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ROYAL EXCHANGE ASSURANCE. ~

INOOBPORA TED A.D. 1120. FOB. BEA, FIRE, LIFE AND ANNUITIEB. CHIEF OFFICE: ROYAL EXCHANGE, LONDON. Forms, £4,000,000. CLAIMS PAID, £38,000,000.

FIRE. INSURANCES ARE GRANTED AGAINST LOSS OR DAMAGE BY FIRE on PROPERTY of almost every description, at Moderate Rates. LIFE. DEATH DUTY POLIC1ES—Payment Direct to Revenue Authorities before grant

oi Probate. A l i Full Prospectus to PM or E. R. HANDCOCK, Secretary.

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THE LAW GUARANTEE AND TRUST SOCIETY,
LIMITED.
SUBSCRIBED CAPITAL - £1,000,000. PAID-UP - £100,000.
FIDELITY GUARANTEES or ALL xmns. ADMINISTRATION AND Lunacy

Bonus. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY INSURANCE. TRUSTEESHIPS 1-on DEBENTURE-HOLDERS, &c.

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VOL. XLII., N0. 7. The Solicitors’ Journal and Reporter.

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LEGAL Yuan 1896-1897 ......... 100 Blvisws ...................... .. 110 Cossiisrosnliiol ............................ .. 112

A

Law S001:-rins Law Brunsin-s’ Joniisai.
LEGAL Nxws ......... ..
Comvr PAPERS ........ ..
Wiimino UP Norioiis ..
C1-1ln1'roas' No-1-10iis..... 120
Bnxsnrror Noriols .................... .. 121

. 1. 118 118 119 120 120

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Cases Reported this Week.

In the Solicitors’ Journal.

Bartlett v. Mayfair Property Co. (Lim.) 116
B0é)Jd v. African Consolidated Innd 1“
Cliflord v. Thames Ironworks C0
Gilbert, Re. EX parte Gilbert . p 118
Izod, Re. Ex pnrte Official Receiver._.. 117
Knowles 8: Son (Appellants) v. Sinclair
(Respondent) . . . . . . . . . . . . . . . . . . . . . . . . .. 116
Leeds and Hanley Theatre of V eties
(Lim.) v. Broadbent ............ .. . 115
London County Council v. Davis; The
Same v. Rowton Houses 115
Maskelyne British Typewriter ( ' ).
Stuart v. Same Company 112
Moult v. Hslliday .......... .. 117

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§‘€.‘€;..‘l;.¥§?‘ c¢;r.';. s'&;&'diAiI ........ .. ii? i CURRENT TOPICS.

IT APPEARS from Mr. Fnasnifs letter on the Land Transfer Act, which will be found in another column, that the London County Council are now being threatened that if they do not allow the Act to be tried in their district in manner desired by the authorities, legislation will be brought forward for the purpose of making the Act compulsory all over England. Notwithstanding our confidence in Mr. F1iAsnR’s means of knowledge, we really trust that there is some misapprehension as to this matter. We are reluctant to believe that such s. glarin breach oi faith can be seriously contemplated even by the Land Registry Oifice. If it were attempted, it would have, at all events, the efiect of uniting all solicitors in energetic resistance to the audacious project.

Ir camvor be said that the experiment made in Allen v. Flood, of reviving the old practice of summoning the judges to the House of Lords, has been attended with conspicuous success. Ostensibly the House was in doubt as‘ to the law of England on a point admitted to be of great importance, and the advice of the judges was required. The judges attended and gave their advice, not indeed with unanimity, but by such a majority as to entitle the result to great consideration. Such consideration it is obvious from the judgments of the Law Lords it has had, but all the highest authorities reject with one voice what the judges have declared to be the law. Oi course there is nothing to be surprised at in this. It was known that after the first hearing the House was divided, and no one supposed that members who had made up their minds would be greatly influenced by further discussion. Lord HERSCHELL, for instance, only found it necessary to add to the judgment he had already prepared some criticisms of the judges’ opinions. But the outcome of the whole matter should be an efiectual check upon any further experiment in the same direction. Judicial opinion in the Supreme Court is sufficiently indicated by the decisions of the Court of Appeal. These decisions, as the course of business in the House of Lords shews, are frequently wrong, but there is nothing to be gained by having them criticized by judges of first instance. The present constitution of the House of Lords as a. court of final appeal makes it fully capable of deciding upon the law, and the presence of the judges, however interesting, is quite futile.

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A DECISION has at length been given on the “waiver clause ” in 3 prospectus. It has been held by Criamnanii, J ., in Bami-uaan v. Clarke that the clause is elfectual so far as it intimates to the applicant for shares th_e nature of the contracts with the mention of which he is dispensmg. Under section 38 of the Companies Act, 1867, it is required that every prospectus shall specify the dates and names of the parties to any contract entered into by the company, or the promoters, directors, or trustees of the company, before the issue of the prospectus; and a prospectus not complying with this requirement is to be deemed fraudulent on the part of the promoters and directors knowingly issuing the same as regards any person taking shares on the faith of the prospectus who has not had notice of the omitted contracts. According to the interpretation put upon this comprehensive provision, it is not limited to contracts entered into on behalf of or binding on the company, but “ includes every contract made before the issue of the prospectus the knowledge of which might have an effect upon a reasonable subscriber for shares in determining him to give or withhold faith in the promoter, director, or trustee issuing the prospectus ” (Govefs case, 1 Ch. D. p. 200 ; T3/cross v. Grant, 2 C. P. D. p. 546). Upon the section as thus construed Lord DAvr.Y’s committee made the following comments in their report of 1895 : “ Section 38 is at once too wide and too narrow. Itis so wide as to include contracts made in the ordinary course of business of a going concern. It is so narrow in its scope that it does not even require the contracts in question to be open for inspection by intending investors, and it does not apply to an issue of debentures or debenture stock.” Exception was also taken to the doctrine of constructive fraud incorporated in the section, and the committee advised that the section should be repealed.

A PROVISION the requirements of which were so impracticable of fulfilment, and, in general, so useless when fulfilled, has naturally led to attempts to get rid of it, and the use of the waiver clause has become practically universal. It has never been quite clear, however, that it constitutes, on the part of subscribers assenting to it, an effectual release of their rights under the section. There is the danger of the section being held to confer a right inseparable from membership in a company similar to the right, just recognized as superior to the private constitution of the company, for any member to present a winding-up petition (Re Peveril Gold Jlfinas (Lz'm-lted), ante, p. 06), or the liabili=_\ ' - |-ny up on every share the full nominal value. On the other hand, there is no reason why each member should not contract separately with the company, or the promoters and directors, in respect to rights not inalienably conferred upon him, and if the rights conferred by section 38 are of the latter kind, the waiver clause is good. This view has been taken by GHANNELL, J., though with a reservation dependent upon the general doctrine of the release of rights by waiver. The person affected must know what he is waiving. In Bansusan v. Clarke it was held that this condition had not been complied with. The clause in the prospectus asked for waiver only in respect of contracts relative to the issue of the capital, by which an intending purchaser would of course understand underwriting contracts. The clause in the application forms was in wider terms, and by it the applicant agreed to waive generally any claim he might have for non-compliance with section 38. It was proved on the part of the plaintiff that a contract for sale of property by a promoter to a trustee for the company had not been disclosed, and OHANNELL, J., held that against this omission the waiver clause was no protection. The applicant may waive compliance with section 38 so far as regards any contracts or class of contracts the existence of which is sufliciently indicated to him to enable him to exercise a j udgment in the matter, but not one of which he knows nothing. In settling waiver clauses it will be essential for this limitation to be borne in mind.

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mortgage should be conferred by the articles, either in their

original form or as subsequently altered (Jackson v. Rainford Goal

Co., 44 W. R. 554; 1896, 2 Ch. 340); but, if the power is clear,

there is no doubt as to the efiicacy of the mortgage (Ra Plmertzx

Bessemer Steal Co., 32 L. T. 854; Mwton v. Anglo-Australian

Investment Co., 43 W. R. 40; 1895, A. C. 244), and the mort

gage is equally effectual both before and after a winding up (Ra

Pyle Works, 38 W. R. 674, 44 Ch. D. 534). In these cases,

however, there was no question as to the special restriction upon

calling up capital that may be imposed by section 5 of the

Companies Act, 1879. This section provides that a company

“may by a special resolution declare that any portion of its

capital which has not been already called up shall not be capable
of being called up, except in the event of, and for the purpose

of, the company being wound up.” It can by no means be

taken to be clear that this provision ousts the rights of mort

gagees of uncalled capital when once a winding up has occurred.

Prior to the winding up they have, of course, no control over the

reserved capital; but when a winding up has commenced and the
capital has been called up, the purposes of the winding up

require the payment of all creditors in their due order, and
primd _/acia any security which certain creditors have obtained is

in no way prejudiced. Thus, upon the capital being called up

by the liquidator, the rights of the mortgagees--the debenture-
holders—would attach upon it, and it would be available only
for the general creditors after the claims of the debenture-
holders had been satisfied. There is no statutory provision that
for the purposes of winding up all creditors shall rank against
the assets part paasu without regard to their securities. This
view, however, has not been adopted by WRIGHT, J., in the (=8-86
of Bartlett v. Mag/fair Property Co., decided by him a week ago,
and he has held that where a special resolution is passed
pursuant to section 5, the capital reserved by it is placed out-
side of the company’s power to mortgage uncalled capital. It
is to be noticed that in Re Pyle Works the present Mlaster of the
Rolls referred to section 5 as confinuing the view that capital
called up in a winding up was properly part of the capital of_the
company and was therefore subject to a mortgage of capital,
but he reserved the question whether there was anything 1_n the
Act to prevent capital with respect to which a restrictive
resolution had been passed from beinig mortgaged. With 811
deference to the opinion of Mr. Justice WRXGHT, we should have
thought that, in view of the autho rities on the validity of
mortgages of uncalled capital, it woul d have required stronger
words to oust the right of the mortgage ies than a mere direction
that the capital was only to be 11B( id for the purpose of a
winding up.

Ix A casn of Rey. v. Want, which was bried at the last Durham Assizes, the prisoner had been committi il for trial for rape. No bill, however, for rape was presented to the grand jury, but instead of such a bill, one was present sl and found for having unlawful connection with a girl below sixteen and above thirteen years of age, under section 5 (1 I) of the Criminal Law Amendment Act, 1885. Upon this indi fitment the prisoner was tried and found guilty. It was then submitted, in arrest Of judgment, that the prisoner was entitle ll to be discharged, on the ground that the prosecution had been commenced more than three months after the date of the alleged offence, contrary to the provisions of the Act. It ap} soared that he had been arrested and committed for rape soon after the offence, but that more than three months had elapse id between the ofience and the assizes. It was urged that the 1 iirosecution for the ofience for which the prisoner was tried only r began when the bill was presented to the grand jury, as he had not been charged with that offence before the magistrates , and that therefore _the prisoner was entitled to ‘the benefit rof the statutory limitation. Whether this contention was sound c I1‘ not was considered last week by the Court of Crown Cases B Leserved, and the question was decided against the pri soner. By section 9 of the Act a prisoner indicted for rape may‘ be con victed of an offence agamst section 5. If, therefore, this man li ad been indicted simply for rape, he might undoubtedly] rave be en convicted of the offence of which lio was in fact cont ricted. It would be very strange if he were entitled to be disch: u-ged al together because it was not

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only reasonable view seems to be that taken by the court-— namely, that the prosecution for rape was a prosecution for any crime for which a person charged with rape could properly be convicted, and that at the time of the commitment the lesser charge was included in the greater. There is an old case of exactly a century ago, Rex v. Wallis (1 East P. C. 186), in which the same point was taken. In this case a man had been committed for trial for high treason by unlawfully counterfeiting the coin of the realm. He was, however, indicted and convicted for a lesser ofience against the coinage included in the greater, in respect of which it was provided by statute that no prosecution should be brought except within three months. It reported that “the judges at a conference unanimously held that the information and proceeding before the magistrate was the commencement of the prosecution . . . and that the variance between the manner of laying the ofience in the indictment and charging it in the commitment made no difference.”

THE Comvr of Appeal have difiered from the Divisional Court (Wi1.I.s and GRANTIIAM, JJ.) as to the important question raised by Atlor-ney- General v. Mw York Breweries Co. The company is an English company, having its registered office in London, though it carries on business in the United States. HENRY GLAUSEN, of New York, died in 1893 entitled to a large number of preference and ordinary shares and of debentures in the company. By his will, which was duly proved in New York, he appointed two Americans as executors. The company recognized their title without requiring probate of the will in this country, and gave efiect to it by transferring into the executors’ names certain of the shares and debentures, and paying them the arrears of dividends and interest due at CLausniv’s death. In consequence of this proceeding the Crown claimed that the company had intermeddled with the assets of the testator so as to constitute themselves executors do son tort, and to render themselves liable to pay probate duty on the value of his interest in the company estimated at upwards of £10,000, but the Divisional Court rejected the claim. The executors, it was held, were entitled to receive the assets without proof of the will, and the company were consequently protected by the authority of the executors. This result appears at first sight to follow from Sykes v. Sykes (L. R. 5 C. P. 113), where it was decided that the agent of an executor named in the will is not liable to be treated as an executor dc son tort, although the will has not been proved, and a person recognizing the title of an executor and_ handing over property to him ought to be in as good a position as an agent. But in Sykes v. Sylcrs the will, although it had not been proved at the time when the acts were done which were alleged to constitute the agent an executor do son tort, was proved by the time the action was commenced, and hence the appointment of the executors could be proved by production of the probate. In the present case the executors had not proved, and had no intention of proving, the will in this country, and on this circumstance the case has been distinguished in the Court of Appeal from Sykes v. Sykes. The New York Breweries Co. are, in fact, unable to shew by production of an English probate in the ordinary way that they were acting under the authority of executors named in the will, and consequently they cannot get rid of the primd facie liability as executors do son lrrrl imposed by their intermeddling with the 8-ssets. As a rule companies are not so complacent as to allow of any dealing with the shares of a deceased person without production of a duly proved will, and for the future any such proceeding will be checked by the knowledge that the company themselves will have to pay the duty which the executors are trying to evade.

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visions for the distribution of the several shares in the capital in the event of the death of either father or son during the term of the partnership, and in the event of the term rimning its natural course. In the last case the son’s share in the capital was at the expiration of the term to be advanced to one-half. In the case of the father’s death during the term, the son was to have the whole of the father’s share upon payment of £10,000 to his estate. In the case of the death of the son, the father was to have his share of the capital and was to pay £15,000. The father diedin 1884, the assets of the firm being then valued at £67,810, of which the father’s share was £45,894 and the whole of this share consequently passed to the son, subject to the payment of £10,000. On the face of the matter, therefore, it would seem that there was a clear beneficial surplus in favour of the son of £35,894, and upon this amount the Crown claimed succession duty accordingly. The above statement sets forth the leading features of the partnership arrangement, but there were further details, such as the son’s obligation, in the event which happened, to indemnify his father’s estate against the debts of the firm, and upon the whole the Divisional Court (Vxuoimn WILLIAMS and KENNEDY, JJ.) held that the arrangement was to be treated as a commercial transaction, and that the son took the father’s share in the capital by purchase and not by gift, so that he was exempt from the payment of duty. But the judgment of the Court of Appeal seems to take a more correct view of the meaning of the arrangement. Although the father did not give his share to the son out and out, yet the obvious intention was that the son should be a very large gainer, and this was borne out by the very different arrangement for the event of the son’s death. The father in that event got only one-third of the capital, and yet was to pay £15,000, while for two-thirds the son was to pay £10,000. Such an arrangement, as the Court of Appeal pointed out, was not made upon a commercial basis, and the benefit which the son in the event took was a gift in respect of which duty was payable.

THE REGENT case of Ra Smytk, Leach v. Leach (ants, p. 81), before ROMER, J., is very similar to Attorm1y- General v. Surlelay (44 W. R. 340, 45 W. R. 305), and, as in the latter case, it has been held that the proceeds of property situate abroad which have to be administered in this country are subject to probate duty. In Az5to-rney- General v. Sudeley an English testatrix was entitled under the will of her husband, a domiciled Englishman whose will was proved in England by English executors, to one-fourth share of his residuary estate. The estate included, among other property, money invested in mortgages of real estate in New Zealand. At the date of the testatrix’s death the mortgages had not been realized. It was held by the Court of Appeal, and the decision was affirmed by the House of Lords, that the testatrix’s share in the residuary estate was an English chose in action, and that probate duty was payable in England by her executors in respect of her interest in the New Zealand mortgages. The testatrix, it was pointed out, was not entitled to share in the mortgages directly. Her claim was to have the estate administered in England by her husband’s executors, and it was only by a proceeding against the executors here that her claim could be enforced. Consequently it was in the nature of an English asset. In Re Smyth the property in question was a plantation in J ainaica, which, by the will of an English testator who died in 1839, was devised upon trust for certain persons for life, and upon their death for sale and division of the proceeds among named legatees. One of the legatees died while the life estates were subsisting, and the question arose whether probate duty was payable here in respect of his interest under the will. Having regard to the decision in Attomey- General v. Surlaley (supra), it could hardly be doubtful that it was payable, and so Roman, J ., held. The property out of which the legatee’s interest was to come was, indeed, foreign, but that interest gave no claim on the property itself. It was, as in the case cited, an interest to be enforced against English executors in the course of an English administration, and liable, therefore, to duty in this country.

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Wmr IS meant by a provision requiring “punctual payment” ? According, to the recent decision of KEKEWICH, J., in

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Leeds Theatre of T’ar1'efz'es (Lz'rm'lo¢l) v. Broadbont, the provision does not necessarily require payment on the due date, but is satisfied by payment within a reasonable time after. Upon this View the question whether payment can be postponed at all, and if so, what is a reasonable time for postponement will depend upon the nature of the particular transaction. In the case before KEKEWICH, J., a mortgage deed whereby £7,000 was secured provided that payment of the £7,000 should not be required for three years if in the meantime every half-yearly payment of interest should be punctually paid. The first halfyear’s interest was due on the 15th of August last, and, it not being paid, on the next day application for immediate payment was made to the mortgagors on behalf of the mortgagees. No satisfactory reply being sent, the mortgagees gave notice calling in the money at the end of three months. Under pressure the cheque was sent by the 24th of August, but the mortgagees insisted on their right to call in the mortgage for default in punctual payment. Under these circumstances KauaWICH, J ., held that the delay had not been unreasonable, and that the notice to call in the money was bad. But this leaves the matter very much at large, and it would have been more satisfactory had the mortgagors been held bound to payment on the due date. The practice of allowing indulgence in the matter of payment of interest on a mortgage may be common, but it is by no means universal. It is perfectly competent to the parties to make their rights depend upon payment at the date named, and the word “punctual” is not inapt to describe such payment. In Hicks v. Gardnor (1 Jur. 541), the only case in which the word seems to have come in question, this meaning was adopted, and it would have tended to certainty had that authority been followed. In future no one can know what the word means without going to the court.

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Tau House of Lords have given their long-deferred decision in the_ important trade-imion case of Allen v. Flood, and by a majority of six (Lords WATSON, HERSCHELL, MACNAGHTEN, SHAND, DAVEY, and JAMES) to three (Lord Hansnnar, C., and Lords ASHBOIBNE and Moimis) have overruled the judgment of the Court of Appeal and the opinions of the great majority of the_ judges of t e High Court who were summoned to the assistance of the House on the re-hearing of the case. The result is to put an end to the notion that interference by one man, A., with another man, B., in the course of his trade or employment-—no unlawful act being committed or procured to be committed-—is actionable simply upon the ground that it is done with the intention either of injuring B. or of benefiting A. at the expense of B.

The facts which have at length brought the question to settlement can be very shortly stated. In April, 1894, two shipwrights, Fnoon and TAYLOR, were employed by the Glengall Iron Co. in repairing a steamship at their dock at Millwall. Upon the same job other shipwi-ights were employed, and also a number of ironworkers, the latter class of workmen being considerably in excess of the former. The ironworkers were members of the Boilermakers’ Society, and it was a rule of their union that ironworkers ought to work in iron only and shipwrights in wood. Upon this job FLOOD and TAYLOR were working in_ accordance with the rule, but on a former occasion they had violated it by working in iron, and the ironworkers decided to have no association with them. They sent for ALLEN, a district delegate of the Boilermakers’ Society, and he, acting on their behalf, intimated to the manager of the Glengall Co. that all the ironworkers would stop work unless Fnoon and TAYLOR were dismissed. This course was rendered practicable without any obvious illegality by the fact that the men of both classes were engaged merely by the day._ Although, therefore, in the ordinary course the engagement would continue until the completion of the ]0l), yet on either side it might be terminated at th_e close of any day. The manager of the company was unwilling to get rid of Fnoon and TAYLOR, but he was still more unwilling to incur the loss consequent on a stoppage of work, and the obnoxious workmen were discharged. For the injury thus done them they brought an action against ALLEN.

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The peculiarity of the case was that the dismissal of the plaintiffs, as just pointed out, involved no breach of contract. ALLEN had not procured any breach of contract on the part of the company, nor in bringing pressure to bear upon the manager had he used, or threatened to use, any violence. The only way, therefore, of supporting the action was to base it upon malicethat is, upon the intention of injuring Fnoon and TAYLOR for the sake of procuring a benefit for the members of the Boilermakers’ Society—-and the questions which Kai\'NEnY, J ., left to the jury were designed to ascertain the existence of malice in this sense. The questions (so far as relevant to this issue) were: (1) Did ALLEN maliciously induce the company to discharge the plaintiffs? and (2) Did Arman maliciously induce the company not to engage them? To each question the jury returned an aflirmative answer, with a verdict of £20 damages for each plaintiff, and in these findings KENNEDY. J., upon the authority of Tampa-ion v. Ru-well (41 W. R. 565; 1893, 1 Q. B. 715), gave judgment, as he was bound to do, in favour of the plaintifis. This result was aflirmed by the Court of Appeal.

The question of the correctness of the decision has really depended upon the effect to be given to the judgments in Lumley v. G3/c (2 E. &B. 216) and Bowen v. Hall (29 W. R. 367, 6 Q. B. D. 333), and upon the authority to be ascribed to the decision and the dicta of Lord Hem‘ in the old case of Kimble v. 111%].-m'n_qa'll (11 East 57411). The two former cases decided that for A. to induce B. to break his contract with C. gives C. a right of action against A., provided injury results to C., and provided A.’s conduct was malicious. To quote a well-known passage from the judgment delivered in Bowen v. Hill by BRETT, L.J'., on behalf of Lord SELBORNE, C., and himself: “Merely to persuade a person to break his contract may not be wrongful in law or fact. . . . But if the persuasion be used for the indirect purpose of injuring the plaintifl’, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it.” Here it is clearly laid down that the pith of the civil wrong which gives rise to the action is the malicious intention, and, admitting this result to be correct, it was not diflicult to treat the violation of an existing contract as immaterial, and to take the step which was subsequently taken in Tem42orlon v. Russell. There, as in the present case of Allen v. Flood, the complaint was that the defendants had hindered the plaintifis in the carrying on of their business by preventing them from obtaining contracts, and since this conduct was m_&hcious, it was held that there was a good cause of action. “There was,” said Lord ESITER, M.R., “the same wrongful intent in both cases, wrongful because malicious. There was the same kind of injury to the plaintiff. It seems rather a film distinction to say that where a person maliciously induces 11 person not to carry out a contract already made with the plaintifi, and so injures the plaintiff, it is actionable, but where he injures the plaintiff by maliciously preventing a person fr01I1 entering into a contract with the plaintiff, which he would otherwise have entered into, it is not actionable.” _ _

This reasoning, of course, is perfectly good so long as 15_15 admitted that malice is the leading ingredient in an B-W011 grounded on the procuring of a breach of contract; and the notion that it is such an ingredient is supported by Lumley VG;/0 and Bowen v. Hall. But the House of Lords have IW distinctly laid it down that the gist of the action is the P1‘00l11'1l-lg the breach of contract. Without an act of actual unlawfulnesfl malice does not constitute a cause of action. The point is clearly put in the judgment of Lord HERSCHELL. After observing that the advance from Bowen v. Hall to Tenz;m~ton v. Russell seemed by the Court of Appeal to have been regarded as only 11 Bmflu step, he said : “ So far from thinking it a small step from the one decision to the other, I think there is a chasm betweflll them. The reason for a distinction between the two cases appears to me to be this—that, in the one case, the act procured was the violation of a legal right, for which the person doing the act which injured the plaintiff could be sued, as well 85 the person who procured it, whilst in the other no legal rlglllf W?‘ violated by the person who did the act from which the p18-lntlfi suffered.” Even when the defendant has procured a contract"! be violated, it is still necessary, in order to groimd an B°t1°“1

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that he should have done this knowingly, and it seems that the
averment of malice in I/umley v. Gye must be taken to have been
satisfied by this knowledge on the part of the defendant. It is
actionable, therefore, for A. knowingly to procure B. to break
his contract with C. ; it is actionable, also, as Lord W.-arson
pointed out, for A. by the use of illegal means to procure B. to
do an act detrimental to (J. But in both cases the gist of the
action is the prinul faciie unlawfulness of A.’s conduct, unlawful-
nese which amounts to a civil wrong if it is accompanied by
knowledge on his part of the effect of his conduct. In Allan v.
Flood this element of illegality was absent. ALLEN procured the
Glengall Iron Co. to break no contract with FLooD and TAYLOR,
nor, in intimating that the ironworkers would in a certain event
exercise their undoubted right of leaving work, did he do any-
thing unlawful. The action, therefore, was based solely on
malice, and this, in the opinion of the majority of the House of
Lords, was not enough.
There remains the argument founded on the decoy case—-
Keeble v. 1Fcl"erin_qiZl—and on the support given to it by a rlivtzmz.
of BOWEN, L.J., in Jfogul Stearnskflz Co. v. .71/lacgregor (37 W. R.
756, 23 Q. B. D. p. 613). “ He that hinders another in his trade
or livelihood is liable,” said Lord Hour, “to an action for so
hmdering him” ; and, again, an action lies “ where a violent or
malicious act is done to a man’s occupation, profession, or way
of getting a livelihood.” According to BOWEN, L.J., “inten-
tionally to do that which is calculated in the ordinary course of
events to damage, and which does, in fact, damage another in
that person’s property or trade, is actionable if done without
]ust cause or excuse.” But the value of this last dictum is
lessened by the fact that the conduct of the defendants in the
Mogul case, although intended to benefit the defendants at the
expense of the plaintifis by injuring the latter in their trade,
was held not- to be actionable; and Lord Hoi.r’s ruling has,
with slight exception, slumbered peacefully in the reports until
it was revived for the purpose of the present controversy. Lord
H.-XLSBITIIY says that the right of the plaintiffs to employ their
labour as they will is a right both recognized by the law and
sufficiently guarded by its provisions to make any undue inter-
ference with that right an actionable wrong. Lord Hnnsomtnr.
does not deny this, but he parallels it with another right. “ A
man’s right not to work or not to pursue a particular trade or
calling, or to determine when or where or with whom he will
work, is in law a right of precisely the same nature and entitled
to Just the same protection as a man’s right to trade or work.”
Whether the right is used well or ill, it is one which has
hitherto always been recognized as unassailable, and by it com-
binations of men have sought to enforce their own social rules.
From a popular point of view the recognition of this right in
the case of trade unions is the leading feature in the case. To
lawyers the point of chief importance is that malice or indirect
motive, though_ accompanied by loss to another, is now definitely
declared to be in itself no cause of action. There must also be
some independent, unlawful act.

COMPANIES WINDING UP DURING THE LEGAL
YEAR 1896-1897.

II.

ALiiosr_the first duty which the House of Lords performed in the beginning of the legal year was to pronounce its decision on the appeal in Salomon v. Salomon §~ Co. (45 W. R. 193; 1897, A. O. 22), the so-called “one-man company” case. The result Was exactly what had been anticipated—the decisions of the Court of Appeal and Mr. Justice VAUGHAN WILLIAMS were completely upset. The facts of this case are too well known to 3°66 re-statement_ _here. No company draftsman was iilllllted by the decision m the court of first instance, and even 5' @_n the Court of Appeal had afiirmed that ruling, the pro$381011 remained unconvinced that the law had been correctly 5 *‘_t@d- Those members of it who had doubts found enough to %l1l0l) their minds in Mr. PALimn’s criticisms in 1 Company srecedents, 6th ed., p. 466, and Private Companies and yndicates, 13th ed. (1897), p. 52.

°°D°l>fl11tures chargmg a company’s uncalled capital are now so mm°11 that lenders need a warning to inquire carefully

whether such securities are authorized in the case of the particular company offering them for subscription; and also that the debentures contain apt words to include the uncalled capital. A strong instance of the result of omitting to make this inquiry is afforded by Mr. Justice OH11'rY’s decision in Re Streatham and General_'Estates Co. (45 W. R. 105; 1897, l Oh.15.) The memorandum and articles gave power to borrow on the company’s property, both present and future, including its uncalled capital. The debentures charged “the undertaking and all its property whatsoever and wheresoever, both present and future”; but it was held that the uncalled capital remained uncharged. The decision, if correct, shews that it is not safe to adopt the definitions in the memorandum and articles, for in this case they defined present and future property as being inclusive of uncalled capital, and all the property, both present and future, was charged by the debentures.

In South African Territories v. lVallfngt0n (45 W. R. 467; 1897, 1 Q. B. 692) "an attempt was made by a company to obtain, as damages for breach of a contract to lend money on its debentures, the balance of the amount subscribed for; but the Court of Appeal held that on the breach the only damages recoverable were the actual loss suifered—following Mr. Justice C‘H.i'i'ri"s decision in Western Wagoai and Property Co. v. "Test (40 W. R. 182; 1892, 1 Oh. 211).

The terms “floating security ” and “floating charge,” now so often found in debentures, are assumed to be synonymous. The former has now been defined in the House of Lords by Lord MACNAGHTEN as “an equitable charge on the assets for the time being of a going concern. It attaches to the subject charged in the varying condition in which it happens to be from time to time. It is of the essence of such a charge that it remains dormant until the undertaking charged ceases to be a going concern, or until the person in whose favonr the charge is created intervenes. His right to intervene may, of course, be suspended by agreement. But if there is no agreement for suspension, he may exercise his right whenever he pleases after default ” (liovernnzents Stock and other Securities Investment 00. v. Jl[am'la Railway Co., 45 W. R. 853; 1897, A. C, 8|, 86). This case related to debentures; but, in the case of a bill of sale given by an individual trader, Lord M.acsaorrraN said in 1888 : “ It belongs to a class of securities of which, perhaps, the most familiar example is to be found in the debentures of trading companies. It is a floating security reaching over all the trade assets of the mortgagor for the time being, and intended to fasten upon and bind the assets in existence at the time when the mortgagee intervenes. In other words, the mortgagor makes himself trustee of his business for the purpose of the security. But the trust is to remain dormant until the mortgagee calls it into operation ” (Tailby v. Oflicial Receirer, 37 W. R. 513; 1888,13 App. Gas. 523, 541).

The term “ floating charge” has now been recognized by the Legislature in sections 2 and 3 of the Preferential Payments in Bankruptcy Amendment Act, 1897 (60 & 61 Vict. c. 19). This Act gives to the debts mentioned in section 1 of the Preferential Payments in Bankruptcy Act, 1888, priority over the claim of debenture-holders and debenture stock-holders having a floating charge.

The difficulty of enforcing a floating charge by foreclosure in the absence of any one of several debenture-holders is pointed out by Mr. Justice KEKEWICH in Re Corztirzental Oxygen Co. (45 W. R. 313; 1897, 1 Oh. 511). According to the same learned judge, where an action is brought by a debentureholder on behalf of the class to enforce debentures charging uncalled capital, the master may, under an inquiry as to the property charged, find what uncalled capital is due from the shareholders, although no calls can be made in the action, and if the plaintifi is a shareholder the court may decide the question of his liability for calls in the same action (xllarlelay v. Rose, Sleemcm, C0. (1897, l Ch. 505). p

The law has for some time been settled that when a debenture-holders’ security is in danger the court will appoint a receiver, although there is no principal or interest in arrearin fact, before the security is “crystallized.” In Re Victoria Ste/mzboats Co. (45 W. R. 135; 1897, l Ch. 158) Mr. Justice KEKEWICH appointed a receiver and manager before crystalliza

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tion had set in. The decision really follows that of Mr. Justice

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