I shall of
authorised them to incar on behalf of all parties course follow the law as laid down by the House
the expenses at Bristol. of Lords, and I may add that I always had a
Barnes, Q .C . and J. P. Aspinall for the plain strong impression that that was what the law
tifs. - The defendants are liable to pay the whole ought to be. The ship , as I have said , being
money paid by the plaintiffs to release the ship. under arrest in this court, and the plaintiffs
The plaintiffs were entitled to possession of their wishing to get possession of that to which they
shares,
by payingand offthetheonly way they
master's claim .could get it was were
The defendants
entitled , paid off the master's claim and so
discharged the ship. They did so without any
were clearly liable for the master's claim , and express authority from the defendants in this
ia the circumstances the law implies a promise suit, and they do not base their claim to
that the defendants will pay to the plaintiffs the | reimbursement by the defendants on any express
money they have paid on their behalf : promise to pay, but on the promise which they
Johnson 1. Royal Mail Steam Packet Company, maintain the law implies under these circum
stances, that they have been compelled to pay a
17 L . T. Rep . N . S. 445 ; L. Rep. 3 C . P. 38 ; 3 Mar. sum
Law Cas . 0 . S . 21 ; which the defendants were legally com
Lamplough v. Braithwaite, Smith 's Leading Cases, pellable to pay. To deal with the last part of
8th edit. 151 ; their contention first : it is quite clear that the
Edmunds v. Wallingford , 52 L . T .Rep. N . S. 720 ; defendants were legally compellable to pay the
14 Q . B . Div. 811. "
The defendants are also liable to pay their 4441. 43. 10d ., because it was a joint liability of
contributions towards the dock expenses. At theirs for disbursements made by their servant
in an adventure in which they were jointly
the time they were incurred the plaintiffs bad interested
possession of the ship on behalf of themselves defendants. were But it is said , admitting that the
legally compellable to pay this
and the defendants, and such expenses were sum of 1441. 48. 10d.,
incurred with the authority and knowledge of the plaintiffs have itbeen is not accurate to say that
compelled to pay it.
thedefendants. What is the position . The plaintiffs could not
Joseph Walton (with him French, Q .C .) for the get possession of their shares or of the ship
defendants . - Both payments were made volun- | except by paying this sum . It is perfectly clear
tarily by the plaintiffs, and they cannot look to on authority that if a man is entitled to posses
the defendants for repayment. The plaintiffs sion of a cbattel, and he can only get possession
were under no compulsion to release the ship, of it by paying a debt which another is legally
and did so merely to benefit themselves. The compellable to pay, and he does pay it, the law
case of Johnson v. Royal Mail Steam 'Packet I will imply a promise on the part of the other to
410 - Vol. LXII., N .8.] THE LAW TIMES. (May 17, 1890.
CT. OF APP.] THE ORCHIS. [CT. OP APP.
repay what he disburses. But it is said , taking joint possession would be made with the consent
that to be the law , the facts of this case do not of the other tenants in common , and they would
warrant the implied promise from the defendants | be liable to reimburse their share. But I do not
to recoup the plaintiffs, because it is said that the base my decision on that, because I think from a
plaintiffs were the mortgagees of forty -four perusal of the correspondence it appears that the
sixty -fourth shares in the ship , and were not owners of the shares in this ship other than the
entitled to possession of the whole ship ; and it shares which were mortgaged to the plaintiffs
is also said that they could have protected the agreed that if the plaintiffs would go on disbursing
forty -four sixty-fourth shares mortgaged to the ship they would contribute their quota. I
them from sale under process of the court by hold that to be the result of the correspondence,
intervening and showing that they asmortgagees and therefore I hold that the plaintiffs establish
had a superior right or lien or claim to that of their claim to this item of 6721. 11s. ld . Of course
Leslie, the master . It is true they might have when I say establish their claim , I mean that they
done so, but it would not have given them have established their claim to a contribution
possession of the ship or their shares in the ship . from the defendants, the owners of sixteen sixty
What really was their right with reference to fourth shares, and are entitled to judgment for
this ship ? It is quite correct, as has been con sixteen sixty - fourths of that sum .
tended , to say they were not entitled to all, but From this decision the defendants appealed.
only to their shares ; but they were entitled to French, Q .C . and Joseph Walton , for the defen
possession , jointly, it is true, with the others, of dants, in support of the appeal.- - The plaintiffs
the whole sixty -four (sixty -fourth shares, and
they could not get that joint possession without paid both sums of money voluntarily and cannot
recover them from the defendants. They were
paying off this debt of Leslie 's. Their interven under no legal compulsion to pay such moneys.
tion as mortgagees and proof to the court that As to the master's claim , it was not entitled to
they had a superior claim to Leslie would not priority ; there was no maritime lien for it : ( The
have given them possession . There would still
have been a lien attaching to the other shares, Sara (ubi sup.) If so, the court could not have
and the court would not have taken its hands off claimsold the plaintiffs' shares to satisfy the master's
the ship merely on its being shown that the against. the The master merely had a right in rem
plaintiffs were mortgagecs of forty -four sixty personally liable property of those persons who were
fourths. Therefore, in order to get what they remedy was to have to him . The plaintiffs' proper
were entitled to , viz. joint possession with the action . [Lord ESHER, intervened in the master's
holders of shares other than Hornstedt's shares, not have released theM . ship R . - But the court would
until the master's
they really were compelled to pay this sum of
money. The law implies a promise to repay on action had been tried and determined and until
the part of those owners who are legally com then the plaintiffs would have been kept out of
pellable to pay, and on that promise the plaintiffs possession of their shares.]
The Heinrich Bjorn , 55 L , T, Rep . N . S. 66 ; 11
rely, and I hold that they are entitled to recover. App . Cas. 270°; 6 Asp. Mar. Law Cas. 1;
Then it was said that, even so, the plaintiffs here The Cella, 59 L . T. Rep. N . S. 125 ; 6 Asp. Mar.Lew
ought only to recover so much of the 4441.48. 10d. Cas. 293 ; 14 P . Div . 82 ;
as the defendants other than Hornstedt would Dickinson v. Kitchen , 8 E . & B . 789 ;
be liable to pay, and that in equity at all Edmunds v. Wallingford (ubi sup.).
events the present plaintiffs ought to bear Horn Assuming the plaintiffs are entitled to recover
stedt's proportion of that sum . I do not agree to in respect of the master 's claim , they are only
that proposition at all. One of the principal entitled to a proportion of it. As to the second
objects of having a mortgage security on land or item of claim , it is submitted that the corres
chattels is to secure the performance of the pondence shows it was a voluntary payment by
mortgagor's promise to pay, or, in other words, to the plaintiffs.
secure themortgagor's inability to pay — to secure Barnes, Q .C . (with him J. P. Aspinall), for the
the mortgagee against the insolvency of the plaintiffs, was called upon only as to the dock
mortgagor. That is what has been done here. expenses, but upon his stating that the dock
Why are those who have advanced money on the company had a lien for the same under the Bristol
mortgage of these shares, because themortgagor Dock Act 1881 and the Harbour, Docks, and
has been unable to perform his liability to them Piers Clauses Act 1847, the contention on this
and to the ship , why are they to forfeit part of
their security ? I fail to see it, and therefore I head was not furtber pressed by the other side.
hold that the plaintiffs are entitled to recover the Lord COLERIDGE, C .J. — This action, although
whole of the sum of 4441. 48. 10d . from the defen tried in the Probate, Divorce, and Admiralty Diri.
dants. There is only one other matter in dispute , sion , is in all its incidents and character a common
and that relates to the sum of 6721. 118. ld . law action. It is an action by the mortgagees of
expenses which the plaintiffs have incurred for the ship Orchis to recover two sums ofmoney , one ·
disbursements on behalf of this ship since they being 4411. 48. 10d ., the other being 6721. 118. ld.,
got possession of her jointly with the others. the rights as to which stand upon somewhat
Their possession was a joint possession . They different grounds. The action was tried by Butt,
have paid dock dues and other disbursements J., who decided in favour of the plaintiffs as to
during that possession . They allege that the both sums. Different points bave been raised
possession which they held wasnot for themselves as to the two sums, and somewhat different
alone, but for themselves and the tenants in arguments advanced . The sum of 4411. 4s. 100.
common in this ship . If terants in common and was money paid by the plaintiffs in an action to
holding possession in the joint interest of all, the release the ship of which they were mortgagees
presumption would be, unless it is rebutted , that from the hands of the Admiralty Court, which
payments made in the course of holding the I had seized the ship at the suit of hermaster who
May 17, 1890.] THE LAW TIMES . ( Vol. LXII., N . 8.- 411
CT. OP APP.] The ORCHIS. [CT. OF APP.
had brought an action against her owners for no remedy against the defendants, who had not
disbursements which he had made for necessaries been parties to the payments, and had not agreed
for the ship . Under the practice of the to the course of conduct out of which the neces
Admiralty Court he had a right, in order to sity for those payments arose. I confess I should
enforce the payment of his claim , to seize the have thought from the correspondence between
ship and take proceedings against her in rem . the parties, quite apart from Mr. Barnes'
That was done, and the seizure was according to argument, that there was great reason for holding
the practice of the Admiralty Court a legal the defendants liable. The substance of the
seizure. In those circumstance the mortgagees, transaction was this : Here is a ship which the
the plaintiffs in the present action, wanted to plaintiffs are anxious to sell. The plaintiffs only
get possession of the ship ; but they could not own a portion of the whole shares. The
do so as long as the hand of the Admiralty Court defendants own sisteen sixty-fourth shares.
was upon it, and therefore they paid 4411. 48. 10d. The plaintiffs say, “ We shall be glad to sell, but
for the release of the ship , which was in conse no doubt selling the whole ship will be a much
quence released . At the time when the mort better thing for allof us. We, unless you concur,
gagees paid the sum of 4411. 4$. 10d . to release can only sell our forty -four sixty -fourth shares.
the ship there was that amount of pressure which Will you agree to sell her as a whole ! ” The
the law requires in order to found a claim for answer in substance is , “ Yes, we will agree.” I
and enforce a repaymentof a sum of money paid should have said that in those circumstances,
by one person for the benefit, or partly for the without any more evidence, any man of business
benefit , of another. That principle of law was would know that it must take sometime to carry
laid down in the case of Edmunds v. Wallingford the negotiations attending the sale into effect,
(ubi sup.), which was decided by this court in and that the parties must be taken to have agreed
1885. The decision is directly in point. It was to the incidental expenses. They were men of
decided by Sir James Hannen, Lindley , L.J., business, and knew perfectly well that the ship
and myself, the judgment of the court being could not be sold without certain expenses being
delivered by Lindley, L .J. I will read so far as incurred . I quite admit that letters are not
is material two or three sentences from the always clear ; but assume they are not, and
judgment. He says : “ In order to bring the assumethere was no specific and definite consent
present case within the general principle alluded to the payment of the incidental expenses,
to above it is necessary that the goods seized Mr. Barnes has pointed out that by the Bristol
shall have been lawfully seized ; and it was Dock Act 1881, and the Harbours, Docks, and
contended before us that the son 's goods were Piers Clauses Act incorporated therewith , the
in this case wrongfully seized and that the Bristol Dock owners had a lien upon this ship
defendant therefore was not bound to indemnify in respect of her use of their dock ; and I under
them . But when it is said that the goods must stand Mr. Barnes to say that they had a right
be lawfully seized , all that is meant is that, as to sell the ship to pay themselves their dock dues.
between the owner of the goods and the person I should have said that the defendants, as men
seizing them , the latter shall have been entitled of business and co -owners in this ship , must have
to take them . It is plain that the principle has perfectly well known the state of affairs at
no application except where the owner of the Bristol, and what were the powers of the dock
goods is in a position to say to the debtor that owners. They having that knowledge, and
the seizure ought not to have taken place ; it is having arranged that the ship should lie there
because as between them the wrong goods have for the purpose of being sold, must be taken to
been seized that any question arises." Then the have agreed to bear the incidental expenses
learned jadge goes on to show what application which they knew would be incurred . More than
that principle had to the facts of that particular | that, they practically placed this ship in the dock ,
case. There is the principle clearly enough and did not take any steps to take her out.
stated . The result is this : where there is a Therefore, the dock dues were the direct and
seizure rightfully as between the parties (right immediate result of the act of their agent. I
fully I mean in point of law ), then theperson who therefore think that this appeal must bedismissed ,
claims for money paid in extricating property of and the judgment of Butt, J. affirmed .
his own from being subject to what is a lawful Lord ESHER, M . R . - The first point is of some
seizure , if in extricating that property he pays general importance, but the second point is a
money for the benefit of somebody else, he has mere question of considering the correspondence
a remedy over to recover that from somebody and what passed between the parties. This is
else. The principle laid down in Edmunds y / really a purely common law action, being an
Wallingford is directly applicable to the present action for money paid by the plaintiffs on behalf
case. The process of the Admiralty Court was of the defendants,there being an implied promise
properly applied to the seizure of the ship ; the to repay it . Before the Judicature Act the action
payment of the 4411. 48. 10d . was necessary to could not have been brought in the Admiralty
obtain the release of the ship , and therefore it Court, but must have been tried at common law .
follows that those who paid it can recover it from The only reason that it is necessary to consider
the defendants. The 6721. 118. ld . stands upon | Admiralty procedure is to see whether that
a somewhat different footing. It was argued by pressure which must exist in order to found an
counsel for the defendants that there was no implied promise to pay exists in this case. The
liability on their part to pay that sum ,because they | plaintiffs were mortgagees of forty -four sixty
had never agreed to the ship being kept in the fourth shares in this ship , and the defendants
dock , and that the ship remained in the dock owners of sixteen sixty- fourth shares. The
simply by the orders and on the responsibility of captain was employed by all the owners, by those
the plaintiffs. They argue that the plaintiffs who had mortgaged their shares and those who
must pay that sum of money,and that they have had not. They were not merely co-owners, but
CT. OP APP.) MAYOR, & c., OF BURTON-ON -Trent v. CHURCHWARDENS, & c., OF EGGINTON. (CT. OF APP.
also partners in the adventure. The mort. I point I agree with what has already been said.
gagees, the plaintiffs in this case, were not | Having regard to the correspondence and the
the employers of the captain . He was not other evidence, I have no doubt but that the
their captain , and they were not liable to him . defendants, whether they expressly stated it or
The captain made the disbursements for the | not, did agree with the plaintiffs that the ship
benefit of the ship ; he acted for the persons should be kept so as to be sold partly for their
who employed him . What were bis rights own benefit and partly for the plaintiffs ' benefit,
according to Admiralty law ? They were, in the and I therefore think that the defendants ought
event of his not being paid for the disbursements, co pay their share of the expenses of the ship
to have a warrant from the Admiralty Court to being kept in dock . I think the decision of Butt,
seize the ship. The effect of that, according to J. was correct, and that this appeal should be
Admiralty law , is that the ship from the time of dismissed .
her arrest is held as security for the captain 's FRY, L . J. - I am of the same opinion . The
claim in the event of his establishing it. The pressure upon the plaintiffs arose from the right
seizure of a ship by the Admiralty Court in an of the Admiralty Court to seize the entire vessel
action in rem is a good seizure against all the until the rights of the parties to the action before
world . Her seizure was, according to Admiralty 1 it were ascertained . It was argued that the
law , good asagainst themortgagees, although they shares of the plaintiffs in this vessel could not be
owed the captain nothing. What in point of fact made responsible to satisfy the master's claim
were the consequences of such a seizure by That may be so ; but, inasmuch as according to
Admiralty law against these mortgagees ? The the practice of the Admiralty Court the whole
mortgagees had acquired the right under their vessel was seized and would in ordinary course
mortgage of a joint possession of the ship , but by be detained till the rights of the parties were
reason of Admiralty law the Admiralty Court ascertained, the plaintiffs were put to that kind
could step in and prevent the mortgagees
exercising that right. They could not acquire of inconvenience or pressure which they might
reasonably try to escape by paying the claim
joint possession of the ship without an order of against the vessel. As to the second point, I
the Admiralty Court, and that order could not
be made, because the Admiralty Court would not concur in the conclusion of the court upon the
ground that the defendants were the principals
take off its hand until the suit between the captain
of the plaintiffs, who were in the position of
and those owners of the ship who had employed managing owners and as such had placed this
him was determined , and until his claim was vessel in the dock , and were therefore liable to
paid . If his claim was paid or bail put in the pay the incidental expenses.
ship would be released . But if the ship was
released what would be the position of affairs ? Solicitors for the appellants, Wynne, Holme,
Why, the mortgagees and co -owners would be and Wynne.
entitled to joint possession , and if either of them Solicitor for the respondent, F. B. Moss.
took possession , that would not only be for them .
selves but for others. Now the mortgagees
desired to bave possession ; they desired to Monday, Nov. 25, 1889.
exercise that right which , but for the Admiralty
Court, they would be entitled to do. They had (Before Lord Esher, LM .JJ.)
.R., LINDLEY and Lopes,
good reasons for wishing to do so, and it was in
many ways their interest to do so. How came Mayor, ALDERMEX , AND BURGESSES OF BURTON
ON - TRENT (apps.) v. THE CHURCHWARDEXS AND
the law to prevent them exercising their rights ?
Solely for the benefit of the defendants. They OVERSEERS OF THE PARISH OF EGGINTOS AND
OTHERS (resps.).
were liable ,and the Admiralty Court had the right
to seize the ship in consequence of their default. SAME (apps.) v. THE ASSESSMENT COMMITTEE OF
The debt was due from the defendants to the THE BURTON-on -TRENT UNION AND THE CHURCH
captain , and by reason of the defendants' default WARDEXS AND OVERSEERS OF THE TOWNSHIP OF
the law was put into effect. The law seized the STRETTON (resps.). (a )
property in which the plaintiffs had an interest , APPEAL FROM THE QUEEN'S BENCI DIVISION.
and to which in ordinary course they were entitled Poor-rate - Sewage farm - Purchase and occupa
to immediate possession . In those circumstances, tion of lands for the purpose of carrying out
in order to get immediate possession , they pay statutory works - Works incapable of yielding a
according to the law . The case is within the profit – Beneficial occupation - Hypothetical
decision of Edmunds v . Wallingford (ubi sup.). tenant- Parochial Assessment Act 1836 (6 & 7
It is within the rule that, if by reason of the
default of one person the property of another Will. 4, c. 96 ), s. 1.
becomes subject to seizure by the law , and In estimating the value atwhich hereditaments in
the person whose property is thus seized the occupation of the owner are to be rated for
pays the debt, the law implies a promise the relief of the poor, the rentwhich the owner
from the one whose debt is paid to repay and occupier of the premises would give for their
it to the person who paid it. A more just if he were not the owner is to be taken into
principle of law I carnot conceive. Were it not account.
the law , what would be the consequence ? Why Where a corporation are under statutory obliga
this, the debt
thatman of a debtor would be paid by tions to dispose of their sewage, and for
another not liable to pay it, and that the that purpose purchase land which they con
debtor would get the use of his property without vert into a sewage farm with the necessary
works, they are rateable in respect of such seroage
paying a penny. I therefore have no hesitation
in saying that I think the judge below was farm and works at the rent which they could
perfectly right upon this point. Asto the other I (a)Reported by Adam H. BITTLESTON, Esq., Barrister-at-Lar.
May 17, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 413
CT. OF APP.] MAYOR, & c., OF BURTON-ON - TRENT v. CHURCHWARDENS, & c., OF EGGINTON. [CT. OP APP.
give for them if they belonged to another person, , are content that it should be assessed and rated
although such sewage farm and works are at those amounts.
incapable of yielding a profit and could not be 7. The said sewage farm has been and is laid
let to any other person even at a nominal rent. out and worked suitably and economically by the
Reg . v. School Board for London (55 L . T. Rep . | appellants for the disposal of the sewage, and
N . S . 384 ; 17 Q . B . Div . 738) followed . they would not be able to carry out their said
statutory
This was an appeal from the decision of a Divi conveniently duties at any smaller expense or more
sional Court upon two special cases stated for the with elsewhere. If the said sewage farm
opinion of the court by an arbitrator to whom owneritshepresent appliances belonged to a private
the matters in dispute had been referred by the hire it as would let and the appellants would
a sewage farm at a yearly rent
consent of all parties from the courts of quarter sufficiently high to support the present rate.
sessions bolden respectively at Derby for the 8. The appellants contend that the said sewage
county of Derby, and at Stafford for the county farm , being incapable of beneficial occupation
of Stafford . in its present condition , is not rateable, or that
The two cases were argued together, and the if rateable it should be rated at the value for
first was in the following terms : which the samewould let to a hypothetical tenant
1. The appeal is against a poor rate for the from year to year, supposing it were not used
parish of Egginton, in which the appellants' as part of the sewage system , but were entirely
sewage farm was rated at 20001. gross estimated disconnected therefrom , and used for ordinary
rental, and 18001. rateable value. agricultural purposes .
2. The said sewage farm in the parish of 9. The respondents contend that it is not
Egginton consists of about 310 acres of land ; necessary to rateability that the premises as
it has been acquired and is laid out and worked actually occupied and utilised should yield or be
by the appellants under the provisions of the capable of yielding a commercial profit ; it is
Burton -on -Trent Corporation Act 1880 (43 & 44 sufficient if they could be let or would command
Vict. c. 139, local and personal), and the sewage a rent from any possible hypothetical yearly
is delivered on to the farm through a rising tenant, and that the appellant corporation ought
main, 4370 yards whereof is in the parish of to be taken into account as one of the possible
Egginton, from a pumping station of the appel. hypothetical yearly tenants, and that the present
lants situate in the parish of Stretton, in the rate is right and reasonable, inasmuch as it is
county of Stafford. found and admitted that the appellants, if they
3. After the sewage has passed through the were not occupying owners,might reasonably be
land, the effluent passes away through a falling expected and would actually be willing to pay
main into the river Trent. for the said premises a yearly rent sufficient to
4. Large sums of money were necessarily spent support the present rate.
by the appellants in levelling the surface of the 10. If the court shall be of opinion that the
farm and trenching the land, in clearing away appellants' contention is correct, the appeal shall
fences, making roads, straightening watercourses, be allowed , and the gross and net rateable value
and in doing what was necessary to enable the | appealed against shall be reduced to 4001. and
sewage to be put upon the land, and an elaborate 3101, respectively.
system of subsoil drainage was adopted . This 11. If the court shall be of opinion that the
system of drainage is necessarily on a much respondents' contention is correct, the appeal
larger scale than would be necessary on an shall be dismissed .
ordinary farm . The sewage itself containsabout The case in the second appeal was in the
three times as much matter in suspension as following terms :
ordinary, sewage, and so causes increased expense 1. The appeal is against a poor rate for the
on the farm in preventing the carriers and township of Stretton , in which the appellants'
gutters from becoming choked , and it is also of land and sewage-pumping station were rated at
low manurial value. 10501. gross estimated rental, and 8401. rateable
5 . The rising main traverses the farm to its value.
highest point, and at four places on its course 2. The land and sewage-pumping station the
there are branches commanded by valves opening subject of this appeal form part of the lands
into brick chambers above the ground ; from and works acquired and erected as described in
these chambers stoneware pipes run underground paragraph 2 of the first case herein .
in various directions, and upon the lines of these 3. For the purpose of dealing with and dis
are small concrete chambers commanded by posing of the sewage of Burton-on- Trent, it is
sluices, out of which the sewage is discharged necessary to have a pumping station with the
into open trenches or carriers on the land. By necessary engines and machinery to pump the
these arrangements the sewage can be delivered sewage on to the farm referred to in the first
on to any plot on the farm . case .
6. It is impossible to work the sewage farm 4. [Described the process through which the
exceptat a loss as long as it remains a sewage sewage was passed .]
farm , and if the appellants desired to let it as a 5 . All the machinery , buildings, and works at
sewage farm they would be unable to find anyone the pumping station were specially designed
to take it even at a nominal rent ; but, if dis and made for the work which they have to do,
connected from the sewage system of which it and cannot be used beneficially for any other
forms a part, it might be let to a tenant for purpose .
ordinary agricultural purposes at the same rent . 6 . The mains, land, and pumping station were
per acre as similar land in the neighbourhood, and are suitable and necessary to enable the
which would represent 4001. gross estimated appellants to dispose of the sewage on their
rental, and 3101. rateable value. The appellants I sewage farm , and all the works have been con
CT. OF APP.] MAYOR, & c., OP BURTON -ON- TRENT v. CHURCHWARDENS, & c.,OF EGGINTON. [CT. OF APP.
structed and carried out efficiently and economi- | an occupying owner is not to be excluded in
cally for the object in view , but they would be looking for a possible tenant. There is no
of no substantial value to anyone except to the distinction between the position of the corpora
appellants and for the above object. tion in the present case and that of the School
7. It is impossible to work the sewage farm Board in that case. The principles laid down in
except at a loss, and the said land and pumping the School Board case were approved of in the
station while used as part of the sewage system subsequent case of Owens College v . Overseers of
are incapable of yielding a profit or advantage, Chorlton -upon -Medlock (56 L . T. Rep. N . S . 373 ;
except that they enable the appellants to convey | 18 Q . B . Div. 403). The judgment of the court
the sewage on to the said sewage farm , but the below proceeded upon the decision in The
appellants would not be able to carry out their | Metropolitan Board of Works v . Overseers of West
statutory duties as to the disposal of sewage Ham (23 L . T. Rep . N . S. 490 ; L . Rep. 6 Q . B .
at any other place at a smaller expense. If the 103), which followed the decision in Reg. v. The
land and pumping station in question belonged Metropolitan Board of Works (19 L . T. Rep . N . S.
to a private owner he would let and the appellants 349 ; L . Rep. 4 Q . B. 15) ; but in those cases there
would hire them at a yearly rent sufficiently was no finding that the occupying owners would
high to support the present rate. have hired the sewers, if they had belonged to
8. Except to be used for the purposes of the another person.
Burton -on-Trent sewage system , the value of Bosanquet, Q .C . (J. H . Etherington Smith with
the said land and premises in the parish of him ) contra. - It is found in the special case that
Stretton would not be more than 1001. gross it is impossible to work the sewage farm except
estimated rental, and 751. rateable value. at a loss as long as it remains a sewage tarm , and
9. The appellants contend that the said if the corporation desired to let it as a sewage
pumping station and premises, being only farm they would be unable to find anyone to take
capable of beneficial occupation if used for other it even at a nominal rent. It is therefore
than sewage purposes, should be rated at the incapable of beneficial occupation in its present
value for which the same would let to a hypo condition . It cannot be said that the corporation
thetical tenant from year to year, supposing have any beneficial occupation of it, as they carry
they were not used as part of the sewage system ,
but were entirely disconnected therefrom , and itstatutory
on at a loss for the purpose of fulfilling their
applied to such useful purposes as they might being the obligations.
owners ought Moreover, the corporation
not to be taken into
be made available for consideration as possible tenants. It is submitted
10 . The contention of the respondents was that, where premises are onerous in the hands of
the same in this case as in the first case. the existing occupier, they cannot be rated.
11. If the court shall be of opinion that the Sewage and other works that cannot yield a
appeilants' contention is correct, the appeal profit to anyone are never rateable :
shall be allowed , and the gross and net rateable Reg. v . The Metropolitan Board of Works (ubi sup.) ;
value appealed against shall be reduced to 1001. The Metropolitan Board of Works v. Overseers of
and 751. respectively . West Ham (ubi sup.) ;
12. If the court shall be of opinion that the Corporation of Worcester v. Droitwich Assessment
respondents' contention is correct, the appeal Committee, 36 L . T . Rep. N . S. 186 ; 2 Ex. Div. 49 ;
Mersey Docks and Harbour Board v . Overseers of
shall be dismissed. Llaneilian , 52 L . T . Rep . N . S . 118 ; 14 Q . B . Div.
The Divisional Court (Lord Coleridge, C.J. 770.
and Stephen , J.) held that the case was governed | Reg. v. The School Board for London (ubi sup.)
by The Metropolitan Board of Works y. West is distinguishable, as there the premises were
Ham (23 L . T. Rep . N . S . 490 ; L . Rep .6 Q . B . 193), I capable of yielding a profit, and the School
and that, upon the principles laid down in that Board had power to rent premises for the purpose
case, the sewage farm was not rateable to the poor of a school. It is submitted that the corporation ,
rate, being incapable of beneficial occupation , under their private Act, have no such power in
but that the pumping station was rateable at this case. The judgment of Bowen, L .J., in the case
the value for which the same would let to a of Owens College v . Overseers of Chorlton -upon
tenant from year to year for purposes other Medlock (ubi sup.) supports the contention that
than those of the drainage system : (61 L . T. Rep. the corporation are not rateable in the present
N . S . 368 .) case.
From this judgment the respondents appealed. Sir Richard Webster (A .-G .) in reply . — The
Fullarton (Sir Richard Webster, A .-G . with corporation have the power to rent land for the
him ) in support of the appeal.- Any premises purpose of a sewage farm under sect. 27 of the
Public Health Act 1875 in addition to the power
that are capable of a beneficial occupation are given to them by their private Act to purchase
rateable ; it is not necessary that they should be
capable of yielding a commercial profit. The land for that purpose.
test of rateability, is whether a tenant could be Lord ESHER, M .R . - It is not surprising that
found who would give a rent for the premises ; there should be differences of opinion in these
the test of value is, what rentsuch a tenantmight rating cases. The decisions in them have been
reasonably be expected to give. It is found in progressive. It has been argued , as to points
both these special cases that, if the respective that were not directly raised in the earlier
premises belonged to a private owner, he would cases, that they were in effect decided by the
let and the corporation would hire them at a judgments in those cases. But, when those
yearly rent sufficiently high to support the judgments are examined , it seems to me that
present rate. The decision of this court in Reg. the courts, having regard to the difficulties of
v. School Board for London (55 L . T . Rep. N . Š . the law of rating , wisely would not give an
384 ; 17 Q . B . Div. 738) is conclusive to show that I opinion on any question that they were not
May 17, 1890.) THE LAW TIMES. [Vol. LXII., N . S. - 415
CT. OF APP. ] MAYOR, & c., OF BURTON -ON - TRENT v. CHURCHWARDENS, & C ., OF EGGINTON . [ CT. OF APP .
expressly asked . There is no doubt that in some 1 Taking, however, the report of his judgment as it
of the earlier cases it would have been possible appears in the Law Journal Reports (56 L . J.
to have raised points that have been decided 29, M . C .), I defy anyone to find a difference in
since. But it cannot be said that those points the three judgments. The distinction raised in
were decided in the earlier cases, when the that case had been foreseen and was pointed
courts deliberately abstained from deciding out in the School Board case. That distinction
them . Now , the point in the present case, which is that, if you have an owner in possession who
is whether the actual tenant can be taken into cannot under any circumstances be a tenant, you
account in considering what rent a hypothetical cannot then rate the premises upon any hypo
tenant would give, seems to me not to have thesis of the rent the existing occupier would
been raised and decided till the case of Reg . v. give. The facts in the Owens College case were,
School Board for London (ubi sup.). It might | that the property rated consisted of certain lands
have been decided in previous cases, but it was which a body of governors, incorporated under
not. It is said that the point in question might the name of the Owens College, had purchased
have been raised and decided in the case of as a site for the college, and certain buildings
Metropolitan Board of Works v. West Ham which they had erected as a college upon that
(ubi sup.). Perhaps it might. But there was site, such land and buildings being acquired and
this great peculiarity about that case, that it erected by them under the powers of an Act of
was left to the court to draw inferences of fact. Parliament. The Act of Parliament did not
They certainly drew this inference, that no one, authorise the governors to set up a college any
neither the Metropolitan Board of Works, who where, by becoming tenants of land or of an
were the actual occupiers, nor anyone else, would existing building; they were only authorised
have given anything for the land occupied by | for the purpose of erecting the college to buy
the embankment in respect of which the assess land. It was held that, as they could not let the
ment in that case was made ; and that is directly buildings or land, and as they could not take
contrary to the findings of fact in the present them themselves except by purchase, they could
case and in the case of Reg. v . School Board for | not become actual tenants, and therefore were
London (ubi sup.). In the case of The Mersey excluded from the class of hypothetical tenants.
Dock and Harbour Board v. Overseers of Llaneilian | In the present case, you are dealing with a cor
(ubi sup.), as to the rateability of a lighthouse, poration, who may carry out the duty imposed
this point was never even glanced at. I think , upon them of disposing of their sewage, either
as I have said , that the point was first raised by purchasing or, as the Attorney -General
and decided by the court in Reg. v . School Board pointed out, by renting land . That being so , is
for London . In that case the judges stated | it not within the very terms of the decision in
distinctly what the ground of their decision was. Reg. v. School Board for London (ubi sup.) ?
The ground of the decision was that, although it There is no room here for drawing inferences of
was true that the premises in question were a fact, because you have an express finding that,
school-house , and that no tenant could be found if the corporation had not bought this farm ,
who would be willing to take them as a school. they would have rented it, and must have rented
house, except theactual tenant, the School Board, it, to use precisely as they are using it, at a rent
who could make no profit out of them , yet, when sufficient to support this rate. The occupiers
the very words of the Act came to be regarded , and owners of these premises, therefore, would
they in effect said that what was to be looked have paid a rent for them , to use them as they
for, in order to make premises rateable, was a are now using them . Still agreeing perfectly,
tenant who would pay rent. If you find a tenant as I do, with the School Board case, that finding
who is willing to pay a rent, he must be taken seemsto me conclusive. I am of opinion, both
into consideration in estimating the annual as regards the pumping station and the sewage
value. That is not to say that you are to bring farm , that the higher rateable value is the
down a man from the moon and consider him correct one, and that the appeals should be
as a possible tenant ; the tenant whom the Act allowed .
supposes to be willing to pay a rent must be a LINDLEY, L .J. -- The question we have to decide
reasonably hypothetical tenant for the property depends upon the construction of the Parochial
used as it then is. Long before the School Board Assessment Act 1836 , sect. 1, which runs thus :
case, it had been said that if a tenant could be “ No rate for the relief of the poor in England
found who would pay a rent, itmade no difference and Wales shall be allowed by any justices, or be
that he would make no profit. What was decided of any force, which shall not be made upon an
in the School Board case is that, if the person estimate of the net annual value of the several
using the premises is a person who would be hereditaments rated thereunto ; that is to say,
willing to pay a rent for them , he cannot be of the rent at which the samemight reasonably
shut out from the consideration of what a tenant be expected to let from year to year, free of all
would give. No doubt, there will generally be usual tenants' rates and taxes, and tithe commu
other people, besides the actual occupier of any tation rentcharge,” with deductions for repairs
particular premises, who would be willing to pay and insurance . We have to apply that section
a rent for them ; but the question is whether to the facts of this case. The question , which is
you are to exclude the person who would be one of great practical importance, is whether an
most likely to pay a rent. With regard to the owner and occupier, who would not take a
casc of Croens College v. Overseers of Chorlton particular property unless he was compelled to
upon -Medlock (ubi sup.), Mr. Bosanquet took the do so by Act of Parliament, and who cannot use
judgment of Bowen , L . J. from the Law Reports, it for profitable occupation, can be taken into
and said that there were expressions in it account in estimating the rent at which it might
which showed that he was taking a different reasonably be expected to let. That question is
view from the otber members of the court. I not raised now for the first time. It was raised
Ct. Or App.] The BRISTOL, CARDIFF, & SWANSEA AERATED BREAD COMPANY v. Maggs. [Chan. Div.
in the case of Reg. v. School Board for London not an exceptional tenant who was forced by the
(ubi sup.). It is no doubt a difficult question . circumstances of the case to become an occupier
But the difficulty was overcome in that case, at a loss. But we are bound by those decisions,
where it was held that, although the School Board and the appeals mustbe allowed.
for London were the owners of the premises which Appeals allowed.
they occupied , and although they could make no Solicitors for the appellants, Geare, Son , and
profit out of them , the rent which they might be
expected to pay if they had not been the owners Pease, for Drewry, Burton-upon -Trent.
H
was not to be excluded in estimating the rent at Solicitors for the respondents, J. and C .
which the premises might reasonably be expected Robinson and Wilkins, for Henry Goodyer, Burton
to let. I do not find that the question has ever upon-Trent.
been raised except in that case. It might have
been raised in Reg. v. Metropolitan Board of
Works (ubi sup.), in Metropolitan Board of Works HIGH COURT OF JUSTICE .
v . West Ham (ubi sup.), and in Mersey Docks and
Harbour Board v . Overseers of Llaneilian (ubi CHANCERY DIVISION .
sup.) ; but in none of those three cases is there a Feb . 19 and March 5 . .
finding of fact such as the following one in the (Before Kay, J.)
present case : “ The sewage farm has been and is
laid out and worked suitably and economically by THE BRISTOL, CARDIFF, AND SWANSEA AERATED
the appellants for thedisposal of the sewage, and BREAD COMPANY LIMITED v. Maggs. (a )
they would not be able to carry out their statutory Contract — Letters — Negotiation - New term –
duties at any smaller expense or more conveniently Rescission - Specific performance.
elsewhere. If the sewage farm with its present The defendant A . offered his business for sale to
appliances belonged to a private owner he would the plaintif company by letter . The plaintiffs'
let and the appellants would hire it as a sewage agent B . accepted the offer . A . then sent to B. a
farm , at a yearly rent sufficiently high to support formal memorandum of agreement for approval.
the present rate.” That finding seems to me all B .madematerial alterationsin thememorandum .
important, and really to decide this case. The After some negotiation A . cancelled the agree
case of Owens College v. Overseers of Chorlton -upon ment.
Medlock (ubi sup.) seems to me to be clearly On action by the plaintiff company for specific
distinguishable. I confess that at first I could performance of the alleged agreement :
not see how the School Board case could stand Held , that though the two original letters relied on
with Metropolitan Board of Works v. West Ham would , if nothing else had taken place, have been
(ubi sup.)and Mersey Docks and Harbour Board sufficient evidence of a complete agreement, yet
v. Overseers of Llaneilian (ubi sup.) ; but, upon the plaintiffs had themselves shown that the agree
consideration , I think that the point not having ment was not complete by stipulating afterwards
been directly raised in the two latter cases is for an important additional term , which kept the
sufficient to distinguish them . I see no difference whole matter of purchase and sale in a state of
in principle between the sewage farm and the negotiation only, and that the defendant was
pumping station , and I think that both appeals therefore at liberty to put an end to the negotia .
should be allowed . tion as he did , bý withdrawing his offer. Action
LOPES, L .J. - In my opinion the question in dismissed with costs.
this case is decided by the judgments in the Criticism in Bolton Partners v. Lambert (60 L. T.
cases of Reg. v. School Board for London (ubi sup .), Rep. N . S., at p . 691 ; 41 Ch . Div., at p . 306 ) by
and Owens College v. Overseers of Chorlton -upon Cotton , L.J. on Lord Cairns' judgment in Hussey
Medlock (ubi sup.). I think that this case is v. Horne-Payne dissented from .
brought within the principle laid down in those This was an action for the specific performance
decisions by the finding that, “ If the sewage of an agreement alleged by the plaintiffs to have
farm with its present appliances belonged to a been entered into between themselves and the
private owner he would let and the appellants defendant by correspondence. The letters and
would hire it as a sewage farm , at a yearly rent
sufficiently high to support the present rate." I other facts are set out fully in the judgment.
have a difficulty in reconciling the School Board Levett for the plaintiffs. — The first two letters
case with the case of Metropolitan Board of Works form a complete contract :
v . West Ham (ubi sup.). It is true that the point Bonnewell
Div . 70 ;
v. Jenkins, 38 L. T. Rep. N .S. 581; 8 Ch.
decided in the School Board case was not
expressly raised by the terms of the case in Bolton Partners v. Lambert,60 L. T. Rep . N . S.687;
41 Ch . Div. 295.
Metropolitan Board of Works v . West Ham ; but I KAY, J. referred to Hussey v. Horne- Payne (41 L . T.
cannot help thinking that the judges did decide Rep . N . S . 1 ; 4 App. Cas. 311.] This case is dis
the same point in their judgments. If, however , tinguished from Hussey v. Horne-Payne, In Bolton
the two cases are not reconcilable, the West Ham
case must be taken to have been overruled by the Partners v . Lambert, at p . 691 of the Law TIMES
School Board case. If the point had not been Reports, and p. 306 of the Law Reports, Cotton,
L . J. says : “ Then it was said that other terms
decided by Reg. v. School Board for London , and were
Ovens College v. Overseers of Chorlton -upon introduced by subsequent letters, and the
Medlock , I should myself have doubted whether case of Hussey v. Horne-Payne was relied on as
a tenant who was compelled by statute to occupy, showing that in such circumstances there was no
concluded contract. But the judgment of Lord
and who suffered a loss by his occupation , was Cairns
the hypothetical tenant that was contemplated in that case shows that it was not because
by the statute. I should have been inclined to the subsequent letters raised a doubt that it was
think that the statute meant an ordinary tenant, I (a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law .
May 17, 1890.) THE LAW TIMES . (Vol. LXII., N . 8.- 417
Chan. Div .] THE BRISTOL, CARDIFF, & SWANSEA AERATED BREAD COMPANY V. Maggs. [CHAN. Div.
held that the two original letters did not form clause. Thesolicitor declined ,and ColonelGuthrie
a completed agreement, but because the two went immediately to the defendant, who, he said,
original letters of themselves contained terms | told him that he wished to have the agreement
which raised the doubt.” In this case the two | cancelled , because his son was very much against
original letters form a complete contract, and the his parting with the shop . The defendant, he
other terms introduced by subsequent letters do says, did not suggest that there was no agree
not affect that contract. ment, but asked him to use his influence with his
Warrington for the defendant. — Thetwo letters co -directors to get the sale cancelled . Thememo
were not intended by either party to constitute, randum of agreement contained several terms not
and do not in fact constitute, a binding agree expressed in the letters; for example , it provided
but were only steps in a negotiation which for the book -debts and books of account being
ment,intended
was to result in the conclusion of a reserved to the vendor, and for the payment of a
formal agreement, the negotiation being broken deposit of 451. ; it fixed the 24th June as the
off before an agreement was concluded . The day for completion of the purchase and delivery
plaintiffs introduced new terms, one of them of possession ; it provided for delivery of abstract
of the most important nature, into a formal of title and the date from which it was to com
memorandum of agreement : mence,and other matters, all which might possibly
May v. Thomson , 47 L . T. Rep. N . S. 295 ; 20 Ch . be treated asmore or less formal. The contested
Div . 705 ; stipulation as to restricting the vendor from
497..
Preston v. Luck, 27 Ch. DivIV..497 carrying on a like business to that which he had
Levett in reply . Cur. adv. vult. sold was not by any means a matter of form .
After some conflict of opinion it has been decided
March 5. - Kay, J. delivered the following | by the Court of Appeal in Pearson v. Pearson
written judgment. — This action seeks specific (51 L . T. Rep. N . S . 311 ; 27 Ch. Div. 145) that a
performance of a contract alleged to beconstituted man who sells the goodwill of a business may not
by the following letters : - " Cardiff, May 29, 1889. only set up a similar business next door and say
Dear Sir, - I beg to submit to you the following that he is the person who carried on the old
conditions for disposal of my business, carried on business, but that he may also solicit the cus
at 15 , Duke-street, Cardiff . Lease and goodwill tomers of the old business to continue to deal
4501. (lease from 29th Sept. 1888 , for fourteen with him , although by these proceedings hemight
Fears ). All fixtures, fittings, utensils, & c., stock not only destroy all benefit to the purchaser of
in -trade connected with the premises to be taken the thing which he had bought, but might recover
at valuation . Yours truly, R . Maggs. This offer | to himself the actual possession of it. Such a
to hold good for ten days.” “ Cardiff, June 1, i fraudulent proceeding, according to the decision ;
1889. Dear Sir, - On behalf of the Bristol,Cardiff, | cannot be prevented by any court of law or
and Swansea Aerated Bread Company Limited , equity . It follows that the stipulation which the
I accept your offer for shop and lease, & c., 15, company's solicitors introduced into the draft
Duke-street, Cardiff. Yours truly, John GUTHRIE was one which they were not entitled to insert if
(for B ., C ., and S . Aerated Bread Company), the two letters which I have read were a complete
Mr. R . Maggs, 15, Duke-street, Cardiff.” Colonel contract. In other words, they were trying to
Guthrie, the writer of the last letter, was a obtain an additional and most important con
director of the plaintiff company, and wrote with cession from the vendor. Now , put aside for a
the authority of the board. On the 2nd June moment the Statute of Frauds and decided cases,
1889 the defendant's solicitor sent to him a formal and suppose this to pass in conversation : A .
memorandum of agreement for approval, with an offers to B . his business, lease and goodwill, for
accompanying letter. This memorandum was 4501. B . says , “ I accept.” A day or two after
altered by the plaintiffs' solicitors, mainly by the wards B . asks A . to engage not to carry on a
insertion of a clause preventing the vendor for similar business within a distance of five miles.
five years from carrying on a like business within A . answers, “ I cannot agree to that, but I will if
the borough of Cardiff or within a distance of you say three miles.” B . takes time to consider ,
fivemiles from the Town-hall. Thememorandum saying he will send an agent next day to settle
so altered was returned on the 4th June, with the terms. The agent does not go the next day,
a letter of the plaintiffs' solicitors. On the 5th and A . accordingly says to B ., “ I put an end to
June the defendant's solicitor wrote sending the the matter." No one could doubt that would be
draft again to the plaintiffs' solicitors, with a a 'continuous negotiation, and that B . could not
modification of the proposed additional clause. say, “ I will disregard all that followed the
On the 6th June the plaintiffs' solicitors wrote acceptance of the prior offer, and insist on there
that they could notthemselvesagreeto the proposed being a complete contract by that acceptance."
modification , but that they had asked Colonel Well then , still leaving out of sight the statute
Gutbrie to call about it . On the 7th the de. and authorities, suppose all this to take place by
fendant's solicitor wrote that he regretted the letters between A . and B . instead of conversation,
plaintiffs' solicitors had not agreed to the terms it is obvious the result must be the same. Some
of the draft contract, and continued : “ Colonel of the letters being by the principals and some
Guthrie has not been near me, and by my client's by the solicitors could not make any difference.
instructions I beg to inform you that he declines Now , what effect has the Statute of Frauds upon
to proceed further in the matter.” On the 8th such a transaction ? Certainly it was not in
Colonel Guthrie saw the defendant's solicitor and tended to turn a negotiation into an agreement.
said he had come to settle the agreement which There was danger fraud and perjury if parol
bad been returned to him . The answer was that | agreements as to ofland could be enforced . To
he was too late ; the defendant had made other obviate this it was enacted , “ No action shall be
arrangements. He replied he was prepared to brought whereby to charge . . . any person
sign the agreement leaving out the disputed i . . . upon any contract or sale of lands . . .
418 — Vol. LXII., N. 8.] THE LAW TIMES. [May 17, 1890.
CHAN . Div .] THE BRISTOL, CARDIFF, & SWANSEA AERATED BREAD COMPANY v.Maggs. [Chan . Div.
unless the agreement upon which such action ! these other terms;" and he finds the result to be
shall be brought, or some memorandum or note " that there was in point of fact no completed
thereof, shall be in writing and signed by the agreement between the parties." Lord Cairns
party to be charged therewith , or some other then considers the words which he had put aside,
person thereunto by him lawfully authorised .” and treats them as meaning only that the title
Lord Mansfield , in 1764, pointed out that it had must be investigated and approved in the usual
often been said of this statute “ that it should way. Lord Selborne concurs both in the reasons
never be so turned , construed , or used as to | and the conclusion of Lord Cairns, and adds that
protect or be a means of fraud :” (Carter v. Boehm , he cannot agree " that because two letters were
3 Burr. 1905.) This has been repeated again and written , by which the conditions required by the
again since his time, and, very recently, in Jervis | Statute of Frauds would have been satisfied if
V . Berridge (28 L . T . Rep . N . S . 383; 8 Ch. App. there were nothing outside those letters to the
360 ), and in Hussey v. Horne- Payne (41 L . T. Rep. contrary, therefore there is here such a concluded
N . S . 1 ; 4 App. Cas. 311), Lord Selbore said, in agreement as a court of equity ought specifically
effect, that the Statute of Frauds was a weapon of to perform , without regard to what preceded , or
defence, not offence. The real truth is, that the what followed . The observation ," he says, " has
statute was not meant to affect contracts in any often been made, that a contract established by
way, but only the evidence of them . It does not letters may sometimes bind parties who, when
provide that a memorandum duly signed shall be they wrote those letters , did not imagine that
a contract, but only that no contract concerning they were finally settling the terms of the agree
land shall be proved by any lower evidence than ment by which they were to be bound ; and it
such a written memorandum . The question appears to me that no such contract ought to be
whether the two letters relied on in this case held established , even by letters which would
were a complete contract, or were only steps in a otherwise be sufficient for the purpose, if it is
negotiation , is altogether independent of the clear upon the facts that there were other con
Statute of Frauds. Then I must consider the ditions of the intended contract beyond and
authorities on the subject. Is there anything in
besides those expressed in the letters which were
them which prevents my deciding this case still in a state of negotiation only , and without
according to what seems to me the common sense the settlement of which the parties had no idea
view of the transaction ? In Hussey v. Horne of concluding any agreement. I adhere (Lord
Payne (41 L . T . Rep . N . S . 1 ; 4 App . Cas. 311) Selborne continued ) to what I said when sitting
Lord Cairns, dealing with a case in which it was in the Court of Chancery in the case of Jervis v.
proposed to satisfy the requirements of the Statute | Berridge (28 L . T . Rep . N . S ., at p . 483 ; 8 Ch. App.,
of Frauds through the medium of letters which at p . 360) ,thatthe Statuteof Frauds ' is a weapon of
had passed between the parties, said this : “ It is defence,' and does not make any signed instru .
one of the first principles applicable to a case of ment a valid contract by reason of the signature,
the kind that when you have to find your con if it is not such according to the good faith and
tract, or your note, or memorandum of the terms real intention of the parties ;' and I think it
of the contract, in letters, you must take into especially important to keep that principle in
consideration the whole of the correspondence view when, as in the present case, it is attempted
which has passed . You must not at one par to draw a line at one point of a negotiation , con
ticular time draw a line and say, " We will look at ducted partly by correspondence and partly at
the letters up to this point and find in them a meetings between the parties without regard to
contract or not, but we will look at nothing the sequel of the negotiations, which to mymind
beyond.' In order fairly to estimate what was plainly shows that terms of the intended agree
arranged and agreed between the parties you ment which were of great practical importance,
must look at the whole of that which took place and were so regarded on both sides, then remained
and passed between them .” Lord Cairns then unsettled , and were still the subject of negotia
considered the two letters which in that case it tion between them ." I have examined that case
was contended constituted the agreement, putting carefully, because it has been suggested that the
aside the words “ subject to the title being judgment of Lord Cairns proceeds upon the
approved by our solicitors," which occurred in circunstance that the two original letters con
the latter of them . He found that in the previous tained terms which raised a doubt whether there
negotiation there had been a verbal suggestion was a concluded contract, and an observation to
by one of the parties, which was acquiesced in by that effect of one of the judges of the Court of
the other, that the purchase money should be Appeal in Bolton Partners v. Lambert (60 L . T . Rep .
paid by instalments. What those instalments N . S ., at p. 691 ; 41 Ch. Div.,at p. 306 ) is relied on .
were to be was to be thereafter settled . There I have read Lord Cairns' judgment more than
was a subsequent negotiation about this, but once, and, with deference, I do not think that to
before it was ended one of the parties died . The be a just criticism . Both he and Lord Selborne
conclusion drawn by Lord Cairns from what seem to me to lay down broadly that, where it is
the appellant himself told was, “ that the two sought to make out a binding contract from
original letters which , if you took them alone correspondence, the whole of it as well as the
without any knowledge supplied to you of the verbal communications at interviews should be
other facts of the case,might lead you to think regarded , and it is not right to stop at one letter
that they represented and amounted to a complete of the correspondence which with what preceded
and concluded agreement, yet really were not a might constitute a sufficient agreement within
complete and concluded agreement, that there the Statute of Frauds, whereas if the whole of
were to be other terms which at that time had the correspondence were considered , and par
not been agreed upon , that efforts were made ticularly, as Lord Selborne says, “ the sequel " of
afterwards to settle those other terms, and that the communications, it may clearly appear that
these efforts did not result in a settlement of I those letters were in truth only part ofan uncom
May 17, 1890 .) THE LAW TIMES. (Vol. LXII., N . S.- 419
CHAN. Div.] MANCHESTER ROYAL INFIRMARY V . ATTORNEY-GENERAL. [Chan, Div.
pleted negotiation. As was said by Lindley, L .J., | plaintiffs had no right, according to existing
decisions, at law or in equity. It was suggested
in May v . Thomson (46 L . T. Rep. N . S., at p . 300 ;
20 Ch.Div.,at p.723), “ the case of Hussey v .Horne
that the ten days during which the offer was to
Payne, before the House of Lords, shows that we remain open had not expired when it was with
must look at the whole correspondence from drawn . But this can make no difference. The
beginning to end. Of course, if we find a few offer was not a contract, and the term that it
letters which are perfectly plain in themselves should remain open for ten days was therefore
which show an agreement, and the parties do not not binding. It has often been held that such an
follow them up by further correspondence, we offer may , notwithstanding, be withdrawn within
have a comparatively easy case ; but where eachi the ten days: (Routledge v. Grant, 4 Bing. 653 ;
letter is followed immediately by another which Cooke v . Oxley , 3 T. R . 653 ; Dickinson v . Dodds,
suggests something else as a topic of further | 34 L . T. Rep . N . S . 607 ; 2 Ch. Div . 463.) I decide
discussion , it becomes most dangerous to draw a this case against the plaintiffs upon the ground
line after any particular letter.” With that view that, although the two letters relied on would , if
of the decision of Hussey v. Horne- Payne I nothing else had taken place, have been sufficient
entirely agree, and so understood it is a valuable evidence of a complete agreement, yet the plain
and important authority pointing out and tiffs have themselves shown that the agreement
obviating the great danger which arose from was not complete by stipulating afterwards for
the course of modern decisions upon contracts an important additional term , which kept the
by correspondence, namely, that the Statute of whole matter of purchase and sale in a state of
Frauds which was passed merely to alter the law | negotiation only, and that the defendant was
as to evidence of a contract might be used as a therefore
tions, as he at liberty to put an end his
did by withdrawing to the negotia
offer. The
trap to catch an unwary vendorwhen or purchaser,
the real action must be dismissed with costs.
and bind them by a contract
intention was negotiation only . The only differ- Solicitors : Prior. Church, and Adams, for
ence between that case and the present is that I Meade-King and Bigg, Bristol: Field , Roscoe, and
there had been before the letters in question were
written an understanding, not expressed in them , | Co., for G . F . Hill, Cardiff.
that the purchase money was to be paid by
instalments, the amount of which remained to be
settled . In this case there was no anterior Dec. 17, 18 , and 21, 1889.
understanding as to the restriction of the vendor's
right to carry on a similar business to that sold . Re MANCHESTER(Before North , J.)
ROYAL INFIRMARY ; MANCHESTER
The negotiation as to that arose after the two ROYAL INFIRMARY V. ATTORNEY-GENERAL . (a )
letters relied on had passed. But it was begun
by the solicitors of the plaintiffs, who are now Trustee - Corporation holding funds for charitable
seeking to rely on the two letters only . Their purposes — Power of investment- Trust Invest.
position therefore is, that they were not satisfied ment Act 1889 (52 g. 53 Vict.c. 32 ),ss. 3,5, 6,7,9 .
with the terms of the two letters, but themselves A corporation incorporated by a special Act, and
reopened the matter by negotiating for another holding funds for charitable purposes, is a trustee
most important advantage ; and having thus withinActthemeanihg
treated the two letters as part of an incomplete ment 1889, and ofis entitled
sect. 3 oftotheinvest
Trust
anyInvest
trust
bargain , it would be most inequitable to allow moneys in its hands on any of the securities men
them to say, “ Although we thus treated the tioned or forbidden
referred to in that section , unless
matter as incomplete and a negotiation only, yet expressly to do so by the instrument
the defendant had no right to do so , but was (if any) creating the trust.
bound by a completed contract." In my opinion A trustee cannot, however, sell existing securities
the decision of Hussey v. Horne- Payne completely for the purpose of reinvesting the proceeds in the
covers this case. I understand it to mean that, if securities authorised by contains
sect. 3, unless the toinstru
two letters standing alone would be evidence of ment creating the trust a power vary
& sufficient contract, yet & negotiation for an securities.
important term of the purchase and sale carried
on afterwards is enough to show that the contract This was an originating summons by the plain
was not complete, and , as far as my own judg . tiffs to have it determined whether the plaintiffs,
or their trustees, treasurers , or managers were
ment is concerned , I entirely agree in the justice entitled
and equity of such a rule. Cases have been to invest the funds and moneys belong
referred to in which a subsequent discussion as ing to the plaintiffs on such securities as are
to the preparation of a formal contract, even specified or referred to in sect. 3 of the Trust
Investment Act 1889, and whether that Act
where the letters mentioned that such a contract applied
is contemplated , has been held not to prevent the to the Manchester Royal Infirmary and
letters from being themselves a binding contract. the funds and moneys thereof.
There are many such decisions, and the distinc. The Manchester Royal Infirmary was regulated
tions between some of them are remarkably fine by four special Acts of Parliament. The first
(see Crossley F. Maycock , 18 Eq. 180 ) ; bnt they (48 Geo . 3 , c. 127) was passed in the year 1808 ,
was entitled “ An Act for enabling Sir
are all subject to the observation that the formal and
document contemplated is one which is to put Oswald Morley , Baronet, to grant certain lands
into more correct form a complete agreement, and the hereditaments in the parish of Manchester,
not to alter that agreement by adding a sub inpurposes County Palatine of Lancaster, for the
of the Manchester Public Infirmary,
stantial term to it. I have already pointed out
that the subsequent negotiation in this case was Dispensary, Lunatic Hospital and Asylum , and
in no sense concerning a matter of form , but was for vesting the property and effects belonging to
a negotiation for an additional term , to which the (a) Reported by G . E . JEFFERY, Esq., Barrister-at-Law.
Div .1
Chan. Div.] MANCHESTER
MA ROYAL INFIRMARY V. ATTORNEY-GENERAL. [Chan . Div .
the said charity in trustees for the benefit of this Act the lands ccmprised in the several herein
thereof." By sect. 1 power was given to Sir before mentioned indentures, and all buildings now
erected or to be hereafter erected upon the said lands,
Oswald Morley , his heirs and assigns, to grant with the appartenances : Provided always that, if any
certain specified lands to trustees nominated and
appointed as therein mentioned , for the purpose breach ofoftrust
member the said
or anycorporation shallin berespect
misfeasance guiltyof ofanya
of accepting and taking such grants by the property or lands belonging to the Manchester Infir .
major part of the benefactors and subscribers to mary, Dispensary, and Lunatic Hospital or Asylum , or
the said charities for the time being, upon the either of them , whether under the sanction of the corpo
rate seal, he shall be subject to the sameliabilities as if
trusts and for the purposes thereinafter men had not been passed .
tioned , which grants were to be taken to be thisByActsect. 3 it was provided that immediately
valid and effectual notwithstanding the Act after the passing
9 Geo. 2, c. 36 , or any of the statutes of mort. same, the land andofbuildings
the Act, and by virtue of the
of the charity should
main , and the trustees for the time being so to vest in the corporation according to the true
be appointed were immediately empowered and intent and purport of the conveyances executed
enabled to accept and take the same grants.
Sect. 2. The property of all and sizgular themoney , of the same to the trustees of the charities, and
implements, materials, furniture , goods, chattels, and that in like manner all the moneys, stocks, funds,
effects,matters, and things whatsoever already belong and securities for money, goods, chattels, rights,
ing , due, or owing to the said infirmary , asylum , dis credits, and effects belonging, due, and owing to
pensary , and charities, or the subscribers or benefactors the charities, should be vested in the corporation ,
thereto , in respect or on account thereof, or which shall
bereafter be purchased, subscribed , contributed , or pro and for that purpose the persons in whose names
vided for the purposes of the said charities, shall from any sums of money , stocks, funds, mortgages,
and after such nomination and appointment of trustees securities for money, or other effects, should at
as aforesaid , be vested in such trustees so to be nomi. the time of the passing of the Act stand or be
nated and appointed as aforesaid , their executors, secured, the beneficial interest wherein should
administrators, and assigns, upon the trusts and for the
belong to the charities thereby incorporated ,
purposes hereinaftermentioned. should forthwith transfer or assign the same
The trustees were thereby empowered to bring respectively , so and in such manner as that the
actions for the recovery of property of or belong same should be vested in the corporation .
ing to the charity, and it was also provided that Sect. 4. As well the moneys arising from the sale or
in all such actions it should be sufficient to state transfer of any of the public or Government funds,
generally that the property for which the action stocks, securities , or any other securities, as also any
should be brought was the property of " the other moneys for the time being belonging to the said
trustees for the time being of the Manchester charities, may from time to time be invested either in
Infirmary, specifying the names of the trustees." the name of the said corporation hereby created , or in
Sect . 4. The said trustees so to be nominated and the names of any other persons on behalf of and to be
appointed as aforesaid , and the survivors and survivor named and appointed by the said corporation, upon trust
of them , and the heirs, executors, and administrators of for the said cbarities on mortgage of any hereditaments
such survivor respectively , shall stand and be seised of a clear and indefeasible estate of inheritance in fee
and possessed of and interested in the hereditaments simple, to be situate in England or Wales, free from
and premises which have been so demised or granted as incumbrances, except quit rents or other annualsmall
payments, and leasesat rack rent to tenants or occupiers
aforesaid , or which shall or may be granted or otherwise . . or the same moneys, stocks, funds, and securi
conveyed or assured by the said present Sir Oswald ties may in like manner be invested in any of the public
Morley, his heirs or assigns, in pursuance of the power or Government stocks, funds, or securities,and all such
and authority hereinbefore contained in that behalf, and mortgages, stocks, funds, and securities may be from
also of and in all and singular the moneys, securities for timeagain
to time calledininmanner
, and theaforesaid
moneys ,arising therefrom
money , implements, materials , furniture, goods, chattels , be invested so often as may
and effects, matters, and things whatsoever, which may beSect.
deemed expedient.
become vested in them in consequence of this Act, and 11. This Act shall be a public Act, and shall be
every part thereof respectively , in trust for and for the judicially taken notice of as such .
benefit of the said charities and charitable purposes
accordingly, and subject to the rules, orders, and The third Act (7 & 8 Vict. c. 43) was passed in
regulations now made and used , or such rules, orders, the year 1844 to enable the corporation to enlarge
and regulations as shall hereafter be made either with the infirmary , and to purchase and hold land for
respect to the said lands, buildings, hereditaments, and the erection of a new lunatic hospital or asylum .
premises, and the said goods and chattels of the said | Sect. 12 provided that “ This Act shall be a public
infirmary , dispensary, lunatic hospital, and asylum , or
with respect to the recommendation or admission of Act, and shall be judicially taken notice of as
patients or otherwise relating to the management, regu such ."
lation , and government of the said charities, by the The fourth Act (15 Vict. c. 3)was passed in the
major part of the benefactors and subscribers to the year 1852 for the purpose of uniting a charity
same charities for the timebeing.
By sect. 8 it was provided that the Act should called the Manchester House of Recovery, with
the Manchester Royal Infirmary . Sect. 12 pro
be printed by the King's printer, and that a copy vided that the Act should not be a public Act,
thereof so printed should be admitted as evidence but should be printed by the Queen 's printer,and
thereof by all judges, justices, and others. a copy thereof so printed should be admitted
The second Act (5 Vict. c. 1) was passed in the as evidence thereof by all judges, justices, and
year 1842. others.
Sect. 2. The president, treasurers , deputy treasurers, The greater portion of the funds belonging to
benefactors,and subscribers for the time being , of and the corporation was invested in Government
to the Manchester Royal Infirmary, dispensary and | securities in the name of the corporation , but
lunatic hospital or asylum , shallbe incorporated
" The President, Subscribers
name ofBenefactors, Treasurers, by the
Deputy Trea there were some small sums invested in the name
surers , and of and to the of the official trustee of charities.
Manchester Royal Infirmary , Dispensary , and Lunatic
Hospital or Asylum ," and by that nameshall be a body ! Cozens-Hardy, Q .C . and Farwell for the plain .
corporate, with perpetual succession , and a common i tiffs. The question is whether the plaintiffs are
seal, and with power to hold and retain for the purposes I trustees within the meaning of the Trust Invest.
May 17, 1890 .] THE LAW TIMES. (Vol. LXII., N . S.- 421
Chan. Div.] MANCHESTER ROYAL INFIRMARY V. ATTORNEY-GENERAL. [Chan. Div .
ment Act 1889, and whether, having regard to I (NORTH, J . - I feel some difficulty as to what is
the constitution of the charity, they are sucb the " instrument creating the trust." Although I
trustees as can act upon the power of invest- | think the special Acts relating to the charity are
ment conferred by sect. 3. (a ) The Acts private Acts, still I have considerable doubt
of 1842 and 1844 are not really public whether they are “ an instrument ” within sect. 3
Acts. The provisions of sect. 11 of the Act of of the Act of 1889.] The plaintiffs only ask for
1842 and sect. 12 of the Act of 1844 were a declaration , that they are trustees within the
inserted merely tbat those Acts might be judi. meaning of the Act of 1889.
cially taken notice of. They are not printed with · NORTH, J. — This case raises a question as to the
the public Acts. The question whether an Act application of the Trust Investment Act 1839.
is a public or private Act does not depend on [His Lordship stated the provisions of the special
technical considerations, but upon the nature and Acts, and continued : ] The corporation have very
substance of the case : considerable funds belonging to them , the bulk
Dawson v. Paver, 5 Hare, 415. of which is invested in the name of the corpora
There is nothing in the “ instrument creating the the tion , though there is a small amount standing in
trust ” which prohibits the investment of the question nameof the official trustee of charities. The
funds of the charity on the securities mentioned is, upon what securities can these funds
in sect. 3. When the corporation was created the be now invested ; in other words, does the Act of
trustswere not in any way altered , but the cor 1889 apply to them ? The Act is entitled “ An
poration was substituted for the individual Act to amend the law relating to the investment
trustees as trustees of the charity . of trust funds.” It provides by sect. 3 that " it
shall be lawful for a trustee, unless expressly
Sir R . E .Webster (A .-G .) and Ingle Joyce for the forbidden by the instrument (if any) creating the
Attorney -General. - It was not intended by the trust, to invest any trust funds in his hands in
Act of 1889 that property owned by a cor manner following." Wehave first of all to find
poration should be ireated as held by them as whether a person is a “ trustee " within the
trustees in the ordinary sense. It is difficult to meaning of the Act, and if he is a trustee then
see how in such a case the court could execute the extended power of investment applies to
the trust. The officers of a corporation might “ any trust funds in his hands." Then sect. 5
bemade liable for misappropriation of the funds, provides that “ every power conferred by this
and yet it could not very well be said that they Act shall be exercised according to the discretion
were trustees of the funds in the ordinary sense of the trustee, but subject to any consent required
of the words. Again , the funds of a joint-stock | by the instrument (if any) creating the trust with
company are under the control of its directors, but | respect to the investment of the trust funds."
the directors are not trustees of the funds. The And by sect. 6 the Act is to apply as well to
Act of 1889 relates to “ trust funds." The Act trusts created before as to trusts created after
was passed to amend the law relating " to the the passing of the Act, and the powers thereby
§Â§₂ §₂§₂ū₂ņēmēģ₂₂₂titi₂m₂?Â₂ âÒ► ģētiņģ ti ?₂m₂ÂòÂ?Â?Â§₂§ conferred are to be in addition to the powers
whether corporation property would be properly conferred by the instrument (if any) creating the
described as “ trust funds," nor is it correct to trust. Then sect. 7 is, I think, material in this
say that when a fund belongs to a corporation way . First of all, it seems to me to contemplate
because it is a corporation , there is any “ instru that such bodies as the council of a county or
ment " creating a trust. [NORTH , J. - The use of | borough or an urban or rural sanitary authority
that expression rather seems to indicate that there | come within the scope of the Act, because I do
may be trusts without an instrument creating | not think it would be the right construction to
them ; if so , what can be meant but trusts this section bodies
reposed in bodies such as this corporation, or
say thatoutside
entirely giving with
the Act,isanddealing them powers
trusts created by parol? ] The provision in sect. which unless they have them as trustees would
5 that every power conferred by the Act shall be not properly find a place in this Act at all, but
exercised “ subject to any consent required by ought to be found in an Act relating to different
the instrument (if any) creating the trust with subjects. It shows that this section is not, as I
respect to the investment of the trust funds ” was at first inclined to think , one which merely
points to the consent of some individual. By | limits the powers of these bodies, but that they
the Act of 1842 the plaintiffs are constituted a bave power to make the investments which are
public body, holding funds for public purposes ; contemplated in the Act. Then the point put
they cannot be said to be “ trustees ” within the and it is one requiring serious consideration - is,
meaning of the Act of 1889. whether it can be said that the property belong
Cozens-Hardy, Q .C. in reply. – Corporations ing to this corporation , which is their own pro
can be trustees for charitable purposes in respect perty , is a trust fund in their hands as “ trustees"
of property vested in them : within the meaning of the Act. I think it is. I
Re Norwich Town Close Estate Charity, 60 L. T . think that themoney is clearly held on trust for
Rep . N . S . 202 ; 40 Ch. Div . 298 ; charitable purposes. It was in the first instance
Re Clergy Orphan Corporation , 30 L . T . Rep . N . S . in termsvested in trustees by the Act of 1868 ,
806 ; 18 Eq. 280. and when by the subsequent Act the funds were
(a) Sect. 3 is as follows : “ It shall be lawful for a vested in the corporation, this was done for the
trastee , unless expressly forbidden by the instrument i purpose of facilitating the dealing with the
(if any) creating the trust, to invest any trust funds in funds ; but I do not think it in any way prevents
his hands in manner following ; that is to say," in various that from continning to be a trust fund which
specified securities, and " in any of the stocks, funds, or beyond all question had been a trust fund down
securities for the time being authorised for the invest to that time. Moreover, it is a fund for the
ment of cash and under the control or subject to the order
of the court, also from time to time vary any such purposes of the Infirmary Lunatic Asylum which
instrument. I is referred to in the Acts. It seemsto mebeyond
422 _ Vol. LXII., N . S .] THE LAW TIMES. [May 17, 1890.
Chan. Div.] MANCHESTER ROYAL INFIRMARY V. ATTORNEY-GENERAL. [CHAN. Div .
all question that the funds are held on a chari- | sup.) wasnot right ; but, though I do not see very
table trust with respect to which the rights and clearly the grounds of that decision, it must, I
duties of trustees belong to and are imposed on think , be treated as depending upon its special
the body in whom the funds are now vested in circumstances. I consider, therefore, that the
trust, just as they would in the case of any ordi- | petitioners may sell out the existing stock with
nary trustee. Suppose that this corporation pro à vier to reinvestment, and I shall therefore
posed to advance some of their money to the cor- answer the question in the affirmative." The
poration of Manchester for the improvement of point therefore decided there was not whether the
their streets, that would clearly be a breach of trustees could reinvest, butwhether they could sell
trust, and on the application of the Attorney . out existing stock for the purpose of reinvest
General I should at once restrain them from ment. No doubt there is an observation made by
committing any such breach of trust. Supposing Malins, V .C ., which shows he thought that they
that an advance was actually made in the same were trustees within the meaning of the Act,
way, but a security was taken for the money, pre although that was not the point to which his
cisely the samerules would apply unless it turned attention had been directed by the argument,
out that the security taken was one upon and which was being answered by him . The
which the corporation are authorised to invest further pointwas suggested ,whether Metropolitan
their funds, in which case the advance would Consolidated Stock was within the power of
not be a breach of trust. It seems to me, there- investment, and that turned upon sect. 13 of the
fore, clear that these funds are trust funds vested Board of Works Act 1871. The Vice-Chancellor
in the corporation of the Manchester Infirmary said : “ That section seemswide enough to include
as a " trustee " within the meaning of the Act. the present charity. The petitioners will therefore
Mr. Cozens-Hardy referred to Re Clergy Orphan | be allowed to invest in that stock .” That again was
Corporation (ubi sup.), which is very like the an observation upon a point not raised by the peti
present case ; but, curiously enough , the point tior, and not calling for decision ; still, so far as
which I have now to decide seems to have been the case goes, it shows that the Vice-Chancellor
withdrawn from the consideration of the took that view , although the point had not been
judge there. The head-note to the report is argued , and that is in favour of the view which I
as follows : " Stock in the funds belonging to have taken of the construction of the Act of 1889.
a charity incorporated by Act of Parliament | I propose therefore to make a declaration that the
and having power to invest in the public funds, corporation are trustees within the meaning of
may, under sect. 11 of the statute 23 & 24 Vict. the Trust Investment Act 1889, and are entitled
c. 38, be sold out for the purpose of reinvestment to invest any trust funds in their hands in the
on any of the stocks, funds, and securities on manner thereby authorised , unless expressly for
which cash under the control of the court may be bidden by any instrument creating the trust. I
invested .” Sect. 11 of that Act provided that, should add that I do not consider Re Clergy
“ when any such general order as aforesaid shall Orphan Corporation (ubi sup.) in any way inter
have been made" (that is,as to cash in the control feres with the decision in Re Warde (ubi sup.) ;
of the court), “ it shall be lawful for trustees, and therefore my decision is not intended to go
₂₂x₂ ņēmēņ₂₂/ ₂ģ₂₂–₂ –₂Ò₂ÂòÂ?₂ti₂m₂Ò₂Â?₂ti₂m₂?tiẦ ₂₂ / ₂ūtiÂÂÂÂòÂ§Â₂Ò₂Âņēmēģēņģētiņģ₂ÂÒ₂ÂòÂ₂Ò₂ÂòÂ₂Ò₂ÂòÂ?₂?₂?Â₂Òti₂ti₂ū₂₂₂₂₂₂
invest, their trust funds upon Government securi sell existing securities for the purpose of making
ties or parliamentary stocks, funds, or securities, ( other investments under powers given by the
or any of them , to invest such trust funds, or any Act. That depends entirely on what the powers
part thereof, in any of the stocks, funds, or secu - may be independently of the Act. The Act does
rities in or upon which by such general order especially provide by the final clause of sect. 3
cash under the control of the court may from that trustees who may invest as therein men
time to time be invested.” But the petition pre tioned may “ also from time to time vary such
sented sought the advice and direction of the investments." Those words are necessary for
court as to whether funds already invested could this reason : if trustees by the instrument creating
be sold for the purpose of reinvestment, and the the trust had a more limited power of invest
argumentof Mr. Cozens-Hardy for the petitioners ment, and had also power to vary investments,
was this : “ No question is asked as to the power there might have been a question whether the
under sect. 11 to invest in the manner desired power contained in the instrument to vary the
any funds to be hereafter acquired by the society ; investments authorised by it could extend to
but the decision in Re Warde (2 J . & H . 191) has investments which are authorised not by the
caused a question to be raised as to the power of instrument, butby the Act ; and it is for the pur.
thetrustees to sell out funds already invested with pose of preventing any question of that sort from
a view to reinvestment where there is no express arising, that the words which I have just read
power of varying existing securities.” Then are inserted in sect. 3. But the express direction
Malins, V .C . said : “ I consider that the intention that trustees are to have power to vary the invest
of sect. 11 was to enlarge the powers of invest. | ment authorised by the Act goes a long way to
ment previously belonging to trustees by allowing l show that it does not touch the questionsecurities whether
them to invest any fund in their hands in the they had any previous power to vary
stocks, funds, and securities from time to time | for the purpose of making such investments as
sanctioned by the court, and my opinion is that are authorised by the Act . That is the reason
the petitioners, being trustees, and having funds, why I limited the declaration which I have made
directed by their Actof Parliament to be invested expressly to funds in the hands of the corpora
in the public funds, come within the enabling tion .
clause, and that consequently all the funds of Solicitors for plaintiffs, Pritchard , Englefield ,
this charity, whether invested or not, may be and Co., agents for Earle, Sons, and Co., Man .
dealt with as cash under the control of the court. | chester.
I do not say that the decision in Re Warde (ubil Solicitors for Attorney -General, Hare and Co.
May 17, 1890 .) THE LAW TIMES. [Vol. LXII., N . 8.- 423
Chan . Div .] Re WORMALD ; FRANK v. MUZEEN. [CHAN . Div.
Saturday, Feb . 8 . which had happened, the gift of the rents and
(Before NORTH, J.) income of the testator's estate by the said will
Re WORMALD ; FRANK v. MUZEEN. (a ) given in favour of his said sister, Mary Elizabeth
Muzeen , had or had not determined .
Forfeiture— Married woman — “ Without power of
anticipation ” - Gift over “ on her anticipating " The defendants to the summons were Mary
Elizabeth Muzeen , her son G . E . B . Muzeen , and
- Mortgage of her life interest. her mortgagee J. M . Richardson .
A testator gave his real estate and theresidue of his W . J. Hood for the plaintiff.
personal estate to trustees upon trust out of the
rents and incomethereof to pay a certain annuity , Arnold White for Mrs. Muzeen .
and to pay the remainder of therents and income Dunham for the defendant G . E . B . Muzeen.
to M ., a married woman, " for her separate use, The words “ on her anticipating ” must mean
free from the debts and control of any husband , “ on her attempting to anticipate.” Unless they
withoutpower of anticipation , and for and during mean that they will be wholly inoperative, as it
the term of her natural life, and from and after is impossible for Mrs. Muzeen to anticipate the
her decease, or on her anticipating the same income. She has attempted to anticipate the
rents and income, or any part thereof," upon trust income, and therefore her life interest bas
as to the said trust estates for all the children of determined .
M . equally as tenants in common , with a gift NORTH , J.- In this case the testator gave his
over in case there should be no such child who real estate and the residue of his personal estate
should attain twenty-one. At the date of the to trustees upon trust out of the rents and income
testator 's will M . was a married woman, and her thereof to pay an annuity to his widow - which
husband was still living. There was one child has determined by her death - and to pay the re
only of the marriage. M . executed an assign - mainder of such rents and income to his sister
ment of the life interest by way of mortgage. Mrs. Muzeen " for her separate use, free from the
Held , that the word “ anticipate ” did not include debts and control of any husband , without power
“ attempt to anticipate," and that consequently herof anticipation , and for and during the term of
natural life, and from and after her decease,
the clause in the will divesting M .'s interest in
the event of her anticipating the same had not, | or on her anticipating the same rents and income
in the events thathad happened ,taken effect. or any part thereof," upon trust as to the said trust
ORIGINATING SUMMONS by the sole surviving over estates for Mrs. Muzeen 's children , with a gift
trustees of the will of G . F . Wormald to deter in the event of there being no such children
mine the question whether, in the events that who should attain twenty -one. The testator's
had happened , a forfeiture clause contained in sister Mrs . Muzeen survived him , and in the year
the will had taken effect. 1889 executed an assignment of her life interest
The testator by his will, dated the 21st March under the will by way of mortgage,and the ques .
1874, after giving certain pecuniary legacies, tion is, whether by reason of that assignment
gave all his personal estate to his trustees upon Mrs. Muzeen has forfeited her interest ; in other
trust to convert and stand possessed of the words, whether the forfeiture clause in the will
proceeds thereof for the like purposes as those of has taken effect. I am clearly of opinion that it
his real estate were afterwards given . And he has not. At the date of the testator's death Mrs.
devised his real estate to his trustees upon trust Muzeen was a married woman, and she is still
out of the rents and income thereof to pay to his married to the same husband, and it was there
wife an annuity of 3001.,and to pay the remainder fore impossible for her to anticipate the income.
of such rents and income to his sister Mary | But it is said that “ anticipate " includes “ attempt
Wormald « for her separate ne free from the i to anticipate.” I certainly cannot so hold . We
debts and control of any husband, without power are all familiar with gifts of an estate until aliena
of anticipation , and for and during the term of tion or attempted alienation , and the distinc.
her natural life, and from and after her decease, tion between the two alternatives is well under
or on her anticipating the samerents and income stood . I cannot add to the will a provision
or any part thereof," upon trust as to the said determining Mrs. Muzeen 's interest if she
trust estates for all the children of his said sister attempts to anticipate the income without suc
equally as tenants in common . And there was a ceeding in doing so. The testator intended her to
gift over in the eventof there being no such child have the income, and nothing she can do can put
who should attain the age of twenty-one years. an end to her right to receive it. I see no reason
The testator died on the 24th March 1874 . His therefore for giving to the word " anticipate ” a
widow died on the 20th July 1881. meaning which I am satisfied the testator never
intended . I come to the conclusion that the
The testator's sister, Mary Wormald , whose assignment
real name wasMary Elizabeth Muzeen ,was at the tive, and that by Mrs. Muzeen was entirely inopera
date of the will the wife of William Muzeen , to therefore the forfeiture clause has
whom she was married in the year 1867. Her will not taken effect. The result is, that Mrs. Muzeen
husband was still living. There was one child way continue in receipt of the income in the same
as she did before the execution by her of the
only of the marriage, namely , a son, G . E . B .
Muzeen , who was born in 1868 . In the year 1889 assignment.
Mary Elizabeth Muzeen executed an assignment Solicitors : Collyer -Bristow and Co. ; Morse and
to the defendant J. M . Richardson of her life | Simpson ; Jackson , Richardson ,and Bridge.
interest under the testator's will, by way of
mortgage to secure the sum of 4001. and interest.
This summons was taken out for the purpose
of having it determined whether, in the events
(a) Reported by G . E. JEFFERY, Esq., Barrister-at-Law .
424 - Vol. LXII., N . 8.] THE LAW TIMES. (May 17 , 1890.
Chan. Div .] COLLEY v. Hart. [Chan . Div.
Feb . 17 , 18 , and 19 . think it right to inform you that I intend to commence
proceedings forth with against every person whom I find
COLLEY v. Hart. (a ) in any way dealing in any perforated toilet paper mang
Patents, Designs, and Trade Marksdiligence
Act 1883 factured in breach of my patent rights under the above
(46 & 47 Vict. c. 57), s. 32 – Due patent or under my trade mark .
Commencing or prosecuting an action. On the 22nd Sept. 1888 Colley commenced this
On the 15th Sept. 1888 H ., a manufacturer of toilet action (Colley v. Hart) under the 32nd section of
paper, sent a circular letter round the trade the Patents, Designs, and Trade Marks Act 1883
threatening legal proceedings in respect of the | (46 & 47 Vict. c. 57) for an injunction against the
sale of any goodsmade by C . in alleged infringe issue of the above circular or any circular con
ments of his patent. On the 22nd Sept. Č . com taining similar threats, and for damages. On the
menced this action against H . for an injunction | 3rd Oct. Colley gave notice of motion for an
against the continuance of the threats, and for | injunction for the 10th Oct.
damages. An interlocutory injunction was The vacation judge refused to treat it as vaca.
granted on the 2nd Nov. 1888. On the 6th Dec. tion business, and the motion stood over till the
1888 H . issued a writ in an action against O . for 2nd Nov .
infringement of his patent. The time for
delivery of statement of claim was extended by injunction .
On that day North , J. granted an interlocutory
consent from time to time, and on the 30th Jan . On the 6th Dec. 1888 Hart commenced an
1889 H . took out a summons for an order to | action (Hartv. Colley) against Colley for infringe
inspect C .'s method of manufacture. Objections | ment of his patent.
were taken to this order by Č . on the ground that On the 30th Dec. 1888 Hart took out a sommons
his process was a secret one. On the 13th June for an inspection of Colley' s method of mana
an order was made for inspection by a named facture .
expert, who was to report to the judge. The On the 8th Feb . 1889 Colley delivered his
report was made on the 9th July, but was not statement of claim in this action (Colley v. Hart),
seen by H . or his solicitors until the 6th Nov. in which he denied the infringement.
The report showed that there was no infringe. On the 13th May 1889 the defendant delivered
ment, and on the 7th Nov. H . discontinued his | his statement of claim in Hart v. Colley .
infringement action . The action of C . against I . | Meanwhile the order for an inspection had been
to restrain the threats now came on for hearing. delayed by objections taken by Colley to the
A preliminary objection was taken by H . that Ö . | inspector named by Hart, who alleged that his
had no cause of action under sect. 32 of the paper was made by a secret process of manufac
Patents Act,which contains a proviso “ that this ture.
section shall not apply if the person making such On the 13th June an order wasmade for inspec
threats with due diligence commences and prose - / tion by a named espert, who was directed to
cutes an action for infringement of the patent.” . report to the judge. On the 9tb July 1889 the
Held , that, considering all the circumstances, H .'s expert made a report in writing to North , J.,
action for infringement was commenced and stating that Colley 's process was not an infringe
prosecuted with due diligence up to the 7th Nov. ; ment of Hart's patent.
that H . could not be in a worse position in conse On the 1st Aug. 1889 an order wasmade that
quence of his having then discontinued the the solicitors and counsel on both sides should
action than ij he had gone to trial and had his see the report. It was handed to Colley's soli
action dismissed ; that sect. 32 does not require citors, but was not seen by Hart's solicitors till
the person making threats to prosecute his action the 6th Nor.
to a successful issue, and therefore H . had On the 7th Nov. Hart gave a notice to discon.
brought himself within the proviso, and C . had tinue his action (Hart v . Colley ), and in due
no cause of action under the section unless he | course paid Colley 's taxed costs.
could bring evidence to prove that the action for triaThe action of Colley v . Hart now came on for
infringementwas not brought bonâ fide. | l.
MORRIS Hart, the defendant in this action, was Cozens-Hardy, Q .C . and J. C . Graham for the
the owner of a patent for “ improvements in defendant (by way of preliminary objection ).
apparatus for unreeling , perforating , and re-reel Sect. 32 of the Patents Act 1883 contains a pro
ing paper into rolls for toilet and other pur viso that there shall be no cause of action
poses." within the section if an action for infringement
The plaintiff Colley, who had at one time is commenced and prosecuted with due diligence.
been in Hart's employment, was also a manufac The defendant did commenee his action for
turer of toilet paper sold in rolls. infringement with due diligence,and he prose
On the 15th Sept. 1888 the defendant issued cuted it with due diligence up to the time when
and sent round to persons engaged in the trade, the inspection showed him that he had no case,
including some customers of Colley's, a trade and then he promptly and properly discontinued
circular, which contained the following passages : his action. Any delay up to that time is
It has cometo my knowledge that W . W . Colley, late accounted for by the course taken by the plaintiff
in my employ , is offering to the trade perforated toilet about the order for discovery . If the action was
rolls which are an infringement of my patent 1885 , commenced bona fide the defendant Hart does not
No. 9106 .
The letter then stated that W . W . Colley was lose the protection
successful. of thebeAct
He cannot worse itposition
in abecause is not
also infringing the defendant's trade mark , and because he has not put his opponent to further
proceeded : costs and delay by going on with a hopeless
His proceedings are therefore a distinct breach of action . The proviso therefore applies, and we
my rights under both patent and trade mark , and I are within your Lordship's decision in Sugg v.
(a ) Reported by J. R . BROOKE, Enq., Barrister-at-Law . | Bray (2 Pat. Rep . 223) as to damages. The point
May 17, 1890 .) THE LAW TIMES. (Vol. LXII., N . S. - 425
Cuan. Div.] COLLEY v. HART. [Chan . Div.
as to costs does not apply , for we have paid | threatening proceedings, but did not take them .
Colley 's costs of the infringement action . Chal That is a totally different state of things from
lender v. Royle (57 L . T. Rep . N . S . 734 ; 36 Ch. anything that I have here. Therefore that case
Div . 425) shows that our action was begun in really does not give me any assistance. Then I
time. find great difficulty again in attempting to fix
Aston , Q .C .and R . W .Wallace for the plaintiff . within what time an action must be brought in
- The defendant's action does not satisfy the order to be commenced with due diligence. I will
just put this case : Suppose a man gets his
proviso. In the first place, it was not commenced
with due diligence. In Herrburger Schwander patent completed at the end of 1885. I assume
et Cie. v. Squire (5 Pat. Rep. 581) Charles, J. that it is a good and valuable patent, and that he
decided that a delay of two months in bringing is on the look -ont for infringements. At the end
the action was fatal. The prosecution of the of 1886 he finds A . infringing, writes a warning
action with due diligence mentioned in the pro letter, and A . submits. The threat is not pro
viso must be something which amounts to justi secuted against A . for the best of all reasons, that
fication of the threats. The threats could only he has submitted unconditionally . At the end of
be justified by establishing the validity of the 1887 the patentee finds B . infringing, and is about
patent and proving the infringement. That is, to take proceedings when B . dies insolvent. In
the action must be prosecuted to a successful 1888 he finds C . infringing, and C. submits. At
issue. There is nomeaning in prosecuting with the end of 1889 he finds D . infringing, and writes
due diligence unless it means prosecuting to the a warning letter to him . D . does not submit,but
end. The object of the section is that the party replies by commencing at once an action to
restrain the threats. The patentee then com
threatening must show that he has a legal right. mences
His discontinuing his action is confession that he no doubthis action against D . In that case I have
has not. that the action against D . would be
NORTH, J. - Ionly wantto hear you , Mr. Cozens commenced in time, though the patentee's threats
Hardy, upon the question whether discontinuance | had been continued for the space of three years.
That shows how impossible it is to fix any defi .
is not a failure to prosecutewith due diligence. nite time within which an action must be brought.
Cozens-Hardy, Q .C . in reply - We cannot be The only case I know of other than the one I
in a worse position than if at the trial we had a have mentioned in which anything has been laid
decision against us. To make an action which down bearing upon this question of time is
failed not within the proviso would be to read | Challender v . Royle (57 L . T . Rep . N . S . 734 ;
words into the proviso which are not there. 36 Ch. Div. 425 ). I think I should be doing great
Cur. adv. vult. injustice to the learned judge who decided that
Feb . 19. - NORTH , J . - I postponed decidingthis case if I thought he intended to lay down any
case till this morning, not because I felt much rule as being applicable to all cases, and I do
doubt about it, but because it raised a point only refer to his remarks by way of illustration .
which , so far as I know , is not as yet covered by Cotton , L . J . says (57 L . T . Rep. N . S . 738 (a ) ;
any decision . The facts of the case are shortly 36 Ch. Div . 437 ), “ Was this action commenced
these : [ His Lordship stated the facts above set with due diligence ? Mr. Bousfield contended
out, and continued :] There is no evidence before that the action must be commenced with due
me that the circular I have read was published diligence from the time when the defendant first
maliciously , and therefore there is no right of knew that the plaintiff was doing what he
action whatever in respect of it, unless such a alleges to be an infringement. I cannot agree
right is given by sect. 32 of the Patents Act 1883. with that view . In my opinion an action must
That I think is clear, but I think it is also clear be held to be commenced with due diligence if
WA
that that letter would have given a right of commenced within a reasonable time after the
action under the 32nd seetion if there had been threats have been made, for the threats are the
no proviso in that section. The question there only matter complained of. Now , assuming the
fore is, whether Hari's action for infringement threats to have been made in March , the action
was commenced and prosecuted with due diligence, against the Manchester Plumbing Company was
because, if it was, it prevents there being any in my opinion commenced with due diligence
cause of action under sect. 32. It is said in the after the time when the defendant first issued
first place that the action commenced by the those threats, for I think that the interval
writ issued on the 6th Dec. was not commenced between March and June is not an unreasonable
with due diligence,and in particular a case before time for a man to take to consider whether he
Charles, J. (Herrburger Schwander et Cie. V . should bring an action in respect of a supposed
Squire (ubi sup.) was relied upon . Before referring infringement of his patent.” That is to say, three
to that case, I must say that, in my opinion , it is months is a reasonable time to take. Now , I do
quite impossible to fix any precise timewithin not apply that as deciding this case, but I give it
which an action must be commenced . It would as an illustration to show what Cotton , L .J .
depend altogether upon the circumstances of the thought, under the circumstances, wonld be a
case. It is impossible to lay down any general reasonable time within which the action might
rule. ( His Lordship then stated the facts of the be brought. In this case the action was brought
case from Charles, Ji' s judgment, and pro within the time which Cotton , L . J. thought a
ceeded :) I find that in that case the judge reasonable time in the case before him . There is
relied upon the fact that no proceedings were another test to assist me in this matter, and it
taken for a certain timeafter thewrit was issued , is this : One sees very plainly , and remarks
having regard to the fact that the infringement have been made by judges from time to time
had been going on for fourteen months before
that time to the knowledge of the defendant, (a) The passage is somewhat condensed in the Law
and that the defendant had been all the while | TIMES Reports.
426 – Vol. LXII., N. 8.] THE LAW TIMES. [May 17, 1890.
Chan . Div .] COLLEY v. Hart. [CHAN. Div.
about the inconvenience of having an action for proviso in the section that a person making the
infringement and an action for threats, perhaps threats shall with due diligence commence and
before another judge or in a different division of prosecute an action for infringement means shall
the court, going on at the same time. In this prosecute to a successful result. In the first
case there was an action for threats,and an action place, the section does not say so, and I should
for infringement must be brought within a find great difficulty in understanding it if it did .
reasonable time. I do not attempt to lay down a I do not quite know what a successful result
rule applicable to all cases, but, as a primâ facie would be, considering the multiplicity of points
rule applicable to most cases, I do not think a raised in patent actions. More than that, sup
man can be said to be guilty of undue delay if, posing I took other words, and made the section
when the plaintiff in the action to restrain the read (as I understand it was suggested I might
tbreats is the alleged infringer, he waits to see do) that he must with due diligence commence
whether he cannot combine the two subjects of and prosecute and recover judgment in an action
action in one action - in other words, if he waits for infringement, because that is the way it
to have a statement of claim delivered in the would have to be tested . I do not find any words
threats action to see whether he cannot bring his of that sort in the section . It would be a strong
counter action by counter -claim instead of by addition to the section for me to make or treat it
separate action . In this case what happened ? as containing such words as these. It cannot
The interlocutory injunction was granted on the have escaped attention . Nothing would have
₂?₂?Â₂Ò₂Â₂Ò₂₂₂₂₂₂₂ ₂₂₂₂₂₂₂₂ /\/₂₂–₂–₂ –₂₂m₂?Â₂Ò► been easier than to have put in those words if the
justified in waiting some time at least, to see section was intended to be read as having them
what the statement of claim was,and whether he in . I do not find such words there,and I do not
could not bring his action for infringement by feelat liberty to add them ,and I do not believe that
way of counter- claim . Now , Mr. Colley 's state this was the intention of the section . I think it
ment of claim was not delivered till the 8th Feb ., might produce a very unjust result if those words
two months after Mr. Hart had commenced his were there. For instance , suppose an action was
action for infringement. I cometo the conclusion commenced with due diligence, and while it was
therefore that there was no undue delay in com being prosecuted with due diligence the infringer
mencing this action . Then the proviso requires died insolvent : it is impossible to prosecute such
that an action should not only be commenced but an action as that to a successful result. If the
prosecuted with due diligence. As regards the infringer were insolvent, you could not sue his
prosecution I must draw a line between what executors. There would be no benefit to be
happened before the date of the discontinuance gained by the only action which could be followed
(the 7th Nov.) and the discontinuance itself. Up against them . The personal action for tort of
to tbat date the action was going on . Is there | course would have come to an end. It would be
anything to show that it was not being pro | impossible for a man to go on with an action of
secuted with duediligence ? I have nothing before that sort. To put another case : Suppose the
me but certain dates given to me by Mr. Cozens infringer became bankrupt, and had very large
Hardy of the proceedings in the action . I do liabilities and very small assets. Could it be
not see how it is possible from those dates to say said that an action which was commenced with
that there was an omission to prosecute with due diligence, and prosecuted with due diligence
due diligence . The statement of claim was deli. down to that time, failed to be an action within
vered on the 13th May 1889. That seems a long the proviso because it was not prosecuted to judg
time after the issue of the writ (the 6th Dec . | ment after that? Then there is another thing to
1888). But the time must have been extended be borne in mind. A plaintiff might submit and
by order, and I must assume that the reasons for pay damages. Is it to be said that a man has not
extension were sufficient. The defence was put commenced and prosecuted an action with due
in on the 27th May, and then there were certain diligence because, having got all that he could
proceedings about an inspection and report. I get, he has not gone on to recover judgment ? I
do not find anything to show that the proceed . I do not think it possible to put such a qualifica
ings in the action down to the timeof the discon tion upon the actions required by the section as
tinuance were in any way wanting in due dili. to say they must be prosecuted to judgment,
gence ; and I do not think it was seriously although he has before judgment received
contended that they were. Neither Mr. Aston the full benefit which he seeks in the action .
nor Mr. Wallace were able to put their hands There is another thing . A failure to succeed in
upon any point in the course of these proceed the action for infringement would not at all
ings and say that there was any undue delay necessarily be a fair test as to whether a man
there. I cannot say therefore that there was was justified in his threats or not. The patent
any undue delay in prosecuting the action down might be perfectly good , but the action for
to the 7th Nov. But it is urged that there was infringement might fail. The plaintiff might
not due diligence in prosecuting the action after have lost valuable witnesses by death ; they
that date, because on that date it was discon - might fail to attend at the trial, and he might
tinued. That is the next point I have to con fail to recover judgment solely on that ground.
sider. The action was not prosecuted after the On the other hand , they might attend, and it
7th Nov ., because Mr. Hart on that date discon might turn out that the evidence given by them
tinued this action for infringement. A report did not come up to what the plaintiff had been
had been made upon which he came to the con told they would give. His case might break
clusion that he could not prosecute it with down through the infirmity of his witnesses.
success, and at that point he therefore discon | Then again , there might be a very serious ques
tinued it by an order in the action, and he paid | tion whether what was done amounted to an
the costs. Now , was that discontinuance a want infringement or not. In point of fact the jury
of due prosecution ? Mr. Aston says that the ! might hold that it was, the Divisional Court
Chan . Div .] REES v. RICHMOND — SIMMONS v. LONDON Joint Stock Bank. [Chan . Div.
might hold that it was, the Court of Appeal | matter as it stands, in my opinion this was an
might take the same view , and the House of action within the proviso , and therefore it pre
Lords in the end might hold that it was not an vents the plaintiff having any cause of action
infringement at all. It would be very strange under sect. 32.
if the right to utter the tbreats in the first
instance is to be tested by an action of that sort. andSolicitors
Co.
: Truefitt and Gane ; Linklater
I might give another instance : Suppose the
plain iff bringing the action for infringement was
an assignee of the patent, and that among the Thursday, Feb. 20.
defences set up one was that the infringer had a (Before KEKEWICH, J.)
licence from the patentee given before the
assignment. The assignee might know nothing REES v. RICHMOND. (a )
of that, and might ask the patentee and be told Practice - Numerous persons having the same
that it is untrue. He might go on with his interest - Defence on behalf of other persons —
action , and it might turn out at the trial that Consent – Submission to judgment — Order XVI.,
the defendant really bad a licence which justified 7. 9.
what he bad done. I mightmultiply the number Persons authorised by the court to defend an action
of such cases very much. There are many cases on behalf of others having the same interest
in which a failure to succeed in an action for cannot consent to judgment against them ; the
infringement would be a very unfair test proper course, in case there is no defence, is to
whether a man was justified in making threats submit on their behalf to judgment.
founded upon the fact of his having a good title . By Order XVI., r. 9 : “ Where there are numerous
I do not therefore see my way to add to the persons having the same interest in one cause or
section such words as would make it read “ with
due diligence commence and prosecute and matter, one or more of such persons may sue or
recover judgment in an action .” And I can see be sued , or may be authorised by the court or a
judge to defend in such cause or matter, oni
that, if I were to do so , I might be doing a great behalf
injustice. I hold therefore that it is not essential, of or for the benefit of all persons so
in order that an action may come within this interested .”
In this case certain defendants had been
proviso, that it should be prosecuted to the authorised
recovery of judgment by the party bringing it ; by the court to defend the action on
and therefore that a man may have with due behalf of numerous persons having the same
diligence commenced and prosecuted an action for interest with themselves. At the trial counsel
within the proviso, though judgment in it is these defendants consented on behalf of the
against him . It follows that that action , being persons represented to judgment for the plaintiff ,
within the proviso , prevents there being any on the ground that there was no defence. The
right of action against him under the earlier part registrar took the objection that the order did
of sect. 32. In the present case Colley, in my not include a power to consent, and the matter
opinion , commenced and prosecuted his action was brought before the court.
with due diligence down to the 7th Nov. If he Neville, Q.C . and A. Young for the plaintiffs.
had continued it to trial, and then had failed in Finlay, Q .C ., Warmington, Q .C ., Eyre, and
the action on the ground that there was no Lloyd Morgan for the defendants.
infringement, in my opinion the action would not KEKEWICH , J. held that the order did not
the less have been an action within the proviso .
If that is so , how does the matter stand ? In authorise such a consent, and that, as regarded
November Colley ascertained that his action must the persons represented by some of the de .
fail; he was so advised , and he thereupon , like a fendants, the judgment must be drawn in the
wise man, at once discontinued his action and form of a submission on their behalf to judgment.
paid the costs. In my opinion he was under no Solicitors for plaintiffs, H . A . Stephens, for
obligation, in order to make his action a good J. E . Stevens, Swansea .
defence under the proviso , to prosecute a hopeless Solicitors for defendants, Field, and Sumner,
action until trial and then undergo the fate of for Hartland and Isaac, Swansea ; Richard White,
having it dismissed with costs. As soon as he for T . W . James, Swansea .
found out that the action was hopeless it was
his duty to put an end to it at once. I do not
say that it is a duty of very perfect obligation. Jt March 7, 8, 10, 15 , 17, and 18 .
is one that might be difficult to prosecute, but I
think he did owe a duty to his adversary not to (Before KEKEWICH , J.)
proceed with a hopeless litigation against him SIMMONS v. LONDON Joint Stock BANK.
after it was ascertained it was hopeless, and I LITTLE v. SAME. (a )
think he owed a duty to the court not to waste Banker - Broker - Loan - Deposit of securities -
time by the trial of an action in which he felt he Negotiable securities — Purchaser for value
could not possibly succeed. Under those cir. Notice- Duty to inquire - Damages — Evidence
cumstances of course he is exactly in the same given in another action - Admissions.
position he
trialas discontinuing
by would a hopeless
have been in if heaction before
had prose The ruling of the House of Lords in Earl of
cuted it to trialand had then failed . As failure Sheffield v . London Joint Stock Bank (58 L . T .
at the trial would not have prevented the action Rep . N . S . 735 ; 13 App. Cas. 333), that in the
being one within the proviso, so in my opinion case of advances by bankers to their customers,
money - dealers, on the deposit of negotiable
worse positione before
in a discontinuanc
the he does
than iftrial not put ithimto
had carried securities to bearer, it is the duty of the bankers
trial. Under these circumstances, looking at the (a) Reported by F. GOULD, Esq., Barrister -at-Law .
428— Vol. LXII., N . S.] THE LAW TIMES. (May 17, 1890.
Chan. Div .] SIMMONS v. LONDON Joint Stock Bank ; LITTLE v. SAME. [Chan. Div.
to inquire into the customer's title, applies also to the value of the excess, and if the cover, by
where the customer is a stockbroker. reason of the changes in the market value, fell
Where in such a case the title of the bankers failed below the required margin , the brokers were
on action brought against them by the plaintiff, | required to find further cover.
being the real owner, who had bought the It appeared that it was the habit of brokers to
securities merely with a view of selling on a | obtain such loans on the securities of their
favourable opportunity , and the value had clients without mentioning that the securities so
fluctuated while they were held by the bank : deposited were not their own property. The
Held , thatthatit the
bank couldplaintiff
not be would
presumedhaveagainst the I
realised
plaintiff alleged that the officers and managing
directors of the bank through whom such loan
when the securities had reached their highest transactions were carried out were, throughout
price, and that, as regards some of the securities the transaction , aware that the brokers and
which the bank had sold before demand by the dealers to whom the loans were made required
plaintiff, the same in order to make advances to their own
they had they
sold were
with liable
interestforatthe4 price at which
per cent., and, customers, and that the securities deposited with
as regards those still in their possession , which the bank were mainly, if not entirely , the property
had depreciated, for the difference between their of such customers, and with this knowledge, and
value on the date of the plaintiff 's demand and in order to prevent any difficulty arising between
the date of recovering judgment, with any the brokers and their customers, the bank gare
dividends received in the meantime. every facility for the exchange of the securities
The bank manager had inevidence
a previous deposited with them , allowing the brokers and
another plaintiff given of theaction by
practice dealers to withdraw considerable portions of the
of the bank in making such loans to customers. same on the morning of any settling day on the
Held , that the manager being a person authorised Stock Exchange on an undertaking to restore
to make admissions on the part of the bank, securities of not less value at the close of such
· his evidence might be read on the part of the settling day. The plaintiff further alleged that
plaintiff in this action so far as relevantto the the bank knew and bad notice, not only from the
matters now in question . general course of business hereinbefore referred
to , but also from the particular transactions
The plaintiff Simmons clained a declaration between them and the plaintiff's brokers, that the
that certain bonds had been deposited with the securities deposited with them by the plaintiff's
defendant bank in fraud of the plaintiff by the brokers were the securities of the customers of
plaintiff 's brokers, and that the defendants such brokers, and in the belief that the brokers
having taken the same with notice that they who brought them had made sufficient advances
belonged to one of the customers of the brokers, on them to justify them in obtaining theamounts
had no title thereto as against the plaintiff . which they from time to time obtained from the
In the month of Feb . 1887 the firm of Herapatb , bank , and , relying on the integrity of thebrokers,
Delmar, and Co., who were the plaintiff's stock the defendant hank from time to timemade and
brokers, had in their possession on behalf of the continued advances to the brokers on such
plaintiff for safe custody certain bonds of the | securities as the brokers from time to time
Buenos Ayres Land Mortgage Bank of the “ J ” deposited with them , and made no specific
series, for the amount of 14,000 dollars, such inquiries as to the ownership of the said securities
bonds being known on the Stock Exchange as or the authority, if any , which the brokers had
“ Cedulas." These bonds were payable to bearer, to deposit the same, or the interest, if any, which
and negotiable securities within the ruling of the brokers had therein by reason of advances on
Goodwin v. Robarts (35 L . T. Rep. N . $. 179 ; such securities or otherwise. The circumstances
1 App. Cas. 476) ; i.e., theywould pass by delivery under which the bank became the holders of the
to a bona fideholder for value. On the 14th June bonds in question were as follows:
1888 the brokers suspended payment, and on the On the 12th Oct. 1887 Delmar, one of the firm
15th June 1888 were declared defaulters on the of brokers above mentioned , fraudulently sold
Stock Exchange. On the same 15th June the the said bonds for his own purposes, contracting
plaintiff , being informed of the brokers' default at the same time for a repurchase of the same
and that the said bonds had been handed over to amount for the next settling day, namely, the
the defendant bank, applied to have them de 28th Oct. The substituted bonds so purchased
livered up to him . The bank had in fact, on the by Delmar were paid for by Delmar's cheque.
morning of the day on which the plaintiff made This cheque, as the learned judge held, could
his application for a return of the bonds, sold not have been met without the advance by
the same in order to recoup themselves for ad . the bank to the credit of his account, and the
vancesmade by them to the brokers in accordance advance would not have been made unless he
with the usual course of business adopted by the had given to the bank the security which
bank in their dealing with brokers and money. included the bonds so purchased . The bonds
dealers. With regard to this course ofbusiness were handed over to the bank on the 28th
it was alleged by the plaintiff that brokers or Oct., though it was not established at the trial
dealers requiring advances from the bank agreed that before the bonds were delivered to Delmar
with the bank to pay a certain rate of interest on there was a contract by him that these rery
the advances, and by way of security for the documents should be handed over by him to
advances the brokers deposited with the bank the bank as cover. Under these circumstances
securities quoted on the Stock Exchange, the | the plaintiff brought his action on the 16th
market value of which exceeded in a certain fixed | June 1888 .
proportion the amount of the advances. If the By their statement of defence the bank denied
cover for the loan exceeded the required margin , that they had notice that the securities deposited
the brokers were allowed to withdraw securities with them by the plaintiff 's brokers were the
May 17, 1890.] THE LAW TIMES . [ Vol. LXII., N . S.- 429
Chan. Div.] SIMMONS v. LONDON Joint STOCK BANK ; LITTLE v. SAME.
securities of the customers of the brokers, and known to the bank that it was the habit of brokers
they stated that the said bonds had since the to deposit such securities belonging to their
time of deposit remained with them as part | customers ; it was therefore their duty to inquire
of the cover for the debt then owing to them into Delmar's title.
by the brokers, and that tbey had sold the Sir H .Davey, Q .C., Finlay, Q .C .,and W . Donald
bonds (as by the terms of the dealings between son Rawlins for the defendants. - The securities
them and the brokers they were entitled to in question were negotiable securities. The
do) and applied the proceeds in reduction of bank'have the legal estate and an equal equity
the debt due to them from the brokers ; that with the plaintiff . It was in accordance with
they had taken the bonds in good faith and their usual practice that the bank did not
become lawful holders thereof as bona fide pur inquire into Delmar' s title. The bonds were
chasers for value without notice of the plaintiff's not paid for, and could not have been paid for,
title. They submitted that they were not bound except with the money of the bank, which money
to make, and that there was nothing to suggest the bank found on the security of the bonds
to them the necessity or propriety of their themselves. There never was any agreement
making, any inquiries as to the authority of the by
brokers to deposit the said securities, or as to the for the plaintiff to take the bonds in substitution
his own which were fraudulently sold . As
interest which the brokers had therein by reason to the question of notice, the bank were bona fide
ofadrances or otherwise. They contended further transferees for value. If the bank were put
that, if the bonds in question ever belonged to the on inquiry because Delmar was a broker, that
plaintiff at all, he had so conducted himself as to
represent that they would pass with a good title would
v.
have been a complete answer in Goodwin
Robarts (ubi sup.). În Williams v. Colonial
to anyone taking them in good faith and for value,
and put it in the power of his brokers to hand 36BankCh.(57Div. L . T . Rep . N . S . 188 ; 59 Ib . 643 ;
over the bonds with this representation to the suggested that659the ; 38 Ib. 388 ) it was never
fact of Thomas and Co.
defendants. being brokers was decisive of the case. Then ,
The action now came on for trial. as regards the Earl of Sheffield 's case, Mozley ,
Warmington, Q.C . and Grosvenor Wonds for the who deposited the securities with the bank, was
plaintiff. — We submit that the case is covered by not an agent of the real owner at all. His
the decision of the House of Lords in Earl of moneybusiness was to advance, not out of his own
Sheffield v. London Joint Stock Bank (58 L . T . a lower, but out of money which he borrowed at
rate of interest than that at which he
Rep. N . S. 735 ; 13 App. Cas. 333), which was the
case of deposit by a money-dealer of similar he lent it ; and it was held that the bank knew that
securities with the bank to secure his loan was giving them only a sub-mortgage, and
account. The original bonds held by the plaintiff that the securities were not his own.
having been fraudulently sold by Delmar the Cur. adv. vult.
plaintiff must be presumed to have accepted as March 15 , - KEKEWICH, J., without calling for a
a substitute for them those purchased by Delmar reply, said : - The plaintiff, seeking to make the
in tbeir place : defendants liable for the value of the bonds in
London and County Bank v. London and River Plate question sold by them , must prove that thebonds
Bank , 20 Q . B . Div. 232 ; 21 Ib. 535. were his. That they were his in the sense of
[ The plaintiff proposed to read part of the having been purchased by him or by his instruc
evidence given by the defendants' manager in tions, he does not say, for those which were so
the case of Earl of Sheffield v. London Joint Stock purchased , and having been purchased were
Bank (ubi sup.) as to the practice of the bank in deposited by him with his brokers, were sold
making loans to customers. Sir H . Davey , Q .C . and delivered by them to strangers, and it is not
for the defendants. – It is not within the suggested that they can be traced to the de
authority of the defendants' manager to make fendants. But he says that the bonds in question
admissions to bind the defendants. Of course were purchas ?d under such circumstances that
he can give evidence, but that is another thing. the property therein passed to him before they
KEKEWICH , J . - No authority is cited on either reached the defendants' hands. The plaintiff's
side on this point. I am referred to the appendix brokers, whom I will refer to as Delmar, held on
in the case of the Earl of Sheffield before the behalf of the plaintiff bonds known as Cedulas
House of Lords, and it is suggested that there (I drop the letter indicating the particular issue) of
are there admissions by the defendants' manager the nominal value of 14 ,000 dollars. It matters not
as to their general course of dealing. Assuming whether they held them for safe custody or for
these are statements which may be useful here, any other purpose, for they certainly had no
I think they are admissible so far as they are authority to sell or pledge. In Oct. 1887 they
relevant to thematters now in dispute ; because used these bonds, in fraud of the plaintiff, for
they are statements made by an officer of the the purpose of raising money on their own
bank as to their general course of dealing.] The account, and this they did by a method familiar
plaintiff had a title as against Delmar when to dealers on the Stock Exchange, which,
the securities were deposited , and the bank whatever it may be technically styled , was
cannot have any better title against the plaintiff a sale accompanied by a contract of repur
than Delmar had : (Ex parte Cooke; Re Strachan, chase. Whether regarded by the light of Stock
35 L . T. Rep. N . S. 649 ; 4 Ch. Div. 123.) The Exchange rules, or apart from them , it was not
bank claim on the ground that the bonds were a pledge. An essential term of a pledge is that
Delmar's property. So long as Delmar was the on fulfilmentby the pledgor of the conditions of
holder, up to the 28th Oct, 1887, the day on which the bargain , commonly called redemption , the
he deposited them with the bank , he must have pledgee is bound to hand back to the pledgor
been holder on behalf of the plaintiff. It was the very thing deposited with him ; whereas on
430 — Vol. LXII., N . 8 .] THE LAW TIMES. (May 17, 1890.
CAAN. Div .] Simmons v. LONDON JOINT STOCK BANK ; LITTLE v. SAME. (Chan. Div.
a sale and repurchase of bonds or similar securi- I to Delmar, and though his title would have been
ties the original owner, who is first vendor and defeated had the cheque been dishonoured , I
then purchaser, can only claim on fulfilling the think that by such delivery the property passed
conditions of the bargain to be again made the to him . He, having the bonds, held them on
owner of bonds identical in character and behalf of the plaintiff, and notwithstanding his
nominal value with those which he sold , and contract could not pledge them with the defen
cannot insist on identity in numbers or other like dants, except in fraud of the plaintiff's rights.
particulars. The precise contract into which My conclusion on this point, therefore, is that
Delmar entered when in Oct. 1887 he tortiously the plaintiff has discharged the burden of proving
converted the plaintiff 's bonds to his own use is that the bonds in respect of which he sues were
not before me, but it undoubtedly was of this his, or, in other words, that he is entitled to say
character,and, assuming it to have been fulfilled the defendants sold his bonds. The identity of
according to its terms, the legal consequences the bonds purchased by Delmar under the
were those described by Lindley , L . J., in the circumstances above mentioned with those
judgment of the Court ofAppeal in Bongiovanni v . 1 pledged to the bank , and subsequently sold by
Société Générale (54 L . T . Rep. N . S . 320). There the latter, is not disputed . The more general,
fore, when Delmar sold the bonds on Oct. 12 and therefore more important, question for
and delivered them pursuant to the contract, decision turns less on the balance of evidence
he parted with all property therein, and,assuming than on the application of settled principles to
the contemporaneous contract of repurchase to admitted or proved facts. By settled principles
have been fulfilled according to its terms, the I mean those recognised by the House of Lords
property in the bonds which Delmar was entitled in The Earl of Sheffield v. London Joint Stock
to receive on Oct. 28 remained in the person Bank (ubi sup.). It was argued on behalf of the
bound to deliver them until delivery, and then , defendants that that decision turned entirely on
and not before, passed to Delmar. If, in fact, the particular facts of the case, and has no
the original contractor with Delmar, or some bearing on the one before me, and indeed on no
person , subrogated to his rights and liabilities, | other not practically coincident in circumstances.
delivered bonds pursuant to the contract to I do not so regard it. The learned Lords who
Delmar himself or any agent on his behalf, I ! expressed opinions adopted , while commenting
entertain no doubt that they thereupon and on , enlarging, and stating in their own language,
thenceforth belonged to the plaintiff in the conclusions of fact arrived at by the court
substitution for those tortiously sold . This below , but they considered that court to have
conclusion may probably be arrived at by more stopped short of the logical inference from their
ways than one ; but it is sufficient to say that conclusions, and they gave reasons for that
Delmar must be taken to have intended to repair criticism , and stated what they deemed to be the
the wrong done by him to the plaintiff, and right inference in termsequivalent, and, I believe,
to have restored the bonds, or rather the equiva intended to be equivalent, to legal propositions.
lent of the bonds, with which he had parted , It is true that the chief actor in that case, by
and that the plaintiff's rights would immediately nameMozley , was a money -dealer , and that the
have attached to the restored or substituted notice of his improper dealings with securities
bonds in Delmar's hands. Had the plaintiff with which the House of Lords held the defen
known what had been done he would , of course, dants to be affected depended in great measure
have claimed the bonds, but without any such on the ordinary business of a money -dealer and
knowledge or claim , and despite his ignorance the knowledge which the defendants necessarily
of the whole transaction, he must, according to possessed of that business. This, however, was
the “ artificial presumption founded on human only a step towards the ultimate result. The
nature," which is recognised in London and knowledge which was held to put the defendants
County Banking Company v. London and River on inquiry happened to arise in thatmanner, but
Plate Bank (21 Q . B . Div. 535), be taken to have had it arisen otherwise the infirmity of their title
accepted them . To the assumed facts that case is would have been the same. I do not think
directly applicable, and if they turn out to be it necessary to refer to many passages in the
substantially true it is an authority in the report in justification of this view of the case.
plaintiff's favour. I think they are substantially Many might be quoted , but I am content with
true. I must deal with the imperfect evidence one by way of illustration . In 13 App . Cas.,
of what took place as best I can, and, in deter towards the end of p. 345, Lord Bramwell states
mining what inferences are proper to be made, I the only question to be, whether there was
must apply , as a jury would, such knowledge as evidence on which there ought to be found notice
I posess of the habits of business and business of the infirmity of the title of those from whom
men in such matters. These substituted bonds the defendants claimed , and on the following
were paid for by means of Delmar's cheque, page he says : “ The expression should be some
which could not have been met without an thing like this. Notice of the infirmity of the
advance to the credit of his account, and that i pledgor's title, or of such facts and matters as
advance would not have been made unless he had made it reasonable that inquiry should be made
given the security which included these very into such title.” Is there such notice here ?
bonds. The inference most favourable to the That depends on the facts relating to this part of
defendants is, that the bonds must have been the case, which may thus be summarised. A
contracted to be pledged to the defendants before | large part of the business ofthe defendant bank
delivery, and must have been paid for by a | is to lend money to brokers on the deposit of
cheque which would have been dishonoured had securities. They have many brokers among their
that contract not been fulfilled . But it must customers, and Delmar was one of them . So
also be treated as proved , or at any rate must | large is this part of their business that they keep
be inferred , that the bondswere, in fact, delivered a separate book called “ Brokers' securities book "
May 17, 1890.] THE LAW TIMES. [Vol. LXII., N . S .- 431
Chan. Div .] SIMMONS v. LONDON JOINT STOCK BANK ; LITTLE v. SAME. [Chan. Div.
for the purpose. The loans to these brokers are other hand, honest brokers, who only seek to
generally made from settling day to settling day | raise money on their own securities, or securities
(a fact treated as significant in Earl of Sheffield which they have authority thus to deal with ,
v. London Joint Stock Bank ), and the bank affords will not be in any way impeded , for their title
them special facilities for withdrawing securities will be good , and they will have no real difficulty
on the deposit of others of corresponding value in persuading the banksof that fact. As regards
on settling days or at other times. It is part of bankers, it is well known that they rely at least
a broker's business (with which even if proofwere as much on the responsibility of the borrower as
absent I should suppose a bank whose head office on the value of the securities offered for a loan ,
is in the city of London to be reasonably well and they need not complain if in the future they
acquainted ) to retain their clients ' securities for are obliged to be even more careful in that
safe custody, and it is also part of a broker's direction ; nor, so far as I can see, need the
business not merely to buy and sell securities but necessity for greater care in anywise interfere
to lend money upon them . It is not usual for with legitimate business. Secondly, it is said
brokers to lend their own money or to borrow on that there is an element of novelty in the case
the securities of each client separately. What now made by the plaintiff, raising a presumption
they do is to borrow on the securities of their of unsoundness, and in support of this view
clients en bloc, without mentioning their names counsel referred to two cases in which the point,
or even indicating that anyone but themselves is | if sound, might well havebeen raised and decided .
interested . The bank,on their part, do not know As regards one of them , Williams y. The Colonial
that anyone else is interested , for they never ask Bank (ubi sup.), I wish to say as little as
questions, but assumethat the brokers are acting possible,because it is a decision , and an erroneous
within their authority. Mr. Narraway, the decision , of my own , and, moreover, is now
defendants' manager, naively confessed that no standing for judgment in the House of Lords.
useful purpose would be answered by asking In that case there were certainly someavailable
questions, for the honest customer would be materials, and the point did not escape the
affronted and the fraudulent one would give a | observation either of counsel or of the court ;
satisfactory, though false, reply. I notice in but the decision of the Court of Appeal was then
passing that the same course is pursued in trans standing, and the point to which I am now
actions with money-dealers ; but it was attempted adverting was excluded from more serious con
to be made out that it was also pursued when a sideration than it actually received by one which
merchant or other customer requires a loan in seemed to me, and also to the Court of Appeal
the ordinary course of business. The attempt (though they took a different view of it), sufficient
failed because, though , of course, ordinary cus to dispose of the case. The other case referred
tomers do occasionally require loans, and it is to is Goodwin v. Robarts (ubi sup.). I concur in
part of banking business to accommodate them , it the remark that the counsel by whom that case
could notbe truthfully said that tbeir transactions was argued for the appellant were not likely to
are at all similar to those with brokers as above have missed a point in favour of their clients ;
described . This summary of the evidence brings but, on the other hand, even they could not take
the case , to mymind, directly within the authority one precluded by the admitted facts of the case .
of the case in the House of Lords, and proves One of those admitted facts was that the re
that the bank , when making advances to Delmar, spondents, when accepting a deposit of the scrip
as one of their broker-customers, under such there in question ,did not know that the appellants
circumstances as are proved to have occurred had any claim upon it, and there does not appear
(circumstances of ordinary occurrence in respect to have been any ground for contending that
of like transactions), had notice of such facts and there wasnotice as distinguished from knowledge.
matters as made it reasonable that inquiry should The argument founded on novelty would not, in
have been made into his title Title in fact,as | any event, be entitled to much weight, seeing
regards these Cedulas, he had none. It was that we are dealing with a practice which , if not
conceded by the plaintiff, or if not conceded it | of recent origin, may be taken to have grown
was proved, that Cedulas are negotiable securities into importance of late years, and seeing also
within the rule of Goodwin v. Robarts (ubi sup.) ; that what is practically the same practice has
but, on the other hand, it was not contended that already been examined and condemned in the
they would pass by delivery, except to a bona fide case of The Earl of Sheffield v. The London Joint
holder for value without notice ; and, if my Stock Bank (ubi sup.). In my judgment, there
conclusion be correct, the Cedulas in question did fore, the plaintiff is entitled to succeed against
not so pass to the defendants. The negotiable the defendants, and to obtain relief on the footing
character of the bonds will not therefore avail of their having realised his bonds, without
them . I must notice two points raised on behalf authority, for their own use.
of the defendants. First, it is said that a decision In the action of Little v. London Joint Stock
in the plaintiff 's favour will make it henceforth Bank, the facts were very similar to the fore
impossible for brokers to raisemoney on deposit going, the securities being shares, share war
of securities, and that so there will be interference rants, and bonds, all payable to bearer, belonging
with the business of two important sections of to the plaintiff Little, which had been deposited
the mercantile community - brokers and bankers. by Delmar with the bank to secure his loan
I disclaim any such intention , and question the account.
conclusion. If this or any other decision renders In this case also the plaintiff had applied to
it more difficult for dishonest brokers to deal the bank on the 15th June 1888 for a return cf
with securities by pledging those of one client to | the securities, which had been refused .
secure an advance to another or to themselves, With regard to these securities, however,
the law will not be open to blame, nor will there | though some of them had been sold by the bank
be any occasion to regret the result. On the after Delmar's failure, they had retained others
432— Vol. LXII.,N .8.] THE LAW TIMES. (May 17, 1890 .
CHAN . DIT.] SIMMONS v . LONDON JOINT STOCK BANK; LITTLE v. SAME. [Chan . Div.
which had depreciated in value since the day of securities as a permanent investment, but with a
the plaintiff's demand . view to realisation , and that therefore it must
These securities the plaintiff alleged had been be presumed that, when the bonds reached their
bought by him , not by way of permanent invest- | highest price in the market, he would have im
ment, but with a view to selling them when a mediately realised at that price, and therefore is
favourable opportunity should occur, and the entitled now to have what he would have realised
question therefore arose to what damages the had that presumed sale been made. To my mind
plaintiff was entitled in respect of the securities that is very far from the legitimate conclusion .
now in the hands of the bank , which had so The very fact that a man intended to speculate
depreciated , as well as of those sold . that is to say, to buy not for the purpose of
Warmington , Q . C . and Grosvenor Woods for the investment, but with the view of selling again, if
plaintiff. — The plaintiff having bought these he could do so, at a profit - introduces an element
securities for the purpose of selling when a rise of chance or uncertainty into the problem . As
took place, the bank are liable in damages for the I pointed out to Mr. Warmington yesterday, it is
highest price they ever attained in the market quite uncertain whether Mr. Little would have
since his demand . We rely on realised before the securities reached the highest
Williams v . Peel River Land and Mineral Company, price, or whether he would have been advised or
55 L . T . Rep . N . S . 689 . have thought that the bonds would go higher.
[KEKEWICH, J. - I cannot presumethat the plain because But I need not pursue that matter further,
tiff would have sold on the day the highest price in the very case which is cited by Mr.
was reached.] The presumption may be made GrosvenorWoods (Williams r . The Peel River Com
against the bank , who are in the position of pany) thematter is dealt with , in language which
wrong -doers : is far better than any I could use, by Bowen , L .J.
Cockburn v. Edwards, 43 L . T. Rep . N . S. 755 ; 16 He says (55 L . T . Rep . N . S., at p. 693) : “ Would
the owner of the stock hare sold bis stock during
Ch . Div. 393.
It must be taken that the plaintiff would have | the period wbich intervened between the refusal
to give it up and the trial? Now , the market
sold when it was prudent to sell. As to those rose during a portion of the time, and themarket
which have been sold, the plaintiff ought to have fell during the latter part. Would the owner
the price at which they were sold with interest, of the stock have sold ? " I need not read
and a som to represent the dividends which any more,
would have been received if they had been re to the Court but those questions were present
of Appeal, and they saw the element
tained until they reached their highest price.
Sir Horace Davey, Q .C., Finlay, Q.C., and W . of chance, and did not give the plaintiff there the
relief which is claimed here on behalf of Mr.
Donaldson Rawlins, for the defendants, cited Little . It seems to me that, according to any
Re Bahia and San Francisco Railway Company, principle on which damages ought to be ascer.
L . Rep. 3 Q . B . 584 . tained , all element of chance must be excluded
[They were stopped.] from the calculation . There are many other
KEKEWICH, J. - I have looked into the cases cited | passages in that report, the whole of which is
by Mr. Grosvenor Woods, and I do not think I worthy of study with reference to a case of this
need hear Sir Horace Davey on themain question . kind, which I think support the same view , or at
I do not propose to give any other than a formal any rate do not support the view put forward by
judgment in Little v . The London Joint Stock Bank, Mr. Grosvenor Woods. But, apart from that,
because I understand the facts to be practically | there are several cases going to the same con
the same as those in Simmons' case, and , as clusion. There is the case to which Sir Horace
Sir Horace Davey has properly said, that being Davey shortly called my attention yesterday
so, he cannot argue the questions of law . The Be Bahia and San Francisco Railway Company
only point, therefore,upon which I have to say - in which there are several material passages.
anything is as to the measure of damages, a point Cockburn , C . J. says (L . Rep . 3 Q . B ., at p. 595 ):
which arises under somewhat different circum “ The measure of damages would be the market
stances in the two cases. In Simmons's case the price of the shares at that time; if no market
bank realised all the securities in question price at that time, then a jury would have to
immediately after Delmar's failure. In Little's say what was a reasonable compensation for the
case they realised some, but not others . It is loss of the shares.” Lord Blackburn says very
contended , on behalf of the plaintiffs, that in much the same thing at the end of his judgment,
both cases this rule is to apply, that the bank and with these judgments Mellor and Lush , JJ.
are to be responsible, not only for the securities concurred. The case on which my decision on
which they can give up, or for the value of the | the main point has much turned, Earl of Sheffield
securities realised by them , but for such a sum v . London Joint Stock Bank, entirely sapports the
as represents the difference between the present same view . The formal judgment of the House
value of the first, or the realised value of the of Lords is in accordance with what the Lord
second , and the highest price which has been | Chancellor says in moving the House. He says
attained , according to the market quotations, (13 App. Cas.,at p . 341) : " I move your Lordships
since the date of conversion - the date when the that the judgment of the Court of Appeal and
bank claimed these securities as their own. In of Pearson, J . be reversed , and that the plaintiff
support ofthat Mr. Grosvenor Woods referred to a is entitled to the declaration he asks and the
case, reported in the Law TIMES, before the Court redemption of such bondsand securities as remain
of Appeal (Williams v. The Peel River, de. Com - | unsold ,and an inquiry as to the value of the stocks
pany, 55 L . T. Rep. N . S . 689). The only ground and bonds sold , such value to be ascertained as
upon which the claim is rested is that the at the time when the plaintiff demanded tbeir
plaintiff - say, Mr. Little, as it was principally redemption upon his tendering the amount of the
on that case it was argued - did not purchase the l debt and interest due upon them ." No doubt tbe
May 17, 1890.] THE LAW TIMES. ( Vol. LXII., N . 8.- 433
Chan. Div ] WHITEHURST (app.) v. FINCHER (resp.). [ Q .B . Div.
immediate application of that case is made a little i KEKEWICH, J. - It seems to me that, as I am
more difficolt by the peculiar circumstances and not dealing with a case of redemption or rights
the element of redemption which is there referred of contract but the right to damages, the plaintiff
to ;buttheprinciple seemsto be the same, and that is entitled to the difference in value as damages.
principle is recognised in many other cases, I think the bank are entitled to deduct the
and is thus precisely stated in the judgment of commission on the securities sold .
the Master of the Rolls in the case of Re Solicitor for plaintiffs in both actions, R . S.
London , Tilbury, and Southend Railway Company Gregson .
and Trustees of Gower's Walk Schools (24 Q . 3 . | Solicitors for defendants, Clarke, Rawlins, and
Div. 326 , at p. 329) : “ On this point the rule Co.
seems to me to be that where a plaintiff has a
cause of action for a wrongful act of the defendant
the plaintiff is entitled to recover for all the QUEEN 'S BENCH DIVISION .
damage caused which was the direct consequence Thursday, Jan. 30.
of the wrongfulact and so probable a consequence
that, if the defendant had considered the matter, (Before Fry, L .J. and Mathew , J.)
he must have foreseen that the whole damage WHITEHURST (app.) v .FINCHER (resp.). (a)
would result from that act." It appears to me Gaming - Betting - Room “ open , kept, or used ”
that what is contended for on behalf of the y for betting - Person making bets in bar-room
plaintiff is not so probable a consequence that I of public-house - The Betting Houses Act 1853
can understand the bank to have foreseen it. ( 168 17 Vict. c. 119), ss. 1, 3.
Frequently that is a difficult principle to apply , A person on three successive days went to the bar
because, when you speak uf the consequences room of a public-house for the purpose of betting,
foreseen from the breach of the contract, as often and dill there bet upon certain horse races with
as not, and probably more often than not, no persons resorting thereto, but he had no interest
consequences are foreseen or contemplated . But in the keeping, management, or tenancy of the
here one can well understand the bank saying, room , or of any part of the public-house.
“ Wehad better realise ; for if we realise, and we Held , that, as the room had not been opened , kept,
are found, after all , to be in the wrong, we shall or used for the purpose of betting, he had not
know what we have to pay for it, or what damages committed an offence under the 3rd section of the
we shall have to pay," One may fairly put Betting Houses Act 1853,which imposes a penalty
oneself in the position of the bank and of the upon any person who being the owner or occupier
plaintiffs, and, at any rate, the bank never could of any house, office, room , or other place, or a
have contemplated that these bonds would go up person using the same, shall open , keep , or use
to any higher price, or even have contemplated the same for the purpose of betting with persons
a price at all. They certainly could not fix a resorting thereto.
price which would be the maximum price during Snow v. Hill (52 L. T. Rep. N . S. 859 ; 14 Q . B .
that particular period. Therefore that argument Div. 588) followed.
altogether breaks down on principle and on CASE stated by the stipendiary magistrate for
authority, and I cannot allow that claim . As the Wolverhampton and South Staffordshire
regards the securities which the bank have not district :
realised , which is only in Little's case, they must At a petty sessions held atWest Bromwich, the
of course hand them over - that will follow from defendant was charged on three several informa
my judgment - and equally of course they must
account for any interest or dividends received by tions with having,on the 27th , 28th , and 29th days
them on what I have held to be the plaintiff's of June 1889, unlawfully used a certain room ,
(Little's) and not theirs. Then , subject to what namely , the bar-room of the Dartmouth hotel,
Sir Horace Darey may say , and I will hear him West Bromwich , for the purpose of betting upon
- I think they ought also to account for any certain horse races with persons resorting thereto ,
difference in the value of these securities on thecontrary to sect. 3 of the Betting Houses Act
15th June and the present time; that is to say, (16 & 17 Vict. c. 119). It was proved that the
if they are giving over securities of less value defendant, on each of the days mentioned , went
than they received , as at present advised , and to the bar-room of the hotel for the purpose of
subject to argument, I think they ought to betting, and did there bet with persons resorting
account for the difference. As regards what thereto upon certain horse races. The defendant
they realised in either Little's case or Sim did not occupy any specific part of the room or
mons's case, they will, according to my judg. bar, which was a public room , neither had the
ment, be accountable for the suns which they defendant any interest whatever in the keeping,
receired, which is fixed, I think , by the Earl management, or tenancy of the said room , or of
any part of the hotel.
of Sheffield 's case (ubi sup.) at 4 per cent. until
payment. For the defendant, it was contended before the
Sir H . Davey, Q .C .-- As regards some of themagistrate that he could not be consicted under
securities in Little's case which were not sold sect. 3 of the Act, as he only resorted to the room
by the bank , it is not the fault of the bank or bar as one of the public, although he did make
bets with other people when there ; and in support
if they have declined in value since the plaintiff's
demand. An offer was made by the bank that of this contention he relied on Snow v. Hill
they should be sold without prejudice to the dis (14 Q . B . Dis . 588 ).
puted claim , but the plaintiff's solicitor refused For the complainant, it was contended that a
to allow this to be done. On this ground, there " room " being designated by sect. 3 of the Act,
fore, the bank ought not to be liable for any the defendant " used ” the same for the purpose
depreciation in value which has taken place since of betting,and was therefore guilty of an offence
their offer. (a) Reported by W . Orr, Esq.,Barrister-at-Law .
Q.B. Div.] The MAYOR, & c., OF SALFORD v.LEVER. [Q .B . Div.
under the section : (Slatter v. Bailey, 37 J. P. | that “ no house, office, room , or other place shall
262.) be opened , kept, or used for the purpose of the
The magistrate held that, although the defen owner, or occupier, or keeper, or any person
dant did in fact make use of the room or bar for using the same, betting with persons resorting
the purpose of betting, and did in fact make bets thereto ; " then sect. 3 imposes a penalty upon
there, still, as he had no interest in the room or “ any person who being the owner or occupier of
any designated place therein , it was not such a | any house, office, room , or other place, or a person
user as was contemplated by the statute, and he using the same, shall open , keep , or use the same
dismissed the summons, but stated this case as for the purposes hereinbefore mentioned," that
to whether his determination was correct in point is, for the purposes of betting with persons
of law . resorting thereto. Now the magistrate thought
F . J. Lowe (Shakespeare with him ) for the that, to bring the case within the Act, it was
appellant.-- I submit that the learned magistrate necessary to establish that the defendant used &
was wrong, and that he ought to have convicted room which had been opened , kept, or used for
the defendant. The question was, whether the the purpose of betting. It appears to me that
defendant was a person using the place for the the magistrate was right, as it is not sufficient to
purpose of betting,and the magistrate found that show that the defendant went to this bar and
he was not. It was not the intention of the there made bets. The case further seems to me
Legislature that, to ensure a conviction , there to be covered by Snow v. Hill (ubi sup.), & case
should have been a previous user of the place for decided by a court of co -ordinate authority, and
betting . The 1st section of the Act renders one therefore by which we are bound, though that
liable to prosecution as nuisances, houses opened , case seemsto me to be perfectly correct, and the
kept, or used for the purposes of betting ; sect. 3 same arguments were used there as have been
saysto that people using such used in the present case. I think therefore the
houses shall beand
goes further liable a penalty . [MATHEW , J. magistrate was quite right, and that the defen
- That is for using rooms so opened, that is, dant ought not to have been convicted .
opened for the purpose of betting. The section FRY, L .J. - I am of the same opinion. If we
is aimed at three classes of persons, owners, yielded to the arguments urged for theappellant,
occupiers, and users, and it was necessary to every betwould be a criminaloffence unless made
introduce this third class of persons, namely, without using any room or house.
persons “ using " such houses, otherwise the Appeal dismissed .
section would have been restricted to owners and Solicitors for the appellant, C . Robinson and
occupiers. The very introduction of those words
shows that the Legislature meant “ users ” open Co., for W . Shakespeare, Birmingham .
ing, keeping, or using such houses, as well as
owners or occupiers opening, keeping, or using
the same. [FRY, L .J. - If a person make a bet Tuesday, March 11.
in his own house, is it a breach of an Act of
Parliament, or can he be indicted criminally for (Before Lord ESHER, M .R . and Fry, L. J.)
it . If what you say is correct, it would be THE MAYOR, & c., OF SALFORD V. LEVER. (a )
criminal to make a bet in any room .] This Practice - Interrogatories - Corporation - Order to
was a public place, in the public bar of a public administer interrogatories to town clerk of — Toren
house, and themagistrate finds as a fact that the clerk Solicitor of corporation - Answer by toron
defendant went to the room for the purpose of clerk - Privilege.
betting, and did so bet. I submit that Snow v . Interrogatories delivered in an action by a corpo
Hill (52 L . T . Rep . N . S . 859 ; 14 Q . B . Div . 588) ration to the town clerk , under an order " for the
was wrongly decided , and that Slatter v. Bailey examination of S. B . the town clerk of the abore
(37 J . P . 262) is in point in my favour. named plaintiffs," were answered by the town
The defendant did not appear. clerk,who objected to give the information sought
MATHEW , J. - In this case the facts appear to for, on the ground that the whole of the informa
be, that on three days the defendant went to a tion which he or the plaintiffe possessed had been
certain room or bar in a hotel for the purpose of obtained by him as solicitor for the plaintiffs in
betting, and did there bet with persons resorting that action , and was therefore privileged .
thereto , upon certain horse races, and it was con Held , that the information was privileged, and that
tended before the magistrate that he was using the answer was sufficient.
this bar for the purpose of betting within the | Mayor of Swansea v. Quirk (41 L . T . Rep . N . S.
meaning of the Act. That argument goes to the 758 ; 5 C . P. Div. 106 ) distinguished, on the
length of saying that, if a person makes a bet in ground that in that case the order vas for the
any place, he comes within the scope of this Act examination of the town clerk of the corpora
of Parliament. We are bound by the Act, and tion , “ or other their proper officer," and the
it is important to see from the preamble of the corporation having elected to answer through the
Act what the object of the Act was. The pre town clerk , could not maintain the objection of
amble sets out that, “ whereas a kind of gaming privilege.
has of late sprung up to the injury and demoralisa APPEAL by the plaintiffs from an order made by
tion of improvident persons by the opening of Lawrance, J. at chambers, ordering the plaintiffs
further and better answers by their town
places called betting hcuses or offices, and the to give
receiving of money in advance by the owners or clerk to certain interrogatories administered to
occupiers of such houses or offices, & c., for the them by the defendant.
suppression thereof, be it enacted , & c.” Now , Theplaintiffswerethe proprietors of the Saiford
that preamble is explicit , and refers to betting Gasworks, and they had employed one Samuel
houses ; and the statute goes on to enact in sect. 1 (a) Reported by W . ORR, Esq., Barrister-at-Lar.
May 17, 1890.] THE LAW TIMES. (Vol. LXII., N . S.- 435
Q.B.Div.] ti₂m₂/₂ņētiņâū₂₂₂?Â?Â₂Ò₂Â₂Ò₂ÂòÂ§Â§₂ § [ Q.B. Div.
Hunter, as their manager and confidential agent, I interrogatories to the town clerk , so that the
his duty being to examine tenders for the supply corporation had no such choice, and that being
of coal, and to advise the plaintiff in relation so, he is entitled to claim a solicitor's privilege,
thereto . and to say that he has no knowledge of the
It was alleged by the plaintiffs that, in order to matters inquired into except what has come to
obtain the contracts for the supply of coal, the him as solicitor for the corporation in this action .
defendant, a coal merchant, under a secret agree So that the plaintiffs clearly come within the
ment with Hunter, promised to give, and had privilege laid down by the House of Lords in the
actually given , a commission or bribe of 1s. per case of Lyell v. Kennedy (50 L . T . Rep . N . S . 277 ;
ton on all the coal which should be supplied by 9 App. Cas. 81), where it was held that a party to
the defendant to the corporation. an action cannot be compelled to answer interro
The present action was brought by the plain gatories with regard to certain matters of fact,
tiffs to recover from the defendant the sum which if he swears that he has no knowledge or infor
the defendant had paid to Hunter in respect of mation with regard to these matters except such
this commission ; the plaintiffs contending that | ashe has derived from privileged communications
the prices paid by them to the defendant were in made to him by his solicitor.
excess of the true market prices of the coal by Gainsford Bruce, Q .C. (C . M . Atkinson with him )
the amount of these bribes. for the respondent. The only point in the case
The plaintiffs had interrogated the defendant was the question of privilege, and that was the
as to the secret agreement with Hunter alleged only point before the judge, aud I submit the
in their statement of claim , but the defendant town clerk has not brought himself within the
refused to answer on the ground that the answers privilege of a solicitor. The case of the Mayor
might criminate himself ; the defendant then of Swansea v . Quirk (ubi sup.) is in point here ;
interrogated the plaintiffs as to the particulars there is no substantial difference in the form of
of the same agreement, and his interrogatories the order. The town clerk is the officer of the
were administered to the town clerk , the order corporation , and so far as he is to answer he has
being “ for the examination of Samuel Brown, no existence of his own ; he is the voice of the
the town clerk to the above-named plaintiffs.” corporation , and he does not speak in his own
The town clerk , who was also the solicitur for | name. He cannot therefore claim this privilege,
the plaintiffs in this action , objected to answer nor can the corporation claim it on his account.
several of the interrogatories “ on the ground Lord ESHER, M .R . These interrogatories are
that the whole of the information which I or the an attempt to frighten the plaintiffs
plaintiffs possess in regard to thematters inquired not how much they know , but how, tolittlefind out
they
into thereby has been obtained by me or under know ; it is worse than that, for the defendant
my immediate superintendence and direction in is trying to break down as against the corpo
my character as solicitor for the plaintiff in this ration the relation between solicitor and client
action , for the express object and purpose of in this action , and to get the evidence of the
enabling the plaintiffs to bring and maintain this solicitor for the purposes of his brief. The defen
action .” dant has no right to do that. Here the corpora
The question was whether this was a sufficient tion through the town clerk have given an answer
answer . which ,unless the town clerk is not to be considered
Master Manley -Smith held that it was, but the as a solicitor, the defendant is bound to take. The
learned judge, on the authority of the Mayor of answer comes to this : “ Before the litigation I
Swansea v. Quirk (41 L . T . Rep. N . S . 758 ; 50. P .
know nothing touching the matters in question ;
Div. 106 ), held that it was not sufficient, and ne since the action has been commenced I have been
ordered a further and better answer . acting in another capacity, namely , as solicitor
The plaintiffs appealed. for the corporation in this suit, and in that
Henn Collins, Q. C . (Scott Fox with him ) for the relation I have got the information which I
possess.” It seems to me that is a sufficient
appellants . — Here the order was for the interro answer. The privilege claimed is not really the
gatories to be administered to and to be answered
by the town clerk , and the town clerk says he the privilege of the town clerk or the solicitor, but
knows nothing touching thematters in question learned privilege of the clients, the corporation . The
except what had come to his knowledge as solicitor Mayor of judge was misled by the case of the
Swansea v . Quirk (ubisup.) cited to him ;
for the plaintiffs in this action . That is a suffi .
cient answer, and the town clerk can claim the but that case was different from this, for there
privilege of a solicitor in refusing to answer there was a door left open , there the corporation
having the choice of selecting which of their
further. The learned judge decided the case on officers should answer for them , elected to answer
the authority of the Mayor of Swansea v . Quirk
(ubi sup.), but that case is easily distinguishable through their solicitor who was also town clerk ,
from the present, for there the order was to and it was held that under such circumstances
deliver interrogatories for the “ examination of the objection to answer could not be maintained .
John Thomas, the town clerk of the plaintiffs, or The present case is distinguishable, as the corpo
other their proper officer," and the court there ration have no choice in the matter, the order
held that, as the corporation had the choice of being for the examination of the town clerk .
selecting which of their officers should answer FRY , L .J. - I am of the same opinion . The
for them , and as they had chosen the town clerk , town clerk says that thewhole of the information
who happened to be their solicitor, he could not of which he is possessed is information which he
raise thie objection that the only knowledge he has obtained as solicitor in this action . Now , if
had was from communications made to him as the plaintiff had been a private individual he
solicitor in the action . The present case is entirely would have been entitled to rely on that answer .
different, as here the order was to administer the i In the present case the town clerk is the solicitor
Q .B . Div.] Davis (app.) v. STEPHENSON (resp.). [ Q .B . Div.
of the corporation, and he says that the corpora - | the entry , the piece of waste ground, nor Nelson
tion knows nothing of the matters except what he passage was included in the licensed area , nor
has told them , not as town clerk , but as solicitor were they in the occupation of the appellant.
in this action, and that he has no knowledge On the said 20th June a man named Adam
except what he has gained as solicitor in this Hicks stood in Nelson -passage and upon the
action ; that seems to me to be a sufficient answer. waste ground from 12.30 p.m . to 2.35 p.m . During
I cannot shut my eyes to the nature of these that time 188 persons (backers of horses, or their
interrogatories as a whole ; they are an abuse of authorised agents) came up to him and each
the system ; they are addressed to inquiries not handed him a closed packet containing money
only as to facts but as to allegations, or they are wrapped up in pieces of paper upon which were
addressed to discovery of the plaintiff's case ; written the names of horses running at Ascot
they are in fact a request to hand to the defen - | races on that day which were intended to be
dant the plaintiffs' brief. I think therefore this | backed, the name of the backer, the amount
summons for further and better answers to these deposited for the purpose of backing each horse,
interrogatories ought to be dismissed with costs, and the hour at which the race was to be run .
and this appeal allowed . Appeal allowed. These packets were delivered to Hicks and
received by him on an agreement that, if the
Solicitors for the plaintiffs, Trass and Jarmain, horse therein named won the race named , Hicks
for the Town Clerk , Salford. was to pay to the backer the amount deposited in
defendant, Godfrey Rhodes, addition
Solicitors for the Godfrey to the amount won , according to the
Firth , and Co., for Rhodes and Evans, odds current against such horse at starting.
Halifax . None of the persons from whom the packets
were received were proved to have been persons
resorting to the licensed premises.
Friday, March 14. As the packets accumulated , Miss Davis, the
daughter of the appellant,and who lived at home
(Before Lord COLERIDGE, C.J. and Lord ESHER, at the Justice tavern , came to Hicks during this
M .R .) time on three separate occasions,on each occasion
Davis (app.) v. STEPIENSON (resp .). (a) receiving from him a number of the packets
Illegal betting - Betting outside licensed premises , which he took from his pockets and which she
Depositing money inside- 35 & 36 Vict. c. 94, 8. carried into the Justice tavern .
17 ( Licensing Act 1872) — " Suffering house to be 1 . Upon a search - warrant being afterwards
Theusedlandlord
" - 16 & of17licensed
Vict. c. 119, 88. 1,who
3. knowingly executed on the same day at the Justice tavern ,
premises the appellant was found behind the bar, and
allows his house to be used as a place of deposit Hicks on the licensed premises in the public
for money which has been received in betting on a bar among the ordinary customers. The appel
spot outside the area included in the licence lant had in front of him a glass containing
cannot be convicted of suffering his house to be money, and also a paper containing a list of
used for the purposes of betting. names known as a “ paying out sheet " (relating
to other days than the 20th June) and used in
This was a case stated by the Recorder of Bir connection with betting on horse racing. A
mingham : number of papers forming part of the packets
The appellant, Frederick Davis,was convicted given to Hicks in Nelson-passage and on the
on the 9th July 1889 by the stipendiary magis
having, Thursday the 20th June 1889,
waste ground on the same day, and which
trate of on contained the names of horses, and the par
in the city aforesaid , then being the holder of a ticulars above stated , were also found in an
licence for the sale of intoxicating liquors by envelope in a drawer in the public bar near
retail in a house and premises there situate, and where theappellant was. These packets, which
known by the sign of the Justice tavern , had contained money , as well as the papers, had
unlawfully suffered his said licensed house to be been opened, and their contents brought to the
kept and used in contravention of the Act 16 & knowledge of the appellant.
17 Vict. c. 119 intituled “ An Act for the Hicks was convicted by the stipendiary magis
Suppression of Betting-houses," contrary to the trate of using the waste ground and Nelson
Licensing Act 1872, and was fined 101. and costs, passage on the 20th June in contravention of
the conviction to be indorsed on his licence. the Act for the Suppression of Betting-houses,
Davis appealed to the Quarter Sessions in and was fined 201. and costs, which were paid, and
October, when the following facts were proved there was no appeal.
and set out in the case stated : Hicks was a person using the said house, and
The appellant was on the 20th June 1889 the Miss Daris acted in the aforesaid matters for
keeper of a licensed beerhouse called the Justice bim , and they were the persons alleged to have
tavern , in Moor-street, Birmingham . There was used the said house on the said 20th June in
a side door to the Justice tavern which opened contravention of the Act for the Suppression of
into an entry leading from Moor -street by the Betting-houses.
side of Justice tavern , and terminating in a smallNelson -passage and the waste ground were
piece of waste ground at the back of the Justice resorted to, and the packets and the money
tavern . There was also a back -yard door which were received there by Hicks and conveyed
opened into the entry. This piece of waste thence by Miss Davis as his agent and on
ground on the other side was open to a public
foot- road known as Nelson-passage. The back his behalf into the Justice tarern for the
express purpose of endeavouring to evade the
yard door and the entry could be seen from the Act of Parliament, and with the knowledge and
waste ground and from Nelson -passage. Neither connivance of the appellant, who throughout
(a) Reported by MERVYN LL. SEEL, Esq., Burrister-at-Law . i aided and abetted Hicks and Miss Davis, and
May 21, 1890.) THE LAW TIMES. [Vol.LXII., N . S. -437
Q.B. Div .] DAVIS (app .) v. STEPHENSON (resp .). [ Q .B. Dir.
suffered his house to beused to receive the packets, ground and passage for the purposes of betting,
well knowing that they were brought into his yet the appellant will have been convicted of
house on behalf of Hicks, and that they con: allowing him to use his public-house for those
tained money which was received by Hicksas the purposes. If a man bet in a certain place and
consideration for an assurance to pay thereafter took the money and papers he received to his
money on a contingency relating to horse racing . bank , and gave notice that he would pay the
The appellant contended that the Licensing Act money at his bank, the bank could not be con
1872, and the Act 16 & 17 Vict. c. 119, are not | victed of receiving the money. The Act of
contravered unless the persons with whom the | Parliament does not hit at betting, but at having
bets are made actually resort to the house or a particular place to which persons may resort,
other place alleged to hare been kept or used . or or to which they may send their money. The
unless the money received by or on behalf of the only point is, did the people resort to the public
keeper or person using such house or other place house, or was that the recognised place where
is actually received at such house or other place the money was to be sent and received by Hicks ?
and not merely carried there after having been It is true the house was used for storing the
originally received elsewhere. money and the papers, but that was after their
The learned recorder overruled these con receipt by Hicks outside the licensed area . The
tentions and dismissed the appeal with costs. paying out of the money to the winners is not
The question for the opinion of the court was, part of the betting hit at by the statute. The
whether the recorder was right. moment you find that the act of resorting and
Sect. 17 of the Licensing Act 1872 (35 & 36 the act of receiving are not done on the licensed
premises the statute does not apply ,and the mere
Vict. c. 94) provides : fact that after the receipt of the money another
If any licensed person (1) suffers any gaming or any place is used as a sort of storehouse, is imma
anlawfulgame to be carried on on his premises, or (2) terial. If they had charged the appellant with
opens,keeps, uses, or suffers his house to be opened , kept,
or used in contravention of the Act 16 & 17 Vict. c. 119 receiving the money in the house himself the
(an liable
Act for thepenalty.
Suppression of Betting Houses), he shall case might have been different, but he is charged
be to a . . . with allowing Hicks to use his house for the
Sects. 1 and 3 of 16 & 17 Vict. c. 119 provide : receipt of the money. The cases of Whitehurst
and Snow v. Hill ( L . Rep .
Sect. 1. No house, office, room , or other place shall be | v. Fincher (88 L . T . 255)
opened, kept, or used for the purpose of the owner, | 14 Q . B . Div. 588, in which see the judgment of
occupier,or keeper thereof, or any person using the same, Smith , J.), show tbat the place must not merely
orany person
on behalf procured
of such
or employed by, or acting for or
owner , occupier, or keeper or person be one that is used for purposes connected with
using the same, or of any person having the care or the actual betting , but must be a recognised
management or in anymanner conducting the business place where the resorting or the receipt of the
thereof,betting with persons resorting thereto ; or for money takes place ; otherwise the statute does
thepurpose of anymoney or valuable thing being received not apply . Hicks, after the betting wasover, went
by or on behalf of such owner, occupier, keeper, or into the public -house as an ordinary customer,
person as aforesaid as or for the consideration for any
assurance , undertaking, promise, or agreement, express and what the statute forbids had been done
or implied , to pay or give thereafter any money or before he went into the house. Even if it had
valuable thing on any event or contingency of or been given out that the winners would be paid
relating to any horse race . . . or as or for the at the public-house, that would not be an offence .
consideration for securing the paying or giving by some Paying bets is not an offence against the statute.
other person of any money or valuable thing on any such The case of Bows v. Fenwick (L . Rep . 9 C . P . 339)
event or contingency as aforesaid : and every ]
office, room , or other place opened , kept, or used for the shows that it is quite lawful to bring all the
purposes aforesaid , or any of them , is hereby declared to paraphernalia of betting into a house so long asthe
be a common nuisance and contrary to law .
Sect. 3. Any person who, being the owner or occupier people do not bet there. In Reg. v . Cook (L . Rep .
ofany house ,office, room , or other place, or a person 13 Q . B . Div. 377) it was held that, as the business
of certain bicycle grounds at which betting had
asing the same, shall open , keep, or use the same for
the purposes herein before mentioned , or either of them : taken place was not that of illegal betting, the
and any person who, being the owner or occupier of any manager of the grounds was not liable under
bouse, room , office , or other place, shall knowingly and sect. 3. There Hawkins, J. went fully into the
wilfully permit the same to be opened , kept, or used by intention of the statute ; and see also the judg.
any other person for the purposes aforesaid , or either ment of Smith , J ., p. 386 . All these cases show
of them ; and any person having the care or manage.
ment of, or in any manner assisting in conducting the that the statute does not intend to prevent
business of any house, office, room , or place opened , betting. It does not intend to prevent people
money
kept, or used for the purposes aforesaid , or either of paying, or assisting to take care of thebetting.
them , shall, on summary conviction thereof . . . be or tickets in any way in connection with
liable to a penalty . What it does intend is to prevent any assistance
Hugo Young for the appellant. - Could it be in a particular form of betting ; that is , having
said that a man permitted to be done on his a place of any description which people may use ,
licensed premises what was, in fact, done outside such as a place where one can go and make a
them ? The people resorted to the waste ground bet. If this conviction is held good it will decide
and the passage, and the money was received this : that what is meant by the statute is not
where people resort and money is
there. Sect. 1 is directed against two things | merely a placethe
only , namely , betting with persons resorting to received for purpose of betting ; but that it
a particular house, and using the house for the also includes a house where such money or any
receiving ofmoney. Neither of these has taken paraphernalia can be carried ,after the transaction ,
place here, therefore the conviction is bad. which constitutes the betting, is complete.
Were the conviction to be allowed to stand, the | Poland, Q .C . (Russell Griffithswith him ) for the
curious result would follow , that whereas Hicks prosecution. The point reserved by the learned
has been convicted of using only the waste Recorder is, whether the offence of receiving by
VOL. LXII., N . S., 1593.
438 — Vol. LXII., N . S.] THE LAW TIMES . (May 24, 1890.
Q . B . Div.1 Davis (app.) v. STEPHENSON (resp.). [ Q .B . Div.
Hicks was completed outside the public-house. | is admitted that there must be a receipt in the
Now when the packets were given to Hicks they house. Here it seems that there wasno receipt in
were closed . He does not wait to open them , but the house. I am quite aware that this may tend to
in connivance with the appellant employs Miss the direct evasion of what the Act of Parliament
Davis to carry them into the public-house, where lays down. Still I do not make Acts of Parlia
he afterwards goes and opens them and makes | ment ; I must construe them . The conviction
acquaintance with their contents. The receipt must be quashed .
cannot be completed until this is done, because Lord ESHER, M .R . - It is said that Hicks and
until then he does not know what the considera Davis had been trying to evade the Act of Parlia
tion is. Thus the public-house is made into the ment, and that we ougbt not to let them evade
place of receipt, and is used by Hicks as a it. Now , there is always a struggle goicg on
receiving office. There was in fact a continuing between the law and people who want to break
receipt, which did not become complete until the it ; and the moment the law is passed, their
packets were opened in the public-house. There whole ingenuity is at once exercised to evade it.
fore there is a sufficient receipt by Hicks of the But, if the law is a penal law , the question is not
money inside the house to come within the whether they are trying to evade it, but whether
section . they have successfully done so. Now , what is
Lord COLERIDGE, the conclusion Davis, the man
C .J. - I cometogreatest who keeps the public-house,
at which I have arrived with the possible charged with ? He is charged with having un
reluctance, because I feel that in a case which lawfully suffered his house to be used in contra
could be put somewhat stronger than the vention of the Act . He was found guilty of that,
circumstances in this case there could be what and he cannot be found guilty at all. The charge
would seem like a careful and deliberate evasion was, that he had suffered Hicks to use his house
of the Act of Parliament. On the other hand , in contravention of the Act. Did he suffer Hicks
I am unable to see how this conviction could be to use his house for the purpose ofmaking illegal
sustained without a liability to a similar con bets in it ? Certainly not; that is not the charge.
viction under a set of circumstances perfectly But did he suffer Hicks to receive the money ?
reasonable and not at all unlikely to occur, which Now , Hicks went on to a piece of waste ground,
would manifestly not be within the words of the that is, the place where he advertised for the
Act of Parliament. Now Mr. Poland has stated purpose of making bets . People come to him ,
and his case fails unless he can show that it and they bring him the money with the paper
was so — that Hicks received the money in the closed, in which are the terms of their contract.
house of Davis with the knowledge and sanction He agrees with them that, whatever the terms
of Davis, and that Davis suffered his house to
be used for the purpose of Hicks receiving his are inside the paper, the moment they give him
that paper he accepts the bet. Well, what has
money therein , and Mr. Poland admits that unless happened with the money inside the paper :
the facts of the case will make out that conclusion Why, he has received it. Now , all this is done
in point of law this conviction is bad . Now what on the waste ground, and the public -house is not
Hicks really did was to arrange with Davis that used in the smallest degree for that purpose ;
from time to time the money, which he had and Hicks has the money. For the purpose of
received on a waste place from personswith whom the man who has made the bet with him , he has
he bet upon certain terms written down inside received the money . After he has received the
certain packets containing their stake (on receipt money he sends it to the public -house, and Davis
of which different terms arose in each case), receives it to keep it. What for ? To keep it
should be brought by him into Davis's house. for him . That is the arrangement between
What he did was, he got on a waste place, them ; and when Hicks comes and asks for it
admittedly not part of the licensed premises, Davis will give it him . It is impossible, it seems
and there he made bets with persons. They put to me, to say that Davis has suffered this public
their money into pieces of paper which he put into house to be used for the purpose of Hicksmaking
his pocket or into a place in front of him , and from the bets there, or for the purpose of Hicks re
time to time the daughter of Davis thethe landlord ceiving the money there. Mr. Poland relies on
came to this waste place and took into house
the packets of paper which had accumulated in ¡ the proposition that you can have a continuing
receipt ofmoney. There is no such thing as a
the man 's pocket or other place. Then when the continuing
betting was over Hicks went into the house, got it , they receipt of money. When people have
have got it. They convicted Hicks
undid the packets, read what was written inside, of using that piece of waste ground or place in
and took out the money . Now , it is said that order to make bets with anybody who would
this was a receipt by him in the house. If I
have at all accurately stated the facts, it is resort to make bets there with him ; but they
have not made out any case against Davis
manifest from the mere statement that it was within this Act of Parliament, and I think the
nothing of the kind, that the money was received indictment fails.
by Hicks outside, and for his convenience was Solicitors for the appellant, Sharpe, Parker,
taken into Davis 's house there to be disposed of
by-and-by in accordance with the arrangement. andSolicitors Co., for Horton and Redfern , Birmingham ,
for the prosecution, Soames, Ed
It would be a straining of the law to say that wards, and Jones, for C . A .Carter, Birmingham .
the money , which he received outside and sentby
a messenger into the landlord 's house there to be
dealt with by him by-and-by, was a receiving in the
landlord 's house. As far as the receipt was
concerned the money was in his own control.
Afterwards he parted with it by arrangement
with Miss Dayis to be taken into the house. It !
May 24 , 1890.) THE LAW TIMES . (Vol. LXII., N . 8.- 439
Cr.or App.] ROBINSON v. JENKINS AND ANOTHER; BEBRO, Claimant. [CT, OF APP.
as agents for the plaintiff , and they cannot set
Supreme Court of Judicature. up as against their principal the rights of a third
party :
Baker v. The Bank of Australasia, 1 C . B . N . S. 515 ;
COURT OF APPEAL. Dalton
458 .
v . The Midland Railway Company , 12 C . B .
Thursday, Jan . 23. The matter does not come within Order LVII.
(Before Lord ESHER, M .R . and Fry, L .J.) for two reasons. First, that order only applies
ROBINSON v. JENKINS AND ANOTHER ; BEBRO, to tangible chattels, not to choses in action , such
Claimant. (a ) as shares are ; and secondly, the plaintiff and
APPEAL FROM THE QUEEN 'S BENCH DIVISION . Bebro are not claiming the same thing. The
plaintiff is only seeking to recover some docu
Practice - Interpleader - Justertii - Shares - Chose ments, namely , the certificate and the transfer ;
in action - Order LVII., rr. 1 and 2. while Bebro does not claim these , but only a
The plaintif being desirous of selling some shares | right to be registered on the register of share.
he had in a limited company, intrusted the defen holders kept by the company as owner of the
dants with the certificate of ownership and a shares. That is a mere question of title. He
blank transfer. On his withdrawing his autho i cited
rity to sell the defendants refused to return the Barton v. The London and North -Western Railway
documents, and on his bringing an action for Company , ante, p . 164 ; 24 Q . B . Div. 77 ;
their recovery, they obtained an interpleader Walter v. Nicholson , 6 Dowl. 517.
order on the ground that B . also claimed the Henn Collins, Q .C . (Loehnis with him ) for the
shares. defendants. - The defendants may set up the
Held ,that the defendants, though holding the docu jus tertii for the purpose of obtaining an inter
ments asagents for the plaintiff,might set up a | pleader, even though they could not use it as a
jus tertii for the purpose of obtaining an inter defence against the plaintiff in the action :
pleader order. Best v. Hayes, 1 H . & C. 718 ;
Semble, thata chose in action may be the subject of Tanner v. The European Bank, 14 L. T. Rep. N . S.
interpleader. 414 ; L . Rep . 1 Ex. 261 ;
This was an appeal from the judgment of the which were both approved of in
Queen 's Bench Division (Lord Coleridge, C .J. Attenborough v. The St, Katherine's Dock Company,
and Mathew , J.). 38 L . T. Rep. N . S. 404 ; 3C. P . Div .450.
The plaintiff was the owner of 1000 shares in This case comes within Order LVII., as the
the Great Sheba Gold Mine Limited, and the plaintiff and Bebro are both claiming the same
stockbrokers.
defendants wereemployed thing really, namely, the shares in this company,
The plaintiff the defendants to sell and a chose in action is a chattel within the mean
these shares, and intrusted them with the certi. ing of the order.
ficate that he was registered owner of the shares, T. Willes Chitty replied .
and a blank transfer executed by him . On his Forbes Lankester for the claimant.
withdrawing his authority to sell, and requiring The following case was also referred to :
the return of the documents, the defendants Hollins v. Fowler , 33 L. T. Rep. N . S. 73 ; L. Rep.
refused to give them up, as one Bebro also 7 H . of L . 757. "
claimed them .
When the plaintiff brought this action for their Lord ESHER , M . R . - In this case the defen
recorery the defendants, on the ground that they dants have got something in respect of which the
had no interest in the shares, and that Bebro and plaintiff has brought an action against them ,
threatened them with an action, applied for an in respect of which Bebro hasalso threatened
interpleader order. This was refused by the them with an action. Thereupon the defendants
say that they have no interest in it , and as they
master, and the matter was referred by the judge cannot see clearly that Bebro has no cause of
at chambers to the court. The Court (Lord action they
Coleridge, C .J. and Mathew , J.) made the order plead . TheaskQueen
asked for.
the court to allow them to inter
's Bench Division thereupon
The plaintiff appealed . made an interpleader order , and after the order
Order LVII., rr. 1 and 2, so far as material, is plaintiff has appealed to it uswason the
as follows :
was made, but before drawn up, the
ground that
the court had no jurisdiction to made the order.
1. Relief by way of interpleader may be granted : | It is argued on behalf of the plaintiff that the
(a) Where the person seeking relief in this order question is confined to the right to some shares,
called the applicant) is under liability for any debt, which is not a matter as to which an interpleader
money , goods, or chattels, for or in respect of which he
is, or expects to be, sued by two or more parties (in can be ordered , because, though they are choses
this order called the claimants) making adverse claims in action , and therefore personal chattels, yet
thereto .
2. The applicantmust satisfy the court or a judge by they are not tangible chattels, and therefore do
affidavit or otherwise : (a ) That the applicant claims no not come within Order LVII. But the order
interest in the subject-matter in dispute other than for speaks of chattels simply . There is nothing in
charges or costs ; and (b ) That the applicant does not it about tangible chattels. I do not see why we
collude with any of the claimants ; and (c) That the should read ground into it the word “ tangible," and I
applicant is willing to pay or transfer the subject-matter think that of objection is bad . Then it
into court or to dispose of it as the court or a judge may is argued that no interpleader order can be made,
direct.
T. Willes Chitty for the appellant. The because, assuming the defendants have the certi
ficates and transfers, and all that is necessary to
defendants received the certificate and transfer constitute possession of the shares, yet this pos
(a) Reported hy E . MANLEY SMITH, Esq., Barrister-at-Law . I session they have under a contract by which they
440— Vol. LXII., N .8.) THE LAW TIMES. [ May 24, 1890.
CT. OF APP.) Reg . v. THE VESTRY OF St. Pancras. [ Ct. of App.
hold the documents merely as agents for their shares and not the certificate, which is in the
principal, the plaintiff. The plaintiff is entitled disposition of the plaintiff and not of the defen
to a return of the chattels, or to an action for dants, this is an endeavour to look at words
breach of contract, and it is plain that the defen . rather than at their meaning . He claims really
dants could not in that action set up a jus tertii. everything which is necessary for his enjoyment
But, although that is true in an action merely of the property, and therefore in substance his
between Robinson and Jenkins, that does not claim is for the certificate and transfer. Further
determine the question where there is an adverse than this , there seemed to me a certain difficulty
claim and an interpleader is asked for. That ques in allowing the defendauts, who are agents, to set
tion seemsto meto bedetermined by the cases that up tbe rights of a third person against their
have been cited of Best v. Hayes (ubi sup.) and principal, but this difficulty has long ago been
Tanner v. The European Bank (ubi sup.). " There set at rest by the case of Tanner y. The European
the point was expressly raised, and it was pointed Bank (ubisup.), and Attenborough v . The St. Kathe
out that a jus tertii, though it cannot be set up in rine's Docks Company (ubi sup.) shows that there
a simple action, yetmay be where an interpleader is no longer any doubt. Then it was said that
is asked for. If those cases stood alone, desirous the subject-matter of the interpleader is a chose
as I am to keep the power of the courts to prevent in action , and there can be no interpleader as to
useless litigation as wide as possible, I should that ; but the answer is, that there can be an
willingly have followed them . In addition , how . interpleader as to the certificate and the transfer,
ever, to those cases we have the fact that they and that will involve the question as to the right
were not disturbed when the present rules and to the shares. I see no difficulty in settling the
orders were made ; and further in the case of issues of an interpleader as to these documents.
Attenborough v . The St Katherine's Dock Company Appeal dismissed .
(ubi sup.) those cases were cited , and the court The following was the form of interpleader
held that they were rightly decided . I think issue ordered : “ Whereas the above-named
therefore that this other point fails, and that the Marcus Bebro affirms, and the above-named
jurisdiction , the want of which was the real William James Robinscn denies, that certain
ground of appeal, did in fact exist. But then the shares, being Nos. 79 ,951 to 80 ,950 in a company
plaintiff says that we could not make a just called The Great Sheba Mining Company
order, that by making an order we must do an Limited , and a share certificate relating to the
injustice to one of the parties. By that he said shares, and a transfer of the said shares
means either that the cases I have mentioned (which said certificate and transfer were deposited
were wrongly decided , or else that, apart from in court pursuant to the order of the Queen's
those decisions, no just issue can be made. Bench Division , dated the 25th day of Nov. 1889),
With that I entirely disagree. The issue need are the property of the said Marcus Bebro as
not raise the whole case between all the parties. against the said William James Robinson ; and it
The ultimate question to be tried between them has been ordered by the said order of the Queen's
will be decided by the judge, subject to the Bench Division of the High Court of Justice
findings of the issue. On no ground therefore
do I think that the plaintiff 's contentions are dated the said 25th day of Nov. 1889 that the
said question shall be tried in London . There
right, and this appeal must be dismissed. fore let the same be tried accordingly.”
FRY, L .J. - The circumstances in this case have
created some little difficulty. The shares, which Solicitors for the plaintiff, Smiles, Binyon, and
are the subject of the controversy, are un Ollard, for J.for8 .the Cooper, Manchester.
defendants, Roucliffes, Rawle,
doubtedly choses in action , and are registered in andSolicitorsCo., for W . A . Jones , Manchester. "
the name of the plaintiff. But the certificate, for the claimant, Collis and Mallam ,
the forSolicitors
bothandin the
transferisexecuted
which plaintiffofaretitle,
by theevidence
primâ facie Cobbett, Wheeler, and Cobbett, Manchester.
possession of the defendants, who beld them as
the plaintiff's representative. The plaintiff
undoubtedly withdrew the authority he had
given to the defendants, and in that condition of Saturday, Feb . 1.
affairs Bebro gave notice to thedefendants that he (Before Lord ESHER, M .R . and Fry, L .J.)
claimed the shares. The defendants then applied Reg . on the prosecution of RICHARD WESTBROOK
for an interpleader order , which they obtained , v. THE VESTRY OF St. Pancras.(a )
and I think the order so obtained was right. It
was argued for the plaintiff that there cannot be Metropolis Management Acts— Vestry, officer of
Superannuation allowance to – Discretion of
an interpleader with regard to chored in action , vestry as to amount of allowance- 29 & 30 Vict.
but that argument I think is entirely untenable. c. 31, 88. 1, 4.
Rule 1 of Order LVII. gives relief where the
applicant is under liability for any debt,money, | A metropolitan vestry has a discretion under 29 & 30
Vict. c. 31, . 1,. to grant or refuse a super
goods, or chattels. This last word is a very wide
one, and includes choses in action . But, at all annuation allowance to a retiring officer, and
events, choses in action would come under the also a discretion as to the amount of the allow
words of rule 2, by which the applicant must be ance up to the limit imposed by the scale in
sect. 4 .
willing
“into to pay or transfer the subject-matter
court, or to dispose of it as the court or a Reg . v. The Vestry of St. George's, Southwark
judge may direct.” This disposition of a chose in (19 Q . B . Div. 533) overruled.
action is equivalent to payment in the case of RULE for a mandamus directed to the restry of
money or transfer in the case of goods or of a St. Pancras, to compel them to consider a claim
chattel to which that process is applicable. As (a) Reported ry HENRY Leigh and E. MANLEY SMITH, Esqrs..
to the next point, that Bebro claims only the I Barristers -et- Law .
May 24, 1890 .] THE LAW TIMES. (Vol. LXII., N . 8. - 441
CT. OF APP.] REG . v. THE VESTRY OF ST. PANCRAS. [Cr. OF APP,
for a superannuation allowance, and to take such | percentage on collection of rates, or annual salary, shall
steps as were necessary to secure such allowance be as follows ; (that is to say ,)
To any person who shall have served ten years and
according to the provisions of the Act 29 Vict. c. 31 upwards, and under eleven years , an annual allowance
(An Act to provide for superannuation allow . of ten-sixtieths of the salary and emoluments of his
ances to officers of vestries and other boards office ;
within the area of the Metropolis Local Manage And in like manner an addition of one-sixtieth in
ment Act). respect of each additional year of such service until the
The prosecutor, Mr. Richard Westbrook , had completion of a period of service of forty years, when
been a rate collector in the service of the vestry the annual allowance of forty -sixtieths may be granted ;
of St. Pancras, and, in Dec. 1888 , he wrote a and no addition shall be made in respect of any service
beyond forty years.
letter to the vestry stating that he wished to C . A . Russell showed cause. — I contend , in the
resign as from Lady-day next, on the ground of first place, that this is a matter in which this
his failing health and of his old age, he being court cannot interfere - the grant is in the dis
then seventy-two years of age and having been cretion of the vestry ; and , in the second place ,
for thirty years in the service of the vestry , and that the vestry have considered this application
he asked that a retiring allowance should be and bave determined thematter, and there is no
granted to him according to the provisions of room for a mandamus. Before the Act there was
sect. 4 of the Act, 29 Vict. c. 31. no power to make a superannuation allowance at
Mr. Westbrook 's salary bad been at the rate of all, and the Act was passed to enable vestries to
4801. a year, and according to the scale laid down do so . This court has already held in the case of
in the Act, his superannuation allowance would Reg. v. The Vestry of St. George's, Southwark
have been 2301. a year. The letter was brought (ubi sup.), that the restry cannot themselves
before the vestry, and was by them referred to fix the amount of the allowance, but that the
their finance committee, who considered the amount must be according to the scale. Here
matter, and recommennded that the allowance of they have declined to give Mr. Westbrook any
2301. a year should be granted according to the allowance at all. If they have a discretion , then
scale. This report of the finance committee came I must show that they have exercised that dis
before the vestry , who by a large majority agreed cretion . [MATHEW , J. - The question is, whether
that an allowance should be granted , but they, they have resolved that this gentleman should
considering thesum too large,referred it back too have an allowance.] The case of Reg. v. The
the committee to ascertain if Mr.Westbrook would Vestry of St. George's, Southwark, shows that
take a smaller sum , and at the same time they the vestry have a discretion to refuse the allow
stated that if a sum of 1501. a year was accepted ance, and here they have exercised that discre
such a sum wonld be voted unanimously. The Ộ₂►ÒÂÂ?Â₂Ò₂Â₂–₂–₂ū₂₂–₂–₂ti₂mòģtin₂ti₂ņētiņ₂/₂Â§\/
committee communicated this proposal of the come from the vestry, and not from the court.
restry to Mr. Westbrook, but he refused to (Lord COLERIDGE, C . J. - Though there is an abso .
accept any smaller sum than tbe 2301. to which lute discretion , it may be that having began
he said he was entitled under the Act. In the they are bound to go on - at present we are
meantime the attention of the vestry was called both clearly of opinion that the words “ may
to the case of Reg . v. The Vestry of St. George's, in their discretion " mean what they say, and
Southwark (19 Q . B . Div . 533 ; 56 L . J. 652, that the restry have a discretion to give or
Q . B .), where it was held by a Q . B . Divisional
Court that, although a metropolitan vestry has a not.]
discretion under 29 Vict. c. 31, to grant or refuse Morton Smith (Henn Collins, Q .C . with him ) in
& superannuation allowance, yet, if an allowance support of the rule. - Our contention is that they
be granted , the vestry bas no discretion as to did agree to grant a pension, and the only thing
the amount, which must be according to the scale left was as to the amount. They resolved that,
in the Act. The vestry thereupon gave Mr. if Mr. Westbrook agreed to take 1501. instead of
Westbrook a month 's notice, and at the end the full amount, they should unanimously recom .
of that time he was dismissed without any super mend that srm to be granted . When they find
annuation allowance at all, and a successor was there is a difficulty they try to get rid of the
appointed . difficulty by dismissing Mr. Westbrook without
The above rule for a mandamus to the vestry any allowance at all. The vestry have a judicial
was then obtained at the instance of Mr. West discretion to exercise , and they are bound to
brook . exercise it. In Maxwell on the Interpretation of
Sect. 1 of 29 Vict. c. 31, provides : Statutes (2nd edit. p . 147 ) it is laid down : “ When ,
as in a multitude of Acts, something is left to be
The vestry of any parish and district board of any done according to the discretion of the authority
district or any other parochial body within the metro on whom the power of doing it is conferred , the
polis, . . . may , at their discretion , grant to any
officer in their respective services . . . who shall discretion must be exercised honestly and in the
become incapable of discharging the duties of his office spirit of the statute, otherwise the act. done
with efficiency by reason of permanent infirmity of mind would not fall within the statute," and for that
or body, or of old age, opon his resigning or otherwise proposition he cites Rooke's case (5 Coke's Rep.
ceasing to bold his office, an annual allowance not
exceeding in any case two-thirds of his then salary , 100a, vol. 3, p. 204 ). In Reg. v. The Overseers of
Withyham (2 C . L . Rep. 1657) it was held that
regard being had to the scale of allowances bereinafter overseers
contained . have not an absolute discretion to grant
Sect. 4 provides : or refuse certificates under the Sale of Beer Act
(3 & 4 Vict. c. 61), s. 2, and Lord Campbell there
Subject to the provisions herein contained , the allow . said
ance to be granted after the commencement of this : “ It is clear that they took into their con
tocapacity
persons who shall have served in an established sideration topics with which they had no business
no l to interfere, . . . it is their duty to inquire
as officers as aforesaid , whether their rema:
neration be computed by weekly wages, poundage, or l into the facts fairly and honestly, and if true to
CT. OF APP.] Reg . v . THE VESTRY OF St. Pancras. [CT.OF APP.
certify them .” There are other cases to the same certainly would not expect to find that an Act of
effect : Parliament, which dealt with the state of things
Rex v. Young and Pitts, 1 Burr. 559 ; in which there had been no power to do a thing
Reg. v. Adamson , 1 Q . B . Div . 201 ; s.c. nom . Reg . v. at all, should at once order that to be done which
Justices of Tynemouth, 33 L . T. Rep. N . S. 810. up to that time could not have been done by
In Rex v. Askew (4 Burr. 2186 ), which was a rule law . It is more likely that Parliament would
for a mandamus to the College of Physicians, have empowered , rather than would have com .
commanding them to admit a certain candidate, pelled , parties to do what for the first time they
a doctor of physic, to be a member of the college, were enabled to do. At all events, it is clear to
Lord Mansfield said (at p . 2189) : “ It is true that my mind that in the first instance the vestry
the judgment and discretion of determining upon have the discretion to entertain this question ,and
this skill, & c., is trusted to the College of a discretion which, I am of opinion , this court
Physicians ; and this court will not take it from could not compel them to put in force in the first
them nor interrupt them in the due and proper instance. But that does not by anymeans dispose
exercise of it. But their conduct in the exercise of this case. The substance of the case I take to
of this trust thus committed to them ought to be be this : Here is an old gentleman of seventy
fair, candid , and unprejudiced ; not arbitrary , three, whose health is breaking down, and who
capricious, or biassed , much less warped by wishes to resign , and to do so on the terms which
resentment or personal dislike.” (Lord COLE the Act of Parliament enables the vestry to grant
RIDGE, C .J. refers to Julius v. The Lord Bishop of to him , and he communicates that to the restry.
Oxford (42 L . T. Rep. N . S. 546 ; 5 App. Cas. 214 ), Thereupon his resignation upon those terms is
where the words in a statute were " it shall be entertained , and the question of the terms is
lawful," and it was held that these words gave referred to a finance committee. The finance
an absolute discretion.] In Biddulph v. The committee report that he should have a pension ,
Vestry of St.George, Hanover-square (8 L . T. Rep . i and that his application shculd be granted .
N . S. 44 ; 33 L . ). 411, Ch.), Turner, L .J. said Whereupon by a large majority it is substantially
(at p . 417, 33 L . J., Ch.) : “ Now , I am very far agreed that he shall have a pension , but that,
from thinking that this court has not power to | inasmuch as the sum of 2301., notwithstanding
interfere with public bodies in the exercise of his age and his services, seems to the restry a
powers which are conferred on them by Act of large sum to grant, they refer it back to the
Parliament. I take it that it would be within finance committee, substantially to negotiate with
the power and the duty of this court so to interfere Mr. Westbrook as to whether he will not take less.
in cases where there is not a bona fide exercise The finance committee are thereupon empowered ,
of the powers given by Parliament,and I should as I think, by the vestry to accept the resignation
be very sorry to be supposed to entertain the and to grant a pension, and to recommend a
notion that public bodies, under the general pension which the vestry could proceed upon .
powers given to them by Act of Parliament, can They negotiate, and Mr. Westbrook declines the
do whatever they think right. . . . I take it terms offered , and he stands on the termsof the
to be the duty of the court to consider the ques Act of Parliament. In the meanwhile the atten
tion whether there is or is not a bona fide exercise tion of the vestry is called to the decision in the
of the powers conferred by the Legislature.” case of Reg. v. St. George's, Southwark (ubi sup.).
The Court of Chancery would have been entitled decided by my learned brothers Stephens and
to interfere by injunction, and therefore this Wills, in which this had been held in effect, that
court would have been entitled to interfere by it was for the restry to say whether they would
mandamus. The discretion must be a sound dis grant a pension or not, but if they granted a
cretion , having regard to all the facts before pension under the words of the Act of Parliament
them . In Reg. v. The Governors of Darlington they must grant the whole pension which the
School (6 Q . B . 682 ; 14 L . J .67, Q . B .), Tindal, Act pointed out. Speaking with the utmost
O . J . says (6 Q . B . 715 ) : “ The governors would respect and deference to my learned brothers, I
be guilty of misconduct if they exercised their confess if I had been one of the court I do not
discretion of removal in an oppressive manner, think I should have agreed to that decision. It
or from any corrupt or indirect motive.” An seems to me that there are reasons why it is
indirect motive is not a good exercise of discre possible that another court would come to a
tion ; this court will not allow a discretion to be different conclusion on the words of the Act of
exercised otherwise than bona fide and according Parliament, but at all events it would be binding
to the Act of Parliament : on me here, and I must take it as correct law .
Macbeth v. Ashley, 30 L . T . Rep. N . S. 310 ; L . Rep . | That matter cameto the knowledge of the vestry
2 Sc. App. 352. as a surprise, and they found that it was not open
Lord COLERIDGE, C .J. - This is a case by no to them to consider what the amount of the
means easy to decide, but,upon the whole, I think pension should be, because that had been fixed
themandamus should go. I admit in the plainest by the Act of Parliament. Then it seems that
possible terms, and in the fullest manner, the | the proper notice having been given under the
discretion of the vestry to entertain the question 7th section, the question of the pension came up
or not to entertain it in the beginning. The before the vestry, and the restry thereu pon in
words that “ a vestry may at their discretion effect said : we do not deny that if Mr.Westbrook
grant to an officer a pension," seem to me to show had taken the 1501. offered to him he would hare
that Parliament meant to intrust to them a been entitled to it, and we should have had no
discretion to entertain the question or not to difficulty in voting it ; but he would not, and we
entertain it in any particular case, all the more think that 2301. is too much , and therefore we
because, as has been pointed out to us, there was refuse any pension at all. It seems to me that
no power prior to these Acts to grant a pension, although the discretion of the vestry is in a sense
and that this is an enabling power ; and one i absolute, that expression must be taken with
May 24 , 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 443
CT.OF APP.] REG . v. THE VESTRY OF ST. PANCRAS. [CT.OP APP.
some considerable comment to cut the full force , other justices, but they sent to those justices on
of it down. It may be, it probably is, that it is the ground that although they had heard evi.
in their discretion to begin or not to begin, but dence and had apparently determined the case,
in this case it appears to me that the vestry had they had not really exercised discretion , because
committed itself, and had expressed its opinion it was manifest to the court that they had
that Mr. Westbrook was entitled to a pension . | exercised it on grounds extra judicial, which they
They were then confronted with the law which ought not to have taken into account. That is
said , if he is entitled to a pension , he is entitled an exceedingly strong authority on the point of
to this pension . They then said we do not think principle in the present case. Here it appears to
he is entitled to this pension , we will go back mymind that the vestry acted as they did, not
from what we said and we will grant him none. because they thought or meant to say that Mr.
Now a discretion must be, in bodies of this kind , Westbrook was not entitled to a pension at all,
legal discretion . It does not mean mere caprice | but because they thought they were bound to
or mere personal or private feeling ; it must be give him 2301, if they gave him anything, and as
discretion founded upon grounds of justice and they thought that sum too much , therefore they
reason , and showing that themind of the person would evade the Act of Parliamentand give him
or persons exercising the discretion has been nothing. Now it appears to me that that is a
brought to bear on the subject-matter before thing which they could not in point of law do ,
them . We are not without authority upon this and the case I have referred to is a strong autho
matter, and authority of a very high and solid rity that under these circumstances the court
character. If the matter had been a matter of will hold that they have not acted judicially , and
the discretion of justices, the books are full of have not exercised a real discretion. But it may
cases in which , while the courts on the one hand | be said that these cases to which I refer are cases
have entirely disclaimed the right or the desire with regard to magistrates, over whom the juris
to act as courts of appeal, and to review dis- diction of this court has been long established ,
cretion, they have nevertheless been firm in and that this case is different, and that, although
saying that they will see that real discretion has it is perfectly true as regards magistrates over
been exercised , and that where discretion has whom this court has always for centuries exer
been exercised or appears to have been exercised cised a controlling power to make them put in
upon groundswhich ought not to have influenced force their jurisdiction, this is a different body,
it, they will treat it as not having been exercised and that the considerations are different and do
at all, and send their mandamus to the body that not apply. But there is a case of Reg. v. The
has so declined really to exercise the discretion Mayor of York (1 E . & B . 588 ; 22 L . J. 73, M . C .),
committed to it. One of the most striking cases and in that case the circumstances were these :
with regard to magistrates is the case with which An Act of Parliament had given to the magis
Mr.Mellor has been good enough to furnish the trates the power of appointing a gaoler and of
court. It is the case of Reg. v. Adamson (ubi sup.) ; recommending a salary , but the salary was not
in that case certain persons had been brought to be paid without the confirmation of the
before magistrates on an indictment or charge of town council - the corporation. The magistrates
conspiracy to interrupt a public meeting upon a appointed a gaoler and fixed a salary , the town
subject which at that time was exercising the council refused to pay a farthing and said that
minds of a portion of the public a good deal. the salary was too much , and that they were not
The magistrates discharged the prisoners, and bound to pay the salary which the justices recom
refused to entertain the case. They heard evi- | mended . In that case the court refused the
dence and they appeared to have exercised a mandamus, saying that,according to the true con
discretion , but the court sent the mandamus struction of the Acts of Parliament, the town
upon the ground that it clearly appeared to them council were not a body merely to register the
that although discretion seemed to have been decisions of the magistrates, but they had an
exercised , real discretion had not been exercised independent authority , a separate discretion,
at all,because they proceeded upon considerations,
which the Act of Parliament intended them to
extraneous and extra judicial considerations, exercise, and upon that ground Lord Campbell
which ought not to have affected their decision , and the court refused the mandamus ; but Lord
and which it seems to me was the same as de. Campbell makes use of these strong expressions :
clining jurisdiction . These are the words of “ I think that the object of the proviso was not
Cockburn , C .J., and he goes on to say : “ These that the council should register what the justices
are considerations which onght not to have had done,but that they should exercise a deliberate
influenced them at all, and under these circum - | discretion on the subject. If the council were to
stances I think they must be taken to have refuse to exercise a discretion on the subject, or
declined jurisdiction.” And Lord, Blackburn says to pretend colourably to exercise one,a mandamus
the same thing ; he says after considerable doubt would lie.” That seemsto me to be a case very
he comes at last to the same conclusion, and he much in point as showing that over a body very
goes on to say, “ there is reason for saying that analogous to the body in this case, not precisely
they (the magistrates) proceeded on a ground the same, I admit, this court, in the time of Lord
which they ought not to have considered ," and Campbell, asserted that if there was a colourable
upon that ground Lord Blackburn concurs. exercise of discretion , which was none in truth ,
Field , J. says the same thing : “ I lave come to the court would put their power in force, and
the conclusion that they acted as they did , not compel them to exercise that discretion . With
because they disbelieved the evidence, but from a that judgment of Lord Campbell, Coleridge, J.
consideration apart from the facts, which they and Wightman J. both agreed in terms. It seems
onght not to have taken into account," and those to me that these cases are very strong, they
three eminent judges sent themandamus in that have never been interfered with , overruled , or
case intimating that they had better go before I questioned , and they show that this court will
444 - Vol. LXII., N . 8.] THE LAW TIMES. (May 24, 1890 .
Ct. Of APP.] Reg. v. THE VESTRY OF ST. Pancras. [CT. OF APP.
in cases of bodies analogous to such a body as the 1 with what was in the minds of the Chief Justice
present, where discretion has clearly been com - and Mathew , J., as I understand them , and to
mitted to them , see that there is real discretion disagree with the decision in that case. Some
exercised by them and compel them so to exercise questions have been argued to -day as to mandamus
it by mandamus, and that where discretion has which it is unnecessary to determine. I have no
apparently been fairly exercised ,yet,when the court doubt myself what is the right thing for the
conceive the groundson which the professed discre . vestry to do when a servant, and more particularly
tion has been exercised are not legal grounds - are an old servant,resigns his office under them and
not grounds which the body professing to exercise makes an application to them under this statute.
discretion ought to have taken into account, it It ought to consider his application and do what
will treat the discretion as unexercised , and make is fair to the man under the circumstances,
the body exercise it. It seems to me that, after and if they do this I have no doubt that the
what has taken place, the vestry had really | Legislature has intrusted them with full dis
decided that this gentleman was entitled to a cretion , and that no mandamus could go to alter
pension , and it is manifest to iny mind that the their decision . But their discretion must be
true view of the case is not that they did not | exercised fairly, and they must take into account
think him entitled to a pension . It is not sug. to guide their discretion only legal reasons. It
gested that there was any personal misconduct, has often been said that such persons as these,
or any personalwant of probity, or want of skill, exercising a public duty , must not consider any .
care, discretion, or zeal in the duties of his office thing which the courts consider improper for the
for thirty years, but it is manifest that what they guidance of their discretion ; such persons may
disliked was the judgment of this court com . make an honest mistake, but if they have con .
pelling them to give 2301. or nothing. They had sidered anything which they ought not they have
agreed to give something, but when they found not exercised a legal discretion . The Act we
they were obliged to give that, they thought that have to consider is one “ to provide for super
that was too much,and then they said they would annuation allowances," and it recites that it is
give nothing. That to my mind is a thing they expedient that prorision should be made to
had no right to do, and upon those grounds in my enable superannuation allowances to be granted
judgment this mandamus must go. to officers of vestries of any parish within the
MATHEW , J.- I am of the same opinion . I | metropolis who become disabled by infirmity or
age to discharge the duties of their offices. It is
think the vestry here undertook with this old expedient in the public interest that provision
officer to exercise their discretion as to theamount should bemade
of pension , and had induced him to resign his all such bodies. inThen such cases for the servants of
, by sect. 1, the vestry may
position by reason of the resolution which was
clearly conveyed to him . Having committed at their discretion grant to any officer in their
themselves to that position they have sought, service who shall become incapable of discharging
because of the decision of the court, to withdraw the duties of his office with efficiency by reason
completely from it. They have thought it right, of permanent infirmity of mind or body, or of old
because of that decision , altogether to rescind age, an annual allowance. Those conditions must
and withdraw from the resolution which they had be satisfied before the vestry has any jurisdiction
previously formed , and they profess in that sense at all . If nothing more had been said there, and
some subsequent section of the statute had laid
to exercise a discretion over again , the discretion down a fixed amount, then I should have said
having been already exercised , and they have that the only question for the vestry was whether
committed themselves in the way I have already or no they were to give a pension ; but the section
mentioned . The power which is conveyed to them goes on to say, " an annual allɔwance not exceed .
by the Act of Parliament is one which enables
them to entertain the question of amount, and ing ininvolvesany case two-thirds of his then salary."
the terms of the resolution are that there shall That sect. 6
this, that you may give him less;
shows this is the correct meaning.
They must be compelled to exercise and
be a pension . That section speaks of " a gratuity not exceeding
that discretion according to the established rules three months' pay for every two years of service,"
of the Court, and therefore I agree that the
mandamus must go for that purpose. and no one can doubt that a restry might give
The vestry appealed. less than three months' pay. Then we must
consider the words in sect. 1, " regard being had
Feb . 1. – Poland, Q .C . and C. A . Russell for the to the scale of allowances hereinafter contained,"
vestry. that is to say, in sect. 4 . A scale is there given
for service for ten years and upwards. That
Henn Collins, Q .C . and Morton Smith in support enables
of the order . the vestry to look at the number of years
of service, but does not take away from the
The arguments were the sameas in the court power given in sect. 1. They can give less than
below . the scale, but must not go beyond it. Thattakes
Lord ESHER , M . R . - In this case, as often away the difficulty of sect. 4 ; the word " shall”
happens, things have been considered here which applies to the scale, but does not diminish the
were not before the court below . A divisional effect of sect. 1. Therefore the vestry is not
court could not go so largely as was done here bound by a hard-and- fast rule, but has a dis
into the question whether the case of Reg . v. The cretion as to the amount of the pension subject
Vestry of St. George's, Southwark (ubi sup.) was to the limit laid down in sect. 4. A difficulty
wrongly decided . The Lord Chief Justice said was suggested as to the proposal for a pension
he was bound by that case, but here at nur , which ought not to exist, and does not, that the
request it bas been discussed very fully. I have vestry could only agree to or refuse the amount
considered the wording of the Act of Parliament suggested in the proposal; but anyone could
as carefully as I could , and am prepared to agree l propose an amendment, and there can be no
May 24, 1890.) THE LAW TIMES. [ Vol. LXII., N . S.- 443
CT. OF APP.) Re EDWARDS TO DANIEL SYKES AND CO. LIMITED. [Chan. Div .
difficulty in that. The Act gives a reasonable, must shut their eyes to that and merely consider
fair, and sufficiently elastic power to do what the question, is the officer entitled to a pension ?
may be just to the servant, and the vestry must I think the Act of 1866 does not do this, but it
consider what is just, fair, and reasonable, under gives the restry power not only to grant a pension ,
the circumstances of the case ; and if they dol'but also to determine the amount of it within
that there is full discretion , and we cannot certain limits. Sect. 1 declares that the vestry
interfere with what they do. The result in this may grant an allowance at their discretion , the
case is, I think , that even if the interpretation allowance not exceeding two-thirds of the salary.
that has been put on the Act be right the vestry Under this the quantum of the grant is settled ,
did not properly exercise their discretion in this and the question of amount is not separated from
case, and the Divisional Court was right in the discretion of the vestry as to the grant. The
saying so , and cannot be overruled on this point. expression shows that the statute is dealing with
Butwe can modify tbe mandarnus to enable the a maximum amount. Then as to the words
vestry to do what under the statute they have a “ regard being had to the scale of allowances
right to do, so that they may fairly consider the | hereinafter contained ," thatmeans that thevestry
case before them , and, as I understand they are must look at the scale of allowances in sect. 4,
now desirous of doing, do what is right and fair and if they look at the scale they must have some
under the circumstances of the case . purpose in doing so, and that purpose can only
FRY, L . J. - On the 24th Dec. 1888 Mr. West. be, though the words are not very clear, in order
brook addressed a letter to the vestry clerk asking to see that they do not exceed the limits laid
to be allowed to retire from the next Lady-day, down in the scale. I cannot help saying that that
and that he should be granted a retiring allowance is a much more reasonable interpretation of the
under this Act. This resignation was accepted . | Act than the one which has been put before us
On Feb . 6 the vestry passed a resolution adopting on behalf of the restry. I think the vestry was
the report of the finance committee that an bound to exercise a discretion , and that they did
allowance should be made to Mr. Westbrook , and not properly exercise it here, and consequently
resolving that " one month 's notice be given to the mandamus ought to go in themodified manner
every member of the vestry that a proposal to that the Master of the Rolls has suggested , so as
make a grant of a superannuation allowance of merely to require them to consider and determine
2301. to Mr. Westbrook on his retirement after the application.
thirty years' service will bebrought forward at a Rule absolute.
vestry to be held on Wednesday, the 20th March Solicitors for the prosecution, Beale, Phillips,
1889, at four o'clock in theafternoon ." Thenotice and Beale .
was given , and on the 20th March a proposal was Solicitors for the defendants, Cunliffes and
made to grant an allowance of 2301. to Mr. Davenport.
Westbrook, which was rejected . The question is,
whether a mandamus can now go to the restry . I
think it ought. I do not say that, if the vestry
had not acted as they did, this application
HIGH COURT OF JUSTICE,
would have been successful. The vestry had CHANCERY DIVISION.
accepted a resignation which was made subject
to the condition of an annuity being given, which Tuesday, March 25.
I think bound them to bring forward a proposal (Before Chitty, J.)
properly before the vestry. This was in fact Re EDWARDS TO DANIEL SYKES AND Co.
done, but there was a duty in the vestry to con LIMITED . (a )
sider the proposal properly and fairly . If the Vendor and purchaser - Compensation - Mis.
restry did not perform that duty mandamus description in particulars of sale - " Annual
ought to go , and I think there are two reasons rental” - Monthly tenancy - Rates and taxes
why the restry have not properly exercised their payable by vendor - Admissibility of evidence to
discretion. The first reason is, that the notice prove purchaser's knowledge of.
given by the vestry clerk was not a proper one. The particulars of sale of certain leasehold pro
It gives notice of the proceedings of the vestry perty described the sameas being occupied at an
on Feb. 6 , but it does not recite the terms of the " annual rental,” but omitted to state that the
letter of resignation . The clerk gives a narrative vendor as landlord paid the rates and taxes on
to instruct the minds of those attending the the property, the tenancy being a monthly one.
meeting, but omits, perhaps unintentionally, an The purchasers alleged that they were thereby
important fact in the history of the resignation . led to infer that the tenancy was a yearly
The second reason is, that the meeting acted tenancy , and that the tenant paid the rates and
under the bias of the decision in the case of taxes. Accordingly they claimed compensation
Reg.
if that The Vestry
v. case of St.
is wrong theyGeorge's (ubi sup.),a and
have exercised dis pursuant to the conditions of sale.
law ; there. The vendor asserted that the purchasers had know
cretion under a mistaken view of the
fore wemust consider if that decision was right. ledge of the true facts of the case at the time of
With great deference to the learned judges who the sale, and evidence was adduced to prove that
decided that case, I think it was wrong. It is in the auction -room a question was raised by a
suggested on behalf of Mr. Westbrook that the person present at the sale on the words “ annual
statute of 1866 requires the vestry to consider rental," and that in reply to an inquiry it was
merely whether their officer is to have a pension distinctly stated by the auctioneer that the land
or not. If they decide that he is to have one, lord paid the rates and taxes, and that the
tenancy was a monthly tenancy .
then the amount of it is fixed by the statute ; and Held
they must not consider that amount in deciding , that the evidence was admissible, and that
whether the servant is to have a pension, they ; (a ) Reported by A. COYSGARNE SIM., Esq ., Barrister-at-Law .
Chan. Div.] Re EDWARDS TO DANIEL SYKES AND CO. LIMITED . [Chan . Div.
accordingly the purchasers must be taken to adduced to show that at the auction a question
have had knowledge of the facts, and to have was raised on the words " annual rental," and the
known all the circumstances affecting the pro auctioneer had , in answer to an inquiry by a
perty for which they bid . person present at the sale whether or not the
Held , therefore, that thepurchaserswere not entitled landlord paid the taxes, stated distinctly that the
to compensation . landlord paid all rates and taxes ; and , in answer
On the 12th Aug. 1889 Martin Edwards sub. tenancy to a further question as to the tenancy, that the
mitted for sale by public auction, according to was monthly . Both the questions and
certain particulars and conditions of sale, a lease the replies to them were made and given dis.
hold shop with an off-beer dealer's licence present tinctly, and must have been audible to everyone
attached , together with an adjoining dwelling in the auction - room .
house at Griffithstown, near Pontypool, in the “ annual The evidence also showed that the words
county of Monmouth . rental” were common in that district,
In the particulars of sale the property was and were everywhere used in sales of large pro
perties ; and that a purchaser would always look
described as follows :
All that shop , with off-beer dealer's licence attached upon them as meaning gross rental, and not as
thereto , where a good business has for some years been implying an annual tenancy at a net rent of the
carried on, with the dwelling -house belonging, conve amount stated .
niently situated at the corner of Kemys-street and The summons was adjourned into court, and
Grove-place , Griffithstown, and on the road leading to now came on to be heard .
Panteg railway station , and now occupied by Mrs. E . A . Hadley , for the purchasera, in support of
Berry at theannual rental of 181.48.
The particulars of sale omitted, however, to the summons,
the contended that the rule was that
vendor must properly describe the property
state that the vendor, as landlord, paid the rates sold , and that
and taxes on the property, the tenancy being a purchaser was the result of tothat
not expected ruleinquiries
make was that ofá
monthly one, the tenant paying a weekly rent the tenants. He also contended that, if there was
amounting to 181. 48. per annum .
The property was purchased by T. Watkins, anything in the nature of the tenancies which
affected the property sold, the vendor was bound
the agent of Daniel Sykes and Co. Limited, a to inform the purchaser,and to let him know what
firm ofbrewers.
After the sale it was ascertained by the pur it was that was being sold ; and the vendor could
chasers that rates and taxes amounting to not afterwards say to the purchaser that if he had
gone tooutthealltenant
21. 138. 3d . at least per annum , were payable by found about and
it. inquired
Further, he would
that have
affidavits
the landlord and not by the tenant.
The purchasers had inferred from the parti as not
to what took place in the auction -room could
be used as a verbal extension of a written
culars of sale that the tenancy was a yearly one, | contract. He referred to
and that the tenant paid the rates and taxes. Caballero v. Henty, 30 L . T. Rep. N . S. 314 ; L . Rep .
They alleged that the words “ annual rental " 9 Ch. App. 447 ;
meant " net annual rental,” and would not lead a Higginson v. Clowes, 15 Ves. 516 , 521.
purchaser to suppose that there was no deduction CHITTY, J. referred to Henderson v. Hudson ,
for rates and taxes. W . R . 860 .]
The purchasers alleged that, in consequence of 15 George Care, for the vendor, contrà .
the omission from the particulars of sale of the
deductions for rates and taxes, they were preju . Hadley replica
diced to the extent of 21. 138. 3d . per annum . Cutty, inJ. question
- In this by the vendor
caseauction
They claimed therefore to be compensated by a property , and sold
the pur the
deduction out of the purchase money pursuant to chasers were a limited company, and bought the
the conditions of sale ,which contained the follow property through their agent, Mr. Watkins. The
ing provision : particulars of sale described the property thus:
11. The quantities stated in the particulars shallbe pre (His Lordship read the description , and con
sumed to be correct, and an error as to quantity , if any tinued :] The purchasers say that “ annual
such shall be found, shall neither annul the sale nor
entitle either party to compensation on account thereof. rental” is a misdescription , and that in accord
If any other mistake shall be found in the particulars ance with clause 11 of the conditions of sale the
before the completion of the purchase , the same shall purchasers are entitled to compensation in
not annul the sale, but a fair compensation shall be respect of that misdescription . The misdecrip
made in respect thereof, to or by the purchaser, as the tion is said to be the omission to state that the
case may require, the amount to be settled in case of
difference by two referens, one to be appointed by each vendor, as landlord , paid the rates and taxes,and
party or their umpire , and if either party shall fail to not the tenant. Consequently the purchasers ask
appoint a referee for the space of ten days after notice for compensation. The term used in the parti
shall have been given to him by the other party so to culars of sale is " annual rental.” “ Rental" is
do, the referee appointed by the other party may make not the sameas " rent," either in ordinary or in
a final decision alone. legal language, and although I am not bound by
A summons was accordingly taken out on dictionaries, I may refer to them as showing that
behalf of the purchasers, under the Vendor and it is assumed that the term “ rental ” is a corrup
Purchaser Act 1874 , asking that it might be tion of “ rent roll," and means a schedule or
declared that the purchasers were entitled to account of rent: (Wharton 's Law Lexicon ,
compensation by reason that the particulars of 6th edit., p. 826.) The purchasers' manager, the
sale , in stating that the premises were “ now gentleman who instructed the agent to purchase
occupied by Mrs. Berry at the annual rental of at the auction , was not hiroself present at the auc
181. 48." omitted to state that the vendor as land- tion. He says that he inferred from the particu .
lord paid the rates and taxes of the premises. lars of sale that the tenancy was a yearly
In opposition to the summons evidence was I tenancy, and that the landlord did not pay the
*May 24, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.- 447
Chan. Div.] JONES v. SIMES. [ Chan. Div .
rates and taxes. The purchasers contend that the defendant. Upon a motion by the defendant
the true inference to be drawn from the words to discharge the order for irregularity on the
" annual rental” is that the tenant, not the land grounds that the cause of action did not survive
lord , paid the rates and taxes. But the vendor and that therewas no transmission of interest to
says that, whether or not the term “ annual B .:
rental” is ambiguous, the purchasers were not Held , that the action survived , and that B . had a
misled, and evidence is adduced on the part of right to continuethe action ,although ,as regarded
the vendor, which is clear, and which shows that the claim for damages, it might, under 38
the point was raised in the auction -room . There 4 Will. 4, c. 42, 8. 2, be limited to damages for
is evidence that the auctioneer mentioned before the injury during the six months immediately
all present at the sale that the rates and taxes prior to the originalplaintiff'sdeath ; and motion
were payable by the landlord and not by the dismissed with costs.
tenant, and that the tenancy was a monthly | This was a motion by the defendant to discharge
tenancy . Consequently , if the purchasers' agent an orderhim
of ,course
had drawn the inference that the tenant paid the against which tohadcarry
beenon obtained
the proceedings
by the
rates and taxes, he was informed in the auction executor and devisee of the plaintiff.
room that the inference he drew was erroneous, The plaintiff Jane Jones commenced this action
and evidence to that effect is produced before against the defendant Charles Edward Simes on
me. The question is, whether that evidence is the 3rd Dec. 1888 , claiming a mandatory injunc
admissible. In my opinion it is quite clear that tion and damages for obstructing the access of
it is, and the evidence is plain that the auctioneer light to her The
freehold house,ofNo.
claim68 ,was
actually informed those present at the sale that Worcester. statement Highdelivered
-street,
the landlord paid the rates and taxes. Suppose on the 7th Feb. 1889, which showed that, although
a man buys property which in the particulars of the defendant's building which caused the
sale is described as leasehold , but which is really obstruction had then been completed , some
held on an underlease. It has been decided that, correspondence had passed between the plaintiff's
speaking generally , and in an ordinary case, that solicitor and the defendant in May 1888 ,and that
is a fatal misdescription . But if the purchaser the defendant in one ofhis letters to the plaintiff's
is aware before the sale that the vendor had only solicitor stated that he would do his utmost to
an underlease, his knowledge prevents his setting prevent any annoyance to the plaintiff or injury to
up the misdescription as an objection to the her property. The plaintiff claimed : (1) an injunc
title. Lord Romilly, M .R . decided that in the tion to restrain the defendant from allowing the
case before him of Henderson v . Hudson (15 W . R. new buildings any longer to remain so far as such
860). So here everyone who was present in the buildings or any part of them obstructed or
auction -room must be taken to have heard the diminished or interfered with the access of light
auctioneer state that the landlord and not the to the plaintiff's windows, and that the defendant
tenant paid the rates and taxes. Therefore they might be ordered to pull down the said buildings
all knew what they were bidding for. I hold to the extent aforesaid ; (2) an injunction re
that the parchasers must be taken to have had straining him from erecting any other buildings
knowledge of the true facts of the case, and that, which should in any manner obstruct or interfere
assuming the term “ annual rental ” to be with the access of light to the plaintiff's house ,
ambiguous, which I think it is not, they cannot and also an injunction to restrain the defendant
claim to be entitled to compensation. I refuse from allowing a certain wali erected by him upon
the summons with costs. a party wall any longer to remain , and that the
Solicitors for the purchasers, Le Brasseur and defendant might be ordered to pull down the said
Oakley , agents for " Edwards and Le Brasseur, wall ; and (3) damages.
Newport, Monmouthshire. A statement of defence and reply were subse
Solicitors for the vendor, Maples, Teesdale,and quently delivered , and the action was entered for
Co.,agents for Bevan, Hancock , Strachan , and Co., trial on the 19th March 1889.
Bristol. On the 15th Oct. 1889 the plaintiff died ,having
made her will under which Benjamin Jones was
her sole executor and devisee, and the will was
Jan . 31 and Feb. 7 . proved by Benjamin Jones on the 3rd Jan. 1890 .
(Before CHITTY, J.) On the 10th Jan . 1890 Benjamin Jones obtained
an order of course to carry on the proceedings
JONES v. Simes. (a ) against the defendant, and the latter now moved
Practice - Action by sole plaintif for mandatory to discharge this order for irregularity on the
injunction - Death of plaintiff - Order for con ground that the cause of action did not survive,
tinuance of action by devisee and executor and that there had not been any transmission of
Motion to discharge order - 3 & 4 Will. 4, c. 42, interest to Benjamin Janes.
8. 2 – Rules of Court 1884, Order XVII., r. 4 . Romer, Q .C . and Maidlow , for the defendant.
Onaction
the 3rd Dec. 1888 a sole plaintiff brought an
for a mindatory injunction and damages argued that the action was in effect an action for
for the obstruction of light to the plaintiff"'s asurvive
tort which died with the plaintiff and did not
to the executor except so far as was
freehold house by the defendant. The plaintiff provided for by the statute 3 & 4 Will. 4,
died on the 15th Oct. 1889, after the action had c. 42, s. 2 :
been entered for trial but before trial, having Bowker v. Evans, 53 L . T. Rep. N . S. 801 ; 15 Q . B.
made her will under which B . was sole devisee Div. 565.
and executor. B. subsequently obtained an order They also cited
of course to carry on the proceedings against Kirk v. Todd,47 L. T. Rep. N . S. 676 ; 21 Ch. Div.
(a) Reported by G . WELBY KING,Esq., Barrister-at-Law . 484 ;
Caan. Div.] Jones v. SIMES. [Chan. Div .
Phillips v. Homfray, 49 L . T. Rep . N . S. 5 ; 24 , but was in part erected afterwards. These points.
Ch. Div . 439 ;
Wordsworth v. Harley, 1 B . & A . 391 ; | are material on the question of the mandatory
Lord Oakley v. Kensington Canal Company, 5 B . & injunction that is asked . The action, as I have
A . 138 ; said , is a common law action in respect of the
Flinn v. Perkins, 32 L . J. 10, Q . B . ; damages which are asked ; it is also a suit in
Twycro88 v. Grant, 39 L . T . Rep . N . S. 618 ; 4 C . P . equity which the old courts of common law had
Div. 40. no jurisdiction to deal with. How equity came
Whitehorne, Q .C . and Carleton Rea , for Ben . to interfere in the case of lights is well known.
jamin Jones, contended that the action being for The remedy at common law was not found
an injury to property, the right to continue the sufficient; action after action might be brought
action survived . They referred to for damages, and the damages under the old
Oakley v. Dalton, 57 L . T. Rep. N . S. 18 ; 35 Ch. Div. system were damages up to the date of the writ ;
702 ; possibly, in the end, the defendant entirely failed
Hatchard
Div. 771 ;v. Mege,56 L . T. Rep. N . S. 662; 18 Q. B. to pay the damages and removed the building .
Garth'v. Cotton , 1 Diok . 183 ; There was no remedy at common law to have the
Price v. Berrington , 11 Beav . 90. building removed if the defendant chose to
Romer, Q .C . in reply. continue it - I am speaking of course of private
nuisance to light, and not with regard to public
Cutty, J. - Certainly this case has been very nuisance, with regard to which there was a
fully argued , and, if I thought it necessary to go remedy at common law to have it removed - and
through all the authorities on tbe subject before thus it was that the Court of Chancery was
deciding it, I should probably take some time in induced to interfere and to make an end of the
order to putmy judgment into such form as the matter to prevent excessive litigation which
citation of the authorities seemed to require ; might have otherwise taken place. That court
but, notwithstanding the various arguments I gave a proper remedy by way of injunction.
have heard, I cannot but consider this as The counsel for the defendant in this case are
otherwise than a plain case. The writ was issued well aware of certain general rules which exist in
in Dec. 1888 , but before the action came on for regard to the granting of mandatory injunctions.
trial the original plaintiff died, and within six It was stated, but loosely stated as a general
months after his death the common order to i rule, that if the building is up before the writ is
carry on the action was obtained by his executor issued the court is disinclined to grant a
and devisee, who is one and the same person . mandatory injunction . It is not an excess of
The motion is to discharge the order, and the jurisdiction to grant it , notwithstanding the
defendant's counsel declined to accept anything building is completed before the writ is issued ;
less than a discharge. The point taken is, that but it is a circumstance which justifies the
the action is dead. I use the term " action " . court exercising the power of ordering the
which is the modern term ; but, when properly building to be removed ; but, of course, in
considered , this action is a common law action exercising the discretion , the conduct of the
and a suit in equity such as might haye been defendant in putting the plaintiff off his guard ,
maintained in the old days in the Court of and running up his building in haste in
Chancery. The case made by the late plaintiff the night, so that the building grows like a
of course I pronounce no opinion on the merits mushroom as is sometimes done, is a matter
is a case for a mandatory injunction as well as which the court takes into consideration on a
an ordinary injunction , and also for damages , question of mandatory injunction . If the devisee
and the case stated is of this nature : that not in this case has to bring a fresh action ,he will
long before the writ a correspondence passed, on have to bring the action considerably more than
which the plaintiff relied as a matter of conduct a year after the building was finally completed ,
against this defendant, and as possibly raising and he will not be in a position to rely as against
something in the nature of a contractual obligation the defendant on the letters which passed
on his part, which , if the late plaintiff could between the testatrix and him ; in other words,
sustain , would have put him in the position of if by any chance the defendant could drive the
being entitled to have the obstruction complained devisee to a new action , the defendant thinks he
of removed ; that is to say, there was a personal will be in a better position to escape from the
case made against the defendant in regard to equitable remedy. The devisee, of course, cannot
the erection of the buildings. I do not intend recover the damages which would be granted as
to prejudice the trial in any way by putting any a matter of course in a common law action ;
particular construction upon those letters, but those damages would go to the personal estate,
I merely state them for the purpose of showing or, in other words, belong to the executor. I will
what kind of case was raised . Now , there are stay now to consider the order so far as it relates
two matters of complaint : the first is, that by to the executor. Formerly the damages in a
the erection of a permanent building there will common law action were only damages down to
be an obstruction of the plaintiff's light ; and the | the date of the writ, but, under the existing rules
second is, building wrongfully on a wall or a (Order XXXVI., r.58), where the damages are to
party wall of the plaintiff, and the mandatory be assessed in respect of any continuing cause
injunction asked for is in respect of both those of action , they are to be assessed down to the
wrongs; that is to say, to compel the defendant time of the assessment; so that the late plaintiff
to remove his building so far as it obstructs the | could have recovered the common law damages
light, and to compel him also to remove the down to the date of the assessment, and was not
building which he has erected on the wall. The confined , as under the old practice to damages
statement of claim also states that the building down to the date of the writ. But the statute of
which has caused the obstruction of the light 3 & 4 Will. 4, c. 42, s. 2, has put the executors
was not wholly erected when the writ was issued, I of the late plaintiff clearly in theposition of being
May 24, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. 449
Chan. Div.] Re WALKER ; WALKER v. WALKER. [Chan . Div.
entitled to bring an action in respect of this it is an extravagant proposition . The 3rd rule
injury to the real estate of the testatrix , although
of the 17th Order provides that, “ in case of the
the action must, according to the statute, be devolution of any estate or title pendente lite the
brought within six months from the date of her cause or matter may be continued by or against
death, and be confined , as to damages, to six the person to or upon whom such estate or title
months before. Consequently the continuing has come or devolved .” I cannot find any reason ,
plaintiff as executor could bring such an action, either in the nature of things or in regard to
and therefore there is a right of action by virtue| general rules, to cut down that order, and say
of that statute, and seeing the late plaintiff that it does not apply to such a case as the
could have recovered the damages down to the present, and I decline to think so. I refuse the
period of her death , it is clear to my mind that motion with costs as against the party obtaining
the executor can recover those damages in this the order ; they will be their costs in any event .
instance. Consequently , I think there is a I have not gone through all the authorities that
right on the part of the legal personal repre. have been cited . I am quite surrounded by them ;
sentative to continue, at least to the extent I and I was quite prepared to go through a great
have mentioned , the action so far as the common many more ; but I have considered them as they
law action is concerned . I am not called on , have been mentioned to me. I should say that in
and I do not intend , to express any opinion at one of those cases (Kirk v. Todd , ubi sup.) the
the present moment, as the motion is only to case of the Original HartlepoolCollieries Company
discharge the order, upon whether, as executor, v . Gibbs (36 L . T . Rep. N . S . 433 ; 5 Ch. Div. 713 )
be can recover more than the damages accruing was mentioned , in which the late Master of the
within six months from the death , though my Rolls held , and rightly held at the time, that the
impression is that he cannot ; but I leave that to common law damages were damages up to the
be discussed at the proper time. It is no ground time of the writ being issued . In that case the
for discharging the order, because I have offered point was raised on the counter-claim ; but that
the defendants that they shall be allowed to plead is altered now by OrderXXXVI., r. 58.
the statute, but that has been rejected . But now ! Solicitors : Church , Rendell, and Co., for Thomas
I come to the other part of the action that claims Southall, Worcester ; A . Hunt, for Miller Corbet,
a mandatory injunction ,and it appears to me that Kidderminster.
the peculiar remedy to have that building removed
was an equitable right existing in the late
plaintiff, and of course that equitable right has Wednesday, Feb. 26 .
not devolved or passed to the executor, for the (Before KEKEWICH, J.)
executor has no interest in the land , but it has
passed with the equitable remedy to the devisee, Re WALKER ; WALKER v. WALKER. (a) .
and I think the devisee is in respect of the Trustees — Investment-- Appropriation to satisfy
mandatory injunction in the same position as his legacy — Sale of securities — Breach of trust -
testatrix was. Of course there is no rule of Re-investment- Insufficient security - Valuation
common law that applies to it. Possibly , if I had - Duties of trustees — Trustee Act 1888 (51 & 52
a little more time, by searching through the old Vict.c. 59), 88. 4, 5 .
writs when there were real actions at common The executors and trustees of a will continued an
law and the like, a discovery might be made, and investment of the testator's, consisting of two
I am disposed to think in a case where there was bonds, to answer a trust legacy of 6001. The
a real action that the heir could have continued bonds subsequently increased in value : the
the action . I will not say anything about the trusteessold them , and invested 12001., part of the
devisees, and the actions, or some of them , which proceeds, upon two mortgages of freehold houses ,
are mentioned in the 36th section of 3 & 4 Will. 4 , to answer this legacy of 6001. and another of the
c. 27. That, however, would only be an sanie amount. The security afterwards proved
analogy ; it would not settle the point. I bave insufficient. On the occasion of the advance a
inquired of the registrars,and I have also inquired valuation was made of these two houses together
of other learned persons, as to the practice, and I with many others, but such valuation was not
hare some considerable amountofknowledgeof the made on behalf of the trustees, nor did they
practice at the present time, and find that no one know anything about the valuer.
hasever heard of a case of this kind of a devisee not Held , on the evidence , that there had been an
continuing the action ; and the reason why it may appropriation of the bonds to satisfy the legacy ;
be difficult to findatpresentany such case is,as has that the sale was unnecessary and the re-invest .
often been stated in similar cases, that it was never ment improper ; and that the trustees were not
thoughtworth reporting. I think at che bottom of protected by either the 4th or 5th sections of the
the argument of the defendant lies the fallacy of Trustee Act 1888,and must account for the value
comparing the right to the mandatory injunction of the bonds.
to a common law action of tort, and I think in This was an action by cestuis que trust againg's
respect of that remedy (which cannot of coursebe their trustees, complaining of a breach of trust,
granted to the executor because he has not the The plaintiffs were Richard William Walker and
estate ) the argument of the defendant' s counsel Mary Eleanor Lindley, and the defendants were
went so far as to say that, if the wrongdoer , the John Saunders Walker and Robert Walker
present defendant, had died and the original Smith .
plaintiff was still alive, the defendant would have By his will, dated the 14th July 1868, William
escaped altogether scot free from this action . Of John Walker, of Knaresborough, Yorkshire,
course personally he would because he would be directed the defendants John Saunders Walker
dead ; but the contention was, that the action and Robert Walker Smith, whom he appointed
his heirbeen
could notor have
executor maintained against his
as the case may be. I think ! (a) Reported by G . Macan, Esq., Barrister-at-Law.
450_ Vol. LXII., N . S.] THE LAW TIMES. [May 24, 1890.
Chan. Div.] Re WALKER ; WALKER v. WALKER. [Chan . Div.
his executors and trustees, to set aside or invest i Warmington , Q .C . and Farwell for the plaintiffs.
and stand possessed of the sum of 6001., and pay | - The defendants are liable to make good to the
the interest to Elizabeth, Ellen ,and Ann Burgess, | plaintiffs the loss arising from the bonds having
the three sisters of his late wife, during their been parted with . There was,on the evidence, an
lives and the life of the survivor, and after the appropriation of the bonds to satisfy the legacy,
death of the survivor to pay the said 6001. to his and the sale and conversion was therefore
cousin Walter Walker, and in the event of his improper. Besides, the investment upon the
being dead then to pay the samecqually amongst two mortgages was a breach of trust. No
his children ; and subject to this and other proper valuation was made, and the amount
legacies he gave the whole of his personal estate advanced exceeded the amount proper for trus.
to his executors. The testator also declared that tees to advance upon such property :
it should be lawful for the trustees to permit so Learoyd v. Whiteley, 58 L . T. Rep . N . S. 93 : 12
much of his residuary personal estate as should App. Cas. 727 ;
at his death be required to be invested for the Re Salmon ; Priest v. Uppleby, 62 L . T. Rep. N . S.
purposes of his will to remain , either in the Sect. 270 ; 42 Ch . Div. 351.
4 of the Trustee Act 1888 does not apply, as
whole or in part, invested in such investments as
he might have at his death ; and he empowered | the valuation was really made on behalf of the
his trustees from time to time to call in , sell, and borrowers.
dispose of any such investments and invest as Neville, Q .C . and Bunting for the defendants.
therein mentioned , including mortgages of free There cannot be said to have been an appropria
holds. tion for this legacy. Even if there was, the
The testator died on the 5th Oct. 1871, and trustees have a power to vary investments,and
Elien Burgess, the survivor of the three tenants they may do so to benefit the tenant for life, if
for life, died on the 26th Dec . 1887. Walter the investment is a proper one. We submit that
Walker had died in 1872, leaving three children , the investment upon the mortgages was within
whose interests were all represented by the plain - the powers of the trust. A report as to the ralue
tiffs, who were absolutely entitled to the 6001. wasmade, and was " reasonably believed " by the
After the testator 's death this legacy remained trustees to have been made by a valuer instructed
invested (together with another similar legacy of and employed independently of the owner. The
6001.) in two 4 . per cent. debenture bonds for trustees are thus protected by the 4th section of
5001. and 7001. of the South Yorkshire and River the Trustee Act 1888 . (a ) Nor should they be
Don Company, which formed part of the invest- directed to restore the bonds, but merely to
ments made by the testator himself. These make good the sum advanced upon the mort
bonds were transferred into the joint names of gages in excess of that which would have been a
the defendants. proper advance : (sect. 5 of the Trustee Act
In 1880 the plaintiffs applied to the defendants 1888.)
for information as to the manner in which the Warmington , Q . C . in reply . - The 5th section is
legacy of 6001. was invested , and on the 7th Oct. | inapplicable to an investment which should never
1880 the defendant John Saunders Walker replied | have been made at all ; it only deals with the
that it was invested as above stated . amount lent on a security which would in other
In Jan. 1881 the plaintiffs, through their soli. respects be a proper ir.vestment.
citor,
separate
desire to have the legacy kept
; and ona the 12th Jan. 1881 J. S . Walker
expressed KEKEWICH, J. — There are two important ques
wrote refusing to do so. However, in July 1881, tions in this case, one depending on the Act,
the defendants sold the two bonds for 14861.08.8d ., which has not yet received much judicial con
and invested 12001., part thereof, upon two mort struction, and the other depending on the duty
of trustees to whom is given what is generally
gages atforTooting.
shops 6001. eachThe, athouses
5 perwere
cent.,
notupon two called a trust legacy. I have here a clear and
finished
for habitation at the time, and were unlet. In (a ) Sect. 4 (1). No trustee lending money upon the
making the investment the defendants acted security of any property shall be chargeable with breach
upon a report made by Messrs. Brown, which | of trust by reason only of the proportion borne by the
contained a valuation of numerous houses. The amount of the loan to the value of such property at the
defendants had not instructed Messrs. Brown, time when the loan was made, provided that it shall
and knew nothing of them . The security proved appear to the court that in making such loan the
insufficient. trustee was acting upon a report as to the value of the
reasonably
property made by a person whom the trustee
The plaintiffs brought this action claiming a believed to be an able practical surveyor or valuer
declaration ofthat there had been an appropriation instructed and employed independently of any owner of
of the sum 6001., or one moiety of 12001. bond the property, whether such surveyor or valuer carried
or debenture stock of the South Yorkshire and or on business in the locality where the property is situate
River Don Company to answer the legacy of exceed elsewhere, and that the amount of the loan does not
6001.; that the realisation of the bonds and perty astwostated equal third parts of the value of the pro
in such report, and that the loan was
re-investment upon mortgage was improper and a made under the advice of such surveyor or val
breach of trust ; and that they should be ordered to expressed in such report. And this section shall apply
to a loan upon any property of any tenure, whether
replace the bonds, or pay their present value with agricultural
interest at 45 per cent. from the 26th Dec. 1887. or house or other property , on which the
trustee can lawfully lend .
The defendants pleaded that the change of Sect. 5 (1). Where a trustee shall have improperly
investmentwas made bona fide, and the re-invest advanced trust money on a mortgage security which
ment proper ; and that they reasonably believed would at the time of the investment have been a proper
investment in all respects for a less sum than was
Messrs. Brown to be able, practical surveyors actually advanced thereon , the security shall be deemed
and valuers, and that they were instructed and an authorised investment for such less sum , and the
employed independently of the owner of the i advanced
trustee shall only be liable to make good the sum
in excess thereof with interest.
property .
May 24 , 1890.] THE LAW TIMES . [Vol. LXII., N . 8. – 451
Chan . Div.] Re WALKER; WALKER v. WALKER. [Chan. Div .
simple case of a trust legacy , and one which is , investment for this particular trust. They say
made more clear and simple than often is the now that they did not ; and one question which I
case, by reason of the residuary gift, which is have to decide is, whether that is true or not. I
to the trustees themselves, so that, so long as have their distinct assertion , signed by one of the
other trust legacies are properly dealt with , the trustees (whose authority is not repudiated ), in a
trustees had only to account with themselves. letter of the 7th Oct. 1880, written in answer to
The legacy is of 6001., which is given , in a very an inquiry by the plaintiffs' solicitors, who were
few words, in this way : [His Lordship read the entitled to an answer , that the 6001. legacy was
words of the gift in the will and the declaration " invested by the trustees, Robert Walker Smith
empowering the trustees to permit the residuary and myself, in the South Yorkshire and North
estate to remain as then invested , or to sell and Deron Company.” Further correspondence
convert.) That sum of 6001, is given to a person ensued , and eventually the plaintiffs' soli
for life, and afterwards to the plaintiffs. That citors insisted on that 6001. being sepa
particular direction gave the trustees the option rately invested . As at present advised, I
of either taking what the testator had left for do not think they were strictly entitled to that ;
security , and to appropriate so much of his in but, on the other hand, they did not know how
vested property as was equivalent to 6001., taking | the matter stood exactly. Very little turns on
care, of course , that it was a good investment in that, except as an excuse on behalf of the trustees,
the terms of the trust ; or, having converted the to which I will refer presently. From first to
whole or part of his estate, to invest someof the last there was no departure from the original
proceeds of conversion, to the extent of 6001., in statement, that the 6001,was invested in this way,
one of the autborised investments. They might and possibly they have set apart too much . If
have done either. That is the common case. I so , they were the only persons who could com
am not prepared to say that, where trustees have plain of that excess, and they cannot be heard
several trust legacies of that kind, and have a now to allege that, although there might have
large sum of debentures or other stock , which is been a breach of trust against stranger residuary
an investment authorised by the will, and one legatees, that is any reason why the appropriation
which they consider a good and sufficient trust was not good as against themselves. They stated
investment, they may not put aside the entire as clearly as possible, and in a way which they
amount without dividing it into portions, which cannot repudiate now , that the 6001, was invested
is practically impossible without a sale, and in these bonds, and was half of the larger sum of
simply appropriate it in their books; that is to 12001. There is no doubt; about that, because in
say, if they have three trust, legacies of 5001. the last letter of the 12th Jan . 1881 Mr. Walker
each and 15001. stock , I am not prepared to say says, “ Allow me to inform you that she has only
they may not properly appropriate 5001., one-third interest to the extent of Lalf in the matter."
of that, say, to Jane and her children, one-third to That was the understanding throughout. As to
Mary and her children , and one-third to Eliza the first point, it is clear the 6001. was appro
beth and her children , in their books. That does priated and invested in that way. Shortly after
not seem to me to be open to the great objections this correspondence, which ended by the solicitors
which there are to a contributory mortgage, one insisting on a separate investment, the trustees,
only of which objections I dealt with in the case for some reason or other which it is difficult to
of Webb v. Jonas (58 L . T . Rep . N . S . 882 ; 39 Ch. ascertain , realised those bonds, and invested , not
Div . 660), because that was sufficient on that the proceeds of sale , but 12001., on mortgage.
occasion. If, on the other hand , the trustees take The time for appropriation was gone for the best
a different course, and convert the personal ofall reasons, namely, that the appropriation had
estate, and are minded to invest part of the pro been made once for all. However, they did invest
ceeds for the benefit of their trust legatees, then only the 12001. I have been endeavouring to find
I apprehend their duty is perfectly plain - to out why that was done,and a great many reasons,
invest that particular sum in a particular stock butby no means consistent with each other, have
for the benefit of those particular legatees. Then , been suggested , and I do not think any of them
again, there is not so strong an objection to a are satisfactory. The first reason, and the one
contributory investment when there is the same the trustees now seem to prefer, is that the soli.
set of trustees for different children and grand citors, Meesrs. Dibb and Co., had been impor .
children as there is when there is a contributory tuning them , so that they thought they had better
mortgage in the names of two different sets of comply with their request ; that they had looked
trustees claiming under two different instru into the matter, and that it would be better to
ments, which was the case in Webb v. Jonas (ubi invest this 6001.separately,and do in factwhatwas
sup.). But, although the objection is not strong wished . But they did not invest it separately .
and not the same altogether, yet I apprehend the Tf that was their object, they took the worst *
trustees who do not invest the sums separately so means to accomplish it, because they invested
as to ear-mark them in someway, are committing 12001. Although it is true they invested two
a breach of trust. That result is aroided fre sums of 6001. on two mortgages, they took no
quently as regards investments in the public means to sever one from the other, so as to say
funds by changing the order of the trustees in the that one belonged to one trust and the other to
bank-books, so as to make it different stocks. It the other. If that was their reason , they entirely
seems to me to be the duty of the trustees to do failed to accomplish their object. One would have
one or the other, and conveniently in the first | thought that there was another reason , one that
place, but necessarily in the second, there must Mr. Neville has fairly argued might have entered
be an appropriation of a particular investment, into their heads as a good reason , namely, that
ear-marked to that particular trust. The trustees by changing the investment they would have
in this case elected, as I think under the termsof increased the income of the tenant for life ; and,
thewill they were entitled to do, to set apart an i so long as they exercised their powers honestly, I
Chan. Div.] Re WALKER ; WALKER v. WALKER. [Chan. Div.
should not find fault with trustees who sold out property." Then , further down, it says, or “ that
stock , and who invested the money on a good the loan was made under the advice of such
trust mortgage for the purpose of getting, and surveyor or valuer expressed in such report."
thereby getting, an increased income for the Now , this report does not suggest a loan , and
tenant for life. Whether 31. per annum was does not advise one on this property. It is about
enough increase to justify the change I will not divers others properties as well as this, and
pause to inquire, but one of the trustees told me advises a loan on the whole of the property taken
distinctly that that had nothing to do with it ; together, which is an entirely different thing from
he never considered whether it would increase a loan on one or two of the houses. As regards
the income of the tenant for life ; and my con. these two houses, there is no value put on them
clusion is, that it had nothing to do with the either separately or together, and, seeing that
change of investment. I do not believe that their estimated rents are different, one would
that was the object at all. Somebody suggested bare expected the estimated value to be different,
à mortgage. It does not seem to have come and the amount that might be lent on mortgage
from Messrs. Learoyd in the first instance, upon to be different ; so that the case is not within the
the evidence before me, but from the trustees parview of the Act as regards that. There is
talking it over. What they said , and why they the report of a surveyor, and I take him to be an
thought of this, has not been explained . Messrs. able and practical surveyor ; but I cannot take it,
Learoyd had instructions to find a good security . upon the evidence, that the trustees beliered him
When those instructionswere given , bow , and for to be an ahle and practical surveyor, because they
what purpose, is all left in che dark . That is an knew nothing about it. The surveyor was
unsatisfactory way of dealing with trust pro certainly not employed or instructed indepen
perty . My conclusion is, without using theword dently of the owner - at least that has not been
in an offensive sense, that this was a wanton proved - nor by the trustees, and I cannot adopt
change of investment - one which the circum - | the construction that the words “ reasonably
stances of the case did not require, and one believed ” apply to instructing and employing, as
for which the trustees had not themselves suggested by Mr. Neville. I do not think they
any good and sufficient reason . However, do grammatically, or that that is the right con
the change was made ; the bonds were rea . struction . Therefore the case is not within the
lised, and the 12001. invested on two mortgages 4th section. Then, as regards the 5th section of
of 6001. each . It is immaterial to this part the Act, a different question arises. That is a
of the case whether they ought or not to have beneficial section , the object of which is to pro
made the change. Now , I have to consider vide that, when a trustee has advanced more
whether, having the money in their hands, they money on mortgage of the property than was
ought properly to have invested it as they did ? reasonably prudent, and the estate fails, then he
In the first place, I need hardly repeat that it is not to be chargeable with the whole, but only
was improper to invest the two sums of 6001. in with so much as would have been a loss if you
such a way that they really made 12001., so that take the real value at the time of investment,
the plaintiffs have to go against two mortgages not the value he put upon it. That is the sub
instead of one. They cannot lay their hands on stance of it. Supposing, for instance, a man
their own 6001., half of the proceeds. That is a invests 1001. on property that would bear only
question of non -investment and loss rather than 801. ; he is not to lose the whole 1001. because of
of an improper investment. What did they do ? that. That is a reasonable provision on behalf of
They instructed Messrs. Learoyd to find good trustees. But the whole section depends on this :
security , and Messrs. Learoyd laid before them ! “ When a trustee shall have improperly advanced
some valuation by Messrs. Brown. Now Messrs. trust money on a mortgage security which would,
Brown were not instructed by the trustees. The at the timeof the investment,havebeen a proper
trustees knew nothing about them , and I do not investment in all respects for a less sum than was
know that they ever saw them . I should think actually advanced thereon .” That I understand
probably they did not. Themoney was invested to mean that the impropriety consists in the
in this way, and the question is,whether it comes amount invested . If the investment is other.
within the Trustee Act. It is admitted to be an wise improper - as, for instance, if a man invesle
insufficient security now , whatever it was then . on mortgage of trade buildings when he is only
It was a security on unfinished houses - houses entitled to invest on mortgage of agricultural
which were not properly a trust security, and, laud - be cannot claim the benefit of the section,
even if they were so , it was not a commend . and say, " I might take the valueat two-thirds
able transaction on the part of the trustees. of the advance, although not the whole ." He
I need not pursue it further, because I think must establish the propriety of the investment
the change was wrong,and therefore whether the independently of value, and then he has the benefit
second investment was wrong or not is com of the section to save him from any loss greater
paratively of little importance as regards the than that which would have been incurred by
character of it. As regards the Act of Parlia advancing too large a sum on what otherwisewould
ment, if the transaction is saved by the Act, that be a proper security . That section therefore does
may make a great difference. There are two not apply. Theresult is that the trustees ought
sections of the Act to be considered , and they not to have sold these bonds; they sold them
are entirely separate. One is the 4th section , by without excuse, and must make the amount good ,
which a trustee is indemnified if “ in making so that the plaintiffs are absolutely protected . I
such loan the trustee was acting upon a report see no reason to direct the trustees to repurchase
as to the value of the property made by a person the bonds. They must account to the plaintiffs
whom the trustee reasonably believed to be an | for the value of the bonds sold as at this time,
able practical surveyor or valuer, instructed and i and as from the 31st Dec. 1887 they must also
employed independently of any owner of the l account. I take the 31st Dec. 1887, because the
May 24, 1890 .) THE LAW TIMES. ( Vol. LXII., N . 8. - 453
Chan. Div.] WATTS v. SMITH . [CHAN . Div.
26th is so near the half-year that it is not worth ! On the6th March 1890 the plaintiffs gavenotice
while to make the proportionate division . They | of motion for an injunction as above .
must also account for the interest the bonds Warmington, Q.C. and Clare appeared for the
would have earned - interest on the 6001. at 45 plaintiffs, and stated the facts of the case .
per cent. That is until to -day. From to-day
there will be an order on them to make good that Bardswell appeared for the defendant. - This
sum ,and, as regards the interest, that will follow is the first time that a construction will have to
the usual rule in such cases. There will be judg. be put upon the words “ engage in business." I
ment for that sum . If there is any question submit that, upon the authorities, a covenant of
about the exact sum , there must be an account; this sort is intended to prevent the person
and the trustees must pay the costs of the action . entering into it from setting up in a rival estab
Solicitors for the plaintiffs, Paterson , Snow , lishment, and carrying it on as owner or principal.
and Bloxam , for Dibb and Co., Leeds. A mere clerk at a salary cannot be said to be
Solicitors for the defendant, Learoyd and James, " engaging in business ” so as to break an agree
for Learoyd and Simpson , Huddersfield . ment of this nature :
Clark
253 ;
v. Watkins, 8 L . T. Rep. N . S. 8 ; 11 W . R .
National Provincial Bank of England v. Marshall,
60 L . T . Rep. N . S. 341 ; 40 Ch. Div . 112 ;
Saturday, March 15. Allen v. Taylor, 24 L. T. Rep. N . S. 219 ; 19 W . R .
LIVERPOOL DISTRICT REGISTRY, 556 .
(Before KEKEWICH, J.) In the last case it was held that a covenant not
Watts v. SMITH . (a ) to " exercise or carry on ” a certain trade was
not broken by the covenantor becoming the
Agreement- Construction - Not to “ engage in manager, at a fixed salary, of a person carrying
business " - Breach - Injunction . on the same trade. In the case of Hill and Co.
S. entered into a written agreement of service with v . Hill (55 L . T. Rep . N . S . 769 ; 35 W . R . 137),
W . and Co., who were general drapers, haber | which was before your Lordship , the defendant
dashers, 8c., and agreed not to " engage in a covenanted not to “ engage in or be in any way
similar business ” within half a mile of Wi's concerned or interested in any similar business,"
premises for six months after leaving the same. | and your Lordship held that the words " con
S. left Wi's service, being at the time buyer in one cerned in ” were sufficient to cover the case then
of the departments at a fixed salary, and almost in question. There is a case (Rolfe v. Rolfe, 15
immediately entered the service of a rival esta Sim . 88 ) where a man , who had been a tailor's
blishmentof universal purveyors next door,where cutter, afterwards became foreman in another
he was appointed to a salaried post in a pre tailoring business, although he had covenanted
not to " carry on , practise, or engage in the busi
cisely similar department.
Held that, without precisely defining the meaning | ness of a tailor," and he was restrained by injunc
of the words " engage in business," the defendant tion . That case is, however, distinguishable, as
had done that which the agreement intended he a foreman in a tailor's business is in a different
should not do, and an injunction must be position from a clerk at a salary . In Palmer v.
granted . Mallet (38 L . T. Rep . N . S . 64 ; 36 Ch. Div . 411)
This was a motion by Watts and Co.,who carried the words of the covenant were wide and applied
on business at Compton House, Liverpool, as to an assistant in a business. Then in the pre
general drapers, haberdashers, and house fur sent case the two businesses are not similar.
nishers, for an injunction to restrain the defen The plaintiffs are general drapers and haber
dant, David Smith , from engaging in any dashers, whereas the defendant is now acting as
business similar to that carried on by the plain . buyer in the glass and china department of the
tiffs, within half a mile of Compton House. The “ Bon Marché ” establishment, and the pro
defendant had been in the plaintiffs' employment prietors are universal purveyors. The business
since 1882, and on the 14th July 1885 he entered engaged in must be one ejusdem generis as that
into a written agreement for service with the of the plaintiffs, or the covenant does not apply.
plaintiffs upon certain terms and at a salary Warmington, Q.C. in reply. — practically
businesses
The evidence
therein mentioned, and he agreed not to engage shows that the are the
in a similar business within half a mile of Comp same.
ton House for six months after leaving the said KEKEWICH , J . - Mr. Bardswell has, not for the
Watts and Co. The agreement also contained a first time, displayed considerable industry and
clause by which the engagement could be termi. ingenuity ; but I am not disposed to follow his
nated by either party thereto on giving a week 's researches into the meaning of the word
notice to the other. “ ergage," whether construed by the courts or
On the 26th Feb . 1890 the. defendant gave a elsewhere. I do not think it necessary to inves
Week's notice and left. tigate the meaning of the word etymologically,
At that time he was buyer in the glass and or to consider how it ought to be construed when
china department of the plaintiffs' establish used with a different context to that which I
ment. now find before me. It is obviously a word of
On the 3rd March 1890 the defendant engaged flexible meaning. Servants are engaged when a
himself to the proprietors of a general drapery bargain is made between them and their em
business called the “ Bon Marché," which was ployers , and they are engaged for a particular
next door to the plaintiffs' premises ; and he was purpose. Solicitors certainly , and I also think
appointed buyer or manager in their glass and counsel, may be said to be engaged in a case ;
china department. and ,apart from another meaning of the word with
(a) Reported by G . MACAN, Esq., Barrister-at-l.aw . which we are all familiar, all persons in all classes
454- Vol. LXII., N . 8.] THE LAW TIMES. (May 24, 1890.
Chan . Div.] Re JAMES ; CLUTTERBUCK v. JAMES. [Chax. Div.
of life are frequently engaged without meaning Clutterbuck and Sydney William Trevenen ; and
more than1 +that they are much occupied . In this the defendants
Augusta James.were Herbert James and Annie
a man is engaged
hotamanis
case I find that or employed
engaged, or employed ;: and
and
a bargain is made with him to enter into the service By his will, dated the 14th Oct. 1873 , Edward
ofthe firm of Watts and Co. for a certain time, and James appointed executors, and after various
upon certain terms. When I come to the terms bequests devised and bequeathed all his residuary
of the bargain and the consideration that it estate to his son Walter James.
was for a limited period and a limited distance, On the 2nd July 1874 the testator made a
that he should not engage in a similar business, I codicil to his will, and thereby bequeathed to his
think it means that he should not go and do that, brother John James the sum of 15,0001. upon
within these limits, which he, until then , was trust for investment, and to pay the income
doing in the employment of these persons here. thereof to his son Herbert James " during his life,
That seems to me to be the reasonable construc or until he shall becomebankrupt, or shall assign ,
tion of this agreement. I think it is sufficiently charge, or incumber the said income, or some
expressed to prevent this defendant being part thereof, or shall do or suffer something
engaged, that is being occupied, being a servant whereby the same or some part thereof would,
in a “ similar business " to that carried on by the through his act or default, or by operation or
plaintiffs. Though the evidence as to the cha - process of law , or otherwise, if belonging abso
racter of the business is not quite so express as lutely to him , become vested in, or payable to,
I should wish , still it is not denied that the house some other person or persons,' and after the
next door to the plaintiffs is a rival establish | failure or determination of this trnst, upon trust
ment, and that both are universal purveyors. I as therein mentioned as to the capital and
do not think that, within the limits specified, the income.
defendant can , according to his bargain, engage | Walter James, the residuary legatee under the
as a servant in the establishment next door to will, died intestate on the 2nd Nov. 1883, and
the plaintiffs, and that therefore the injunction administration was granted to his widow, the
must go. defendant, Annie Augusta James.
Solicitors for the plaintiffs, Norris, Allens, and The testator died on the 10th July 1874.
Chapman, for North , Kirk , and Cornett, Liver . The trust legacy was now represented by two
pool. mortgages and a sum of India Stock.
Solicitors for the defendant, Wynne, Holme, On the 31st July 1889 a petition in Scotch
and Wynne, for Howard , Jones, and Broughton , form was presented in the Sheriff Court of
Liverpool. Ayrshire by Herbert James and another for the
sequestration of the estate of Herbert James ;
and on the same day sequestration was awarded
Friday, March 14 . thereof.
At the first meeting of creditors it was resolved
(Before KEKEWICH , J.) that the estate should be wound -up under a deed
Re JAMES ; CLUTTERBUCK V. James. (a) of arrangement, and the creditors resolved not to
Life interest — Forfeiture on bankruptcy - Scotch appoint a trustee.
sequestration . On the 15th Oct. 1889 the Lord Ordinary
H . J.was entitled under a will to the income of a recalled the sequestration . Between the date of
legacy of 15,0001. for his life, or until “ he shall the petition and the recall of the sequestration
become a bankrupt . . . or shall do or suffer certain sums in respect of interest upon the
something whereby the same or some part thereof investments representing the legacy of 15,0001.
would, through his act or default, or by operation were received by the plaintiffs, who had been
of law , or otherwise, if belonging absolutely to appointed trustees of the legacy ; and such
him , become vested in or payable to someother sums were deposited by them in a bank.
person or persons.” On the 31st July 1889 seques An originating summons was then issued by
tration of the estate of J. H . was awarded in the trustees to have it determined whether or
Scotland ,upon a petition by himself and another ; not the incomeof the legacy was forfeited by the
butat the first meeting resolutions for winding operation of the forfeiture clause in the will.
up the estate by a deed of arrangement were Various questions were submitted for the
passed , and no trustee was elected . On the 15th opinion of the Lord Advocate in Scotland, to
Oct. 1889 the sequestration was recalled by the which he replied (inter alia ) that, according to
Lord Ordinary . Between the dates of the presen the law of Scotland, Herbert Jones was made
tation of the petition and the recall certain divi a bankrupt on the sequestration of his estate ;
dends and sums of interest payable in respect of but that, until the election and confirmation of
the legacy of 15,0001. came into the hands of the a trustee, a sequestered estate under the Scotch
trustees of that legacy , and were lodged in a Bankruptcy Act did not becomevested in another
bank. According to Scotch law H . J. was made person ; and that Herbert James was now the
person entitled to give the trustees a good dis
a bankrupt by the sequestration ; but until the charge for the interest due before and since the
election and confirmation of a trustee a seques order for sequestration ,
tered estate did not become vested in another The question as to whether or not there was a
person .
Held , that, although there was a bankrupicy, the Kekewich forfeiture now came on for decision before
right to receive the income had not vested in any , J.
other person , and therefore the forfeiture clause and, Edward Beaumont appeared for the trustees,
did not operate as a defeasance. as the widow of the residuary legatee did
not desire to argue in favour of the forfeiture, he
The plaintiffs in this action were Richard Henry submitted the argument to the court. In the
(a)Reported by G . MACAN, Esq., Barrister-at-Law . i present case the fact that moneys came into the
May 24, 1890.) THE LAW TIMES. (Vol. LXII., N . S. -455
Chan . Div.] Re JAMES ; CLUTTERBUCK V. JAMES. [Chan. Div.
hands of the trustees after the sequestration | ing the codicil according to the strictest gram
alternatives
distinguishes it from other cases where there has | matical interpretation , there are two
been held to have been no forfeiture : - the man may be bankrupt, or may assign ,
White v. Chitty, 13 L. T. Rep. N . S. 750 ; L. Rep. charge, and so forth , and in either event his life
1 Eq. 372 ; interest is defeated. But the courts have placed
Lloyd v. Lloyd , L . Rep. 2 Eq. 722 ; what I venture to call a benevolent construction
Re Parnham 's Trusis , 46 L . J. 80, Ch . on a clause
If there is a moment when the man is not in a main objectofofthis
thekind, and ishave
testator held that
to secure the
the per
position to receive his income when payable, sonal enjoyment by the legatee of his life interest,
then the forfeiture clause operates. [KEKE- and that a forfeiture is no more contemplated by
WICH , J.- The cases show that the mere fact of a reason of a bankruptcy than it is by reason of an
bankruptcy having occurred is not sufficient to assignment, unless the resting in some other
defeat the interest. ] No ; but a bankruptcy which person — that is to say, the power of some other
stops the receipt of the income is fatal. (KEKE person to give a discharge for that which would
WICH, J. - There was nobody else to give a dis otherwise be payable to the legatee - follows.
charge, and the right to receive the income was Now , I have here a distinct opinion by the Lord
not vested in any other person.] That would Advocate that, notwithstanding there was a
make the bankruptcy hare no effect whatever, bankruptcy, and apart from the annulment which
and the cases do not go as far as that: followed , the estate of the bankrupt did not vest
Ancona v. Waddell , 40 L . T. Rep . N . S . 31 ; 10 Ch . in any other person. It was an event to be
Div. 157 ;
Ex parte Dawes ; Re Moon , 55 L , T. Rep . N . S . 114 ; arrived at by some other proceedings. It is
immaterial to me what those other proceedings
17 Q . B . Div. 275.
Decimus Sturges, for the defendant Mrs. James, were. Iasammy now taking the Lord Advocate's
did not desire to argue in favour of the for opinion guide that something had to be
done. Now , one can quite understand that,
feiture. though here there is a beneficial interest, there
W . F . Hamilton , for the defendant Herbert might be an onerous interest, in which case,
James, was not called upon . according to our law , something further might
KEKEWICH , J. - This case turns upon an have to be done. So that that event did not
extremely interesting branch of law which I had follow . The right to give a discharge, that is to
not long ago to consider at some length in a case say, the beneficial interest under the will, did not
before me of Re Metcalfe ; Metcalfe v. Metcalfe vest in any other person by reason of the bank
(61 L . T. Rep. N . S . 767; 59 L . J. 159, Ch ). ruptcy. That being so, it seems to me that the
According to a role which I have found conve. event contemplated by the testator has never
nient, and which I have laid down myself, I do occurred . The criticism of Cave, J., in the
not intend to repeat anything which I said there. case of Ex parte Dawes (55 L . T . Rep. N . S .
I have to construe here a forfeiture or defeasance 114 ; 17 Q . B . Div. 275) becomes in point, because
clause. A life estate in a legacy is given to one the words are “ would through his act or default,
Herbert James " until he shall become a bankrupt, or by operation or process of law , if belonging to
or shall assign , charge, or incumber the said in . him , become vested.” And, as Cave, J, points
come, or some part thereof, or shall do or suffer out, “ would ” is not " might." No doubt
something whereby the same, or some part thereof, it might have followed by reason of the bank
would , through his act or default,or by opera ruptcy, and, as it did not, the clause had no
tion or process of law , or otherwise, if belonging operation . Then Mr. Beaumont points out, and
to him absolutely , become vested in or payable to calls my attention to the fact, that, in the inter
some other person or persons.” That is a gift to val between the petition in bankruptcy on the
him . He has become bankrupt according to the 31st July and the recall on the 15th Oct., some of
law of Scotland,and I have the Lord Advocate's this income became payable. That probably,
opinion that that is a bankruptcy. In default of according to the case to which Mr. Beaumont has
evidence I shall assume that bankrupccy in referred , would be sufficient to operate as a defea
Scotland is a bankruptcy within the meaning of sance — that is to say , to prevent the recall inter
the words " shall become a bankrupt." There are fering with the defeasance; but I must not go
words of difficult meaning as regards failure to into that, because, according to my view , there
pay debts, such as insolvency , but I think we all was no defeasance — there was not even an incho
know what a bankruptcy means. It means ate defeasance,because something else had to be
shortly a cessio bonorum for the benefit of all the done. I ground my decision not upon that at all,
creditors of the person who makes that cesser, and but simply on this — that the right to receive the
unless it were proved to me that by the municipal income never became vested in any other person .
law of a particular country there was some such The law I take from the Lord Advocate's opinion .
unfairness or some such departure from what is I am told that it has not yet been verified , but,of
sometimes called “ natural law ” that I ought not course, thatmust be done. The way of proring
to regard it as a bankruptcy within our law, and a question of foreign law deserves a little more
within the meaning of this clause, I should | care than it has received in this particular in
certainly regard bankruptcy according to the law stance . It is important, when an opinion is
of any civilised country as a bankruptcy within i taken , that the right question should be stated, so
the meaning of the instrument before me. That that onemay get the right answer ; and here there
event has occurred , and if I were at liberty to has been some little departure from that course ,
stop at the word “ bankrupt," I should be bound But I say nothing more about that except that
to hold that the interest had determined by the case and opinion must be verified .
reason of the bankruptcy . But the codicil pro - Solicitors for the plaintiffs, James and James.
ceeds in the way in which I have read it , with the Solicitors for the defendants, Neish and Howell ;
other words introduced by the word " or .” Read - | Wordsworth , Blake, and Co.
456 - Vol. LXII., V . S.] THE LAW TIMES. (May 24 , 1890 .
Chan. Div.] COOKE v. SMITH . [Chan . Div.
Tuesday,March 25. approved of the proposed assignment and release;
(Before KEKEWICH , J.) it was witnessed that the said Henry Cooke,
COOKE v. Smitu. (a) Joseph Cooke,and Rachel Swinnerton assigned
to the defendants J. T . Smith and T. Storey all
Absolute assignment to trustees for benefit of cre that the business then lately carried on by the
ditors — Release - Express trust - Surplus after said firm at Barrow -in -Furuess, and all the stock.
payment of debts in full - No resulting trust. in -trade, machinery , & c., book and other debts,
In 1876 the partners in a business firm , which was money and securities for morey , chattels, and all
other the personal estate and effects whatever of
in financial difficulties, executed a deed by which , the
after reciting their inability to pay their debts in firm , to hold the same business, stock - in .
full, they absolutely assigned the whole of the trade, & c., unto the said J. T . Smith and T . Storey
business to tro trustees upon trust, in their dis - upon trust that they should , in their absolute
cretion , either to carry it on or sell it, and out of discretion , either carry on the business of the
the profits or sale moneys to pay and divide the said firm , or at any time after sell and dispose of
clear residue unto and among all the creditors, the business and other premises thereby assigned,
in rateable proportions, according to the amount and out of the profits of the said business if
of their debts. The creditors were parties to the carried on , and out of the moneys to arise from
deed, and gave a release of their debts to the such sale and conversion into money , pay certain
partners. The trustees of thedeed carried on the costs, and should pay and divide the clear residue
business at a profit,and an interim dividend was of the said profits and moneys unto and among
paid . In 1883 they sold the business to one all and singular the creditors of the said firm , in
of the principal creditors, who paid the other | rateable proportions, according to the amount of
creditors the remainder of their debts in full. their several and respective debts ; and subject
This particular creditor had not been paid . In nevertheless to the covenants and provisions
1889 one of the original partners in the firm and thereinafter contained . The deed contained a
the representative of a deceased partner brought declaration that the trustees should have power
an action against the trustees of the deed and the to pay in full debts under 301., and whenever the
creditor who had purchased the business, im moneys in the lands of the trustees amounted to
peaching the sale, and asking for an account. A 501. the amount should be paid into the banking
preliminary point of law was raised by the house of the Lancaster Banking Company. By
defendants as to whether the plaintiff's had any the same deed the creditors, who were parties,
title to sue. executed a full release to the debtors of their
Held, that, as an express trusthad been declared by debts. Amongst other creditorswho so executed
the deed were thedefendants, the Barrow Hæma
the deed of assignment, which exhausted every
thing, there was no resulting trust of any surplus tite Steel Company Limited , being creditors in
in favour of the plaintiffs, and they had no title respect of a debt of 16 ,3341. 28. 3d."
to maintain the action . J. T. Smith and T. Storey took possession of
the business of the firm , and employed Joseph
TAIS was a preliminary point of law raised by Cooke
the defendants to determine whether the plain carried as their manager, the business being
on under the same nameas before. Pro
tiffs had any title to enable them to maintain the fits were made, and an interim dividend of 58.
action . The question arose upon the construc in the pound was paid to all the defendants
tion of a deed of assignment. except the Barrow Hæmatite Steel Company
Prior to May 1876 the plaintiff Henry Cooke Limited and the Lancaster Banking Company.
and the defendant Joseph Cooke and John
Woofindin Swinnerton carried on the business of 29thIn Dec. 1883 the trustees of the deed of the
iron manufacturers at Barrow -in -Furness, as thereinDec. 1876 sold the property comprised
copartners, under the style of “ Cookes and Limited , with Barrow
to the Hämatite Steel Company
the consent of the creditors, in
Swinnerton ."
of the said company paying the
John W . Swinnerton died on the 15th Mas consideration
1876 , and his will was proved by the plaintiff other creditors the balance due to them .
The balance due to the creditors, other than
Rachel Swinnerton . Shortly before this the firm
of Cookes and Swinnerton had got into temporary the Barrow Hæmatite Steel Company Limited ,
financial difficulties and were unable to meet was discharged out of the profits of the business,
their liabilities. the final payment being in Oct. 1884 .
By an indenture of the 29th Dec. 1876, made In 1889 Henry Cooke and Rachel Swinnerton
between the plaintiff Henry Cookeand the defen brought an action against the trustees of the deed
dant Joseph Cooke of the first part, the plain of assignment and others, alleging that the sale
tiff Rachel Swinnerton of the second part, the to the Barrow Hæmatite Steel Company Limited
defendants Josiah Timmis Smith (manager of was at a gross undervalue and in breach of trust.
the business of the defendants the Barrow and should be set aside, and also claiming an
Hæmatite Steel Company Limited ) and Thomas account of receipts and payments against the
Storey (a director of the Lancaster Banking trustees.
Company) of the third part, and the several At the instance of J . T . Smith and the Barrow
creditors mentioned in a schedule whose names Hæmatite Steel Company Limited , a motion was
and seals were set and subscribed to the said | made that the point of law stated above might
deed of the fourth part, after reciting (inter alia ) be first argued ; and on the 14th March 1889 an
that the parties of the fourth part were creditors order to that effectwas made. The question nom
of the firm , and that the firm were unable to pay cameon for argument before Kekewich , J.
their debts in full, and also reciting that Rachel Renshaw , Q.C. and Farwell for J. F . Smith add
Swinnerton as executrix of J. W . Swinnerton had the Barrow Hämatite Steel Company Limited.
(a) Reported by G . MACAN , Esq ., Barrister-at-Law . 1 - The plaintiffs have parted with the whole of
May 24 , 1890.) THE LAW TIMES. ( Vol. LXII., N . 8. - 457
Chan . Div.] Cooke v. Suita. [Chan. Div.
their interest in the business, in consideration of fact, and what is the root of the whole matter, is
the debts being released . They cannot now have that the debtors at that time (on the 29th Dec.
any interest in the property so as to maintain 1876 ) were unable to pay in full. What would
this action. There is no resulting trust in the happen afterwards was a matter of probability
deed in favour of the debtors. [KEKEWICH , J. with which the parties were not concerned .
It is a bargain : You take the estate, we take the Beyond that mere recital there is nothing to
release.] That is our contention. guideme; but the operative part comes simply
Millar, Q .C . and T. E. Mansfield for the tocannotthis - that the creditors say , “ You, the debtors,
now , as you admit, pay us in full ; you
plaintiffs. The contingency of there being a have certain
surplus so as to pay more than all the debts in and we will property which is worth something,
full was not contemplated when the deed was Whether we take that, and give you a release.
could cr could not get more by
executed . The recitals as to the assets being forcing you into the bankruptcy court, we do not
insufficient to pay the debts in full, and that the stop
residue was to be divided rateably , show that. give to inquire. You gire us all this property,
it to trustees forus, and then we will give you
Therefore, the rule of law as to there being a an absolute
resulting trust of the surplus for the benefit of what many releasea
and take our chance." That is
creditor has done before, and pro
the assignor must take etfect. There must be a
trust of the surplus for somebody ; it cannot be bably many a creditor will do again . The trust
for the trustees themselves ; nor could it have is, that the trustees are to “ pay and divide the
clear residue of the said profits and moneys," not
been intended that the creditors should receive a towards the satisfaction of the creditors named
profit upon their debts , possibly 408. or 50s. in in the schedule according to the amounts set
the pound. Therefore, we submit that there opposite their respective
must be an inplied trust of the ultimate surplus which is a very common names, form ,
and so forth ,
but to pay and
in favour of the assignors of the business. If it divide it " into and among all and singular the
was intended that there should be no resulting creditors of the said firm in rateable proportions
trust for the debtors, why did not the trustees according to the amount of their several and
change the name of the business ? respective debts." Before going back to that, I
KEKEWICH, J. - No doubt the case has been will deal with the concluding words, “ subject
argued by the defendants on the strongest possible nevertheless to the covenants and provisions here
ground, that there was a resulting trust. I inafter contained ." There are two provisions
cannot find a resulting trust. As a rule , at any which possibly might interfere with that distri.
rate, you find a resulting trust in two classes of bution : the one which enabies the trustees to
cases : where an express trust is declared , and | pay creditors for under 301. in full; and the
that express trust does not exhaust all the bene- other by which they are enabled to pay the re
ficiaries interested in the property, the subject of ceipts, when they come to 501., into thebank . That
the trust ; or where the court, applying some is to say , notwithstanding the absolute equality
rule or principle, implies a trust which is not of distribution, they may pay the small creditors
expressed , that is to say, implies a trust in the in full at once, and notwithstanding the same
assignee, or holder of the property, and declares provision for distribution , they must pay the
that he is not entitled for his own benefit ; and money into the bank named , so as to prevent
then, finding that there is no trust declared , the the creditors asserting a right to have every
court is obliged to look back, and create, by the sovereign divided between them . But it is to be
application of the doctrines of equity, a resulting paid in that way among them , and it is quite
trust. Neither of these events has happened possible that they may receive more than 20s. in
here. Here you have an express trust declared ; the pound, though I observe no statement in the
and , to my mind, that express trust exhausts statement of claim that they have been or are
everything. There is nothing left on which the likely to be paid more. The plaintiffs are now
doctrine of resulting trust can operate at all. I willing, apparently, to get back their property on
have been asked to look at what happened after the terms of payment; but there is no statement
the execution of the deed . I do not think that in the statement of claim that there is sufficient
I am at liberty to do that, because the form of now in the property to pay all that is due from
the order tells me only to decide whether, upon them , still less that the creditors have been paid ,
the true construction of the deed , the plaintifs because there is one creditor, the largest, who
bave a right to sue. But it may be convenient, has certainly not been paid . But I am told here
after the argument, to say that these circum - that they may be paid 408. in the pound. That
stances which occurred in the case, of the busi- | is not the result at which the court would wish
ness being carried on in the same manner as easily to arrive. There seems to me to be a
before, and in the same name after as before complete answer to that. This deed was exe
the execution of the deed , are by no means an cuted in December 1876 , and not until thirteen
uncommon occurrence ; and I do not think they years afterwards do the plaintiffs find that it
point to any such conclusion as I am asked to would be better for them to have the property
draw therefrom on behalf of the plaintiffs. Now , | back . A very little arithmetic would tell one
turning to the deed , the construction which I am that in thirteen years the interest on these sums
asked to put on it by the plaintiffs is, that there would be considerable ; and if creditors are
is no conclusion there on the face of the deed , no obliged to go without their debts for thirteen
assumption that they (i.e., the creditors) will not years, they would not be paid very much in excess
be paid in full. The answer to that is, that what I of what is due to them if they were paid 40s. in
happens bereafter is no part of the deed at all. the pound . That may probably have entered
The deed neither contemplates 208. in the pound into the calculations of the parties with the pos
at any time hereafter, nor less nor more . What I sibility of the reviving of trade and so forth .
it does contemplate, and what it does state in | They made that bargain , they clearly expressed
458 — Vol. LXII., N . S.] THE LAW TIMES. [May 24, 1890
Q .B . Div.] RYLEY (app.) v. Brown (resp.) — Reg . v. JUSTICES OF COUNTY OF LONDON. ( Q .B . Div.
it, and I find no reason to go back from it. I for a certificate of dismissal of the former charge;
must find on the preliminary question of law this being refused, the clerk to the justices was
that on the true construction of the deed men requested to produce his minute -book , and the
tioned in the statement of claim (which deed entries therein relating to the former hearing
must be read in the order) the plaintiffs have no having been read, it was objected on behalf of
title to maintain this action . The costs of all the appellant that the matter was res judicata
parties will be costs in the action . by reason of the dismissal of the former charge
on the 3rd Oct., and that it could not again be
Solicitors for the plaintiffs, Trass and Jarmain , reopened
for Frank Taylor, Barrow -in .Furness. . The justices, however, overruled the
Solicitors for the defendants, Redpath , Holds objection , and having heard the evidence con
worth , and Marshall, for C . F . Preston , Barrow victed the appellant, and imposed a penalty of
in -Furness ; J. Park , Barrow -in -Furness. ten shillings for not keeping the dog under
proper control on the 21st Aug. 1889.
From this conviction the present appeal was
brought, and the point of law raised was,whether
QUEEN'S BENCH DIVISION . the question was res judicata before the second
Thursday, March 13 . hearing, the justices expressly stating that they
(Before Lord COLERIDGE, C .J. and Lord had held otherwise on the grounds, (1) that the
former decision was not on the merits ; (2 ) that
ESHER , M . R .) the offences charged were different, inasmuch as a
Ryley (app.) v. Brown (resp.). (a ) penalty not exceeding 1l. only could be imposed on
Conviction - Dismissal of charge on first hearing a | the second information , whereas a penalty of ill.
bar to subsequent conviction — Res judicata - might have been imposed on the first.
“ Nemobis vexari debet ” — The Dogs Act 1871 Sect. 2 of the Dogs Act 1871 enacts :
(34 & 35 Vict. c. 56 ), 3. 2. Any court of summary jurisdiction may take cogni.
The appellant was charged with non -compliance, sance of a complaint that a dog is dangerous and not
kept under proper control, and if it appears to the court
on the 21st Aug. 1889 and ten days thereafter, having cognisance of such complaint that such dog is
with an order made by justices under sect. 2 of dangerous, thethe
court may make an order in a summary
the Dogs Act 1871, requiring him to keep a way directing dog to be kept by the owner under
dangerous dog under proper control. No evidence proper control or destroyed , and any person failing to
was given to support the charge except as to the comply with such order shall be liable to a penalty not
21st Aug., and the charge was dismissed on the exceeding twenty shillings for every day during which he
ground that the offence had not been made out. fails to comply with such order."
Subsequently the appellant was charged with not Cavanagh for the appellant. - The matter was
keeping the dog under proper control on the clearly res judicata ; the tests are whether the
21st Aug. simply ; this charge was proved and evidence on both occasions was the same, and
the appellant was convicted . whether the appellant had on the first charge been
Held (quashing the conviction ), that, as theappel put in peril. He certainly had been put in peril,
lant was put in peril and might have been and the statement of the justices that they had
convicted on the first hearing, the matter was not decided on the merits cannot alter the facts :
res judicata on the second hearing, and the Reg . v. Brakenridge, 43 J. P. 293 .
maxim “ Nemo bis vexari debet” applied. The respondent did not appear.
APPEAL by way of case stated from a conviction Lord COLERIDGE , C .J.- This case is within the
for allowing a dangerous dog to be at large on principles recently discussed by the Court for
the 21st Aug. 1889, by justices of the peace for Crown Cases Reserved in Reg. v . Miles. (a ) The
the county of Cumberland, sitting as a petty appellant was obviously put in peril on the first
sessional court for Allerdale -below -Derwent. hearing, and the maxim Nemo debet bis vexari
According to the facts it appeared that the applies.
appellant was originally prosecuted on an in Lord ESHER, M .R . - The justices were wrong
formation charging him with non -compliance, on on both occasions ; they had the power to confict
the 21st Aug. 1889,and ten days thereafter, with on the first occasion , but did not exercise it.
an order made by the justices, on the 1st Aug.
1889, under the Dogs Act 1871 (34 & 35 Vict. Appeal allowed with costs. Conviction quashed.
c. 56 ), adjudging that the appellant was theowner Solicitors for the appellant: Harrison and
of a dangerous dog , and requiring him to keep Powell, for McKeever and Son , Carlisle .
the sameunder proper control. On the hearing
of this information , on the 3rd Oct. 1889, the
respondent- a superintendent of police- admitted
on cross-examination that he had no evidence to Dec. 11 and 12, 1889.
support the charge except as to the 21st Aug. ; (Before Lord COLERIDGE, C .J.and Mathew , J.)
thereupon the appellant contended that the REG . v. THE JUSTICES OF THE COUNTY OF
alleged offence had not been made out. The
justices adopted this contention , and the case London. (6)
was accordingly dismissed . Licensing Acts - Provisional licences - Power to
Shortly afterwards a fresh summons was taken renew provisional licences - Refusal by justices
out by the respondent, charging the appellant to- renew - Right of appeal against such refusal
Licensing Act 1874 (37 8. 38 l'ict. c. 49), 8. 22
with not keeping the dog , on the 21st Aug. 1889,
under proper control simply ; on this summons - Licensing Act 1828 (9 Geo. 4, c. 61), 8. 27.
being called on the appellant's solicitor applied,
under Jarvis's Act (11 & 12 Vict. c . 43), s. 14 ,
Sect.22 of the Licensing Act 1874 enables the licensing
(a) Since reported, 24 Q . B . Div . 423.
(a) Reported by W . W . Orr, Esq., Barrister-at-Law . ( ) Reported by HENRY LEIGH, Esq., Barrister at-Law.
May 24 , 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 459
Q .B . Div.] REG . v . TAE JUSTICES OF THE COUNTY OF LONDON [ Q . B . Div.
justices, if satisfied with the plans submitted to | Atthe annual licensingmeeting for the Holborn
them , to give a provisional grant of a licence to Division, Messrs. Buxton and Hanbury having
any person interested in any premises about to be completed the public-house, applied to the justices
constructed or in course of construction for the for a final order, under sect. 22 of the Licensing
purpose of being used as a house for the sale of Act 1874 , which the justices refused , as the
intoxicating liquors to be consumed on the pre original plans had not been followed .
mises. Application was then made to the justices to
Held , that a provisional licence granted under that renew the provisional licence , so as to enable
section may be reneweli from time to time like any alterations to be made in accordance with the
other licence, if it requires renewal, even though i plans. This application to renew the provisional
the house has been completed and a final order licence was refused by the justices ; but, on
under the same section refused ; and secondly, appeal, the County of London Sessions reversed
that, if the justices refuse to renew such provi that decision and renewed the provisional licence.
sional licence, an appeal lies to the quarter A rule for a certiorari was then obtained at the
sessions against such refusal, as in the case of a instance of two inhabitants of the parish of
licence finally granted . Hampstead , who objected to the licence, to quash
RULE nisi for a certiorari to bring up, for the the order made by the sessions, on the grounds
purpose of quashing the same, an order of quarter that there was no power to renew a provisional
sessions made by the justices of the county of licence, and also that there was no appeal to the
London , on the 27th April 1889, renewing a pro quarter sessions from the refusal of the justices
visional licence granted in respect of the Three to renew a provisional license.
Horse Shoes public - house, situate in Heath Sect. 22 of the Licensing Act 1874 provides :
street, Hampstead , in the county of London , Any personor interested any premises
Under private
a improvement Act the Metro constructed in course ofinconstruction for about to be
the purpose
politan Board of Works purchased and pulled of being used as a house for the sale of intoxicating
down four fully licensed houses,one of which was liquors to be consumed on the premises may apply to
the Three Horse Shoes in High -street. Theboard the licensing justices and to the confirming authority for
the provisional grant and confirmation of a licence in
abandoned three of these licences, and applied to respect of such premiseswith
, andthetheplans
justices and confirming
the licensing justices for leave to remove the authority, if satisfied submitted to them
licence of the Three Horse Shoes to a new site in of such house, and that if such premises had been
Heath-street. actually constructed in accordance with such plans,
On the 16th March 1886 the justices of the they would , on application , have granted and confirmed
Holborn Licensing Division , on the application such a licence in respect thereof, may make such pro
visional grant and order of confirmatiou accordingly.shall
of the board , granted to the clerk of the board an A provisional grant and order of confirmation shall
order sanctioning the provisional removal of the notbe of any validity until it has been declared to be
said licence to the new site,and they also granted final by an order of the licensing justices made after
a provisional licence for a house to be erected on such notice has been given as may be required by the
such new site. These orders were confirmed on justices at a general annual licensing meeting or a
the 5th May. specialsessions held for licensing purposes. Such decla
ration shall be made if the justices are satisfied that the
At the annuallicensing meeting in March 1887 house has been completed in accordance with such plans
the board , not having completed the improve as aforesaid , and are also satisfied that no objection can
ments, applied for a renewal of the provisional bemade to the character of the holder of such provisional
grants, and the justices renewed the provisional licence.
licence for the house to be erected on the new be Asubject
provisional
to thegrantand confirmation
same conditions of athelicence
as to givingshall
of
site, but not the provisional licence for removal notices, and generally as to procedure to which such
of the old licence . grant and confirmation would be subject if they respec
In Nov . 1887 the board sold , on a building tively were not provisional, with this exception, that
lease for eight years, the new site, with the where a notice is required to be put on a door of a house
benefit of the provisional licence, to Messrs. such notice may be putup in a conspicuous position on
any part of the premises.
Buxton and Hanbury, and a lease was granted to This section shall, with the necessary variations,
them in which they, the lessees, covenanted to extend to the provisional removal to any premises of an
build a public-house in pursuance of certain plans existing licence under section fifty of the principal Act.
at a cost of 30001. Poland, Q .C . (Forrest Fulton and R . D . Muir
These plans had been prepared for a house on with him ) showed cause. — The case depends on
a level site, whereas the new site was on a con three statutes, 9 Geo . 4 , c. 61, and the Licensing
siderable slope. Acts 1872 and 1874. A provisional licence is
At the annual licensing meeting on the 6th granted under the 22nd section of the Licensing
March 1888 Messrs. Buxton and Hanbury applied Act 1874 , for a house about to be constructed , if
for a renewal to the board 's clerk of the pro. the justices are satisfied with the plans submitted
visional licence granted in 1886 and renewed in to them , and if the premises about to be con
1887. This application was refused ; but on structed are such as, if constructed , a licence
appeal to the Middlesex Quarter Sessions, the would have been granted for them . Where a
justices allowed the appeal, and renewed the pro provisional licence is so granted , the whole pro
visional licence to the clerk, which was trans cedure as to such licences is the same as in
ferred by the licensing justices, on the 5th June respect of old licences when the house is in
1888, to Messrs. Buxton and Hanbury . existence, and the provisions as to granting a
The public-house was subsequently erected by provisional licence are the same as in respect of
the purchasers on the new site, in accordance a house already built. By sect. 27 of 9 Geo . 4 ,
substantially with tie original plans; but the c. 61, there is a general right ofappeal given , and
plans having been prepared for a level site, the though the section has been repealed as to appeals
three side entrances were at some height above against the refusal to grant a new licence, it re
the level of the pavement. i mains in force as regards appeals against a refusal
Q. B. Div .] Reg . v. The JUSTICES OF THE COUNTY OF LONDON . Q . B . Div .
of a renewal of a licence. There is thus a power of ļ up to that time existed. It gires owners intend
renewal of a provisional licence, and there is also , ing to expend money upon property of this sort
under the 27th section of 9 Goo . 4, c. 61, a right a protection which they before had not, viz., that,
of appeal to the quarter sessions against the if beforehand they satistied the licensing autho
refusal of the justices to renew . The quarter rity that the building was a fit one, and the
sessions, therefore, had jurisdiction to make the magistrates grant the provisional order, then
order they made, their order was a perfectly they might safely go on with their building,
valid order in law , and ought not to be quashed ; because the magistrates are bound to, and shall
on both grounds,therefore, this rule ought to be in fact, make an order having the effect of a
discharged . [Objection was then taken as to the licence for a year. The points before us in this
right of two inhabitants of Hampstead to appear, case are two. First of all, is this provisional
but this objection was not insisted upon .] licence a licence which like any other licence
Bompas, Q .C . and Woollett in support of the may be renewed from year to year, as time runs
licence cannot on , and as the protection of the provisional
rule. - The grant of a prorisional
be renewed . The meaning of the Act is that, in the ordinary ?sense
licence requires " If it may, if it is a licence
of the word, and subject
when once a provisional licence, or rather the to the ordinary provisions, then does the provi
provisional grant of a licence is given , such sion of the Act of 1874 (the Act 9 Geo. 4. c. 61,
provisional grant must remain in force until the s. 27), which says there shall be an appeal on the
house is built, and it must last until the house is part of anyone who shall think himself
built, even though the house should not be com by any act of any justice, being stillaggrieved
pleted for fire or sis years. There can be no extent preserved in force, apply to tbeto actsome of
renewal after the refusal of a finalorder ; if there justices refusing to renew a provisional licence
were such renewal, it would be equivalent to an under circumstances of this case ? The
appeal. There can be no appeal, as the Act has second the question , as far as I understand it, is
clearly provided that the question of bringing whether the time
in a new house should rest with the local magis. application for thethat bas elapsed prevents the
of the provisional
trates, and that from their decision there should licence. Now , as to renewal
be no appeal, as there can be no appeal from I have no difficulty in thesaying first question, I confess
that the words of
their refusal to grant a new licence. On the two the statute appear to me to sanction , indeed to
grounds, therefore, that this provisional grant dictate, the conclusion at which I have arrived,
could not be renewed , and that there was no
right of appeal to the quarter sessions, this order and the obvious sense and justice intended by
the Act of Parliament can only be effected by
was bad, and ought to be quashed . giving it that construction . The words are that
Lord COLERIDGE, C.J. - I hare not been able the justices, if satisfied, & c., “ may make a pro
throughout the argument to bring mymind to visional grant or a licence," not “ provisionally
any serious doubt that in this case there is an grant a licence ; " that is to say , they may grant
appeal to quarter sessions, and therefore this rule a licence which is subject to two conditions,
for a certiorari to bring up the order of quarter namely, that thehouse shall be, when completed,
sessions, for the purpose of quashing it , ought to in accordance with the plans which they have
be discharged . The important section on which sanctioned , and that there is tendered to them
the case mainly turns is the 22nd section of the as tenant a person fit and proper to be the
Licensing Act 1874 (37 & 38 Vict. c. 49). The holder of the licence. These are the conditions,
substance of that long section is this, that where. and the only two conditions, upon which , when
as, before that time, it had been necessary that the provisional licence runs out, the justices can
there should be a building in esse before an appli: object to make it final. Now , if it had been an
cation could be made for a licence to that build . ordinary licence, and granted for a year, it is
ing, and a good deal of money might be expended clear, by the keeping in force of the 27th section
in consequence of the absolute discretion rested of the Act of Geo. 4 , that a licence having once
in justices to grant or refuse a licence in the been granted and thereby a vested interest
first instance, and a good deal of hardship in created, then , against a refusal to renew that
curred if there were not some provision made to licence, there would have been an appeal to
protect persons building a new public-house, or a quarter sessions. What is the object of the 22nd
new house intended to be used as a public-house, it section of the Act of 1874 ? To place the owners
is provided substantially that the justices may or builders of houses not yet constructed in the
grant a provisional licence if they are satisfied, same position as the owners or builders of houses
upon plans laid before them ,and upon the circum . already built, and to give them the same,
stances of the case, that, in the words of the Act neither more nor less, right of rested interest
of Parliament, if the house had been constructed about to be created, as that which exists in the
in accordance with the plans, they would , on case of vested interests already created , in the
application , have granted or confirmed the licence case of which latter interests it is admitted there is
in respect of certain premises - that is, in respect an appeal upon a refusal to continue t.be licence.
of premises about to be built according to the I think it is perfectly clear upon the words of
plans which satisfied themagistrates that if they the Act, and looking at the position in which
were built the licence would be granted . That houses about to be constructed are placed with
pledges the faith of the magistrates to this, that reference to houses that have been constructed,
if the house is erected according to the plans, and that we give full effect to the true meaning
the person proposed to them is a fit person to be of the Legislature if we say that " licence
in such a house, then - not that they may — but is used in the same sense as regards appeals
that they shall make a declaration of the comple- in both sets of sections, and that where there
tion of the house, and the granting of the licence is a provisional licence which has to be re
in accordance with the provisional licence that I newed there is an appeal against that re
May 24, 1890.) THE LAW TIMES . [ Vol. LXII., N . 8. - 461
Q.B. Div .] ONSLOW AND OTHERS (apps.) v. COMMISSIONERS OF INLAND REVENUE (resps.). ( Q.B . Div.
fusalto renew , as there is in a case of the licence the assumption that alterationsmight be made in
once finally granted . Then it is said that it is | the building which would enable them to confirm
too late, because there was no application for the it. If that be so, it was a wise and prudent
fresh licence, and that the refusal to renew was course, which I regret chey did not, under the
acquiesced in, and that the provisional licence is terms of the Act, follow . If the case should go
gone for want of renewal, or, as it is said , because back to them , as it will undoubtedly for confir
the term for which it was granted has elapsed , mation of the grant, I think they may bear in
and that, steps having been taken to turn the mind that when the statute provides that the
provisional licence into an actual one, it is too building shall be " in accordance " with the Act,
late to fall back upon the provisional character of it means in substantial accordance,and that the
that licence. But it has been decided by express new building , if it fulfils the conditions con
authority that it is not too late, after the term of templated by the originalbuilding, is one that they
the provisional licence has run out, to fall back , may sanction , though it may not be room for
upon its provisional character, and apply for the room , or brick for brick , that which the plans
renewal of it, after the period for which it has originally intended . I agree that this rule must
been granted has expired . It was also said that l be discharged.
ked. Rule discharged with costs.
the whole licence in this case, although it is
admitted to be in the common form of many | Solicitors for applicants, E . M . Hill.
counties in England, is good for nothing,because, Solicitors for the defendants, Clapham and
being on its face a licence only for a year, if | Fitch .
the house should not be built by the end of
the year, although ex necessitate further time
for its completion would be required , the provi. Tuesday, Jan. 21.
sional licence would have run out, and there (Before POLLOCK, B. and HAWKINS, J.) .
could be no renewal of it, because it is a grant ONSLOW AND OTHERS (apps.) v. The Commis
once for all, whether for one or six or twenty
years, and cannot be renewed . On what that SIONERS OF ISLAND REVENUE (resps.). (a)
argument is founded I cannot say. There is Revenue - Stampduty - Marriage settlement- Con .
nothing in the Act of Parliament ; there is no tingent interests — " Definite and certain amount
decision and no principle making void , as it seems of stock ” - Stock vested in trustees with power to
to me, the protection thatwas intended to be given vary investments - Amount of stamp duty on
by this section ; because, if there can be but one settlement- Stamp Act 1870 (33 8 34 Vict. c. 97),
provisional licence, and but one termination to it , sect. 3 and schedule.
namely, the final order, and if the magistrates, A marriage settlement whereby certain contingent
haring absolute or all but absolute discretion , and reversionary interests in various sumswere
of
refuse that order on the ground that the house money, stocks, funds, and other property
has not been completed exactly in accordance with vested in trustees with discretionary power to
the plans, or that an objection could be made to vary the investments is a settlementof " a definite
the character of the holder of such licence, and and certain principal sum ofmoney " and of “ a
there could be no renewal, then persons having definite and certain amount of stock," and as
expended large sums of money in building on the such is chargeable with an ad valorem stamp
faith , as it were, of the magistrates' assent would duty of 58. per cent. under sect. 3 and the
be absolutely at the mercy and discretion of the schedule " Settlement ” of the Stamp Act 1870,
justices, with no power of appeal to a court of in addition to the ordinary deed stamp of 108.
quarter sessions. It is enough to say in the So held by Pollock, B.,and Hawkins, J.
present case that this licence has been treated by
the justices themselves as a valid and subsisting CASE stated by the Commissioners of Inland
licence. It was refused to be renewed , and theRevenue, pursuant to the 19th section of the
appeal to sessions was made of which they must Stamp Act 1870 (33 & 34 Vict. c. 97 ), the same
have had notice, whether they appeared or not, being required on behalf of the parties interested
and the quarter sessions renewed this very licence. under the settlement made on the marriage of
Therefore, it seems to me that it is too late for Denzil Hughes Onslow and Marion Onslow , in
the magistrates to say that there cannot be any order that they may appeal against the assess
renewal, when they have acquiesced in the ment of the commissioners, as to the amount
renewal of it by the quarter sessions. But, of stamp duty with which the instrument here
whether that is so or not, I entertain no doubt after mentioned is chargeable.
that this licence may be granted for such term On the 21st April 1888 the said instrument
as the magistrates think fit, and, if it requires was presented, on behalf of the said parties, to
renewal, it may be renewed like any other licence, the Commissioners of Inland Revenue under the
subject to the appeal given by the 9 Geo . 4 , provisions of the 18th section of the Stamp Act
1870, for the opinion of the commissioners as to
c. 61, in the case of other licences, that appeal the
being carefully kept in force by the Act of Parlia . mentamount
ment.
of stamp duty with which the instru
was chargeable .
The instrument was a settlement of certain
Mathew , J. - I am of the same opinion, and I moneys,
have nothing to add to wbat my Lord has said stocks, funds, and securities, set forth in
with reference to the construction of the statute. three schedules thereto , or of the interest of the
I am glad to gather from the remarks of the said Marion Oliver therein , and also contained
junior counsel for the applicants here , who at one certain covenants not relating to such moneys,
stage of the proceedings represented the magis stocks, funds, and securities , or the said interest
trates, that when the case came before them , therein , and the question was, whether the said
although they were in the end induced to refuse settlement was a settlement of a certain definite
to confirm the grant, they did at first proceed on i (a) Reported by HENRY LEIGH , Esq ., Barrister-a:-Law .
462 — Vol. LXII., N . S.] THE LAW TIMES. [May 24, 1890.
Q .B. Div .] ONSLOW AND OTHERS (apps.) v. COMMISSIONERS OF INLAND REVENUE (resps.). (Q .B. Div .
amount of stock within the meaning of the ! virtue of which her daughter, the said Marion
schedule to the Stamp Act 1870 . Oliver, became absolutely entitled to the property
The following were the circumstances under specified in the second schedule , subject to the
which the question arose : life interest of her mother, and subject also to
Genrge Pickup died intestate in 1834, and he a power given to her mother, if she should have
left (so far as is now material) two daughters, any children born hereafter, to revoke the appoint
Ann Loxam Pickup and Georgina Pickup, both of ment in favour of her daughter Marion to the
whom are still alive ; they were born in 1828 and extent of 19,0001.
1834 respectively. On the 16th April she made another settle .
On the 8th Dec. 1849 the elder of these ment in almost the same terms, under the powers
daughters, on attaining her majority, made a contained in the indenture of 8th Dec. 1849,
cross -settlement of the property to which she whereby she appointed to her daughter the interest
became entitled as her distributive share of her arising to her under that indenture, and this ap
father 's estate, and also of her distributive share pointment also was revocable in the event of
of a brother's property who had died in infancy. her having other children . The property coming
By this settlement she settled this property on under this settlement is contained in the 3rd
herself for life, with remainder to such of her schedule.
children as she should by deed or will appoint, So that, at the time the marriage settlement
remainder upon the same trusts in favour of her was executed , the interest whichfollows the settlor,
sister Georgina and her childeren , with remainder | Marion Oliver, then took was as : First,
to her next of kin . . one moiety in reversion expectant upon the death
On the 3rd Sept. 1856 the younger daughter of her mother ofthe proceeds of the sale of certain
Georgina , on attaining her majority, made a real estate and the personal estate of her late
cross-settlement in identical terms upon herself uncle James Pickup. It was then standing in
for life, remainder to her children as she should the name of the sole surviving trustee, and those
by deed or will appoint, and remainder to her investments were subject to be varied by the
sister and her children . At the date of these trustees of the will of James Pickup at pleasure,
settlements neither had children , and the eldest. with the consent of the mother. The second inte
daughter is still alive and unmarried. rest which she took was a reversionary interest ex .
The younger daughter about the year 1860 pectant on thedeath of her mother,and subject to
married oneGeorge Oliver,and they are still both defeasance if her mother had any other children ,
alive. In Aug. 1861 a daughter, Marion Oliver, and the investments representing this interest
was born of this marriage. were liable to be varied . The third interest which
In 1868 James Pickup, the uncle of the said she took was an interest in reversion expectant
Ann Pickup and Georgina Oliver,who had been a upon the death of both mother and aunt, con
trustee under the two settlements, died, and he tingent upon the death of theaunt without issue,
by his will in 1868 left his property, which formed and subject to revocation if her mother had other
the bulk of the property in the present case, in issue,and the investments were liable to be varied .
the same manner as under the previous cross The moneys, stocks, funds, and securities
settlements ; he devised one moiety to his niece , specified
Ann Pickup, for life, with remainder to such of ment werein set the three schedules to the said instru
her children as she should by will appoint, As to those set forth as follows :
forth in the 1st schedule of
with remainder, if there be no children , upon the the value of .......... .... £191 ,301
trusts declared forthe othermoiety . Then as to the As to those set forth in the 2nd scheduleof
second moiety he devised it to his niece Georgina
Oliver for life, with the same remainder, and a Asthe
to value set forth in the 3rd schedule of 11,507
those of..
cross remainder over, with certain provisoes in the value of... 6 ,562
case there should be no children of either niece. The total being ......... £209,370
At the time of the execution of the marriage
settlement in question , Ann Pickup (the aunt of The commissioners were of opinion that the
Marion Oliver) was unmarried , and was about said instrument (that is, the said marriage settle
sixty years of age; and Mrs. Georgina Oliver ment ment) was chargeable, under the head “ Settle
(the mother of Marion Oliver) was about fifty . ” in the suhedule to the Stamp Act 1870 ,
four years of age. with the duty of 5231. 108., being the ad valorem
In the month of April 1888, Mrs. Georgina settlement duty of 58. per cent. on the sum of
Oliver, in view of the intended marriage between 209,3701., and also , by reference to sect. 8 of the
her daughter Marion Oliver and Mr. Onslow , said
executed three appointments under her powers.
Act and the said schedule, with the duty of
108. as a “ deed of any kind whatsoever not
On the 13th of April, under the will of her uncle described in this schedule,” in respect of the
James Pickup, she executed an irrevocable set other matter contained in the said instrument,
tlement of the whole amount secured by that and assessed the duty thereon accordingly, and
will, that is, in the terms of the will itself, the the instrument was stamped in conformity with
entirety of the net proceedsof the sale, calling in theT'he
and conversion of the real and personal estate,
said assessment.
parties being dissatisfied with the assess
devised to the trustees of the said will on the ment required the commissioners to state a case
trusts thereby declared , and the investments for for the opinion of the court.
the timebeing representing the same, and the The question to be decided by the court is
property now subject to the trusts of the said Whether the said instrument is chargeable with
will is specified in the first schedule hereto. the duties of 5231. 108., and 108. in accordance
On the 14th of April she executed a power of with the assessment of the commissioners. If
apointment under the powers of the voluntary not, with what duty the said instrument is
settlement of 1856 in favour of her daughter, by I chargeable.
May 24, 1890 .] THE LAW TIMES. [Vol. LXII., N . 8.- 463
CELAPOLLOCK , B . - There are only two,sepoints in this
Q.B.Div .] ONSLOW AND OTHERS (apps.) v. COMMISSIONERS OF INLAND REVENUE (resps.). (Q .B . Div.
In the schedule to the Stamp Act 1870, under
the title “ Settlen.ent,” settlement is defined as case, and it requires very little more tban to
state them to answer them . That which Mr.
Any instrument, whether voluntary or upon any good
or valuable consideration , other than a bona fide pecu Horne Payne wished naturally to be the first,
niary consideration, whereby any definite and certain because themost substantial, was that the interest
principal sum of money . . . or any definite and under the settlement was contingent upon the
certain amount of stock , or any security, is settled or death of the aunt - that is one of the things. It
agreed to be settled in any manner whatsoever : For amounts to this, that in a case in which the
every 1001., and also for any fractional part of 1001., of
the amount or value of the property settled oragreed to settlor is not in present possession of that which
be settled, 58. is settled, it is a settlement that does not require
Horne Payne, Q .C . (Danckuerts with him ) for to be stamped. Now , apart from the words of
the appellants. — The first question in this case is the Stamp Act, it is a curious thing to say that a
whether, under the provisions of the Stamp Act, settlement which is perfectly good in law should
a settlement ofthis kind - a settlement, first of all, be absolutely good and valid in law , and yet for
of a contingent interest in an indefinite amount of the purposes of revenue it should not be treated
stock - is subject to this Act or not. The interest as a settlement which had the effect of disposing
iswholly a contingent interest, and therefore it is of the property . That is the real test. Now ,
not liable to taxation , as it does not comewithin when we come to the language of the Act the
the words “ definite and certain sum " of stocks. matter is perfectly clear, because in the schedule
[POLLOCK, B . — You say the trustees would not it says, “ any instrument whereby any certain
have to pay the tax upon anything.] No. We and definite principal sum of money (whether
have to pay the succession duty ; the children charged or chargeable on lands or other heredita
will pay succession duty when they succeed to the ments or heritable subjects or not, or to be laid
property, but we are not liable to this duty, as out in the purchase of lands or other heredita
we do not come within the terms of the Act ; if ments or heritable subjects or not), or any definite
this is a contingent interest it does not come and certain amount of stock or any security is
within the scope of the Act. This argument settled or agreed to be settled," and for this pur
applies to the moiety of the sums both in the pose what is the interest of the settlor ? It is
first and third schedules, and in both those cases rather curious that in sect. 125 of the Act a
the settlor's interest is contingent on the death of covenant for the payment of an annuity by the
the aunt without issue - a clear and undoubted person entitled to the income of the reversioner
contingency ; and in the sums set out in the is dealt with , and it is provided that, “ Where
second schedule as well there is the contingency any money , stock , or security is settled, or agreed
that the gift may be revoked if the mother of to be settled , by a person who has only a rever
the settlor should have a second child . So that sionary interest therein , and the instrument
the settlor at the time of making the settlement whereby such settlement is made or agreed to be
had no stock existing which could have been made contains a covenant by the person entitled
definite and certain ; she had no legal right to in possession to the interest or dividends of such
the stock , as it was in the power of the trustees, money, stock , or security for the payment, during
who had an absolute power of disposing of it as the continuance of such possession , of any
they pleased. There is no stamp duty payable annuity," and so forth , then that is not to be
charged with any duty in respect of such cove
upon a particular stock which is not vested in nants , showing that those who drew the Act had
the settlor, and in which she has no property .
What the Act contemplated was that the settlor a good knowledge of everyday practice - that is
should be able to settle a certain amount of stock to say, that when people are making a settlement
standing in his own name,and over which he had perty they settle contingent property as well as pro
an immediate power of control. [HAWKINS, J. case ofin atheir own possession . This is a common
father, son, and his child, the father
Do you say that no stamp duty is payable upon may be a man of eighty years of age, and the son
this ? ] A 108. stamp duty is payable, and no
more. If at the time of the settlement that sixty years of age, and they wish to make provi
which is settled is a definite amount of stock , sion for a child who is going to be married. In
certain ranks of life, with a certain class of people,
then it requires to be stamped as a settlement, the ordinary rule is that old stock is converted
otherwise not . In Sanville v . The Commissioners in order
of Inland Revenue (23 L . T. Rep . 0 . S . 223 ; 10 married to provide for a child about to be
Ex. 159), in which the settlor settled a life policy specific ,sum and to say that a man when he settles a
is not making a settlement within
of insurance for 40001., the Court of Exchequer the words of this
held that it was not a fixed or definite or certain understand. Then section is a contention I cannot
principal sum of money settled . Here there shadowy one still, theother point, which is a more
was absolute power on the part of the trustees stock . Although isthewhether this was not specific
parties have given in the
to reinvest in any manner whatsoever, and to schedule the actual specific stock now held by the
vary the investments at pleasure. I submit, trustees, it is not to be treated as specific stock ,
therefore, that at the time this investment was because
made the moneys could not be deemed to be a trustees.at As any time it may be changed by the
before, it sometimes happens
settlement of an actual and certain amount of that a specificI said stock is purposely made uncon
stock. The settlement of a contingent interest vertible. In a case of that kind the argument
is a very different thing from settling a definite would not apply . It would be very curious that
stock . in that case there should be stamp duty payable,
The Attorney -General (Sir R . E.Webster , Q .C .), but no stamp duty payable where the trustees
the Solicitor-General (Sir E . Clarke, Q .C .), and have the ordinary option of converting the stock
Dicey, for the respondents, were not called within a certain range of securities. I cannot
upon . I see that the words of the Act of Parliament,
464 - Vol. LXII., N. S.] THE LAW TIMES. (May 24, 1890
Q .B. Div.] GRESHAM LIFE ASSURANCE SOCIETY v. STYLES, Surveyor of Taxes (resp.). ( Q.B. Div.
“ specific stock," affect that favourably to the ment of a lump sum or premium paid down, and
appellants in any sense, and it is sufficient to the consideration for a deferred or contingent
say in this case that there is now an exist annuity is the payment of periodical premiums
ing stock, and that stock set out in the or of a lump sum paid down.
schedule, if it becomes changed afterwards, is 1 4 . The annuity obligations of the society are in
within the power created by the original settle many instances dischargeable abroad. The
mert, and it does not require any very solemn returns of the society, as regulated by the Life
consideration of the law to say that if London Assurance Companies Act 1870, are based (inter
and North -Western Railway Stock is sold out, alia) upon actuarial calculations of prospective
and London and South -Western Stock bought, liabilities under existing contracts.
though it is different stock , it is for all legal pur. 5. The valuation balance - sheet
poses the same stock as that which is dealt with of the society shows a surplus
in the settlement ; it seems to me there is no profit for three years of ..... £97,553 2 9
ground for the contention . From this has to be deducted
HAWKINS, J. - I am of the same opinion, and the surplus brought forward
bave nothing further to add. Anneal dismissed. from the previous triennium £4,496 6 1
£93,056 16 8
Sclicitors for the appellants, Rowcliffes, Rawle, The society have, during the triennium
and Co., for Clay and Son . Manchester. , paid
income tax on 120,7221., chiefly by tax being
Solicitor for the respondents , The Solicitor of deducted
Inland Revenue. at its source on payment to them of
interest and dividends.
6 . The society, in arriving at the amount of
Jan. 21 and 22. profitsand gainsforthree years,amountingasabove
(Before POLLOCK , B. and HAWKINS, J.) . shown toother
93,0561. 168. 8d., had taken into account
THE GRESHAM LIFE ASSURANCE SOCIETY (apps.) v . (among itemsofexpenditure),the following
annuity contracts,sumas shown
STYLES, Surveyor of Taxes (resp.). (a ) items, viz. : The paid inin discharge of its
the consolidated
Revenue — Income tax — Life assurance society revenue account of the society, being account o
Sale of annuities for lump sum - Right of society of the 5th schedule in the printed returns,
to deduct from gross income annuities paid 253,2521. 58. 10d . ; the sum which had been paid
Liability of society to be taxed in respect of such for income tax, as shown by the books of the
annuities-- Sums paid out of profits or gains society, 32471. The said two sums of
Sched. D., 16 & 17 Vict. c. 34 - 5 & 6 Vict. c. 35, 253,2521. 58. 10d. and 32471. added to the sum of
8. 102. 93,0561. 168. 8d. amount together to the sum of
A life assurance society, in addition to its ordinary 349,5561. 28. 6d . From this amount the surveyor
business of life assurance, carried on the business of taxes admitted by way of deduction the sum
of selling or granting annuities for a lump sum on which income tax had already been paid as
paid down by the purchaser. aforesaid , viz., 120,7221., and claimed that the
Held , that the society, in muking out their income appellants were chargeable for three years with
tase returns, and in estiinating their " net profits " . the difference of 228 ,8341. 28. 6d. One year's
for the purposes of the Income Tax Acts, are not proportion , or one-tbird part of this sum ,
entitled to deduct from their gross income such amounts to the sum of 76 ,2781. 08. 10d ., for which
annuities, that is to say, the sums paid in dis amount the society was assessed for the year end .
charge of their annuity contracts ; but such ing the 5th April 1886 .
annuities are taxable for income tax in the hands exception 8. The surveyor of taxes contended that the
of the society, who are the proper persons to be of the annuities and the income tax
taxed in respect thereof, inasmuch as they are from paid by the society was by way of deduction
annual sums “ payable out of profits or gains " the gross income of the society in arriving
within the meaning of sect. 102 of the Income Tax at the amount on which income tax should be
Act 1842 (5 & 6 Vict. c. 35). charged, and that the same was not allowable
Case stated under 43 & 44 Vict. c. 19, sect. 59, by under 5 & 6 Vict. c. 35, ss. 100, 159, and 16 & 17
Vict. c. 34, 8. 40 ; and further, that the society
tbe Commissioners for General Purposes of the was entitled to deduct, and should deduct, the
Income Tax Acts for the City of London.
1. At meetings of the Commissioners for the under 5 &of6theVict.
amount duty on payment of each annuity
c. 35 , s. 102 ,and 16 & 17 Vict.
General Purposes of the Income Tax Acts for the c. 34 , s. 40.
City of London , the Gresham Life Assurance 9 . The society contended : First, that they had
Society appealed against an assessment of 76 ,2781.,
under sched . D . to the Act 16 & 17 Vict. c. 34 , treated , and were entitled to treat, the payment
of annuities in the same manner as the payment
for the year ending the 5th April 1886, made of sums payable on the death of the assured , and
upon them under the following circumstances :
2. The society carries on the business of life contended that the same cannot be treated as a
deduction from or be brought into account so as
assurance and the grantirg of annuities.
3. The consideration for the granting of an toprofits increase profits, or be treated as paid out of
insurance of a lump sum payable on death, is scheduleor D gains, either within the meaning of
either the payment periodically ofsums ofmoney 102 of 5 & .,6 4thVict. rule, 1st orcase,
c. 35, sect. 100 and
as otherwise sect.
brought
or premiums, or in some cases the payment of a into charge by virtue of such Act, or as sumson
lump sum as a single premium , paid at the time which income tax is payable by the society under
of effecting the insurance . The consideration for any ofthe that
provisions of 16 of& the
17 Vict. c. 34profits
; and
the granting of an immediate annuity is the pay | secondly, the amount society's
(a) Boported by HENRY LEIG ), Esq., Barrister-at-Law . i and gains for tbe triennium being 93,0561. 16s. 8d.,
May 24, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 455
Q.B. Div .] GRESHAM LIFE ASSURANCE SOCIETY V. STYLES, Surveyor of Taxes (resp.). (Q .B . Div .
and they having paid a tax on 120,7221., as afore- ! The Attorney-General (Sir R . E . Webster, Q .C .),
said , they were not liable for any further the Solicitor-General (Sir E . Clarke, Q .C .), and
assessment. Dicey , contrà , for the respondent the Surveyor of
10 . The commissioners were of opinion that the Taxes, on behalf of the Crown, were not called
assessment should be confirmed , and confirmed on to argue.
the same accordingly . POLLOCK, B . — This case has been so fairly
The question for the opinion of the court is : argued on behalf of the appellants, that I do not
First,whether the society is liable to be assessed myself feel thatweought to call upon the Solicitor
in respect of the amount paid by them for annui. General on the part of the Crown. It seems to
ties or any part thereof ; secondly , whether the mewe cannot decide in favour of the appellants
society is in any event liable to be assessed for without disturbing not only the mere enactment
any sum in excess of the amount on which tax in language, but the spirit , of the Income Tax
has already been paid by way of deduction at its Acts, which has been acted upon not merely by
source. lawyers, but by commercialmen for a long series
Sect. 102 of the Income Tax Act 1842 (5 & 6 of years. The contention in point of fact is very
Vict. c. 35 ) enacts : plain . It really is not a question raised in this
That opon all annuities, yearly interest of money, or case whether the sum paid in respect of these
other annual payments , whether such payments shall be annuities is a certain profit or gain belonging to
payablewithin or out of the United Kingdom , either as the assurance company, who are the appellants ;
& charge on any property of the person paying the same but the question is, whether they who have to
byvirtue of any deed or will or otherwise, or as a reser
vation thereont, or asa personal debt or obligation by pay, pursuant to their contracts and mode of
virtue of any contract, & c ., the usual income tax shall business, certain annuities are the proper persons
be c ! d the section goes on to say , to be taxed in respect of these annuities, or
Provided that in every case where the same shall be whether the persons who are the recipients of
payable out of profits or gains brought into charge by those annuities ought to be and must be taxed .
virtue of this Act no assessment shall be made upon the In order to get at the figures broadly the process
person entitled to such anngity , interest, or other
annual payment, but the whole of such profits or gains pursued is this : The appellants are treated as
shall be charged with duty on the person liable to such any other trading community, and the process of
annual payment . . . and the person so liable to ascertaining what are the taxable items in the
make such annual payment . . shallbe authorised
to deduct out of such annual payment ” the amount so receipts of a trading community is first by
showing what all their receipts are , and then on
paid as income tax. the other side of the account giving them credit,
Sir Horace Davey, Q .C . ( Lumiey Smith , Q .C ., i not for deductions (which is not a proper word ),
and W . Fooks with him ), for the appellants. The but for sums which must be taken off,being sums
case is a simple one, and it turns on what is really pail in the course of the trade in respect of which
meant by the income of a society like this . The it may be said that the net profits of the trade
point is clearly put in the contention of the sur : never would be earned until those sumswere paid .
Teror of taxes before the commissioners. The Take the common instance of a tradesman who
Crown now says that the appellants are not to buys and sells ; it is perfectly logical to charge
deduct these annuities from the gross income of him , and properly in the first instance, with all
the society. The appellants' contention , on the the moneys he receives. On the other hand , it is
other hand, is that the sums paid in respect of equally proper and logical that he should say,
these annnities are payments of debts incurred by “ Before I could have received that money I had
the society payable out of their gross income, and to espend a certain amount in stock , rent, wages,
that these annuities are not paid out of “ profits and other items of tbat kind.” But that has no
or gains ” brought into charge, and are therefore application in the present case. In the present
not liable to be taxed in the hands of the society. case the important fact is this : the company,
What would take place on the selling of an in the course of their trade and business, have
annuity would be as follows : The lump sum paid two different classes of business, the one life
down for an annuity would probably be invested | assurance, the other the sale of annuities. In the
by the society , and the interest on that investe case of life assurance no question can arise,
ment would be charged with income tax before because, on a life lapsing on the death of any
the society received it , so that the society would perscn who is a customer of the insurance com
already have paid the tax on the interest arising pany, a lump sum is paid to his personal repre
from the investment of this lump sum , and sentatives, and therefore there is no question of
as they have paid the interest on the produce of annuity or annual paymentat all. In the case of
this lamp sum , they ought not to be called on to an annuity the reverse operation takes place,
pay the tax on the annuities which accrue to because the annuitant pays a lump sum to the
them by reason of the lump sum being paid to society, and the society in return for that pay an
them . The proper mode of calculating theprofits annual sum , commonly called an annuity, to him
for the year was by an actuarial valuation of during his life, and it is in respect of its being an
existing assets and liabilities. These annuities annual sum that it comes within the language of
cannot be brought into account so as to increase the statute. Now , when we turn to the statute
profits, nor can they be treated as paid out of itself, it is obvious that the intention of the
“ profits or gains," nor are they paid out of profits Legislature is to give to the Revenue the benefit
or gains brought into charge by virtue of the of taxing, upon the first possible occasion of
Act,within the meaning of sect. 102 of the Income taxation , any moneys which are taxable. In the
Tax Act 1842, and therefore the society is entitled case of the Bank of England, who pay interest
to deduct them from its gross income. He cited and dividends due not merely upon English :
Last y. The London Assurance Corporation , in the funds, but also upon Colonial funds, thematter is
Court of Appeal (52 L . T . Rep . N . S . 604 ; 14 ! clearly provided for, and the provisions are
Q . B . Dir. 239). I absolutely compulsory . Those provisions are
466 - Vol. LXII., N . S.] THE LAW TIMES. [May 24 , 1890.
Q .B . Div.] THE LONDON LIBRARY (apps ).v. CARTER, Surveyor of Taxes (resp.). ( Q .B. Div.
contained in sect. 89 and some of the following 1 in this case what the Legislature have done with
sections of the Act , and in that case it is respect to the Bank of England and other an
expressly declared that, in respect of all | nuities in other cases, and to find out at its source
dividends, the Company of the Bank of a taxable item , and to tax it while in the hands of
England must, in the first instance , set the assurance company, that those who are thean
apart and retain for the payment of income nuitants may have the benefit, if they should be
tax such sums as are proper in respect of | called upon to account for the same sum . I do
all dividends paid by them , and it was also, of not know that I should be assisting matters by
course, necessary to proside that such payment stating any other reasons than these. It appears
by them shculd be taken to be an acquittance on to me better to confine myself to the plain lan
behalf of the recipient of the annuity. There guage of the Act, and the general intention
come other cases on the other side where the expressed not only in this section but elsewhere.
payment is not in the nature of a payment made It seems, therefore, on these grounds that the
by the Bank of England or a public company,but appellants must fail, and that this appeal must
where it is merely a payment made in respect of be dismissed with costs.
some private arrangement, and that was sect. 40 , HAWKINS, J.- My learned brother has so fully
which was last cited to us by Sir Horace Davey, expressed my view in this matter that I do not
in which the matter is left optional. If it be a think it necessary to pronounce a separate judg
converience , in the course of the business which
is done by a particular bank or trading company, ment.Judgment for the Crown. Appeal dismissed
to deduct the income tax from any annuity or with costs.
interest on money which they have contracted to Solicitor for the appellant, R . L. Devonshire.
pay, which is spoken of in the section as a “ per Solicitor for the respondent, The Solicitor of
sonal debt or obligation by virtue of any con Inland Revenue.
tract," they may do so , but it is not said that
they must do so . On the other hand, if they
do so, then it is provided that the person to Thursday, Jan. 23.
whom the annuity is paid shall have the benefit (Before POLLOCK , B . and HAWKINS, J.)
of that payment,as in the other case. The present
case is different no doubt from either of those THE LONDON LIBRARY (apps.) v. CARTER,
cases ; it is neither one nor the other, and the Surveyor of Taxes (resp .).(a )
question is whether it comes within sect. 102, Inhabited house duty - Exemption from - Library
which provides : “ That upon all annuities, yearly - House used for " trade orbusiness " - Attendant
interests of money, or other annual payments, occupying sitting-room and sleeping on premises
whether such payments shall be payable within or - Customs and Inland Revenue Act 1878 (41
out of the United Kingdom , either as a charge on Vict. c. 15 ), s. 13 , sub -sect. 24 " Servant or other
any property of the person paying the same by person ” – 44 Vict. c. 12, sect. 24.
virtue of any deed or will, or otherwise, or as a
reservation thereout, or as a personal debt or Theas London a library
Library occupy a house which is used
and reading -rooms for the use of
obligation by virtue of any contract," then there members. The income of the library is derived
shall be charged the usual income tax. Then solely from the subscriptions of members,and the
comes this provision , “ Provided that in every library is not conducted with a view to making
case where the same shall be payable out of any profit for themembers. The use of a sitting
profits or gains brought into charge by virtue room and bedroom is given , in addition to his
of this Act,no assessment shall bemade upon the wages, to an attendant whowith his wife dwells
person entitled to such annuity , interest, or other in these rooms, both ly day and also by night, for
annual payment, but the whole of such profits or the protection of the premises, and no other person
gains shall be chargeable with duty on the person dwells on the premises.
liable to such annual payment.” It is said that Held , that the library is liable to inhabited house
this is not payable out of profits or gains. I duty, as it doesnot come within any of the exemp
think the true answer to that is, that it is tions specified in sub-sect. 2 of sect. 13 of the
payable out of profits or gains, upon the prin Customsand Inland Revenue Act 1878 .
ciple that, unless the lump sums received from Case stated by Commissioners of Income Tax
time to time by the appellants' office are charge
able with these annuities, those lump sums paid under 43 & 44 Vict. c. 19, s. 59.
would be profits or gains. That is absolutely General At a meeting of the Commissioners for the
clear to my mind ; it is equally clear that, executingPurposes of the Income Tax, and for
although they are not profits or gains, if they House the Acts relating to the Inbabited
are received from time to time by the insurance City ofDuties, for the Parish of St. James, in the
company as consideration for the granting of Mr. Robert Westminster, held on the 18th May 1888,
annuities, they are as much gains as any sum Harrison , on behalf of the committee
that is brought into the account of a merchant, of the London Library, appealed against an
being a payment to him in respect either of goods assessment to inhabited house duty, made upon
premises, situate and being No. 14, St.
sold , services rendered , or in respect of some their
special contract. It is for him to discharge him James's-square, in the said parish, under 14 & 15
self of that. It is not that they are taxed as Vict. c. 36 , for the year 1887-8 , in the sum of
profits or gains in this particular case, but that 6001. at ninepence in the pound.
they would be taxable unless there was a set-rff which The London Library occupy the whole house,
of ihe payment of these annuities. Therefore, is openistoused as a library and reading-rooms,and
members between the hours of 10 a.m .
when we come so see what is the intention and
the language of the Legislature in this section , and 6 .30 p. m . The use of a sitting-room and
it seems to me clear that the intention is to do (a) Reported by HEXRY LEIGU,Esa., Barrister-at-Lar.
May 24, 1890.) THE LAW TIMES. [Vol. LXII., N . S .- 467
Q3.Dina Tu Lovos Los
Q .B . Div.] THE LONDON LIBRARY (apps.) v. CARTER, Surveyor of Taxes (resp.). [ Q .B . Div.
bedroom therein is given in addition to his wages , Douglas Walker fortheappellants. — The London
to an attendant in the service of the library ,and Library occupy these premises for the purpose of
this man and his wifedwell in those roomsboth by a “ business ” within the meaning of the sub
day and at night for the protection of the pre section , and the servant who sleeps there comes
mises. No other person dwells on the premises. within the latter part of the sub -section , as a
The London Library is a society existing for the “ servant or other person dwelling in such house
purpose of providing a public library from which for the protection thereof." The premises are
books may be had by the subscribers attheir own therefore exempt on that ground :
homes. The government of the library is vested The Chartered Mercantile Bank of India , London ,
in a committee, consisting of the president, four and China v. Wilson , 38 L. T. Rep . N . S. 254 ;
vice-presidents,three trustees, who hold the funds 3 Ex. Div. 108 ;
and property of the society ,and twenty -four other 57 Geo. 3, c. 25, s. 1.
members. Members of the library, when elected This is not an inhabited dwelling -house within
by the committee, pay an annual or life sub the meaning of the statute : Riley v . Read (40
scription, and the income of the London Library L . T. Rep. N . S. 398 ; 4 Ex. Div. 100),where it was
is wholly derived from these subscriptions. held that a building which was used in part as a
The income so derived is expended in the pur club, and in part as an auctioneer's office, and
chase and binding of books and pamphlets, and where no person slept on the premises, was not
generally in the suitable maintenance of the an inhabited dwelling-house so as to render it
library . The library is not conducted with a liable to duty . There is no dwelling here by the
view to making a profit, one of its regulations London Library : (48 Geo. 3, c. 55 , sched B .,
providing that " no dividend, gift, division, or case 5.) This is not a dwelling-house dwelt in by
bonus in money shall be made unto or between | the London Library ; if it is a dwelling-house at
any of the members." all it is only so for the caretaker. It is therefore
Mr. Harrison maintained at the appeal that the | not an inhabited dwelling -house within themean .
premises were occupied for the purpose of “ busi | ing of the Act as regards the London Library .
ness," and that the attendant who dwelt there
came within the category of a “ servant," or theTheSolicitor-GeneralAttorney-General (Sir R . Webster, Q .C.),
(Sir E . Clarke, Q .C .), and
“ other person,” as contemplated by sub-sect. 2 of
sect. 13 of 41 Vict. c. 15 ; that the words “ trade " Dicey, for the respondent, contrà ,were not called
or “ business " in the clause referred to should upon .
be taken by themselves ; that they were not POLLOCK , B . - It is admitted that this assess
qualified by the succeeding words “ by which the ment made in respect of the premises known as
occupier seeks a livelihood or profit," and that the London Library would be a good assessment
the latter words referred to - profession ” or unless it be brought within a certain exemption
“ calling ” only , being severed from the words in the Taxing Act. The first and most material
" trade ” or “ business ” both by the grammar and exemption to which our attention is called is that
punctuation . which is contained in the Act of 1878 (41 Vict.
He contended that for the purpose of construc c. 15, s. 13, sub-sect. 2. The words are these :
tion the section should be read in the following “ Every house or tenement which is occupied
ways : (1) Every house or tenement which is solely for the purposes of any trade or business
occupied solely for the purposes of any trade or or any profession or calling by which the occupier
business shall be exempted, & c. (2 ) Every house seeks a livelihood or profit," shall be exempted
or tenement which is occupied solely for the pur from the duties. It seems to me, if you take the
poses of any profession or calling by which the earlier Act of Parliament to which our attention
occupier seeks a livelihood or profit shall be was called , namely, 57 Geo . 3, c. 25, s. 1, which
exempted , & c. uses the words “ houses used solely for the pur
The surveyor of taxes submitted that this con poses of trade,” then 5 Geo. 4 , c. 44, which
struction of the clause was not admissible, and extended the exemption to houses used as offices
further, that the committee of the Lordon Library or counting-houses for the purposes of exercising
did not carry on a “ trade ” or “ business ” within or carrying on any profession, vocation , business,
the meaning of the sub-section . or calling , whereby the person occupying it seeks
The commissioners were of opinion that the a livelihood or profit, I think it is quite clear that
sub-section should be read together as a whole ; the broad intention of the Legislature is to make
that thecommittee of the London Library did not a distinction between a house which is inhabited
occupy the house solely for the purposes of any | for the purposes of dwelling and a house which
" trade ” or “ business," or of any profession or is occupied for the purposes of carrying on a
calling, by which the occupier sought a livelihood business from the profits of which alone any
or profit ; that they were correctly charged to person derives a benefit . In the present case it
inhabited honse duty, and they therefore con is clear to my mind that the London Library is
firmed the assessment. not an institution or a house in which an insti.
Sect. 13 of the Customs and Inland Revenue tution has its habitation ; that it is not a house
Act 1878 provides : which is inhabited for the purposes of busi
With respect to the duties on inhabited houses . . . ness or profession or calling whence any profits
arise in any sense of those words. It is
the following provisions shall have effect :
Sub-sect. (2) : Every house or tenement which is occu an institution whereby a number of persons, all
pied solely for the purposes of any trade or business, or its members, derive an individual and mutual
of any profession or calling by which the occupier seeks benefit, but in no way do they, or can they, make
a livelihood or profit, shall be exempted from the duties a profit by it any more than persons can make a
by the said commissioners upon proof of the facts to
their satisfaction, and this exemption shall take effect profit by a club -house where the house is a house
althongh & servant or other person may dwell in such in which they meet for the purposes of a like
house or tenement for the protection thereof. kind. Some of our London clubs, it is well
Q .B. Div .] THE LONDON LIBRARY (apps.) v. CARTER, Surveyor of Taxes (resp.). (Q .B . Div.
known,have libraries which are next only in size have already, in the course of the argument,
to the London Library , and many persons who espressed my opinion that it does not, and I can
meet there meet for the purposes of reading these only repeat what I have already said . Then does
books and taking home such books as they may it carry on a profession or calling ? Beingmerely
not have in their own houses from the library of an association for the purpose of procuring books
the club . The same thing goes on in the London for reading, whether for amusement or instruc
Library, and in no sense bas any business for tion, it cannot be said to be either a profession or
profit entered into the scheme. Therefore, so far calling. But, even supposing it could be said
as that portion of the argument goes, I think the that the London Library carried on a trade or
London Library is not within the exemption. A business or profession or calling , I should still be
second point which is worthy of consideration of opinion that they were not under this 2nd sub
was taken , which is this, that the house is not an section , because I think that the wordswhich have
inhabited dwelling-house, and it is quite true been commented upon , " by which the occupier
that, within the decision of the Court of seeks a livelihood or profit," govern the whole of
Eschequer in Riley v. Read (ubi sup.), there was the previous part of the sub -section, and I think
no occupation of the club, no inhabitancy by the it could be read as though that comma,which was
members. I think it is quite clear, and after that introduced in the printed copy of the Act which
decision it is not necessary that I should go into I hare before me, were omitted altogether. Then
the reasons. But in the London Library there is the section would read thus: “ Every house or
a sitting-room and a bedroom which are given , in tepementwhich is occupied solely for the purposes
addition to the wages of the attendant, to that of any trade or business or of any profession or
attendant, who is in the service of the library , calling by which the occupier seeks a livelihood."
and this man and his wife dwell in these rooms It is clear that there is no seeking a livelihood or
both by day and at night for the protection of profit by the London Library, and it seems to be
the premises, no other person dwelling in the impossible that any real substantial question
premises. It is to be observed that that person could be raised. I think therefore it does not
is one of the attendants in the service of the come within that. Then it is said that there is no
library . It is obvious that theremust be such an inhabited portion, and it is said that the occu
attendant, and probably more than one atten : pation or inhabitancy by the servant or person
dant, in order that the members of the library in charge thereof for protection is to be con
should obtain the use of it in a reasonable and | sidered as not affecting the case at all, because
proper manner. Therefore it is not found that the words are “ servant or other person may
this man is a mere caretaker and no more, and i dwell in such house or tenement for the protec
the obvious and fair inference to mymind is, that tion thereof." It is said that a person who would
this man does inhabit that house and dwell in it be in this house “ for the protection thereof "
for the benefit of the members of the library . | comes within that. Even without looking at the
We were referred to the exemption in one of the question whether a servant occupies as an
earlier Acts, 48 Geo . 3 , c. 55 , schedule B , case 5, inhabitant or not, it seemsto me that the earlier
the words of which are these : “ Every house part of the exemption would not apply. But let
whereof the keeping is or shall be committed or us take the other. It is admitted , and after the
left to the care or charge of any person or ser- case of Riley v . Read (ubi sup.) which was cited ,
vant who doth noo pay rates to the church and it is clear, that the mere occupation of premises in
poor, and who resides therein for the purpose the daytimeas a club cannot make it an inhabited
only of taking care thereof," has to pay no tas. house within the meaning of the Acts imposing
In that case the person and the only person who the duties upon inhabited houses. But is this in
resides in the house resides for the purpose only any sense an inhabited dwelling -house ? The
of taking care thereof. Therefore it is intended case finds that the apartments are occupied by
obviously to meet tbe case of what is called an the servants of the company, and occupied night
empty house, a house awaiting a tenant, or await. ! and day, and in fact they reside in the house.
ing the arrival of its owner, which house is until | If they do not inhabit and dwell in that house,
then left in the care or charge of this servant, where do they reside and dwell or inhabit ? It
who resides there for the purpose of taking care is impossible to say they reside nowhere, that
thereof only. That certainly is not intended to they dwell nowhere, and that they inhabit no
meet the case which constantly occurs of a ser | house ; but they dwell in and inhabit that very
vant of the owner being left in the house, not house in which they have the rooms assigned to
merely for the purpose of taking care of it, | them . Then it is said they come within this
though that is the principal purpose, but for the exemption ; it is said that the servantwho dwells
purpose also of being ready to wait upon the there is a protection merely for the house. Now ,
owner when he comes to dwell there. In such | by the finding in the case, the use of a sitting.
case his occupancy and inbabitancy is just as room and bedroom is given , in addition to the
sufficient for the purpose of the inhabited house wages of the attendant, to that attendant who is
duty as if themaster himself were there. It seems in the service of the library . He is, in point of
to me therefore that the only other way in which fact, a sort of sub- librarian, and his duty is as an
it is sought to apply this section to this case fails, attendant in the service of the library, and he
and therefore this appeal must be dismissed with and his wife dwell in these rooms both day and
costs. night for the protection of the premises. The
HAWKINS, J. - I am of the same opinion, and I use of the rooms, there can be no doubt, is taken
confine myself to the consideration of the statute into account in the wages. Is he the sort of
41 Vict. c. 15, and the 2nd sub-section of sect. 13, servant contemplated in this exemption ? I
which sets forth the second exemption from the need only read another clause in an Act of Par
inhabited house duty. Now , first of all, does the liament which seems to hare escaped attention ,
London Library carry on a trade or business ? I ' that is sect. 24 of 44 Vict. c. 12, which interprets
May 31, 1890.) THE LAW TIMES. [ Vol. LXII., N . 8. 469
Priv. Co.] BROWN v. COMMISSIONER FOR RAILWAYS. [ Priv . Co.
the meaning of the word “ servant,' as used in At the conclusion of the arguments their
this 2nd sub-section of sect. 13 of the Act of 1878 . Lordships took time to consider their judgment.
It runs thus : “ With reference to the exemption March 15.— Their Lordships' judgment was
from the duties on inhabited houses given by sub
sect. 2 of sect. 13 of the Customs and Inland delivered by
Revenue Act 1878, the term ' servant' shall be Lord MacNAGHTEN. - This is an application to
deemed to mean and include only a menial or set aside an order for a new trial of an action in
domestic servant employed by the occupier, which the appellants were plaintiffs. At thedate
and the expression “ other person ” shall be 1 of the events which gave rise to the litigation the
deemed to mean any person of a similar grade or appellants were, as they still are, landowners and
description not otherwise employed by the occu colliery proprietors in the colony of New South
pier, who shall be engaged by him to dwell in Wales, possessing land within the area of the
the house or tenement solely for the protection Newcastle Coal Basin , and engaged in working a
thereof." The person who resides in this house is colliery on their property there known as New
paid , and it would be hard to say , and it is not a Lambton . The action was brought to enforce a
finding in the case, that he is a menial or domestic claim for compensation in respect of lands taken
servant ; but he is rather in the character of a or resumed by theGovernment for the purpose of
librarian or sub-librarian , and his duty is to a proposed railway, and also in respect of injury
attend upon the library in his service as by severance to adjoining land. The claim was
librarian . Under these circumstances he would presented under three heads : 1. Surface value of
not fall within the description , according to this the lands taken . 2. Value of coal under those
interpretation clause, of a “ servant ” as men lands. 3 . Value of coal under adjoining lands
tioned in the 2nd sub-section of sect. 13 of 41 Vict. severed by the railway . As regards the first head
I am clearly of opinion , therefore , that this of claim no question was raised before their
appeal ought to be dismissed with costs. Lordships. The lands taken wero 7a . 23p . The
Appealdismissed with costs. lands alleged to be injured by severance were
Solicitors for the appellants, Gedge, Kirby, and twenty-one acres lying to the north or north -west
Millett. of the railway, and forming a triangle of which
Solicitor for the respondent, The Solicitor of the line of the railway where it passes through
Inland Revenue. the appellants' property is the base. In the first
instance the parties had recourse to arbitration .
The arbitrators appointed as their umpire a Dr.
James Robertson , who was an important witness
Judicial Committee ofthe Privy Council. at the subsequent trial. Dr. Robertson was a
mining engineer of considerable eminence in his
Feb. 11, 12, 19, and March 15 . profession. He seems to have had experience in
(Present: The Right Hons. Lords Watson, Mac all parts of the world . He had spent ten years
NAGHTEN , & MORRIS, and Sir BARNES PEACOCK.) in England and six years in the colony, acting
principally as consulting engineeer, and he had
BROWN v . COMMISSIONER FOR RAILWAYS. (a ) been appointed president of a Royal Commission
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH by the Government of New South Wales. The
WALES. arbitrators were unable to agree, and Dr. Robert.
Land taken for railway – Compensation for son as umpire awarded 65551. in respect of the
subjacent minerals - Minerals workable at a appellants' claim . The appellants were dissatisfied
profit - Evidence. with the amount awarded , and duly served a
Where land is taken compulsorily for a railway or notice to that effect in accordance with the
similarpurpose, the fact that there is a conflict of ColonialRailway Act (22 Vict. No. 19, sect. 41.) It
scientific evidence as to whether there are then rested with them to enforce their claim by
minerals under such land workable at a profit, action . Accordingly they brought an action
does not impose upon the owner the burden of against theCommissioner for Railways as nominal
proving by actual experiment the nature of the defendant. The amount claimed by the declara
subjacent minerals as a condition precedent to tion was 20 ,0001. The action came on for trial
obtaining compensation . before Faucett, J . and a jury of twelve persons in
Where a particular seam cannot be worked at a April 1887. It was not disputed on the part of
profit at the time that the land is so taken , the respondent that, if there was workable
coal under the lands severed , the appellants
compensation may nevertheless be given for it, if were
it is likely to prove profitable in the future. , entitled to be paid for it as well as for the
Judgment of the courtbelow reversed. lands taken . But the respondent's case was that
This was an appeal from a judgment of the could there was no coal, or at any rate no coal that
Supreme Court of New South Wales (Darley , the lands be worked at a profit, under any part of
C .J. and Stephen , J., Innes, J.dissenting) making it was nottaken or severed . On the other hand,
dispnted by the appellants that there
absolute a rule nisi for a new trial in an action existed a considerable
brought by the appellants against the respondent of the railway, for whichrolla orlargefaultallowance
along the line
ought
as nominal defendant. to be made. On obtaining possession of the
facts appear fully from the judgment of land taken for the purpose of the railway the
TheLordships.
their
Finlay, Q.C . and Macrae appeared for the Government
one at each
caused two trial shafts to be sunk ,
extremity of the line passing through
appellants. the appellants' property. These trial shafts were
Sir H . Davey, Q .C . and Leverson for the each about 150 feet deep . About fifteen feet
respondent. from the trial shaft at the western extremity a
(a) Reported by C. E.MALDEN , Esq., Barrister-at-Law. | bore was made with a drill to the depth of 2001
Vol. LXII., N . S., 1594.
470 – Vol. LXII., N . S.] THE LAW TIMES. (May 31, 1890.
PRIV . Co.] BROWN v. COMMISSIONER FOR RAILWAYS. [Priv . Co.
feet. Near the eastern extremity , but beyond it not asked one single question as to his calcnla
and distant about fourteen yards from the eastern tions, or indeed as to any material point. The
trial shaft , there was an old pit called the Furnace other expert witnesses called on behalf of the
pit, originally intended as a winding shaft, and appellants took substantially the same line,
afterwards used as an air shaft in connection though they did not go into calculations. The
with the New Lambton old workings. The expert witnesses on behalf of the respondent pat
persons employed to sink the trial shafts caused forward a very different view . They thought
a drive to bemade into the Furnace pit from the there was no coal, or at any rate no workable
adjoining trial shaft. There were no workings coal, under the lands in question . Their view
of the appellants within the lands in question, was that, as those lands were approached , from
nor did they sink any shaft or boring there for whatever direction the approach might be
the purpose of testing the ground, nor was the | made, the coal thinned out or disappeared . The
ground tested in any way except by means of | respondent took his stand on the case made by
the two trial shafts, the drill bore, and the drive his expert witnesses, and on that alone. Hedid
connecting the eastern trial shaft with the | not condescend to deal with Dr. Robertson's
Furnace pit. It was not disputed that no work calculations, either by counter evidence or by
able coal was to be found in either of the trial way of cross-examination . So the only alterna
shafts or in the drill bore, or in the Furnace pit , tive presented by the respondent to the
which was admittedly sunk on a fault, or for acceptance of Dr. Robertson 's figures was the
some distance along the drive which connected absolute and entire rejection of the appellants'
the Furnace pit with the old workings. The old claim . The trial lasted seven days. The jury
workings lay to the north of the line of railway. | deliberated for five hours. They were unable to
The official plan of these workings was produced. agree, and by consent the verdict of the majority
It showed some faults and occasional disturb was taken . By a majority of seven to five the
ances, but nevertheless the workings appeared to appellants obtained a verdict for 66001. No
be extensive. They reached southwards to al objection was taken to the summing up. The
point very near the lands in respect of which learned judge who tried the case, as appears from
compensation was claimed. A few years before the observations of one of the learned judges in
the action was brought — the exact date does not the Court of Appeal, stated that probably he
appear— the appellants stopped working to the would have found the other way, but that he did
north of the railway , took out the pillars, and not disagree with the verdict. A rule nisi for a
allowed the roof to fall in . At the same time new trial was granted on the grounds (1) that the
they sank a new pit about a mile to the south of verdict was against evidence or the weight of
the railway, which is known as the Cpit, and evidence, and (2) that the amount awarded was
they commenced operations there which have excessive. The rule was argned before Darley,
been continued ever since. The reason why the C . J., and Innes and Stephen , JJ., on the 2nd and
old workings were abandoned was a matter of 3rd Nov . 1887. Judgment was reserved. On the
dispute at the trial. The appellants alleged that 4th June 1888 the Court (Innes, J., dissenting)
the coalwas good where they left off, but that, ordered that the verdict be set aside, and a new
as they had been working to the dip, the water trial had between the parties, and that the costs
came in upon them , and that it was for this of the first trial should abide theeventof thenew
reason , and this reason alone, that they trans- trial, and that the costs of and incidental to the
ferred their operations to the Cpit . On the motion for the new trial should be paid by the
other hand, it was alleged by the respondent present appellant. Innes, J . was of opinion that
that the real reason why the old workings were there were amplematerials to warrant the verdict,
abandoned was that the coal was thinning out though there was a strong body of evidence the
as the appellants worked southwards. There other way. Darley, C .J., with whom Stephen,
was also a dispute as to the character of the coal | J . agreed, was of opinion that the verdict was
in the new workings at the C pit. The case “ demonstrably wrong, and such as reasonable
made by the expert witnesses on behalf of the men discharging judicial functions ough : not to
appellants was in substance this : that there was have found." In estimating the value of Dr.
good coal to the north of the railway, and also Robertson 's evidence, he laid stress on the fact
good coal to the south , and that there was every that Dr. Robertson “ entirely disregarded , and
reason to believe that,but for the local disturbance never even went down " the Furnace pit. As
at the Furnace pit, the coal ran through from this circumstance was also pressed to the dis
north to south in continuous seams, and that the advantage of Dr. Robertson by the learned
great probability was, that that local disturbance counsel for the respondent, their Lordships think
affected only a part of the lands in question . In it right to observe that, in their opinion , no
coming to these conclusions the witnesses were significance ought to be attached to it. In the
guided by their practical knowledge of coal | arbitration Dr. Robertson heard the evidence and
fields in general, and of this coal-field in par- | made an inspection with the arbitrators. That
ticular. Whether this view be right or wrong was proved . It was also proved that both the
it seems to be something more than mere con arbitrators went down the Furnace pit. There
jecture. The first and principal witness at the was no doubt or dispute as to what was to be
trial on behalf of the appellants was Dr. Robert- seen in that pit,and if thearbitrators were agreed
son , the umpire. He explained in detail how he upon that point there does not seem to have been
had arrived at his award . He allowed for two any reason why the umpire should have gone
seams of coal, the Borehole seam - the seam down himself. However, upon this and other
mainly worked in the district, and the only one grounds which are not very apparent, the learned
worked by the appellants in their old workings— Chief Justice came to the conclusion that the
and an upper seam locally known as the Yard evidence of the experts on behalf of theappellants
seam . In cross-examination Dr. Robertson was I was " purely conjectural,” while the respondent's
May 31, 1890.] THE LAW TIMES. [Vol. LXII., N . S.- 471
Priv. Co.] JONES v , WATTS. [CT. OF APP.
case was “ not founded upon mere opinion but | workable at a profit. This point was also urged
upon ascertained facts." Among these facts, very strongly by the learned counsel for the
however, it is to be observed that the learned respondent. It may be observed that there is no
Chief Justice seems to reckon the respondent's actual proof that the jury took the Yard seam
contention that the New Lambton old workings into consideration . The sum awarded might be
were abandoned because the coal was bad, and arrived at either by taking the Yard seam into
that in the new workings the seam diminished account at Dr. Robertson 's valuation , or by
disregarding the Yard seamaltogether , and
in thickness in the direction of the railway - two
matters which were in contest at the trial, and giving compepsation for the Borehole seam at
were apparently determined by the jury adversely the larger royalty to which some of the wit
to the respondent. The learned Chief Justice nesses thought the appellants,as owners working
lays much stress on the two trial shafts sunk by their own mines, were clearly entitled . However
the respondent, which , no doubt, were very that may be, there was certainly evidence to go
important pieces of evidence for the jury to to the jury as to the value of the Yard seam .
consider. Dr. Robertson , indeed , stated that they | Further, it must be borne in mind that it does
were not sunk to “ a sufficient depth to test the not follow , because a seam is not presently
existence of coal," and upon this he was not workable at a profit, that no compensation is to
cross-examined , though the respondent was aware be given for it, if it is likely to prove profitable
that the core from the bore at the trial shaft was in the future. On the whole their Lordships are
taken to Sydney and shown to him . But, of opinion that the question in issue at the trial
assuming, as seems to have been the case , that was a matter for the jury to determine, and that
the trial shafts were sunk to the Borehole seam it is impossible to say that the verdict was one
or to a section of that seam , which appears to which a jury, viewing the whole of the evidence
have been split there by the roll, it is to be reasonably, could not properly find. In the
observed that, although these trial shafts afford result, therefore, their Lordships will humbly
cogent evidence to prove that the roll or fault advise Her Majesty that the appeal ought to be
extends from the Furnace pit along the line allowed ,and that the order of the 4th June 1888
of railway , they do not necessarily prove that ought to be discharged ,and that the respondent
workable coal may not be underlying the greater ought to pay the costs of the trial and of the
part of the lands in question . The learned Chief | rule nisi and of the rule absolute. The respon .
Justice then expresses himself as follows : " In dent will pay the costs of this appeal.
my opinion the eride:nce furnished by these trial Solicitors for the appellants, Wyatt and
shafts, taken in connection with the other Barrard.
evidence for the defendant, renders it incumbent Solicitor for the respondent, R . O .Want.
on the plaintiff to show , not as a matter of con
jecture resting on the opinion of experts, but as
a matter of fact, that coal does exist either under
the railway or under the twenty -one acres, and
this can easily be ascertained by the plaintiffs
sinking a trial shaft upon some part of the Supreme Court of Judicature.
twenty -one acres. It is impossible to suppose
that the plaintiffs did not know that the
defendant was sinking trial shafts, and it is to
COURT OF APPEAL.
my mind significant that, knowing this , they did Wednesday, Jan. 29.
not sink a trial shaft on their own account. (Before Cotton, LINDLEY, and LOPES, L .JJ.)
Looking, however, at all the circumstances of
the case, I am of opinion that it is incumbent JONES v.Watts.(a)
on the plaintiffs, before they can recover this APPEAL FROM THE CHANCERY DIVISION .
large amount of compensation from the de Practice - Discovery - Agreement for lease- -Specific
fendant, to prove that coal, payable coal in fact, performance - Production of lessor's title Ease
exists underneath this land." Their Lordships are ment- Vendor and Purchaser Act 1874 ( 37 g 38
unable to agree in this view . If a plaintiff fails Vict. c. 78), s. 2 .
to make good his claim to the satisfaction of the
tribunalwhich has cognisance of it, he must of Thean owners in fee of freehold land commenced
action for the specific performance of an
course bear the consequences. But, in their agreement by the defendant to accept a lease of
Lordships ' opinion, it would bewrong to lay down the land for a term of years. The agreement
such a rule as the learned Chief Justice seems to
enunciate, and to impose upon a person whose contained inter alia ) stipulations for the free
land has been taken from him against his will use by the defendant of a certain " drive " as a
theburden of proving by costly experiments the means of access to the estate . By his defence the
mineral contents of his land, as a condition defendant denied that the plaintiffs had anyit
power to demise the land, and alleged that
precedent to obtaining compensation , merely was subject to restrictive covenants .
because the opinion of experts may be in conflict Held , that, by virtue of sect. 2 of the Vendor and
on the subject, or because, in the opinion of a
Court of Appeal, the weight of the scientific Purchaser Act 1874, the defendant was not
evidence is adverse to the claim . The learned entitled to discovery and production from the
Chief Justice then deals with the Yard seam , plaintiffs of the documents in their possession
and assuming, possibly correctly , that the jury relating to the freehold title, though, if he had
had followed Dr. Robertson in allowing com raised specifically any particular objection to the
pensation for it to the amount of 19881. 158. 9d ., title, he might have had discovery of the docu
less six per cent., expresses his opinion that, ments bearing upon that point.
according to the evidence, that seam was not i (@) Raported by A . J.SPENCER, Esq ., Barrister-at-Law .
472 _ Vol. LXII., N . 8.] THE LAW TIMES. (May 31, 1890.
CT. or App.] JONES v. Watts. [Cr. or APP.
Held also, that the contract as to the “ drive " was a entitled to production from the plaintiffs of the
contract to grant a lease of land , and that there documents in their possession relating to the
fore the plaintiffs were protected from production freehold
title of the property agreed to be
of their title thereto by the Vendor and Pur demised, but that, as the agreement for the use
chaser Act 1874 , 8. 2. of the drive was not “ to grant or assign a term
In this case the plaintiffs, M . M . Jones and R . H . of years," the plaintiffs must produce the docu
Jones, brought an action to enforce the specific ments in their possession relating to their right
performance by the defendant of an agreement to grant the use of the drive.
to take a lease of land and premises known as The case is reported ante, p . 58 .
Mainder Hall in Monmonthshire. The agree. The plaintiffs appealed from this order so far
ment provided (inter alia ) that the lease should as it ordered production of the documents of
contain stipulations for tbo free use by the title relating to the " drive," and the defendant
defendant of a certain “ drive " as a means of appealed so far as the order refused the pro
access to the estate. duction of the documents of title to the freebold .
By his defence the defendant denied that he Higgins, Q .C . and Lush-Wilson for the plain
had entered into any agreement as alleged , and tiffs. - North , J. should not have ordered pro
duction of the title to the “ drive." Sect. 2 of
in the alternative he said that, if any agreement
the Vendor and Purchaser Act 1874 refers to a
was come
in the to as alleged
plaintiffs' , it was notclaim
statement . Hestated
of correctly also contract relating to " land," and land would
denied (paragraph 9) that the plaintiffs had any include an incorporeal hereditament such as an
title to or power to demise the house and land, easement. This is a contract to grant an ease
and in particular alleged that the property was ment for a term of years, and we are therefore
subject to restrictive covenants affecting the user protected from production by the section. They
and enjoyment thereof. Paragraph 10 of the referred to
defence was as follows : Thorpe v. Brumfitt, L . Rep. 8 Ch . 650 ;
The only access to the premises comprised in the said Skuli v. Glenister, 19 L. T. Rep. N . S. 763 ; 16 C . B.
agreement from the high road is over a drive through N . S . 81 ;
certain gates standing at the entrance to the drive. It Hewlins v. Shippam , 5 B . & C . 221 ;
was a term of the said alleged agreement that the Comyn 's Digest, “ Chimin ” ;
plaintiffs should grant to the defendant an easement Sheppard 's Touchstone, p . 268.
forW the
of the free use of the said drive, and should covenant to
keep the said drive in a fit and proper condition , and to
. Hdefendant.
. Upjohn (Cozens-Hardy, Q .Chave
- North , J. should . withordered
him )
clear away all obstructing branches. The said drive production of all documents. It is true that
and the said gates at the entrance thereof and the land under a contract for a lease the freehold title
on which they stand are not the property of the cannot be called for, but that does not prevent
plaintiffs, who have no right or title thereto or power
to demise the same, nor any easement of way or other . an intending lessee showing aliunde that the
wise over the same, nor any right or title thereto or freeholder is unable to perform his contract :
power to grant any such easement over the same, nor Shepherd v. Keatley, 1 C . M . & R . 117.
any right ,ororpower
condition to keepthethesame.
drive inThe
a fit and proper
to regulate plaintiffs are, The defendant here by his defence has denied
in fact, unable to give the defendant a right of access to the plaintiffs' title, and the usual law of dis
the house and grounds comprised in the alleged agree covery must therefore prevail. The Vendor and
ment from the public road , or to perform their agreement Purchaser Act leaves it open to a lessee to raise
with respect to the said drive. this issue in an action , and to obtain discovery
The plaintiffs were ordered on the application in the ordinary way. An intending lessee will
of the defendant, to make an affidavit of docu not
ments relating to the matters in question in the everybelitigant deprived of the right to discovery which
has :
action. They made a jointaffidavit in pursuance Waddell v. Wolfe, L . Rep. 9 Q . B . 515 ;
of this order, and in this affidavit the plaintiff Darlington v. Hamilton, Kay , 550 ;
M . M . Jones said : Nottingham Patent Brick and Tile Company v.
I have in my possession or power the documents Butler, 54 L . T. Rep. N . S. 444 ; 15 Q. B . Div. 261;
relating to my freehold title to the property adjoining 16 Q . B . Div. 778 ;
Mainder Hall. The said documents are set forth in the Turner v. Bayley, 34 Beav. 105 ;
first schedule hereto. Hall v . Connell, 3 Y . & C . Ex. 707.
The plaintiff R . H . Jones said : Higgins, Q.C . in reply.- If the defendant's
I have in my possession or power the documents
relating to my freehold title to the Mainder Hall estate .
contentionof isa right,
duction lessor'syoutitle
couldbyalways
makingobtain pro
a general
The said documents are set forth in the second schedule allegation of some defect in the title. The lessee
bereto . is precluded from raising any objection to the
And both the plaintiffs said : title of the lessor aliunde. The statute prevents
We are advised and believe that all the documents the lessee from getting production of the lessor's
before mentioned respectively relate only to our free. title by any contrivance whatever .
hold title to the property over which the lease, the sub
ject-matter of this action , was to be demised . COTTON , L . J. - This is an appeal and cross-appeal
The plaintiffs objected to produce these docu . from an order of North , J. The plaintiffs have
ments. agreed to grant a lease of land to the defendant
The defendant took out a summons that he with a right of way over a certain drive. Two
might be at liberty to inspect the plaintiffs' title. questions have arisen : first,whether the plaintiffs
deeds, notwithstanding their objection to pro Bhould , upon an action for specific performance,
duce them . produce their title deeds to the house and land;
The summons was adjourned into court and secondly, whether they should produce their
heard by North , J. on the 7th Dec. 1889, who title deeds to the drive. They both depend upon
beld that, by virtue of sect. 2 of the Vendor and sect. 2 of the Vendor and Purchaser Act 1874,
Purchaser Act 1874, the defendant was not | Sect. 1 deals with contracts of sale of " land;
CT. OP APP.) Re HARGREAVES ; MIDGLEY v. TATLEY. [CT. OF APP.
and then sect. 2 is as follows: “ In the comple- | property is bad, and subject to some restrictive
tion of any such contract as aforesaid , and sub- covenants, and be says, “ Produce your title.”
ject to any stipulation to the contrary in the con Whether he can compel that or not depends on
tract , the obligations and rights of vendor and the Vendor and Purchaser Act 1874 , sects.
purchaser shall be regulated by the following 1 and 2. We must see that we do not put too
rules : that is to say, first, under a contract to narrow a construction on the statute so as to
grant or assign a term of years, whether derived defeat its objects. [His Lordship read parts of
or to be derived out of a freehold or leasehold sects. 1 and 2 of the Vendor and Purchaser Act
estate , the intended lessee or assign shall not be 1874 , and continued :) The purchaser is by the
ertitled to cali for the title to the freehold ." Act not to be entitled to call for the title to the
That refers to a contract for the sale of land, and freehold . How much else is he entitled to ? Can
I think it clearly has regard to a contract to he say, “ Produce your title deeds " ? Obviously
grant a lease as well as to assign a lease already not. Can he say, “ You have a bad title," and
granted. Mr. Upjohn says this does not prevent | thus call upon the lessor to show his title ? It
the lessee as a litigant from getting the ordinary appears to me that a purchaser is not entitled to
discovery of his lessor's title deeds under the call for the deeds simply because he wants to see
rules of court. We must consider what is the them , whether in the case of litigation or other
issue to be tried in court. It is whether or not wise. I think North , Ji's construction of the Act
the lessor has made out a good title as limited by is right in this respect. With regard to the
the Vendor and Purchaser Act ; that is to say, right of way, I am not sure whether I quite
without producing his title to the freehold . The understand the decision of North , J. on this
right of the litigant to discovery is not curtailed , point. He seems to have thought that a lease of
but the subject matter with regard to which dis. à right of way was not a lease of land ; but
covery is to be made is limited . If the defendant it appears to me that a contract to grant a
simply denies that the lessor has a good title, he lease of a right of way is a contract to grant a
is not at once entitled to production of the title lease ofland within the Act. I think Mr. Upjohn
deeds by way of discovery. The section of is right in saying that the purchaser can take an
the Vendor and Purchaser Act does not, how objection to the freehold title aliunde, but I do
erer, in my opinion, prevent the defendant from not think that the allegation in the defendant's
raising objections to the lessor's title aliunde. But I pleadings is sufficiently specific. If he had
to do so he must raise a tangible issue to be tried alleged a specific case of a restrictive covenant
in the action , and he is only entitled to call for the interfering with the use of the land, I think he
production of any documents as to which issues | would have been entitled to an affidavit of
have been properly raised . If the lessee here the documents relevant thereto. I feel very
had raised any specific issue as to the title, he , much the danger there would be if lessors were
would be entitled to production of the docu obliged to go through all their title deeds in
ments relating thereto . The question is whether order to answer any allegation made by a pur.
he has raised any such issue in this case. It has | chaser. I think the allegation in this case is
been said that, if the defendant could get pro | merely an attempt to fish ,and is not sufficient.
duction by raising an objection , that would LOPES, L .J. - I agree , subject to this : I had
entirely upset the provisions of the Act. Let us some doubts whether this Act applies to cases
see what allegation is raised here by the defen . where there is litigation between the parties ; but,
dant. [His Lordship read the allegation of want
of title in the defence, and cortinued :) If that as the other Lords Justices think differently , I
withdraw my view .
paragraph did raise a specific issue we should
give the plaintiffs an opportunity of answering | andSolicitors for the plaintiffs, Woodcock, Ryland ,
it ; but I think that it is really merely a fishing CardiffParker,
.
agents for Vaughan and Hornby,
allegation, and is too doubtful and general to Solicitors for the defendant, Watson , Sons, and
enable us to say that the defendart has raised Room , agents for L . Overstone Jones, Newport.
any defence which would entitle him to get pro
duction of the plaintiffs' title . I think, therefore,
that North, J. was right on the question of pro .
duction of the lessor's title generally. Then we Wednesday, Jan, 29.
come to the plaintiffs' cross-appeal. The Act
(13 & 14 Vict. c. 21) shows that a sale of (Before Cotton , LINDLEY, and LOPES, L .JJ.)
" land " includes a sale of " hereditaments," which Re HARGREAVES ; MIDGLEY v. Tatler.(a )
certainly include an easement, and I think there. APPEAL FROM THE CHANCERY DIVISION .
fore that an agreement to grant a lease of an Practice - Originating summons — Jurisdiction
easement comes within this section . The con . Order LV., r. 3 — Perpetuity - Power of appoint
tract as to this right of way is accordingly within ment given to unborn persons.
this section of the Vendor and Purchaser Act,
and the plaintiffs may refuse to produce their A testatri.e devised real estate to two persons upon
title thereto. I think therefore North , J. was trust to pay the rents and profits after certuin
point,and the plaintiffs are entitled
wrong on this as deductions to M . during her life , and after her
to protection well with regard to the right of death to pay the rents to her children respectively
way as otherwise . in succession in order of seniority during their
LINDLEY, L .J . - This is a suit by the vendors respective lives ; and after the death of M . and
against a purchaser for specific performance of all her children ,upon trust to pay the rents to E .
an agreement to grant a lease. There is nothing and her children successively in the same way ;
in the contract which renders it incumbent on and after the death of M . and E . and all their
the lessors to show their title to the freehold . ! children , upon trust for such person or persons
The defendant says the plaintiffs' title to the 1 (a) Reported by A . J. SPENCER, Esq., Barrister-at-Law .
474- Vol. LXII., N . 8.) THE LAW TIMES. (May 31, 1890
CT. OF APP.] Re HARGREAVES ; MIDGLEY v. TaTLEY. [ CT. OP APP.
as the longest liver of M . and E . and their person who claimed under the heir-at-law of
children should appoint by deed or will, and in Hannan Hargreaves were defendants to this
default of appointment for the heir-at-law of the summons.
testatrix . The summons was adjourned into court, but
A question was raised by originating summons as Kay, J., on the 5th Dec. 1889, refused to hear it
to the validity of the power of appointment. upon the ground that it was in fact an equitable
Kay, J. held that he had no jurisdiction to decide ejectment which could not be disposed ofupon an
the question on an originating summons. originating summons.
Held , by the Court of Appeal, that there was juris The plaintiffs appealed .
diction
summons.
to decide the question on an originating L. Ryland for the plaintiffs. There is clearly
Held further , that the power of appointment given jurisdictionraised
question under
uponOrder LV., r. 3, tosummons:
an originating decide the
to the last survivor of M . and E . and their Re Davies ; Davies v. Davies, 58 L. T. Rep. N . S.
children was void for infringement of the law of
perpetuity .
312 ; 38 Ch . Div . 210 ;
Avern v. Lloyd (18 L. T. Rep. N . S. 282; L . Rep. Re43Royle ; Royle v. Hayes,61 L. T . Rep. N . S. 542 ;
Ch . Div. 18 .
. 5 Eq. 383) overruled . Upjohn for the person claiming under the heir
HANNAH HARGREAVES made her will dated the at-law . – The objection was taken by Kay, J., not
24th Nov. 1838 , and thereby devised certain free- ! by me, and I should be willing that the case
holds to John Townsend and Henry King upon should be disposed of now .
trust to receive the rents and pay the residue F . Thompson, for the appointee under the will
thereof after deducting expenses to her sister | of Hannah Tatley, concurred .
Mary for life for her separate use, and after her The case was then heard .
death upon trust to pay the residue of such rents
to her oldest child during his or her life, and F. Thompson for the appointee.- The power
after the decease of such oldest child to the being general, the appointment does not relate
next oldest child during his or her life, and back to the original will. The power to appoint
so ' on in succession to the next oldest child istherefore
equivalent to an absolute interest, and does not
transgress the perpetuity rule :
during his or her life till all the children ,
of her sister Mary should depart this life ; Avern v. Lloyd, 18 L. T. Rep. N . S. 282; L. Rep.
and from and after the decease of her said Healso5 Eq. 383.
sister Mary and all her children , upon further referred to
trusts to pay the residue of such rents to the London and South - Western Railway Company
testatrix 's sister Eliza for life for her separate V. Gomm, 46 L . T. Rep. N . S. 449 ; 20 Ch. Div .
562 ;
Gilbe v. Richa , 33 L. T. Rep. 0. S. 107 ;
use, and after her decease to pay the residue to rtson rds
her children successively in the same way as to 4 H . & N . 277.
the children of Mary. The will proceeded as · Upjohn was not called upon .
follows : COTTON L . J.- This is a case where trustees of
. And from and after the decease of my said sisters a will in ,whom the legal estate in fee is vested ,
Mary and Eliza and all their children , upon further and who are in possession of the property, were
heirsmyorsaid
or thethey
them , that
trust trustees,
assigns or survivor,
of such do andof
the survivors asking to have a decision , to whom , according to
shall stand seised of the said freehold hereditaments the true construction of the will , they ought to
and premises in trust for such person or persons, in such hand over the property. Kay , J . held that he
parts, shares, and proportions, and in such manner and had no power to decide the question . We cannot
form , and under and subject to such powers, provisions,
directions, limitations, and appointments, as the longest agree with that view , although possibly the heir
liver of them , my said sisters Mary and Eliza and at-law might bring an equitable ejectment. It
their children,'shall, notwithstanding coverture,by any would be construing Order LV., r. 3, two narrowly,
deed or deeds, instrument or instruments in writing , if we were to say that the court has no power to
or by his or her last will and testament in writing, or decide this question on an administration sum
any codicil or codicils thereto, to be respectively duly mons. We are willing now to decide the qucs.
executed and attested , direct, limit, or appoint, give, tion raised , as all parties ask us so to do . The
or devise the same, and in default of any such direc
limitation to the sisters of the testatrix for
tion , limitation , or appointment, gift, or devise, then
on further trust of the game freehold hereditaments life, and to the children of the sisters for
and premises for myown heir-at-law absolutely. their lives, was perfectly good, but the power
The testatrix died in May 1838. Her sister of appointment is void for remoteness . The
Mary died in 1864 , and her sister Eliza died in children of the sisters were not all neces.
1873,without issue. Mary had two children, of sarily in being at the death of the testatrix . We
whom Hannah Tatley, the last survivor, died in cannot therefore say that the power was given to
1889, having made a will by which she appointed a person who must be living during the period
the hereditaments devised by Hannah Har. allowed by law . The last survivor of the children
greaves, as above stated , to a trustee for the would not at the death of the testatris neces
benefit of her own children . sarily be ascertained during lives in being and
An originating summons was taken out by twenty -one years afterwards. In my opinion that
representatives of the original trustees of the limitation is bad , and the property goes to the
property in whom the legal estate was now heir-at-law of the testatrix, not under the trusts
vested, to have it decided whether the limitations declared by her will, but as on of a partial intes
to take effect after the deaths of the testatrix 's tacy occasioned by the failure the ulterior
sisters Mary and Eliza and all their children trusts. I ought to say a few words on the case
were valid, and who in the events which had of Avern v. Lloyd (ubi sup.), which was decided
happened was entitled to the property . The by Stuart, V .C . He says there that, as there
trustee under Hannah Tatley's will and the may be a limitation of valid life estates to the
May 31, 1890.] THE LAW TIMES . [Vol. LXII, N . 8.—475
Ct.OF APP . ) STRUTT v. TIPPETT. [CT. OF APP.
unborn children , why may there not be this į Held , that C. was not under the circumstances
ultimate limitation after their determination ? entitled to any lien on the policy.
No doubt there may be if it is limited to a person Decision of Chitty, J. (61 L . T. Rep. N . S. 460)
who is necessarily ascertainable within the affirmed .
prescribed period . It is very true that, after the Held further (per Lindley, L .J.), that C . might
decease of the tenants for life, the children could have been entitled to a lien if the terms of the
have disposed of their interests vested and con agreementbetween him and A . had not by impli
tingent, so that (apart from the question of the cation excluded it, and that the list of persons in
validity of the limitations) the estate might have Re Leslie ; Leslie v. French (48 L. T. Rep. N . S .
been disposed of as soon as the tenants for life 564; 23 Ch. Div. 552), who may obtain a lien on
were dead , and it may be contended that, as the a policy is not exhaustive.
alienation of the estate is not prevented , the case By an indenture dated the 19th Feb. 1877 George
is not within the rule as to remoteness. But that
is not the true way of looking at it. An execu . Frederick John Tippett assigned by way ofmort
tory limitation to take effect on the happening of gage to the trustees of the Guardian Fire and
an event which may not take place within lives in Life Assurance Company certain leasehold houses
ti₂₂ūtiņ₂–₂–₂?₂ ?Â₂Ò₂Â§Â§Â₂Ò₂Â₂/₂ /₂ņēm₂₂ti₂m₂?Â₂Ò₂ÂòÂ?₂ /₂ūti therein described to secure repayment of a sum
the fact that the person in whose favour it is of 57,0001, then lent to him by the company , and
made can release it. interest, such debt to be reduced by instalments
LINDLEY, L .J. - I agree. The person to make as therein provided .
the appointment here cannot be ascertained By an indenture, dated the 7th Aug. 1877,
within thedue period. As far as I gather, Avern v . G . F . J. Tippett further charged the property
Lloyd (ubi sup.) has never been followed , and I comprised in the indenture of the 19th Feb . 1877
do not think it was rightly decided . With with the repayment by him to the Guardian
regard to the question of jurisdiction , I think trusteesof the sum of 73,0001.then lent to him , and
that Kay, J. would not have decided that he had interest, such debt to be reduced by instalments
no jurisdiction if he had read the will. It is as therein provided ; and by the same indenture
impossible to say that the case is not within heassigned by way of mortgage to the Guardian
Order LV ., r. 3. There may be complicated trustees certain other leasehold houses therein
cases in which a judge may reasonably refuse to described as a further security for the two sums
decide the question in a summary way, but here of 57,0001. and 73,0001. and interest, and he also
there are no facts in dispute at all. mortgaged to the Guardian trustees a policy of
LOPES, L .J. - I think this case comes within the assurance for 50001. effected in his name and on
his life with the Guardian Fire and Life Assur
words and the spirit of Order LV ., r. 3, and Kay , ance Company, dated the 5th Aug. 1876 , and all
J.had power to hear it. With regard to the will, bonuses payable thereunder, by way of further
I think tbat the ultimate limitation was bad , security for the two sums of 57,0001. and 73,0001.
because the person to exercise the power might and the interest thereon ; and G . F . J . Tippett
not be ascertained within the period allowed by thereby covenanted with theGuardian trustees to
law .
Solicitors : Woodcock , Ryland , and Parker ; pay all premiumsand other annualsumsofmoney
from time to time payable for keeping on foot the
Wynne, Holme,and Wynne. policy, or any substituted policy , and that if he
should neglect or refuse to make such payments
it should be lawful for the Guardian trustees to
Jan . 28 and 30. pay the annual premiums and other sums, and
that he would repay the amount so paid with
(Before Cotton, LINDLEY,and LOPES, L.JJ.) interest thereon ,and that all the premises therein
STRUTT v. TIPPETT. (a ) before expressed to be thereby assigned should
APPEAL FROM THE CHANCERY DIVISION. stand charged with the payment as well of such
sum or sums of money, and the interest thereon ,
Life assurance - Policy - Paymentof premiums by as
stranger - Lien . of the sums of 57,0001. and 73,0001. and the
interest thereon . The indenture also contained
A., the owner of land , and also of a policy of life a power of sale of the hereditaments thereby
assurance on his own life in the office of the B . assured ,made exercisable (amongst other events)
company, mortgaged both these properties to the if there should be a breach or non -observance of
B . company. It was provided that the mortgage some covenant or provision in the indenture of
debt should be reduced by instalments, and the the 19th Feb . 1877 in those presents contained ,
mortgage deed contained a covenant by A . to and on the part of G . F . J. Tippett to be observed
pay the premiums on the policy, and a power and performed , other than the covenant for pay.
of sale was given to the mortgagees (inter alia ), if ment of the sums of 57,0001. and 73 ,0001. and
there should be a breach of the covenant, to keep interest.
up the policy . A . sold the land subject to the
mortgage toc., but retained the policy, and G .ByF . anJ. Tippett
agreement, dated the 3rd March 1879 ,
agreed to sell to the plaintiffs
agreed to pay the premiums. He afterwards the lands, messuages, and hereditaments therein
failed to pay the premiums. The B . company | whole
described
thereupon called upon C . to pay the premiums, to subject
the sumto of
mortgages
514 ,0001.amounting
upon the interms
the
and threatened to call in the mortgage and exer therein set forth , which terms (amongst other
cise their power of sale if he failed to do 80. C . I things) provided for the payment of the price by
accordingly paid the premiums, and claimed to instalments extending over a period of thirty
hare it declared that he was entitled to a lien on years, ard the agreement contained provisions
the policy for the premiums 80 paid . directed to the continuance ofmortgages through
(a) Reported by A . J. SPENCER , Esq., Barrister-at-Law . out that period to the aggregate amount of
476 - Vol. LXII., N . 8.) THE LAW TIMES. (May 31, 1890.
CT. OP APP.] STRUTT v. TIPPETT. [Ct. Or APP.
514,0001. The property comprised in this agree- ! against the policy for the premiums they had
ment included all the lands, messuages, and paid to keep the policy on foot together with
hereditaments comprised in the mortgages of the interest. G . F . J . Tippett was still living when
19th Feb . 1877 and the 7th Aug. 1877 ; and the | the action was commenced .
mortgage debts of 57 ,0001. and 73 ,0001., of which Chitty, J. decided that the plaintiffs were not
the greater part then remained unpaid , were entitled to any lien : (61 L . T. Rep. N . S . 460.)
included in the 514,0001., and it was intended The plaintiffs appealed.
that the same, or the greater part thereof, should Cozens. Hardy . 0 . C . and Hadley for the plain
remain as part of the aggregate mortgage debt tiffs. — The plaintiffs having obtained an interest
which was to be continued . in the policy being kept up, and having paid the
The agreement contained a clause excluding premiums
the policy of 50001. from the purchase and also entitled to ina lien
order tocharge:
or preserve the property,are
the following clause (No. 5) : Re564Leslie; Leslie v . French ,48 L . T. Rep . N. S.
The vendor will pay the premiumson the said policy ; 23 Ch. Div . 552 ;
so long as it shall be necessary to keep them up for the Falcke v. The Scottish Imperial Insurance Com .
purpose of the said loans, but the purchasers shall at pany, 56 L . T. Rep. N . S . 220 ; 34 Ch . Div. 234 ;
the vendor's expense concur in such arrangements as Ré Earl of Winchelsea 's Policy Trusts, 59 L . T. Rep.
the vendor may be able from time to timeto make with N . S . 167 ; 39 Ch . Div . 168 .
the mortgagees for release of the same, or of parts Wewere really sureties for the payment of these
thereof, from the securities, provided
attentamente
arrangementshall be detrimentalto
that no such
la Oremus.
the interests of the
purchasers by causing the interest on the moneys Romer, Q .C . and Crawley for the defendants.
secured to be increased , or the moneys themselvesto be There is no subrogation here whereby the plain
called in , and the purchasers shall in the meanwhile , at
the vendor's own expense , concur in any release to him tiffs can obtain a lien. They have no interest in
of the bonuses accrued thereon . If in the event of the the policy itself, only an interest in the policy
death of the vendor the mortgagees should insist on being kept up, and they paid the premiums for
retaining the policy moneys, or any part thereof, in
reduction of the moneys secured by the mortgages, the their own convenience.
purchasers will at their own expense give to the execu Cozens - Hardy , Q .C . in reply. Cur. adv. vult.
tors or administrators of the vendor a mortgage of the
property for a term lasting over the continuance of this i
agreement comprised in the mortgage thereby reduced Jan . 30.— Cotton, L.J. - In this case there are
or paid off, subject only to any balance remaining dae large mortgages on certain property, and the
thereon in respect of the first mortgage so reduced . | plaintiffs have bought the property subject to
Sucb mortgage to the execators or administrators of the ! the mortgages. Some of the mortgages were
vendors to bear interest at the rate of 4 per cent. per
annum payable half-yearly from the date at which the inandfavour of the Guardian Assurance Company,
that company also had a policy on the life of
policy moneys shall have been so retained. Tippett, from whomagreed
the plaintiffs
The period during which the price was under property. Tippett to pay thebonght the
premiums
the agreement payable by instalments had many on that policy , and there was a provision in the
years yet unexpired , and a large part of the agreement for sale that the policy should remain
mortgage debts to theGuardian trustees remained the property of the vendor. He failed to pay
unpaid . the premiums, and in order to prevent the mort
G . F. J. Tippett was on the 1st Aug. 1885 gages being called in the plaintiffs paid those
adjudicated a bankrupt, and on the 6th Aug. premiums. The question has now arisen, the
1885 William Edmunds was duly appointed plaintiffs having paid the premiums, w bether it
trustee of his estate. should be declared that they are entitled to a lien
By an indenture dated the 11th Feb . 1887 W . | for the premiums paid . Chitty, J. has decided
Edmunds assigned the policy for 50001. to the thatthey are not so entitled . I have some diffi
defendant Henry William Tippett, subject to all culty in ascertaining how they can make out any
mortgages, charges, liens, aud incumbrances claim to have a charge for these premiums. They
thereon . have paid these premiumsfor their own purposes ;
G . F . J. Tippett in 1883 failed to pay the pre that alone would not give then a lien . It is said
mium on the policy,which thereupon becameliable that they are sureties for the payment of these
to lapse. The plaintiffs were called upon by the premiums ; but I do not think they were sureties.
Guardian trustees to pay the premium and restore In my opinion there is nothing to make them
the policy, and in default the Guardian trustees sureties. It would be for the benefit of their
threatened to exercise the power of sale given to own property that the premiumsshould be paid ;
them by themortgages. The plaintiffs being appre but that does not give them the rights of sureties.
hensive that the whole of the principal money There is nothing in Re Leslie ; Leslie v . French (ulbi
remaining due upon themortgages would become sup.), to show that they would have a lien on the
payable and would be called in , and the power of policy. It is said that the paymentwas made at the
sale exercised, which would have involved them request of Tippett ; but therewas no such request,
in great loss, and having regard to the power of unless the agreement by him to pay them was a
the Guardian trustees to pay the premiumsand request. But, in my opinion , thatdoes not amount
other sums, and to charge the amounts on the to a request. There is this rery special agree
hereditaments comprised in the mortgages, on ment of the 3rd March 1879 which contained
the 23rd Feb . 1884 and other dates paid to the special provisions as to the policy. Clause 5 is
Guardian Company certain overdue premiums, strongly in favour of the view that there can be
and also a fine which was necessary to be paid in no such lien as is contended for. It is provided
order to restore the policy. The total amount there that the purchasers shall do anything
80 paid by the plaintiffs was 8701. 68. 7d . necessary to obtain the release of these policies
An action was commenced by the plaintiffs from the mortgagees. It shows that the question
whereby they sought to enforce a lien or charge of keeping up the policy was fully before the
May 31 , 1890.) THE LAW TIMES. [Vol. LXII., N . S.- 477
CT.OF APP. ) BUTLER v. BUTLER . ¡CT. OF APP.
parties and was dealt with by them , and it was Wednesday, Feb. 26 .
provided that Tippett was to remain entirely (Before Cotton, LINDLEY, and LOPES, L.JJ.)
owner of this policy. In my opinion it would be BUTLER v . BUTLER . (a )
wrong to imply that which is contrary to the
terms of the agreement, that if the purchasers APPEAL FROM THE PROBATE , DIVORCE, AND ADMIRALTY
did pay the premiums they should have a lien on DIVISION (DIVORCE).
the policy . No provision wasmade for the contin - | Divorce - Costs — Rescission of decree nisi - Collu
gency of Tippett not performing his agreement sion - Right to appeal - Matrimonial Causes Act
to pay the premiums. Under these circumstances 1857 (20 8 21 Vict. c. 85 ), s. 51 – Judicature Act
we cannot imply an agreement, and must dis 1873 (36 & 37 Vict. c . 66 ), 8. 49.
miss the appeal. A wife petitioned for divorce, and therewas a cro88
LINDLEY, L.J.— I have come to the conclusion petition by the husband. Under order of the
that, upon the documents, any right to a lien court, the husband paid a sum of money into
was excluded by the terms. Apart from that, I court to provide for the wife 's costs. A decree
have somedoubt if there would not be a lien . I am nisi was pronounced on the wife's petition , and
too cautious to indulge in general propositions, costs were given her ; but before the decree was
and I am doubtful if the propositions in Re Leslie; made absolute the Queen 's Proctor intervened .
Leslie v . French (ubi sup.), are exhaustive. The husband under order paid a further sum
Fry, L . J. there, after enumerating cases in into court to provide for the wife's costs . Upon
which a lien is created , says : “ I am further of the trial of the issue with the Queen 's Proctor, it
opinion that, except under the circumstances to was found that there had been collusion at the
which I have referred , no lien is created by the first trial,and Butt, J. rescinded the decree nisi.
payment of the premiumsby a mere stranger or The Court of Appeal affirmed the order of Butt, J.
by a part owner .” In this case the plaintiffs are The wife then applied for payment out of the
mere strangers. I do not, however, regard the money deposited in court to meet her costs ,but
plaintiffs' claim to a lien as necessarily excluded Butt, J. refused the application , being of opinion
by the propositions in Re Leslie ; Leslie v . French . that the original order as to costs was gone when
If an owner of onerous property agrees with me the decree nisi was rescinded . The wife appealed
to indemnify meor my property from the burdens without having obtained the leave of Butt, J.
on the onerous property which may fall on me or Held, that thewife's costs were in the discretion of
my property , and the owner makes default, and the court, and there was no right of appeal either
I or my property have to bear those burdens, I as to the sum paill in before the decree nisi or
am inclined to think that I should have,as against upon the intervention of the Queen 's Proctor .
the owner of the onerous property , a lien on it for In this case there had been cross-petitions for
the money expended by me in bearing that divorce by a husband and wife, and the husband,
burden which as between him and me he ought under order of the court, paid a sum of money
to bear. I should , in the case supposed , have pre into court to provide for the wife 's costs. A
served the onerous property for him under cir . decree nisi was pronounced on the wife's petition ,
cumstances which entitled me to do it at his and the wife's costs were ordered to be paid .
expense, and I do not think that in such a case
my sole remedy is by an action for damages in Itpursuance being alleged that this decree was obtained
against him ; the existence of such personal solicitors wereofparties,a compromise to wbich the wife's
the Queen 's Proctor inter
remedy would not, I think, exclude such lien . I vened , charging collusion , suppression of material
am not aware of any decision inconsistent with facts, and adultery against the wife.
this view , and the principles on which many cases Under further order the husband paid a
of equitable lien depend seem to me to support further sum into court to cover the wife's
a lien in such a case. But here I think the lien costs.
is inconsistent with the provisions of clause 5 of Upon the trial of the issue with the Queen 's
the deed of 1879. As regards the bonuses, there
Proctor the
Proctor, the inry
jury found that there
found that there had been
is a remarkable provision which excludes the lien
collusion and suppression of material facts,com
but
as regards the bonuses. In my opinion the failed to agree as to whether the wife had
decision of Chitty, J. was right. mitted adultery . Butt, J . then rescinded the
LOPES, L .J. - I am unwilling to speculate what decree nisi, and this order was affirmed by the
might be the law if the circumstances of the Court of Appeal (ante, p. 344 ).
case had been different. I can find nothing The wife, who since the first suit had changed
express in the transaction to create a lien . her solicitors, applied that the sums paid in by
Tippett covenanted to pay the premiums, and the the husband should be paid out to her.
plaintiffs have their remedy under this covenant, Stevenson for the wife.
and could sue for the breach of it. This appears Middleton, for the husband, referred to
to be a sufficient remedy, and to be inconsistent
with any such lien as has been contended for . Gladstone v. Gladstone, L. Rep. 3 P. & D . 260.
The appealmust be dismissed with costs . Jacques for the Queen 's Proctor.
Solicitors for the appellants, Oldman and TwoButt,
Clabburn .
J. - This application must be refused.
points are brought before me. One is , that
I should order the payment to the solicitors of
Solicitor for the respondents, Francis Fearon . the sum deposited by the husband to cover the
costs of the first proceedings. That application
was based on the decree nisi, of which it was a
part that the husband should pay his wife's costs
in the usual way. But the Queen 's Proctor
(a) Reported by A . J. SPENCER, Esq ., Barrister-at-Law .
478— Vol. LXII., N . S.] THE LAW TIMES . (May 31, 1890.
Ct. Or APP.] BUTLER v . BUTLER. [CT. OF APP.
intervened , alleging that the decree ought to be band's petition, as Butt, J. thought the rescission
set aside, on the ground that it had been of the decree would not necessarily rescind the
obtained by collusion and by withholding order as to costs at all. The court is bound to
material facts from the knowledge of the court, exercise its discretion so as to give the wife's
and he further charged the wife with adultery. solicitor his costs, unless he has been guilty of
The jury, though they could not agree on the i misconduct, which is not the case here. The
question of adultery , found that there had been costs of the Queen 's Proctor's intervention
collusion , and the decree was rescinded . Dis come under the Matrimonial Causes Act 1878
satisfied with this order the wife went to the (41 Vict. c. 19), s. 2 . [LOPES, L . J. referred to the
Court of Appeal, and that court held that the case of Flower v . Flower, 29 L . T. Rep . N . S .
order made rescinding the decree was rightly 253 ; 3 P . & Div. 132.] That case decides
made. But the order to pay the wife's costs expressly that the only case in which the wife 's
was part of the decree, and was rescinded with solicitor can be deprived of his costs is where
it. There is therefore now no order to pay the there has been misconduct. In Robertson v.
wife's costs, and I decline to make a new order. Robertson (45 L . T . Rep. N . S . 237 ; 6 P . Div. 119)
It is said that it is hard on the solicitors, but the discretion of a judge of the Probate and
they were parties to the collusive agreement, and Divorce Division as to costs was reviewed . The
that being so , I consider them entirely dis- | wife, though the decree nisi is rescinded, is never
entitled to the consideration of the court. Then theless entitled to her costs :
I am asked to order that the husband pay the Whitmore v. Whitmore, 14 L. T. Rep. N . S. 171 ;
wife's costs of the second trial, but I decline to L . Rep. 1 P . & D . 96 ;
do so. In the first place, I consider the wife Gladstone v. Gladstone, L . Rep. 3 P . & D . 260.
personally disentitled to any such order. She [COTTON, L .J. - We agree that the court may
was guilty of collusion, by which she improperly grant the wife her costs notwithstanding her mis
obtained a decree from this court, and she is not conduct, but the question here is whether the
entitled to any consideration . But it is said that, costs are not in the discretion of the judge.]
however that may be, the present solicitors were | These are not costs within the discretion of the
not concerned in that question of collusion , and judge. An order for payment of costs has been
that an order ought to be made securing them made here, and the costs have been taxed , and the
their costs for defending the wife 's interest in matter ceases to be within the discretion of the
the Queen 's Proctor's suit. If the solicitors judge. An order refusing these costs istherefore
stood in the same position as those solicitors subject to appeal, notwithstanding sect. 49 of the
who sanctioned the first collusive agreement, I | Judicature Act 1873 :
should view their claim in the same light. It
is said that they came into these proceedings Turner v. Hancock, 46 L. T. Rep. N . S. 750 ; 20 Ch.
Div . 303.
knowing nothingofthe collusion ; but the question
is, whether they have any specific position apart Blackwell appeared for the Queen's Proctor.
from the mere interest of the wife. I consider COTTON, L .J.— This is an appeal from Butt, J.
that they have not. It has not been the practice refusing to give the wife her costs out of the
to order a husband to pay a sum of money or to fund paid into court. A preliminary objection
give security for a wife's costs in a trial with was raised that there is no right to appeal on a
the Queen 's Proctor, and in the case to which I matter of costs. I do not think it necessary to
am referred (Gladstone v. Gladstone, ubi sup .) enter into the question under the Matrimonial
the court refused , and I think quite rightly, to Causes Act 1857 . The order was to pay a sum
make any such order. Therefore, if they choose into court, out of which the wife might get her
to go on and defend the wife against the Queen 's costs. A decree nisi was granted , and the hus.
Proctor, they have no claim to be considered in band was condemned in costs. That order as to
an exceptional way . But it is said that an order costs is not a separate part of the decree, but is a
was made to secure the wife 501. for the Queen 's part of the original decree nisi. Then subse
Proctor's trial. On looking at the minutes, I quently there was an intervention by the Queen's
see that an order was made, and it may be that | Proctor on the ground of collusion . The jury
the solicitors were misled by it . So far as I am found that there had been collusion, and the
able to ascertain , that was an order made in the decree nisi was rescinded. We affirmed that
registry without any discussion as to the specific order of the judge in this court, and the whole
purpose to which the funds should be applied . thing then dropped . In my opinion the order on
It was not made by the President on motion , which the wife relies was then gone. We then
and I do not think it was rightly made. The fact come to consider this, whether these costs are in
of its being made cannot induce meto depart from the discretion of the judge. I think that they
the uniform practice of the court. I therefore are,and we are therefore precluded by the Judi
refuse the application . cature Act 1873 , s. 49, from entertaining the
Mrs. Butler appealed . appeal. Cases were referred to to show that these
Middleton , for Mr. Butler, took the preliminary costs are not in the discretion of the judge, but
the cases cited are cases where the decree nisi
objection that there was no right of appeal in a had not been discharged. In Whitmore v. Whit
matter relating to costs only . more (ubi sup.) the portion of the order as to costs
Stevenson for Mrs. Butler. — This is not an was not rescinded . In Gladstone v. Gladstone
appeal for costs in the discretion of the judge. (ubi sup.) the order for the decree nisi was not
Butt, J . did not decide this as a matter of his disrescinded at all. I agree that, as a general rule,
cretion , and there must therefore be a right of the wife gets her costs whether she has been
appeal. The rescission of the decree nisi pro- guilty of misconduct or not. In my opinion , that
nounced on the wife's petition does not deprive is right, but it has no bearing on the question as
her of her right to costs in respect of the hus. I to whether these were costs in the discretion of
May 31, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.-479
CT. OF APP.) PARSONS v . BRAND ; COULSON v. DICKSON . [Ct. Or APP.
the court. In my opinion, there is a case which (ubi sup.) does not seem to help the appellant
shows that these costs are in the discretion of the on the preliminary point, because that was not a
court. I refer to the case of Jones v . Jones (26 case of an appeal. The case of Robertson v .
L . T. Rep. N . S . 106 ; L . Rep. 2 P. & D . 333) in Robertson (ubi sup.) is entirely distinguishable ,
which it was decided that, notwithstanding the because there was no question of discretion in
previous practice of the Ecclesiastical Court, the volved . I think the appeal must be dismissed
Divorce and Matrimonial Causes Act 1857 has with costs.
placed all these costs within the discretion of the Cotton, L .J. - With regard to Robertson v.
court. The case of Flower v. Flower (ubi sup.) Robertson there was no objection taken in that
does not show that the wife hasa right to her costs case that it was no case for appeal. The judge
in any event, but only that she will get these costs in that case had said that as a matter of law he
if her solicitor has notbeen guilty of misconduct . would not give the wife more than a certain sum
If these costs are within the discretion of the for her costs. There had not really been any
judge there can be no appeal with regard to exercise of his discretion in that case.
them . Then we cometo the costs subsequent to Solicitors for the appellant, Clinton and
the decree nisi, that is, the costs relating to the Buckby .
intervention of the Queen 's Proctor. It seemsto Solicitors for the respondents, Goldring, Mit
me these costs are within the discretion of the
court . There is nothing to prevent its having chell, and Co.; The Queen's Proctor.
the same discretion as in any other case. It is
said that the solicitor has an independent claim
to these costs. I cannot think that. He has no
independent position or claim apart from his Wednesday, March 5.
client,although it is true that the court provides (Before COTTON, LINDLEY, and LOPES, L .JJ.)
that the wife may obtain an independent solicitor PARSONS v. BRAND.
to act for her in opposition to the husband. It is Coulson v. Dickson. (a)
said that the judge did not exercise his discretion
in this case, eren if he had a discretion . I think APPEAL FROM THE QUEEN 'S BENCH DIVISION .
that he did. We are asked to allow the case to Bill of sale- Validity — Deviation from statutory
stand over in order that the leave of the judge form - Address and description of witness —
below to appeal may be obtained , on the ground Omission - Bills of Sale Act (1878 ) Amendment
of the importance of the point in question . The Act 1882 (45 8 46 Vict. c. 43), 88, 8, 9.
court has not to consider that question on the The
present occasion . I think these costs were clearly to address
a bill ofandsale
description of theparts
are essential attestingwitness
of the form
within the discretion of the judge, and the appeal given in the schedule to the Bills of Sale Act
must be dismissed . (1878) Amendment Act 1882, and a bill of sale
LINDLEY, L .J. - We are asked to give Mrs . omitting either the address or description of the
Butler the costs of proceedings in which she has attesting witness will be void under sect. 9 of that
been unsuccessful. She presented a petition for Act.
divorce. So did her husband. She obtained a THESE were two cases in which virtually the same
decree nisi with costs, but the Queen's Proctor question arose under the Bills of Sale Acts, and
intervened , and the decree nisi was rescinded . in which one judgment was given by the court.
The decree that had been made in her favour In Parsons v . Brand the bill of sale was dated
having been thus rescinded , she applied for her the 22nd Oct. 1889, and was attested by two
costs out of the fund paid in by the husband. witnesses, neither of whom added his address or
Butt, J. refused to give her either the costs of description or occupation . The affidavit filed
the original petition or those incurred upon the with a copy of the bill of sale on its registration
intervention of the Queen 's Proctor. She now | contained both theaddress and description of each
appeals to us from that decision . As to the witness .
costs of the original trial in June, I think Fry , L .J. and Mathew , J., upon an appeal from
they are within sect. 51 of the Divorce and the Woolwich County Court, held that the bill of
Matrimonial Causes Act 1857. That section sale was void as not being in accordance with
applies to all those costs, but it does not appear the form in the schedule to the Bills of Sale Act
to me to be applicable to the costs in the pro 1882 .
ceedings for intervention by the Queen 's Proctor. In Coulson v . Dickson the bill of sale was for
But those costs comewithin the Judicature Act 8001.,dated the 24th Sept. 1885, and was witnessed
1873, s. 49. Butt, J. says in effect : “ You are by Frederick Drake Leslie, an accountant, who
wrong by your collusion , and I will not give you signed his name, and appended his address,
your costs." We cannot say that the applicant | 30 , Coleman-street, but did not give his occu
is entitled to these costs. The case of Flower v . pation .
Flower (ubi sup.) is cited . I distrust all universal The affidavit filed on the registration showed
negatives, and I do not think the court can say that F . D . Leslie was an accountant.
that the discretion given must necessarily be exer Thomas Alexander Dickson was a judgment
cised in one particular way. It is a mistake to creditor at whose instance the sheriff had seized
say that in no other cases will the wife's costs be goods comprised in the bill of sale under a fieri
disallowed except when her solicitor has been facias. An interpleader issue was granted .
guilty of misconduct, or has instituted the suit On the hearing of the interpleader Mathew , J.
knowing that it was without reasonable ground . held , upon the authority of Blankenstein v .
LCPES, L .J. - I think all these costs are left to Robertson (24 Q B. Div. 543), that the bill of sale
the discretion of the judge, and are therefore not was void .
subject to appeal. The case of Flower v. Flower | (a) Reported by A. J. SPENCER, Esq., Barrister -at-Law.
480 _ Vol. LXII., N . 8.] THE LAW TIMES. [May 31, 1890.
Ct. Or APP.] PARSONS v. BRAND ; COULSON v. DICKSON. [Ct. OP APP.
The concluding part of the form in the schedule repealed by the Act of 1882. The execution of a
to the Bills of Sale Act (1878) Amendment Act document is an entirely differentmatter from its
1882 is as follows : form , and no previous case has dealt with the
In witness , & c. execution of a bill of sale. The address of the
Signed and sealed by the said A . B . in the presence of attesting witness, which is stated in this case, is
me, E . F.(add witness's name, address, and description .] sufficient for his identification.
There was an appeal in each case. Lane, Q .C . for the respondent.-- " Duly attes
Parsons v. BRAND. ted ,” in sect. 8 of the Act of 1882 , must mean
A . E . Nelson for the appellant.-- The address attested according to the provisions of the Act
and the form appended . The form shows that it
and description of the attesting witness is no part must
of the form in the Bills of Sale Act 1882. The be attested in a particular way. The Act
affidavit filed with the bill of sale shows thename requires all necessary information to be afforded
and address of the witness, and the omission is to the grantor, and to anyone else who may be
therefore immaterial. The Bills of Sale Act interested in the bill of sale .
1878 , s. 10, states what the affidavit must contain , Channell, Q .C ., in reply, referred to
and says the residence and occupation of the Davies v. Rees, 54 L. T. Rep. N . S. 813; 17 Q. B.
attesting witness must be included , but there is Div. 408.
no such express enactment as to the bill itself. COTTON, L.J. - These two appeals are on the
Any person searching the registry might see the same point. In the first case, the address and
affidavit which is annexed to the bill of sale. description of the attesting witness were absent;
There is only an obligation to comply with the in the second , the address was there, but the
form so far as it is material, and the address and description was missing. The question for us to
residence of the witness are immaterial: consider is, whether, under sect 9 of the Bills of
Roublot v. Boutell, 33 L . T . Rep . 0 . S . 121 ; Sale Act 1882, these bills are void . The court has
Blount v. Harris, 39 L . T. Rep. N . S . 465 ; 4 Q . B . nothing to do with the policy of the Act ; the
Div . 603. only question is, whether the words apply . There
The omission does not alter the legal effect of the is nothing direct in the Act itself requiring that
bill, which is the test as laid down in the names, addresses, and descriptions of the
Ex parte Stanford, 54 L. T. Rep. N . S. 894 ; 17 Q . B . attesting witnesses should be added , although
Div. 259. there is a provision in the Act of 1878 that, in the
No one could be misled by the omission. affidavit which is to be filed on registration of
Forman for the respondent. Sect. 9 of the the bill of sale, a description of the residence
Bills of Sale Act 1882 has been construed so as and occupation of the attesting witness is to be
to give the form in the schedule the force of law , given . The question is, whether either of these
and unless the address and occupation of the bills of sale complieswith the requirements of sect.9
attesting witness are stated the bill of sale will of the Actof 1882,that they shall bemade in accord
be altogether void. Sect. 8 of the Act says that ance with the form in the schedule to the Act.
every bill of sale shall be “ duly attested ,” which | Is there anything in the form given in the schedule
means in accordance with the Act and form . If which requires that the address and description
the date of the bill were omitted it would be void , of the attesting witness shall be added ? It has
but there is no express enactment that the date been argued that the words in the schedule, as
must be inserted . The bill must not omit any to the witness' s name, address, and description,
thing which is a characteristic of the form : are not part of the “ form " of the bill of sale;
Thomas v. Kelly , 60 L . T . Rep . N . S. 114 ; 13 App . that the word " form " only refers to that which
Cas. 506 . gives effect to the contract between theparties,and
It is not intended that everyone affected by a that the reference in the schedule to the address
bill of sale should consult the registry. and description of the attesting witness is only a
A. E . Nelson , in reply , referred to direction as to what is to be done in filling up the
v. Harries, 25 L. T. Rep. N . S. 702; L . Rep. "form . In my opinion the meaning of the word
Jones
7 Q . B . 157. form " cannot be cut down in that way. It is true
that, in most of the cases hitherto brought before
Coulson v. Dickson. the court, the deviation from the statutory form
Channell, Q .C . and Allen for the appellant. was in that part of the bill of sale which embodied
Mathew , J., when he decided this case against the contract between the parties ; but, in my
the holder of the bill of sale, said he felt bound to opinion , these words in the schedule cannot be
follow Blankenstein v. Robertson (ubi sup.), but considered as a mere direction . They are no doubt
considered the point a “ miserable technicality.” a direction as to matters which cannot be filled
The address of the witness is given in this case, up at the time when the form is given ; but
but not a sufficient description . The mode of I think that the “ form " meant by sect. 9 is the
attestation is not part of the form in the schedule form in the schedule as it would be when the
to the Act ; it is a matter of execution only . directions in the schedule have been complied
What ismeant in sect. 9 when it is said the bill of with . There are a number of blanks in the form
sale must be " made in accordancewith the form ” . which cannot be filled up till the form is used ;
is that the terms of the contract must be in for instance , the rate of interest payable. It is
accordance with the form . Sect. 9 deals with not right to say that you cannot consider these as
the form and terms of the contract only, and parts of the form . There is a direction in the
does not incorporate the form in the schedule in form that the blanks should be filled up in a par
such a manner as to make the direction as to ticular way, and I cannot see how you can say
attestation an essential part of it. The Act of that these directions are not part of the form .
1878 contains a provision that every bill of sale When the name, address, and description of the
shall be attested by a solicitor, but this has been I attesting witness in any particular case are
May 31, 1890 .) THE LAW TIMES . [Vol. LXII., N . 8. - 481
CT.OF APP.] HODGSON v. BELL. [CT. OF APP.
known, then the form must be filled up accord . ) of substance. I think these bills are therefore
ingly. I do not say that the omission in the void . Two cases have been argued before us, and
present case would alter the legal effect of the I think that the samereasoning applies to both
bill of sale, which was treated by Bowen , L .J. in and consequently both appeals fail.
Ex parte Stanford (ubi sup.) as the test of the | Solicitors in Parsons v. Brand : Morse Hewitt
validity of bills of sale . That was not over . and Farman ; George Whale.
ruled by the House of Lords in Thomas v . Kelly
(ubi sup.), although Lord Macnaghten did inti. SonSolicitors in Coulson v. Dickson : Allen andi
; Hervey Smith and Co.
mate that it might be right to give the section a
stricter interpretation . But Bowen , L . J. was
only dealing with a variation which would alter
the legal effect of a bill of sale. I think that the Jan . 20 and Feb. 19.
witness's description and address are part of the (Before Lord COLERIDGE, C.J., Lord ESHER, M .R .,
form , and that being so, we can only follow the and Fry, L .J.)
Act of Parliament, however stringent it may be.
I do not consider this a mere immaterial matter. HODGSON v. BELL. (a)
In the Act of 1878 it was required that every bill APPEAL FROM THE QUEEN'S BENCH DIVISION .
of sale should be attested by a solicitor, but that County Court - Power to remit action for trial in
was repealed by the Act of 1882. The position of County Court — Action of contract — Claim
a solicitor gave some sort of assurance that he reduced below 1001. by payment under Rules of
would see that everything required was properly Supreme Court 1883, Order XIV ., r. 6 – County
done ; and when the earlier provision was done Courts Act 1888 (51 & 52 Vict. c. 43), s. 65.
away with , I think it was a matter of substance The reduction of a claim indorsed on a writ to a
that the person attesting th : bill of sale should sum not exceeding 1001. by payment after action
be described , and his address given on the face of broughtwill not enable an application to bemade
the document. I do not express any opinion in for an order that the action should be tried in a
favour of the legislation on this matter ; but I County Court, the words “ reduced by payment,
think that this objection is not merely a matter an admitted set-off, or otherwise,” in sect. 65 of
of form , but has substance in it. I need add the County Courts Act 1888, referring only to a
nothing more as to the appeal in the first case in reduction of the claim before action .
which both address and description were wanting. Foster v. Usherwood (37 L . T. Rep. N . S. 389 ; 3;
In the second case,where the address is given , this Ex. Div. 1) followed .
provision applies more hardly ; but I do not see This was an appeal from on order of a master
how to depart from the directions contained in directing that an action should be sent down for
the schedule. Both the appeals fail. trial in a County Court, which was referredto
LINDLEY , L .J. - I am sorry to say that I do not the court by Charles, J. sitting at chambers.
sen my way to come to any other conclusion . It The plaintiff issued a specially indorsed writ
is always a painful thing to decide against a bonâ against the defendant by which he claimed 1721.
fide transaction because some t's were not crossed for money lent and interest thereon . The
and some i's were not dotted . But I cannot decide | defendant, on appearing to a summons taken out
that the name, address, and description of the under Order XIV ., cbtained leave to defend upon
attesting witness are not part of the scheduled paying 1001. to the plaintiff. Subsequently, on
form which must be complied with . the application of the plaintiff, a master made ad
Lopes, L .J. - The Act of 1882 imposes most order directing that the action should be sent
down for trial to a County Court. The defendant
stringent conditions upon cases of borrowing appealed
money upon bills of sale, dealing not only with the matterto toCharles, J ., at chambers who referred
the court.
their substance but also with their form . It has Sect. 26 of the County Courts Act 1856 (19 & 20
been said the Act is tyrannical, but I am not sure Vict. c. 108 ) provides as follows :
that the Legislature did not intend it so to be. I
am not prepared to say that it is too tyrannical, Court, Where, in any action of contract brought in a Superior
the claim indorsed on the writ does not exceedi
or too imperious, but the court has nothing to do fifty pounds,
with this . The 8th section of the Act of 1882 exceeded fiftyor where such claim , though it originally
pounds, is reduced by payment into
says that the bill of salemust be " duly attested ," court, payment, an admitted set-off, or otherwise, to a .
and the 9th section of the Act says that it shall sum not exceeding fifty pounds, a judge of a Superior
be void unless made in accordance with the form Court, on the application of either party, after issue
in thelschedule. I read “ duly," in sect. 8, as mean joined ,may, in his discretion , and on such termsas he
ing that the bill must be attested in accordance shall think fit, order that the cause be tried in any
County Court which he shall name . . . and the
with the form . Part of the form in the schedule judge of such court shall appoint a day for the hearing
is “ Signed and sealed by the said A . B . in the of the cause . . . and after such hearing the
presence of me E . F . (adding the witness's such registrar shall certify the result to themaster's office of
Superior Court, and judgment in accordance with
name, address, and description)." It is clear that such certificate may be signed in such Superior Court.
in this form they could not have added the name,
address, and description of any particular wit (30By& 31sect. 7 of the County Courts Act 1867
ness. Those matters were not known when the Vict. c. 142) it is provided that,
form was prepared ; but what is inserted in con Where, in any action of contract brought or com
sequence of these directions to mymind clearly menced in any of Her Majesty's Superior Courts of
common law , the claim indorsed on the writ does not
becomes part of the statutory bill of sale . It exceed fifty pounds, or where such claim , though it
cannot be said that a bill is in accordance with originally exceeded Kfty pounds, is reduced by payment,
the form when it has not been executed or an admitted set-off, or otherwise, to a sum not exceeding
attested in the mode directed . I do not think that (a ) Reported by ALFRED H . LEFROY and Adam H . BITTLESTON ,
this is altogether a technical matter, but is one Esqrs. , Barristers-at-Law .
432 — Vol. LXII., N.8.) THE LAW TIMES. (May 31, 1890.
CT. OF APP.] HODGSON v. BELL. [CT. OF APP.
fifty pounds, it shall be lawful for the defendant in the County Courts Act 1867, in which these words
action , within eight days from the day upon which the
writ shall have been served upon him , if the whole or were also omitted . [ DENMAN, J . - Have not the
words “ at any time” been introduced into the
part of the demand of the plaintiffa begummons
contested , to
to the present Act ? ] In the Act of 1867 the timeduring
apply to a judge at chambers for
plaintiff to show cause why such action should not be which the defendant could apply to have the
tried in the County Court or one of the County Courts action remitted was limited to eight days after
in which the action might have been commenced ; and the service of the writ upon him ; the alteration
on the hearing of such summons the judge shall, unless only relates to procedure.
there be good cause to the contrary , order such action
to be tried accordingly . . . . The cause and all T. W . Chitty for the plaintiff.— The present
proceedings therein shall be heard and taken in such statute was passed for the purpose of consolidat
court as if the action had been originally commenced ing and amending County
the County Courts Acts.
in such County Court ; and the costs of the parties in Sect. 26 of the Courts Act 1856
respect
judge of oftheproceedings subsequent
Superior Court shall betoallowed
the order of the
according empowered either party , where the claim was
tothethe scale of costs in use in the County Courts, and reduced by “ payment into court, payment, an
costs of the proceedings previously had in the admitted set-off, or otherwise," within the limit
Superior Court shall be allowed according to the scale of the jurisdiction of the County Courts, to
in use in the latter court. apply for an order for the trial of the cause in a
The County Courts Act 1888 (51 & 52 Vict. County Court. Therefore there was power
c. 43 ) provides as follows: formerly to send the action down for trial in a
Sect. 65. Where in any action of contract brought in County Court when the amount in dispute had
the High Court the claim indorsed on the writ does not been reduced within the limit by payment after
exceed one hundred pounds, or where such claim , action brought. The Legislature intended to
though it originally exceeded one hundred pounds, is preserve that power in the County Courts Act
reduced by payment, an admitted set-off, or otherwise,
to a sam not exceeding one hundred pounds, it shall be 1888, which enlarges the jurisdiction of the
lawful for either party to the action at any time, if the
whole or part of the demand of the plaintiff be con
County Courts. Sect. 65 of the present Act
tested , to apply to a judge of the High Court at
allows “ either party ” to apply " at any time"
ambers to order sach action to be tried in any court
where the claim is reduced by payment, an
in which the action might have been commenced , or in admitted set-off, or otherwise, to a sum not
any court convenient thereto ; and on the hearing of exceeding 1001., to have an action sent down from
the application the judge shall, unless there is good the High Court for trial. If the narrower
to be tried
canse to the contrary, order such action proceedings construction of the section be adopted the result
accordingly ; . . . The action and all will be that cases which could have been sent
therein shall be tried and taken in such court as if the for trial under sect. 26 of the Act of 1856 cannot
action had been originally commenced therein ; and the
costs of the parties in respect of proceedings subsequent now be sent to the County Court. [WILLS, J.
to the order of the judge of the High Court shall be Was it not held in the case of Walesby v. Goulston
allowed according to the scale of costs for the time (14 L . T . Rep. N . S. 662 ; L . Rep . 1 C . P. 567),
being in use in the County Courts, and the costs of the that the words “ admitted set-off," as used in the
order and all proceedings previously thereto shall be County Courts Act 1856,meant a set-off admitted
allowed according to the scale of costs for the time
being in use in the Supreme Court. before action brought ? ] That case was decided
R . F. Colam for the defendant. The words on sect. 24 of the Act of 1856 , which gave the
used in sect. 65 of the County Courts Act 1888 County Court jurisdiction to try actions where
are identical with those used in sect. 7 of the the claim consisted of a balance not exceeding
County Courts Act 1867. The words “ where 501. after an admitted set-off of any debt claimed
such claim is reduced by payment, an admitted | by the defendant from the plaintiff. The courts
set-off, or otherwise," have been construed by have decided , in the cases of Lewis v. Lewis (57
the Court of Appeal in Foster v. Usherwood (37 L . T. Rep . N . S . 715 ; 20 Q . B . Div. 56 ) and Gray
L . T . Rep . N . S . 389 ; 3 Ex. Div. 1), following the v . Hopper (59 L . T . Rep . N . S . 286 ; 21 Q . B . Div.
case of Osborne v. Homburg (33 L . T. Rep. N . S . | 246 ), that in cases under sect. 26 of the Act of
1856 where payment was made after action
534 ; 1 Ex. Div. 48 ), and it was held in those brought an action was rightly remitted . In the
cases that the word “ payment " applied , in sect. latter case, in the Divisional Court, Lord
7 of the County Conrts Act 1867, only to payment Coleridge, C . J. in his judgment says that the
before action brought, and that where a claim decision in the case of Foster v. Usherrood
had been reduced by payment after action (ubi sup.) " was on a later Act containing different
brought a judge had no jurisdiction under that words, and which had a different object," and
Act to order that the action be tried in a County must therefore be construed differently. That
Court. In the case of Gray v. Hopper (59 L . T. | decision was upheld in the Court of Appeal.
Rep. N . S. 286 ; 21 Q . B . Div. 246) the court had
to deal with sect. 26 of the County Courts Act Colam in reply .
1856 , in which power was given to either party ! WILLS, J.- I regret to say that my learned
to apply , after issue joined , for an order that the brother and I do not agree in this case. I think
cause should be tried in a County Court where that the words of sect.65 of the County Courts
the claim was reduced to a sum not exceeding Act 1888 are practically the sameas the words of
fifty pounds by “ payment into court, payment, another section already construed judicially by
an admitted set-off, or otherwise.” The court the Court of Appeal. In the case of Foster F.
held that the words “ payment into court” | Usherwood (37 L . T . Rep. N . S . 389 ; 3 Es.
showed that the Act contemplated the case of Div . 1) the court held that payment meant
the reduction of the claim by payment after payment before action . I am unable to tell what
action brought. The words " payment into was the ratio decidendi in that case, because it is
court " do not occur in the County Courts Act | not clearly pointed out in any of the judgments
1888, and the court ought to follow the con - of the Lords Justices. It may be that the case
struction placed upon the 7th section of the ' was decided on the ground that the words
CT. OP APP.) HODGSON v . BELL. [CT. OF APP.
“ payment into court " which stood in the earlier | It is impossible to doubt that the object of the
Act were excluded from the Act of 1867. That statute was to provide for trial in the County
omission ought no doubt to have had some effect Courts of many cases which previously would
and entailed a narrower construction of the later have been tried in the High Court, and it is now
Act . It seems to me that, in interpreting an open to either party at any time, if the whole or
Act of Parliament where particular words are part of the plaintiff's demand be contested, to
used in a section , if similar words used in apply to have the action so tried . It was held ,
previous Acts dealing with the same subject have | in a case decided under a section of one of the
received judicial construction by the courts, that earlier statutes, that an action might be remitted
construction should be followed with regard to for trial to the County Court where the amount
the later Act. Whoever framed the section sued for had been reduced within the sum over
which we have to consider in this case knew , or which County Courts have jurisdiction by pay.
ought to have known, the effect of the decisions ment pursuant to a judgment under Order XIV .
of the court in the interpretation of the preceding Therefore it seems to me that the Legislature
Act. The cases of Osborne v. Homburg (33 contemplated sending to the County Courts for
L . T . Rep. N . S. 534 ; 1 Ex. Div. 48) and trial cases where the action has been brought for
Foster v. Usherwood (ubi sup.) were clear in their an amount larger than 1001. and part payment
effect , and it is hardly to be supposed that those has been made reducing the claim within 1001.
decisions, or the decision in the more recent case after action brought. That being so, and the Act
of Gray v . Hopper (59 L . T . Rep . N . S . 286 ; 21 giving either party power to make this applica
Q . B . Div. 246 ), which was determined twomonths tion at any time, it becomes necessary to
before the passing of the present County Courts consider what time was intended . I feel assured
Act, could have escaped the attention of the that the enactment provides for applications
Legislature. I think that the deliberate adoption after an action has been commenced , and also
in this Act of a form of expression which had applies to payment after action . There is
been used in a previous enactment passed in pari nothing improbable in the supposition that the
materiá , and which had received judicial construc Legislature intended to introduce trials in the
tion , is , to say the least, a strong argument to County Court of actions in which sums are
prove that the Legislature intended that the claimed which are beyond the limit of the County
same meaning should be given to the new Court jurisdiction , although such sums should
statute. Mr. Chitty's argument requires us to not be reduced by payment within that limit
change the order in which the words stand in | until after action brought. As I have already
this section . The condition which gives the said , I feel myself free to construe to the best of
High Court power to order that an action may my judgment this section of the Act, and I think
be tried in a County Court is expressed in the that the statute would be reduced to a nullity if
earlier part of sect. 65 in the following words : its operation were limited to cases where pay
“ Where such claim , though it originally exceeded ment is made before action . The section
1001., is reduced by payment, an admitted set-off, commences : “ Where in any action of contract
or otherwise,” to a sum not exceeding 1001. That | brought in the High Court the claim indorsed
expression, as I have said,;has been judicially on the writ does not exceed one bundred pounds,
construed. Then , that condition having been or where such claim " is reduced by payment.
fulfilled , the section proceeds to enact that either Those words seem to me to contemplate some
party at any time may apply to a judge for an thing to be done after the issue of the writ. No
order that the action may be sent down for trial doubt that argument might have been urged in
in any court in which it might have been cases under the earlier Act, but it appears to
commenced . This provision does not, in my me to be the natural construction of this section ,
mind, alter the elements of the condition pre whatever construction it may have been necessary
viously mentioned . I am of opinion , therefore, to place upon the earlier Acts. The plaintiff in
that the order of themaster should not stand,but, this case brought his action in the High Court
as my learned brother is of a contrary opinion , I and claimed, by specially indorsed writ, to recover
withdraw my judgment. 1721. Upon an application under Order XIV .
DENMAN, J. - It is with regret that I differ the master ordered payment of 1001. to the
from my learned brother. The grounds upon plaintiff, and a balance of 721. was thus left.
which I base my opinion that the court is atlarge, That balance might have been five or ten
unfettered by any previous decision , to construe shillings instead of 721., and can it be said that
this enactment have been referred to by the the Legislature intended that the plaintiff
court in the case of Gray v . Hopper (59 L . T . Rep . should not have the right to try an action for so
N . S. 286 ; 21 Q . B . Div. 246 ). In that case the small a balance in the County Court ? I think
judges hoth in the Divisional Court and the that thewords “ at any time " were inserted for
Court of Appeal considered that they were at the purpose of enabling a plaintiff who had
liberty, where there had been an alteration rightly brought his action in the High Court to
in the language of a statute dealing with the have that action tried under proper circumstances
same subject-matter as a previous enactment in the County Court. I think that the master
which had received judicial construction , to was right, and that this appeal must be dis
interpret the later statute in a different manner. missed . Appeal dismissed .
I am not pressed by the consideration that the Feb . 19. - From this judgment the defendant
language of the County Courts Act 1867, which appealed .
has been interpreted by the Court of Appeal, is R . F. Colam for the defendant.
in great part like, and indeed almost identical T. W . Chitty for the plaintiff.
with , the words in the present section . A
material alteration of the law has been intro- Lord COLERIDGE, C .J, - It seems to me to be
duced into the 65th section of the present Act. i quite clear that this appealmust be allowed. The
CT. OF APP. ] HODGSON v. Bell. [CT. OP APP.
short reason is that, on comparing the respective there had not been a section dealing with the
wording of the two sections, under which prior same subject in a previous Act, and containing
to the County Courts Act 1888 actions were express mention of payment into court, the words
remitted to the County Court, with the wording “ by payment, an admitted set-off, or otherwise,"
of the section of the Act of 1888, under which were words that meant payment before action.
actions are now to be remitted , it is apparent The fact that the words “ payment into court”
that the Legislature have adopted the phrase had been used in the earlier Act and were left
ology used in one of the former sections, which out of the later Act was an additional reason for
had been judicially interpreted in one way, adopting that conclusion . Those were the two
rather than the phraseology used in the other reasons upon which the decision in Foster v.
of the former sections, which had been held Usherwood proceeded . Then an Act is passed in
to have a different meaning . Under both pari materia with the Act that had been con
those sections- sect. 26 of the County Courts strued in Foster v . Usherwood , and that Act uses
Act 1856 and sect. 7 of the County Courts precisely the same words as those which had been
Act 1867 — the action must have been one of con judicially interpreted by the decision under the
tract, and the claim indorsed on the writ must preceding Act. Is there any rule of construc
not have exceeded 501., or must havebeen reduced | tion more clearly established than this, that,
to a sum not exceeding 501. In each case the where words are used in a statute that have
elements are given of what, for the purposes of been already used in an earlier statute dealing
the section , constitutes the reduction of a sum with the same subject, they are to be construed
originally beyond the County Court jurisdiction in accordance with the decisions upon the earlier
to the limits that bring it within the County statute, unless other words are used which show
Court jurisdiction . One section , in describing plainly that the Legislature intended them to
what reduction of the originalsum to the County have a different meaningſ? It has been argued
Court limit is intended , uses the words “ by pay. that other words are used in a subsequent part of
ment, an admitted set-off , or otherwise ;" and this section which make it reasonable to depart
under that section this court has held that the from the construction that the words in question
reduction must be made by payment before have received in previous cases, and, in support
action brought. The other section uses the words of that, reliance is placed upon the provision
“ by payment into court, payment, an admitted in the section that the application to remit may
set-off, or otherwise.” Payment into court can be made " at any time;" but I do not think that
only be after action brought. Therefore, under those words have the effect that has been sug.
that section , it was held by the Queen 's Bench gested. Another argument that was pressed
Division, and affirmed by this court, that the upon us was, that everyone knows that it was the
reduction might be by a payment after action intention of the Legislature to extend the power
brought. At the time that the Act of 1888 was of remitting actions to the County Court. I do
passed those decisions on the two sections were in not know that it was the intention of the Legis
existence, and were plainly consistent with each lature to do so, nor must it necessarily be a
other ; and the Legislature, in the section which desirable thing to do.
is to replace those two sections, leaves vut the FRY, L .J.- I am of the same opinion . In point
words "ofby the other into
payment court,"
section adopts the
“ byandpayment, of fact, this case appears to me to be almost
an unarguable after the decision in Foster v. Usher.
admitted set-off, or otherwise.” It must be sup. wood (ubi sup.). At the time that the present
posed that the Legislature left out those words Act was passed two sections of two previous Acts
* by payment into court” intentionally, and with were in existence, dealing with the samesubject,
the knowledgeof the legal consequences of leaving but using two different sets of words, upon each
them out. Mr. Chitty argues that, as the of which set of words there had been judicial
present section allows the application to be made decisions. The Legislature deliberately chose
at any time," that shows that the intention was that set of words which had been held to mean
that the amount might be reduced after action that an action could not be remitted where the
brought. But I do not think that we can have amount was brought within the limit of the
regard to that argument when we have the facts County Court jurisdiction only by a payment
that a governing word existed in the section of after action brought. Under those circum
the first Act, that it was left out in the corre stances it seems to me impossible for us to give
sponding section of the second Act, that there these words a different meaning to that which
was then a decision as to the consequence of they had been held to have in the previous Act.
leaving out that word, and that the word was Appealallowed.
subsequently left out in the corresponding Solicitors for the plaintiff, Stocken and Jupp,
section of the present Act.
Lord ESHER , M . R .-- In sect. 26 of the County agents for Walter A. Lomer and Son , Southamp
Courts Act 1856 the material words for the tonSolicitors .
for the defendant, John Cotton and
present purpose are, " Where such claim . . . Son .
is reduced by payment into court, payment, an
admitted set-off, or otherwise." Therefore, in
that section , " payment into court ” and “ pay
ment ” were used as two separate descriptions,
and meant different things. Payment must
therefore have meant payment before action .
Then in the subsequent Act of 1867 the words
" payment into court” are left out. Upon that
section the case of Foster v . Usherwood (ubi sup.)
was decided, in which it was held that, even if i
CT. OF APP.) Re WEBBER ; Ex parte WEBBER. [CT. OF APP.
Friday, Dec. 20, 1889. County Court, the Court of Appeal is Cave, Ji's
(Before Lord ESHER, M .R ., LINDLEY and LOPES, court, and rule 2 , therefore, gives Cave, J. power
L .JJ.) to direct notice to be served upon any person .
Re WEBBER ; Ex parte WEBBER.(a ) Can we say that Cave, J. ought not to make a
Bankruptcy - Practice - Appeal against receiving rule of practice for his own court, that in all
order - Service of notice of appeal on official cases of appeals from receiving orders the official
receiver . receiver is to be served ? I think that the official
receiver is certainly a person affected by such an
Upon an appeal by a debtor to a divisional court appeal, whether he is or is not “ directly affected ”
sitting in bankruptcy from a receiving order by it. Cave, J. has convinced me that the rule
mude in a County Court, and upon an appeal is a very wise and right one. I have no doubt
by a debtor to the Court of Appeal from a that the Divisional Court might have gone on to
receiving order made in the High Court, service hear the appeal, notwithstanding that the rule
of notice of appeal on the official receiver, within of practice in that court had not been complied
the time limited for service on the petitioning with . But the court declined to do that. Now
creditor, is essential, whether there has or has not the refusal to grant an indulgence, when a rule
been a stay of proceedings on the receiving order has been broken , is certainly a matter of dis
pending the appeal. cretion. Therefore we cannot say that the
ORIGINAL MOTION . Divisional Court were bound to hear the appeal.
This was an application for leave to appeal from Then comes the question whether we should give
the refusal of a divisional court to hear an appeal the indulgence that the Divisional Court refused .
bya debtor against a receiving order made in the This court is not bound, in the exercise of its
County Court. discretion, by what the Divisional Court has
The application for leave to appeal had been done; but I think that the debtor in this case is a
previously made to the Divisional Court, and had person who should not be indulged . On a former
been refused . occasion we said that we would consider what
The receiving order in question was made on should be the rule as to service of notice on the
the 22nd May 1889. official receiver in the case of appeals to this
Notice of appealwas served on the petitioning court. The opinion that I have expressed upon
creditors on the 11th June. the question whether the rule laid down by
Notice of appeal was served on the official Cave, J. for his court is a good one does not
receiver on the 18th June. bind us to say that such a rule would be a good
It was held by the Divisional Court that, the one for this court also. I was at first rather
official receiver not having been served with alarmed at the idea that notice should be given
notice of the appeal within twenty -one days from to the official receiver in this court in the same
the date of the order , the appeal could not be way as in Cave, J.'s court. I was afraid of what
heard . the expense might be; and I have a great desire
T. C . Hindmarsh for the debtor. that the expenses of litigation in this court
Herbert Reed for the petitioning creditors. should be kept down , and therefore that nothing
Guiry for the official receiver . unnecessary should be done. But on inquiry I
find that the expense of service of notice upon
Lord ESHER, M .R . - In this case the Divisional the official receiver must be very small. Having
Court in Bankruptcy refused to proceed with the heard Cave, J.'s reasons for the rule in his
appeal on the ground that the official receiver court, I have come to the conclusion that it
had not been served with notice of it in accord would be right for this court to have the same
ance with the rule of practice that Cave, J . has rule. Therefore, the rule in future in this court
laid down for the bankruptcy court, which rule will be that, where there is an appealto this court
I understand to be that an appeal from a against a receiving order, notice of that appeal is
receiving order will not be heard unless the notonly to be given to the petitioning creditor,but
official receiver is served with notice of it at the | is at the same time to be given in all cases to the
same time as the petitioning creditor is served . official receiver, whether there has or has not
That rule, I understand from Cave, J., has been been a stay of proceedings. That will make our
laid down by him on grounds of high expediency , l rule the same as the rule in Cave, Ji's court.
and he has the strongest opinion that such a rule But we do not mean , in laying down that rule, in
is necessary. Upon the application to this court any way to alter the rule that we have stated in
other cases, viz., that, although the official
for leave to appeal, it is argued that the Divisional
Court had no power to refuse to hear the appeal, receiver may have been served with notice of the
as there is no rule of court requiring the official
appeal, he ought not to appear unless he has
receiver to be served with notice. Order LVIII., something substantial to say with reference to
r. 2, provides that “ The notice of appeal shall the appeal. If there is something which he
be serred upon ail parties directly affected by thinks the court ought to know , then he is bound
the appeal, and it shall not be necessary to serve to be here. If he does appear when he has
parties not so affected .” Whether the cfficial nothing substantial to say, he will not be allowed
receiver is a person “ directly affected ” within his costs. He ought not to come here and put
that rule is at least doubtful, but I do not think the estate to the expense of his appearance simply
that it is necessary for us to determine whether for the
the purpose of asking for coste. Nor do I
he is so or not; because rule 2 continues, " But think that the rule which we have laid down at
the Court of Appeal may direct notice of the all affects the duty of the official receiver not to
appeal to be served on all or any parties to the be a partisan in the matter, but to see only that
action or other proceeding, or upon any person that which is right is done as regards all parties.
not a party.” In bankruptcy appeals from the I am nf opinion that this appeal must be dis
(@)Reported by ADAM H. BITTLESTON, Esq., Barrister -at-Law . ' missed .
486 - Vol. LXII., X . S.] THE LAW TIMES. ( May 31, 1890.
Chan. Div.] ReWest RIDING OF YORKSHIRE PERMANENT BENEFIT BUILDING SOCIETY. [Cuan. Div.
LINDLEY, L .J. - I am of the same opinion. The or shares should be advanced to any member,
question as to whether an official receiver is a the property should be secured to the society by
party “ directly affected ” within Order LVIII.. way ofmortgage until the amount of such share
r. 2, by an appeal against a receiving order or shares should be repaid " with all fines and
appears to me to be open to some doubt. But other payments in respect thereof ; " (2) that any
being fully alive to the extreme danger of collusive member wishing to redeem could do so by paying
applications to discharge receiving orders, I the amount determined at that date by the tables
entirely concur in the rule which the Master of of the society , together with the full amount
the Rolls has laid down that the official receiver which should then be due from him to the society
is to be served in all cases. In a case of Ex parte for " subscriptions, fines, and other payments;
Harris, we said that the official receiver need not (3 ) that surplus profits, " after providing for all
be served , as proceedings under the receiving liabilities, " should from time to timebe appro
order had been stayed, pending the appeal. But priated equitably and equally between the in
in that case we had sent for the official receiver, vesting and borrowing members ; and (4) that in
and were satisfied that there was no collusion . I the event of the directors determining at a special
quite agree with the rule which the Master of meeting to be held every three years that there
the Rolls has enunciated , and with the reasons was a deficiency of incomeby which the society
which he has given . might be prevented from meeting its anticipated
LOPES, L . J. - Ever since the last occasion on expenditure and liabilities, the amount of such
which this point was raised I have entertained a deficiency should be apportioned by the directors
strong opinion with regard to the expediency of between the investing and borrowing members.
the rule which has now been laid down by the The society got into difficulties, and was being
Master of the Rolls. I think that it is a most wound-up by the court, and although there were
salutary rule, its object being to prevent collusior. no outside creditors, the assets were insufficient
between the debtor and the petitioning creditor to pay investing members in full.
behind the back of the official receiver. The On an application by the liquidator to plase
question whether the official receiver is “ directly adranced members on the list of contributories :
affected ” by the appeal within the meaning of Held , that the “ liabilities " to be provided for under
Order LVIII., r. 2, may be doubtful ; indeed , rule (3) included gums payable to investing
must be doubtful, as the Master of the Rolls and members ; and the same word in rule (4 ) also
Lindley , L .J. have both said so. But, speaking included sums payable to investingmembers, and
for myself, I should have thought that, having that under these rules advanced members were
regard to the fact that the official receiver liable to contribute equally with the intesting
represents the general body of creditors, haring members to any losses, and that an advanced
regard to the duties which he is called upon to member desiring to redeem could do 80 only upon
discharge, and having regard especially to the paying
liability.what was due from him in respect of this
fact that upon an appeal from a receiving order
the very existence of his office is called in question , THESE were two summonses taken out by the
he was a party “ directly affected ” by the appeal. liquidator in the winding-up of the above- named
However that may be, I am of opinion that this society, raising the question of the liability of
appeal should be dismissed . I will only add that I advanced or borrowing members to be settled on
I have no doubt that the Divisional Court could the list of contributories, and the terms on which
have extended the time for serving the official they might redeem their mortgages to the society.
receiver, if they had thought fit to do so ; and The society was established in 1849 under the
that this court could extend the time. Having l provisions of 6 & 7 Will. 4 , c. 32, and had never
regard to the facts which bare been brought been incorporated under the Building Societies
before us on affidavit, I am of opinion that the Act 1874 .
debtor is not entitled to that indulgence. The rules of the society, so far as material to
Appeal dismissed . the present questions, were as follows :
Solicitors : Morice, Toller, and Blakesley, for Rule 2 . Amount and Valueof Shares.
Toller and Roberts , Barnstaple ; Church , Rendell, 1. The amount of each share shall be 1201.
and Co., for A. F. Seldon , Barnstaple. 2. The value of the share of each member at the first
weekly subscription meeting after he shall have joined
the society shall be 601. ; and the valuebeof the same
estimated
share at any subsequent period shall
HIGH COURT OF JUSTICE . according to the tables of this society .
CHANCERY DIVISION . Rule 18 . Security for Money advanced .
1. Whenever the value of a share or shares shall be
Jan . 16, 17, 22, and 23. advanced to any member out of the funds of the
society, parsuant to these rules, the property shall be
(Before Chitty, J.) secured to the society by way of mortgage until the
Re THE WEST RIDING OF YORKSHIRE PERMANENT amount of such share or shares shall be repaid to the
BENEFIT BUILDING SOCIETY. (a ) society, with all fines and other payments in respect
Building society – Winding - up – Advanced thereof, and every such mortgage deed shall be made in
such form and contain all such covenants, clauses , and
members and investing members-- Liability for provisoes, including a power of sale, as are usually
losses — Special contract- Redemption of mort inserted in deeds of the like nature.
gages. Rule 23. Power to redeem .
By the rules of a building society registered under 1. If any member who shall have executed a mortgage
6 87 Will. 4 , c. 32 ,but not incorporated, it was to the society shall be desirous of paying off or re
provided (1) that, whenever the value of a sharedeeming the same, it shall be lawful for him so to do,
y paying to the manager the amount determined at
(a) Reported by G . WELBY KING, Esq ., Barrister-at-Law . I that date or period of his membership by the tables of
May 31, 1890.] THE LAW TIMES . (Vol. LXII., N . 8. - 487
Chan. Div.] Re WEST RIDING OF YORKSHIRE PERMANENT BENEFIT BUILDING SOCIETY. [Chan. Div.
this society , together with the full amount which shall į and subscriptions, as if the society were a going
then be due from him to the society for subscriptions, concern. They referred to
fines , and other payments .
Rule 39. Surplus Profits. Re Doncaster Permanent Building Society , 15 L , T .
1. That the present and future surplus arising from Rep . N . S. 270 ; L . Rep. 3 Eq. 158.
the transactions of the society, after providing for all Romer , Q .C . in reply .
liabilities, shall from time to time be appropriated Chitty, J. (after stating the facts , and saying
equitably and equally between the investing and borrow . that it was clear that advanced members were
ing members, by way of bonus, in proportion to the
number of shares held by each member, and the period not liable to contribute in the absence of special
subscribed for to the society. contract, proceeded) :- Now it is clear under the
3. Nobonus
withdrawn.
to be paid until the share be realised or 39th rule that, when there is a profit, the pro
portion of profit is credited to the investing
Rule 40. Deficiency of Income.
: 1. The directors shall, every three years at least, take member,and it is also credited to the advanced
member. The effect of crediting it to the in
nto consideration the general affairs, and the gross
receipts and expenditure of the society , at special vesting member is that, supposing there are no
subsequent losses,with which I will deal presently ,
meetings of their body to be called for that purpose by
the manager, and if they shall determine at such special he will in a shorter period of time, or with a
meeting that there is a deficienry of income, by which payment of less money with his own hand, have
the society may be prevented from meeting its anti made up the amount of his share, and so the
cipated expenditure and liabilities, the amount of such advanced member, who is paying his subscriptions
deficiency shall be equitably and equally apportioned
by the directors between the investing and borrowing in reference to his mortgage deed , is from time
members, and shall be paid by them severally and res to time being relieved , by the credit which is
pectively forthwith , or by such monthly or quarterly being given to his account, pro tanto of the pay
instalments as the directors shall determine, and if the ments or repayments that he has to make.
same shall not be paid accordingly, every member who Under this 39th rule no bonus or share of profits
makes default shall pay the same fines as for an equal
amount of subscriptions or repayments in arrear as the withdrawn.can be paid until the share is realised or
case may be. “ Realisation ” is not an improper
The proviso for redemption in mortgages by term . It means when the investing member's
advanced members to the society was, upon pay share has been fully paid up ; and “ withdrawn "
ment to the society of “ all subscriptions and applies to the usual case, which is provided for
these rules, of members being permitted , on
moneys which by the society's rules for the time by
being should from time to time become payable certain terms to withdraw . Now I will read the
earlier parts of the 39th rule , with a view to
in respect of the said shares. ”
The society sustained losses amounting to ascertaining its meaning. [ His Lordship then
nearly 10,0001., owing to the defalcations of its surplus read the rule, and continued :] The surplus is the
secretary and manager, and at a special meeting society," "that arising from the transactions of the
of the directors in Nov. 1887, when a balance providing for allis,theallliabilities." the transactions, “ after
sheet showing the amount of the society's losses clearly include the liability toThethe “ liabilities "
investing
was laid before the meeting , it was resolved to members. The balance -sheets, of which
wind -up the society . In Dec. 1887 a compulsory are many specimens in the book which hasthere
order to wind -up the society was made, and an handed up to me, appear to me to state been the
official liquidator appointed .
The present summonses, which were taken out account of liabilities and assets correctly , and
in accordance with the rule. The first liability
as test cases, were adjourned into court. The that I always find entered is, “ value of shares
assets were insufficient to pay the investing not advanced upon ," and that is right, and that
members the full amount or value of their shares
standing to their credit in the books of the is, as I think, in accordance with this 39th rule .
society, and the question argued was,whether the course, It is a liability that has to be met. Then , of
advanced or borrowing members were liable to put in the statement of liabilities, nothing is
contribute to the loss which would otherwise fall down in respect of advanced members. Why ?
on the investing members alone. Because the advanced members have had their
share, and all they are doing is to make good the
Romer, Q .C . and W . Baker, for the official amounts which , according to the rules of the
liquidator, contended that, although advanced society,running
or borrowing members were not in the absence sheets they havedownto pay.
to 1886AndI in
findtheplaced
balanceon
of special contract bound to contribute (Brownlie the side of liabilities “ profits due to members.”
v. Russell,48 L . T. Rep. N . S. 881; 8 App.Cas. 235; That, of course, is not attributing the profits
Tosi y. North British Building Society 11 App. rateably among the particular members entitled ,
Cas. 489),andrulesthe 39factandthat40 noconstituted
contract, a special
apportionment had | but it is taking the gross sum which is treated as
been made by the directors, and that they had thereto. and a liability,
I
a liability to themembers entitled
have no hesitation in saying
not determined that there was a deficiency of under this 39th rule, in estimating profitsthat,
the
income, was immaterial. sums payable to investing members must be
Byrne, Q .C., Wurtzburg, and T. B. Napier, for treated as liabilities. If the 39th rule stood
an advanced or borrowingmember, and a member | alone, it is plain that the advanced members
seeking to redeem , argued that rules 39 and 40 would not be liable,because, in such a society as
did not constitute a contract between the two this, clauses for division of profit are not sufficient
classes ofmembers to contribute to losses inter se ; to establish the liability of advanced members.
that rule 40 applied only while the society was a The 40tb rule is an important one. It must be
going concern ,and not when it was in liquidation ; , read in connection with the 39th for the proper
and that advanced members were entitled to understanding of its terms, which are not ex
redeem upon payment of all instalments, fines, pressed with the care and exactness that could be
488 — Vol. LXII., N . 8.] THE LAW TIMES . (May 31, 1890.
Chan . Div .] Re WEST RIDING OF YORKSHIRE PERMANENT BENEFIT BUILDING SOCIETY. [Chan. Div.
desired . [His Lordship then read rule 40 , and borrowing members, as well as the investing
continued :] I bare heard an argumentcriticising members, is enforceable in the same way as
the language of that rule, as to what is meant ordinary subscriptions are, with a fine for de
by the “ deficiency of income,” by which the fault. Therefore I come to the conclusion,
society may be prevented from meeting its " antici subject to the further argument which I have to
pated expenditure and liabilities.” Some part of deal with , that the liquidator is right in his
the argument I had a difficulty in following on contention , and that the borrowing members are
the term " inconie.” It seemed at one time that liable to contribute in favour of the investing
counsel was trying to advance the proposition members to the loss which otherwise would fall
that “ income" here meant something which was solely on the investing members. But there is
distinguished from “ capital.” There is no con the further point which is this : It is said that
trast in this clause between “ income" and the clause has no operation under a winding-up ;
“ capital.” “ Income" heremeans all that comes that it is the directors, and the directors only,
in . And that is so from the very nature of these that can ascertain this loss, and that unless they
societies. What is coming in from time to time do so there is no liability. I have had to deal
are the subscriptions. The subscriptions, if an with a somewhat similar case in the Albion
actuary were to analyse them , would be found Building Society . The point really is whether
to consist of principal and interest ; but that is the substance of the clause is not to impose the
only in the calculation, and the interest does not liability , and whether the bringing in of the
appear. There is no distinction here to be found directors is notmere machinery to ascertain the
as between capital and income, which of course amount of the loss, and to distribute it propor
does exist in companies under the Limited tio nately and rateably among the persons liable
Liability Acts, where there is a fixed capital. to contribute. I have put illustrations which I
I therefore hold that “ income” includes, for haveused before. If there is a trust fund which
instance, repayments by advanced members, is to be divided between A ., B ., and C ., in such
moneys borrowed from outsiders, wbo are com shares as a third person sball determine, and the
monly called in these societies depositors , and in third person dies , or will not determine, A ., B .,
fact everything that comes in . Then , acknow and C . do not lose their rights. It is not said
ledging,as I do , that there is some defect in the that they are to take in equal shares, but it has
expression, I think it would also include any been decided over and over again that the court
money that they may bave in band. That is to will divide, and divide it of course equally
say, the rule runs thus : that the directors are to between the three. So in cases of contract, to
say that there is a deficiency of income, but that take a common case, if there is a stipulation
is not intended , because it immediately after- i that fixtures shall be taken at their fair value,
wards says “ a deficiency of income by which the and the contract goes on to proride that some
society may be prevented from meeting its auctioneer named shall ascertain the value, if
anticipated expenditure and liabilities ;" that is | the auctioneer named refuses to act, still the
to say, the liabilities that may be running off for purcbaser has to pay for the fixtures according
the next three years or so , because the meetings to their fair value, which must be ascertained by
must be beld at least once within the period of the court in the best manner that it can. There
three years. They are to find out in factwhether | are other cases of contract, where everything is
there is a loss. The " liabilities ” in this clause left to the discretion of the person who has to
means the same as " liabilities " in the 39th , and decide; for instance, “ such sum , if any, as Mr. A .
includes the liability to the investing members. shall determine," if Mr. A . will not undertake it,
I am not bound to put an exactmeaning on every and there is no other clause, there is no liability.
word , but I take it " anticipated ” means antici On the principles on which the cases which I have
pated within the triennial period , or the shorter given by wayofillustration havebeen determined ,
period as the case may be ; and assuming that it appears that there is a substantive agreement
* anticipated " is the adjective that applies to between themembers in this case for contribution .
“ liabilities," and that " liabilities ” does not I will deal very shortly with the language of
stand alone, still there would be the same result. rule 40 upon this point. The clause opens with :
The directors would say that, according to the “ The directors shall ” – it is obligatory upon
course of events within the period that has to them . They must do it . It is not a mere power,
run before the next taking of a similar account, and they, being the officers of the society,
they can anticipate that such and such liabilities, unquestionably would bethought to bethe proper
among others the liabilities ofmaking repayments persons to determine, and therefore, as the
to the investing members, will arise, and it is for directors were bound to do it, everyone of those
these anticipated repayments, amongst other interested in the question would be in a position
things, that they have to take this account, and to require the directors to perform this duty . It
that they hare to balance the income, in the is a duty which must be done. Then the clause
large sense in which it is here used , as against does not leave it to their individual discretion ,
the probable liabilities or payments that they but it lays down in clear termswhat is to be done,
have to make. This loss, which it appears to me viz ., that by comparing certain things the loss is
does include any loss which arises whereby the to be ascertained , and that loss, when ascertained
assets will be insufficient for the payment of the as a mere matter of computation , is to be appor.
investing members, is, upon the plain terms of tioned fairly among the persons liable to con
the rule, to be borne, not by the investing tribute. I think therefore that the court can ,
members alone, but by the borrowing members now that there is a winding-up, apportion the
also, and it is to be “ equitably and equally " | liability . The directors are functi officio, and if
apportioned between these two sets ofmembers. they were asked would not desire to act in this
The language, I think, is quite plain , and the role | case. There was no triennial meeting called for
goes on to say, that this liability as against the more than three years before the winding-up,
May 31, 1890.) Â₂Ò₂Â₂/§₂\\₂\ē/₂/₂/₂₂ [Vol. LXII., N . 8.- 489
Chan . Div.] Re CrawsAAY ; CRAWSNAY v. CRAWSHAY. [CHAN . Div.
subject to this observation , that on Nov. 21, 1887, 1 Halifax ; Ford and Ford , for C . T. Rhodes,
which was just before the winding-up, a special | Halifax ; Emmet, Son , and Stubbs, for E . M .
meeting was called , and, as I read the minutes, Wavell, Halifax.
it was a specialmeeting under the first part of
the rule, to take into consideration the general
affairs, and the gross receipts and expenditure of Jan . 22 and 23.
the society . I have not because it is not in (Before NORTH , J.)
evidence — the notice calling the meeting ; but I Re CRAWSHAY ; CRAWSHAY v. CRAWSHAY. (a )
have the minutes of the meeting, which was a
special meeting, as is shown in the minute-book,
and the minutes disclose what took place. [His
Power of appointment -- Validity of exercise -
Special power - Fraud on power - Appointment
Lordship stated the facts as to this meeting from to object of power with directions for settlement
theminute-book and continued :) So that, if there - Appointment of “ residue " to object of power
be anything in this point with regard to the - Absolute appointment — Trust for persons not
directors , as a matter of fact, there is at any rate objects of power .
this : the directors were shown a balance-sheet,
which I cannot say they approved , but which did | A power
testator, having under a settlementmade in 1828
to appoint by will to and among his
show a deficiency which is somewhere aboutthe children a sum of 35 ,0001., by his will made in
deficiency which has really occurred . At any 1865 bequeathed 150 ,0001. to his daughter Jessy ,
rate there is this result : that the directors did and directed that this legacy should be paid to
not perform this duty which is imposed upon four trustees named in the will, and should be
them of holding a meeting at least once in three
years. It looks as if they held a meeting on this , with by
held them upon trust for her during her life,
remainder to her issue. And the testator,
occasion for the very purpose of finding out by virtue and in exercise of the power contained
whether there was a deficiency , and then said ,
instead of determining it, “ We will leave this in the settlement, appointed 10,0001. part of the
question to be settled by the court.” But the 35,0001. to the same daughter, and directed that
point of the observation is, that the full three the sanze should be paid to the four trustees
years, the utmost time allowed , had elapsed and before named, with reference to the legacy of
150, 0001., and should be held by them upon the
the directors had not ascertained the deficiency trusts thereinbefore declared thereof. The testator
of income. It appears to me that it is not like then appointed two sums of 10,0001. and 70001.
the case, which may be distinguishable, where respectively in favour of two other daughters,
the period had not elapsed and there was some and he appointed the residue of the 35,0001. to
thing to be done in future by the directors. The his son Robert absolutely. And in case he had
result is, that it is plain to my mind that the liqui
dator is substantially right, and that there is the exceeded his power in not appointing the 10 ,0001.
to his daughter Jessy unconditionally, but in
liability which is claimed against the advanced directing the settlement thereof; and in case his
members. Then another question raised before said daughter, or her husband, or others having
me is this : The advanced or borrowing members any right or power to object to the settlement
are prepared now to pay off everything that can thereof as aforesaid , should so object, or should
be claimed under their security, subject to this, not confirm such settlement if required so to do,then
that the liquidator says, that the just proportion he appointed that the said sum of 10,0001. should
ofthe loss to which the advanced or borrowing go and belong to his son Robert, - but who will,
member has to contribute is also included in the I am assured , settle the same voluntarily in the
security ; and that, in argument, is denied on the manner in which I have attempted to settle the
part of the borrowing member . The 18th rule same as aforesaid , so as thereby to carry out
appears to me to put an end to the question , and my wishes." There was no evidence (other than
themortgage deed is in conformity with this rule. the will itself ) of any bargain between the son
That throws upon the security , not only the and the testator that the former would settle the
repayment of the shares, and all fines, but other 10 ,0001.
payments, as it is called, in respect thereof — Held, that the appointment of the 10,0001. in favour
" other payments incurred . " The grammar is of Jessy was invalid .
not perfect, because it is not easy to say gramma. Held also, that there being no evidence of any
tically what is a payment “ incurred ," but the bargain by the son that he would settle the sun
meaning is plain . The liability to a payment is of 10,0001., that sum passed to him absolutely free
incurred . Now the liability to makethis payment from any obligation to settle it, and was there
has accrued at the time when the borrowing fore validly appointed .
member seeks to redeem , and therefore is included Ré Marsden's Trust (33 L. T. Rep. 0 . S. 271;
within the security , and consequently he cannot 4 Drew . 594 ) commented on .
redeem until this payment ismade. The amount
ofthe “ payment " has not yet been ascertained ; ORIGINATING SUMMONS.
This was an originating summons by the
but the rule Certum est quod certum reddi potest
would apply , and it is a mere misfortune, inevit. trustees of a sum of 10,0001. appointed by the
ably arising in such cases as these, that the will of William Crawshay, to determine the
amount has not been ascertained . Theoretically question whether that sum had been validly
it could be ascertained at this moment ; but appointed by the will.
practically I am afraid that is not the case. By a voluntary settlementmade on the 7th Aug .
Consequently I hold , as a matter ofright, that 1828 , a sum of 35,0001. secured by a bond of the
the borrowing member, the mortgagor, cannot testator payable within six months after his
redeem except upon payment of his share of death to the trustees of the settlementwas vested
loss. in them , upon trust that they should pay, assign ,
Solicitors : Burn and Berridge,for J. R . Farrar, (a) Reported by G . E. JEFFERY, Esq., Barrister-at-Law
490 _ Vol, LXII., N . S.] THE LAW TIMES. (May 31, 1890.
Chan . Div . ] Re CRAWSHAY ; CRAWSHAY v. CRAWSHAY. [Chan. Div .
and transfer the same unto, between, or amongst confirm such settlement thereof if required so to do,
all and every, or any such one or more of seven | then I appoint that the said sums of 10 ,0001., 10,000...
named children of the testator (three of whom said and 70002. respectively shall also go and belong to my
were respectively named Amelia , Jessy , and I am son Robert T . Crawshay absolutely, but who will,
assured, settle the same volantarily in the manner
Annette), as the testator should by deed or will in which I have attempted to settle the same as afore
appoint, and in default of appointment, and said , so as thereby to carry out my wishes.
subject thereto , in trust for the seven children in On the 7th Nov . 1867 Robert T . Crawshay
equal shares as therein mentioned . The settle executed a declaration of trust of the 10,0002.
ment contained a hotchpot clause in the usual appointed to Jessy, to carry out the testator's
form . wishes. Jessy Crawshay (who survived her hus
In Oct. 1849 the testator's daughter Jessy band) by her will, dated the 29th Jan . 1885, pro
intermarried with Alfred Crawshay, her cousin, fessedly in exercise of the powers of appointment
and by the settlement made on her marriage, conferred on her by the will of the testator with
dated the 17th Oct. 1849, she assigned all her regard to the legacy of 150 ,0001., and the sum of
interest in the sum of 35,000i. to the trustees of 10,0001. appointed by his will to her as aforesaid .
her settlement, to be held by them upon the trusts appointed various sums to her children (one of
therein declared . whom was Jessy Sandeman ) and their issue.
By his will, dated the 21stOct . 1865, the testator And the testatrix declared that any child or
bequeathed the sum of 150,0001. Consols to his grandchild of hers who might object to or try to
daughter Jessy , and he directed that that legacy defeat the exercise of the powers of appointment
should be paid or transferred to four persons and other the provisions and intentions of her
who were named in the will as trustees, or the will should forfeit all benefits conferred on him
survivors or survivor of them , and that it should or her by the will, and that every appointment or
be held by them upon trust as to the income bequest made to him or her , or for his or her
thereof for his daughter Jessy during her life, benefit, should for this purpose be considered
for her separate use, without power of anticipa | as having been made to her daughter Jessy
tion ; and after her death upon trust as to the Sandeman .
principal for her children or remoter issue as she | The testatrix died on the 17th July 1889.
should by deed or will appoint, and in default of The defendants to the summons were the
such appointment, and subject thereto, upon trust trustees of the settlement of the 17th Oct. 1849,
for her children as therein mentioned ; and in Mrs. Sandeman, the other children of Mrs. Alfred
default of issue the legacy was to be held upon Crawshay, the trustees of their settlements and
trust for such persons as she should by deed or their children . The summons asked for the
will appoint, and in default of and subject to any determinaticn of the following questions : (1)
such appointment the same was to devolve and Whether the trustees of the settlement of 1849
belong to her then next of kin, exclusively of any were entitled to have the sumor transferred
of 10,0001. appointed
to them .
husband. The testator gave a similar legacy in to Jessy Sandeman paid
the same way to his daughter Amelia. The will (2) Whether the plaintiffs held that sum upon the
contained a recital thatby the settlement of Aug. trusts declared by the will of William Crawshay
1828 the testator had power to appoint by his as well as the declaration of trust dated the
will the sum of 35,0001. to or amongst any one or 7th Nov. 1867, executed by Robert T. Crawshay.
court.
more of his children as therein mentioned . The
will also contained the following provision :
The summons was
Bramwell Reginald into
Davis andadjourned Winslow for the
Now , therefore,my will is, and by virtue of the said | plaintiffs .
power and of every or any other power enabling me in Seward Brice, Q .C . and R . F . Norton for Jessy
that behalf, I appoint that the sum of 10,0001., part of Sandeman.
the said last mentioned sum , shall go and belong to my Crawshay is--byThe only appointment to Jessy
means of the direction to settle
daughter Amelia, the sum of 10,0001., further part
thereof, shall go and belong to my daughter Jessy, and the fund, and that is bad because it is in excess of
the sum of 70001., further part thereof, shall go and the power ; consequently the appointment to
belong to mydaughter Annette,but mywill is that, as to Robert T. Crawshay takes effect. The addition
the two first mentioned sums of 10,0001, and 10,0001., of
the same shall be paid to the respective trustees herein . the the words, “ who will, I am assured , settle
same voluntarily," does not invalidate the
before named and appointed with reference to the
legacies hereinbefore bequeathed to them my said two appointment. Those words do not show any
daughters respectively, and be held upon the trusts and bargain between the testator and Robert T .
for the intents and purposes hereinbefore declared of Crawshay that the latter should settle the
and concerning those legacies. fund, nor is there any evidence of any such s
The testator then directed that the sum of í bargain , or that Robert T. Crawshay accepted
70001. appointed to his daughter Annette should any trust :
be paid to trustees to be named by his execu Blacket v. Lamb, 14 Beav. 482.
tors, and be settled and held upon the trusts If, however, the appointment to Jessy and the
therein mentioned . And the testator continued appointment to Robert are both bad, the 10 .0001
as follows: goes to Robert under the appointment of the
And as to the residue of the said sum of 35,0001. I residue of the 35,0001. to him . The testator has
appoint and declare that the same shall go and belong shown an intention to appoint the whole of the
to my son Robert T . Crawshay, his executors, adminis
trators, and assigns, absolutely ; and in case I have 35,0001. v. Clement, 44 L. T. Rep . N . S. 398 ; 18 Ch.
exceeded my power in not appointing the said sums of Freme
10,0001., 10,0001., and 70001. respectively asbut
unconditionally, in Div. 499 ;
directing the settlement thereof afore Carter v. Taggart, 16 Sim . 423 ;
said ; and in case my said daughters Amelia , Jessy , and
Annette respectively, or their respective husbands, or
Champney
Div . 949 ;
v. Davy, 40 L. T. Rep. N . S. 189 ; 11 Ch.
others having any right or power to object to thesettle
ment thereof as aforesaid , shall so object, or shall not
Re28 Turner's Settled Estates, 52 L. T. Rep . N . 8. 70
Ch . Div. 205 ;
CHAN. Div .] Re CRAWSHAY; CRAWSHAY v. CRAWSHAY. [Chan. Div.
Re Harrie's Trust, Joh. 199, 205 ; NORTH, J. (after reading the provisions of the
Easum v. Appleford, 10 Sim . 274, will above stated down to the absolute appoint
must now be treated as overruled . ment of the residue of the 35,0001. to the son of
Napier -Higgins, Q .C .and P . S. Stokes ; Cozens R . T. Crawshay , and observing that the 35,0001.
Hardy, Q.C .and G . Murray for other defendants was a sum which the testator had bound himself
to pay upon his death , and that therefore it was
in the same interest.
Everitt, Q .C . and J. W . Cunliffe for thetrustees not a fund requiring conversion , or capable
of either increase or reduction, but was a
of Jessy Crawshay's marriage settlement.- The definite sum which would be payable in cash
attempt to impose an obligation on the daughter, sterling at the timeof the appointor's death , that
or to put pressure on her in order to compel her being the date at which the appointment would
to settle the fund, is void : take effect, continued ) : The testator directs
Wallgravev.
313 ;
Tebbs,26 L. T.Rep.O . S. 147 ; 2 K . & J. that the 10 ,0007, which he in the first instance
Tee v. Ferris, 2 K . & J. 357 ; appoints to his daughter Jessy absolutely , shall be
Moss v. Cooper, 1 J. & H . 352'; paid to four special trustees whom he had
Topham v . Duke of Portland, 22 L. T.Rep . N . S. 851 ; appointed in a previous part of the will with
1 . Rep. 5 Ch. 40 ; reference to a legacy of 150,0001. which he had
Rowbotham v. Dunnett, 8 Ch. Div. 430. bequeathed to his daughter Jessy to be held by
(NORTH , J. referred to Lomax v . Ripley, 24 L . T. them upon the trusts and for the intents and
Rep. 0 . S. 323 ; 3 Sm . & G . 48 ; Jones v. Badley , purposes which he had already declared of or
L . Rep . 3 Ch. 362.] In cases relating to mort concerning that legacy. Therefore the 10,0001.
main the illegality is created by statute, and it is is to be paid by the executors to the special
necessary , in order to avoid a gift of land which trustees, and not to Jessy at all, and when it is
is absolute in form , to prove an enforceable trust paid to the special trustees it is to be held by
for a charity . The doctrine of fraudulent them upon the same trusts as those declared of
the 150,0001., which include a larger class than
appointments, however, is an equitable doctrine.
The donee of a special power of appointment the settlement of 1828, and powers which are not
has a discretionary trust. When the object of comprised in it . Jessy is not to receive the
an appointment to an object of the power is not money and to proceed to settle it, but the money
ayowed , as it is here, to be made in order to which the testator gives to Jessy he gives to her
benefit persons outside the power, it must be | by means of this direction, that it is to be paid
shown from antecedent circumstances. The object tñ trustees named by him , and to be held by them
here is avowed , and all that is done is mere upon the trusts, & c., thereinbefore declared of
machinery to carry out a fraud on the power. the legacy under which Jessy takes only a life
The daughter takes absolutely , and the attempt interest. Then the testator, after appointing
to compel her to make a settlement fails : 10 ,0001. and 70001. in 2 similar way to two other
Woolridge v. Woolridge. John, 63, 69 ; daughters, appoints that the residue of the
Sadler v . Pratt , 5 Sim . 632 ; 35,0001. shall go and belong to his son Robert
Churchill v. Churchill, 5 Eq. 44 ; Thompson Crawshay absolutely. Now , stopping
Re Marsden's Trusts, 33 L , T. Rep. o . S. 271 ; 4 Drew . there, we have the gift to Jessy followed by a
594, 599. direction that whatever is given to her is to be
The 10.0001.
gift of residue :
does not pass to Robert under the paid to trustees, who are to hold it upon certain
trusts under which her interest is only a limited
Page v.v. Leapingwell,
Petre Petre, 21 L . 18T . Ves.
Rep 463
. o .; s. 136 ; 14 Beav. one ; and, if the will had stopped there, it might
197 ; have been said that, as under the first words of
Wright v. Weston , 26 Beav.429 : the gift Jessy took absolutely subject to the trusts
Wilson v. Kenrick, 31 Ch. Div. 658 , 661 ; afterwards created, if those trusts failed the
Morgan v. Gronow , 28 L . T. Rep . N . S. 434 ; L . Rep . original gift remained untouched , as in Lassence
16 Eq. 1 ; v. Tierney (1 Mac. & G . 551), Carver v. Bowles
Scholfield
Div. 94. v. Spooner,51 L. T. Rep. N . S. 138 ; 26 Ch. (2 R . & M . 304 ), and a great many other similar
Booth v. Alington (28 L . T. Rep. O . S.211 ; 6 De G . cases. But the will does not stop there, for the
testator goes on to say , " and in case I have
M . & G . 613) is distinguishable. In Holyland v. exceeded my power in not appointing ” Jessy ' s
Lewin (51 L . T. Rep. N . S. 114 ; 26 Ch . Div. 267) 10 ,0001. " unconditionally, but in directing the
Freme v . Clement(ubi sup.) was disapproved. settlement thereof as aforesaid .” That shows
E .Wilkinson for the trusteesof Mrs. Sandeman's clearly that he thonght that, in doing what he
settlement. had previously done, he might possibly be held
Brice, Q. C. in reply .- Re Marsden's Trust by construction of law to have exceeded his
(ubi sup .) was a very special case. It was com - | power. In what way ? Because he had not given
mented on by Baggallay, L .J., in Roach v. Trood the 10,0001. to the daughter absolutely free from
(31 L . T . Rep . N . S. 666 ; 3 Ch. Div. 429). any condition . This shows that, in his view at
R . F . Norton was also allowed to reply.-- The any rate, the only gift to her was as part of the
true rule with regard to an absolute appointment arrangement, and for the purpose of the arrange
coupled with a direction to settle is laid down in ment, for effecting a settlement of the 10,0001.,
Pryor v . Pryor ( 10 L . T. Rep. N . S. 364; 2 D . J. & S. and it shows also that, considering there was
205), and by Lord Cranworth in Duke of Portland some doubt as to his power to do what he had
done, he thought it necessary to provide for what
v . Topham (10 L . T . Rep. N . S . 355 ; 11 H . of L . was to be done in case the law should prevent
Cas. 32, 55). Healso referred to what he had already attempted to do from taking
Wright v, Goff, 27 L. T. Rep . 0 . S. 179 ; 22 Beay. effect as he hoped that it would . Then he says,
217 ; “ In case I have exceeded my power in not
Goldsmid v. Goldsmid, 2 Hare, 187 ;
Birley v . Birley, 25 Beav, 299. appointing the fund unconditionally ," in other
Chan. Div .] Re CRAWSHAY; CRAWSHAY v. CRAWSHAY. [Chan . Div .
words, “ If what I have done cannot take effect, ¡ in the 10,0001. I think it is quite clear that she
and the 10 ,0001. is undisposed of, and in case my did not. Then the only question is, whether the
daughters Amelia , Jessy , and Annette respec : 10 ,0001. thus given to Robert is so giren to him
tively, or their respective husbands or others for the purpose of his applying it for the benefit
having any right or power to object to the settle of persons who are not objects of the power that
menu thereof as aforesaid , shall so object, or shall the gift must fail. The phrase, “ who will, I am
not confirm such settlement thereof, if required assured , settle the same voluntarily," is capable
so to do," which comes to this , “ If I have of different meanings. It may mean, “ I feel
exceeded my power, and if, by reason of an certain , not because he has ever said anything
objection on the part of any person entitled to to meor I to him on the subject, but I know that
object, that which I have attempted to do cannot ) is what he will do with it." " That is the natural
be confirmed," then something else is to be done. and simple meaning of the words. But the words
It is quite clear that there cannot even now be " I am assured ” may also mean " heassures me,"
any confirmation by all the persons who would or “ as my solicitor tells me." If the words
be interested in the fund in default of appoint- mean “ as he assures nie," that is, if they show
ment of the disposition by way of settlement that there was a bargain between the two that
previously made. It is true that Jessy Crawshay though this fund was given to Robert absolutely,
did all she could to confirm it, but unluckily she | with a statement that he might settle it volun.
had not an absolute interest. In my opinion the tarily if he chose to do so, and he had really
testator was dealing with failure by reason of | bound himself to settle it according to the
some invalidity in the previous appointment, and testator's wishes,then, in myopinion, the appoint
the absence of confirmation by all persons whose ment would be void . But if, on the other hand,
consent would be necessary to make the appoint the fund is really given , as it purports to be, to
ment valid . He contemplates the possibility that Robert absolutely , not subject to any trust, but
he might not be able to procure a confirmation that he might do what he liked with it , and if the
from every person interested in disputing it, and word “ voluntarily ” is truly used , then, if he
he goes on to deal with the fund in a different does settle it as the testator says he should like
way. If that is so, he says that Jessy 's 10,0001. him to do, and as he endeavoured to do himself,
(as I will call it for brevity ) “ shall also go and that would be an entirely voluntary act on his
belong to my son Robert T . Crawshay abso - part, and the appointment to him would be valid.
lutely.” That is clearly a disposition of the There is no evidence of any conversation , or
10,0001. which he had already appointed in a arrangement, or bargain , or even understanding
way which he now treats as possibly invalid . between the father and son , or that the son bad
Now Robert T. Crawshay was an object of the any knowledge that there was any such provision
power, and , so far as I have yet gone, the gift to | in the will before the will was opened after the
him is clearly good . It is suggested that it is testator's death , and the contents made known to
bad by reason of that which follows, and which I the family. And even if the son did know of the
will consider presently. But pausing at this provision in the will before the testator 's death ,
point, there is a clear gift to him of the 10,0001. yet, unless it was made known to him under
in an event which the testator contemplated as circumstances which showed he had accepted a
possible, and which has actually happened , and, trust, and had bound himself to carry out his
in my opinion , he takes the 10,0001. under that father's wishes, I do not think his knowledge
gift, and notunder the gift of the residue of the would make the gift invalid . In my opinion the
35,0001. I do not think it necessary to consider realmeaning of the words is, not that Robert was
whether, supposing there had been no express bound to settle the fund , but that it was given
gift to Robert T. Crawshay in the event which to him absolutely , and that the testator having
has happened of the 10,0001. settleg upon Jessy, shown what he wished done by trying to do it
and the 70001. settled upon Annette, those sums himself, and having on this hypothesis failed
would , in case the prior disposition thereof had in doing it, left it entirely to the son whether
failed , have passed to Robert under the gift to himhe would or would not settle the fund upon
of the residue of the 35,0001. But, in my opinion , the daughter. In point of fact the son had
he cannot in the event which has happened take settled it , but that is immaterial, yet it was
Jessy 's 10,0001. under the appointment of the absolutely free to him to deal with the fund
residue, because it is clear that the testator did as he pleased . A number of cases havebeen cited ,
not consider that in that event it would go to and one or two of them seem to mematerial. In
him under the gift of residue, for in that par Pryor v. Pryor (ubi sup.) the law was no doubt
ticular event the testator gives the 10,0001. to correctly laid down. Knight-Bruce, L .J. said :
Robert in express words. I hold that the 10,0001. “ The donee of a limited power of appointment
cannot go to Robert as part of the residue of the may well execute it in favour of an object of the
35,0001., there being another express gift of it to power, though he believes and knows that the
him which is inconsistent with its passing under appointee will at once dispose of the property in
the gift of residue. But then arises the question favour of persons who are not objects of the
whether Robert can take the 10,0001. at all by power. But if, besides this belief and knowledge ,
reason of the words which follow . The direction there is a bargain between the appointor and
is, first, that the 10,0001, is to go and belong to appointee that the appointee shall make a dispo
Robert absolutely , and then follow these words, sition in favour of persons not objects of the
“ but who will, I am assured , settle the same power, and the just result of the evidence is that
voluntarily in the manner in which I have the appointment would not have been made bat
attempted to settle the same as aforesaid , so as for the bargain , then the appointment is bad .
thereby to carry outmywishes.” That is entirely The question is, to which of these two classes of
inconsistent with the notion that under the first cases the present case belongs." That is precisely
gift to Jessy she had taken an absolute interest I the question in the present case. The conclusion
May 31, 1890.) THE LAW TIMES. [Vol. LXII., N . 8. - 493
Chan. Div.] Re The EMPIRE MINING COMPANY. [ CHAN . Div.
to which I come upon the will is that which I to have been appointed and giving it to a
have already stated. There is no evidence what- stranger. If an appointment of that kind is
ever , and I have to get as best I can at the inten obtained by means of undue influence, of course
tion of the parties as it is shown upon the face of it cannot stand, and I think that is shown by the
the will. I confess that Re Marsden 's Trusts later cases. That, I think, is the true explanation
(ubi sup.) did appear to meat first to create some of Re Marsden 's Trusts (ubi sup.), and I do not
little difficulty, but I observe that even in that think it is in any way inconsistent with the law
case Kindersley, V .C . said : “ Uniess it can be as stated in Pryor v . Pryor (ubi sup.). The same
shown that the trustee having the discretion " conclusion is , I think, to be drawn from Roach v.
(meaning for this purpose the person having Trood (ubi sup .). I come to the conclusion that
power to appoint), “ exercises the trust corruptly an absolute appointment to Jessy was never
or improperly , or in a manner which is for the made, that the only gift to her was by way of the
purpose not of carrying into effect the trust, but direction that the trustees of the settled fund
defeating the purpose of the trust, the court will were to have the sum appointed to her, and
not control or interfere with the exercise of the upon the same trusts, and that such a settle
discretion. There may be a suspicion that the ment was beyond the power of the testator.
trust has been exercised in a particular manner Under those circumstances it appears to me that
and from a certain motive, which , if it could be it was open to him to appoint the sum of 10,0001.
proved , would be held not to be a proper motive ; absolutely and unconditionally to Robert, and I
but, if it be mere suspicion — though suspicion is think that is what he did, and that the words
ground for jealous investigation - if it be mere which were relied upon as showing that it was
suspicion and not matter amounting to a judicial really appointed to him conditionally do not lead
inference or conviction from the facts , the court to that result, and do not therefore operate to
will not act upon it . But if, on the other hand, make the appointment bad.
to the of the judicial, The order as drawn up declared that the
it can that
mind be proved
the power hassatisfaction
been exercised corruptly plaintiffs held the 10,0001. upon the trusts
or for a purpose which defeats instead of carry . of the declaration of trust executed by Robert
into effect the purpose of the trust, then the T'hompson Crawshay on the 7th Nov. 1867.
court will not permit such an exercise of the Solicitors: A . R . and H . Steele ; Lawrance ,
power to prevail.” Now , in the present case Graham , and Long ; Cunliffes and Davenport ;
there is no evidence to introduce any element
even of suspicion , or indeed anything which is Bell, Broderick , and Gray.
not to be found in the will itself. I have no
materials for coming to the conclusion that the
will is not honestly framed and expressed for the March 1 and 8.
purpose of giving effect to it , and there is nothing
behind it for me to consider. In Re Marsden 's (Before North , J.)
Trusts (ubi sup.) the facts were very peculiar, and Re The EMPIRE Mining Company. (a )
it has been treated by other judges as a some Company - Winding-up - Scheme of arrangement
what exceptional case, and I think it is so for - Sanction of court - Power to compel debenture
this reason : There the mother, who had under holders to surrender security - Joint Stock Com
the settlement a power of appointment among panies Arrangement Act 1870 (33 & 34 Vict.
children , desired to make a provision for the c. 104), s. 2.
father out of a settled fund, bis circumstances The Court has jurisdiction under sect. 2 of the
being such that she thought he ought to be
assisted in that way. Joint Stock Companies Arrangement Act 1870 to
This intention was openly compel secured creditors of a company to surrender
discussed . The father was not an object of the their security andareto“accept shareswithin
in lieuthemean
thereof..
power, and therefore he could not take any part Debenture-holders creditors"
of the settled fund under an appointment. A ing of sect. 2 of the Act.
solicitor was consulted , and he advised that an
appointment could not be made to the father, Petition under the Companies Acts and the Joint
and that project thereupon dropped . An Stock Companies Arrangement Act 1870 to
arrangement was then made between the father obtain the sanction of the court to a scheme of
and the mother that the whole fund should be arrangement between the Empire Mining Com .
appointed by the mother to the eldest child , who pany and its debenture-holders.
was at that timean infant,and who did not require The Empire Company was incorporated on the
any immediate procision to be made for her, with 1st April 1866 under the Companies Acts 1862 to
1883, with a nominal capital of 100 ,00001., divided
this object, that, when the mother was dead, the into
100,000 shares of ll. each . By a special
father might tell the daughter that the whole fund resolution
had been appointed to her under an arrange of the company, passed and confirmed
ment between her father and mother with the on the 27th April 1888 and the 14th May 1888
object of enabling the daughter to provide for respectively, the original capital of the company,
her father. One cannot help seeing what an was, in accordance with the power in that behalf
influence would have been brought to bear upon conferred by the articles of association , increased
the daughter when the father told her that, and to 125 ,0001. by the creation of 25,0001. new shares
that it would be practically impossible that she of 11. each . Of these shares 100 ,300 shares were
should resist doing that which it was the inten issued , and were paid up in full.
tion of her father and mother that she should do, The objects of the company were (inter alia) to
purchase or otherwise acquire and work mines,
and the doing of which , under the influence thus
exercised upon her, would be an entire perver. minerals, and mining rights, including the
sion and misapplication of the fund, taking it | Empire Mining Claim near Marysville, Lewis,
away from the persons in whose favour it ought ! (a) Reported by G . E. JEFFERY, Esq., Barrister-at Law .
494 - Vol. LXII., N .8.] THE LAW TIMES. [May 31, 1890.
Chan. Div.] Re THE EMPIRE MINING COMPANY. [Chan. Div .
and Clarke, county Montana, territory United | each 501. debenture held by him in the Empire
States of America . Shortly after its incorpora Company, and in discharge of all principal and
tion the company purchased and took possession interest due on such debentures, and that the
ofthe Mining Claim and the plant and machinery new company should comply with such request.
belonging to it, and proceeded to work themines. By an agreement dated the 22nd Jan. 1890,
In May 1888 the company issued debentures of and made between the Empire Company and the
501. each to the amount of 25,0001., bearing liquidators of the first part, the new company of
interest at the rate of 101. per cent. per annum . the second part, and E . H . Young, purporting to
At the date of the presentation of the petition contract on behalf of himself and all other the
debentures to the amount of 23,7001, were out debenture-holders of the Empire Company of
standing . By each debenture the company the third part, after reciting the agreement of
charged with the repayment of the principal sum the 31st Dec. 1889, it was agreed that that
of 501. with interest thereon all the under agreement should be carried into effect : that
taking, lands, works, plant, property, and effects, each of the debenture-holders of the Empire
both real and personal, of the company : Company should surrender to the new company
To the intent that this debenture and all other deben to be cancelled the debentures of the Empire
tures forming part of the present issue of 25,0001. may Company held by him or her, and that the new
rank equally as a first charge upon the same under company should allot to him or her fifty fully
taking, lands, works, plant, property, and effects, but paid -up ll. shares in the capital of the new com
so that the same shall be a floating security , and shall pany in respect of and in exchange for each 502.
not be recorded in the registry of the company of Lewis debenture so surrendered by him or her, and he
and Clarke, in the territory of Montana , and shall not
hinder any sale, exchange, lease, or other disposition of or she should accept the same in discharge of all
the said lands, works, plant, and effects, or any part principal money and interest due on the sur
thereof, or any other dealings in the course of the rendered debenture or debentures. The agree
business of the company, but shall attach to the pro ment stated that it was intended to submit the
ceeds of sale or exchange or the lands or other pro arrangement embodied therein to a meeting of
perty , chattels, or effects taken in exchange or pur debenture -holders to be convened by order of
chased with such proceeds, and so that the same shall
be no charge on the ordinary moneys of the company, the High Court pursuant to the powers of the
other than the proceeds of the sale of any of the pro Joint Stock Companies Arrangement Act 1870,
perty included in this security. and afterwards to apply for the sanction of the
At a meeting of the company, held on the court. The arrangement was made subject to
31st Oct. 1889 , a resolution was passed for the any modifications or conditions which the court
voluntary winding -up of the company, and the might think fit to require or impose, and the
petitioners were appointed liquidators. agreement was made conditional on the arrange
A special resolution was afterwards passed ment being sanctioned by an extraordinary reso
conferring on the liquidators a general authority | lution of the Empire Company, and also upon
to transfer or sell the whole or any portion of its being sanctioned by the court.
the property or business of the company to On the 24th Jan . 1890 an order was made by
another company, and to receive in compensation , North , J . that a meeting of the debenture
or in part compensation , for such transfer or sale holders of the Empire Company should be con
shares in any such company for the purpose of vened by the liquidators for the purpose of con .
distribution among the members of the Empire sidering the scheme of arrangement embodied in
Company. the agreementofthe 22nd Jan. 1890. Accordingly
By an agreement dated the 31st Dec. 1889,and a meeting of debenture-holders was held on the
made between the Empire Company and the 12th Feb . 1890. At this meeting there were
liquidators of the one part and the Golden Leaf present, either personally or by prosy, eighty
Limited (thereinafter called “ the new com . one debenture-holders, who held between them
pany ” ) of the other part, it was (amongst other debentures to the amount of 20,5501., and a reso
things) agreed that the Empire Company should lution was passed approving of the arrangement.
sell, and the new company should purchase, all All of the debenture-holders present personally
the undertaking and assets of the Empire Com or by proxy voted in favour of the resolution
pany, subject to the said debentures and all other except four, holding between them debentures to
charges, liens, and incumbrances affecting the the amount of 6501. These four debenture
same. holders voted against the resolution. At a meet
By clause 3 it was provided that the new com ing of the Empire Company held on the 24th Feb .
pany should pay, satisfy , and discharge all the 1890 an extraordinary resolution was passed by
debts, liabilities, and obligations of the Empire a large majority of shareholders (excluding
Company (except the debenture debt and debenture-holders who were also shareholders)
interest), and indemnify the Empire Company, sanctioning the schemeof arrangement embodied
its liquidators, and contributories. in the agreement of the 22nd Jan . 1889. In addi
Clause 4 provided that the liquidators should tion to the debenture debt the Empire Company
be entitled to have allotted to their nominees was indebted to unsecured creditors in England
100 ,300 shares in the capital of the new company, to the extent of 5001. Of this sum 2741. was due
with the sum of 138. per share credited thereon to the Crown and 1781. was due in respect of
as paid up, to the intent that such shares might costs to the company's solicitor, who had agreed
be distributed amongst the members of the to accept payment in paid -up shares of the new
Empire Company or their nominees, in accord company,and the remainder was due for stationery,
ance with their rights and interests. printing, and general expenses. The company
Clause 5 provided that every debenture-holder of also owed about 90001. to creditors in Montana,
the Empire Company should be entitled to request of which the sum of 70001. was due to creditors
the new company to allot to him fifty fully paid - who had issued attachments against the property
up ll. shares in the new company in exchange for l of the company , and had duly recorded them ,
May 31, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.-495
Chan. Div .] Re THE EMPIRE MINING COMPANY. . . [ CHAN. Div.
and other creditors were in a position to issue over all other creditors, including debenture
attachments at once. These were practically the holders. The scheme is a most beneficial one. .
only debts of the Empire Company. · NORTH , J. - I will allow the petition to stand
Sect. 2 of the Joint Stock Arrangement Act
1870 provides that :
over to enable you to procure satisfactory evi
dence as to what is the law of Montana with
When any compromise or arrangement shall be pro respect to creditors who have issued attachments
posed between a company which is, at the time of the and have duly recovered them .
passing of this Act or afterwards, in the course of being
wound -up , either voluntarily or by or under the super March 8. - An affidavit made by a counsellor
vision of the court, under the Companies Acts 1862 and at-law in the United States was now produced .
1867, or either of them , and the creditors of such com The deponent (after stating that he was well
pany, or any class of such creditors, it shall be lawful acquainted with the laws and constitution of the
for the court, in addition to any other of its powers, on
United States and the territories thereof, and in
the application in a summary way of any creditor or the
liquidator to order that a meeting of such creditors or particular with the laws relating to suits affect
class of creditors sball be summoned in such manner as ing real and personal property in the State of
the court shall direct ; and if a majority in number repreMontana) deposed as follows :
senting three-fourths in value of such creditors or class I have perused a form of debenture of the Empire
of creditors present, either in person or by proxy,at suchCompany, and I say that the holder of such debenture,
meeting shall agree to any arrangement or compromise , unless
such arrangement or compromise shall, if sanctioned by of Lewisit were recorded in the registry of the company
an order of the court, be binding on all such creditors cise any ofandtheClarke, Montana , could not have or exer
or class of creditors, as the case may be, and also on the machinery , and rights
other
of a mortgagee over the mines ,
real and personal estate expressed
liquidator and contributories of the said company. to be charged by the said debentare. Attachmentsuits
Cozens-Hardy, Q .C . and F . B . Palmer for the in the State of Montana are commenced by writs of
petitioners. - The scheme is supported by an over attachment, which writs of attachment are at the time
Thelming majority of debenture -holders, and the of issue recorded in the proper registry, and constituto
court clearly has jurisdiction to sanction it. A asa lienofupon the properties attached , and the proceeds of
any of the mines, machinery , or goods and
debenture-holder is a " creditor " within sect. 2 chattels of the individual sued when realised by the
ofthe Joint Stock Companies Arrangement Act sheriff in execution of judgments obtained in any suit,
1870. They referred to are paid to the creditors in the order in which the said
writs of attachment are issued and registered . The
Slater v. Darlaston Steeland Iron Company, W . N .
1877, pp . 139, 165. payments of the debts of the Empire Company in the
order in which the attachment suits are commenced is
Napier Higgins, Q.C . and Farwell, for deben not affected by the fact that the said company is in
ture-holders holding between them debentures liquidation. There are no steps which could be taken
to the amount of60001., supported the scheme. on behalf of the debenture-holders in order to obtain an
equal distribution of the proceeds of sale of the real and
Sevard Brice, Q .C . and Archibald Brown for a personal estate of the said company among all creditors.
holder of five debentures. The court has no Any actions that might be commenced by debenture
jurisdiction to deprive the debenture-holders of holders would be for the benefit of the class, and not for
that of the debenture-holders so commencing proceed
their security without their consent, and compel ings ; but even if they so proceeded, the attachmentsuits
them to take ordinary shares instead . The already commenced would rank in priority, and be
debentures are a first charge upon the under settled by payment of debt, interest, and costs before
taking and assets of the company. There is any sum could be recovered by such debenture-holders.
clearly no jurisdiction under the Act of 1870 to NORTH, J.-- I think this is a case in which I
deprive secured creditors of their security . ought to confirm the proposed agreement. In
NORTH , J.- Was it not done in Slater v. Dar . the first place, I do not think there is any doubt
laston Steel and Iron Company (ubi sup.) ? ] The about the jurisdiction to do it if the court thinks
only question in that casewas whether unsecured fit. It has power, under sect. 2 of the Joint Stock
creditors could be compelled to take shares. That Companies Arrangement Act 1870 , to bind
case was not contested . [NORTH , J. - Are not creditors, and debenture-holders are creditors.
shareholders owners of the property of the com The word " creditors ” in the Act is general. The
pany, subject to the mortgages thereon ; and was Act does not except any particular class of
it not decided that this property could be taken creditors from the jurisdiction of the court. Of
away from them in exchange for shares in the course it is one thing to say there is power to do
new company ? ] The only question in that case it , and it is quite a different thing to say whether
was whether the court could bind creditors, the court, in the exercise of its discretion , thinks
and the question whether the court could bind it is a case for doing it or not. That is a totally
shareholders was not raised . Sect. 2 of the Act different thing, and I must say I felt some little
of 1870 only refers to creditors simply . The difficulty in this case in saying that it ought to
word “ creditors ” does not include secured be done, for this reason : it was pointed out that
creditors. [Cozens-Hardy referred to Palmer, the debenture -holders had a first charge on the
3rd edit., p. 604.] property of the company of 23 ,0001., and certainly
Grosvenor Woods, for debenture-holders holding the scheme proposes to deprive them of the
between them debentures to the amount of 5001., benefit of that security in favour of other
opposed the scheme. creditors. It also proposes to give preference
over them to certain English creditors for 5001.,
NORTH , J.- I see no difficulty as to jurisdic who bare no security for their debt at all. But,
tion , but I do not see my way to depriving deben when the matter comes to be investigated , the
ture-holders of their security . difficulty which I at first felt disappears. In the
Cozens- Hardy, Q .C . — The debenture-holders first place, as regards the English creditors for
contracted not to register their debentures, and 5001., there is only a sum of 481. left, since part of
by the law of Montana all creditors in that the sum of 5001. is a Crown debt, which of course
country who have issued attachments, and duly | has priority, while another part is due for costs
“ recovered ” or registered them , have priority in respect of which the solicitors to whom it is due
496 - Vol. LXII., N. 8.) THE LAW TIMES. (May 31, 1890.
CHAN . Div.] Law GUARANTEE AND TRUST SOCIETY AND HUNTER v. BANK OF ENGLAND. ( Q .B . Div.
are content to take fully paid-up shares. There QUEEN 'S BENCH DIVISION .
only remains therefore the small charge of 481. Feb. 10 and 14.
If therefore the arrangement is otherwise bene
ficial, it would be absnrd to say that providing for (Before MATHEW , J.)
payment in full, instead of in part, of sums of THE LAW GUARANTEE AND TRUST SOCIETY
that small amount ought to stand in the way of | LIMITED AND HUNTER v . THE BANK OF
the arrangement. Then as regards the depriva ENGLAND. (a )
tion of the debenture-holders of their security, I Bank of England - Transfer of stock into joint
do not see that what is proposed will have that names of a corporation and an individual
result. In the first place, it is clear now that Refusnlof bank to register transfer— Mandamus
there are debts to a considerable amount which - Joint tenancy and tenancy in common - Inci
have a prior charge in Montana by the law of the dents of, as regards both real and personal
country by reason of the creditors having issued estate - 5 & 6 W . & M . c. 20 - National Debt Act
attachments by virtue of which the property of 1870 (33 & 34 Vict. c. 71).
the company can be sold , and as against these Upon an application by an action atthe suit of the
creditors the debentures are no charge whatever, plaintiffs for a mandamus to compel the Bank of.
because it is part of the bargaid under which tbe !
debentures are issued , and it is expressed upon England to register in their books a transfer of
the face of the debentures that they are not to be stock in the joint names of the plaintiffs as
recorded in any way. That being so, these judg. trustees : it was
Held , that the plaintiffs, being a corporation and an
ments, attachments, and local debts all bave individual, were tenants in common of the stock
priority to the claim of the debenture-holders. in question , and that the Bank was entitled to
Then what is proposed is, that the debenture decline to register the transfer , being exonerated ,
holders giving up their so-called securities shall by their ordinary course of practice and the
bare fully paid -up shares in the new company to terms of the National Debt Act 1870, from
a similar amount. Of course they need not take recognising or registering trusts or tenancies in
those shares unless they like, but that is what is common , and therefore the mandamus must be
offered to them . Then I believe there aredeben refus ed . "
ture-holders altogether to the amount of 23,7001,
There has been a meeting held at which the By deed, asdated 22nd Jan. 1889, the plaintiff John
matter has been fully considered , and the deben Hunter, surviving trustee of the trusts of a
ture-holders are almost unanimous on the certain deed- poll, dated 12th May 1887, in exer.
subject. It is quite true that some deben cise of theandpower conferred on him by the Con
ture-holders who had notice of themeeting did veyancing Sale of Property Act 1881 (44 & 45
not attend it ; but there were present at that Vict. c. 41), and of all other powers thereunto
meeting, either personally or by proxy, deben : | enabling him in that behalf, appointed his co
ture-holders to the amount of 20.0001. and plaintiffs,
Limited ,
the Law Guarantee and Trust Society
upwards, and they all, with the exception of four to be a trustee of the said recited deed .
holding betweenin favour
them debentures amount
to theThe poll, in the place of one K . M . Power, deceased,
of6501., voted of the scheme. other and the said corporation thereby consented to
creditors do not appear, and the only persons act as trustee of the said recited deed -poll, and it
wbo now object to it are five debenture-holders was thereby declared that the said John Hunter
bolding between them debentures to the amount should forthwith transfer into the joint names
of 7501. If the approval of the debenture-holders of himself and the corporation the sum of
is to be unanimous ; if one debenture-holder 5531. 198. 8d. 21. 158. per Cent. Consolidated Stock ,
resisting had a right to stop the whole arrange. to be held upon the trusts declared by the said
ment or scheme, the Act of Parliamentgiving the recited deed -poll.
court The plaintiffs, in whom the said consols had
and to power to summon
sanction meetings
the scheme would of creditors
be rendered | thus become vested under the before-mentioned
altogether nugatory . On the other hand, if I deed , requested the defendants, the Governor and
were not to give effect to such an expressed Company of the Bank of England to transfer the
| said stock in the usualway, in accordance with
opinion of creditors as I have in this case, I can -
not the National Debt Act 1870 (33 & 34 Vict. c. 71),
do it.conceive
I haveanyclearly
case injurisdiction
which the conrt
to do itought
. and toI
into their names in the books of the Bank ; but
think, this being a clear case in wbich I have the defendants refused to do so on the ground
jurisdiction . I ought to say that the views of the that the plaintiffs, being a corporation and an
very large majority of the debenture-holders individual, could not take as joint tenants, but
ought to prevail in the present case . Under these only as tenants in common ; and that the Bank
circumstances I sanction the arrangement pro recognised and registered absolute owners only,
posed in the scheme, and order the company to and in cases where there was more than one
pay the costs of all parties . owner the Bank registered them as joint tenants.
Solicitors: Newman , Stretton, Hilliard, and Co.; And the Bank claimed also to be exonerated by
their Act of Parliament from recognising or
J. S. Smart ; Snell, Son , and Greenip. registering trusts or tenancies in common .
Thereupon the plaintiffs brought the present
action ,claiming a mandamus to compel the Bank
to register the transfer in the joint names of
the co-plaintiffs in the Bank books, and it non
came on to be heard before Mathew , J. without a
jury .
The Attorney-General (Sir R . E . Webster, Q.C .)
(a) Reported by HENRY LEIGA , Esq., Barrister-at-Lév.
May 31, 1890.] THE LAW TIMES. (Vol. LXII., N . 8. - 497
Q.B . Div.] Law GUARANTEE AND TRUST SOCIETY AND HUNTER v. BANK OF ENGLAND. ( Q. B . Div .
and R . S . Wrightargued the case for the plaintiffs. Governor and Company of the Bank of England
- There being a right to receive an annuity in | requiring the Bank to register in the books of
perpetuity subject to redemption by the State, | the Bank a deed of transfer of stock to the co
the Bank was bound by the terms of the Act of plaintiffs. The Bank of England refused to
Parliament (the NationalDebt Act 1870, 33 & 34 register the transfer on the ground that the
Vict. c. 71) to accept the name of a corporation Bank was not bound to register a transfer to a
aswell as that of an individual. By sect. 3 of corporation and the co -plaintiff jointly. It was
that Act the term " person ” includes “ corpora admitted by the learned counsel on both sides
tion." The authorities mainly relied on in what the ordinary course of business was with
support of the doctrine that will be urged on the regard to the transfer and registration by the
other side are, to say the least, somewhat musty Bank of England, representing the Government
and antiquated , and relate exclusively to real of the country, and having charge of those diffe
estate, and but for the highly technical doctrine rent funds which represent the National Debt,
based upon them , there was no sound reason why and it was conceded that the ordinary course
a corporation and an individual should not be adopted by the Bank was to register absolute
joint tenants. The result, it is contended, would owners of stock , and where there was more than
be the same whether they are taken as joint one to treat the owners of stock within the limits
tenants or tenants in common. The Bank would prescribed by the Act as joint tenants, and to
not transfer without notice to the parties in deal with them , if I may use the old phraseology,
whose names the stock was standing. Holding as having the legal estate only in the property
stock differs from holding a sum of money . transferred to them , and of which they claimed
What difference could it make to the Bank that registration . This practice, it was said, probably
the arrangement was that they should hold as had its origin in the difficulties in creating
joint, trustees or tenants in common ? They limited and successive interests in personal pro
cited perty . The usual course was to interpose trus
Wildman v. Wildman, 9 Ves. 174 ; tees, and the Bank dealt with trustees as having
Crossfield v. Such , 8 Ex . 159, 825 ; 22 L . J. 55, 325, the legal estate, and were exonerated from having
Ex. any regard to the subordinate interests which the
Sir H . Davey, Q .C . and Pollard (with whom trustees were brought into existence to protect.
were Latham and C . Musgrave), for the defen This course of business, it was said , was recog
dants, contra. Though the doctrine may be old , nised by the courts of law , and the case of Cross
it is none the less sound law that a corporation man v . Such (8 Ex. 825 ) was referred to, wbich
and an individual cannot hold property as joint clearly shows that the Bank of England is sup
tenants, because a corporation never dies, and posed to be dealing with the legal estate only ,
there would be no survivorship , and survivorsbip , and that where stock is registered in joint names
or the jus accrescendi, is a grand incident of joint the owners hold the stock as joint tenants with
tenancy . They must needs hold , therefore, as the ordinary right of survivorship , and the Bank
tenants in common. Were the Bank to register | has no difficulty in dealing in such a case with
a tenancy in common each party would be entitled the surviror as representing the whole interest
to a moiety, and the object of the trust would or in thestock . It was further said that, if reference
might be entirely defeated and defrauded. The were made to the National Debt Act of 1870,
Bank recognisesand registers only joint tenancies, which now regulates the operations of the Bank in
the very essence of which estate is the holding respect of stockholders, there is no indication of
by each per mie et per tout, having the whole pro any intention there that the Bank shall deal with
perty between them as if they were all aggregate any but the absolute legal owners of the stock
individuals , and the survivor being entitled to the registered ,and they are expressly exonerated from
wbole , without further investigation or inquiry having regard to trusts of any sort. It was said
as to title or otherwise. The point is of great that it followed that the Bank would not be
importance to the Bank , who are the custodians bound to register the transfer of stock to persons
and book -keepers,as it were, of the stockholders. as tenants in common, and that the effect of such
The iccidents of joint tenancy and tenancy in a transfer, if the Bank were called upon to
common apply to personal estate aswell as to real register it, would be to impose upon them the
estate , and therefore apply to a sum in Consols, obligation to ascertain what the interests in the
the owner of which has a right merely to a per : stock were, in fact, to enter upon such an investi
petual annuity until paid off or redeemed by the gation as they are expressly exonerated from by
Gorernment. They cited the Act, which relieves them from following the
Co. Litt ., lib . 3, c. 3, sects. 280, 281 (181 b ) (182 a), trusts of Consols. It was said that tenants in
C . 4, sects. 296 , 297 (190 a) ; common need not have equal interests in stock of
2 Blackstone, pp . 179 to 186 ; which they are tenants in common, and therefore
Comp . .107Dig; . 5th ed., “ Estates by Grant,” vol. 4, the duty would be imposed upon the Bank to
2 Wms. Saund n ::,. 5th ed., part1, 2,, p.p . 313188 ., n . a4 ; ascertain the share of each tenant in common ,
Ra CommoAbr.,
2 inRolle's pP.. 91, ** 10Joint Tenants or Tenants and at each devolution of the property a similar
Bac. Abr., 7th ed ., vol. 4, “ Joint Tenants," B. 455 ; investigation might have to be held . All that
Sloman v . Bank of England, 14 Sim . 475 ; 14 L .J. appeared to be accepted by the learned counsel
226 , Ch . for the plaintiffs, and , it was asked , what was the
Cur. adv. vult. difficulty of the Bank in this case ? Here is a
Feb. 14 . — The following judgment was now transfer to this trust company and the co -plain
delivered by tiff, and the transfer purports to be to them
jointly ; why, then , should the Bank object to
MATHEW , J.- In this case the Law Guarantee register the transfer in this case any more than
and Trust Society Limited and John Hunter in a case where the holders are individuals ? The
brought an action claiming a mandamus to the l object is plain , it is said . Any man of business
Q.B. Div.] MILNES v. FODEN. [PROB.
would know what was intended - namely , that for without ascertaining how the shares went -
the lifetime of the individual he would be em | difficult investigation for the Bank. As I have
powered to act as trustee, and on his death the already pointed out, with a joint tenancy there is
whole interest in the stock would pass to the on death no difficulty whatever, the Bank being
company. What, it was asked, was the difficulty entitled to treat the survivor as absolute owner
of the Bank ? Why was this technicalobstruc of the property . I am asked to say that the
tion offered to what would seem to be a very con Bank ought to depart here from the established
venient course of dealing with the stock in ques. mode of carrying on its business, and to go from
tion ? The answer of the Bank was, that what ancient ways to new ways. I feel that the case
the plaintiffs were pleased to call a transfer to is one that requires the utmost judicial caution,
the company and the co-plaintiff jointly does not for various reasons. - I have to bear in mind the
operate to create a joint tenancy, because it can enormous interests with which the Bank have to
not do so ; you cannot create a joint tenancy of a deal, and the serious liabilities that may be in
company and an individual. What, therefore, you curred by a departure from the ordinary methods
ask the Bank to do is to recognise a tenancy in of dealing with stocks. I agree that Sir Horace
common which they have never been called upon Davey was not able to point out the probable
to do, and which, for the before given reasons, difficulty the Bank would be in by permitting the
they ought not to be called upon to do. To transfer ; but we have not to deal with proba
establish this position of the Bank it was neces - bilities merely, but with possibilities in a case of
sary to have recourse to some of the ancient law . this sort, aud I cannot avoid fearing that if, for
From the authorities cited by the learned counsel instance, it occurred to the individual who was a
for the Bank - Coke upon Littleton , 190 a ; joint owner of stock under a transfer of stock
Williams Saunders, 318, note 4 ; Blackstone's to a company and an individual, to commit a
Commentaries, and other ancient text-books - it breach of trust, the Bank would be placed in a
appears that an attempt to rest the joint tenancy position of some difficulty , supposing an assign
in a corporation and an individual fails, first, for ment made by a tenant in common. I do not say
the reason that the two grantees take in different it would not be possible to extricate the Bank
capacities. The grant to a corporation is a grant from the conflicting claims that might be made
to a corporation and its successors. The grant | upon it under such circumstances. The resources
to an individual is & grant to him and of the court would probably be found extensive
his heirs, and those two estates cannot be blended | enough , by interpleader or otherwise, to relieve
together as is absolutely necessary in the case of the Bank ultimately from the necessity of taking
a joint tenancy. Further, there cannot be a right part in the fray ; but before that point was
of survivorship , which is indispensable to the reached there would be a troublesome and difficult
creation of a joint tenancy . Further propositions, investigation, and I do not see that that ought to
which to my mind were satisfactory , made out be put upon the Bank . I do not feel at liberty,
that these rules, which had their origin in their therefore, to grant this mandamus. At the same
application to real property , embraced the case of time, what is proposed to be doneby the plaintiffs
personal chattels and choses in action , and if in this case would seem to me highly convenient
authority were needed the case in Rolle's Abridge 1 and a fair transaction , and I regret that there is
ment seemed to establish that technical rule. | this technical difficulty in the way . While that
The learned counsel for the plaintiffs did not technical difficulty exists the court must give
controvert,any of those propositions, but sought effect to it, and it can only be gotten rid of by
to shower abundant ridicule upon the proceedings the intervention of Parliament. My judgment,
of the Bank in this case. The rules in question therefore, is for the defendants, refusing the
were referred to as “ obsolete and musty," and the mandamus with costs.
“ robust common sense ” of modern times was Judgment for the defendants. Mandamus
invoked to get rid of such stupid technicalities. refused , with costs.
But still the difficulty remained . It was said for Solicitors for the plaintiffs, Torr, Janeways,
the plaintiffs : True, there may be those old rules,
but the court ought to look at the substance of Gribble, and Oddie.
Solicitors for the defendants, Freshfields and
the transaction , and give effect to the manifest Williams.
intention to create a joint tenancy ; it should
bear in mind that what was done was done by
mere trustees. But, as against that, the Bank PROBATE , DIVORCE, AND ADMIRALTY
would unquestionably be establishing a precedent DIVISION .
if it allowed , even in the case of trustees, a joint PROBATE BUSINESS .
tenancy , because the next step would be to call Feb. 20 and March 2.
upon the Bank to recognise transfers where
persons holding the stock themselves are the (Before the PRESIDENT.)
beneficiaries and not trustees. I think the Bank MILNES v. Foden . (a )
are entitled to take that position . I am not Probate suit — Married woman - Testamentary
satisfied with the argnment that the Bank ought
to look to that when the statute expressly says it . documents
-
— Belgian will — Domicile - Deeds-poll
Codicils- Probate . . .
shall not have regard to the fact that the holders The form of a document does not affect its title to
are trustees, and represent other persons. Now probate, provided it be executed in accordance
what would be the position of the Bank supposing with the statute (1 Vict. c. 26 ), and that it be clear
a tenancy in common created ? I am not satisfied that the testator intended that it should operate
that the Bank would be safe without investigating after his death .
what share each had when the transfer was regis.
tered ; nor would the Bank be safe if any subse Wherea testatriæ ,an Englishwomanbybirth ,hacing
quent devolution of the property took place I (a) Reported by H . DUBLEY-GRAZEBROOK, Esq., Barrister-at-LST
May 31, 1890.] THE LAW TIMES. (Vol. LXII., N . 8. - 499
PROB.] MILNES v . FODEN . [ PROB.
acquired by marriage a Belgian domicile, exe- Consols, practically empowering her to do what
cuted in Belgium , in accordance with the law of she liked with the property .
Belgium , but not in accordance with the Wills On the 6th July 1849 she executed a deed of
Act, a will appointing executors and disposing settlement in contemplation of her marriage,
of all her property, though not expressly re leaving the property in trust for herself for life,
ferring to the property over which she possessed a and, in certain events, to appoint by deed or
power of appointment under an ante-nuptial will.
settlement : In 1871 and in 1880 two draft wills in English
Held , that this document was entitled to probate, form were drawn up but not executed by the
as a will, under Lord Kingsdown's Act. testatrix.
And where the same executrią , while still retaining On the 8th Oct. 1880 she executed in Belgium
the said Belgian domicile, subsequently executed a holograph will, which was revoked , and subse
quently another holograph will was executed.
a revocable deed -poll, attested by two witnesses in
accordance with the Wills Act, whereby she This latter bore no date.
appointed the settled property upon certain On the 27th March 1884 she made an appoint
trusts therein mentioned to take effect from and ment of the settled property. Then followed the
after her decease ; and afterwards, having in three documents propounded , viz . :
the meantime resumed her domicile of origin , On the 8th April 1884 ]a holograph will, exe
executed another and similar deed -poll, whereby cuted in Belgium : “ I wish my sister Louisa to
she varied the trusts in the former deed -poll, and enjoy for her life the interest and residue of all
the said trusts, as varied ,were expressed to take my property of whatsoever kind ; and at her
effectupon her death : death to be divided amongst . . ." certain
Held , that, as it was clear that the deceased in . partiesmentioned
On the 7th June 1887 a document in the form
tended to convey by these deeds-poll the benefits
which would be thereby conferred if they were of a deed -poll, with two witnesses. This recited
the declaration of the 27th March 1884 , above
considered as testamentary documents ; and mentioned , but did not recite the will of the
further, as her death was the event which was to
give effect to the provisions therein contained , if 8thOnApril 1884.
not previously revoked by her, the deeds-poll in altering the18th
the March 1889 second deed -poll,
appointment of property contained
question were codicils to the will of 1884 , and, in the first deed-poll.
as such, entitled to probate.
C. A. Middleton for the plaintiff.— The power
This was a friendly probate suit, in which the of appointmentmust
decision of the court was asked with reference to be exercised according to the
the validity , or otherwise, as testamentary papers, law of England : (Wills Act, 1 Vict. c. 26 , s. 10.
of three documents executed by Mrs. Melicent | In this particular case, it not only happens that
Caroline Volbracht. the two deeds-poll are testamentary in their
The plaintiff, Robert Milnes, as executor, pro character, but they were, in fact, executed in
pounded , as a will, a holograph document, exe accordance with the Act. It is therefore proposed
cuted by the deceased in Belgium in accordance by the executor to treat them as testamentary
with the law of that country, but not in accord documents, and, as such , they are entitled to
ance with the Wills Act. probate as codicils to the will. In Williams on
He also propounded , as codicils thereto, two Executors (part 1, book 2, chap . 2, s. 3) the law is
documents in the form of revocable deeds-poll, laid down as follows as to the form of a will or
codicil : “ Indeed it may be considered as a settled
executed in the presence of, and signed by, two
attesting witnesses. If not revoked , these were point, that the form of a paper does not affect
to take effect upon her death . its title to probate, provided it is the intention of
The defendant, Louisa Augusta Foden , widow , the deceased that it should operate after his
as the sister and sole next of kin of the death . Thus, a deed . poll, an indenture, a deed
deceased, did not oppose probate of the will of of gift . . have been held to be testa
1884, but formally pleaded that the codicils mentary ."
were not entitled to probate as testamentary Bargrave Deane for the defendant. - This being
documents . a friendly suit, for the purpose of ascertaining
The domicile of origin of the deceased was by the judgment of the court which of these
English , but in 1849, by her marriage with Mon- documents ought to be admitted to probate, the
sieur Volbracht, a native of Belgium , she ac- defendant is only represented here with the
quired a Belgian domicile, which she retained view , if possible, of assisting the court. It is
until 1887, when she resumed her English domi. submitted that the will of 1884 would , by virtue
cile. The will and first of the two above-men of Lord Kingsdown's Act, revoke the former
tioned deeds-poll were executed during the con will. Then , as to the further question , can these
tinuation of the Belgian domicile ; the last deed . two deeds-poll, of later date, be taken as codicils,
poll, after the English domicile had been re and be admitted as such to probate ! Looking at
sumed . the documents themselves, it is apparent that they
The deceased's husband, from whom she ob- were never intended to touch the will. They
tained a divorce in Belgium on the 23rd Aug. refer only to a deed of an earlier date. The Wills
1865, survived her. Act, s. 20, says : “ Be it further enacted that no
Besides the three documents propounded , the will or codicil, or any part thereof, shall be
deceased executed or drew up various other revoked otherwise than as aforesaid , or by any
documents, which were shortly stated to be as will or codicil executed in manner hereinbefore
follows : required , or by some writing declaring an
On the 29th Sept. 1847 she executed a decla - | intention to revoke the same, and executed
ration of trusts in respect of 76961. 158. 9d . I in the manner in which a will is hereinbefore
500 _ Vol. LXII., N . 8.] THE LAW TIMES . (May 31, 1890.
PROB.] Iu theGoods of WILLIAM HOBSON Cope (deceased). [PROB.
required to be executed, or by the burning, tear- | deceased , as she had ceased to be a married
ing, or otherwise destroying the same by the woman prior to the passing of the Act. The
testator, or by some person in his presence and deceased , therefore, being a British subject,
by his direction , with the intention of revoking executed the will of 1884, both in accordance
the same.” This is " a writing ” only, and is with the law of her then Belgian domicile and in
expressly silent as to any intention to revoke the accordance with the law of the place where
will of 1884 . executed , viz. Belgium . On both or either of
Cur. adv.vult. these grounds the will of 1884 is entitled to pro
March 2. — The PRESIDEST. - In this action the bate under Lord Kingsdown's Act. The remain
plaintiff propounds the will and two codicils, ing question is whether the deeds-poll are
dated respectively the 3rd April 1884 , the 7th entitled to probate. The true principle to be
July 1887, and the 18th March 1889, of the deduced from the authorities, as stated in
deceased Melicent Caroline Volbracht. The Williams on Esecutors, part 1, book 2, chap. 2,
defendant denies that the two last-dated docu . | sect. 3, appears to be, that, if there is proof either
ments were executed in accordance with the in the paper itself, or from clear eridence dehors,
Wills Act. The material facts appear to be as first, that it was the intention of the writer of
follows: The deceased ,being then unmarried , a the paper to convey the benefits by the instru
British subject, and having an English domicile, ment which would be conveyed by it if considered
in 1847 executed a declaration of trust of certain as a will; secondly , that death was the eventthat
property , whereby the property was to be held in was to give effect to it, then , whaterer may be
trust as the deceased should by deed appoint, and its form , it may be admitted to probate as testa .
subject thereto and after her decease for such mentary . It is not necessary that the testator
persons as she should by will appoint. In 1849 should intend to perform , or even be aware that
the deceased married a Monsieur Volbracht, a he has performed , a testamentary act. In my
Belgian subject, and a domiciled Belgian . By a opinion both the deeds-poll fulfil the essential
settlement executed in contemplation of this conditions just mentioned ,and are, together with
marriage, the deceased settled the property com the will of 1884, entitled to probate.
prised in the trust deed of 1887, if she should Solicitor
die in the lifetime of Monsieur Volbracht, uron Solicitorsforforthe
theplaintiff, J. R .Burgoyne,
defendant, Hall. Milnes,
such trusts as she should ,by revocable deed , or by and Burgoyne.
will, appoint. In 1865 the deceased obtained a
divorce from her husband in Belgium . She con
tinued , however, to retain the Belgian domicile, • Tuesday, March 11.
which she had acquired upon her marriage, until (Before the PresidENT.)
Oct. 1887. In 1880 she executed a will in the
English form , purporting to dispose of all her In the Goods of WILLIAM HOBSON COPE
property, expressly including the property over (deceased ). ( a )
which she had a power of appointment, and Administration - Sureties — Applicant the Chief
appointing executors. In 1884 the deceased Official Receiver in Bankruptcy - Sureties dis.
executed a holograph will in accordance with the pensed with.
Belgian law , but not in accordance with the Wills
Act. By this will she disposed of all her pro Where the applicantfor a grant of letters of admin
perty , thongh not expressly referring to the pro istration was the Chief Official Receiver in Bank
ruptcy, the Court directed that he should enter
perty over which she had a power of appoint into the usual bond for the due and proper
ment, and appointed executors. This is the administration of the estate of the deceased , but,
document dated the 8th April 1884, propounded in view of the oficial position of the adminis
by the plaintiff. On the 7th June 1887the deceased trator, the Court dispensed with sureties .
executed aasrevocable
witnesses, deed -poll, attested by two
required by the Wills Act, whereby In the Goods of Canning (41 L . T. Rep. N . S.
she appointed the settled property upon certain 737 ; 5 P. Div. 114) followed .
trusts as therein mentioned , from and after her Thiswas a renewed motion that the court would
decease. This also is one of the documents pro decree letters of administration to the personal
pounded by the plaintiff . In Oct. 1887 she estate and effects of William Hobson Cope,
abandoned the Belgian domicile and resumed her deceased , to Robert Palmer Harding, without
English domicile. In 1889 the deceased executed requiring him to find sureties to the bond to be
attested by two given by him upon such administration being
witnessesrevocable
another as required the also
deedby-poll, Wills Act, whereby decreed to him .
she somewbat varied the appointments contained On the 5th Dec. 1888 a receiving order in
in the deed -poll of the 7th June 1887. The bankruptcy was made against William Penfold
trusts, as varied , are still to take effect upon her Cope, of 2, Glengall-road , Old Kent-road , in the
death . This is the last of the documents pro county of Kent, described as a minister of the
pounded by the plaintiff. The deceased died on Gospel; and thereon ,
the 23rd Mary 1889, leaving Monsieur Volbracht On the 6th Dec. 1888 the said William Penfold
her surviving. The defendant, the sole next of Cope was adjudicated bankrupt, and Robert
kin , does not oppose the admission to probace of Palmer Harding, Chief Official Receiver in Bank.
the Belgian will of 1884 , and it appears clear that ruptcy, became thereupon the trustee of the said
bankrupt's estate and effects.
this is entitled to probate. The deceased was by the 17th Feb . 1889 William Hobson Cope,
birth a British subject, and except by statute anOninfant son of the bankrupt, died , unmarried
could not lose her British nationality. The | and intestate. The bankrupt did not apply for
Naturalisation Act of 1870 , which enacts that
married women shall have the nationality of administration .
their husbands, could have no application to the I (a) Reported by H . DURLEY-GRAZEBROOK, Esq., Barrister -S:-Las
June 7, 1890.] THE LAW TIMES . (Vol. LXII., N . 8. - 501
Ct. Op App.] FRY v. Fry. [CT.OF APP.
The deceased infant's property consisted of a of the Regulationsofthat division,(a) appointing
policy of life assurance dated the 21st Sept. 1887, | him guardian ad litem of his mother on the
upon his own life, for the sum of 1001., in the ground that she was, as he alleged , of unsound
General Life and Fire Assurance Company. mind , and that he was desirous on her behalf to
On the 10th Dec. 1889 the Chief Official Receiver, institute a suit to have the marriage declared
as trustee of the bankrupt,applied, upon motion , null and void on the ground that at the time she
for a grant of letters of administration in respect went through the ceremony she was of unsound
of the estate of William Hobson Cope, deceased . mind and incapable of entering into any such
BUTT, J., however, thought that the bankrupt contract.
ought to have had formal notice of the applica Mrs. Fry applied to Butt, J. in chambers to
tion , and adjourned the motion for tha: purpose. have the order set aside. Affidavits were made
On the 24th Jan . 1890 a citation was accord. by Mr. Fry, Mrs. Fry, her solicitor, and six
ingly issued, and on the 5th Feb. 1890 was duly medicalmen , denying the allegation of incapacity
served upon William Penfold Cope personally . and unsoundness of mind .
There was no appearance to the citation. The Butt, J. considered that such an order should
application was now renewed . not be made where there was a bona fide and
Muir Mackenzie, for the applicant, asked that, substantial dispute as to the insanity of a party,
as the proposed administrator was an officer of andThe therefore discharged the order.
next friend appealed :
the court, he should be relieved of the usual
necessity of finding sureties to the administra Willis, Q .C . and Searle for the appellant.
tion bond. He cited Rule 196 was intended to meet the case of a
The Solicitor to the Duchy of Cornwall v. Can person who had been found lunatic, and for whom
ning, 41 L . T. Rep. N . S. 737 ; 5 P. Div. 114 ; no committee had been appointed , and also the
Cleverley v. Gladdish , 2 S. & W . 335. case of a person of unsound mind, but not so
Sir James HANNEN said that the case of In the found by inquisition . It cannot have been
Goods of Canning (41 L . T . Rep . N . S . 737 ; intended to refer only to a case where the person
5 P . Div. 114) seemed to be in point. Having had been found lunatic and no committee had
regard to the official position occupied by the | been appointed , for the committee is usually
present applicant, and upon the authority cited , appointed immediately the person is found &
there appeared to be no risk to the estate in dis | lunatic. If the rule only applies where the
pensing with the usual sureties. He therefore person has been found lunatic by inquisition , then
made an order for a grant of letters of adminis no one whose sanity is disputed can be allowed to
tration in respect of alland singular the personal defend without an inquisition . Tbe cases of
estate and effects of William Hobson Cope, Durham v. Durham (10 P. Div. 80 ), Hunter v.
deceased , the usual bond to be entered into by Hunter (10 P . Div . 93), and Cannon v . Smalley
the administrator, but suretles to be dispensed (10 P . Div . 96 ) were all sued without an inquisi.
with . tion having taken place. They also referred to
Solicitor for the applicant, The Solicitor to the Hancock v. Peaty , 16 L . T. Rep. N . S. 182 ; 1 P. &
Board of Trade, Whitehall. Div. 335.
Reid , Q .C . and Middleton for Mrs. Fry, and
Inderwick, Q .C . and Bargrave Deane for Mr. Fry,
were not called upon .
Cotton, L .J. - This is an appeal from an order
Supreme Court of Indicature. of Butt, J ., discharging an ex parte order of the
registrar assigning a guardian ad litem to a person
COURT OF APPEAL. alleged to be of unsound mind. I will not give
any opinion on the question whether, on the
evidence before us, she was of unsound mind at
Wednesday, Feb . 5. the date ofher marriage, or whether she is so now ,
(Before Cotton, LINDLEY, and LOPES, L .JJ.) for I go upon this ground, that an order ought
FRY v. FRY. (a) not to be made under rule 196 assigning a
APPEAL FROM THE PROBATE, DIVORCE, AND ADMIRALTY guardian ad litem where there is a bonâ fide
DIVISION (DIVORCE). dispute whether at the time of the application
Nullity - Alleged insanity of petitioner - Guardian the party is of unsound mind. The question is
ad litem - Rules and Regulations of the Divorce whether the court shall give to some other
person the conduct of a suit on the ground that
Division, r. 196 . this lady is incapable of acting for herself, and I
An order ought not to be made under rule 196 think the court ought not to do so where there is
assigning a guardian ad litem where there is a a bona fidedispute whether she is or is not capable
bona fide dispute as to whether the person to (a) Rule 196 . A committee duly appointed of a person
whom it is proposed to assign the guardian is of found by inquisition to be of unsound mind may take
unsound mind . out a citation and prosecute a suit on behalf of sach
Decision of Butt, J. affirmed . person as a petitioner , or enter an appearance, intervene,
W hether rule 196 applies where the person has not or proceed with the defence on behalf of such person as
been found lunatic by inquisition , qucere. a respondent ; but if no committee should have been
Os the 25th July 1889 George Fry married appointed application is to be made to one of the
registrars, who will assign a guardian to the person of
Elizabeth S. Fry , then a widow named Routh . ansound mind for the purpose of prosecuting , inter
On the 13th Nov. Edward Stanley Routh , a son vening, or defending the suit on his or her behalf, pro
of Elizabeth S . Fry, obtained an order in the vided that, if the opposite party is already before the
court when the application for the assignment of a
registry of the Divorce Division under rule 196 guardian is made, he or she shall be served with notice
(a) Reported by W . O. Biss, Esq., Barrister-at-Law . i by summons of such application .
Vol. LXII., N . S., 1595.
502 — Vol. LXII., N .8.] THE LAW TIMES. (June 7, 1890.
Ct. or APP.] CLEGG v . HANDS. [CT. OP APP.
of acting for herself. I do not at present feel dis- | to another person . It is not, therefore, to be
posed to assent to the view of Lopes, L .J. that this construed with the same liberality as if it were
rule only appliesto the case of a person found lunatic simply enabling . As regards the other point,
by inquisition . The rule applies equally to a assuming the rule to apply to the case. I agree
party suing and to a party defending, and it with the Lords Justices that the power giren by
would be very serious to hold that, if a person of it ought not to be exercised where there is a
unsound mind is sued, no defence can be put in | bona fide dispute as to sunity .
till he has been found lunatic by inquisition ; | Solicitors for wife, Irvine. Hodges, and Bor.
but where there is a bona fide dispute as to the rowman .
sanity of the party , I think then an order for a Solicitors for husband, Fry and Hudson .
guardian ad litem ought not to be made. The
medical evidence adduced in support of the Silicitors for guardian , Wontner and Sons.
application to discharge the registrar's order
shows that there is reasonable ground for con
tending that this lady is capable of managing her March 7, 8, and 10 .
own affairs. I think , therefore, that the appeal (Before Cotton, LINDLEY, and LOPES, L .JJ.)
must be dismissed , not on the ground that the
registrar was wrong in making the order on the CLEGG v. Hands. (a )
materials before him , but on the ground that the APPEAL PROM THE PALATINE COURT OF LANCASTER.
evidence adduced before the judge showed that Landlord and tenant - Public -house - Lease by
the case was not one in which such an order brewer - Covenantnot to sell beer other than that
ought to have been made. purchased from lessors or assigns — Covenant
LINDLEY, L .J. - This is an appeal from an order running with the land - Assignment of public
of Butt, J ., discharging an order made by the house and benefit of covenant.
registrar ex parte appointing a guardian ad litem | By a lease made between C. and W . (thereinafter
to a married woman for the purpose of promoting called “ the lessors, including in such term each
a suit to have her marriage declared invalid on of them , the i9.each and every of their heirs,
the ground that she was of unsound mind when executors, administrators, and assigns" ) of the
it was solemnised . She says that she is not of one part and H . of the other part, a public -house
unsound mind, and has adduced medical evidence was demised to H . for a term of years, H . cove
of some weight in support of that contention . nanting with the lessors not to sell in or upon the
It would be monstrous if a self -appointed demised premises any beer other than beer pur
guardian was allowed to go on with such a suit chased from the lessors or from either of them ,
when a defence like that is made. The son may either alone or jointly with any other person or
apply for an inquisition , and if she is found persons who might thereafter become a partner
lunatic by inquisition the committee can sue, and or partners with them or either of them , provided
if no committee is appointed a suit may be pro they or he should at such time deal in or cend
moted by a guardian ad litem . Upon the con such liquors as aforesaid , and should be willing
struction of the rule I am disposed to think that to supply the same to the said lessee of good
it only applies where a person has been found quality and at the fair current market price
lunatic by inquisition ; but I do not base my thereof. At the date of the lease C . and w .
judgment on that. I go on the ground that, carried on business as brewers at the A. Brewery,
assuming rule 196 to be applicable where the and they also sold beer not brewed by themselves.
party has not been found lunatic by inquisition , They subsequently sold the A. Brewery with the
an order ought not to be made under it where plant, business, and goodwill to N ., and conveyed
there is a substantial bona fide dispute whether their reversion in the lease of the public-house to
the party is ofunsound mind at the time. him with the benefit of the covenants in the lease,
LOPES, L . J. - This case raises two points : (1) and expressly assigned to him the benefit of the
Whether on the construction of the rule it applies aforesaid covenant. They then ceased to carry
to the case of a person who has not been found on business and dissolved partnership. N . did
by inquisition to be of unsound mind. (2) As not use the A . Brewery , but carried on his breic
suming that it does so apply, whether an order ing business at M . Brewery , which was near
ought to be made under it when there is a bona thereto . H . declined to take his beer from V.,
fide dispute as to the sanity of the party . As to and the latter brought an action in his own name
the construction of the rule , I am strongly of and those of C . and W . claiming an injunction
opinion that it ought to be read so as to make it in the terms of the covenant to restrain H . from
apply only where there has been an inquisition taking or selling beer other than such as should
under which the party has been found of unsound have been purchased from N ., either directly or
mind . If a committee has been appointed he is Heldthrough O . and W .
the person to sue or defend ; if no committee , that the benefit of the covenant was not
has been appointed to the person found by in limited to such of the lessors' assigns as should
quisition to be of unsound mind (which seems carry on business at the lessors' brewery ; that
to me to be the reasonable way of reading it ), a the covenantwasnot a personal corenantwith the
guardian ad litem may be appointed. I think it lessors, but the benefit of it ran at law rith the
was intended that there should not be discussions reversion ; that the principle of Tulk v . Morbay
before the registrar or the judge whether un (2to an
Ph. injunction
774 ) applied. ,and the plaintiffs vereentitled
soundness of mind was made out. The rule is in
one sense ana enabling rule ,as it enables the court Doe d. Calvert v. Reid (10 B. & C . 849) distir
to appoint proper person to act as guardian guished .
ad litem ; but it is also to be looked on as restric Decision of Bristowe, V.C . affirmed .
tive, for it gives the conduct of the suit or defence (a) Reported by W . C. Biss,Esq., Barrister -at-Law.
June 7, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 503
CT.OP APP.] CLEGG v. Hands. (CT. OP APP.
This was an appeal of the defendants from a | The facts of that case are on all-fours with this
decision of the Vice-Chancellor of the County one. The benefit of this covenant does not run
Palatine of Lancaster. with the reversion. An assignee cannot sue upon
In 1886 theplaintiffs Messrs. Clegg and Wright every covenant. On an assignment of the rever
carried on business at the Alton Brewery, Liver sion without the brewery this covenant would
pool, as brewers and vendors of ale and stout. not run at all. In Vyvyan v. Arthur (1 B . & C .
By an indenture of lease dated the 19th Nov . 410) it was held that a covenant to use the lessor's
1886, and made between the plaintiffs, James mill for grinding the corn grown on the demised
Clegg and Peter Wright (thereinafter called premises would run only so long as the mill and
“ the lessors, including in such term each of them | the demised premises belonged to the same
and their, each and every of their, heirs, execu person . The definition of " lessors ” at the com
tors, administrators, and assigns " ) of the one mencement of the lease is cut down by the cove
part, and the defendant, Benjamin Hands (there nant, and is limited for the purposes of the cove
inafter called “ the lessee, including in such term nant to future partners of Clegg and Wright.
his executors, administrators, and permitted A particular statement controls a general state
assigns " ), of the other part, a public-house ment. It would be useless to mention any par .
known as the Alexandra Hotel was demised to ticular persons in the covenant besides lessors,
the defendant for a term of nine and a half years. unless it was intended to limit its meaning. If
Among other covenants by the lessee the lease | neither Clegg nor Wright nor Cain can sue
contained the following : separately, they cannot sue together . If the
The said lessee will not, at any time during the reversion had been sold to a person who was not
continuance of this demise, buy , receive, sell, or dis a brewer, then the covenant would have become
pose of, either directly or indirectly, or permit to be merely a personal and collateral one, and the
bought, received , sold , or disposed of, either directly or benefit of it would not have run with the land,
indirectly , in , upon , or about the said premises, or any and here it is merely collateral, as the brewery of
part thereof, any ales or stont (other than best stont).
other than such as shall have been bona fide purchased Clegg and Wright is closed :
of the said lessors or from them , or either of them , Spencer's case, 1 Sm . L. C., 9th edit. 72.
either alone or jointly with any other person or persons
who may hereafter become a partner or partners with The doctrine of covenants running with theland ,
them , or either of them , provided they or he shall at as contained in that case,has not been altered by
such time deal in or vend such liquors as aforesaid , and
shall bewilling to supply the same to the said lessee of sect. 10 of the Conveyancing Act 1881. They
good quality and at the fair currentmarket price thereof. referred to
In July 1889 Clegg and Wright agreed to sell Lybbe v. Hart, 52 L. T. Rep N . S. 634 ; 29 Ch. Div .
8-19 ;
their brewery plant and business and the good Mayor of Congleton v. Patteson , 10 East, 130 ;
will to the plaintiff Cain, who carried on busi Keppell v. Bailey , 2 Myl. & K . 517, 544
ness as a brewer at the Mersey Brewery, which Anon , Godbolt, 120 ;
was near the brewery of Clegg and Wright. Purfrey's case,Moore, 243 ;
Mr. Cain was also a vendor of the ales not of his Sampson v. Easterby , 9 B . & C . 505 ;
own brewing. The purchase was completed on Taylor v. Caldwell, 8 L. T. Rep .' N . S. 356 ; 3
the 2nd Oct., when Messrs. Clegg and Wright B . & S . 826 ;
dissolved partnership aud ceased to carry on Thomas v. Hayward ,20 L . T .Rep . N . S. 814 ; L . Rep.
business . 4 Ex. 311 ;
Hartley v. Pehall, Peake, 178 :
By an indenture of that date Messrs. Clegg Davidson' s Conveyancing, 3rd edit ., vol. 5 , part 1,
and Wright conveyed to Mr. Cain the Alexandra p. 136.
Hotel and the benefit of the rents and covenants Cozens-Hardy, Q .C . and Rutherford for the
reserved in the lease to the defendant, and the
deed expressly assigned the above-mentioned respondents. The case must be decided on the
restrictive covenant by the defendant relating to construction of the covenant. The definition of
“ lessors ” includes assigns wherever that word
the sale of beer. Mr. Cain then closed the Alton occurs in the lease, and the provisions in the
Brewery, and the defendant declined to take beer corenant were intended to meet any case not
from him . included in the definition of “ lessors." The
Mr. Cain then commenced this action in the covenant is not to take beer brewed by Clegg and
names of and with the concurrence of Clegg and
Wright as well as of himself, claiming an injunc Wright, or at a particular brewery. They are.
tion restraining the defendant from selling beer not bound to brew the beer they sell to him .
Cain is an assign of the goodwill of the brewing
other than such as should have been bona fide business,
purchased of the plaintiff, Mr. Cain, either mises,and the business itself, the brewery pre
the reversion of the lease of the public
directly or through Clegg and Wright. house, and the benefit of the covenant is expressly
The Vice-Chancellor granted the injunction as assigned to him . Then there is a covenant by
claimed . the lessee to use the premises as a public-house,
The defendantappealed. and that it shall be used to sell the beer of the
Henn Collins, Q .C ., Mattinson , and MacConkey reversioners. It is a covenantwhich runs with
for the appellant.-- The true construction of the the land. The value of the reversion depends
corenant, is that the defendantwill take the beer on this being a tied house. The doctrine in
from Clegg and Wright so long as they continue Spencer's case is altered by sect. 10 of the
to carry on business either jointly or alone or in Conveyancing Act 1881. It enlarges the number
partnership with any other person. He is not | of persons who can sue on such a covenant.
bound to take it from any person who may But it is unnecessary to consider whether
become an assign of the brewery and public- this covenant runs with the land, as the cove
house, and who perhaps may not be a brewer : Jnantees and their assign are co-plaintiffs. The
Doe d . Calvert v. Reid , 10 B . & C . 849. I defendant is in possession under & deed con
504 _ Vol. LXII., N .8.) THE LAW TIMES. [June 7, 1890.
CT. OF APP.] CLEGG v. Hands. [CT. OF APP.
taining a restrictive covenant, and is bound thereof, any ales, stout (other than best stout)
by it : other than such " — this is what the argumenthas
Tulk v. Moxhay, 2 Ph .774 ; been upon — " as shall have been bona fide pur.
Luker v . Dennis, 37 L. T. Rep . N . S . 827 ; 7 Ch . chased of the said lessors, or from them or either
Div. 227 . of them , either alone or jointly with any other
They also referred to person or persons who may hereafter become a
Vyvyan v . Arthur, 1 B . & C . 410 ; partner or partners with them or either of them ."
Hooper v . Clark . L . Rep . 2 Q . B . 200 : It is said that that is not a covenant which in
Renals v. Cowlishaw , 38 L . T. Rep. N . S. 503 ; 41 cludes the assigns, because part of the definition
L . T . Rep. N . S. 116 ; 9 Ch. Div. 125 ; 11 Ch. Div. is repeated here in terms which exclude the full
866 ; application of that definition , that is to say, the
Spicer Martin, 60 L. T. Rep. N . S. 546 ; 14 App.
Cas. v.12. description of the persons who are described as
Henn Collins, Q.C. in reply. — The covenant “ the lessors." But I cannot think that thatis so.
must not be read as adding to the definition The corenant, as I pointed out, is entered into
clause. it must be implied from the context with the lessors, that is, the persons named, each
that the assigns must be brewers. Although it or any of them , or the heirs, executors, adminis.
does not say that Clegg and Wright must brew the trators, or assigns of each or any of them . Very
beer, the class of persons with whom the covenant probably it was not necessary to add what is here
is made is mentioned . Either the covenant is put, but I cannot think that prevents the cove
with Clegg and Wright and their partners, or it is nant being a covenant with the assigns of those
for the benefit of anyone whether a brewer or who were the grantors ofthis lease to the defen
not. In the latter case it is purely collateral, and dant. But then it is said , as I understand the
the benefit of it cannot be assigned by Clegg and argument, that is was only intended to include
Wright to another person. Tulk v. Moxhay does such assigns as should carry on the business of
not apply, as this is not a negative covenant, but brewers at this particular brewery, which was
an affirmative one : assigred to one of the plaintiffs, and where the
Haywood v. Brunswick Permanent Benefit Building business of brewing is no longer carried on . A
Society, 45 L . T . Rep. N . S. 699 ; 8 Q . B . case to which reference was made (Doe d . Calvert
Div . 403 ; v . Reid ) was much relied upon for the purpose of
Austerberry v. Corporation of Oldham , 53 L . T . Rep . that construction ; but it was a case where the
N . S. 543 ; 29 Ch. Div. 750. language was different, and, in my opinion, it is
He also referred to clear that was not the intention in the present
Keates v. Lyon, case. The covenant then says : “ Provided they
Ch . App . 218 ; 20 L. T. Rep. N. S. 255 ; L. Rep.4 or he shall at such times deal in or vend such
Tatem v. Chaplin , 2 Hy . Bl. 133 ;
Robson v. Drummond, 2 B . & Ald . 303 . liquors as aforesaid ,and shallbe willing to supply
the same to the lessee of good quality and at the
COTTON , L .J. — This is a question involving fair current market price.” Well, I pointed out,
beveral points, but, as it has been very fully and or Lindley, L .J. pointed out, in the course of the
ably argued , we think we had better give judg. argument, that there is some protection afforded
ment at once. The first question arises in this to the publican by this provision that the heer
way : An injunction has been granted to restrain shall be of good quality, and that it shall be
the defendant from buying beer contrary to the supplied at the fair current market price. Then ,
covenant in his lease, and the question raised is in my opinion, it is shown clearly here that it was
therefore, what is the true construction of the not intended to restrict this covenant for the
covenant ! I will take that first, as, in my benefit of the persons who carried on this brewery
opinion , the covenant, in the events that have at this particular place, by not in any way refer
happened, will prevent the defendant from buy . ring to the heer, which has to be provided , being
ing his beer except upon the terms of that cove made by the landlords or their assigns. The
nant, if there is nothing else to prevent its being words are “ provided they or he shall atsuch time
enforced against him . There was a lease entered deal in or vend such liquors.” It shows that it
into between Clegg and Wright and the defen was notmade or intended to be made a stipula
dant. Clegg and Wright are described as “ here tion that the persons entitled to the benefit of the
inafter called the lessors (including in such term covenant were to be persons who made beer at
each of them and their and each and every of all. Itwas not provided that they should still
their heirs, executors, administrators, and as make the beer they were selling, but it was pro
signs ' ). I read that because a good dealof the vided that it should be of good quality and be
argument for the appellant was founded on it . supplied at the fair current market price, “ pro
Then the defendant is described as the lessee. vided they . . . deal in or vend ” beer. Con
Then we come to this, that there is a covenant siderable light was, to mymind, thrown upon the
entered into by the lessee in terms with “ the true intention of the parties by what was put
lessors," that is, with each of them , and their before us by Mr. Collins in his reply , that at this
each and every of their heirs, executors, adminis time these landlords not only made beer, but
trators, and assigns. There is no doubt about bought beer to supply to those who were not
that. Then we come to the particular covenant bound by any restrictive covenants to take beer
in question . That is this : that “ the said lessee from them alone. That, I think, does show what
will not at any time during the continuance of they intended to proride for - not that they
this demise buy, receive, sell, or dispose of, either should supply beer which they themselves made,
directly or indirectly , or permit to be bought, but that they should go on doing what they were
received , sold, or disposed of, either directly then doing - buying beer - and be willing and
or indirectly ” — there is no difficulty about able to supply it of good quality and at the
construction there — " in , upon , out of, or fair market price. Then cases were referred to
about the said demised premises, or any part 1 Cases, so far as they give us a rule of construc
June 7, 1890 .) THE LAW TIMES. [ Vol. LXII., N . 8. - 505
CT. OF APP.) CLEGG v. HANDS. [CT. OF APP.
tion , are very useful, but it is very seldom , to my | plaintiff Cain . He is therefore entitled to sue,
mind, that a case on the construction of a par . independently of the question of its running with
ticular document tells usmuch when we come to the land, so far as by assignment the landlords
another, unless it lays down some principle to who entered into this covenant could give him
guide us. In the case referred to (Doe d . Calvert the right. That being so , the difficulty there was
v. Reid ) there was an action by brewers against a in Renals v. Cowlishaw is got rid of. There
purchaser of beer for a public-honse. The is no doubt that here there is an assignment of
brewers had shut up the brewery , and though the benefit of the covenant to him , even if it did
they themselves carried on the business of not pass by the mere assignment to him of the
brewers, they did not carry it on at the place reversion of this public-house. Then , in my
where the lessors had carried on their business at opinion , as he is entitled to sue in respect of
the time the lease was granted . The words to that, the doctrine of Tulk v. Moxhay, properly
which reference wasmade are these , and I think applied , will enable him to enforce that asagainst
the case turns upon this almost entirely : The the defendant ; that is to say, when the defendant
purchaser shall " take of and from the said John obtains this public-house at a less rent, as we
Phillips and Samuel Miall, their executors, admin . may assume he does (because it was put before
istrators, or assigns, or their successors in their us in the course of the argument that it might
late or present trade as brewers, all the porter, affect the rental value of the house), we ought
ale," & c . It is true there was a covenant there not to allow him to deal with that public -house,
that they and their assigns should take from as against the person entitled to the benefit of
them , their executors, administrators, or assigns, that covenant, in a way inconsistent with the
or their successors in business in those covenant by reason of which he got it at a
terms. Then what followed ? The words lower rent. Therefore, in my opinion , on that
ground, even if this covenant did not run with
Â?Â?Â?Â?Â₂ Ò₂Â₂ Ò₂Â₂ÒÂ§\/m₂?₂?Â?₂tēģētiņģētiņ₂ ₂₂m₂₂?Â₂ÒâÒâ►
brewers," though not in terms limiting the the land, the judgment of the Vice-Chancellor
assigns to those in that position , did afford a is right. But then it is said - and that we ought
clue to the construction . The defendant said to consider — that this court has decided that the
they were no longer carrying on that trade, doctrine of Tulk v . Mo. hay will not be extended
because, though they were carryirg on the trade beyond the case of a restrictive covenant. In Tulk
of brewers, they were not carrying on the trade of V. Mochay it was not a corenantin its termsrestric
the lessors who were plaintiffs in the suit, and the tive, but it implied restriction, because there was
court said that what was meant was carrying on a covenant there that the premises were to be
the sametrade- not merely carrying on the trade used only as an ornamental garden . That implied
of brewers, but carrying on the trade which was that the defendant was not to build on it, which
carried on at that particular brewery . The con was what he was about to do. What was meant
struction which I put upon this covenant is was this : We will not enforce this doctrine
governed by the particular clause which occurs where the covenants are covenants which , if
here, and which does not occur in that case enforced, will compel the defendant to put his
which I have referred to, and this clause hand into his pocket and spend money . Here the
throws a different construction and effect upon defendant must have beer - his very food. This
this covenant from that which was given to decision will compelhim to buy from the plain
it by the different words in Calvert v. Reid . In tiffs. But even if this was a contract to buy all
ប្ប
my opinion , it cannot be said here that this was a beer from the plaintiffs, that would involve a
personal covenant with the particular landlords negative - that he should not buy his beer from
who granted the lease, or that it was impossible anybody else, and therefore, in my opinion , that
for the benefit of it to be conveyed to anybody would not come within the rule which we laid
else. It is not like entering into a contract with down, I think , in the case of Haywood v . The
a particular painter to paint your picture, which Brunswick Building Society , where there was a
would mean that he would not hand it over to contract which would involve the necessity, if it
anybody else . That is a contract made with him was enforced , of the defendant putting his hand
personally, and it must not be handed over to into his pocket - (it was a company, but I will
anybody else. In my opinion , this is not a con assume they had a pocket and some money in it)
tract which is incapable of being assigned . Then - to do something entirely separate and collateral.
it is said that this covenant does not run with the In that case the land was granted in consider
land. I think it does run with the land. That ation of a covenant to build and repair buildirgs,
is my opinion, but there are other points on and that was a covenant which the court refused
which this case might be decided independently to enforce, considering the doctrine of Tulk v.
of that. It is a contract relating to the way in Moxhay not applicable in such a case. In my
which the business of the house is to be carried opinion, both on the ground that here the cove
on ; therefore it is a contract relating to the nant did run with the land, and also on the
public-house, just asmuch , in my opinion , as a ground that the doctrine of Tulk v. Moxhay does
contract as to the mode in which the cultivation apply, I think the order of the Vice-Chancellor is
of a particular piece of land is to be carried on right.
relates to the land . It affects the value of the LINDLEY, L .J.- I agree with Mr. Collins in
reversion ; it affects thehouse ; and in myopinion thinking that this case is one of very great
it is a contract running with the land. " I think, importance, both to brewers, and also to tenants
therefore, if that is so, that will enable the judg. who take “ tied ” houses, because certainly it
ment to be supported , and will enable the present is rather a startling thing to anybody to be
owner of the reversion in this case to sue. But told that when you have agreed to buy beer
there is another ground on which I think the of a particular brewer, you may find your.
judgment might be supported . Here there has self bound to take bad beer of somebody else's.
been a sale by the landlord of the goodwill to the ' Whether you are or not depends upon the agree
506 – Vol. LXII., N . S.] THE LAW TIMES. [June 7, 1890.
CT. OP APP.] CLEGG v. HANDS . (CT. OP APP.
ment into which you have entered . The whole to methat you cannot put that limited construc
question here, to my mind, turns upon the true tion upon it , and the true construction to put
construction of this agreement, and the only upon it is that which interprets “ lessors " in the
difficulty that I think serious is to find out sense in which it occurs everywhere. That being
whether this agreement is or is not assignable ; the case, I think there can be no reasonable
that is to say, whether the tenant here entered doubt that this contract is not a personal and
into an agreement with certain persons relying / unassignable contract. Accordingly , the ques
upon their skill and personal reputation in agree- tion then arises whether it has been assigned to
ing to buy beer of them and them alone, or Mr. Cain . Well, the answer to that is easy
whether he did not enter into a very much wider enough . Unquestionably it has. If it is capable
contract agreeing to buy beer from them or per of being assigned , it has been assigned . It has
sons to whom they might assign their business or been assigned unquestionably and without any
the public-house. That question as to whether controversy in equity by the agreement by the
it is a personal unassignable contract or not, brewers with regard to the sale of the business,
must be gathered from the instrument itself, which of course includes the benefit of the good .
having regard of course to the position of both will, and inasmuch as the purchaser and his
parties. The lease has been gone through , and assignors are both suing, I see no answer what
I will refer to it very shortly. The lessors are ever to this action upon that ground. It has
described as brewers - there is no reference to also beer, said that it is assigned to Mr. Cain by
any particular place of business, or anything of means of his being an assignee of the reversion
that kind, and the lessee is described as a in the lease. That raises a technical question,
licensed victualler. Then there is an ordinary which , stated in legal language, amounts to this :
lease of a public-house ; and then there come whether the benefit of this covenant runs with
covenants by the tenant, that he will use and the land. We have heard the authorities dis
occupy the premises demised as and for a tavern cussed byMr.Collins,who has studied this branch
or public -house only, and will conduct the same of the law probably more carefully than anybody
so as not to forfeit his licence - I am reading it living, and he has not persuaded me, I confess,
shortly - and will keep open the premises for the that this is a covenant which does not run with
sale of the articles before mentioned , which I the land. I rather think it does. If you look at
will call ale and beer. Then there is a covenant the authorities which he has cited , and look at
about not getting ale or beer from other people . them carefully, this does, in legal language, so
Now , just let me see whether this lease does or “ touch and concern ” the demise as to " run
does not contain any indication , either one way or with " it at common law . But whether that is
the other, as to whether the benefit of this cove so or not, it appears tomethat it is absolutely no
nant was capable of being assigned . The very first answer with regard to that covenant, the benefit
thing that one comes across is the interpretation of which hasbeen expressly assigned to Mr. Cain ,
clause which follows the names of the brewers, and Mr. Cain is therefore entitled to it. Then
and describes them as “ hereinafter called ' the comes a question as to whether this covenant is one
lessors'- including in such term each of them and which can be enforced in equity , having regard
their and each and every of their heirs, executors, to the doctrine relating to specific performance
administrators, and assigns." Those words are and injunctions. Mr. Collins has suggested that,
never found in what are called personal con althongh this covenant is negative in point of
tracts. If I were to enter into an engagement form , it is affirmative in substance ; and that an
with an artist to paintmy picture, I should not injunction therefore ought not to be granted .
put those words in . If he died I should not But when you look at the whole of this lease,
leave it with his executors to finish what he had you find that the covenant which he suggests is
done. Such words are out of place altogether affirmative really involves a negative element
in a contract which is personal in that sense. in it. If you take into consideration the core.
Now , when we come to the covenant which more nant to keep open this place as a public -house
particularly relates to this matter ,we find that
and to sell beer there, you cannot treat the core.
the lessee has agreed with his lessors that he nant that follows as an affirmative covenant to
will not during the lease - I am again reading buy beer of the lessors,but you must put in “ ard
it shortly - sell or dispose of, on the premises, of the lessors exclusively ." If you get that, you
any ale or stout other than such as shall have | get a negative portion of the covenant which can
been bona fide purchased of the said lessors, or be properly enforced consistently with the
from them or either of them alone or jointly with doctrine applicable to cases of this kind ; and
any other person or persons who may hereafter therefore, whether you regard it as an affirma
become a partner or partners with them or either tive covenant with a negative element in it, or
of them . That clause lets in partners. The whether you regard it as split up, as it is here,
covenant, on the true construction of the agree into these two parts, partly affirmative and partly
ment, does not exclude such persons as these. negative, that negative part can be properly
It is not that I will cnly take beer from Clegg enforced . For these reasons, it appears to me
and Wright ; but it lets in the partners. Well, that the decision is right, and the appeal must be
does it go further ? It turns upon the construc dismissed with costs.
tion of a very few words. Mr. Collins says that LOPES, L .J. - The question in this case is on the
by reason of the introduction into this clause of construction of the covenant. In the definition
the words “ from them or either of them ,” which clause the word “ lessors ” includes assigns. It
occur in the definition clause, it is tolerably appa - | is contended with regard to this particular cove.
rent that the definition was departed from . I nant that by the words following “ lessors ” in
thought at first sight that there was a great deal | the covenant - I mean these words, “ from them
in favour of that construction ; but when you or either of them alone or jointly with any other
come to see what the whole clause is, it appears ' person or persons who may hereafter become a
June 7, 1890.) THE LAW TIMES. [Vol. LXII., N . S. - 507
Ct. Of App.] HARRIS v. KNIGHT. [ CT. OF APP.
partner or partners with them or either of them " ! to prove what she had alleged to be the will of
- being used , it was intended that the operation her late husband, and at her death the paper
of the definition clause was to be excluded , and produced at the funeral was not forthcoming.
that the covenant must be dealt with entirely The plaintiff propounded that document, and
apart from the definition clause. I cannot adopt pleaded that, although it had disappeared , the
that view . I am bound to say that at first I court ought to grant probate of it. No attempt
was somewhat taken with it,but on consideration had been made to show that the paper bore any
I think it cannot be maintained . It appears to date whatever, or that it contained an attestation
me that the words to which I have alluded clause to the names of the two witnesses.
following " lessors ” were introduced merely to Butt, J. pronounced for the paper, the contents of
cover the case of any partnership between the which had been proved in the course of the trial.
lessors and third parties, or their assigns and On appeal :
third parties — not only the assigns of thebrewery Held (dissentiente Cotton , L.J.), that the decision of
with which the covenantees were then concerned , Butt, J. was justifiable, having regard to the
but any assigns, provided only that they or he circumstances.
should at such time deal in or vend such liquors
as aforesaid , and should be willing to supply the WILLIAM KNIGHT,a gardener,living at Caversham ,
same to the said lessee of good quality and at a in Oxfordshire, owned a small freehold there,
fair current price. The covenant, therefore, in consisting of a double house with some land
my opinion , cannot be said to be a personal cove attached . This was his only property . This
nant. But then a question is raised as to freehold had been purchased with the money of
whether the benefit of this covenant runs with his wife, and she, being a good business woman ,
the reversion . It was contended by Mr. Collins was allowed to manage his affairs.
that it did not run with the reversion , and that William Knight died in 1877. At his funeral
it was purely collateral. The benefit, to run Mrs. Knight produced a written paper, stating
with the reversion ,must " touch or concern ” the that it was the will of her deceased husband. It
demised premises. Now , how does this covenant was subscribed with three names, one of which
touch or concern the demised premises ? It | purported to be the name of William Knight,
relates to the mode of enjoyment of a public written in his own handwriting.
honse. The thing demised is a public-house, and By this will Mrs. Knight took a life interest
the covenant compels the covenan' or to buy the , in the freehold , which at her death was to be
beer of the covenantee and his assigns. In my divided among the sons and daughters of the
opinion , it touches and concerns the demised | testator, there being some five or six of them .
premises ; it affects the mode of enjoyment of The defendant, the eldest son ofWilliam Knight,
the premises, and therefore it runs with the read the document through at the funeral, and
reversion . I entirely agree with what has been then said it was no will of his father's, and that
said with regard to the application of the case of the signature to it, purporting to be that of his
Tulk v . Mouhay, and I think this appeal should father,was not in his father's handwriting.
be dismissed . Mrs. Knight lived on the freehold undisturbed
Solicitors : J. Hands, agent for Bartlett and down to the summer of 1885, and she died on the
17th July in that year without ever having taken
Berry, Liverpool ; Field , Roscoe, and Co., agents any
for Miller, Peel, Hughes, and Co., Liverpool. steps to prove what she had alleged to be the
will of her late husband.
On the other hand the defendant, from the
time of his father's death down to the death of
Jan . 24, 25, 27 , and March 11. his mother, never took any steps to assert his
rights as heir-at-law .
(Before Cotton, LINDLEY, and LOPES, L .JJ.) Mrs. Knight had partly executed two wills of
HARRIS V.KNIGHT. (a ) her own, but neither of them was fully executed .
APPEAL FROM THE PROBATE DIVISION . In 1886 the defendant obtained letters of ad
Probate- Will - Non -existent document- Proof of ministration to the estate of his father on the
contents of destroyed will- Presumption - Evi representation that the latter died intestate.
The defendant's sister, the wife of James
dence . Harris, nowKnight's
propounded the and
paperpleaded
producedthat,
at
The plaintiff asked that probate might be pro- | William funeral.
nounced for a non -existent document as the last
will of her father, who died in 1877. At his though
grant
it had disappeared ,
probate of it.
the court ought to
funeral his wife produced a written paper in the Several relatives of the late William Knight
form of a wilī , stating that it was the will of her gave evidence in support of the plaintiff's case.
deceased husband. By it she took a life interest No attempt
in her husband's property, which at her death bore any datewas made to show that the paper
whatever, or that it contained an
was to be divided among the children of the attestation clause. There was, however, an
marriage. The document was subscribed with abundance of testimony to prove that the body
three names, one of which purported to be that of of the document was in the form of a will, and
the deceased , written in his own handwriting. that it was followed by three signatures, one of
The two other names were signatures of the
attesting witnesses. The widow continued to which purported to be tbat of William Knight.
occupy the freehold house and land where the Indeed, those two circumstances were not dis
puted . Further, the witnesses on both sides
deceased had lived (and which was the only pro were in accord generally as to the contents of the
perty left by him ) until her own death , which paper ; but while the relatives examined on
occurred in July 1885. She never took any steps behalf of the plaintiff stated that as far back as
(6) Reported by W . O. Biss, Esq., Barrister-at-Law. two years before his death William Knight told
508 – Vol. LXII., N . S.] THE LAW TIMES. (June 7, 1890.
CT. OF APP.) HARRIS v . KNIGHT. [CT. OP APP.
them he had made a will having such provisions , Stephen 's Digest of the Law of Evidence, p. 74 ;
as those contained in the paper read at the funeral, 2 Taylor on Evidence, 8th edit. p . 1854 .
two or three witnesses for the defence stated Cur. adv. vult.
thatnot long before his death the man told them March 11. - COTTON, L .J. - The question we have
he had notmade a will. There was also a direct to consider is , whether what is said to be the will
conflict of testimony as to the signature purport of William Knight was properly proved. The
ing to be that of the alleged testator. Neither of testator died in 1877. He had a small landed
the persons whose signatures were subscribed to property consisting of one of the eyots at Carer.
the paper after that purporting to be in the sham . "His heir -at- law disputed the will and
handwriting of William Knight was produced brought this appeal. At the time of the funeral
at the trial, and one of them died two years he said he should question the will, and he duly now
before Knight; but there was eridence to identify questiodns it on the ground that mother
it was not
in pos.
the signature of one of them , and testimony to execute . It is true he left his
show that both had been friends of William session of the property, but then it must be
Knight. As to the disappearance of the paper, remembered that she was not only a managing
evidence was given for the plaintiff to show that woman but had a good deal of influence over her
when , in July 1885, Mrs. Knight was on her son . The document had the names ofr's.the One two
death -bed , she had the paper one day as the persons written on it besides the testato
defendant was visiting her, and that after his | of those persons died in 1875 , but the other was
visit the document was never seen again . | alive for many years ; and the principal witness
Questioned as to this, the defendant gave quite in favour of the will admitted that during the
another account of the matter. He said that on whole of his lifetime he made no inquiry as to the
going up to the room in which his mother was on execution of the will. But to mymind what tells
her death -bed the old lady ordered his sister and most strongly against those who rely on the docu
another woman out of the room ; that these two ment is, that during the lifetime of the widow
persons having left the apartment, his mother they took no step and made no inquiry, and she
told him to take a paper out of the pocket of her | must have known all about the facts. The burden
dress ; that on his searching the pocket he found is thrown on those who wish to propound the
there was no paper in it ; that his sister was instrument. On the death of the widow theit will
called up,and, having been asked for an explan - | could not be found. On the evidence, had
ation , said the paper had fallen out of the been destroyed somehow or other. I think that,
pocket and she had placed it on the bed ; and though doubtful how , it had been destroyed by
that it was found between the bed and the the widow with the knowledge of the heir . His
mattress. And his sister having been again Lordship, referring to other matters of evidence,
ordered to leave the room , his mother told him observed that the court would not be justified in
that the paper did not concern any of her questioning the decision of Butt, J., who bad had
children , tore it up, and put the fragments in her the witnesses before him ,astestator,and to the existence of
pocket. He said it was quite a different looking the document signed by the bearing
paper from that read at the funeral; his sister the signatures of two other persons, one of which
said it was the same, and stated further that no was certainly genuine.] But that is not all. The
fragments of paper were found in her mother's law requires certain strict formalities as to attes
pocket after the defendant's visit. tation . [His Lordship here read the provisions
Butt, J. believed the evidence in support of the of the Wills Act, requiring two attesting witnesses
will, and came to the conclusion that it had been to see the testator sign , and to attest in his
duly executed ,and granted probate . presence and in the presence of one another.] I
The defendant appealed . dwell on the fact that to this document there was
Dr. Tristram , Q.C .and Arnold Statham for the no attesting clause in the usual form , the presence
of which would have required the court to presume
appellant. the attestation . The question ,whether the legal
C . A. Middleton and J. C. Priestley for the formalities Ihave been performed is a question of
respondent. fact ; and do not intend to refer to the cases in
The following authorities were referred to in which the judges (sometimes, I think, not with
the course of the arguments : good reason) have held that the formalities have
Podmore v. Wnatton , 3 Sw . & Tr. 449 ; been performed, because it is no use, to my mind,
Andrew v .Motley, 12 C . B . N . S. 514, 532 ; to refer to those cases unless they establish some
Delvin v . Skeats, 1 Sw . & Tr. 148 ; rule which must be obeyed. In my opinion this
Doe d . Davies v. Davies, 9 Q . B . Rep. N . S. (Ad . & court is at liberty to and must exercise its judg
El .) 648 : ment on this point. There is no proof as to these
Doe d . Harborne v. Lewis, 7 Car, & P . 574 ; formalities apart from presumption . If there had
Huble v . Clark , 1 Hag . 115 ; been an attestation clause , there being the hand
Charlton v. Hindmarsh , 8 H . of L . Cas. 160 ; writing of two persons as witnesses, which I will
Wharran v . Wharran , 3 Sw . & Tr. 301;
Woodward v. Goulstone, 55 L . T. Rep . N . S. 790 ; assume to be genuine, I should consider the for
11 App . Cas. 469 , 471 ; malities had been complied with , for I should
Cutto v. Gilbert, 9 Moo, P . C . 131 ; think that no one would have signed his name to
In the Goods of Brown, 1 Sw . & Tr. 32 ; the statements contained in such clause unless it
Sly v. Sly and Dredge, 2 Prob . Div. 91 ; were true. I consider from the contents of the
v. Quick,
Qüick Goods 3 Sw . & LTr.442 ;. 1 P . & D . 267 ; will that it bears internal evidence that it was
In the of Barber, . Rep
Burgoyne v. Showler, 1'Rob , 5 ; prepared by someone who did not know what the
Jarm . on Wills, 3rd edit. 79 ; 4th edit . 85 ; law was ; and the presumption is that the legal
In the Goods of Jane Thomas, 1 Sw . & Tr. 255 ; formalities for a valid will had not been complied
Trott v. Skidmore, 2 Sw . & Tr. 12 ; with. However it may seem to be against the
Tatham v. Hayes , 1885 (unreported ) ;
In the Goods of Eliz . Jordan , L . Rep . 1 P. & D . 555 ; I wishes of the deceased , who had signed this docu
June 7, 1890.] THE LAW TIMES. [Vol. LXII., N . 8. - 509
Cr.OF APP.) HARRIS v. KNIGHT. [CT. OF APP.
ment which he had said was hiswill, it is the duty | tually or ineffectually ? The presence of the two
ofthe court to decide according to the law . The names is significant. Why two ? Because two
Legislature has — in my opinion very wisely were necessary . Why have them at all except to
imposed these formalities to prevent documents render the instrument valid ? And there being
from being propounded as wills which are not no reason whatever to doubt the genuineness of
wills, and we are bound to follow the law . I the unproved signature, is it not a reasonable in .
think , therefore, that here the decision of the ference to infer its genuineness ? If it is , and
court below was a wrong and dangerous decision , there being no reason to suppose that anything
which would probably open the door to having was done irregularly or improperly,may it not
documents produced and propounded as wills be reasonably inferred thatall was done properly,
which were not executed with the formalities although there was no attestation clause to say
which the law requires. so ? These appear to me to be the true ques
LINDLEY, L .J. - A person who propounds for tions. Butt, J. has inferred that the unproved
probate an alleged will, and who is unable to signature was genuine, and that everything was
produce it or a copy or draft of it, or any written regularly done. I am not prepared to say he was
evidence of its contents, is bound to prove its con wrong. I can find no case that goes as far as
tents and its due execution and attestation by this ; but authorities are only of use as guides
evidence which is so clear and satisfactory as when a case turns on inferences of fact. The
to remove, not all possible, but all reasonable , extent to which the supposed will was acted
doubts upon these points. If he can do this he upon after the death of the deceased tends to
is entitled to probate, as is shown by Lord St. | support the inference in favour of its validity ;
Leonards' case : (Sugden v. Lord St. Leonards, whilst its destruction by the widow (if indeed she
34 L . T. Rep. N . S. 372 ; 1 Prob. Div. 154.) But destroyed it) tends the other way. The cardinal
it is obvious that any laxity or want of vigilance point is, that the judge who saw and heard the
on the part of the court in a case of this kind witnesses came to the conclusiun that the name
would encouragethe fabrication of wills and lead of the deceased at the end of the alleged will
to perjury, which it would be extremely difficult was his genuine signature. Given this and the
to detect. The questions before us are three : other uncontroverted facts of the case, I think
Did Knight make and sign a will ; secondly, was that the judge was justified in drawing the
it duly executed and attested ; and thirdly , were inferences which he did , and in pronouncing
its contents proved . The first question is settled , for the will.
the third is admitted. The case really turns on LOPES, L .J. - I regret that I am unable to take
the question whether the will was duly executed the same view as Cotton , L . J. When it is stated
and attested . The maxim Omnia præsumuntur that the alleged will in this case is not produced ,
rite esse acta is an expression in a short form of that the attesting witnesses are both dead , that
a reasonable probability, and of the propriety in the handwriting of one only of them can be
point of law of acting on such probability. The proved , and that there is no attestation clause , it
maxim expresses an inference which may reason will be readily understood that those who pro
ably be drawn when an intention to do some pounded the will had exceptional difficulties to
formal act is established , when the evidence is encounter. They were compelled to rely entirely
consistent with that intention having been carried on secondary evidence both as to the contents of
into effect in a proper way, but when the actual the will and its due execution - secondary evi
observance of all due formalities can only be dence which the learned judge has properly
inferred as a matter of probability . The maxim admitted in proof that the alleged will had been
is not wanted where such observance is proved , I destroyed , and that both the attesting witnesses
nor has it any place where such observance is were dead . In these exceptional circumstances,
disproved . The maxim only comes into operation | the learned judge has, amongst other things, to
where there is no proof one way or the other, but determine whether he ought, in the absence of
where it is more probable thatwhat was intended any evidence on the subject, except so far as any
to be done was done as it ought to have been done thing could be inferred from what was said to
to render it valid , rather than that it was done in have appeared on the face of the alleged will and
some other way which would defeat the intention the other circumstances of the case, to presume
proved to exist , and would render what was that the testator had signed the alleged will in
proved to have been dune of no effect. [His the simultaneous presence of two attesting wit
Lordship here referred to the cases of Trott v. | nesses. It is clear that a document purporting
Skidmore (2 Sw . & Tr. 12 ; 29 L . J. 156 ), Wright to be a will, having at its end the name of the
V. Rogers (38 L . J. N . S . 67, P . & M .), Re Jane testator, William Knight, and the names of
Thomas (1 Sw . & Tr.255 ; 28 L . J. N . S . 33, P. & M .) Eades and Henningham , oxisted at the time of
Burgoyne v. Showler (1 Rob . 5), in which the testator's death . There is no doubt but that
there had been no attesting clause , and the this document had previously existed for some
question of fact whether the will was duly exe two years ; that it was placed on the coffin before
cuted had been decided one way or the other. He the testator was buried ; that it was handed by
proceeded :] In this case it must be taken as the widow to the defendant; and that he took it
proved that a document to the effect mentioned and read it aloud at the funeral. Practically the
in the statement of claim and purporting to be contents of this document are admitted , and
the will of the deceased was signed by him ; that there is strong evidence to show that it disposed
two names of friends of his, now deceased , were of the property in accordance with the expressed
written underneath ; that one of these names was intention of the testator. There is evidence, too ,
a genuine signature ; and that there is no evi that the testator had stated that he had made a
dence about the other name. What is the will. Moreover, the disposition is reasonable
reasonable probability from these facts ? Is it and probable. There was in the court below
that the deceased did what he intended effec- l conflicting evidence with regard to the signature
510 — Vol. LXII., N . S .] THE LAW TIMES. [June 7, 1890.
Ct. Or App.] GARRARD v. EDGE. [CT. OF APP.
of the testator. The learned judge came to the presume, having regard to all the circumstances
conclusion that the signature was that of William of the case, that this will was duly executed . I
Knight, the testator. I should not readily in it am unable to say that he was not justified in so
case of this kind dissent from the judge who presuming . Appealdismissed with costs.
saw and heard the witnesses ; but in this case, on
the evidence, I should have arrived at the same Solicitors for the appellant, Tidy and Tidy.
conclusion , James Harris, the son -in -law , said Solicitor for the respondent, W . M . Willcocks.
by the learned judge to be a respectable person
and worthy of credit, swears to the signature.
The defendant, who denied the signature at the
funeral, and whose interest it was to upset the March 12 and 20.
will, never took the trouble to inquire of the (Before Cotton, LINDLEY, and LOPES, L .JJ.)
attesting witnesses whether it was his father's
signature, and whether they had attested that GARRARD V. EDGE. (a )
signature, although they both lived near him , APPEAL FROM THE CHANCERY DIVISION .
and Eades was a relative of his wife, but allowed Patent action — Infringement — Particulars of
the widow to remain in possession of the property objections — Certificate as to propriety of objec
until her death . These and other circumstances tions not asked for - Costs of meeting objections
induce me to think that the learned judge was - Taxation — Improper, vexatious, or unneces
right in holding that the signature was the sig . sary proceedings- Patents, Designs, and Trade
nature of William Knight, the testator. The Marks Act 1883 (46 | 47 Vict. c. 57), 8. 29,
circumstances with regard to the destruction of sub- sect. 6 — Rules of Court 1883, Order LXV.,
the alleged will are mysterious. Whether it was r. 27, sub-rules 20, 21.
actually destroyed by the mother , or the son , or
both , or what became of it, it is difficult to specu Anofaction was brought to restrain the infringement
a patent. The defendants pleaded no infringe
late, but that the document destroyed was the ment and also invalidity of the patent on the
alleged will I entertain no doubt. How , then , grounds set out in their particulars of objections.
does the case stand ? The evidence places before At the trial the action was dismissed with costs
me, and I look at, a document in existence two on the sole ground of no infringement, the court
years before his death , and left about so that it declining to go into the question of validity , and
might be seen by members of the family , dis this decision was affirmed on appeal. At the
posing of the testaior's property in a way he close of the trial no certificate was asked for or
desired , in a reasonable and probable way, having granted under sect.29, sub -sect. 6 , of the Patents,
at its foot his signature, and in the place where Designs, and Trade Marks Act 1883, that the
you would expect to find the names of the attest defendants' objections, were “ reasonable and
ing witnesses, the names of Eades and Henning proper.” Upon the taxation of the defendants'
ham , both friends of the testator, and living near
him . There is no attestation clause ; the attest costs the taxing ofmaster
the particulars disallowed all the costs of
objections, as no certificate had
ing witnesses are both dead ,and the handwriting been obtained . Theplaintif then carried in for
of only one of them is proved . Unless those two taxation a bill of costs occasioned by his having
witnesses were simultaneously present when the had to meet the defendants' objections. The
testator signed his name or acknowledged his taxing master refused to tax the bill and dis
signature, the will cannot stand. There is allowed it altogether. The plaintif took out a
nothing to show they were not. What is the summons to review the taxation on the ground
fair and probable inference to be drawn from that the objections were " improper, vexatious, or
all the circumstances of this case ? The pre unnecessary ” within the Rules of Court 1883,
sumption of due attestation is an inference Order LXV., r. 27, sub-rule 20, and that such
of fact, an inference of reasonable probability. costs should be set off under sub -rule 21 against
The testator clearly knew he must sign ; he knew the costs payable by him to the defendants.
that there must be two witnesses. Is it not Held (affirming thedecision of Kay, J.), that, as the
more probable than not that he also knew that costs of the defendants with reference to their
those witnesses must be present together ? And particulars of objectionswere only disallowed in
is it not more probable than not that the signature consequence of the absence of a certificate by the
which purports to be Henningham 's signature is judge under sect. 29, sub-sect. 6 , of the Patents,
his signature? Is it conceivable that the defen Designs, and Trade Marks Act 1883, and not
dant, if he really had any doubt about the due because their objections were unreasonable, im
execution of this will, would not have made proper, or vexatious, the taxing master could
inquiries of Eades and Henningham : His notconsider that question ,and consequently could
conduct is more consistent with a belief that the not allow any of the plaintiff's costs of meeting
will was duly executed than with any other view .
The inference to be drawn in cases of this kind | If the objections.
in such a case a plaintiff considers that in conse
depends upon a number of circumstances peculiar quence of improper or unreasonable objections
to the cases in which they arose, and the he has incurred extra costs, he ought to ask the
maxim Omnia præsumuntur rite esse acta applies court to direct the taxing master to consider that
with more or less force according to the circum question , and to direct that the defendant shall
stances of each case. In every case of this pay the costs so incurred by him .
kind the court should be influenced by a desire
that the intention of the testator should not be THE plaintiff brought an action in respect of the
frustrated when the execution of the testator is | alleged infringement of his patent by the defen
sufficiently proved and the will on its face dants.
complies with the requirements of the statute. SCRATCHLEY and W . C . Biss, Esqrs.,
The learned judge has decided that he ought to I (a) Reported by E . A .Barristers -at-Law .
June 7, 1890.] THE LAW TIMES. [Vol. LXII., N . 8.- 511
CT. OF APP. ] GARRARD v. EDGE. [CT. OF APP.
The defendants pleaded no infringement and in the Queen 's Bench Division the master shall make
also invalidity of the patent, and delivered parti such order as may be required to effect the object of
culars of objections alleging prior user, some of this regulation .
which they supported by evidence. The summons was adjourned into court and
At the trial the action was dismissed , with cameon to be heard before Kay, J. on the 7th
costs, on the sole ground of no infringement, the andMarten,
14th Feb .
court declining to go into the question of validity . Q .C., Moulton, Q .C., and Swinfen
The plaintiff had, however, called witnesses to Eady, for the plaintiff, contended that, under
meet the defendants' objections to the validity of Order LXV., r. 27, sub-rule 21, his costs occa
his patent. sioned by the defendants'particulars of objections
At the close of the trial no certificate was should be set off against the costs he had to pay,
asked for or granted under sect. 29, sub-sect. 6, of and that the taxing master should not have
the Patents, Designs, and Trade Marks Act 1883 refused to tax his bill merely on the ground of
(46 & 47 Vict. c. 57), allowing the defendants' the absence of a certificate allowing the defen
particulars of cbjections as “ reasonable and dants' particulars of objections, but should have
proper,” so as to entitle the defendants to the looked into the matter to see whether the par
costs of them ticulars were “ improper, vexatious, or unneces
Upon the taxation of the defendants' costs sary," within the meaning of Order LXV., r. 27,
under the judgment the taxing master disallowed sub -rule 20, and, therefore, whether the costs
all the costs of the particulars of objections, as occasioned by them to the plaintiff should be
no certificate had been obtained . allowed to him . They referred to
The plaintiff then carried in for taxation a bill Patents, Designs, and Trade Marks Act 1883, 8. 29,
of costs occasioned by his having had to meet the sub-sect. 6 ;
defendants' particulars of objections, and applied Badische Anilin und Soda Fabrik v. Levinstein, 53
that such costsmight be taxed and set off against L . T . Rep . N . S. 750 ; 29 Ch. Div . 366 ; 57 L . T .
the costs payable by him to the defendants, on Rep . N . S. 853 ; 12 App . Cas. 710 ;
Simmonds v . Hitchman , 53 L . T . Rep . N . S. 751, n .;
the ground that the costs occasioned by the 29 Ch . Div. 417, n. ; Eng. Rep. Jan. to March
particulars of objections were costs of " improper, 1881, p. xvi. App. ;
Texatious, or unnecessary ” proceedings within Longbottom
Ch. Div . 46v.; Shaw , 61 L. T. Rep. N . S. 325 ; 43
the Rules of the Supreme Court 1883, Order Boyd v. Horrocks,6 Rep . Pat. Cas. 152 ;
LXV., r. 27, sub-rule 20, and that such costs Aston , Q.C . and Chadwyck Healey, for the
should be set off under sub-rule 21 ; but the defendants,
taxing master refused to tax the bill and dis referred Jo
allowed it altogether. ReDivMills'
. 24 ;
Estate,55 L. T. Rep . N . S . 465 ; 34 Ch.
Objections by the plaintiff to the taxing Rules of Court 1883, Order LXV., r. 1.
master's refusal having been disallowed by him , Marten , Q .C . replied .
the plaintiff took out a summons to review the
taxation . Kay, J. - I am bound to say I disagree with a
Sub-sect. 6 of sect. 29 of the Patents, Designs, great part of the argument addressed to me on
and Trade Marks Act 1883 enacts that : each side of this case ; but I have arrived at a
On taxation of costs regard shall be bad to the parti conclusion quite satisfactory to my own mind,
culars delivered by the plaintiff and by the defendant, and I will endeavour to state as shortly as I can
and they respectively shall not be allowed any costs in the grounds of it. This is a patent action . The
respect of any particular delivered by them unless the plaintiff's action at the trial was dismissed with
same is certified by the court or a judge to have been costs. The defendants had denied the validity
proven , or to have been reasonable and proper, without of the patent and denied infringement. As I
regard to the general costs of the case.
Sub -rule 20 of rule 27 of Order LXV. of the understand, the action was dismissed with costs
Rules of SupremeCourt 1883 provides as follows : because the plaintiff could not make out the case
of infringement, and the court declined to give
The court or judge may, at the hearing of any cause
or matter , or upon any application or proceeding in any any judgment at all upon the issue whether the
cause or matter in court or at chambers , and whether patent was valid or not. Now , the defendants
the same is objected to or not, direct the costs of any had carried in certain particulars of objections
indorsement on a writ of summons , pleading, summons, to the validity of the patent. At the trial the
affidavit, evidence, notice requiring a statementof claim , court did not give any certificate that those
notice to produce, admit, or cross-examine witnesses , objections were reasonable and proper. Therefore,
account, statement, procuring discovery by interroga there has been no adjudication by the court
tories or order, applications for time, bills of costs,
service of notice of motion or summons, or other pro whether the particulars of objections were
ceeding , or any part thereof, which is improper, vexa reasonable and proper or not. For anything I
tious, or unnecessary , or contains vexations or unneces know , they may have been perfectly reasonable
sary matter, or is of unnecessary length , or caused by
misconduct or negligence, to be disallowed , or may and proper. I never heard that a defendant was
direct the taxing office to look into the same and to not entitled to have two strings to his bow , that
disallow the costs thereof, or of such part thereof as he he might not say, “ I have not infringed your
shall find to be improper , unnecessary, or vexations, or patent; and even if I have, your patent isinvalid."
to contain unnecessary matter, or to be of unnecessary
length, or caused by misconduct or negligence, and in Clearly, he can raise both of these issues, and
such case the party whose costs are so disallowed shall because he succeeds upon one it does not neces
pay the costs occasioned thereby to the other parties, sarily follow that the other issue was improper
and in any case where such question shall not have been or unnecessary. Then the court, not having
raised before and dealt with by the conrt or judge, it given any certificate, by the terms of the 29th
shall be the duty of the taxing officer to look into the section of the Patents, & c ., Act of 1883, although
same (and , as to evidence, although the same may be the plaintiff was ordered to pay the costs of the
entered as reud in any decree or order) for the purpose defendants, the defendants could not recover the
aforesaid , and thereupon the same consequences shall
ensue as if he had been specially directed to do so ; and I costs of the particulars they had delivered . That
512 - Vol. LXII., N . S.] THE LAW TIMES. [ June 7, 1890.
CT. OF APP.] GARRARD v . EDGE. [CT. OF APP.
section provides that, in an action for infringe- | the costs occasioned to the plaintiff by that ob .
ment of a patent, the defendant must deliverjection ought to be allowed to him , and set off
particulars of objections, and on tasation of against the costs he has to pay. That is the
costs regard shall be had to the particulars | argument. But I wonder what would have hap
delivered by the defendant, and the defendant pened supposing the court had given a certificate
shall not be allowed any costs in respect of any that that objection was not reasonable. Would
particulars delivered by him unless the same is the plaintiff then have been entitled to the costs
certified by the court or a judge to have been for which he is now asking ? To my mind it is
proven or to have been reasonable and proper. I clear that he would not. The plaintiff would not
have read the section shortly, leaving out the be entitled to the costs occasioned by any one of
reference to the plaintiff. But the enactment these objections if the court had given a certifi
refers to the plaintiff and defendant respectively . cate. The court has not given a certificate,
The defendants here could not get any costs what- whether because the court was not asked or
ever of these particulars, and although the costs because the court would not go into the matter is
were carried in by the defendants with a laudable | quite indifferent. There has been no certificate,
anxiety to get all they could out of the plaintif - it and that is the only reason why the taxing master
seems to be considered an extremely proper pro - has disallowed those costs. He has not disallowed
ceeding - the taxing master disallowed them en them because they were improper, unnecessary,
bloc. He said , “ I disallow them because there is no or vexatious. In order to now grant to the
certificate.” I never saw a case conducted with plaintiff that which he asks, as a precedent
so much determination on the part of a litigant condition of this order, there must have been
party to get every advantage he could. I had a disallowance of costs of the defendant because
before me an extraordinary application , which , they were improper, unnecessary , or Texatious.
if I remember rightly , I refused ,and then it was It seems to me the taxing master is perfectly
refused by the Court of Appeal. The action right, and the reason he has given is perfectly
came on for trial and then went to the Court of right. He says : “ I have not disallored these costs
Appeal, and now we have a fight over the costs. of the defendants because they were improper,
The plaintiff now says : “ True, all these costs unnecessary, or vexatious, but merely because
have been disallowed to the defendants, and dis - a certificate has not been given ." Therefore the
allowed because no certificate was given . But | precedent condition which is necessary for the
these proceedings of the defendants, the costs of plaintiff to make out before he can get that set-off
which have been disallowed , caused me to incur of costs which he is trying to get fails him . He has
very considerable costs with the view of meeting to show that the costs of the defendants have
them ; and I ask that these costs, or some of been disallowed because they were improper,
them , which I have incurred shall be allowed to unnecessary , or vexatious, which they have not.
me and set off against the costs which I have to I therefore dismiss the summons with costs.
pay." Well, if there is a law to that effect, it is From this decision the plaintiff appealed .
quite right that the plaintiff should have that
relief. He relies upon Order LXV., r. 27 , sub- 1 Marten , Q .C . and Swinfen Eady for the appel.
rule 20, which provides, reading it shortly, that lant. - In the absence of the certificate under
the court inay, at the trial or otherwise, direct sub -sect. 6 of sect. 29 of the Patents, Designs, and
the costs of any pleading, summons, affidavit, Trade Marks Act 1883 , the particulars of objec
evidence, and so on , which is improper, vexatious, tion delivered by thedefendantsmust be taken to
or unnecessary , or contains vexatious or uneces . have been unreasonable and improper, and it was
sary matter, to be disallowed , or may direct the the duty of the taxing master to have considered
taxing officer to look into the sameand disallow | that question without any direction from the judge
the costs ; and in such case the party whose costs Order LXV., r. 27, sub-rule 20, provides that the
are so disallowed shall pay the costs occasioned judge may disallow costs, or direct the taxing
thereby to the other parties. You must therefore master to look into the matter, or if the judge
have à disallowance either by the court or by takes neither of these courses it is theduty of the
the taxing master of costs of, in this case , the taxing master to look into the matter without any
defendants because they are improper, vexatious, direction from the judge. The defendants by not
or unnecessary . The taxing master says, “ I have having asked for a certificate cannot oust the
disallowed the costs of all the particulars of taxing master's jurisdiction . The costs ought to
objections, not because they are improper, vexa be apportioned :
tious, or unnecessary, but simply because the Badische Anilin und Soda Fabrik v . Levinstein , 53
defendants have not got the proper certificate." L . T. Rep . N . S. 750 ; 29 Ch . Div. 366, 417 ;
As I understand, the argument is hardly pushed Simmonds v. Hitchman, 53 L . T . Rep . N . S. 751, n.;
so far that all the costs occasioned by the evidence 29 Ch. Div . 417 , n . ;
Re Wormsley, 39 L . T. Rep. N . S. 85.
brought in support of those objections, or all the Though
costs which the plaintiff incurred in order to the court would not go into the matter
meet them , shall be allowed to him , but it is said the taxing master could and ought to have
that the taxing master ought to look into the done so :
matter, and see whether certain of the costs occa Longbottom v. Shaw , 61 L. T. Rep. N . S. 325 ; 43
Ch . Div . 46 ;
sioned to the plaintiff by those objections shall Boyd v. Horrocks, 6 Rep. Pat. Cas. 152.
not be allowed to him . By way of illustration
this case is put : One of those objections, it is Aston , Q .C .and Chadwyck Healey for the defen
said , or some of them , were not supported by the dants.- The defendants not having asked for a
defendants by any evidence at all ; they did not certificate under sect. 29, sub-sect. 6, of the
adduce any witnesses whatever to prove the Patents, & c., Act 1889, could not be allowed these
objection ; and that objection must have been costs, and they having made no claim for them
improper,or at least unnecessary, and accordingly they were not disallowed . Then these costs not
June 7, 1890.] THE LAW TIMES. [ Vol. LXII., N . 8. -513
CT. OF APP. ] GARRARD v. EDGE. [CT. OP APP.
having been disallowed, Order LXV ., r. 27, sub - | thatthose objections were improper,unnecessary,
yule 20 , does not apply, and the taxing master or vexatious, then any costs which they have
could not consider the question as to these costs caused the other party to incur will be ordered
of the plaintiff. That order does not give the to be paid by them . But here, as I said before,
Chancery Division a new jurisdiction as to costs. the taxing master never had power to enter into
A successful defendant cannot be ordered to pay the question on the taxation of the defendants'
the plaintiff's costs: costs, whether these proceedings were in any way
Foster v. The Great Western Railway Company, 46 yexatiously or improperly taken by them , and,
L. T . Rep . N . S. 74 ; 8 Q . B . Div. 515. therefore, he considered he could not enter into
The rule does not apply to costs within sect. 29 the question which the plaintiff wished to bring
of the Patents, Designs, and Trade Marks Act before him . With that the judge agreed , and in
1883. Under that section it is the duty of the my opinion he was right, because , although it is
judge to consider whether the particulars of very true power is given by the rule to the tax
objections are proper, and he cannot delegate ing master of his own mere motion to enter into
that duty to the taxing inaster. The judge had the question if he finds that proceedings by one
party are vexatiously or improperly taken and to
the power to disallow the costs, bu's did not see
do so . what expense was caused to the other party
by these proceedings, yet there is , in my opinion ,
Marten, Q .C. in reply. a condition precedent to his having the power
Cotton , L .J. This case comes before us by to enter into the question what, if anything,
way of appeal from an application to review the ought to be paid to the other person in conse
taxing master's certificate, and it comes under quence of improper proceedings, namely, that the
somewhat special circumstances. The action was defendants ' costs must have been disallowed on
brought to restrain an alleged infringement of a | the ground that the proceedings in respect of
patent, and the defendants succeeded. There I which they were incurred were improper, vexa
were a good many objections taken to the validity tious, or unnecessary . It was said that these
of the patent on which the court did not decide particulars must be taken to be improper
in favour of the defendants ; and for some reason and vexatious with reference to this rule,
or other the defendants did not ask for a certifi because the judge has not certified that they are
cate under sect. 29, sub-sect. 6 , of the Patents, either proven or that they are reasonable and
Designs, and Trade Marks Act 1883, that their proper, and therefore in the mere absence of the
objections were properly taken . The judge certificate of the judge which would enable the
certainly could not have found that they were defendants to carry in their costs and to be
proved , and he was not asked to find that they allowed such of them as the taxing master did
were reasonable and proper . Then on taxation not strike out, of itself shows that these particu
the tasing master allowed the costs incurred lars were vexatious or improper. But I cannot
with reference to those objections taken by the agree with that. The Act of Parliament says
defendants, but afterwards, in consequence of the that regard shall be had to the particulars of
provisions of the section I have referred to, he objections delivered in the case of the defendant,
struck them out without entering into the ques . and that then if he does not get the certificate he
tion of the propriety of these costs or the pro shall not be allowed on taxation any costs of
ceedings taken by the defendants. That sub these particulars. But that is for an entirely
section provides that, “ On taxation of costs different object from what was aimed at by the
regard shall be had to the particulars delivered 20th sub-rule. It does not at all follow that
by the plaintiff and by the defendant; and they because the defendants have not liked or wished
respectively shall not be allowed any costs in or thought it desirable to ask for a certificate, or
respectof any particular delivered by them unless because the judge has not granted a certificate,
the same is certified by the court or a judge to thematter must be considered as coming within
have been proven or to have been reasonable and the 20th sub-rule so as to enaole the other party ,
proper without regard to the general costs of the plaintiff, to charge the defendants with the
the case.” Those costs were disallowed , I sup costs of any proceedings which he has taken in
pose, at the instance of the plaintiff. But then consequence of the objections raised, but as to
the plaintiff brought in a bill of costs with refer which they have not got a certificate. It is very
ence to the proceedings, which he had said true that thatmay seem to be hard on the plaintiff ,
he had taken in consequence of the objections but, in my opinion, he took thewrong course. If he
delivered by the defendants, and he contended wished to raise this point he ought to have asked
that, under Order LXV., r. 27, sub -rule 20, he was the judgeto direct thetaxingmaster to see whether
entitled to charge the defendants with the costs in consequence of any proceedings which had been
of the proceedings which he, the plaintiff, had improperly taken by the defendants, he had been
taken to meet the objections taken by the defen put to extra costs, and to tax these costs, and to
dants. The taxing master declined to enter into allow them to him as against the defendants. He
the question at all, because he considered that, did not think of doing that, just as the defen
as he had notbeen called upon and could not be dants did not think of asking for a certificate
required to tax the costs brought in by the defen . | that, although their objections were not proved ,
dants with reference to the objections which they | yet they were properly taken . For some reason
had taken ,and on which the judge did not decide at the plaintiff - whether because he did not think
ail, he had no power to act under this 20th sub - of it or because he did not think it prudent to do
rule, and the judge on the appeal to him thought so — did not ask the judge to give any such direc
he was right. It is said with reference to the tion . That, in my opinion , having regard to the
costs of proceedings taken by the defendants, if | 20th sub -rule, is what ought to be done. The
on taxation it is found either at the instance of judge can direct the taxing master to look into
the judge, or at the instance of the taxingmaster, i the costs and to see whether any proceedings
514 - Vol. LXII., N. S.] THE LAW TIMES. [ June 7, 1890.
CT. OP APP.] EDDOWES v . TJIE ARGENTINE LOAN AND MERCANTILE AGENCY COMPANY. [CT. OP APP.
were vexatious or improperly taken ; and if he / to spell it out, that that view is correct, and that
does not do it, the taxing master, in taxing the if ever a plaintiff wants to get costs occasioned
costs of any party , can consider whether the pro by improper objections he must ask for them .
ceedings to which those costs relate were pro That has this immense convenience, that the
ceedings which were vexatious or improperly judge who knows all about the case can give
taken . But, if it does not become the duty of the directions, whereas the taxing master who knows
taxing master to tax the costs of any party, he nothing about it would be exceedingly embar
cannot enter into the question under this rule, rassed in applying this rule to patent cases when
whether those costs have been improperly or the point raised is, as here, that the particulars of
vexatiously incurred , and have put the other objections have not only not been certified as
party to unnecessary costs which the party being proper, but have put the other party to
causing those costs ought to pay. Of course, if extra costs. It is a very difficult matter for the
the plaintiff thinks that, in consequence of im - taxing master to settle, and a comparatively easy
proper or vexatious objections taken by his matter for the judge to settle when he has tried
opponent, he has been put to unnecessary and the case. I think therefore theappeal fails.
improper costs, he can ask the judge if there is a LOPES, L .J. - Having regard to what has
decision in favour of the defendant, and if the happened in this case and to sect. 29, sub -sect. 6,
defendant does not ask for a certificate that those | of the Patents, Designs, and Trade Marks Act
objections were properly taken , to direct the 1883, there has been no such disallowance within
taxing master to see whether any proceedings
have been vexatiously or improperly taken by the the meaning of sub-sect. 20, rule 27, of Order
of the Rules of the Supreme Court as to
defendant; and to direct that he, the plaintiff, LXV. give the taxing master jurisdiction to deal with
shall get from the defendant the costs of any pro the costs in this case. Of course this depends on
ceedings which he has taken in consequence of
objections improperly taken by the defendant. In the construction of the rule,and I think that Kay,
J. and the taxing officer have both properly and
my opinion here, that was the view which the correctly construed that rule. I think therefore
taxing master took, and which Kay, J. took ,and that the appeal should be dismissed with costs.
I think that was right. I do not read the whole
of the sub-rule, but the case turns upon this Solicitors : Francis and Johnson ; Robinson ,
provision : “ In such a case theparty . . . shall Preston , and Stow , agents for Alfred Pointon ,
pay the costs occasioned thereby to the other Birmingham .
parties; and, in any case, where such question
shall not have been raised before, and dealt with
by the court or judge, it shall be the duty of the Wednesday, March 26.
taxing officer to look into the same . . . for (Before Cotton , LINDLEY, and Lopes, L.JJ.)
the purpose aforesaid.” He is to see as to the
costs which he can tax, and which it is his duty EDDOWES v. TILE THE ARGENTINE LOAN AND MERCAN
to tax, whether or not there have been any costs AGENCY COMPANY. (a )
relating to proceedings improperly taken . Here , APPEAL FROM THE CHANCERY DIVISION.
as I stated , in consequence of the course which was | Practice – Affidavit - Defect in jurat - Order
taken by the defendants, he could not enter into XXXVIII., rr. 6 , 14 .
this question . The costs of the proceedings in The jurat of an affidavit stated that it was “ Sworn
respect of which the defendants did not get a at R . in the British Vice-Consulate, this 20th
certificate never came for taxation in such a sense day of January 1890 .” It was signed by A . as
that the taxing master could judge whether or vice-consul, and the seal of the vice-consul was
not such proceedings were rexatiously or impro appended.
perly taken . In my opinion the appeal fails. In
future parties, if they desire to raise such a ques. There were some alterations in the affidavit which
tion as this , should see that they get a direction were initialed
the same ,and someblanks
handwritingas were filled up in
the signature.
from the judge so as to enable and direct the Held , that, though the words “ before me" should
taxing master to look into what the plaintiff here have been inserted , the reasonable probability
is desirousshould be looked into , which , of course, was that it was sworn before the rice-consul;
he can do on the judge 's direction. and it was a case in which the court should exer
LINDLEY, L .J. - I think there is a difficulty in cise the power given
applying the 20th sub-section of rule 27 of Order and order the affidavitbytoOrder XXXVIII., r. 14,
be received .
LXV. to patent cases. That rule is generally Decision of Kekewich , J. affirmed .
expressed as applicable to all actions, and there is
nothing at all in the rule about particulars of ob This was an appeal by the defendants from a
jections in patent actions. They are not specially decision of Kekewich , J. refusing an application by
dealt with at all, and the difficulty arises from them to take off the file an affidavit made by the
having to apply that rule to a case in which par. plaintiff, on the ground of irregularity .
The affidavit in question was made by the
ticulars of objections are specially dealt with . plaintiff,
They are specially dealt with by the 29th section who resides in the Argentine Republic,
in answer to interrogatories delivered by the
of the Patents, Designs, and Trade Marks Act, defendants
and when you come to consider and work the two for her examination . The principal
irregularity in the affidavit was in the form of
together there is a little difficulty about it, but I
am not at all prepared to say that the true con the jurat, which was as follows :
struction is not that which has been said to be Sworn at Rosario de Santa Fé, Argentine Republic, in
correct by the taxing master, Kay , J., and my the British Vice-Consulate, this 20th day of January
learned brother. There is a difficulty about it, 1890.
The
- (Signed ) H . M . MALLET, British Vice-Consul.
seal of the vice-consulwas also appended.
but not a difficulty so great as to lead meto ex
press a contrary opinion . I think,when you come i (a) Reported by W . C. Biss, Esq., Barrister -at-Law.
June 7, 1890 .) THE LAW TIMES. (Vol. LXII., N . 8. -515
CT, OF APP.] EDDOWES v. THE ARGENTINE LOAN AND MERCANTILE AGENCY COMPANY. [CT. OP APP.
The objection was that the words “ before me " signature appears at the bottom . The jurat
ought to have been inserted in the jurat, and as ought to have contained thewordswhich are found
they were omitted the affidavit could not be in the ordinary form adopted by commissioners,
received because there was nothing on the face viz ., " Before me," and it is said , as they are not
of it to show that it was duly sworn before a there, we ought not to allow this affidavit to
person authorised to administer oaths. Some remain upon the file. But rule 14 of Order
blanks had been left in the draft affidavit which XXXVIII. provides that, “ The court or a judge
were filled up apparently in the same handwriting may receive any affidavit sworn for the purpose
as the signature “ H . M .Mallet," and some altera of being used in ary cause or matter notwith
tions were initialed “ H . M . M .” apparently in the standing any defect by misdescription of parties
same writing. or otherwise in the title or jurat, or any other
Rule 6 of Order XXXVIII. of the Rules of irregularity in the form thereof." That is
the Supreme Court 1883 provides that affidavits intended , in my opinion , to cure such a defect as
in causes or matters depending in the High this. If we are satisfied that this affidavit in
Court may be sworn and taken before any of Her fact was sworn before a person who had autho
Majesty 's consuls or vice-consuls in any foreign rity to take the oath in this particular place, we
parts out of Her Majesty's dominions, and that are authorised , notwithstanding there is a defect
the judges and other officers ofseal the High Court in tbe form of the jurat, to order it to be put on
stall take judicial notice of the or signature the file or direct that it may remain on the file.
of any such consul or vice-consul attached , Now in this affidavit there is the signature of the
appended , or subscribed to any such affidavits. vice -consul “ H . M . Mallet ” in peculiar hand
Rule 14 provides : writing, and that which I read from the jurat is
The court or a judge may receive any affidavit sworn in his writing . But that is not all. There are a
for the purpose of being used in any cause or matter, considerable number of alterations in this affi.
notwithstanding any defect by misdescription of parties davit which are identified by his initials
or otherwise in the title or jurat, or any other irregu “ H . M . M ." in the same writing evidently as
larity in the form thereof, andmay direct a memorandum that which appears as his at the end of the jurat.
to be madeon the document that it has been so received. Besides this, not only are there alterations made
Channell, Q .C . and Glenn for the appellants. by someone else identified by his signature, but
The jurat is defective, and the affidavit should be there are also additions to the affidavit, blanks
taken off the file : filled up by him in his handwriting. Therefore
Reg. v. Bloxham , 6 Q . B . 528 ; I have no hesitation in saying I am satisfied that
Graham v. Ingleby, 1 Ex. 651; this affidavit was in fact sworn not only at the
Pilkington v. Hunsworth , 1 Y . & C . Ex, 612 ; office of the vice-consul at Rosario in the Argen
Cheney v. Courtois, 7 L. T . Rep. N . S . 680 ; 13 tine Republic as stated in the jurat, but that it
C . B . N . S . 634.
Order XXXVIII., r. 14, is intended to apply to was sworn before him personally, and therefore
I have no hesitation in saying that in this par
small irregularities, such as not stricly following ticular case, notwithstanding the informality in
the directions contained in rules 8 and 9, and not the jurat, we can and ought to order this affi
to such a serious defect as there is here . (LOPES, davit to remain on the file . If it is necessary
L .J. referred to Empey v. King, 13 M . & W . 519.] that there
Though the jurat in that case did not state that the judge orshould be anyweorder
the court, or signature
can and we will doof
the affidavit was sworn “ before ” the judge who what is necessary for the purpose of giving the
signed it , and only that it was sworn at his parties the benefit of this order. In my opinion
chambers, it was received because the court con this appeal fails, and must be dismissed .
sidered that it was the usual form in such a case , LINDLEY, L . J. - I am of the same opinion . With
though it might be different in the case of an reference to this defect in the jurat it is quite true
affidavit sworn before a commissioner . that the consul omitted to say sworn “ before
Warmington , Q .C . and 0 . L . Clare for the me.” What he has said is “ Sworn at Rosario de
respondent. - Sects. 5 and 6 of the Commissioners Santa Fé, Argentine Republic, in the British Vice
for Oaths Act 1889 (52 Vict. c. 10) show what is Consulate this 20th day of Jan . 1890," and he
now required to be in the jurat of an affidavit, then signed it. There are signs upon the original
and it does not appear that it is necessary to document itself which show that the vice- consul
insert the words omitted here. It would be an looked through it and looked through it with at
act of great impropriety for the vice-consul to tention . It is suggested , because he has not said
sign this jurat unless the oath had been taken in the jurat “ sworn before me," that it might
before him personally . The court will assume have been sworn before his clerk or an official.
from the appearance of his handwriting in the | Of course it might for anything I know . But
alterations and additions to the affidavit that it what is the reasonable inference ? Is the reason
was sworn before him , and the case is within able inference that it was sworn before him , or is
Order XXXVIII., r. 14 . The cases referred to there a reasonable inference the other way
were decided before that rule was in force. There being no evidence the other way at all, it
Channell, Q.C.in reply. strikes me, if you look at it as a matter of reason
able probability, the reasonable probability is all
COTTON, L .J. - This is an appeal from a decision in favour of everything having been rightly done,
of Kekewich , J. refusing to order this affidavit to for it would be, in my judgment, a very serious
be taken off the file on the ground that there is and gross breach of duty on the part of the vice
no sufficient proof of its having been properly | consul if hehas signed and sealed that document,
sworn . The jurat to the affidavit expresses that and it has not been properly sworn . Cases have
it was sworn at a certain place in the Argentine been referred to showing that affidavits in which
Republic on a certain day, but it does not say the jurat has been defective have not been
that it was sworn before the vice-consu ), whose I allowed to be rectified . There are such cases un
516 - Vol. LXII., V. S.] THE LAW TIMES. [ June 7, 1890.
CT. OF APP.) ELDER v. CARTER. [CT. OF APP.
doubtedly, and a vast amount of expense has been of an interpleader issue for the purpose of deter
incurred and a great amount of injustice has been mining what interest Haldeman had in them .
done in endeavouring to rectify affidavits and On the 28th May 1889 an issue was directed to
documents like this sworn abroad , by reason of be tried between the plaintiff and the defendant
some defect or omission by some clerk or official to ascertain whether Haldeman had any and
before whoin it was sworn . It was to cure that wbat interest in these shares or any and which of
very thing that rule 14 was put into Order them . A summonswas then taken out in this inter
XXXVIII., and rule 14 is addressed in terms to pleader issue by Mr. Carter asking for an order
this very defect. “ The court or a judge may " directing the attendance of the company by their
(bear in mind this has nothing whatever to do secretary or other proper officer, for the purpose
with criminal procedure — this is for civil purposes of producing their books, writings, or documents
only ) “ receive any affidavit sworn for the purpose containing any entries relating either to regis.
ofbeing used in any cause or matter notwith tration , transfer, ownership , or other dealings
standing any defect by misdescription of parties
with the shares in the company numbered 1 to
or otherwise in the title or jurat or any other375 ,000 , and for inspection of them . The only
party to the summons besides Mr. Carter was the
irregularity in the form thereof.” Now , what is
this but a defect or irregularity in the form of
company, and the interpleader issue was then
the jurat ? The jurat is defective in form . Ispending and had not been tried .
there the slightest reason for supposing there The summons was referred by the master to
was any defect in fact, the slightest reason for Denman, J., who referred it to the Divisional
supposing that this affidavit was not sworn before Court.
the vice-consulate ? None whatever. I think The matter came before Huddleston , B . and
the judge in the exercise of his discretion would Grantham , J., who considered that they had
say, “ I cannot look at it if there is the slightest jurisdiction to make the order asked , and that it
reason to suppose there was anything seriously was a proper case for doing so .
wrong, and I take it for granted there was not." The order made was : “ That the secretary or
It appears to metherefore that that very rule was proper officer of the Slide and Spur Gold Mines
put in for the purpose (judging from the language Limited doattendon Monday next,the21st inst.(or
of it, for I have no personal knowledge of the so soon thereafter as an appointment can be ob
matter) of curing such slips and defects. It tained ), before the master for the purpose of pro
appears to me that, though those words ought to ducing the books, writings, or other documents of
have been inserted , that rule applies to such a the said company containing any entries relating
case as this . That being so, I am of opinion either to the registration ,transfer, ownership, or
that this appeal must be dismissed . any other dealing with the shares in the company
LOPES, L.J. concurred . numbered 1 to 375,000 inclusive, for inspection
Cotton, L .J. — There will be a declaration that by the defendant and his solicitor, and do permit
the defendant or his solicitor to make copies of
the affidavit was properly received, notwith or extracts therefrom . And it is further ordered
standing the omission of the words “ before me" that the trial of this issue do stand out of the
in the jurat. paper for four days after the completion of such
Solicitors for the appellants, Hurrell and Mayo. inspection ."
Solicitors
Wynne .
for the plaintiff, Wynne, Holme, and From this order the company appealed.
Johnson Edwards for the appellants. — The
court has no jurisdiction to make such an order
against persons who are not parties except for the
Monday, April 21. purpose of giving evidence on some motion or
(Before LINDLEY and Bowen , L .JJ.) summons before the court. If rule 7 purports
ELDER v.CARTER. (a) to give jurisdiction to make such an order as this,
it is ultra vires,as it then ismore than a rule ofpro
APPEAL FROM THE QUEEN'S BENCH DIVISION. cedure or practice within sect. 17 ofthe Judicature
Practice- Production of documents before trial Act 1875 . In the case of The CentralNews Limited
Persons not parties to action - Order XXXVII., v . Eastern Telegraph Company (W . N . 1884, p. 23)
r. 7 . Mathew , J. said this rule was only intended to
An order cannot bemade under Order XXXVII., give a judge power to summon before him upon
r. 7, before the trialof an action for the production the hearing of any application any person who
of books or documents by a person not a party to might have documents which seemed to him
the action . material in deciding the application then before
Judgment of Divisional Court reversed . him , and he refused on that ground to make a
similar order to this. On appeal from that deci.
On the 23rd Feb. 1888, Mr. Carter obtained a sion
indgment for 40001. against a Mr. Haldeman, and (50 L . T. Rep. N . S. 235) it was affirmed on the
shortly afterwards Mr. Carter obtained an order ground that it was not a proper case in which to
under sect. 14 of 1 & 2 Vict. c. 110, charging make theorder ; but Watkin Williams, J. expressed
Haldeman's interest in 375,000 shares alleged to an opinion that, if this rule purported to give the
belong to him in the Slide and Spur Gold Mines court power to make such an order, it was ultra
Limited . These shares were standing in the vires, though Lord Coleridge, C . J . appears to have
name of a Mr. Elder, but it was alleged that he been of opinion that there was jurisdiction to
was a mere trustee for Mr. Haldeman. Shortly make it. In Rishdon v. White (5 Times Rep. 59),
afterwards an injunction was obtained from a where such an order appears to have been made,
divisional court restraining the transfer of or the question of jurisdiction does not seem to
any dealing with these shares until after the trial have been considered . He also referred to
Straker v. Reynolds, 60 L. T . Rep . N . S. 107 ; 22
(a) Reported by W . C. Biss, Esq., Barrister-at-Law . Q . B . Div. 262 ;
Jane 7, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 517
CT OF App.) ELDER v. CARTER. [Ct. of APP.
Warner v. Mosses, 43 L. T. Rep . N . S. 401; 16 rules 7, 8, and 9 of Order XXXVII., and con
Ch . Div. 100. tinued :] Now , on considering rule 7, wide as
[ Bowen, L .J. referred to Arnott v. Hayes, 57 L . T. the language is, it does not say at what time or
Rep. N . S. 299 ; 36 Ch . Dir. 731.] at what place or for what purpose this order is
Vennell for the respondent.— There is juris. to be made, except rule
documents. The
for the purpose of producing
is simple enough . There
diction to make this order. Rule 7 says a judge were difficulties in obtaining the attendance of
may order the attendance of any person for the
purpose of producing any documents " at any witnesses and production of documents at
stage of the proceedings," and the proviso care . common law except on the trial of actions, and
fully limits the power where it is intended to do there were statutes passed to remove those diffi
culties — the statute of 1 Will. 4 , c. 22, s. 5 , and
80. It is intended to give a power to a litigant to the Law Procedure Act 1854 , sect. 46 —
obtain before trial what he could obtain at the and Common when the rules had to be recast so as to
trialby subpoena duces tecum . Rules 8 and 9 show
that rule 7 was not intended to be confined to to Chancery andto allcommon
apply not only law actions but also
other actions in the High
production at the trial. In the Central News
Limited v . Eastern Telegraph Company (ubi sup.) Court, it becamenecessary to modify and change
Lord Coleridge, C . J. expressed an opinion that i the words, so as to make them applicable to all
proceedings in all courts. That is the history of
there was jurisdiction to make such an order in a this rule, and there is no question at all that it
proper case, though the order should be made is a most nseful rule. But the question is,
with caution . This is a proper case for making whether
such an order, and the company are not strangers practice we are to construe it as introducing a
to the action, for they have been restrained by entirely unheard of before and contrary,
injunction from dealing with the shares, and are | as I have endeavoured to show , to all principle and
all justice. Now , the answer to Mr. Vennell's
' therefore interested in these proceedings. argument is this : that you must look at this rule
LINDLEY, L.J., after stating the facts ,continued : with reference to the purpose for which it was
- The question is , whether that order made by introduced , and that purpose was not to give
the Divisional Court is right or wrong, and the litigant a right to discovery against any .
whether it can be supported . I confess that, body not a party to the action . So to con
when it was first read to me, it appeared to me to strue it would be to abuse the rule. The
he one the like of which I had never seen or object of it was to remove the difficulties
heard of before ; and the more the matter is which existed in compelling production of docu
reflected upon , the more difficult it is to support ments at various stages of the proceedings, both
that order. Let us see exactly how the matter before and after the trial, at the hearing of
stands. This company is no party whatever to motions, petitions, summonses, and examination
the interpleader issue . I do not say in point of of witnesses and the like; and that is the real
fact, but in point of law , the company has no legitimate object of the rule ; though it is not
more to do with it than I have or any stranger necessarily confined to production on the hearing
has. One of the parties to the issue says this : of any motion or petition , because there may be
“ Somebody has got some books which I should some proceeding before an official referee or an
like to see for the purpose of enabling me to go esaminer or a commission to take evidence to
into court and try my case upon that issue. which this rule would apply, and I am not at
There is Order XXXVII., r. 7 , which enables the all desirous of doing more than say that the
court to order anybody to produce anything if rule cannotbe construed so as to enable a litigant
it thinks fit at any time, and I can apply to the to obtain discovery from any person who is not a
court and get an order to see those books." party , which is the object of this application . I
That, to my mind, is a rery startling application . have no doubt whatever that what I have stated
It is contrary to principle, as far as I understand is the true view to take of the rule ; and I think ,
it. Putting aside the facts of this particular when the authorities are looked at, and they are
case, and looking at it as a general proposition , very few , there is no authority which is adverse to
the general proposition is this , that if any liti that view . The view of Mathew , J.,as expressed
gant wants to see books or documents held by in the case of The Central News Limited v.
anybody else who is not a party and thinks they Eastern Telegraph Company (ubi sup.), is clear
will be useful to him , he can go and get inspec that this rule does really no more than incor
tion of those books or documents from such porate the preceding statutory enactments to
person . That is entirely contrary to every rule which I hare referred ; and I think that is so ,
relating to discovery which has ever existed , with this explanation , that the language is made
either on the common law side or the equity side a little more general so as to extend it to all pro
of the court. It is a well-established rule now ceedings in the High Court. When that case
(the origin of it I do not recollect) that you can came on appeal from the decision of Mathew , J.
not get discovery except from a party to the before the Divisional Court, Watkin Williams, J.
action, and there is sense in that rule. There is suggested , and I think very justly, that, if the
another rule equally old and equally well estab rule were to bear the construction contended for ,
lished , that you cannot make a mere witness a it would be a very serious question whether it
party in order to get discovery out of him . That was not ultra vires ; and I concur in that riew .
would be abusing the doctrine of production and If it is to be so construed as to give any litigant
discovery. This particular application infringes the right to see thebooks of any party who is not
both those rules. The inconvenience and danger a party to the litigation , I should say that that
of granting such an application as this must be rule would be ultra vires, though I am satisfied
apparent, I think , to anybody who considers it . that that is not the true construction of it nor
But then reliance is placed on Order XXXVII., the true meaning. Then Mr. Vennell says that,
r. 7, which runs thus : [His Lordship then read 1 upon the facts, this company, although not a
Vol. LXII., N . S., 1595* .
518 - Vol. LXII., N.S.] THE LAW TIMES. [ June 7, 1890.
Ct. Or APP.) DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. [CT. OF APP.
party to this proceeding, is really so interested | would defeat the rights which had already
in it that there would be no injustice done in this been declared and defeat the order which had
particular case. I think that is so. Without already been obtained . But I am as certain as
going into the merits, I think it is very likely one can be of anything with regard to practice,
that, in this particular case, there would not be that it is not intended to enact that at any stage
any particular injustice done. I will assume that ; of a proceeding a judge may make, subject to
but the principle involved in that line of argu. his discretion , an order on a third person for the
ment is a dangerous one, and I, for one, cannot be production of a document which belongs to the
the first to sanction such a proceeding as is con third person , unless the production of it at that
tended for. It appears to me that the principle moment is a thing to which the parties are
is entirely against this order. Therefore the entitled for the purpose of justice; and you are
appeal will be allowed , and the order will be dis not entitled for the purpose of justice at any
charged . moment during a suit, simply because you are a
BOWEN, L .J. - I am of the sameopinion . Rule litigant, to see what is in the possession of a third
7 of Order XXXVII. is not intended to enlarge person and to have production of it . Such a
the rights of a litigant to discovery against third thing was never heard of. I do not believe it
persons who have nothing to do with the action, was ever dreamt of until rule 7 was submitted
nor to enlarge his rights to production of docu to the ingenuity of counsel. An attempt has
ments against them . The rule is one of practice been made to extract out of a rule which simply
and procedure, and therefore is and can only be refers to practice and procedure in an action ,a
a rule which is intended to enlarge the facilities power of obtaining inspection from a third person
of obtaining production when production is outside the action . If such a power exists it is
necessary for the purpose of justice. Now , in the most inquisitorial,and might be used for purposes
present instance the production of the document of infinite oppression . In this particular case, I
at the present moment cannot be necessary for dare say it would work no oppression at all, but
the purpose of justice. Whoever heard that there wehave to constrne the rule. The order will be
was a right on the part of a litigant, at the time discharged with costs here and below .
when there was no pending motion and no pend . Solicitors for the company, Burn and Berridge.
ing trial, to obtain inspection of a document Solicitor for the application , H . C . Barker.
which belongs to a third person, unless indeed
in the possible case where production of such a
document was necessary to carry out an order
which had already been obtained . The truth is, Nov. 21, 22, 23, 24, Dec. 2 and 3, 1889.
that no judgehas a right to think the production (Before Cotton, Bowen, and Fry, L.JJ.)
of such a document fit atthis particular moment,
inasmuch as it is interfering with rights of third DREYFUS AND Co. v. THE PERUVIAN GUANO
parties at a moment when there is no evidence COMPANY. (a )
being taken in the cause and when the presence APPEAL FROM THE CHANCERY DIVISION.
of the document is not necessary for the pur Inquiry - Damages - Wrongful detention of goods
pose of carrying out or completing any order ---Damages for being kept out of possession
which has been made. The Common Law Pro . Measure ofdamages - Lord Cairns Act (21 8. 29
cedure Act 1854, sect. 46, introduced at common Vict. c. 27), 8. 2 - Jurisdiction -- Damages
law a very valuable means of obtaining produc
tion of documents on the hearing of motions and Threatened injury.
summonses. At common law the ordinary sub The plaintiff's commenced an action against the
pana was a subpona ad testificandum ,and required defendants claiming delivery of certain cargoes
of guano (then on their way to this country),
the witness to be present in court for the purpose
of giving evidence to be used at the trial. The and an injunction to restrain the defendants
Common Law Procedure Act gave judges the from dealing with such cargoes. The defen
power of compelling the attendance of witnesses dants denied the title of the plaintiffs to the
to be examined ,and of directing that documents cargoes.
should be produced upon the hearing of motions An order was made by consent for the appoint.
and summonses. Then came rule 7 of Order ment of a receiver, and the defendants were
XXXVII., the object and scope of which (as has allowed to remain in possession of the cargoes,
always been said with regard to the Judicature without prejudice to any question, on an under.
Act) is not to increase rights as against third taking to keep accounts and to abide by any order
persons, but to give further facilities for enforcing the court might make. The statement of claim
rights which already exist. That rule does to was subsequently amended by claiming damages
a certain extent go further than the Common for detention of the cargoes. At the trial of the
action judgmentwasgiven in favour of the plain .
Law Procedure Act, because it abstains from tiffs, declaring them to be entitled to the cargoes ;
making it a condition precedent that an order and thai the defendants were not entitled to inbe
should be made upon the hearing of a motion or reimbursed certain expenses incurred by them
a summons. It says that an order may be made respect of the cargoes , and directing an inquiry
at any stage of the proceedings wherever pro whatdamageshad been sustained by the plaintiff's
duction is proper. I do not think we ought to
try to define the cases exhaustively in which pro by reason of the detention by the defendants of
duction may be proper. It is sufficient to say the cargoes.
that I can conceive a case in which production Theclaiming
defendants appealed from this judgment,
to be reimbursed for expenses incurred
of a documentmight be proper,though there was by them in respect of the cargoes received under
no motion or summons pending ; for instance, if
an order had already been made and the non -pro . the consent order. The appeal was dismissed,
duction of the documents by the third person ! (a) Reported by W . C. Biss , Esq., Barrister-at-Law.
June 7, 1890.) THE LAW TIMES. [Vol. LXII., N. 8.- 519
CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN Guano COMPANY. [CT. OF APP.
but on appeal to the House of Lords the judgment | tions at the port of call to the masters as to the
was varied by allowing the claim to expenses,but | ports at which they were to discharge.
no application wasmade to alterthe termsof the On the 27th April 1880 the writ in this action
inquiry. The chief clerk by his certificate was issued by Messrs. Dreyfus against the com
awarded a sum as damages on the footing that pany and the masters of the ships, claiming
there had been a wrongfuldetention of all cargoes delivery of the cargoes to the plaintiffs, and an
commencing on their arrival in this country . injunction to prevent the company from receiving
The defendants applied to have the certificate them . The plaintiffs moved for an injunction
varied ,on the ground that the effect of the decision and receiver, and on the 30th April 1880 an order
of the House of Lords was that there had been no was made on that motion by which, the company
wrongful detention, and thatthe plaintiffs were consenting, the action was dismissed agains the
entitled to nominal damages only . masters of the eleven ships without costs ; and
Held (Bowen , L .J. dissenting), that the inquiry the company undertaking that the receipt by
directed affirmed that there had been an unlawful them of the cargoes should be without prejudice
detention by the defendant company of the eleven to any questions between the parties, and that
cargoes in question which gave rise to damages ; they would keep separate accounts of expenditure
that the inquiry could not be satisfied by finding and receipts in respect ofthese cargoes,and abide
merely nominal damages ; that it was not com by any order the court might make as to them or
petent to the court in working out the inquiry , the proceeds of them , it was ordered that the
not reversed by any court, to deprive it of all costs of the motion were to be costs in the action,
meaning by reviewing the circumstances under and that the order was to be without prejudice to
which it was made; that the inquiry was not any question in the action . At the date of this
affected by the decision of the House of Lords, order only two of the ships had arrived , and none
and the certificate was right. of the cargoes had been actually received by the
Decision of Kay, J. (61 İ . T . Rep. N . S. 180) company.
offirmed . On the 16th July 1880 the statement of claim
Per Bowen , L.J.: The effect of the decision of the was delivered , and was amended on the 10th
House of Lordswas, that the taking possession by March 1881. It claimed delivery to the plain
the defendants of the cargoes under the consent tiffs of the cargoes, damages for their detention ,
order was not wrongful, and gave no right to and an injunction against the receipt of them by
damages ; that the court had no jurisdiction to the company.
give damages where there was only a threat to On the 9th Nov. 1880 the defence was put in ,
do a wrongful act ; that the terms of the inquiry stating that the company had taken possession of
did not prevent the chief clerk from finding that the cargoes under the Raphael contract, denying
there werenominal damages only ; that, as he had that such possession was wrongful, and denying
apparently proceeded on the ground that taking the plaintiffs' claim to the property in the car
possession under the consent order was itself an goes, and claiming for the company the right to
act of detention which entitled the plaintiffs to receive them .
damages, the certificate was wrong, and it ought By an order of the 16th Sept. 1880 the com
to be referred back to him to state whatwere the pany was allowed to receive the cargo of one of
wrongful acts of detention in respect of which he the ships, without prejudice to any question .
found damages, and what damages he found in On the 17th Dec . 1880 an order was made for
respect of them . the appointment of a receiver of all the eleven
The court has no jurisdiction under Lord Cairns' cargoes or the proceeds of any sold , and on the
Act to avard damageswhere no wrongful act has
been actually committed by the person against 23rd Feb. 1881 a receiver was appointed.
By an order of the 8th March 1881 the company
whom the injunction is claimed . were, nevertheless, permitted to sell the cargoes
This was an appeal from a decision of Kay, J. of two other ships, and to pay the gross proceeds
(reported 61 L . T . Rep . N . S . 180) refusing an to the receiver; and by another order of the 26th
application by the defendants to vary the certifi | Feb. they were permitted to retair. 63661. 48.
cate of the chief clerk, made in the action . . received for cargo of another ship on account of
On the 7th June 1876 the Peruvian Government expenses, which were to be paid to them without
entered into a contract (known as the Raphael prejudice to any question.
contract) with the defendant company to consign On the 13th Jan . 1885 Bacon , V .C . gave judge
to them for sale eleven cargoes of guano, in re ment in the action declaring the plaintiffs en
spect of which the company were to receive titled to the cargoes,and that the company were
41. 158. a ton for freight and other expenses, and not entitled to be reimbursed any expenses
the rest of the proceeds were to be held on ac incurred by them in respect of any of the cargoes
count of the Government, to whom the company except under the order of the 8th March 1881,
were to make certain advances against the car. and the judgment directed an inquiry “ what
goes. The eleven cargoes were shipped at Lobos | damages have been sustained by the plaintiffs by
on the coast of Peru about Dec . 1879. reason of the detention by the defendant com
Disputes arose between the Government and | pany of the cargoes of guano in question in the
the company as to whether the cargoes were action ."
within the contract ; and the result of such dis The company appealed from this judgment,
putes was, that the Government purported to but at the hearing of the appeal abandoned it,
determine the right of the company under the except as to their claim to be paid 41. 158. per ton
contract, and sent the bills of lading of the car under the Raphael contract,or, in the alternative,
goes to the plaintiffs Messrs. Dreyfus. The com to be allowed the freight and landing charges
pany, bowever, claimed possession of the cargoes, I paid by them in respect of the cargoes which
and with regard to four of the ships gave direc. I they had received under the order of the 30th
520 - Vol. LXII., N .8.] THE LAW TIMES. [ June 7, 1890.
Ct. of App. ] DREYFUS and Co. v. THE PERUVIAN GUANO COMPANY. [CT. OF APP.
April 1880. On the 12th Feb. 1886 the Court of Davenport v. Rylands, 14 L . T. Rep. N . S. 55 ;
L. Rep. 1 Eq. 302 ;
Appeal affirmed the judgment of Bacon , V .C .
The company appealed to the House of Lords, Frits v. Hobson, 42 L. T. Rep. N . S. 225, 677; 14
and on the 18th July 1887 the House of Lords Ch . Div. 542 ;
varied the judgment by allowing to the company Cooper v. Cooper,59 L. T. Rep. N . S. 1; 13 App .
Cas. 88 ;
the freight and landing charges in respect of the Dent v . The Auction Mart Company , 14 L . T . Rep .
cargoes received by them , “ so far as the same N . S. 827 ; L . Rep. 2 Eq. 238 ;
have not been already repaid to them or allowed Lord Cairns' Act (21 & 22 Viot. c. 27).
to them in account with the Peruvian Govern Cotton , L . J. — This is an appeal from the deci.
ment.” Lord Watson , who occupied the woolsack , sion of Kay, J. refusing to vary the chief clerk's
stated that he thought under the circumstances certificate. His Lordship stated the nature of
the actual receipt by the company must at least the proceedings, and continued : ) Under these
be regarded as a neutral, and not an adverse, act circumstances, the defendants have put us in the
of possession. The counsel for the parties were greatest difficulty . In my opinion we cannot
invited by their Lordships to make any sugges inquire whether the portion of the judgment of
tions for varying the terms of the judgment,but Bacon , V .C . which is now in question - no longer
no such suggestions were made, and accordingly his judgment, no longer our judgment, but the
the inquiry directed by Bacon, V .C . remained as judgment of the House of Lords - is right or
part of the judgment. wrong. But,as there was no actual possession of
The inquiry resulted in a finding by the chief these cargoes, and therefore detention , in that
clerk of a large sum for damages for detention of sense, before the order of the 30th April 1880, it,
cargoes in respect of diminution of gross proceeds is necessary to ascertain what this inquiry can
owing to sale by the receiver instead of the plain | refer tɔ. I have not thought it right to go
tiffs themselves ; increased expenses of sales under through the evidence in this case for the purpose
orders of court; and damages for loss of interest of seeing whether the decision of the Vice-Chan
on those sums and on actual proceeds of the cellor was right or wrong, but that decision does
cargoes, computed at 5 per cent. till judgment, assume, and in fact give directions founded only
less interest gained in court or paid by receiver; upon this, that there had been that which
and damages for nonpayment of these moneys at amounted to detention so as to justify the plain
4 per cent. from judgment to the date of the cer tiffs in asking for and the judge in awarding
tificate, amounting in all to over 30,0001. damages which had been sustained by reason of
The company took out a summons asking that that detention . It is, however, right to look at
the certificate might be discharged , and the in - | the pleadings, because they show what was the
quiry proceeded with on the footing that the case on which the Vice -Chancellor was deciding .
plaintiffs were entitled to no damages, or that [His Lordsbip referred to the pleadings, and
the certificates might be varied by finding that continued :] Now , having regard to these plead
no detention took place, or that, if any detention ings, in my opinion what the Vice-Chancellor
took place, it occurred at Lobos ; and lastly, by decided was that the defendant company had
striking out the whole of the sum found, and by been guilty, not by setting up this claim in this
finding that the plaintiffs had sustained no action but by their action in thematter, of such
damages. conduct as amounted to detention, thus prevent
Kay, J. refused the application , and the defen ing the plaintiffs from getting as they would
dants appealed. otherwise have done under their bills of lading
On the 21st Nor., previously to the hearing of possession of these cargoes. I do not at all enter
the appeal, the defendants applied by motion to into the question whether that was right or
the Court of Appeal, for liberty to appeal from wrong. Weare not at liberty , in my opinion , to
the portion of the judgment of Bacon , V .C . which discuss or enter into that question , because the
directed theabove inquiry, but the court refused defendants have prevented us from doing so.
the motion on the gronnd that after the pro They contended at the hearing that they had
ceedings in the House of Lords it was not compe . taken possession ; they stated how it was that
tent to the court to accede to it. they got possession, and whether they were right
The appeal from the decision of Kay, J . was or wrong, whether their counsel was right or
then heard . wrong, in that view or not, in my opinion we
Sir Richard Webster (A .-G .), Rigby, Q.C ., and must take it that the view of the Vice -Chancellor
Haldane for the appellarts. was based upon that. And it mustbe remembered
Sir Horace Davey, Q .C ., Bigham , Q .C ., and that
Ingle Joyce for the respondents.
this inquiry was directed after the judgment
was delivered,and when the -writer's
minutes, which as I
gather from the shorthand notes bad
The following authorities were referred to : been prepared by the plaintiffs' counsel, had been
Wren v. Weild , L . Rep. 7 Q . B. 730,734 ;
Quartz Hill Consolidated Gold Mining Company handed up, and the Vice-Chancellor requested
v. Eyre , 49 L . T. Rep . N . S . 249 ; 11 Q . B . Div. the counsel then present for the defendants to
consider carefully whether the minutes were
674 ;
Williams v. Peel River Land and Mineral Company, right and whether the order which he was going
55 L. T . Rep. N . S. 689 ; to pronounce was right or not, and not one single
attorney-General v. Tomline, 43 L . T. Rep . N . S . word was said against this inquiry being directed .
486 ; 15 Ch . Div . 150 ; Well, therefore, here is the inquiry which
Chapman , Morsons, and Co. v . Guardians of Auck
land Union , 61 L . T . Rep . N . S . 446 ; 23 Q . B . embodies in fact a declaration that there had
Div. 294 ; been a detention . It is founded on a decision of
. App.,7715; L . T.
L Rep. 2v.ChWilson
Ferguson Rep. N . S. 230 ; the Vice-Chancellor that there was a detention
of which the defendants had been guilty , which
Eastwood v. Lever, 9 L. T. Rep. N . S.615 ; 4 De G . justified him in holding them liable to damages .
J. & S. 114, 128 ;
Catton v. Wyld, 32 Beay. 266 ; In my opinion (it may be very unfortunate) we
June 7, 1890.] THE LAW TIMES. [ Vol. LXII., N . S. - 521
CT. OP APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. [CT. OF APP.
are not in a position to inquire into that. Whether I some doubt in my mind, whether the certificate
the House of Lords will think that it can do so was quite correct in fixing a date as if they could
I give no opinion at all ; but Fry , L .J. suggested be sold immediately. But that point was never
that the appellants should go and see whether the raised at all, either in chambers, so far as one can
House of Lords would think that was still open , see, looking only to the evidence, or before Kay, J .,
having regard to what they had done when the nor was it really raised by the summons to vary .
appeal came before them ; but the Attorney. Therefore, in my opinion, we should be wrong,
General declined , and I think reasonably, to even if primâ facie it seemed to us that the
accept that offer and desired the appeal to matter might bave been differently treated both
continue. Then it is said that this finding as to by the chief clerk in chambers, and by Kay, J.,
damages is inconsistent altogether with the find. when thematter was before him , when this point
ing of the House of Lords when that appeal was was not raised at all by the defendants, to allow
before the House, and when it was decided that them now to have the matter sent back on a point
the defendants appealing were entitled to such which they had not raised, and which has only
payments as they had made in consequence of occurred to them at the last moment. In my
the order of the 30th April 1880. If it could be opinion the appeal fails . I should mention that
seen that in fact the decision of the House of Cooper v. Cooper (ubi sup.) was referred to by Mr.
Lords was at variance with any such finding we Rigby as a decision of the House of Lords which
should be put into a great difficulty by the would enable us and require us to act according
action of the defendants ; but I do not think to his contention here as regards this inquiry
that is really the result of the decision . [His as to damages. But that was a different case .
Lordship referred to the proceedings before There the matter was before the House of Lords,
the House of Lords, and continued :) I think and, although there was a question whether the
we cannot say that this decision of Bacon, interlocutor of the Court of Session could be
V .C ., on which the certificate is founded , is appealed from , yet the matter was before them ,
at variance with the decision of the House of and they taking a different view as to the law
Lords. If it be so, the House of Lords, when the which ought to govern the case, and having the
matter comes before them , will, if they think matter before them , were at liberty to act,and did
they have any power to do so, act upon it as act upon that view so as to decide the case on the
justice may require. Then the real argument law really applicable to the case before them .
against this certificate was, that there was nothing But here we are in a very different position after
in fact done which would justify the court in the affirmation of the judgment of the Vice -Chan
granting to the plaintiffs any damages for any cellor, both on appeal to this court and on appeal
thing which can be called detention on the part of from this court to the House of Lords.
the defendants. That is in fact to reverse the BOWEN, L .J . - I regret that I am unable to take
decision, and to strike out this inquiry, which the the same view as the Lord Justice. This
Vice -Chancellor his directed , because, although unhappy case has got into a tangle, which my
it was said that that might be done by giving brother Cotton, L . J. thinks absolutely desperate,
nominal damages, yet, as I put it to Mr. Rigby, I butwhich I think is capable, even at this eleventh
cannot understand how , if no act has been done hour, of still being remedied without there being
by the defendants which justifies any damages applied to it so drastic a measure as that which
being given against them , even nominal damages destroyed the Gordian knot. To put it broadly ,
could be given . If that course is taken , it is it seems to me that the conclusion at which the
assumed that an act has been committed which Lord Justice has arrived does not give adequate
justifies a claim for damages,butthat the damages effect to the law as laid down in the judgment
are so small that the court will not give sub of the House of Lords, and I do not myself feel
stantial damages. Very likely juries in exer the same difficulty that he does in discovering a
cising their peculiar function do sometimes deal way in which due effect can be given to it. Now ,
with a case in the way which has been mentioned ; the facts of this case I do not propose to discuss,
but it will not do for Kay, J., or for this court, to except so far as they are uncontroverted . I will
exercise that unknown equity which is sometimes only mention a few of the uncontroverted facts,
exercised by juries ; and, in my opinion ,we cannot, in order to make the remainder of my reasoning
unless there is some reasonable ground for differ intelligible. Eleven cargoes of guano started
ing from the finding of the chief clerk as to from Lobos for England in ships which were
damages, in any way vary the certificate. It was chartered at the risk and on account of the
said that here the chief clerk and Kay, J. have Peruvian Government by the company, the defen
put all the cargoes upon the same footing, and dants in this action . A quarrel took place on
that interest was calculated from the time when the other side of the seas, in consequence of
the cargoes were landed . That, I think, was on which the Peruvian Government determined the
this footing that, if the defendants had not by right so far as they could ,and in law I think they
their acts detained these cargoes, thus preventing did determine the right of the guano company to
the plaintiffs from getting them without recourse take delivery of these cargoes as agents for the
to a court of equity, then at that time the plain Peruvian Government or otherwise upon the
tiffs would have got possession of the cargoes ; remainder of the ships, and they further trans
and from that time it is that the interest is calcu . ferred the title to the guano which was in them .
lated ; that is to say, as from the time when , but selves,and the right accordingly to takedelivery,
for the detention of the defendants, the plaintiffs to the plaintiffs in this action . The title of the
would have got possession of these cargoes. I plaintiffs accrued while the ships were sailing
cannot see therefore that we can interfere there. across the seas. The ships arrived at intervals.
There was another point that was argued by Mr. Two of them , I will assume, were taken posses
Rigby, namely, that these cargoes could not all sion of, and wrongfully taken possession of, by
have been sold immediately. That really caused the defendants. I will assume that for the pur
522 - Vol. LXII., N . 8.] THE LAW TIMES. [ June 7, 1890.
CT. OP APP.] DREYFUS AND Co . v. THE PERUVIAN GUANO COMPANY. [CT.OF APP.
poses of my judgment. The remainder were sion of. In the pleadings after the order of the
still on their way when a writ was issued to 30th April 1880, it was useless for the defendants
raise the real question between the parties, which to deny the mere fact of possession of the cargoes.
was as to the right to take possession of the They either had received them , or were going to
cargoes — a writ which , as regards the two ships receive them . The point they desired to make
which had already arrived,might be based upon was, that they had a right to receive them and a
a wrong already done and threatened to be con title to the proceeds after the sale under a con .
tinued , but which , with regard to the other ships tract with the Peruvian Government. Now I do
which were still on the sea, for anything weknow , not myself see that themere fact that on their
was simply in the nature of a quia timet action pleadings, when the question was one of right,
to prevent a threat which had been expressed they allege that the possession which they
from being exercised . A few days after the writ had admitted they had of the cargoes was under
an order was made in the action by consent, in a contract with the Peruvian Government in any
which it was agreed , obviously in the interests of way prevents them setting up the fact that the
both parties as they thought- for it is unimpor possession was rightful, if that particular point
tant to consider whether the order has worked under which they sought to justify it should fail.
out to thedetriment of onemore than the other I think it was an alternative allegation which
that the receipt of the cargoes of guano by the does not prevent them showing that the court had
defendants should be without prejudice to any decided the truth . If it did, it seems to me it
question between the parties, that they would ought to have been an answer on the appeal to
keep separate accountsof expenditure and receipts the House of Lords that they had admitted a
in respect of the cargoes and abide by any order wrongful possession , and had claimed a possession
which the court should make with respect to the only in virtue of a contract which could not
cargoes. Now , ,two things seem to me to be avail them , and that therefore there was a
perfectly clear: the one, that eight or nine of wrongful act or a detention . At the time when
the ships - I will call it nine for the purposes the Vice-Chancellor tried the action it appears to
of my judgment without investigating the ques me (I do not hesitate to say it, because one can
tion as to the number — were upon the high seas say it without disrespect to the eminent counsel
at the time when that order was made, and the who have conducted the case) that by an error in
cargoes were taken possession of by the defen judgment counsel did not address themselves to
dants under that order. The second thing that one of the real points in the action , which since
seems to me to be perfectly clear is,that the ratio has been seen , by the light of subsequent investi
decidendi of the House of Lords in the case gation to be important, namely, whether there
which went before them was, that no wrongful was any wrongful act at all in respect of nine at
act consisted in the taking possession of any least of the cargoes. They admitted the pos
cargoes under that order. It was necessary for session, justifying it only upon their title. The
the House of Lords so to decide. The point Vice-Chancellor found that they were in pos.
made was, that the reimbursement of the freight session . It was not disputed. He said it was
which the defendants claimed would be inequi admitted, and he ordered an inquiry as to
table and unjust, as they were wrongdoers in damages upon that footing. The matter came to
respect of the taking of possession . The House this court, and though the order as to damages
of Lords said they were not wrongdoers in was in form appealed from , it was not in fact,
respect of the taking of possession, and that because that portion of the appealwas abandoned
therefore the point made could not arise. I during the argument. From this court they
pause for one moment to observe that the House went to the House of Lords, and they still con
of Lords did not feel themselves hampered in tinued their policy of abandoning the appeal
coming to that conclusion as to the wrongful against that order for inquiry, and accordingly
possession taken under the order by the mere in the event the House of Lords did not disturb
fact that an order for an inquiry had been made the portion of the judgment of Bacon , V .C .,
in the action , which was not appealed against, which they were not asked to disturb, and nobody
and which seemed to assume the detention of all perceiving the importance of the lapse, this
the cargoes. Now , these two things seem to me strange result has followed , that the House of
to be perfectly clear: first, the ratio decidendi of Lords have declared that there was no wrongfal
ti₂ģēti₂₂₂ ₂₂₂₂/₂₂/ti/₂₂₂₂₂₂₂₂₂₂m₂ ?Â₂âÒâÒâÒâm act done in taking possession under the order of
nine of the ships, if no other act were done in the 30th April 1880, but have left urdisturbed
respect of them - and , as far as we know , nothing an order for an inquiry which proceeds upon the
was done, though it will be seen presently I do footing that there was detention of all the
not conclude that question - than the mere cargoes, an order the maintenance of which can
taking possession under that order, that was not only be explained in one of two ways, either that
wrongful. Having said so much as to what seems it was an oversight, or that there were other pos
to me to be clear, I proceed to state wherein sible acts of detention in respectof all the cargoes
the difficulty now arises, and in order to over and above themere taking possession under
explain that I must review shortly the course the order of the 30th April. But, as I said
which this action took. The action when before,one thing is clear, that the House of Lords
launched , as I have said , was, for anything that have declared that one class of acts done in
appears to the contrary on the facts before us as respect of these ships was not a wrongful
regards several of the cargoes, a quia timet detention , namely , the taking possession under
action . At the time when the action came to be the order of the 30th April 1880 . Now , the
tried ,and I think at the time when the pleadings parties went back under this inquiry . The chief
were delivered , the cargoes had been successively clerk in his certificate has, in my opinion , fallen
arriving. At the time when the action was tried into error. The vice of his certificate appears to
they all had arrived, and had been taken posses. I me to be this, that, although it is evident that it
June 7, 1890. ) THE LAW TIMES. [Vol. LXII., N . 8. - 523
Ct. Or App.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. [CT.OF.APP.
was necessary to discriminate between the various possession which may give rise to damages under
acts done with respect to these cargoes, because Lord Cairns' Act. The truth is, that the expres
as to one class of acts the House of Lords has sion begs the question . They were kept out of a
declared nothing to be wrongful in that particular, great portion of their property by reason of
the chief clerk has lumped all the ships together | entering into the order of the 30th April 1880 ;
and assessed the damages upon a footing which that is to say, they kept themselves out of it.
leaves it open at all events to the view ,and in my I regret very much that they were driven by a
opinion necessitates the view , that he has as wrongful threat into consenting to that order,
regards the whole of the ships treated as a | but it does not enable anyone to strain the law
wrongful act that very matter which the House and to find under the heads of damages any acts
of Lords said was not wrongful. The vice of the which , as far as I know , there is no authority for
certiîicate is, that it lumps the ships together. treating as a source from which damages can
Can that be set right ? Sir Horace Davey, in flow . But then , if Lord Cairns' Act does not
the first place protesting that he was not bound apply, is there any wrongful act which can be
to argue the facts of the case, assumed for assigned as an explanation of the Vice-Chan
the purpose of his argument that there had cellor's judgment? Sir Horace Davey protested
been no tortious act in law at all ; neverthe against being compelled to discuss that question ,
less he said there was nothing wrong in giving and I do not propose to decide it, because I do not
damages, because Lord Cairns' Act clothed the | consider that we have the materials on this
Court of Chancery with the jurisdiction , where appeal, or certainly they have not been brought
no wrong had been done in law at all, nevertheless to our attention in argument in a way that
on a threat of injury which would give rise to the enables one to be quite certain on the point. One
jurisdiction for injunction , to give damages in thing I do myself think, and that is, that
substitution for such injunction. I speak with Bacon , V .C . only proceeded, so far as I read his
perfect consciousness that I am only a proselyte written judgment,upon the assumption that there
at the gate in matters of equity,and what I have had been a possession taken , and that that
learned about it has been learned from wiser | possession could not be justified , and he assumed
people than myself who sit with me ; but I am that that made an act of detention - a view which
still giving my opinion as I am entitled and is, as regards a certain number of the cargoes,
bound to do. I am of opinion that the2nd section invalidated in my mind in law by the judgment
of 20 & 21 Vict. c . 27 , commonly called Lord | of the House of Lords. There was the carriage
Cairns' Act, did not clothe the Court ofChancery of the guano across the Atlantic. The title of
with such a jurisdiction. It is true the section | the plaintiffs began after it arrived, and the
applies in all cases in which the Court of defendants were merely charterers of the vessels.
Chancery has jurisdiction to entertain an appli There were directions given at the ports of call.
cation for an injunction, but the only weapon I can conceive directions given as to a port of
with which the court is armed by virtue of the discharge which might amount to acts of tres
section is to award damages to a party injured , pass ; but we have not got the facts here before
which must, I think , mean damages where us to enable us to say what was done in respect
damages have arisen , and in a case where no of the indication at the port of discharge , if any
damages have arisen in the ordinary sense of the thing was done which could by any human
term as known to lawyers, I am of opinion the imagination be construed as amounting to a
court has no power to give damages. I should wrongful act or an act of trespass. But I do not
be alarmed if that were my opinion only ; but I investigate the question as to what was done with
believe I am justified in saying that my learned respectto it, because I do not know that I can do so
brother Cotton , L .J. agrees with me in that, and effectively. There may have been , and I believe
I will leave my other learned brother to say there was with regard to one cargo, a wrongful
whether he differs from me or not. But this I act even after the order of the 30th April was
may say, as it was asserted by Sir Horace Davey agreed to , and in respect of any wrongful sale
- at least Sir Horace Davey seemed to put it after the order I am not prepared to say that
forward as a proposition that the practice in that might not be a source of damages under
the Courts of Chancery had been in favour of his Lord Cairns' Act done before the inquiry as to
view . I have consulted others who are familiar damages ; and it might bethat the extension - if it
with the practice among my colleagues, and I am bean extension of the principle laid down in the
told they are not aware of any such practice. I case of Williams v. Peel River Land and Mineral
am specially informed by one who certainly can Company, and acted upon by brother Fry, L .J. in
speak with authority on the point, that the view the case which was cited of Fritz v . Hobson ,and sub
which I am now taking on this subject is the sequently embodied , I believe, in an order under
view taken by the late Master of the Rolls. Sir the Judicature Act, would apply to such a case .
Horace Davey, however, went further and put I leave that open . Finally, there is the possession
forward a moral justification of the view . He under the order of the 30th April 1880 ; but I will
said that these plaintiffs had been kept out of not assume for this purpose that even that order
their property for many years, and that they justifies everything that was done as regards all
ought to be compensatea . The term “ kept out the cargoes. I should require, before I came
of their property ," seems to me to beg the ques- to that conclusion , to know exactly what was
tion . If all that has been done is to threaten , done with respect to the two which had been
and in consequence of a threat they have come to | already landed , and whether it was possible , not
an arrangement that the cargoes shall be placed | withstanding the expression of opinion of the
in the hands of the defendants to do their best House of Lords, that for the purposes of freight
with them , that threat and that consent order, all the cargoes were to be taken as being in the
although it may have been detrimental to the sameboat, still to differentiate the case of these
interests of the plaintiffs, is not a keeping out of ' two cargoes in respect of the acts done before
524 - Vol. LXII., N . S.) THE LAW TIMES . [ June 7, 1890
CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. [CT. OP APP.
the order of the 30th April 1880. I leave that no hesitation (but then , as I said before, I am
still open . I come back to this, that although only a proselyte at the gate) in saying that, upon
the history of these cargoes differs, that although tender of nominal damages in such a case, and
as regards a large number of them it is obvious payment of nominal damages all further proceed .
that the possession was taken under the consent ings on the inquiry might be stayed . But this is
order, and was not wrongful according to the not really necessary, from my point of view , to
view of the House of Lords, the chief clerk has decide. As I said , I consider the vice ofthe chief
made no distinction between any of those cargoes, clerk's certificate is that he has lumped all these
has lumped them together, has possibly, I say ships together. I am ready to assume that there
probably or certainly, proceeded upon the view may be in the case of all the ships some other acts
that the taking possession under the order was of detention than those which lie upon the snrface
itself an act of detention from which damages in respect ofwhat was done under the order of
would flow , and in that view to my mind his the 30th April 1880. There may have been some
certificate is bad . His certificate states that he thing done in the indication at the port of dis
takes the damages from the arrival of the cargoes charge, and there may have been something done
upon land. Now how far is it true that he was in respect of the ships taken possession of whose
driven by this order of inquiry to go this length ? | cargoes were landed , and there may na
That order of inquiry directs that there shall be something wrongfully done in respect of the car.
an investigation as to what damages have flowed goes that were landed under the order of the 30th
from the detention of the eleven ships. Sir April 1880. All that is for the chief clerk to
Horace Davey suggested that, if there had been state . As soon as it is seen that by lumping the
no possible damages at all, the words “ if any ” ships together he has done injustice, he ought to
ought to have been introduced after “ damages ; ” be called upon to state, as he has acted upon this
and that the order ought to have run for an view hitherto , what are the acts of detention in
investigation as to the damages, if any, which respect of each of these ships on which be relies,
flowed from the detention of any of the eleven and what are the damages which he assesses in
cargoes, I think that is so . I think the stage respect of them . To my mind therefore the right
at which this order was made indicates that the way of dealing with this case is to declare, in
court assumed that there would be damages in accordance with the opinion of the House of
respect of these cargoes ; but I draw the line Lords, that no act of possession merely taken
there, and I protest that it does not follow from under the order of the 30th April is a wrongful
that that the court declared that substantial act or gives right to any damages at all ; refer
damages must be given . No authority can be back to the chief clerk to state with regard to
found for that proposition. It is untrue as these eleven ships what are the wrongful act or
regards the form of rules of inquiry with which acts of detention in respect of which he finds
I am acquainted. I will mention, for example,the damages, and what damages he finds in respectof
case of bonds and the inquiry directed by statute them . I ought to say that that form of reference,
with regard to them , and also the form of a writ if it was followed by the court, would leave it
of inquiry under the Judicature Act when a open to the chief clerk, as I understand it and as
judgment is given by default. The court to my I intend it, to rectify the error into which he
mind does not find that there are substantial seems to have fallen (for no argument was ad .
damages. What is true is, that the court finds dressed to us by Sir Horace Davey to prove that
that there has been a wrong and assumes that he had not fallen into it) as to the calculation of
there may be substantial damages, not that there the dates from which the interest should run .
must be. It is for the chief clerk to inquire, it There is a difficulty about costs. The costs of the
seems to me, and I cannot myself understand inquiry are reserved . I think the costs of the
why a chief clerk would not be justified under | appeal in this case ought to be borne by the
such an order in finding there were nominal respondents. As to the costs in the courtbelow ,
damages only in respect of one or more or all of in consequence of the tangle in which the case
these ships. Suppose for a moment the case of a has been involved I should make no order, but
single one of these ships ; suppose it was clear to should leave either party to bear those .
demonstration that one of these ships had been Fry, L . J. - In my judgment, the course pur .
inserted in the order by a mere mistake, that | sued by the appellants has placed the court in a
there had been no detention at all of the ship , and cruel difficulty, and I have never felt myself so
that the ship , so far from being taken possession much embarrassed as I have in this case. It
of by the defendants, had been taken possession appears to me that, whatever course this court
ofby the plaintiffs, had been sold by them , and takes, there is a danger that we are acting in
they had appropriated the profits. Is the chief some way at variance with the decision of the
clerk positively bound to give more than nominal House of Lords. If we take one course , we seem
damages in such a case? Hemay be constrained | to me to be going counter to the expressed
by the form of the order to assume that there is opinion of the learned Lords; if we take the
a, detention, but he may look to see what the de other, we seem to me to be reversing a portion of
Ỉņēmēģ►ưffiti₂\\₂\Ỉņ₂₂m₂₂ti₂m₂/mm₂–₂?Â§Â₂₂₂₂ ₂ ₂₂₂ | the decree which the House of Lords has thought
damages flow from it. To mymind it would be fit to affirm . I will consider the case in the first
extraordinary indeed if a chief clerk was bound place independently of the recent decision
to look to find damages without knowing what of the House of Lords, and I shall imagine
the acts of detention were in respect of which he myself to be filling the chair filled by Kay, J. as
found them . Hemust look to see what the deten successor to Bacon , V .C ., and as working out the
tion is in order to know whether the damages are judgment which the Vice -Chancellor pronounced .
too remote, and I think that, if it was clear that Of course, when the same judge works out the
there had been no possible act of detention as to decree which he himself has pronounced , he pro
any one ormore ofthese ships, I should feelmyself | bably knows without difficulty the meaning of
June 7, 1890 .] THE LAW TIMES. (Vol. LXII., N .8.- 525
Cr. OF APP.) DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. [CT. OF APP.
that decree ; but, if I were the successor of the But the matter wentto the House of Lords, not
judge who made the decree, the first inquiry I upon appeal against that part of the judgment,
should address to myself would be, What is the because that was abandoned in this court, but
meaning of the inquiry under which I am now against the decision of this court on the main
proceeding ? and I should hold myself precluded question in the action , and also with regard to
from considering the propriety of that inquiry, the expenses incurred in the landing and freight,
or from in any way attempting to evacuate that and in dealing with that latter question , namely ,
inquiry of its true and real meaning , or from in the freight and landing charges, the learned
any way reviewing or reversing the decision of Lords expressed their opinions in a way which I
the learned judge who directed the inquiry . | confess seems to me to be not consistent with the
Now , what is the inquiry in the present case ? view of the Vice-Chancellor, and therefore great
It is couched in these terms: “ An inquiry what embarrassment is caused in acting on that view .
damages have been sustained by the plaintiffs by | But then what did the learned Lords do ? It
reason of the detention by the defendant appears from the shorthand-writer's notes that
company of the cargoes of guano in question the learned Lord who presided on that occasion
in this action .” We know that the cargoes in wrote down the order of the House which be
question in the action were the eleven cargoes, proposed that the House should pronounce , and
and the inquiry, therefore, seems to me to affirm that having dealt with the two specific matters
and judicially to determine certain things. It before the House, namely, what I may call the
determines that there has been a detention by the general question of title and the question of the
defendant company of the eleven cargoes in ques. freight and landing charges, he then dealt with
tion. It determines that that detention has been the rest of the order of the Vice -Chancellor, and,
unlawful because it gives rise to damages, and it as to that, affirmed the order of the Vice-Chan
determines that those damages were substantial, cellor. Now there was hardly anything left in
because, in order to sustain such an inquiry, it is the order except this inquiry as to damages. It
requisite that the damages should be substantial. was by far the most important of the residual
From any investigation of the rightness of that portions of the order, and that inquiry as to
decision I should feel myself precluded when damages involving the affirmation of the deten
working it out, and the only question open would tion of the whole eleren cargoes and the damages
seem to meto be, what is the quantum of damages ? | resulting from it the House of Lords thought fit
But then , outside of that, I must know and to affirm . Knowing the care with which the
inquire what is themeaning of the detention of | business of that House is conducted , and the
the eleven cargoes by the defendant company, so care with which we see this particular case was
affirmed by the Vice-Chancellor in his judgment, conducted by the learned Lords - -because not
and endeavour to ascertain the meaning of these only did Lord Watson write down the order he
words so used in the judgment by a reference to proposed to make, not only did he read it, but he
the pleadings, and also , if necessary, to the evi. | invited the attention of the learned counsel to it,
dence and the presentation of the cases of both and gave them an opportunity of making any
sides before the Vice-Chancellor. [ His Lordship observations upon it - I say, having regard to
referred to the pleadings, and continued :) It that, I cannot believe that the affirmation of that
appears to me that the case made by the defen . inquiry, involving all that it does, was made
dants was shortly this : “ We are in possession of per incuriam by the House ; and therefore I am
the eleven cargoes, and our possession is rightful driven to conclude that my own view that the
under the contract and the bills of lading." The opinion of the learned Lords tended to eracuate
plaintiffs, on the other hand, say, “ You are in that inquiry and to deny the detention cannot be
possession , and your possession is wrongful, the accurate one. It appears to me, therefore,
because the property is in us." And in that state that, inasmuch as the House of Lords have re
of things it appears to me that the Vice-Chan. affirmed the necessity of the inquiry , and that I
cellor- whether rightly or wrongly I do not feel | can give no meaning to the detention if the view
myself at liberty to inquire - determined that which is suggested to have been taken by the
there was a detention of the eleven cargoes by the House of Lords is the true one, I am bound to
defendants, and that that detention was not only follow out this inquiry in the spirit and meaning
wrongful, but gave rise to damages. No doubt it in which it was directed by the Vice-Chancellor.
is quite true of several of the cargoes, that the It does not appear to me that it is competent, in
greater portion of them was received after the working out an inquiry of that description not
order of the 30th April 1880 ; but the view which reversed by any court, to deprive it of all meaning
the Vice-Chancellor appears to meto have enter . by reviewing the circumstances under which it
tained with regard to that order was this, that was made. And therefore I am not able to
the defendants, by their wrongful acts on the follow the view taken by my brother Bowen , L . J .,
22nd , 26th , and I think the 29th April, several who reviewing all the circumstances comes to the
of which preceded the commencement of the conclusion that we ought to treat it as an idle
action , had driven the plaintiffs into equity, and inquiry, and to deprive it, as it seems to me, of
that the order of the 30th April 1880 was the any force and meaning. It is quite true that he
natural result of the wrongful acts of the defen has suggested that there may have been some
dants. T'bat, I think, is themeaning of the Vice detention ultra and beyond that which was in
Chancellor 's affirmation of the detention of the evidence before the Vice-Chancellcr ; but it
eleven cargoes, which he says gave rise to a claim appears to me that the history of these cargoes
of damages on the part of the plaintiffs against had been threshed out by the time this matter
the defendants. Now , if the matter had stood was before the House of Lords. It is impossible
merely on the judgment of the Vice-Chancellor , to conceive that anything more can be known
and upon the affirmation of it by this court, I about them . The whole case was before the
should have felt little or no difficulty in thematter. | House of Lords when they affirmed this inquiry ,
526 - Vol. LXII., N . S.] THE LAW TIMES. [ June 7, 1890.
Chan . Div.] Re MEYERSTEIN AND Co.'s TRADE MARK “ SATININE." [Chan. Div.
and therefore I do not see my way to suppose “ Satinine " in respect of the goods in classes
that it is possible that there was any other con 47 and 48, comprising soap, starch , blue, and
struction to be put upon it, or that the House of other articles for laundry purposes and per.
Lords thought the inquiry to relate to any other fumery. The applicants had used the word
detention which was not in issue nor in evidence, principally for starch and soap, in which they
and which was really not the subject of con dealt, butwhich they did not themselves manu.
sideration . That being so , I think we are bound facture. They had applied in 1886 for the
to proceed as if the matter was in the first registration of the word under the Patents.
instance before the Vice -Chancellor. Now , what Designs, and Trade Marks Act 1883, but the
do I find that the appeal before us is ? It is not comptroller preferred to reserve his decision until
an appeal directed to any particular cargo. It is there had been further legislation as to what
not an appealdirected to any particular part of words were capable of registration . In 1888 the
the inquiry, but it goes to the whole matter, and Patents, Designs, and Trade Marks Act of that
seeks to deprive the whole inquiry of any value. year was passed , by which sect. 64 of the former
[His Lordship referred to the terms of the sum Act was amended by providing that a trade
mons to vary the certificate, and continued :] mark must consist of or contain at least one of
That being so , I do not feel myself at liberty to certuin specified particulars, including “ (d) an
condescend upon the details of the particular invented word or invented words ; or (e) a word
detentions of the particular cargoes in the way or words having no reference to the character or
in which my learned brother thinks it open to quality of the goods,and not being a geographical
him to do. I abstain from doing so, because I name." . Accordingly , in 1889, the applicants
confess I am greatly apprehensive of two things. applied for registration under that Act, which the
I am apprehensive of there being no finality in comptroller refused , on the ground that the word
litigation if upon an inquiry the whole matter is had reference to the character or quality of
to be gone into again . And, further, I am appre the goods ; and that there was a mark “ Satin
hensive that, if we entertain objections of which Glaze " registered under the Trade Marks Regis.
due notice has not been given by the summons, tration Act 1875, for a laundry preparation .
we shall often be led per incuriam into doing | Held , that “ Satinine ” was a word descriptive of
what would seem to us to be justice, but would the effect of the article , and consequently could
really be injustice. I therefore feel constrained , not be registered .
though extremely embarrassed as to what is the Semble, that theword " Satinine,” being formed from
true course to take, to concur in the view of a well-known word by the addition of a sufix
Cotton , L . J., and think that this appeal must fail common to numerous other words, is not an
with the usual results. I have only one other “ invented ” word within sect. 10 , sub- sect. 1 (d )
observation to add. I entirely agree with what' of the Patents, Designs, and Trade Marks Act
has been said by Bowen , L .J. on the subject of 1888 .
Lord Cairns' Aci. I am clear that the statute MOTION .
often enables the court where a wrong has been On the 20th Nov. 1886 W . Meyerstein and Co.,
done to give damages upon a different scale from
what was done by the courts of common law , carrying on business as general merchants in
starch and soap , made application for the regis .
because it may give them in substitution for an tration of the word “ Satinine ” in classes 47
injunction ; but where there has been no wrong and 48, under Nos. 59, 121 and 59, 122.
done, it appears to me that Lord Cairns' Act Class 47 includes candles, common soap, deter
confers no power to give damages.
Cotton, L .J. - I agree with what has been said gents, illuminating, heating, or lubricating oils,
by Fry, L .J. as regards Lord Cairns' Act. I did matches, and starch , blue, and other prepara
not advert to it because I did not think it a tions for laundry purposes. Class 48 contains
perfumery (including toilet articles, prepara
matter which arose, taking my view of the case | tions for the teeth and hair, and perfumed
before us . soap).
Solicitors for the appellants, C . and S. Harri. These applications were held over by the comp
son and Co. troller with a view to the impending further
Solicitor for the respondents, G . M . Clements. legislation on trade marks. On the 24th Dec.
1888 the Patents, Design , and Trade Marks Act
1888 was passed .
HIGH COURT OF JUSTICE . On the 5th March 1889the Comptroller-General
wrote to the applicants stating that, in his
opinion , the word was not capable of registra .
CHANCERY DIVISION . tion , and that their application would not, there
Friday, March 7. fore, be proceeded with .
(Before Kay, J.) On the 7th March 1889 the applicants inquired
Re MEYERSTEIN AND Co.'s TRADE MARK if there was any reason why this word could not
“ SATININE.” (a ) be registered under the new Act, upon their
making a further application , and withdrawing
Trade mark — Registration — “ Satinine " – In the old one.
vented word or word having no reference to cha The comptroller replied that he could not pro
racter or quality of the goods — Descriptive word ceed with the registration oftheword " Satinine "
- Patents, Designs, and Trade Marks Act 1888 in classes 47 and 48, in respect of the articles
(51 & 52 l'ict. c. 50). mentioned in the claims, even under the Act of
An application was made for an order upon the 1888.
Comptroller - General to register the word decisionByina answer
subsequent letter he
to a letter of adhered
the 27th toMarch
this
(a) Peported by E. A . SCRATCHLEY, Esq., Barrister-at-Law . I 1889, by which the applicants asked for a recon
June 7, 1890 .) THE LAW TIMES . [Vol. LXII., N . 8. - 527
Chan. Div.] Re MEYERSTEIN AND Co.'s TRADE MARK " SATININE.” [Chan. Div.
sideration of the matter, stating that as they had | cation had been advertised, and no person had
used the word for some time in their business, lodged an objection .
and had introduced sundry articles under this R . W . Wallace, for the applicants , contended
mark , it was of great importance to them .
On the 20th April 1889 Meyerstein and Co. | that " Satinine,” since it did not appear in any
made a new application for registrationandof theCo. | dictionary, was an invented word , the invention
of adding " ine ” being sufficient to bring the
word “ Satinine ” under the Act of 1888 in word under sect.the10 amount
classes 47 and 48 , under Nos. 89,301 and 89,302. however small of the Actof ofinvention
1888 ; and
, ifthat,
the
On the 16th July 1889 the comptroller refused word had not been used before, it was entitled to
the applica tion on the ground that the word registration . He also contended that it was not
" Satinine” did not consist of any of the essential necessary that there should be such invention in
particulars required as a condition of the regis
tration of a new trade mark by sect. 64 of the ina trade mark as was required by the patent law
order to support a patent ; and further, that
Patents, & c. Acts 1883 to 1888 . the word “ Satinine” was not descriptive of the
The applicants then gave notice of their inten - | goods to which it was to be applied .
tion to appeal to the Board of Trade. The Board
of Trade referred the matter to the court, and forSirtheRichard E . Webster (A .-G .) and Ingle Joyce ,
directed the applicants to proceed by motion in comptroller, were not called upon to
the usualway. argue.
On the 11th Jan . 1890 the applicants gave Kay, J . - This is a word which describes the
notice of motion for an order directing the quality of the goods, and there is marvellously
Comptroller -General to register themark . little invention in the matter, because the only
The motion now came on to be heard . invention is putting at the end of the common
C . J. L . Meyerstein , one of the applicants , word " satin " - which brings to every man's mind
deposed that he had invented the word in a moment the notion of a glossy surface - the
“ Satinine ” after long and serious consideration common suffix “ ine .” That suffix you will find
to meet the requirements of the 64th section of in “ saline," " saccharine,” and half a hundred
the Patents, & c., Acts 1883-8 ; that neither the other English words. Certainly , if that is invent
word " Satinine," nor any word resembling it in | ing a word , it is the easiest mode of inventing
any manner, had been and was used to his know you can possibly conceive. But I understand
ledge in connection with any goods in classes 47 that this Act of 1888 is subject to the limitation
and 48 ; and that no such word was contained in which the decisions have put on the former
any of the standard English dictionaries. Act of 1883_ namely , that you cannot possibly
In opposition the Comptroller-General deposed use any word , fancy or otherwise, if it is a
that he considered that " Satinine” was not an descriptive word . This word “ Satinine " is a
invented word within the meaning of sect. 64 of word descriptive of a glossy surface. Now , it is
the Patents, & c., Act 1883 as amended ,butmerely to be applied to , amongst other things, starch
the well-known dictionary word " satin ," a species and blue, and articles of that kind used in the
of glossy silk cloth , with the common suffix laundry . Everybody knows that one effect of
" ine " added , so as to form an adjective with the the use of starch is that goods which are washed
signification “ partaking of the nature or quali and starched , and are then ironed or colandered ,
ties of or resembling satin ,” in other words have a much more glossy surface than the same
equivalent to the adjective “ satiny ;" that he articles would have if they were ironed or
was of opinion that “ Satinine ” had reference to colandered without being starched . That is
the character or quality of the goods or some of common experience. We all know that, and it
the goods in classes 47 and 48 ; that the words would be a recommendation of a starch that it
" Satin Glaze " actually formed part of a trade should produce a more glossy surface than
mark registered under the Trade Marks Regis another starch . If you speak of starch , or describe
tration Act of 1875 for laundry starch ; and that starch by a name which suggests to the mind at
under the circumstances he was not able to under once the production of a glossy surface, you are
stand how the applicants could have invented using a descriptive word . That that is so is
“ Satinine ” upon consideration to meet the made all the more plain by what the comptroller
requirements of the Patents, & c., Acts 1883-8, says. He says that one of his reasons for object
although he was not aware how long before the ing to register this word was that it was within
27th March 1889 the applicants had been using his own knowledge that there had already been
the word in their business. registered , as part of a trade mark , the words
In answer C . J. L . Meyerstein further deposed “ Satin Glaze " for laundry starch . Therefore it
that it was impossible for any person to under seems to me plain that the applicant was
stand from the use of the word “ Satinine " that intending to get a word which wonld suggest to
it denoted the quality or character of any goods people buying the starch from him that it was
in classes 47 and 48 . Neither starch nor any starch which would conduce to the production of
other article in classes 47 and 48 produced a a very glossy surface. That is a description of
glossy or shiny appearance in any manner resem the effect produced by the use of the article
bling the gloss on satin or goods of the like which , according to this Act, is a description of
nature, which appearance was produced by the article. It is therefore a descriptive word ,
colandering. None of the goods in classes 47 and that is a very sufficient reason , in my opinion ,
and 48 partook of the nature or qualities of satin . for refusing, as the comptroller has done, to
The words “ Satin Glaze " referred to by the register this word . I refuse the application with
comptroller , as forming part of a trade mark for costs.
laundry starch, were not known in the trade in Solicitors : for the applicants, W . A . Crump
connection with starch or any otherarticles com - and Son ; for the Comptroller-General, The
prised in classes 47 and 48. That original applia i Solicitor to the Board of Trade.
628 - Vol. LXII., N .8.) THE LAW TIMES. (June 7, 1890.
Chan.Div.] FARRAR v. COOPER . [Chan. Div.
Friday, March 14. the said referees shall for that purpose appoint as
umpire between them , who shall determine the same by
(Before KecewICH, J., for Kay, J.) writing under his hand within ten days after he shall
be so appointed ampire, and the said partners, their
FARRAR V. COOPER.(a) executors, administratore, or assigns, shall and will
Practice — Arbitration — Restraining arbitration abide by and perform the award which shall be made by
proceedings — Injunction - Particulars of differ . the said referees or their said umpire without further
ences - Futile result -- Jurisdiction — Judicature suit or trouble whatsoever.
Act 1873 (36 8. 37 Vict. c. 66 ), s. 25 , sub-sect. 8 — By the 28th clause it was further agreed :
Arbitration Act 1889 (52 & 53 Vict. c. 49), 8. 12 . That this submission to reference shall be made a
rule of the Chancery Division of Her Majesty's High
Partnership articles provided that, in case any the
Court of Justice upon the application of either of
said parties hereto, and every award thereunder shall
dispute should arise between the three partners
relating to the partnership, they should forthwith also be made such rule, and be prosecuted as a judgment
each nominate a referee, and that such three of the said court,
referees should determine all matters in dispute, and that no action should be commenced by one
or , in default of agreement, appoint an umpire. partner against another until he should have
Questionsarose, and two of thepartners appointed neglected or refused to appoint a referee, or the
referees to “ settle and determine all questions, time limited for making an award should have
disputes , differences, and matters thatmay be in expired .
dispute or difference ” between the partners. The Questions arose between the parties which
third partner objected that there was no point in William Cooper and Henry Cooper desired to
dispute within the partnership articles. He refer to arbitration .
asked for information as to the alleged differ . Benjamin Farrar, on the other hand , insisted
ences, and was informed that particularz would that all disputes could be settled under the
be furnished at the proper time. He now moved 26th clause.
to restrain his partners from proceeding with the On the 20th Feb. 1890 William Cooper and
arbitration finally, or until they had specified Henry Cooper,by separate instruments in similar
what disputes they wished to refer ; or that form , appointed two arbitrators “ to settle and
he might be at liberty to revoke the submission determine allthatquestions, disputes, differences,
to arbitration contained in the partnership and matters may be in dispute or difference
articles between myself and my copartners or either of
Heldinjunction
, that the court had jurisdiction to grant the them , and falling within the provisions of the
, but that arbitration proceedings, said in part recited ” articles of partnership .
without particulars and without the consent of Notice of the appointment was given to the
the plaintiff, would be merely futile ; and that
that was no ground for restraining the pro
other partners, stating the appointment
Forthe purpose ofawarding, ordering,and determining
ceedings . all disputes, differences, doubts, or questionswhich have
MOTION. arisen between me and you . . . or either of you,
concerning the construction of the said indenture of the
This was a motion by a partner to restrain 30th day of June 1887, or the settlement of the books
the other members of the firm from proceeding and accounts of the said partnership , or the settling,
with an arbitration, on the ground that they had dividing, or applying the profits and losses of the
not told the plaintiff what points they wished to partnership , or any other matter , cause, or thing relating
refer, and that he would be seriously prejudiced to the same, and for all other purposes, if any, for which
by the proceedings. I am entitled to nominate an arbitrator in connection
The partnership articles were dated the 30th with the said partnership .
June 1880 , and made between William Cooper of The notice further called upon the other
the first part, Benjamin Farrar of the second partners to appoint their arbitrators.
part, and Henry Cooper of the third part. Benjamin Farrar's solicitors asked what were
The 26th clause was as follows : the points it was wished to arbitrate upon , and
were informed that when the proper time arrived
adopted inbyallthe
That cases
saidof partners,
dispute onorthemethod
one of themof, or
business
as to particulars would be furnished .
any question in relation to the said partnership , the He thereupon issued a writ, and now moved ,
decision and instructions of themajority or twomembers That the defendants may be restrained . . . from
of the said partnership shall be final and effective, and proceeding with the arbitration of which they have
be binding on the partner not assenting to or concurring given notice to the plaintiff finally, or until they have
in the said decision and instructions. specified to the plaintiff what disputes and differences
The 27th clause provided as follows : have arisen which they desire to have settled by arbi.
That in case any dispute shall arise between the said tration ,or that the plaintiff may be at liberty to revoke
the submission to arbitration contained in the deed of
partners, their executors or administrators, eitherduring partnership.
the continuance of the said partnership or after the
determination thereof, either on the construction of The Judicature Act 1873 , sect. 25 (8 ), provides
these presents or the settlement of the books and
accounts thereof, or the settling, dividing , or applying as A follows:
mandamus or an injunction may be granted , or a
the profits and losses of the said partnership, or any
other matter, cause , or thing relating to the same, then receiver
court,
appointed , by an interlocutory order of the
in all cases in which it shall appear to the court
and in such case the said partners, their executors or to be just or convenient that such order should be
administrators, shall forthwith nominate three dis made ; and any
interested persons, one of whom to be chosen by each tionally or upon such order may bemade either uncondi.
such terms and conditions as the court
of the said partners, which said three persons shall shall all think just : and if an injunction is asked , either
determine all such matters aforesaid by their award in before, or at, or after the hearing of any cause or matter,
writing under their hands, and in case such referees to prevent any threatened or apprehended waste or
cannot agree upon an award with thirty days next after trespass, such injunction may be granted, if the court
such reference, then the same shall be referred to and
be determined by such one other disinterested person as shall think fit, whether the person against whom such
injunction is sought is , or is not, in possession ander
(a ) Reported by E . A , SCRATCHLEY, Esq., Barrister-at-Law . I any claim of title or otherwise, or (if out of possession
June 7, 1890.) THE LAW TIMES. (Vol. LXII., N . 8.- 529
Chan . Div.] PURVES v. THE WIMBLEDON AND PUTNEY COMMONS CONSERVATORS . [Chan . Div.
does or does not claim a right to do the act sought to be ! enforced or have any practical effect. The ques.
restrained under any colour of title ; and whether tho tion how the costs are to be borne may give rise
estates claimed by both or by either of the parties are to difficulties. Therefore, no arbitration without
legal or equitable. the of the
Marten , Q .C . and Jason Smith in support of the him , consent
or be of any legalplaintiff be binding
practicalcanvalue. on
But does
motion . it follow that I must restrain these proceedings
Renshaw , Q .C . and R . M . Bray for the defen - / of the defendants ? I entirely adopt what was
dants.— The court will not assumethat the arbi said by Lindley, L . J., in London and Blackwall
trators will act im properly , nor stay proceedings, Railway Company v. Cross (54 L . T .Rep . N . S . 309 ;
unless it sees that injustice will be done. There 31 Ch. Div. 354), referring to North London
is no jurisdiction to interfere : Railway Company v. Great Northern Railway
North London Railway Company v. Great Northern Company (48 L . T . Rep. N . S . 695 ; 11 Q . B . Div .
Railway Company, 48 L . T. Rep. N . S. 695 ; 11 Q . B . 30 ). He says: “ The case does not decide that in
Div . 30. no case is it right to restrain persons from pro
Marten , Q .C . in reply.-- That case applies only ceeding to arbitration ; there are cases in which
to proceedings under the Lands Clauses Consoli. | it is quite right to do so.” Mr. Marten has cited
dation Act : other cases to the same effect. Lindley, L . J.
London and Blackwall Railway Company v . Cross, does not say, and I do not say , in what cases it is
54 L . T . Rep. N . S . 309 ; 31 Ch . Div. 354 . right to restrain them . I do not think there
The court has jurisdiction to stay proceedings in would be anything to preventmy restraining the
the arbitration : defendants in a case where I saw that injustice
Maunsell v. Midland Railway Company (of Ireland) would result from the arbitration . Where, how
and Great Northern and Western (of Ireland) ever, I do not see that, but only, as in this case,
Railway Company ,8L . T.Rep . N . $ .826 ; 1 H . & M . that futile proceedings are likely to result, I do
130 ; not think it necessary to grant an injunction .
Piercy v. Young, 42 L . T. Rep. N . S. 292 ; 14 Ch.
Div . 200 ; I remember a case before the late Master of the
Mylne v . Dickenson , G . Coop . 195 ; Rolls in which I appeared for the plaintiff . An
Beddow v. Beddow , 9 Ch. Div. 89 ; application was made to restrain directors from
Hedley v. Bates, 42 L . T. Rep . N . S . 41 ; 13 Ch . Div. passing certain resolutions with reference to
448 ; preference shares, and it was stated that the
Arbitration Act 1889, s. 12 ; resolutions, if passed , would be useless. The
Russell on Arbitrations, 5th edit. 459. Master of the Rolls asked why he should inter
KEKEWICH , J . - There is no desire on my part fere ; they could pass any resolutions they thought
to interfere with the domestic tribunal of arbi fit. Those resolutions, if the plaintiff was right,
tration in partnership cases. Many judges have would not bind him ; they would be mere waste
expressed their entire approval of that course, | paper. He had no right to interfere, and he
and business men often prefer to refer their refused the injunction on that ground. In my
disputes to arbitration , and especially cases which opinion I ought to refuse to interfere in this case
cannot be conveniently decided in court. There on the same ground. I do not think that these
fore nothing that I say must be considered as a proceedings would have any binding authority,
wish on my part to interfere with arbitrations; or could be enforced against the plaintiff. They
but it seems to me that the first principle of would be futile,and, that so, I simply make
arbitration is that, having secured a competent no order on the motion . being The plaintiff has been
man intending to do his duty honestly, you must | provoked into coming here, and the costs will be
lay before him the points to be decided , and unless costs in the action .
these points are laid before him by all the parties
it is impossible for him to give a decision . In Avery .
Solicitors for the plaintiff, Wolferstan and
the present state of affairy I am reluctant to Solicitor for the defendants, Herbert Nield .
indicate any opinion upon the construction of the
articles, but clauses 26 and 27 are wholly different
in language and in intention . Whether there
are any disputes within the 26th clause is not Friday, March 28.
now in question, although the affidavits show that
some of the patties think there are. The words (Before KEKEWICH, J., for Kay, J.)
of clause 27 are not quite in common form , and PURVES v. THE WIMBLEDON AND PUTNEY COMMONS;
may require close consideration , but that will be CONSERVATORS. (a )
for determination hereafter. The defendants have Commons conservatorg - Elective body _ “ Elector " .
not condescended to tell the plaintiff what they — “ Tenant or occupier ” — Ratepayer — Bye
require to refer to arbitration . In a curt letter law - Ultra vires - Injunction - Wimbledon and
of the 25th Feb . they say : “ You appoint an
arbitrator, and then we will tell you what we are Putney Commons Act 1871.
the Wimbledon and Putney Commons Act 1871
going to refer.” The plaintiff says he wants to Byprovisions
know what is to be referred before making the aremade for the election every three
appointment. His selection of a referee will years of a body of conservators, themselves to be
depend on the subjectmatter to be referred . If persons who are “ electors " under the Act ; and
it is a question of construction , he may desire to it is provided that any person who is " tenant or
appoint a lawyer ; if it is a question of book occupier of a dwelling-house " of the annual
keeping andaccounts,hemay prefer an accountant. rateable value of 351. or upwards shall be quali
The conduct of the defendants puts him in an fied as an elector. The Act empowers the conser
extremely unfair position. The only result of an vators to make bye-laws. One of the bye-laws
arbitration without settling the particularsbefore made by them provides that no person , not being
hand will be to get an award which cannot be į (2) Reported by E. A. SCRAICELEY, Esq., BarristerRelow .
530 — Vol. LXII., N . S.] THE LAW TIMES. [June 7, 1890.
Chan . Div.] Purves v. THE WIMBLEDON AND PUTNEY COMMONS CONSERVATORS. [Chan. Div.
an “ elector " named and described in the list of Wimbledon and Putney Commons Act 1871, and
voters, shall vote at any election of conservators in accordance with the provisions thereof.
under the Act. On the same date notice had been given that
A house within the limits of the Act was let to R . the names of the candidates at the election of
and his sister -in -law , as joint tenants, at an conservators for carrying the Act into execution
annual rent of 3001. The house was occupied by were the five outgoing conservators, who, being
both eligible, offered themselves for election .
the ,but
lady ,thewhose
rates name
and taxeswere always paid
alone appeared by
on the The five retiring conservators had been duly
parish rate-booksas ratepayer in respect of the nominated , and their nominations had been
house, R . contributing half the amount paid . accepted by the returning officer.
The triennial meeting for the election of conser The returning officer refused, however, to
vators was to beheld on Monday, the 31st March accept the nomination of another candidate,
1890, and in the list of “ electors," which was Edward Charles Russell Ross, of The Rounds, in
the parish of Wimbledon , who had been duly pro
prepared by the overseers from the rate books, the
lady's name alone appeared in respect of the posed and seconded , and whose nomination had
house in question . been received on the 15th March 1890 .
R .had been nominated as one of the candidates for wasThe ground of the returning officer's refusal
that E . C . R . Ross's name was not upon the
election at the meeting, but the returning officer
had refused to accept his nomination on the list of electors.
ground that his name was not upon the list of It appeared the E . C . R . Ross and his sister
electors. in -law , Mrs. Osborne, were joint occupiers and
joint lessees, at an annual rent of 3001., of a house
Held, that R .was a " tenant or occupier of a dwell called " The Rounds " on Wimbledon Common ;
ing-house " within themeaning of the Act ; that
payment of rates was not required by the Act as but that Mrs. Osborne was alone entered on the
a qualification as an elector; and that R . was list to thelist,
ratepayers' from which the overseers supplied
therefore qualified asan elector,and consequently aplied conservators. From the list so sup
the conservators had made out their list of
eligible as a candidate for the office of con electors, which was open for inspection for
servator. twenty-one days before the election , pursuant to
Reg . v. The Mayor of Exeter ; Dipstale's case sect. 17 of the Act of 1871. E . C . R . Ross's
(19 L. T. Rep. N . S. 432, 433 ; L. Rep.4 Q. B .
114 , 115 ) followed . name was omitted from this list,notwithstanding
Held also, that nothing done by the conservators that Mrs. Osborne had written to the clerk of the
conservators asking that E . C . R . Ross's name
could diminish R .'s right to vote as tenant or might be substituted for hers.
occupier unless a power to do so was conferred The rates and taxes were always paid by Mrs.
upon them by an Act of equal authority with the Osborne, but E . C . R . Ross contributed one half
present Act ; and that if the bye-law had a the amount paid .
contrary effect it was void and must be dis. The following are the material provisions of
regarded . the Act of 1871 :
ΜοTION. Election of Conservators.
This was a motion by William Laidlaw Purves 14. With respect to elected conservators the following
and ten others, on behalf of themselves and other
electors of the Wimbledon and Putney Commons provisions shall have effect, namely :
(1) An election of conservators shallbe held before the
Conservators,against the conservators and Alfred first Wednesday in April one thousand eight hundred
Erasmus Dryden , the returning officer, for an and seventy -two, and the first conservators shall be
interim injunction until the trial of the action , (2) The powers and functions of the conservators so
restraining the defendants, their officers and
agents, from proceeding to the election of elected shall commence on that day .
(3) They shall remain in office as conservators until
Wimbledon and Putney conservators on Monday, the first Wednesday in April in the third year after that
the 31st March 1890 , and from refusing to accept day and no longer .
at any future election of conservators the name (4) Within three months before the expiration of that
of any candidate for the office of conservator who period of three years another election shall be held of
might be a tenant or occupier of a dwelling-house conservators
elected .
to act in the place of the persons first
within the meaning of sect. 15 of the Wimbledon (5) The powers and functions of the persons elected at
and Putney Commons Act 1871, and asking that the second election shall commence on the first Wednes.
the defendants might be directed to elect, in day in April next following their election .
accordance with the provisions of that Act, five (6 ) They shall hold office as conservators for three
vears, beginning on that day and terminating on the
conservators in the place of the five conservators first Wednesday in April in the third year after their
who retired from the office of conservator on the appointment, and no longer.
1st April 1890 , and that a day might be fixed by (7) The foregoing provisions mutatis mutandis shall
the court for holding such election , and that the years .
have effect and for every subsequent period of three
conservators might be directed to issue all such (8) Every person going out of office under this section
notices, and to do all such things as might shall be re-eligible.
be necessary for the purposes of holding such Description of Electors.
election . 15. The following persons and no others shall be
Notice, dated the 22nd Feb. 1890, bad been qualified to be electors of conservators, namely, every
given that the conservators had appointed tenant or loccupier of a dwelling -house coming within
Monday, the 31st March 1890, at ten o'clock in the following description (that is to say ) :
the forenoon , and the office of the conservators, (1) Being (with or without any land rated therewith)
Manor Cottage, Wimbledon Common , to be of the annual rateable value of thirty -five pounds or
respectively the day, hour, and place for the next upwards ; and
(2) Situate within
election of conservators to be held under the l or within the distancethe ambit of Wimbledon Common
of three-quarters of a mile from
June 7, 1890.) THE LAW TIMES. (Vol. LXII., N . 8. - 531
Chan, Div. ] Purves v . THE WIMBLEDON AND PUTNEY COMMONS CONSERVATORS. [Chan . Div.
some part of Wimbledon Common measured along a road | this Act, and he shall while he remains the tenant or
or a footpath to the nearest gate or door of or connected i occupier thereof be liable to pay to the conservators
or used with the dwelling-house, and giving access from rates under this Act as if the limit of thirty - five pounds
the dwelling-house to that road or footpath ; or of annual rateable value had not been inserted in this
(3) Situato in the parish of Putney beyond such dis Act.
tance of three-quarters of a mile as aforesaid. Sect. 84 empowers the conservators from time
Sect. 16 enacts that the electors shall have to time, subject to the provisions of the Act, to
votes according to the scale set forth in the second make bye -laws for all or any of the purposes
schedule to that Act: specified in that section .
List of Electors. Among other bye-laws the following had been
17. Before the first election and each triennialelection made
the conservators shall make a list of the electors by the conservators :
ing the number of votes to which each elector is entitled , 8. No person not being an elector named and described
and for twenty-one days at least before the election shall in the said list of voters shall vote at any election of
keep the list at their office open for inspection by conservators under this Act.
persons interested. The motion now came on for hearing.
Time, Mode, & c., of Election .
18. The day, hour, and place of each election shall be forRenshaw , Q .C . (H . Warlters Horne with him ),
the plaintiffs, in sopport of the motion. - The
appointed by the conservators, at least one month 's question is whether Mr. Ross is a tenant or
notice thereof being published by the conservators, and
elections, and proceedings preliminary thereto and con occupier within the meaning of sect. 15 of the
sequent thereon (including the inspection of lists of Ach, of 1871. He and his sister-in -law are lessees
electors and the form and mode of appointment of of a house at Wimbledon, at a rent of 3001. a year
proxies), shall subject to the provisions of this Act be as joint tenants. Mrs Osborne has generally
regulated by bye-laws of the conservators. drawn the annual cheques by which the rates and
Qualification of Conservator. taxes, the common rate in particular, have been
19. No person but an elector shall be eligible at any paid , but Mr. Ross has always repaid to her half
election .
Delivery of Names of Candidates. of it. I submit that, a joint tenant or not, he is a
20 . A person other than an outgoing conservator shall tenant or occupier, and not the less a tenant and
not be eligible at any election unless fourteen clear days occupier because ho happens to be a co-tenant
at least before the day of election he has been proposed with somebody else :
by an elector, and seconded by another elector by a Reg. v. The Mayor of Exeter ; Dipstale's case,
joint writing under their hands delivered at or sent by
registered 19 L . T . Rep. N . S . 432, 433 ; L . Rep. 4 Q . B . 114 ,
letter to the office of the conservators. 115.
Publication of Names of Candidates.
21. Seven clear days at least before the day appointed That case arose under the Municipal Corpora
for each election , the conservators shall publish the tions Act 1831 (5 & 6 Will. 4, č. 76 ). The
words of that Act are that the person qualified
names of the candidates .
Sect. 22 provides for the appointment of is “ a person who shall have occupied ” a par
returning officer. ticular tenement, and during the occupation shall
Voting at Election . have been an inhabitant householder . A house
23. At each election every elector shall be entitled to was occupied jointly by Dipstale and his brother,
give the vote or the whole number of votes which he has who was his partner in business, and they were
under the scale aforesaid , or any loss number of votes jointly rated for the house, and Dipstale's name
distributively to as many candidates as there are con had been on the list of burgesses, and was removed
servators to be elected , but not to cumulate votes on on an objection being made by another burgess
any candidate , and the election shall be determined by that he was no longer an inhabitant house
a majority of votes of the electors present personally
or by proxy at a meeting held for the purpose of the holder. It was argued that Dipstale was not an
election. “ occupier ” within the meaning of sect. 9 of the
Sect. 24 makes provision for an equality of Municipal Corporations Act 1831,as he had only
votes. a joint occupation . The court, without calling
Sect. 25 enacts that the returning officer shall on the other side, intimated that they had no doubt
make a return to the conservators of the persons that joint occupation was sufficient. So that a
elected . joint occupation by Dipstale and his brother was
Sect. 26 enacts that any error, failure, & c., in sufficient to satisfy the words “ a person who
elections or appointments is not to vitiate acts shall have occupied," and his name was put on
done. the list. Moreover, if there was a joint tenancy
Power for Occupiers on lower rating to undertake Rate or tenancy in common , or any other joint interest ,
and become Electors. it would be disfranchisement of the particular
78 . Notwithstanding anything in this Act any tenant tenant or occupier,because neither of them would
or occupier of a dwelling-house which is (with or with be on the list. What right has anyone to take
out any land rated therewith ) of the annual rateable one of two jointoccupiers, and put him on the list
value of less than thirty- five pounds, but which would
confer the electoral qualification under this Act if it and not the other ? They ought both to be on ,
were (with or without any land as aforesaid ) of the although between them of course they could only
annual rateable value of thirty -five pounds or upwards, have the proper number of votes. The 8th bye
may apply to the conservators to be admitted to be an law is really what themain question turns upon .
electo: under this Act, and on his undertaking to pay It provides that no person not being an elector
and paying rates to the conservators during the two
years next following his application as if the dwelling named and described in the list of voters shall
house aforesaid conferred the electoral qualification vote at any election of conservators under the
under the other provisions of this Act, such rates to be Act. I submit that that is ultra vires, because
calculated according to the annual rateable value of the Act only gives the conservators the right to
that dwelling-house (with or without any land as afore
said), he shall be entitled to be put on the listof electors make a bye-law subject to the provisions of the
| Act,and by the provisions of the Act every tenant
and to vote accordingly , and thenceforth the dwelling. or occupier, whether he is on any particular list
house aforesaid while he is rated as tenant or occupier
thereof shall confer the electoral qualification under or is not, is entitled to vote. [KEKEWICH, J. - It
532 - Vol. LXII., N . S.) THE LAW TIMES . (June 7, 1890.
Chan. Div.] PURVES v. THE WIMBLEDON AND PUTNEY COMMONS CONSERVATORS. [Chan . Div .
does not say any person not being an elector occupier he should have taken care to hare his
named and described in the list of voters shall be name placed on the rate-book . If he stands by
entitled to be elected .] True; but the Act of and does nothing at all, he has no right to come
Parliament says no person not an elector shall be in at the very last moment and endeavour to
eligible at an election . [KEKEWICH, J. - This upset the election . But, even if the election
bye-law ,good or bad , distinguishes between those should be invalid , the proper course is to let the
electors who are named and described in the list election take place, and then set it aside. Other
of voters and tbose who are not. It says, not wise all the machinery will be thrown out of
being an elector named and described in the list | order, for under the Act there can be no new
of voters, which implies that there are electors election for three years.
not named and described in the list.] It is open No reply was called for.
to your Lordship's criticism , and if that is in my
favour, I am willing to accept it ; but in any | KEKEWICH, J.- I fail to seehow it can be urged
point of view I submit that it is ultra vires, that any hardship on the conservators can defeat
because it puts a limitation upon the qualification the right of a plaintiff, if right be has, to insist
required by the Act which is not justified by the upon the election being conducted in the proper
Act itself. The Act provides for keeping the way . There seems to be no unreasonable delay,
list in sect. 17 ; but the conservators by their bye and if the conservators have made a mistake they
law have added to the 15th section , and said that have done it at least with their eyes open , because
a tenant or occupier who is a person qualified to the name of this gentleman , Mr. Ross, was
vote under the 15th section shall be in that list tendered to theni in proper time, and far from
as well. The plaintiffs wish to prevent the their being entitled to complain of hardship, I
election taking place on the date proposed , think other persons can say that they brought
because the result of that election would be, this entirely on themselves — that is, assuming
there being no other candidate except the five that they are wrong. As regards the main ques.
retiring conservators, they would be returned of tion , it is put upon this, that the electors are
course as unopposed . The plaintiffs ask there persons who are rated. Now , I look at the Act.
fore that there shall be a proper election at which I have looked at every section to which reference
Mr. Ross, if properly nominated again , as he has been made, not, of course to the whole of the
might have to be, although he has been properly | Act , and I find no justification at all for that
nominated once, shall be elected. Of course it argument. What the Act seemsto me to say in
will be necessary, according to the authorities, to clear terms is, that the electors are persons who
have the whole thing done afresh : are tenants or occupiers of dwelling-houses rate.
Howes v. Turner, 1 C. P. 671. able. That is an entirely different thing. I
was referred by Mr. Blennerhassett to the
R . P . Blennerhassett, for the defendants , contrà. 78th section, which Mr. Renshaw did not
- I contend that the 8th bye-law is perfectly mention, as supporting the view of the defen .
conclusive, and that Mr. Ross is not an elector dants. It seems to me to support the view of the
within the meaning of the Act. [KEKEWICH, J. plaintiff, and to be of great assistance in that
- That is, assuming that it is a valid bye-law .] direction , because there is a provision modifying
Mr. Ross is not described and named ; therefore the provision of sect. 15 and bringing within the
he cannot vote , and if he cannot vote he cannot scope of sect. 15 by certain implication the pro
be a candidate, for the Act provides by sect. 19 perty which is not within its scope according to
that, “ No person but an elector shall be eligible the definition in sub -sect. 1. And there the
at any election.” [KEKEWICH, J. - But the Act distinction is kept up between the tenants or
does not say, “ no person but an elector who occupiers of dwelling -houses rated as distin
according to the bye-laws shall be entitled to | guished from tenants' or occupiers' rate. The
vote.” ] I submit that “ elector ” means an two things are as different as they very well can
effective elector. (KEKEWICH , J. — The conserva be, and seem to me intended to be different. It
tors have chosen so to construe it in a particular comes therefore to this : is Mr. Ross a tenant or
way by their bye-laws. If I am to choose between occupier of a dwelling -house of the annual rate
the bye-laws and the Act, I must construe the able value of 351. and upwards, situate within a
Act strictly.] Then , I submit that, entirely apart particular ambit ? There is no doubt about the
from this bye-law , Mr. Ross has no claim what | house nor about the ambit. The only point
ever to vote in this election . Hemay or may not therefore is, is he a tenant or occupier ? I have
be a joint tenant of these premises, but he has not seen the lease, because no question is raised
in respect thereof never been assessed to the about it. The lease is granted to him and a lady
poor-rate or to the Queen 's taxes, and his name as joint tenants, and it is said that a joint tenant
has never appeared on any rate-book whatever. is not a tenant,nor, though a joint tenant occupies
No person can vote who is not on the list ; as to a house, is he an occupier. It is extremely diffi
that sect. 78 is clear. This franchise is confined cult for me to follow that reasoning, and I
to all persons having houses rated at 351. or should have no hesitation , if the matter were
upwards a year,but there is a provision in sect. 78 Antirely independent of authority, in holding that
by which persons rated under 351. a year can , if | a joint tenant is a tenant, and that a joint
they like, have the privilege of voting at these occupier is an occupier , bearing in mind of
elections on contributing to the rate. Mr. Ross, course what I have already said, that all the
however,has never paid any rates. Mrs. Osborne's provisions as regards rating point to the pro
name has always appeared on all the rate-books. perty rated, and not to the tenant or occupier
The conservators know nothing whatever of paying the rates. But I am referred to the
Mr. Ross, and do not know what his contribution authority of Reg. v. TheMayor of Exeter ; Dipstale's
may be as between him and Mrs. Osborne. Jf | case (19° L . T . Rep . N . S . 432, 433 ; L . Rep.
Mr. Ross wished to have the privilege of a rate ! 4 Q . B . 114, 115 ), arising under a different Act ,
June 7, 1890. ) THE LAW TIMES . [ Vol. LXII., N . S. - 533
Chan. Div.] Re OLIVER ; NEWBALD v. BECKITT. [Chan. Div.
and with language not precisely the sameas the the argument I made a verbal criticism on the
present statute, but really raising the same sub - j 8th bye-law . It is only a verbal criticism - it is
stantial point, namely, whether joint occupation extremely critical, extremely technical; but I am
was an occupation . All the judgment (a ) which not by any means sure that on a matter of this
I have (that is to say, all the judgmentwhich kind extremetechnicality is not very well applied ,
the reporter thought the point was worth ) is, and I am not by any means sure that that
“ The court intimated that they had no doubt criticism is not enough of itself to get rid of the
that a joint occupation was sufficient.” Bearing | bye-law . But I prefer to put it on broader ground.
in mind that the intimation came from two such If the bye-law has the effect which the defen
experienced judges as Lord Blackburn (then dants desire to attribute to it , it is in my opinion
Blackburn , J.) and Sir James Hannen , it has con | a bad bye-law , and must be disregarded . I there
clusive value to my mind. On that question fore express myopinion that Mr. Ross is a tenant
therefore I hold , without any hesitation , that or occupier of a dwelling-house within the
Mr. Ross is a tenant or occupier within the meaning of sect. 15 , and therefore eligible at an
meaning of sect. 15. If he is a tenant or election of conservators. Expressing that opinion ,
occupier, he is a person qualified to be an elector I restrain the conservators from holding their
of conservators, and being a person qualified to meeting for an election nextMonday. What is to
be an elector he is an elector, and therefore an happen after that I have not now to inquire. It
elector eligible within the meaning of sect. 19. may create some difficulty, but if it does I think
But then it is said that he is excluded by some the conservators themselves are responsible for
bye-law . I have the bye-law before me. One it.
approaches these bye-laws with some suspicion , Solicitors for the plaintiffs, Pollock and Co.
because, if my construction of the Act of Par. Solicitors for thedefendants, Horne and Birkett .
liament is right, nothing can vary in the slightest
degree by way of diminution a right, unless there
is an espress power conferred by the Act of Par
equivalent find of
some other I Act
liament or authority. Parliament
no such of
authority
Tuesday, March 18.
in this Act. No doubt the conservators have (Before CHITTY, J.)
power to make bye-laws. I observe that they Re OLIVER ; NEWBALD v. BECKITT. (a)
have large powers to make bye-laws for adminis Will - Legacies - Charge on realty - Rents received
tration conferred by sect. 84, and they have after death of testator and before sale of realty .
power to make bye-laws conferred by sect. 18 A testator who died in Jan . 1887, by his will dated
which are to have relation to the mode of in Aug. 1879 gave his real estate at North and
election , the time of election, and so forth, and South Collingham and his residuary real estate
include the inspection of lists of electors. But I to his nephew ," healso paying thereoutthe follow
see nothing at all empowering them in the ing legacies ; that is to say , the legacy or sum of
slightest degree to say who shall be named in 10001. to my trustees to be held by them upon the
the lists. They being directed by sect. 17 to make trusts hereinafter declared concerning the same ;
out lists, their duty it seems to me is to make the like legacy or sum of 10001. to the four
out lists of electors, and not to make out lists of daughters of my late niece Mary Holroyd in
persons who are not electors, or to omit from the equal shares ; and the legacy or sum of 2001. to
list persons who are electors. Of course mistakes
may and probably must occur. A name might my niece Sarah Woodruff, to whom I give and
bequeath the same respectively ." The testator
be inserted by accident or might be omitted by directed that such legacies should be paid at the
accident, and if the argument on behalf of the end of six months after the death of his sister,
defendants is right, any number of names acci and he directed his trustees to stand possessed of
dentally inserted would confer the right to vote, the sum of 10001. thereinbefore directed to be
notwithstanding that the persons named had not paid to them and " charged on my Collingham
the qualification mentioned in the Act. That estate," upon certain trusts.
seems to me to require parliamentary authority. | The question was, whether thetestator's nephew was
It seemsto me to require authority of that kind liable to account for the occupation rent of 80
to enable persons to vote who do not come really much of the testator's real estate at North and
within themeaning of sect. 15. In the course of South Collingham as was in his possession or
(a) His Lordship was reading from the report of the occupation at the date of the testator's decease for
case in the Law Reports (4 Q . B . 115), but a somewhat the period between that date and the completion
fuller report of the remarks of Blackburn , J. is con of the sale of that estate by the direction of the
tained in the Law TIMES Reports (vol. 19, p . 433). The court, and with any profits made by him in re
argument was, that during a part of the qualifying spect of the crops and other produce of the estate
period the occupation had been joint and not separate , during such period.
which would not be sufficient to entitle a person to bé Held , that the testator's nephew was not a trustee
placed upon the burgess list ; and Rawlinson's Muni of the legacies for the legatees, but that the same
cipal Corporation Act, 4th edit., p . 17 ; Alcock 's were merely charged on the North and South
Registry Cases, p . 2 ; and Chitty 's Statutes, vol. 1,
p. 963),were referred to. According to the report in the Collingham estate , and that that being so, he was
LAW TIMES Reports Blackburn , J. said : “ If there are not liable to account for the back rents and profits
two persons residing in a house worth 1001., that is as thereof.
good as if each of them resided in one wor 'h 501. Short
(I suppose I must say) of those on the bench , there is ADJOURNED SUMMONS.
no greater lawyer than Mr. Welsby,and he disapproves John Oliver, by his will dated the 26th Aug .
of the decision cited . Even if there might have been 1879 , gave various specific and general bequests
some doubt at first, we cannot alter it after a particular and certain annuities, among which was to his
interpretation has been universally adopted for forty
years." Į (a) Reported by A . COYSGARNE SIM , Esq., Barrister-at-Law .
534 - Vol. LXII., N . 8.] THE LAW TIMES. (June 7, 1890.
Chan . Div .] Re OLIVER ; NEWBALD v. BECKITT. [Chan. Div.
sister Mary Glew an annuity or clear yearly sum | now came on to be heard with the further con
of 521. to be paid to her during her life as in the sideration of the action .
will mentioned , and the testator charged the Begg for the plaintiff.
sameannuity
Willows
upon his estate at Barnby-in -the Romer, Q .C . and Macnaghten ; Whitehorne, Q.C.
. and E . Ford ; Grosvenor Woods and A . L. Elis ;
The will contained the following provisions: for the several defendants .
I give my said messnage, land, hereditaments, and The following authorities were referred to :
premises in North and South Collingham aforesaid , and Wright v. Wilkin , 2 B . & S. 232 ;
my said residuary real estate, unto my said nephew John 2 Jarm . on Wills, 4th edit. p . 1 ;
Beckitt, his heirs and assigns for ever, he also paying Theobald on Wills, 3rd edit. p . 373 ;
thereoutthe following legacies, that is to say : The legacy Attorney -General v . TheWax Chandlers Company, 28
or sum of 10001. tomy trustees to be held by them upon the L . T. Rep. N . S. 681; L . Rep. 6 E . & I. App. 1;
trusts hereinafter
like legacy or sum declared
of 10001. concerning the same. ofmy
to the four daughters The Garfitt v. Allen , 57 L . T . Rep . N . S. 848 ; 37 Ch. Div.
late niece Mary Holroyd in equal shares. And the legacy 48.
or sum of 2001. to myniece Sarah Woodruff , to whom I CHITTY, J. - This question relates to the tes
give and bequeath the samerespectively. And I direct tator's real estate at North Collingham and
that such last-mentioned legacies shall be paid at the South Collingham , and the question is this : Is the
end of six calendar months after the death of my said testator's nephew , John Beckitt, liable to account
sister Mary Glew . And I direct that, in the event of
the death of any or either of them my said nieces or for the rents and profits of that estate which he
grand-nieces before their said legacies shallbecome pay received between the date of the testator's death
able leaving lawful issue, the issue of her or them so and the completion of the sale of the property
dying shall be entitled to her or their deceased parent's under an order of the court. That question
legacy, if more than one, equally, and in case any one | depenas upon whether, on the true construction
or more of them , my said nieces , or grand- nieces , shall
die as aforesaid , without leaving lawful issue, then I of the testator 's will, John Beckitt is a trustee
direct that the legacy of her or them so dying shall go of the property for the legatees, or whether he
and be divided equally amongst the survivors of my is the owner of the property subject to a charge
said nieces and grand-nieces, and the issue, ifany, of any in respect of the legacies. In the latter case the
one or more of them who may be then dead , such issue to legatees would not be entitled to call upon John
taketheir parent's share,ifmore than one,equally. I direct
my trustees to stand possessed of the said sum of 10007. Beckitt to account for the back rents and profits
hereinbefore directed to be paid to them and charged on received by him . On behalf of the legatees it
my Collingham estate, upon trust to invest the same is contended that the testator' s nephew is a
in their own names in or upon any of the parliamentary trustee for them , and that everything he received
stocks or public funds of GreatBritian , or at interest on hemust
Government or real security in England or Wales, or on will; thataccount for. Now , this is a conveyancer's
is to say, the will is in a form generally
thebonds, debentures, debenture stock , or other securi
ties of any railway or other public company or corporation used by conveyancers. The reason why I make
incorporated by Royal charter or by Act of Parliament, that observation will appear when I state the
and carrying on business or situate in Great Britain , terms of the will. Now , the testator gives his
and paying a dividend or dividing a profit, with full
power to alter and vary such stocks, funds, and securi. messuage, land, hereditaments, and premises in
North and South Collingham , and his residuary
ties into or for other investments of a like nature as
often as occasion shall require ; and upon further real estate,to his nephew , John Beckitt," he also
trust to pay the interest, dividends, and annual proceeds paying thereoutthefollowing legacies." Then three
of the said sum of 10001, or the investments thereof to legacies of 10001., 10001., and 2001., respectively
my niece Elizabeth Elston , daughter of my said sister are specified. The first 10001. legacy is to go to
Mary Glew , during her life, for her sole and separate his trustees, to be held by them upon the trusts
use, free from the debts, control, or engagements of her
present or any future husband, and without power of thereinafter
second 10001.declared concerning
go to thethe
foursame. The
daughters
alienation or anticipation . And upon the death of my legacy is to
said niece Elizabeth Elston , I give the said sum of 10001. the testator's niece, Mary Holroyd, in equal
or the investments thereof unto her child or children , of shares ; and the 2001. legacy is to go to his niece,
and if more than one, in equal shares. Sarah Woodruff. Then the testator directs that
Mary Glew died on the 23rd Jan. 1884, in the all three legacies shall be paid at the end of six
lifetime of the testator.
The testator died on the 16th Jan . 1887.
calendar months after the death of his sister.
Mary Glew , who is an annuitant under his will.
After the death of the testator, John Beckitt Then he declares the trusts of the first 1000L
was in possession and receipt of the rents and legacy . He does it in this way : " I direct my
profits of that part of the real estate of the trustees to stand possessed of the said sum
testator which was situate at North and South 10001.,hereinbefore directed to be paid to them
Collingham . and charged on my Coilingham estate." Then
An action was brought for the administration certain trusts are declared , which I need not non
of the real and personal estate of the testator, read. The words “ he paying thereout the fol
and an order was made therein for the sale of lowing legacies " are primâ facie words of condi
the North and South Collingham property, tion , and in this case the condition is a condition
A summons was taken out in the action ask - / subsequent. That is shown by the direction that
ing that John Beckitt might,in his account of the the legacies shall be paid at the end of six
rents and profits of the testator's real estate, be calendar months after the death of the annuitant,
charged with an occupation rent in respect of the testator's sister, Mary Glew . Consequently,
so much of the real estate situate at North and John Beckitt, who is immediately entitled to the
South Collingham as was in his possession or benefit of the devise, does not have to pay the
occupation at the date of the testator's decease, | legacies until six months after the death of the
for the period between that date and the date of testator's sister. Therefore he would enter into
completion of thesale of the real estate on the receipt of the rents and profits of the property
11th Oct. 1889 . for six months before he would be bound to pay
The summons was adjourned into court, and I the legacies. Now , there is a well-known rule of
June 7, 1890 .) THE LAW TIMES. [ Vol. LXII., N . S.- 535
Chan. Div .] THE ECCLESIASTICAL COMMISSIONERS TO KING . [Chan. Div.
construction that a devise upon condition that | Evelyn and Falkner, Newark ; Lee, Ockesley, and
the devisee makes certain payments within a Everington , agents for J. and A . Bright, Notting
given time will, as a general rule, be construed | ham ; Torr, Janeways, Gribble, and Oddie , agents
as a trust and not as a condition , because, if con . for Wells and Hind , Nottingham .
strued as a condition, the only person who takes
advantage of the condition being unperformed ,
when the devise is by will, is the testator's own
heir . “ The right of entry for breach of a Tuesday, March 25.
condition subsequent could not be reserved in (Before CHITTY, J.)
favour of a stranger, but only of the grantor or
his heirs : and the effect of entry by him , or THE ECCLESIASTICAL COMMISSIONERS TO King .(a )
them , after breach , was to defeat altogether the Church Building Acts 1818 , 1838 , and 1845 - 58
estate which had before passed to the grantee ; Geo. 3, c. 45, 88. 33, 51 – 1 8 2 Vict. c. 107, s. 9 –
so that the grantor or his heirs were in as of 8 & 9 Vict. c. 70 % Purchase of land - Site of
their former seisin ." That is a passage of parsonage-house — Ecclesiastical Commissioners
familiar law which is to be found in Stephen 's - Power of resale.
Commentaries, 9th edit., vol. 1, p. 299. If it was
held that the devise must be construed as im ₂Ò₂Â§Â§Â₂Ò₂ÂÂÂÂ§ÂÂÂÂ–₂ÂòÂ§//m₂ ?₂?₂ ?Â?₂?₂?Â?Â₂Ò₂Â₂
porting a condition and nothing else, the person
missioners were empowered to purchase land as
entitled to receive the payments would lose the sites for churches or chapels, and by sect. 51 of
payments, because, if the payments were not the same Act they were empowered to resell any
made within a given time, the heir of the testator land so purchased not required for that purpose ;
would enter and take the estate, and take it free. but under that Act the commissioners had no
power to purchase land as a site for a house of
It was to get over that objection that it has been residence for an incumbent, but only to accept
said that generally the right construction is to land from persons willing to give the same.
hold that the devise creates a trust and not a By 18. 2 Vict. c. 107, s. 9, it was enacted that all
condition . It has been termed a trust without the powers and authorities given by the former
any particular regard to the language, a legal Act for enabling the commissioners to take land
effect being given so as to enable the person for the sites of churches and chapels should
entitled to get the payments . It is upon that " extend to the transfer, by sale or exchange only ,
class of cases, to which I have referred only in of land for a site for a house of residence of any
general terms, that the argument has been based incumbent."
that here the devise is not a condition , and is Under the powers contained in the last-mentioned
there fore a trust. But it is equally plain , for
ordinary purposes, that the effect of the devise is section land was purchased by the commissioners ;
to create a charge, and not a trust. Now , I pro but such land not being requiredhadforcontracted
the purposeto
of a site for a residence, they
ceed to consider whether it is a trust or a charge. sell the same, and the question was whether they
On the face of the will, when the testator had power to do 80 .
intends to create a trust, he knows how to do it. Held , that the effect of sect. 9 of the latter Actwas
[His Lordship discussed the provisions of the to bring land which had been bought under the
will and continued :] The testator imposes a power thereby conferred into the same category
trust upon one of the persons who takes bene as land which had been bought under the powers
ficially, and if thematter stood there I should find of the earlier Act ; and that therefore the com
some difficulty in deciding that this was a charge missioners could make a good title.
and not a trust. But the testator is entitled to Semble, that the Act of 1845 for further amendment
explain his own meaning,and he says in so many of the Church building Acts (8 & 9 Vict. c. 70),
words, in a subsequent part of his will, that the 8. 25 , might also enable the commissioners, in a
trustees shall stand possessed of the 10001. which case like the present, to make a good title.
he has " charged on my Collingham estate." I ADJOURNED SUMMONS.
see no reason to say that the testator does not By a deed dated the 27th Feb. 1884 and made
know the meaning of his own will . On the con
trary , I think that the testator has shown that heunder the Acts 58 Geo . 3, c. 45 ; 59Geo. 3, c. 134 ; 3
is well acquainted with what he has done before. Geo. 4,c. 72 ; 1 & 2 Vict. c. 107 ; 8 & 9 Vict. c. 70 ;
14 & 15 Vict. c. 97, and the other Acts commonly
Therefore,upon the true construction of this will, called
I think that the legacies constitute a charge and cularlythe “ Church Building Acts," and parti
the Act 19 & 20 Vict. c. 55 , a piece of
only a charge. Unquestionably a difficulty arises land situate in the parish of St. James, Clerken
on that part of the will where the testator says,
" he also paying thereout the following legacies." well, was, together with other hereditaments
But there are the subsequent words by which he since sold, conveyed by way of sale by one Eli
explains that they are à charge. Those words William Javens to the Ecclesiastical Commis
" he paying thereout " are only words upon which sioners for England (in whom the powers of the
Church Building Commissioners are now vested )
it turns whether there is a charge or a trust.
But the testator has given , in respect of those for the purposes of the said Acts, and to be
words, a " dictionary ” explaining their effect . devoted to ecclesiastical purposes for ever, as and
These legacies are consequently simply a charge for the site of a parsonage or house of residence ,
on the North and South Collingbam estate, as I with garden and glebe Jereto for the vicar or
am satisfied, looking at the will as a whole. I incumbent for the time being of the parish of
hold, therefore, that the devisee is not liable to St. James, by virtue and according to the true
account for the back rents and profits. intentand meaning of the said Acts. No parson
age house, howerer, was ever built on the site so
Solicitors : Jollyer- Bristow , Russell, and Hill, purchased
agents for Newbald , Larken , and Toynbee, , and the site so purchased had not, nor
Newark ; R . G . Marsden and Wilson, agents for (a) Reported by A. COYSGARNE SIM , Esq., Barrister-at-Law .
536 - Vol. LXII., N . S.] THE LAW TIMES. [June 7, 1890.
Chan. Div.] THE ECCLESIASTICAL COMMISSIONERS TO King . [Chan. Div.
had any part thereof, been used for, nor was the Blakesley (F . H . Jeune, Q .C . with him ), for the
same or any part thereof now wanted for the vendors, in support of the summons. — The com
purposes of the said Acts or for the site of a | missioners have power to sell the land purchased
parsonage or house of residence or for garden or | by them for the site of a parsonage. It is
glebe thereto,and the said site had in fact become | admitted they have power to resell land acquired
wholly unsuitable for that purpose in consequence for the site of a church . The power to acquire
of lofty factories having been built round it. land for church sites is given by 58 Geo . 3, c. 45,
The Ecclesiastical Commissioners for England | ss. 35 , 36 , and the power to resell lands not used
had accordingly, at the instance of the vicar or for the purposes of the Acts is contained in
incumbent of the parish of St. James, taken | sect. 51. There is a distinction between lands
steps to sell the same, and for that purpose purchased and lands acquired by gift ; but that
entered on the 22nd July 1889 into a contract does not arise in the present case, for the land was
with Edwin King to sell the sameto him after purchased by the commissioners. All the powers
having first obtained the refusal of the persons created by 58 Geo. 3, c. 45, are incorporated by
(who would have been entitled thereto in case the 1 & 2 Vict. c. 107, s. 9, and are extended by that
same had not been purchased by the said Eccle enactment so as to apply to lands taken by pur.
siastical Commissioners) to repurchase the same. chase for the site of a parsonage-house.
Edwin King had made an objection to the A . R . Rudall, for the purchaser, contra . - This is
effect that the Ecclesiastical Commissioners for a case of purchase,notof gift; so sect. 33 of 58Geo .3,
England had no power to sell the hereditaments c. 45 does not apply. The recital at the begin .
comprised in the contract for sale ; but the ning of sect. 51 restricts the power of resale to
EcclesiasticalCommissioners contended that they
had ample power under the Acts relating to lands acquired for sites of churches or coapels,
them , and particularly under 58 Geo. 3, c .45, s.51, and the commissioners only obtain power by
1 & 2 Vict. c. 107, s. 9, to acquire land for sites for
and 1 & 2 Vict. c. 107, s. 9.
By the Act of 1818, for the building of addi. houses by sale or exchange. The power created
by sect. 51 of the first Act is not incorporated ,
tional churches in populous parishes (58 Geo. 3, and
c. 45), provisions are made empowering the powersect. 9 of the second Act gives no special
to resell. No further incorporation of
Church Building Commissioners to accept land 58 Geo. 3, c. 45 , with 1 & 2 Vict. c. 107, is caused
as sites for building churches and parsonages, by
and the commissioners are also empowered to chase 8 & 9 Vict. c. 70 , s. 25 . King is a willing pur
acquire by purchase sites for churches. r.
By sect. 51, after reciting that the commis Blakesley replied.
sioners may purchase lands to be made use of CHITTY, J. - The question is , whetber upon the
for the purposes of the Act, and it may happen true construction of the Church Building Acts
that no church shall be built thereon , and it may the Ecclesiastical Commissioners have power to
in such case become necessary to sell the same, sell a piece of land which they acquired by
it is enacted that it shall be lawful for the com purchase for the site of a residence, but which
missioners to resell the lands not wanted for the site they now find is not required for the pur.
purposes of the Act ; provided always that the poses for which they bought it. Their power to
first offer of resale is to be made to the persons acquire arose under the 9th section of 1 & 2 Vict.
of whom the commissioners have purchased the c . 107. By that section it is enacted that all
lands. powers and authorities given by 58 Geo. 3,c.45,
By sect. 9 of an amending Act of 1838 (1 & 2 * for enabling the bodies politic and persons
Vict. c. 107) it is provided that all the powers and therein mentioned to convey, and the commis.
authorities given and conferred by the Act of sioners to take, land for the site of churches and
1818 for enabling persons to convey, and the chapels shall extend to the transfer by sale or
commissioners to take, land for the sites of exchange only of land for a site for a house of
churches,shall extend to the transfer by sale or residence of any incumbent,provided the same do
exchange only of land for a parsonage. not exceed five acres.” That in terms, therefore,
The question for the decision of the court was, relates only, so far as the commissioners are con.
whether the powers of the Act of 1818, with cerned , to their taking the land ; and the only
reference to the resale of land purchased for mode in which they can take the land under that
church sites, were extended by the of Act 1838 to section is, by sale or exchange. The form of the
the resale of land purchased for parsonage enactment is, that the powers of the existing Act
sites. of Geo . 3 for enabling other persons to convey
A summons was accordingly taken out, on and the commissioners to take, shall extend, and
behalf of the EcclesiasticalCommissioners, under so forth . So that the result is , that it was an
the Vendor and Purchaser Act 1874, for the extension in favour of pertsons willing to sell,
determination of that question. who were what may be terraed shortly " limited
The summons asked that it might be declared owners," and the commissioners, on the other
that the objection of Edwin King that the Eccle hand, of the powers existing by virtue of the Act
siastical Commissioners had no power of sale of Geo. 3. In terms, in this Act of the 1 & 2
over the hereditaments comprised in the contract Vict. there is no power of sale conferred tapon
of sale had been sufficiently answered ; and that the commissioners. The question, therefore , is
a good title to the hereditaments has been shown whether the land thus acquired under the 9th
in accordance with the contract. section of the Act of Victoria does not become,
Edwin King was perfectly willing to complete by virtue of the jointoperation of the two statates
if the court should be of opinion that the Eccle taken together, subject to the 51 section of the
siastical Commissioners could make a good title Act of Geo. 3, which does em pow . the commis.
The summons was adjourned into court, and sioners to sell the land not wanted . Now , the Act
now came on to be heard . of Geo. 3 contains in the 33rd sectit provisions
June 7, 1890.) THE LAW TIMES. ( Vol. LXII., N . 8.- 537
Chan . Div.] JOHNSON v. WILD. [Chan. Div.
under which the commissioners might take by 1 pretation to the statute. But there is a parti.
way of gift the sites for churches, and they inight | cular reason which I think is of weight, and that
also take sites for the residence of the spiritual is the form , and the very peculiar form , in which
person serving the church or chapel. That Act that 9th section is enacted , because it is an
contains also a power for the commissioners to extension of some of the powers ; that is, the
buy sites for churches, but no power to buy power to purchase. It appears to me to bring
sites for residences. Then I come to the lan. property which is bought by means of that
guage of the 51st section , and no doubt the extended original power into the same category
only operation that the section had at the time
as other lands of a similar class that have been
when this statute became an Act of Parliament bought under the original power, and not under
was an operation affecting the site of lands pur
this extended power. In other words, it seems
chased for churches . There is this recital : to methat the form of enactment tends to show
" Whereas the said commissioners may purchase that it was the intention of the Legislature to
lands to be made use of for the purpose of this render the land bought under the 9th section of
Act, and it may happen that no church or chapel that Act of Victoria subject to the powers of sale
shall be built thereon, and by reason thereof the contained in the 51st section of the Act of Geo. 3.
same shall not be consecrated and devoted for So I hold that the Ecclesiastical Commissioners
ever to ecclesiastical purposes under this Act,and can make a title . I really would rather not say
it may in such case become necessary to resell the anything on the 25th section of 8 & 9 Vict. c. 70 ,
same.” That recital shows the motive of the because that appears to present to me a maze. It
enactment that follows, but the enactment is is in fact a tangled skein , and it would , I should
found to be in wider terms than the recital. Now , think, take a long time to work out the operation
the rule is, that a recital does not cut down the of that section . You have first to perform a
clear operation of the terms of the enactment certain operation , and the only right way to deal
itself. Of course the recital may, as being part with these referential sections is to write them out
of the context, have an operation in confining at large. When you have written the section out
some general expressions to the powers in the at large, under the earlier portions of the
enactment, but from the nature of the thing itself | enactment, and with those changes in tbe language
it is plain that, as this Act of Parliament stood required by virtue of thewords mutatis mutandis,
when passed , the section could not apply to the you have to revise the whole of it carefully to
site of a parsonage house or a residence pur | find how much is to be struck out, and how
chased , because the Ecclesiastical Commisioners much is consistent with or repugnant to the pro
had no power to make the purchase. The words visions of the Act of Parliament in question . I
are these : " It shall be lawful for the commis only say this, that I could not attempt in the
sioners to grant and convey by way of absolute course of a day's sitting here to work through
sale for a consideration in money," not the lands themaze of that section. All I can say about it
they had purchased for the site of a church , but is , that it may produce the result suggested if it
“ such lands, tenements, or hereditaments, or any has not already been done by the Act of 1 & 2
such part or parts thereof, as shall not be | Vict, and the Act of Geo. 3. There is nothing ,
wanted for the purposes of this Act.” So that I think , in that section which is contrary to
it is in form a general enactment enabling the my judgment, and working out the puzzle it
commissioners to sell lands not wanted for the | might be found that that section has done that
purposes of that Act. There are other terms, par - which possibly had been left undone before. But,
ticularly the previous terms in the section , which as I say, I think the two Acts on which my judge
show that it was not the intention of the Legisla - ment is based have the operation contended for
ture to confer the power of sale over lands that by the Ecclesiastical Commissioners, and that
had been given for the site of a church , or Jands therefore a good title can be made. I under
that had been given for the site of a parsonage stand that there has been an arrangement that
house. Now , I think it is reasonably clear that both parties will pay their own costs.
the land acquired under the 9th section of the Solicitors for the vendors, White, Borrett, and
1 & 2 Vict., which is not wanted for the purposes Co.
for which that land was originally taken , falls Solicitors for the purchaser , Potter, Sandford,
within the power of sale in the 51st section . I and Kilvington .
To reason on the subject generally , nothing can be
more absurd than to suppose that the Legislature
should have left the case in the peculiar predica Tuesday, March 25.
ment that, if the commissioners buy a site for a (Before Cutty, J .)
church which is not wanted, they can sell it, but
if they buy a site for a residence, or parsonage Johnson v. WILD. (a )
bouse which is not wanted , they cannot sell it. | Landlord and tenant- Assignment- Sub .demise
Nobody could point to any reason why the com . Nonpayment of rent- Common obligation
missioners should be bound to keep in their hands Right of contribution .
for ever the piece of land they had bought for In May 1878 C . demised to M . a plot of land for
what I think I may call the inferior thing so far 999 years, at a yearly rent amounting to
as ecclesiastical purposes are concerned ; that is, 111. 78. 8d. In April 1879 M . assigned to A.,
the parsonage-house, whereas, if the other pro the predecessor in title of the plaintiff, by way of
perty is not required for what I will call the mortgage, a portion of the land for the residue of
greater thing- namely, the church - they may sell the term , at an apportioned rent of 31. 178. 8d .,
it. Nobody can suggest a reason why the Legis. subject to a proviso for redemption , and he cove
lature should have intentionally left matters in nanted to pay the entire yearly rent and indem
such an extraordinary position as that. That is
the general reason why I should give this inter - | (a) Reported by A . COYSGARNE SIM , Esq ., Barrister -at-Law .
538 - Vol. LXII., K . S.] THE LAW TIMES. [June 7, 1890.
Chan. Dr .] JOHNSON v. WILD. [Chan. Div.
nify A ., his executors, administrators, and as- | Adams. At the date of such mortgage W . J. B .
signs, from all damage by reason of its non - Minor had erected and built two messuages anda
shop upon the portion of land comprised in the
Bypayment.
an indenture of underlease, dated in May 1879, mortgage. The rest of the land comprised in and
M .demised to W ., the predecessor in title of the de demised by the indenture of lease of the 27th
fendants, another portion of the land for the re May 1878 was then entirely unbuilt upon .
sidue of the term save the last ten days, at an ap. Prior to the granting of the lease of the 27th
portioned rent of 61. 6s. 6d ., and covenanted to | May 1878 to W . J. B . Minor, and when he was in
pay the entire rent and to keep W . indemnified treaty for the land thereby demised , Ann Whit
against the nonpayment. M . being unable to taker verbally agreed with W . J. B .Minor to lease
pay the rent reserved by the lease, the landlord from bim the land demised by an indenture of
applied to the plaintiff, who was mortgagee in underlease , and paid to W . J. B . Minor at that
possession and on whose landsbuildings had been time as premium for the granting of such under
erected , for payment of the whole rent,which he lease the sum of 201. ; and accordingly , by an in
paid under threat of distress. The question was, denture of underlease, dated the 21st May 1879,
whether the defendants were liable to contribute and madebetween W . J. B . Minor of the one part
any, and what portion , of the rent. and Ann Whittaker of the other part, W . J. B.
Held , that the plaintiff was liable to the original Minor demised unto Ann Whittaker a plot of
lessor, and that thedefendants being under-lessees land described in the indenture , and containing
the landlord could not demand rent from them ; in the whole 759 square yards, more or less (being
that there was no common obligation between the other part of the plot of land demised by the
parties, and that therefore there could be no right | indenture of lease of the 27th May 1878 ) for the
of contribution . residue of the term of 999 years, save the last ten
SPECIAL CASE . days thereof, subject to the payment of the
yearly rent of 61. 68. 6d ., and to the performance
This was aof special case stated byto the consent for and observance of the covenants by the lessee and
the opinion the court pursuant Rules of the conditions therein contained . And W . J. B.
the Supreme Court, Order XXXIV . Minor covenanted with Ann Whittaker that he,
By an indenture of lease, dated the 27th May | his executors, administrators,
1878, and made between Maria Ann Hyde Clark thenceforth duly pay the yearlyand rentassigns, would
of 111. 78. 8
of the one part and William John Bonnell Minor by the indenture of lease reserved , and observe
of the other part, M . A . H . Clarke demised and perform all the covenants by the lessee and
unto W . J . B . Minor a certain plot of land the conditions therein contained , and keep Ann
situate in the township of Hyde, in the Whittaker , her heirs, executors, administrators,
county of Chester, containing in the whole and assigns, indemnified against all loss, damage,
1366 square yards more or less, for a term of and expense, actions, expenses, and claims, on
999 years from the 29th Sept. 1878, at a yearly | account of the future nonpayment of the rent or
rent of 111. 78. 8d ., subject as therein contained . the non -observance or breach of the covenants
By an indenture of mortgage, dated the 8th and conditions or any of them .
April 1879, and made between W . J. B . Minor of The underlease to Ann Whittaker was not pre
the one part and the Rev. Reginald Samuel pared by F . W . Johnson 's firm , nor did they act
Adams of the other part, W . J. B . Minor assigned
unto R . S . Adams a plot of land described in the in any way in the matter, but the same was pre
indenture, and containing in the whole 466 pared by a solicitor practising in Hyde.
square yards, more or less (being part of the plot On the 5th July 1880 W . J. B. Minor called
of land demised by the indenture of lease of the upon F . W . Johnson 's firm and stated that themort
27th May 1878 ), for the residue then unexpired of gagee had been pressing him to insist on the cove
the term of 999 years, subject nevertheless to the nants in the underlease to Ann Whittaker being
payment of the yearly rent of 31. 178.8d. as an ap performed , and buildings erected in pursuance
portioned part of the yearly rent of 111. 7s. 8d ., thereof, and he instructed F . W . Johnson's
and to the observance and performance of the firm to write to Ann Whittaker a letter .
covenants, conditions, and agreements contained Accordingly on the 5th July 1880 they wrote the
n the indenture of lease so far as the same following letter :
affected the premises assigned , and subject to a Madam , - It appears in May 1879 you leased a plot of
proviso for redemption on payment of the sum land in Lumn-street, Hyde, from Mr. Minor, and the
of 5001. and interest. And w . J. B. Minor, same was demised to you by an indenture dated the 21st
amongst other things, covenanted with R . S . ofpartthat month , and made between Mr. Minor of the one
and yourself of the other part. In the deed you
Adamsthat he, his executors, administrators, and covenanted to oferect and build apon the land within
assigns, would duly pay the yearly rent of twelve months the date a messuage or dwelling-house
111. 78. 8d., and observe and perform the cove of the description and value therein mentioned. We
nants contained in the indenture of lease, and are informed youmortgagee havenotyetoferected any buildings upon
Mr. Minor's property is
would save harmless and keep indemnified R . S . not the land. The
satisfied with
Adams, bis executors, administrators, and as ask you to forthwith perform the abovehis present seonrity, and we have to
signs, and his and their estate and effects, and erecting upon the land comprised in thecovenant above dead bę
the premises thereby assigned, from all actions, buildings of the description and v above ment
suits, claims, costs, damages, and expenses which and thus improve the security of the mortgagee.
might be incurred or sustained by reason of the By an indenture dated the 28th Sept. 1880 and
nonpayment of the rent or the non -observance or made between W . J. B. Minor of the one part
non - performance of the covenants, conditions, or and Ann Whittaker of the other part, reciting
agreements, or any of them . the indenture of lease of the 27th May 1879 and
The last-mentioned mortgage was prepared by underlease of the 21st May 1879, and that
Francis William Johnson as solicitor for R . S. I W . J. B . Minor had agreed with Ann Whittaker
June 7, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 539
CHAN . Div .] JOHNSON v. WILD. [Chan. Div.
for the sale of the yearly rent of 61. 68. 60. ! Brooke would be sufficient to satisfy a part,but
reserved by the underlease, and for a release to not the whole of such sum .
her of such of the covenants and conditions con - By an indenture of further charge, dated the
tained in the underlease of the 21st May 1879 as / 28th Oct. 1881, and made between W . J . B . Minor
were thereinafter expressed to be released , of the one part and R . S . Adams of the other
W . J. B. Minor, in pursuance of the agreement part, W . J. B . Minor further charged the pre
and in consideration of the sum of 1181. paid to mises comprised in the indenture of mortgage of
him by Ann Whittaker, granted , bargained , sold , the 8th April 1879 with the sum of 501. and
assigned, and released unto Ann Whittaker, her | interest thereon .
executors, administrators, and assigns, theyearly W . J . B . Minor filed a petition for the liquida
rent of 61. 68. 6d. reserved in the indenture of tion of his affairs on the 8th Feb. 1878, and a
underlease of the 21st May 1879 and made pay. composition of 2s. in the pound was accepted ,
able from Ann Whittaker, her executors, admin and on the 17th Feb . 1882 R . S. Adams entered
istrators, and assigns, to W . J. B. Minor, his into possession of themortgaged premises.
executors, administrators, and assigns, to hold , M . A . H . Clarke applied to R . S . Adams to pay
receive, take, and enjoy the same absolutely . the whole of the rent of 111. 78. 8d . as the same
And for the consideration aforesaid, W . J. B .
Minor, in further pursuance of the agree fell due each half-year, and threatened to distrain
ment, released , exonerated , and discharged in the event of nonpayment, and R . S . Adams
Ann Whittaker, her heirs, executors, adminis paid to M . A . H . Clarke the sum of 561. 188. 4d .,
trators,and assigns, and also the premises demised | being the whole of the rent from the 25th March
by the underlease, from all the covenants in the 1882 to the 25th March 1887.
indenture of underlease entered into by her with Owing to R . S . Adams having paid the chief
W . J. B . Minor, his executors, administrators, rent of 11l . 78. 8d . to M . A . H . Clarke, and being
and assigns, and from all the conditions, pro otherwise dissatisfied with his security, he applied
visoes, declarations, clauses, matters, and things, to F . W . Johnson to take over the same, which he
in the same underlease as therein mentioned . accordingly did, seeing that he had introduced the
The purchase of the chief rent of 61.68. 6d.by security , and that he had acted as solicitor for
R . S . Adams in the matter, and repaid to R . S .
Ann Whittaker was negotiated by her solicitors Adams
J. and J. Hibbert, of Hyde, who prepared the his principal money and all interest
assignment of the same rent to her and acted as thereon , including the payments which R . S .
solicitors on her behalf througbout the entire Adams had made in respect of the chief rent of
78. 8d., and which made in the aggregate a
matter, and prepared the contract for sale, F . W . 111.
Johnson acting in that matter as solicitor for sum of 5991. 118. 2d .
W . J. B . Minor, but not commencing to so act By an indenture, dated the 2nd Aug . 1887, and
until after the contract had been signed at J. and made between R . S . Adams of the one part and
J. Hibbert's office by W . J. B . Minor, who then F . W . Johnson of the other part, after reciting,
instructed F . W . Johnson 's firm . The completion that the total sum of 5991. 118. 2d . then remained
of the purchase took place at the office of F . W . owing to R . S . Adams on the security of the
Johnson , and the sum of 1181. paid by Ann indentures of mortgage and further charge,
Whittaker was applied as follows, and W . J. B . R . S . Adams assigned unto F . W . Johnson the
Minor signed and gave to F . W . Johnson a sum of 5991. 118. 2d . secured by the indentures
of mortgage and further charge, and all interest
memorandum in the words and figures following : thenceforth to become due thereon and the full
£ 8. d .
Parchasemoney of chief rent of 61. 68. 6d . ... 118 0 0 benefit of all securities for the same. And by
Less deposit paid to Mr. Minor... ... ... ... 10 0 0 the same indenture R . S . Adams assigned unto
F . W . Johnson the plot of land comprised in the
1880 . £108 0 0 indenture of mortgage, to hold the same unto
0 F . W . Johnson , his executors,administrators, and
Sept. 28. Paid
st on 5002Mr. Minor ...
nths ;in 3 0 assigns, for the residue of the term of 999 years,
Mr.tereAdams' rest -— 18 mo
interest months subject nevertheless to such right or equity of
terest on 5001. at 5 per cent. ... ... 37 10 0
W . and F . W . Johnson 's professianal redemption as was then subsisting in the pre
charges ... ... ... ... ...
... * ..."** ... 19 13 3 mises.
Payments ... ... ... ... ... ... ... 9 6 -- 9 69 10 0 F. W . Johnson had since thedate of the transfer
been in possession of the mortgaged premises,
£38 100 and M . A . H . Clarke bad applied to him to pay
29th Sept. 1880 – Received the above-mentioned sum of the whole of the chief rent of 111. 78. 8d., and
Thirty-eight pounds ten shillings. had threatened to distrain in the event of non
(Signed ) W . J. B . MINOR . payment, and F. W . Johnson had paid the rent
The residue of the land comprised in the lease half-yearly to M . A . H . Clarke, and the whole of
of the 27th May 1878 , amounting to 141 square such payments amounted to the sum of 281. 98. 2d .
yards or thereabouts, had been assigned to and being the wbole of the rent from the 25th March
was now vested in J. H . Brooke, of Hyde, and two 1887 to the 29th Sept. 1889 .
cottages had been built and were now standing F . W . Johnson , as solicitor on behalf of R . S.
upon the same. The land demised to Ann Adams, applied to Ann Whittaker during her life,
Whittaker (759 square yards) had remained and namely, on the 21st May 1887, for contribution
still was entirely unbuilt upon . The same land towards the rent so paid by R . S . Adams to
was used by her as a part of the garden attached M . A . H . Clarke, and since the transfer F . W .
to her residence. The land and buildings belong. Johnson on his own behalf applied to Ann
ing to F . W . Johnson were the only property | Whittaker for contribution towards the rent paid
capable of being distrained upon for the full by him to M . A . H . Clarke, but Ann Whittaker
annual rent. The cottages the property of J. H . I through her then solicitors, J. and J. Hibbert,
540 - Vol. LXII., N . 8 .] THE LAW TIMES. [Jane 7, 1890.
Chan. Div .] JOHNSON v . WILD . [Chan. Div
denied her liability to contribute towards such | lease. Adamshas assigned over, and the plain .
rent. tiff stands in Adams' shoes as assignee. Adams
Ann Whittaker died on the 19th May 1888, and for his protection took the corenant from his
Frederick Wild and Elkanah Woodhead were mortgagor for the payment of the entire rent of
the trustees and executors of her will, and were the lease, and also a covenant for indemnity.
in possession of the premises comprised in the The defendants have a title to another part of
underlease. the land comprised in the same lease, their title
An action was brought by F . W . Johnson being derived out of the lessee's interest. The
against F Wild and E . Woodhead, and this defendants, or rather their immediate predeces.
special case was stated . sors, took an underlease, and that underlease was
The questions submitted for the opinion of drawn in a different form . Instead of taking an
the court were : 1. Whether the defendants, as assignment for the whole of the term granted by
trustees and executors of the will of Ann the original lease, in the part of the land with
Whittaker, were liable to contribute any and which the defendants' predecessor was dealing,
what proportion of the rent reserved in the lease she took an underlease, and so escaped all liability
of the 27th May 1878 in respect of the portion of for payment of the original rent; and she
the plot which was demised to Ann Whittaker also, by way of precaution, took from the original
by the underlease of the 21st May 1879. 2 . lessee a covenantto pay therent, and to indemnify
Whether the defendants, were liable, as such her against the rent. Now , Minor, the lessee,
trustees and executors, to repay to the plaintiff has got into difficulties, and he is in that
any and what part of the sum of 281. 98. 2d . which impecunious condition that he cannot pay the
had been paid by him for rent under the lease rent. I do not think it is material ; but on the
of the 27th May 1878 . statements of this case it does not appear that he
The special case now came on to be heard. is discharged from payment of the rent. He
Levett (Romer, Q .C . with him ), for the plaintiff, remains liable, and he remains liable apparently
on those covenants which I have mentioned - the
submitted that the plaintiff's claim was founded covenant
on the principles of natural justice (Story' s indemnify.to But pay the rent and the covenant to
he cannot pay . In those cir
Equity Jurisprudence, 9th edit., s. 493); that the cumstances the landlord has distrained for the
doctrine which should guide the court in such a
case as the present was analogous to the practice rent, and finding he could obtain his distress
in questions of general average and the like where best upon that part of the land which is in the
plaintiff
there was no express contract, but equity dis to distrain 's holding,he has distrained , or threatened
tributed the loss equally ; and that as the plaintiff tiff , which is the samething, on the plain
had preserved the defendants' property he was . The plaintiff, in order to avoid the distress,
entitled to payment by analogy to the practice in has paid the entire rent reserved by the lease of
1878 . That is the payment in respect of which
cases of salvage. He also referred to he demands the contribution . Now , he does not
Layer v. Nelson , 1 Vern . 456 ; demand contribution from a person who is liable
Webber v. Smith, 2 Vern. 103. to a common demand, because the defendants are
Maclean , Q .C . and Swinfen Eady, for the not liable for the rent ; and the defendants are
defendants, submitted that there was no privity not only not liable for the rent, but nobody can
whatever between the parties ; that it was well sue the defendants in respect of this supposed
established that one of two ander-lessees paying liability unless it be the plaintiffs ; whereas in a
the whole of the common rent could not sue for common demand for which two persons are liable,
contribution (Hunter v . Hunt, 1 C . B . Rep. 300 ) ; if one pays, then there is a right of contribution
and one tenant in common of a house who ex on the part of the one who makes the payment
pended money on repairs had no right of action against the one who does not. But there is no
against his co -tenant for contribution (Leigh v. authority for the proposition that has been now
Dickeson , 52 L . T . Rep. N . S . 790 ; 15 Q . B . Div. advanced . Co-sureties are liable to the principal
60) ; that the position was distinguishable from demand, either in the whole or in part, and as
that of co -sureties, because there was no common between the co -sureties there is not only the
liability ; that when the facts were looked at, the
plaintiff could not complain of hardship, for he common law right
the equitable right ofof contribution
contribution, .butThe
there
mostis
was foolish enough to take an assignment instead remarkable part of this case is, that this kind of
of a demise, although he knew that a head rent question must, in fact, have arisen time after
was payable, and hemust be presumed to know time during the centuries that this class of law
the law ; and that the defendants were entitled has been known - a first demise, a sub-demise,
tocaution
the .protection they had gained by their pre and a sub-demise again to the second, third,
CHITTY, J.— The plaintiff claims contribution fourth , fifth , or even tenth degree. If I were to
assent to this proposition , I should have to pursue
from the defendants in respect of the payment not the first , as it were, in the series of under .
that he, the plaintiff , has made for the rent lessees, but I should have to go down to the end
under a lease for a term of 999 years granted in of them . The position of the plaintiff is unques.
1878 . The plaintiff claims under the lessee . tionably unfortunate. He has in this case got a
Adams took a mortgage from the lessee of part person who stands on the same level as he himself
of the property, and Adams' security is framed does in respect of the demand, that is to say,
in this way. He became the assign of part of the the rent ; but unfortunately that person cannot
land comprised in the lease for the whole term pay. He would have a right of contribution,
granted by the lease ; so that in law he was an and something more, because he would have a
assign of that part of the land demised ; and right under the special covenants against Minor,
consequently Adams remained liable to the land. and he need not as against him resort to any
lord for the rent that was reserved upon the I such device as this. But he has lost that, and
June 7, 1890.] THE LAW TIMES . [ Vol. LXII., N . 8. -541
Chan. Div.] Re MacDONALD ; MCALPIN v.MACDONALD . [Chan . Div.
he cannot get contribution from the defendants. sent by post to these fifteen creditors, but had
I can find no authority to justify the plaintiff 's been returned . The sum paid into court was
represented by 12181. New Consols - sufficient to
contention , and I think I should be erring if I
said that there was any principle which let in pay all the creditors and leave a surplus over for
this demand . The result is, I think , that thethe beneficiaries.
plaintiff's case fails. I will answer the questions
The question was raised on the distribution of
in the negative. Then the action is dismissed this fund on further consideration , as to how the
with costs, including the costs of the special debts of the creditors in the second part of the
case . first schedule were to be provided for.
Solicitors for the plaintiff, Robins, Billing,and F . H . Colt for the plaintiff.
Co., agents for Johnson and Johnsons, Stock G . E . Tyrrell, for the defendant, the testator's
port.
Solicitors for the defendants, A. J. Nash ,agent legal personal representative.
CHITTY, J. said that the right form of order
for F. and T . Drinkwater, Hyde. would be to carry over to the account of each one
of the creditors in the second part of the first
schedule by name an apportioned part of the
New Consols equivalent, at the market price of
Saturday, Dec. 7, 1889. the day, to the amount of his debt, and then the
(Before Chitty, J.) rest of the fund could be dealt with . He added
Re MACDONALD ; MCALPIN v. MACDONALD. (a) that he did not feel bound to direct any further
Practice - Administration - Distribution of fund in | inquiry, and there was no reason why the whole
court - Creditors long since deceased - Creditors fund should be kept in court while further infor
whose addresses and existence not proved - mation as to these creditors was being obtained .
Separate account - Carrying over - Form of The order, after providing for the payment out
order. of the New Consols of the debts due to the
[nder an administration decree made in 1886 creditors in the first part of the first schedule
divers creditors carried in proofs ; but the pro proceeded : “ Of the residue of the 12181. New
ceedings were not completed, in consequence of an Consols, let so much as at the price of the day of
insufficiency of assets. In 1888 further assets carrying over will be equal to the several amounts
fell in, and by the chief clerk's certificate it of the debts and interest thereon mentioned in
appeared that there was a sufficient fund in court the second part of the said first schedule, with
to pay all the creditors, but that some of the subsequentover, interest thereon to the date of such
creditors whose claims were allowed could not be carrying to be verified by affidavit, be
carried over in this matter and action to the
found .
Held , that the proper course was to retain in court several accounts of the sereral creditors men
tioned in the second part of the said first schedule
to the credit of each of such last-mentioned respectively, and let the interest on the respective
creditors a sum of Consols representing the
amount of his debt and the interest thereon , and sums of New Consols so carried over be accumu
lated to the same and like account. Let the
to fully administer the residue of the fund .
This was the further consideration of a creditor's residue of the said New Consols, & c ., be trans
action for the administration of the estate of a to apply . of court to the defendant.” Liberty
ferred out
deceased testator, E . W . Macdonald .
Solicitors for plaintiff and defendant, H .
The testator died in 1864, and the usualadminis Tyrrell
tration decree was made on the 28th May 1866 . | Birmingham
and Son , agents for J. B . Clarke and Co.,
Advertisements were issued , and a number of .
creditors sent in claims, but, in consequence of
the insufficiency of the assets, the suit was for a
time abandoned . Jan. 28, 29, and March 26.
In Nov . 1888 the testator's legal personal repre . (Before STIRLING, J.)
sentatives paid into court a sum of 11801. and the Re WOLMERSHAUSEN ; WOLMERSHAUSEN v.
accounts and inquiries were by an order subse WOLMERSHAUSEN .
quently made directed to be continued .
On the 16th Nov. 1889 the chief clerk made his Statute of Limitations- Acknowledgment - Joint
certificate , by which it appeared that the debts of and several liability - Release- Principal and
the testator, which had been allowed , amounted, surety - Discharge of surety.
with interest thereon and costs, to 6071. An acknowledgment inust, in order to take a case
The chief clerk divided the creditors into two out of the Statute of Limitations, contain an
classes. The first part of the first schedule to express or implied promise to pay .
the certificate contained a list of twenty creditors, Where persons are severally or jointly and sever
who had been ascertained to be living or properly ally liable for a debt, a payment by one does not
represented , and whose debts, with interest and prevent the Statute of Limitations from running
costs, amounted in all to 3251. ; and the second in favour of the others. The law in this respect
part contained a list of fifteen creditors whose was the same before the passing of the Mercantile
debts, with interest and costs, amounted in all to Law Amendment Act 1856 .
2821., and as to whom no evidence had been Apart from the law of principal and surety, a
adduced to show whether such persons were release to one of several persons jointly or jointly
living, or , if dead, who were their legal personal and severally liable is a release to all ; but where
representatives, or the persons entitled to such the alleged release is informal and not under
debts. It was also certified that notices had been seal, it is a question of fact to be determined on
(a ) Reported by A . COYSGARNE SIM , Esq., Barrister -at-Law . (a) Reported by L. S. BRISTOWE, Esq.,Barrister-at-Law .
542 - Vol. LXII., N . 8.] THE LAW TIMES. [June 7, 1890.
Chan. Div .] Re WOLMERSHAUSEN ; WOLMERSHAUSEN v. WOLMERSHAUSEN. [Chan . Div .
all the circumstances of the casewhether a general i leasehold colliery belonging to the company,
release was intended to be given . known as the Ludworth Colliery, and also the
Where one of several persons jointly and severally loose plant on the Wheatley Hill and Thornley
liable had become bankrupt, and the alleged Collieries.
release was given to his trustee in bankruptcy : On the occasion of the advance by Messrs.
Held , that, as the joint liability had becomeseveral Barclay, Bevan , and Co., Ford agreed to postpone
by the bankruptcy , and the bankrupt's estate was his security to theirs. As regards therefore the
severally liable only , the release could not under
Wheatley Hill and Thornley Collieries Messrs.
any circumstances be a release to the other per Barclay, Bevan, and Co. became first mortgagees
sons liable. and Mr. W . Ford second mortgagee.
Held also , that the facts showed no intention to On the 17th April 1872 the company, in pur.
give a general release, but merely to compromise suance of their agreement, executed to Messrs.
a right of proof against the bankrupt's estate . Barclay, Bevan , and Co . a legalmortgage of the
Under the law of principal and surety a creditor Wheatley Hill and Thornley Collieries. This
must not (1) act in a manner inconsistentwith mortgage was made by assignment and not by
contract under which the obligation of surety
the was incurred ; (2) do anything to prejudice not demise, and the loose plant and machinery were
ship included in it. A further advance of 10,0001.
the right of contribution between the co -sureties . was subsequently made by Messrs. Barclay,
If he does, the sureties will be released either Bevan , and Co. to the company. This advance
wholly or pro tanto. was also secured by a jointand several promissory
Where the creditor had effected a compromise with note of the same five directors, dated the 21st
one of from sure
severalreceive Jan . 1874 .
the trustee
ties, by which he precludedofhimself
in bankruptcy In the beginning of the year 1877 resolutions
ing a dividend againsthis estate : for winding-up were passed by the company, and
Held , that the co-sureties were discharged to the shortly afterwards à supervision order was
extent of the diviend which , but for such com made.
promise,the creditor might have received . On the 19th Jan. 1877 a liquidator wasappointed
ADJOURNED SUMMONS. with power to carry on the collieries, which he
did until the end of June 1881.
This was an application in an action for the ad Various sums had been from time to time paid
ministration of the estate of the late George by the company to Messrs. Barclay, Bevan, and
MichaelWolmershausen , for the purpose of deter - Co., in partial repayment of the said advances,
mining whether Messrs. Barclay, Bevari, and Co ., the last of such payments having been made in
bankers, of Lombard -street, were entitled to June 1875 . The sums thus paid amounted in
claim as creditors of the estate for 60001. and respect of the advance of 25,0001. to 19,5001., and
interest under two joint and several promissory in respect of the advance of 10,0001. to 55001.
notes dated respectively the 29th July 1871 and There remained due, therefore, at the time of the
the 21st Jan . 1874 . winding -up 55001. on ſthe promissory note of the
The testator had for many years before his 29th July 1871 and 45001. on the promissory note
death been one of the directors of a company of the 21st Jan. 1874 . After the winding-up two
called the Original Hartlepool Collieries Com further sums of 20001. each were paid in respect
pany Limited . of the promissory note of the 29th July 1871,
In July 1871 tle Original Hartlepool Collieries by Pord, leaving a liability of 15001. on that
Company, being pressed for money, obtainedy note .
an advance of 25,0001. from Messrs. Barcla , The testator died on the 17th May 1879,leaving
Bevan , and Co. As security for this ad - the defendantt his yexecutrix . me r the writ in
vance the company deposited with Messrs . On the 31s Jul in the sa yea
Barclay , Bevan , and Co. the title -deeds of the present action was ati issued .
two leasehold collieries,known as the Wheatley The usual administr on judgment was pro
Hill and Thornley Collieries, belonging umto nounced on the 13th ise Aug . in the same year.
the company, and executed a memorand The usual advert ments for creditors were
of charge dated the 29th July 1871. The memo published under that judgment, and in response
randum was expressed to secure the sum of to such advertisements Messrs . Barclay, Bevan,
25,0001. and all further sums which might be ad and Co. in Oct. 1879 gave notice of a claim for
vanced by Messrs . Barclay, Bevan , and Co. not 60001., being the balance then due on the two
exceeding 10,0001., with interest at 6 per cent. per promissory notes and interest
annum ; and the company thereby agreed , upon By an affidavit of the 13th March 1880, made
the request of Messrs. Barclay, Bevan , and Co., 1 in reference to the claims of creditors of the
to execute a legalmortgage of the two collieries estate, the defendant said as follows :
in such form and with such power of sale and 3. I have in the paper writing now produced and
other provisions as Messrs. Barclay, Bevan, and shown to me, and marked A , set forth a list of all
Co. might require. claims the particulars of which have been sent in to me
The advance was further secured bya joint and by persons claiming to be creditors of the said George
several promissory note for 25 ,0001., with interest Michael Wolmershausen, or which have otherwise come
at 6 per cent. per annum , of five of the directors to my knowledge.
of the company, including the testator and a 4. I have examined the particulars of the several
claims mentioned in the paper writing now produced,
certain Mr. William Ford . This note was dated and shown to me, marked A , and I have compared the
the 29th July 1871. same with the books, accounts, and documents of the
George Michael Wolmershausen, in order to ascer
Previously to this advance the Wheatley Hill said
tain so far as I am able to which of such claims the
and Thornley Collieries were subject to an estate of the said George Michael Wolmershausen is
existing incumbrance in favour of Mr. William jastly liable. From such examination I am of opinion,
Ford. Ford 's security included besides a third I and verily believe, that the estate of the said George
June 7, 1890 .] THE LAW TIMES. [Vol. LXII., N .8.- 543
Cuan. Div .] Re WOLMERSHAUSEN ; WOLMERSHAUSEN v. WOLMERSHAUSEN . [Chan . Div.
Michael Wolmershausen is justly liable to the amounts | hausen, and proper to be allowed to the respective
set forth in the sixth column of the first part of the J claimants named in the said schedule.
paper writing marked A , and to the best of my know The exhibit marked A in the affidavit contained the
ledge and belief such several amounts are justly due following particulars of Messrs. Barclay, Bevan , and
from the estate of the said George Michael Wolmers. | Co .'s claim :
Names of Claimants. Address, Particulars of Claim . Amount claimed .
Barclay, Bevan, and Co. 54, Lombard-street. Contingent claim in respect of 60001. and interest.
mortgage executed by the Ori. |
ginal Hartlepool Collieries
Company Limited .
Amount further to be allowed uncertain .
The decision with regard to the liability of | Messrs. Barclay, Bevan, and Co. from all claims
the estate to this claim had from time to time against them .
been postponed , and in themeanwhile the following After the completion of those transactions the
erents had occurred : trustee in Ford 's bankruptcy required Messrs.
On the 1st July 1881 W . Ford entered into pos- | Barclay and Co. to withdraw their proof against
session of all the three collieries, and began to Ford's estate. They at first refused to do so ,
work them . He continued to work them till the but subsequently consented on condition of the
4th April 1884. trustee handing orer to them certain further
On the 26th June in the same year a receiving loose plant. This was done without the consent
order was made against him , and he was subse or knowledge of any of the other parties to the
quently adjudicated bankrupt. Messrs. Barclay, two promissory notes, and there was no espress
Bevan , and Co . proved in his bankruptcy for reservation of right as against them .
60001. The dividend paid in Ford 's bankruptcy was
On the 24th Oct. 1884 an order was made in 2 d . in the pound. The loose plant handed over
Ford's bankruptcy giving his trustee leave to to Messrs. Barclay and Co . realised a little over
disclaim the colliery leases, and on the 1st 111. No proof in the winding -up of the Original
Nor . following the trustee disclaimed them Hartlepool Collieries Company, which paid a
accordingly . dividend of about 2s. 6d. in the pound,was carried
The legal estate in the Wheatley Hill and in by Messrs. Barclay, Bevan , and Co.
Thornley Collieries having become vested in On the 8th July 1885 a summons was taken out
Messrs. Barclay, Bevan , and Co. by reason of the by the plaintiffs in the present action , asking
assignment contained in the mortgage, they now that all proceedings in the action relating to the
found themselves liable for the payment of the claim of Messrs. Barclay, Bevan, and Co . might
rents reserved by and the performance of the be stayed until further order, without prejudice
onerous covenants contained in the leases under to such claim , and that Messrs. Barclay, Bevan ,
which those collieries were held . and Co. might be at liberty to bring an indepen .
At the time of Ford 's bankruptcy the rents dent action to establish their claim .
were in arrear,and large claimswere made by the On the 20th April 1887 a summons was taken
lessors in respect of breaches of covenant con out by Messrs. Barclay, Bevan , and Co. asking
tained in the leases, and distresses were put in for that their claim might be allowed without further
rent, rates, taxes, and workmen 's wages. evidence.
Both before and after Ford's bankruptcy court Both these summonses were adjourned into
attempts were made to sell the collieries by arisingforupon the purpose of enabling the questions
auction, but no bid was obtained. the claim of Messrs. Barclay, Bevan,
Under these circumstances Messrs. Barclay , and Co . to be disposed of, and they now came on
Beran , and Co. determined to dispose on the for hearing.
best terms they could of the Wheatley Hill and Bevan Buckley, Q .C .and Dickinson forMessrs. Barclay,
Thcrnley Collieries. It was found that a com , and Co.
pany called the Weardale Coaland Iron Company Hastings, Q.C . and R . J. Parker for the repre
was willing to take leases of these two collieries, sentative of the testator.
provided a lease of the Ludworth Colliery was Farwell for the plaintiffs in the action .
also granted to them , and provided also that the Thementarguments sufficiently appear from the
loose plant in all the three collieries, which was judg .
then vested in the trustee in Ford 's bankruptcy , The following cases were referred to :
was handed over to them free of charge. Nego
tiations were accordingly entered into by Messrs. Nicholson v. Revill, 4 Ad. & E .675 ;
Barclay , Bevan, and Co. with the lessors of all Ex parte Giffard , 6 Ves. 805 ;
three collieries, and with the trustee in Ford's Ward v. National Bank of New Zealand, 49 L . T .
Rep. N . S. 315 ; 8 App . Cas. 755 ;
bankruptcy , and it was ultimately arranged that Webb
438 ;
v. Hewitt, 29 L. T. Rep. O . S. 225 ; 3 K . & J.
the lessors should , in consideration of very con
siderable payments beingmade to them by Messrs. Watts v. Shuttleworth , 35 L . T. Rep. 0 . S . 515 ;
Barclay, Bevan, and Co.,accept surrenders of the H . & N . 235 ;
eases , and that the interest of Ford 's trustee in Samuel v. Howarth, 3 Mer. 272 ;
Rew v. Pettet, 1 Ad. & E . 196 ;
pankruptcy in the loose plantshould be purchased Jones v. Hughes, 5 Ex. 104 ;
'y a payment in cash and an undertaking to Re632Frisby; Allison v. Frisby,61 L . T. Rep. N . S.
; 43 Ch. Div . 106 ;
ndemnify his estate against certain claims. Cockrill v. Sparkes, 7 L. T. Rep. N . S. 752 ; 1
l'hose terms were duly carried out, new leases of H . & C . 699 ;
be three collieries were granted to the Weardale Kearsley
oal and Iron Company, and the lessors released 128 ; v. Cóle, 7 L . T. Rep. O . S. 89 ; 16 M . & W .
544 - Vol. LXII., N . S.] THE LAW TIMES. [June 7, 1890.
Chan. Div.] Re WOLMERSHAUSEN ; WOLMERSHAUSEN v.WOLMERSHAUSEN . [Chan. Div.
Ex parte Jacobs, 31 L . T. Rep . N . S. 745 ; 10 Ch . | Tredgold the joint contract had ceased to exist ;
App . 211 ; for it was determined by the death of John Tred .
Rainbow v.'Juggins, 5 Q . B . Div. 422 ; gold . The note then became the several note of
Carter v. White, 50 L . T. Rep. N . S. 670 ; 25 Ch . the parties to it. To hold such a payment to
Div . 666 .
Cur. adv. vult. raise an implied promise sufficient to bind the
defendants would be to decide that where the
- March 26. - STIRLING, J. stated the facts as promises are several a payment by one party
above set forth , and proceeded : The first defence would bind the rest.” In no case, so far as I
set up by the respondent is one which applies have been able to discover, has it been held that
only to part of the claim , namely , the 15001. | where the liability arises from several promises
remaining due on the note of the 29th July 1871. a payment by one of the parties so severally
No payment having been made on this note by | liable prevents the statute from running in
the testator or his representatives the right to favour of the others. Sect. 14 of the Mercan.
sue on it primâ facie became barred on the 2nd tile Law Amendment Act 1856 (19 & 20 Vict. c.97)
Aug. 1878 , and it is on the claimants to show enacts that : “ In reference to the provisions of
that something occurred to take it out of the the Acts 21 Jac. 1, c. 16 , sect. 3,the 3 & 4 Will.
Statute of Limitations (21 Jac. 1, c. 16 ). It was 4 , c.42, sect. 3, and the 16 & 17 Vict. c. 113 , sect.
admitted that the testator himself did not make 20, where there shall be two or more co -contrac
any payment or any acknowledgment in writing tors or co -debtors, whether bound or liable jointly
in respect of his liability under the promissory only or jointly and severally, or executors or
note. It was not contended, at all events not administrators of any contractor, no such co
very strenuously, that the Real Property Limita contractor, or co -debtor, or executors, or
tion Act 1874 (37 & 38 Vict. c. 57) had any appli administrators shall lose the benefit of the said
cation . That question was decided in the nega - enactments or any of them so as to be chargeable
tive by Kay, J. in Re Frisby ; Allison v . Frisby in respect or by reason only of payment of any
(sup .), but was left doubtful by the Court of principal, interest, or other money by any other
Appeal. If it were necessary for me to express or others of such co -contractors, co -debtors,
an opinion upon it, I should follow Kay, J. It executors, or administrators." It was accord
was in the first instance contended that the ingly held in Cockrill V . Sparkes (sup.), that
affidavit of the defendant of the 13th March , when a principal and surety gire a joint and
1830 was a sufficient acknowledgment in writing several promissory note, a payment by the prin
to take the case out of the statute. Such an cipal debtor does not deprive the surety of the
acknowledgmentmust however beone from which benefit of this enactment. If, then, the company
a promise to pay can be implied ; butwhen exhibit had joined in the promissory notes, the payments
A to the affidavit is examined it seems impossible made by it would not have prevented the statute
to infer from such acknowledgment as is con from running in favour of the sureties. But it
tained in the affidavit a promise to pay the whole did not join ; it was liable neither jointly with the
cf the 60001. or such part of that sum as was due sureties, nor jointly and severally , but severally
on the promissory note of the 29th July 1871. In only. It would be strange if after the passing of
reply this argument was not insisted on. It was the Mercantile Law Amendment Act a payment
next urged that the payments made by the by the principal debtor under these circum .
company on account of the debt, the last of stanceswere held sufficient to prevent the statute
which was on the 1st June 1875, had the effect from running in favour of a surety . It was
of preventing the statutory bar. The law as to said , however, that it is a general rule of law
the effect of payment as it stood prior to the that a payment by a principal, at all events
passing of the Mercantile Law Amendment Act 1 where the principal is a mortgagor of realestate,
is stated in the 5th edit. of Lindley on Partner is sufficient to prevent a surety from obtaining
ship, at p . 261, in the following way : “ It was | the benefit of the statute. Of this role in its
held that if one of several joint debtors paid any more general form I can find no trace in such
money on account of the principal or interest cases as Perham v. Raynall (2 Bing. 306) and
due from them all, such payment was sufficient Wyatt v . Hodson (8 Bing. 309), where the decision
to take the debt out of the statute not only as arrived at in Whitcomb v. Whiting (sup.) was
against the person making the payment,but as applied to the case of one of the co-contractors
against all the others jointly liable with him being a surety. In support of the proposition
(in support of that Whitcomb y . Whiting, 2 Doug. in its narrower form , one authority and one only,
652 ; 1 Smith 's Leading Cases is cited ). But was cited . This was the concluding portion
even before the Mercantile Law Amendment Act of the judgment of Fry, L .J., in Re Frisby;
payment by a surviving partner did not prejudice | Allison v. Frisby (sup.), where he says : “ If we
the estate of a deceased partner (for this Atkins mean to confine payment ' to a payment by
v . Tredgold , 2 B . & C . 23 , is cited ) any more than the person against whom or whose repre
a payment by the executors of the deceased pre sentatives the action is brought, I think we
judiced the partners who survived (for this should be doing great injustice. It is usual
Slater v . Lawson , 1 B . & A . 396 , is cited ) ; for for the mortgagor - not the surety - to pay the
the executors of a deceased partner are not interest, and it would be contrary to good sense
jointly liable with the surviving partner,” It and the common understanding of mankind
thus appears to be the opinion of the learned that while he is doing so the statute should
author that the doctrine of Whitcomb v. Whiting run in favour of the surety unless he makes
only applies to cases in which a joint liability a payment or gives an acknowledgment."
exists. That is in accordance with what is laid In my opinion, however, Fry, L .J. did not in that
down by Holroyd, J. in Atkins v. Tredgold passage lay down any general principle, but
(sup.). There he said (at p . 30) : “ Here at the simply gave reasons why it might well be that
time when the payment was made by Robert | under sect. 8 of the Real Property Limitation
June 7, 1890.] THE LAW TIMES . (VoL LXII., N . 8 . - 545
Chan, Div.] Re WOLMERSHAUSEN ; WOLMERSHAUSEN v.WOLMERSHAUSEN. [CHAN. Div .
Act 1874 payment was not to be confined to a | Revill (sup.) as to the effect of the release of one
payment by the person against whom or whose of several persons jointly or jointly and severally
representatives the action was brought. It was liable. But this further took place : the creditors,
further suggested that, as the testator continued Messrs. Barclay, Bevan, and Co., were desirous
to be a director of the company down to the time of realising their security to the best advantage,
when the winding-up commenced , he must be the trustee in Ford 's bankruptcy was desirous of
deemed to have authorised the company to make having a dividend,and Messrs. Barclay, Bevan,and
the payment on his behalf as well as its own ; but, Co. agreed to withdraw their proof against Ford's
in my opinion, this is not a necessary inference | estate. What was compromised was a dispute as
from the fact relied on , and there is no evidence to the right of proof against that estate ; and
before me as to the circumstances under which everything points to this, that the agreement
the payments were in fact made by the com was not intended to affect the whole claim
pany. I am of opinion , therefore, that the claim on the note, but merely the claim against
on the promissory note of the 29th July 1871 is Ford 's estate, the rights against third parties
barred by the Statute of Limitations. The claim being intended to remain unaffected . The
on the note of the 21st Jan . 1874 was resisted on nature and circumstances of the transaction
entirely different grounds. Itwas first said that appear to me to show that the benefit which
the dealings with the trustee in Ford's bank the bankers received under the agreement with
ruptcy amounted to a complete release of his the trustee was not given by the trustee, or
estate and operated to discharge his co-sureties. taken by the bankers, in discharge of their whole
Now it is undoubtedly true that, where several claim on the note, or with the intention of
persons are liable jointly or jointly and severally, destroying their rights against the other parties
a release of one is a release of all. This principle to it. Consequently,upon the principles laid down
is entirely independent of any doctrine peculiar in Watters v. Smith and Ex parte Good , the agree
to the law of principal and surety . It is stated ment did not operate to release the co - sureties.
in the case of Nicholson v. Revill (sup.), where In my opinion , therefore, thedecision in Nicholson
Lord Denman , in giving judgment, said (at pp. v. Revill does not govern the present case. This,
682, 683 ) : “ We do not proceed . . on any however, does not conclude the matter. It
doctrineas to the relation of principal and surety .still remains to be considered how the transaction
We give our judgment merely on the principle is affected by the law of principal and surety .
laid down by Eyre, C .J. in Cheetham v. Ward The question there is as to the effect of an agree
(1 B . & P . 630 ), as sanctioned by unquestionable ment entered into, not between the creditor and
authority , that the discharge of one joint the principal debtor, but between the creditor
and several debtor is a discharge of all." In and one of several sureties. The cases appear to
each case, however, it has to be determined show that the creditor (1 ) must not act in a
whether what has occurred amounts to a release, manner inconsistent with the contract or arrange
and where, as here, no formal release is given , ments under which the obligation of suretyship
but what is relied on is an agreement not under was incurred ; and (2) must not act so that the
seal, then , in determining the effect of that agree right of contribution between the co -sureties is
ment, the surrounding circumstances and the destroyed or prejudiced . The case of Ward v.
intention of the parties must be regarded. This National Bank of New Zealand (sup.) is an
is illustrated by the cases of Watters v. Smith | authority for this proposition . As an illustra
(2 B . & Ad. 889) and Ex parte Good (36 L . T . Rep. tion of the first of these obligations, I may refer
N . S . 338 ; 5 Ch. Div. 46). In the last-mentioned to the case of Bonser v. Cox (4 Beav . 397) ; and
case one Smythies, who was secretly a partner in Mayhew v . Crickett (2 Swans. 185 ) furnishes an
the firm of Armitage and Co., gave a guarantee | illustration
illustration of the second.
of the second. InIn the
the last.
last-mentioned
for a debt of that firm . Afterwards Armitage, ! case Lord Eldon said : “ Where one surety has
the sole ostensible member of the firm , went into | been discharged, the co-surety is entitled to say
liquidation , and the creditor tendered a proof to the creditors asserting a claim against him ,
against his estate. The creditor next sued | You have discharged the surety from whom I
Smythies on the guarantee, but compromised the ought to have compelled contribution , either in
action on payment of a sum equivalent to 108. | my own name in equity , or in using your name
in the pound on the claim , and gave up the at law .” In Eæ parte Giffard (sup.), Marshall and
guarantee with a receipt indorsed “ in payment Haigh, creditors of Bedford upon a promissory
and discharge of the within guarantee and of all note, requiring further security, four persons
claimsagainst him ( John Smythies) in reference (Bedford , Niblock , Burgess, and Baylis) joined
to or connection with John Armitage and Co.” | in a promissory note as a collateral security .
It was held by the Court of Appeal that that did Three of them (Bedford, Niblock , and Burgess)
not release the estate of Armitage. In the pre- becamebankrupt, and Marshalland Haigh proved
sent case what is relied on is an agreement for thewhole debt in each bankruptcy . If the pro
entered into , not with Ford himself, but with the missory note was, as I assume it to have been ,
trustee of his estate. Now ,by the bankruptcy of joint and several, then upon those bankruptcies
Ford , followed by his order of discharge, the lia the joint liability came to an end, and the
bility of Ford on the note was determined , and liability of Baylis became several only. The
the liability of his estate was substituted . That creditors then brought an action against Baylis,
liability was in the nature of a several liability , who is stated in the report to have entered into
and there was no longer any joint liability with a composition with his creditors, under which
the other makers of the note. (His Lordship Marshall and Haigh received a dividend of 48.
referred to the remarks of Jessel, M .R . in the in the pound. The receipt was expressed to be
argument in Ex parte Good (sup.), at p. 58.] “ for 1911., and the two notes, which when duly
That circumstance alone would prevent the paid will be in full of the said debt, and all other
application of the rule followed in Nicholson v. i demands from him .” A petition was then pre
546 - Vol. LXII., N . 8.] THE LAW TIMES. ( June 7, 1890.
Chan . Div.] Re WOLMERSHAUSEN ; WOLMERSHAUSEN v. WOLMERSHAUSEN. . ĪChan. Div.
sented asking that the proof against the estate should havemade out of the pledge, and he must
of Niblock and Burgess might be expunged , and allow and account for that,whether hemade them
at the bar it was contended that, even if relief to | or not, and if by laches he has diminished the
this extent could not be given,at least the estates value of the pledge, he is bound to allow for the
of Niblock and Burgess should be held answerable sum which he ought to have made. But his
only for so much as they were bound to pay. Lord | laches do not discharge the surety, for it does
Eldon dismissed the petition without prejudice | not come within the principle which applies
to another being presented. Although exception where the surety's rights have been changed or
was taken in the cases of Nicholson v . Revill varied . . . . So in the case where there is &
(sup.) and Webb v. Hewitt (sup.) to some part of failure to make themost he could of the pledge,
the language used by Lord Eldon , the decision that does not in the slightest degree discharge
itself does not appear to have been overruled. the surety , though the amount which ought to
The report both of the facts and the judgment have been recovered by making a proper use of
is somewhat obscure ; but Lord Eldon seems to it is to be allowed in reduction of the debt." It
have arrived at the conclusion (for which the appears to me that the right of proof against
peculiar form of the receipt may have afforded Ford's estatewas a security in the handsofMessrs.
good ground) that, as was held in Watters V . Barclay, Bevan, and Co.within this rule, that the
Smith and Eæ parte Good , the transaction did not extent of the loss caused to the co -sureties by the
amount to a release ; and this view is sup transaction entered into with the trustee is the
ported by the remarks of Parke, B . in Kearsley v. amount of the dividends not received by Messrs.
Cole (16 M . & W ., at p. 136 ). Lord Eldon Barclay, Bevan , and Co., and that the co -suretics
also appears to have held that no relief could are only discharged to this extent by reason of
be given so long as the estates of Niblock the dealings which took place between Messrs.
and Burgess paid no more than the moiety Barclay, Bevan , and Co. and the trustee of Ford's
of the debt for which Niblock and Burgess estate. It was next contended that Messrs.
were liable ; that is to say (as I understand it), Barclay, Beyan , and Co. could only recover on
that the co -surety was not discharged to any the terms of bringing into account sums received
extent, so long as his right of contribution was from the Weardale Company for loose plant and
not taken away or injuriously affected . In the otherwise ,withoutsetting off what they paid to the
present case, as I have said , the nature of the lessors in respect of their liability under the cove
liability of Ford has been altered , yet that is the nants contained in the leases of which they were
result of the law , not of any act of the creditor. assignees ; and it was said that the sureties
The liability of Ford's estate was in the nature of ought not to be prejudiced by the form in which
a several liability. I have already said that the the mortgage was taken. The memorandum of
arrangementbetween the creditors and the trustee the 29th July 1871 expressly provides for the
of Ford 's estate was not intended to release or execution by the Hartlepool Collieries Company
discharge the other parties to the promissory of a legal mortgage in such form as Messrs.
note ; and the case of Wyke v. Rogers (19 L . T. Barclay , Bevan , and Co. might direct, and the
Rep . 0 . S. 1 ; 1 De G . M . & G . 408 ) shows that | sureties must be taken to have been aware of
the law of principal and surety does not require that stipulation . The form of mortgage chosen
that the reservation of rights against a surety | by Messrs. Barclay, Bevan , and Co . is unusual,
should be the subject of express agreement | but is within the terms of the memorandum , and
either written or verbal. I must, however , inquire I think that the sureties cannot be heard to
whether any right to contribution on the part object to it. Even if this be not so , there is
of the co -sureties has been taken away or injuri. another answer to the claim in respect of the
onsly affected by the transaction between Messrs. money received or allowed in account for the
Barclay, Bevan , and Co. and the trustee. It loose plant, viz ., that according to the terms of
was not contended that the right of the co the leases the lessees were only entitled to remove
sureties to prove against Ford 's estate has been that plant if they had first paid and satisfied the
entirely taken away ; it was not disputed that rents reserved by the leases, and performed and
upon payment by them of what remains due on observed all the covenants and agreements
the note they may still go in and prove against therein contained. To secure theright to reserve
Ford's estate. The effect of the compromise, the plant the mortgagees (even if they had taken
however, has been to prevent Messrs. Barclay, a mortgage by demise) must have expended sums
Bevan , and Co. from receiving the dividend largely in excess of the value of the plant, and I
which has been paid by that estate, and which think that this contention fails. Lastly, it was
would have gone in reduction of the claim against contended that the sureties were relieved pro
the co -sureties. To that extent the rights of the tanto by reason of the way in which Messrs.
co-sureties are prejudiced . It does not appear Barclay, Bevan , and Co. dealt with their security.
to me, however, that I ought to hold that the These dealings took place during two periods,
co-sureties are thereby wholly discharged . If by the first from the commencement of the winding.
the act of the creditor a security to the benefit up of the company down to the bankruptcy of
of which a surety is entitled is wholly or partially Ford , the second subsequent to the last-men
lost, the creditor is only discharged to the extent tioned event. During the greater part of the
of the loss . This is illustrated by Wulff v. Jay former period, viz ., from July 1881 to July 1884,
(L . Rep . 7 Q . B . 756). In Polak v. Everett (34 Ford was in possession ; and it appears that the
Ì . T. Rep . N . S .128 ; 1'Q . B . Div .at p.675) the rule bankers from time to time pressed him to reduce
is thus laid down by Blackburn , J. : “ Where a l the amount due on the security, and that he did
person is a creditor with a pledge or surety, he is so to a substantial extent. During this period ,
in equity bound to account not only for the namely in 1883, Ford , under pressure from the
money he has actually made out of the pledge, liquidator, paid to him sums which have been
but also for the moneys he might, ought, and applied in payment of a dividend of 28. in the
June 7, 1890.) THE LAW TIMES. [Vol. LXII., N . 8.- 547 .
Q.B. Div.] GUARDIANS OP HEADINGTON UNION v.GUARDIANS OF IPSWICH UNION . [Q .B . Div .
pound to the unsecured creditors. It should also its last legal settlement. On appeal against this
be mentioned that attempts were made in 1879 order it was admitted by the respondents that the
and in 1884 to sell the collieries by auction , both child 's mother was still living, but no evidence
of which proved unsuccessful. And apparently was given to show that she had any settlement,
the collieries were worked at a loss by the liqui nor was there any evidence of failure by the
dator and by Ford . Now , it was open to Messrs. respondents to make inquiries.
Barclay, Bevan ,and Co., assecured creditors ofthe Held , that, as there was no evidence of a failure by
company, to take one of three courses, viz. : (1) to the respondents to make inquiries , the onus of
realise the security themselves, and prove for the proving that themother had a settlementelsewhere
balance remaining due after deducting the net lay upon the appellants, and that in the absence
ti₂ti₂m₂ū₂₂/₂₂\₂₂\\₂\/₂\/₂₂₂₂₂₂₂₂ņēģti₂ /₂₂ņēģti? of such proof the child must be deemed to be
and prove for the whole debt ; and (3) to value settled in the place of its birth , that being its
their security and prove for the difference primâ facie settlement until another was proved .
between the amount of the debt and such value ; This was a case stated by the Recorder of Ipswich
and, further , they were entitled to exercise such on the hearing, at a Court of Quarter Sessions
option in themanner most advantageous to them . of the borough of Ipswich , of an appeal by the
selves . For this Rainbow v. Juggins (eup.) is an Guardians of the Headington Union against an
authority. Moreover, the case of Carter v . White order made by two justices, on the 17th Jan . 1889,
(sup.) shows that the burden of proving that any | for the removal of Alice Mary Beckley from the
loss bas accrued from the course taken lies on parish of St. Margaret, in the borough of
the sureties. That burden the representative of Ipswich, and in the Ipswich Union , to the
the testator has, in my opinion , failed to dis | Headington Union in the county of Oxford .
charge. During the first of the two periods it is The Court of Quarter Sessions affirmed the
not made out, in my opinion , that the adoption of order of removal and dismissed the appeal subject
any other course than that actually taken would to the opinion of the Queen 's Bench Division on
have been more beneficial to the sureties, or that the following
Messrs. Barclay, Bevan , and Co. were guilty of CASE .
laches or failed to make the most of their 1. Alice Mary Beckley, the pauper, is the
security ; and as to the dealings after the bank illegitimate daughter ofAlice Beckley, who is still
ruptcy of Ford, the evidence seems to me to living.
show that what was done was really the best that 2. The pauper was born on the 14th Aug. 1880,
could be done under the circumstances. Stress at Headington workhouse, in the parish of
was laid in argumenton the large valueattributed Headington .
by Mr. Marley (under whose advice the bankers 3. The said Alice Beckley was, at the time of
acted ) to the loose plant in his first valuation . the birth of her said child,a pauper inmate of the
The estimate was not realised . Mr. Marley has, Headington workhouse, having been admitted
however,made an affidavit in which he states there from the parish of Cowley, one of the
that, in his judgment, the mortgagees could not parishes in the said Headington Union .
expect to get better terms than they actually got, 4. The order of removal adjudged that the
and that, if they had refused those terms, they place of the last legal settlement of the pauper
would have incurred a much heavier loss, and no was in the parish of Headington , in the county of
attempt has been made either to shake this evi Oxford , and Headington Union

The Law Times Reports

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

The Law Times Reports

Загружено:

Авторское право:

Доступные форматы

This is a reproduction of a library book that was digitized

by Google as part of an ongoing effort to preserve the

LAW TIMES REPORTS

THE HOUSE OF LORDS, THE PRIVY COUNCIL ,

THE QUEEN' S BENCH DIVISION IN BANKRUPTCY,

THE COURT FOR THE CONSIDERATION OF CROWN CASES RESERVED

AND THE RAILWAY AND CANAL COMMISSION COURT:

HOUSE OF LORDS, by C. E.MALDEN,Esq., Barrister-at-Law . CHANCERY DIVISION (continued )

THE NAMES OF THE CASES

I.- INDEX TO PLAINTIFFS.

Caldwell v. Matthews ..... 799 Davis (app.) 2. Stephenson (resp.), 24 Q . B .

Elder v. Carter (Ct. of App.), 25 Q . B . Div.

K. McAlpin v. Macdonald ......... 541

Phillips v. Cayley (Ct. of App.), 43 Ch . Div.

Smith , Watts v. .. ............. 453 W .

Soper, Taylor v...... 828 Warter, Warter v . .. 328

Argles v. Heasman ( 1 Atk . 518 ) ............

Ch. Div. 536 ) ...

L . Rep. 1 Q . B. Div. 201) ........ 571

THE SUBJECTS OF THE CASES

ABSOLUTE ASSIGNMENT. facts, that the statement in the prospectus was

LAW TIMES REPORTS :

All the Cases Argued and Decided

HOUSE OF LORDS, THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL ,

Вам также может понравиться