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NORTH in Edwards v. Standard Rolling Stock Syndicate (1893, 1 Ch. 574), but the circumstances constituting jeopardy were different.
In 41 SoLIcI'ror.’s J OURNAL p. 109) we stated that the case of Gaskill v. Gosli'ng_(l896, 1 Q. B. 669), would “ probably go further,” and remarked on the likeness which the facts of the case bore to those in Cox v. Hickman (8 H. L. Cas. 268). On appeal to the House of Lords, the deciion of the Court of Appeal was reversed, the judgment of Lord Justice RIGBY, w 0 dissented from his colleagues, being approved (Gosling v. Gaskill, 1897, A. C. 575). In the House of Lords the Lord Chancellor prefaces his judgment with the following observation: “In this case I am of opinion that it is covered by authority. The case of Con: v. Hickman in this House appears tome expressly (sic) in point " (1897) A. C. 579. It was accordingly held that the trustees of the debenture trust deed who had appointed a receiver were not personally liable for debts contracted by him in carrying on the business of the company. The wording of the trust deed in this case should, therefore, be carefully borne in mind by company draftsmen. Probably some other recent decisions of the Court of Appeal as regards debenture-holders’ receivers would not survive an appeal to the House of Lords.
Debenture-holders have, of course, the right to inspect the register of mortgages required to be kept by section 43 of the Companies Act, 1862, and Mr. Justice STIRLING has held that the right to inspect includes the right to take copies (Nelson v. Anglo-American Land Mortgage Agency C0., 45 W. R. 171 ; 1897, 1011. 130).
Section 25 of the Companies Act, 1867, and the question whether shares not wholly or at all paid up in cash are in certain circumstances to be treated as fully paid, have lately been prominent. Section 25 is a short one, and provides that “Every share in any company shall be deemed and taken to have been issued and to be held subject to the payment of the whole thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing and filed with the Registrar of J oint-Stock Companies at or before the issue of such shares.” The section can only be ironically described as a “ pretty piece of drafting.” “Issued " is a somewhat doubtful word, and no one seems to know what “the same ” refers to. There has always been considerable doubt as to what sort of a “contract” must be filed, and considerable light has been thrown on this part of the section by the Court of Appeal in Ra Klzaraakhozna Exploring and Prospecting Sg/mlicata (1897, 2 Ch. 451). There were two agreements. By one of them, dated the 17th of August, 1892, the K. syndicate agreed, for a consideration which was not cash, to allot to the C. company shares in the syndicate, the allotment to be protected by a filed agreement. The second agreement was under seal, and dated the 31st of August, 1892. It recited that by the agreement of the 17th of August it was agreed, “ for the considerations therein mentioned,” that the syndicate should allot the shares to the company, and as to the filing of the agreement, and then proceeded to provide that the syndicate should file the second agreement and allot the shares to the company, which shares should be deemed to be fully paid. It was held (reversing Mr. Justice VAUGHAN WIr.L1AMs’ decision) that the omission of the consideration prevented the document filed from being a. sufficient contract, and that the allottees were liable to pay up the full amount of the shares. It was also laid down that the agreement was contained in the two documents, and that if both had been filed the allottees would have been protected. The allottees are taking the case to the House of Lords.
_The dinner of the Oxford Circuit to Mr. Justice Darling, in celebration of his recent elevation to the Bench, will take place at the Café Royal on Monday, January 17th. Mr. Jelf, Q.C., the leader of the Circuit, will preside.
The annual social meeting in connection with the Royal Courts of Justice Temperance Society, of which Lord Herschel] is president, was held, on the 10th inst., at Exeter Hall, Strand, when there was a vcry full attendance. The chair was taken by Sir _l<‘rancis J eune, who delivered a short address, in the course of which he said that the society endeavoured to afford aid, comfort, and pleasure to those among whom its members lived. Its real 0l)_)B0iZ5 were summed up in the maxim, “ To help to bear each other's hurdens.” During the evening an address and recitations were given by
Mr. T. Harner Greenwood, of Toronto, and a programme of vocal and instrumental music was performed.
REVIEVVS. THE GAME LAWS.
OKs’s GAME Laws: CONTAINING was wnona Law as T0 Guts LICENCES AND CERTIFICATES, GUN LICENCES, POACBING PREVENTION, Tnasmss, Raanrrs, DEER, GROUND GAME, Docs, Bmns, Po1soN1:n GRAIN, AND WILD Bums THROUGHOUT THE UNrran KINGDOM. SYSTEJIATICALLY ARRANGED, WITH THE Acrs, DaoisioNs, Norss, AND Foams. FOURTH EDITION. By J. W. WILLIS BUND, M.A., LL.B., Barrister-at-Law. Butterworth &Co.
A new edition of this valuable work will be welcome to many, especially when brought out under the editorship of one whose wide knowledge of the subject is so well recognized. The third edition was published twenty years ago, but a few years after its appearance two Acts of Parliament were passed of such importance to the subject treated that it was found necessary in 1881 to print a supplement in order to bring the book up to date. These Acts were the Wild Birds Protection Act, 1880, and the Ground Game Act, 1880; and the supplement dealing with them was published bound up with the third edition, which became thenceforth a rather clumsy book. This is, of course, all changed in the fourth edition, which, besides being brought quite up to date, is much better arranged than its predecessor. In former editions the statutes and forms were mixed up with the text. Now we have them conveniently collected in the appendix without notes other than page references to the preceding parts of the book. The consequence of this is that, while being increased in utility, the book has lost in bulk. Besides the statutes dealt with in the supplement of 1881, several Acts have been passed since the publication of the third edition which have made great and remarkable changes in the law relating to birds. In fact, as the learned editor points out, the Game Laws proper have now become of less importance than the general law as to wild birds.
By the Wild Birds Protection Act, 1880, all wild birds are protected to some extent, and certain birds mentioned in the schedule are particularly protected during a defined part of the year. By the amending Act of 1894 powers are given to county councils (with the consent of a Secretary of State) to prohibit the taking or destroying the eggs of any wild birds, and also to extend the provisions of the principal Act by adding to the schedule thereof the names of any other wild birds. By the amending Act of 1896 powers are given to county councils (subject to the same consent) to extend the protection afforded to certain birds by the principal Act, so as t0 prohibit the taking or killing of such birds during the whole or any part of the year. It will at once be seen, therefore, that the law as to wild birds may differ in every county. It is liable to constant changes, and can only be discovered with certainty as to any county by obtaining copies of the orders made for that county. Th9 appendix contains a large number of orders already made by the several county councils, the collection of which must have given the editor a vast amount of trouble. Any practitioner, however, who_h§-9 to deal with any question touching game or birds, provided he is in possession of any orders which may affect his case, will find everything else he may require in this book. We have discovered a few misprints. Amongst these may be particularly noticed, on p. 265. the insertion of two lines in section 12 of the Game Act, 1831, which , makes the section ambiguous as far as the penalty is concerned.
A SELECTION or LEADING Cases m TIIE Gamma. LAW (ronNDnD 0N Si=n:aLEY’s LEADING Cases), WITH Norms. By HENRY WARBURTON, Barrister-at-Law. SECOND EDITION. Stevens & Sons.
We are told in the preface to this edition that it has been the author's aim to make the work “ a handbook for practitioners as W8}! as for students.” He may certainly be said to have succeeded in 1115 object, for, while the book is undoubtedly valuable to the student» it is at the same time a useful book in practice. It may often b° seen in the hands of counsel in criminal courts, and is espe<11B11Y welcome at assizes and quarter sessions in the country, where b_0°kf} of reference are not always easy to obtain “at a moment’s noticeThis edition contains some excellent new matter and a few additloml-1 leading cases. The most important of them are Reg. v. Siloerlock (43 W. R. 14; 1894, 2 Q. B. 766), a valuable case on the indictment in false pretences;_Reg. v. Lillyman (44 W. R. 654; 1896, 2 B167), which decides that in cases of rape, &c., evidence is admlwble of the matter of a complaint made by the female soon after _t~h° offence; Reg. v. Ring (17 Cox 491), which establishes the princ1P1° that a prisoner may be convicted of an attempt to commit larcel1Y from the person without there being any necessity to prove that therfi was at the time of the attempt anything capable of being stolen "P0" the person of the individual against whom the attempt was madeAs to the last—mentioned case, we do not think that the notes M9
quite adequate to the importance of the law as to attempt, n01‘ do We
think they are up to the high level of the notes on the majority of the cases dealt with.
At the end of the notes on a case we very often find words to this effect, “ Other cases on this subject are : ” and then follows along list of names of cases (in one instance, on p. 202, no less than thirtythree) without a word to indicate the nature of the decision in each case. Such a list cannot be of any real use, and might be very well omitted entirely. More time would be wasted in looking up these cases in the reports than by going to one of the larger works on criminal law, where the effect of each of these cases would probably be given.
POLICE OFFICER’S GUIDE.
Siwowm=:x’s Pomci-i Orricsifs Gninn. Wrrn an EPITOME or THE POLICE (ENGLAND) Ao'i's; THE POLICE Acr, 1890; Tan CRIMINAL Law CONSOLIDATION Acrs; THE LICENSING Acrs; THE SnuMARY J URISDICTION Acrs; AND DIGEST or RECENT CIBCTILARS or SECRETARY or Smra. TENTH EDITION. By T. O. Hasrmes LEES, Esq., M.A., Barrister-at-Law, Chief Constable of the Isle of Wight. Shaw & Sons ; Butterworth & C0.
This book has now reached a tenth edition, and that fact alone shews that it has been found useful by the class for which, primarily, it is intended. This is the third edition for which Mr. Hastings Lees is responsible, and it would be hard to find any person whose career has better qualified him for such a task. He was once in the Royal Irish Constabulary; then he was Chief Constable of Northamptonshire; next he practised for several years on the Midland Circuit, and enjoyed a considerable amount of criminal business; and, finally, he returned to the police as Chief Constable of the Isle of Wight.
The book is a very complete summary of all a policeman need know in order to regulate his dealings with members of the public, not only according to law, but also with discretion and humanity. Thus in dealing with breaches of the peace, the author says : “ If the disturbance be of a serious nature, or if the offenders do not immediately desist, he should take them into custody . . . but if the offenders desist, it is better to take their names and summons them. A constable should exhibit a great amount of forbearance before exercising his power of arrest.” Again, we read, “ There is nothing recommends a policeman so much to the favourable notice of the public as kindness to the poor, to the helpless, and to children. Great forbearance should be shewn towards children who may be guilty of minor street offences. A policeman who knows his duty will reason with children committing minor offences, and point out to them that they are doing wrong.”
From lowest to highest we may divide police officers into three classes: first, thereis the ordinary constable; next, the experienced superintendent or inspector, who, by his ability, has risen from the ranks; and, lastly, the chief constable, who is generally a man of superior education. The book may also be divided into three corresponding parts. The first part, on the powers and duties of constables, may be imderstood by the ordinary constable of intelligence, and it ought to be his duty to understand and know it; but the rest of the book is probably rather beyond him. The second part contains the law, in a summary form, on every subject that the otlicer is likely to have to deal with, and ought to be of great use to oflicers of superior rank. While the appendix, consisting as it does largely of statutes, will, in the main, recommend itself only to the highest class of ofiicer.
This edition is well up to date, and contains references to quite recent cases. Amongst these may be noticed Powell v. Kampton Park Rarecourse Co. (46 W. R. 8), which is cited on p. 90. On this page
readers are referred to a summary of the judgment in the appendix. We are, however, quite unable to discover any such summary, or any further reference to the case.
Since the last edition of Mr. Marsden’s useful treatise the Merchant Shipping Acts have been consolidated by the Merchant Shipping Act, 1894, and a new set of rules for preventing collisions at sea have come into force. Besides bringing the old edition upto date, Mr. Marsden has inserted a chapter dealing with the history of the rule as to the division of loss in cases of collision. The extracts from the records of the High Court of Admiralty, upon which the author has spent so much useful labour in his edition of them for the Selden Society, shew clearly that those who first applied the rule were evidently at a loss to ‘find in it either principle or reason. The rules
in force in other maritime countries are succinctly set out at the end of the chapter, and it is worthy of notice that countries whose interests are inimical have different rules. For example, in Germany if both ships are in fault, neither can recover; whilst in France the loss is szpportioned according to the degree of fault in each ship. Holland an Belgium have different ru1es——Holland_ following the German rule, Belgium the French. The Spanish rule is different to the Portuguese. In Turkey the loss is divided according to the values of the ships, and in Russia neither vessel can recover. _
In the ap endix willbe found the local rules of the road which are enforced) in some of the ports round our coasts, and it is to be regretted that these have not been made complete by mcluding the rules enforced within our dockyard ports.
Not only to lawyers will this carefully-prepared book prove invaluable, but seamen will find the explanations of the rules of the road of great assistance in helping them to more clearly understand the rules which so often govern the safety of life and property on the high seas.
The preface to this edition states that the work, although originally written for students, is now largely used and relied on by practitioners, and we can quite understand that its sphere should have been thus extended. In a practical manner it goes through the leading points incident to the various transactions in which the conveyancer is engaged—sales, mortgages, leases, settlements, and wills-— and in each the matters which require attention are clearly explained. For the student to take full advantage of the book it is necessary that he should use it in the course of actual professional work. Apart from such assistance, the details, we should imagine, are_ too numerous to be successfully gra pled with. But if he uses it in this manner he will find it a relish e guide, and he will_n0t_ be likely to bid farewell to it when .he has passed his examination. The chapter on Abstracts of Title, in particu ar, is full of inlormation on the points which are likely to arise in that conuection,‘and_ under the head of Bills of Sale (pp. 314, 315) a convenient list _is _givei_i of the special clauses and other matters which are permissible in these securities. On such points as constructive notice and assignments of equitable interests in trust funds, upon which b"u'Ze_i/ v. Barnes (42 W. R. 66; 1894, 1 Ch. 25) and Ward v. l)unrmn.'>c W. R. 59; 1893, A. C. 369) are referred to as recent authorities, the cases are neatly grouped and their practical effect usefully stated. The editors have successfully brought the work up to date.
That Mr. Dundas White, at this early date, has had to publish a second edition of his book on the Merchant Shipping Acts shews that the book has proved of use not only to lawyers but also to the mercantile community. This new edit-ion is revised and brought down to the end of August last. It includes much new matter, among which may be mentioned the Derelict Vessels (Report) Act, 1896. This Act makes it compulsory for commanders o ships to give to Lloyd's agents such information as they possess of the position of any floating derelict on the high seas. The volume also contains the Merchant Shipping Act, 1897, relating to the undermanning of ships, the new regulations for preventing collisions at sea, and many Orders in Council dealing with maritime _matters. The book is carefully arranged and—what is so necessary in a work of this decription—an ample index has been provided.
liaison, Counsellor-at-Law. In Two Volumes. R. James Barkins aw.
Conveyancing Costs (Rubinstein’s). The Solicitors’ Remuneration Act, 1881 (44 8: 45 Vict. c. 4-1), and the General Order made in pursuance thereof. Being a. Complete Guide to the Scale of Charges. By WALTER PERKS, Solicitor of the Supreme Court; assisted by J. F. C. BENNET1‘ and F. P. CHARLES, Solicitors of the Supreme Court. Eighth Edition. Revised and Corrected up to date. Waterlow Bros. & Layton (Limited)
The Bills of Sale Acts, with an Epitome of the Law as Affected by the Acts. By Hnasarrr REED, Q.C. Eleventh Edition. Waterlow Bros. 6: Layton (Limited).
THE LAND TRANSFER ACT. [T0 the Editor of the Solicitors’ Journal.]
Sir,—The article which appeared in the Times of Monday last was no doubt inspired in view of the not unnatural objections which are necessarily being raised to the application of this measure to the whole administrative county of London. The details, moreover, were never discussed in either House of Parliament, simply because neither House was prepared to go into details, but had to trust to the representations which were made on the subject by those who were interested in procuring the passage of the measure through Parliament.
Now that the measure has become law, those authorities to whom has been entrusted the power of determining whether they will have it or not are being threatened with the universal application of the measure all over the country if they do not forego the exercise of the powers expressly ;coni'erred upon them by the statute, and accept the trial of the experiment in the form in which the authorities requii-_e it to be put in force. What was the use of giving county councils the opportunity of saying that they do not consider compulsory registration of title to be desirable, unless they are to deal with the matter on its merits ?
But the measure having been passed, although this power has been
conferred, it is now proposed to coerce the local authorities by telling them that,_ if they do not waive their right to consider the question on its merits—except they agree to a trial—then, whether they like it or no, compulsory registration shall be made universal. _ lllr. B. G. Lake, in his paper read at the recent provincial meeting, insists that the area for the trial experiment should not be too large, and assumes that the whole county of London is not to be selected. As the matter is presented to the authorities, the proposal is to try the experiment in the whole of the administrative county of London. There is not the slightest reliable or trustworthy guarantee that the trial of the experiment will be confined within reasonable limits, supposing a trial to be decided upon.
I do not pretend to say whether the London County Council will or will not resolve that compulsory legislation is undesirable, but I do earnestly trust and pray that the trial of the experiment may be confined to a reasonable area, which unquestionably the whole of the administrative county of London is not; and I venture energetically to protest against the authorities holding the threat over landowners and others that unless the London County Council agrees to the trial, legislative efforts will be made to make the Bill conipulsory throughout the whole of the country.
If_ the Legislature had not intended the county councils to exercise an ll1Y6lllg€l]l3 and independent consideration of the question, why was the power to do so conferred upon them I" Have the authorities so little confidence in the real merits of the question that they mustthus early resort tothrcats I" Surely the measure will bear dispassionate consideration. It is true that one of the most enlightened of the vestries of tho metropolis is not in favour of granting the measure a trial. But if the vestry is wrong, the London County Council may he trusted to assert their right and to deal wisely with the question.
This is neither the time nor place to refer to the political aspect of the question, but those who happen to be for the time in oflice should remember that some consideration is due to those who helped to place them in power, and that an unwise and iudiscreet exercise of the r power may be likely to have a disastrous result when the time for the renewal of the trust comes round.
A special responsibility rests upon Mr. B. G. Lake. It is to be hope that the authorities, having made all the use of him that they wanted to since the passing of the Act, are not now going entirely to throw‘ him over and to reject his counsel. He is not generally deficient in determination, and I heartily trust that, as he considers a trial of the experiment to be desirable, he will use his best exertions to confine the experiment within reasonable limits, and to secure to the London County Council that freedom of action which
they are entitled to exercise imder the statute without any threat as to what may happen if they do not come to a conclusion acceptableto the Land Registry ofiicials.
For fully thirty years I have been able to deal with my own freehold properties North and South of the Thames, as well as with the properties of others, in all matters relating to the conveyance thereof with ease and celerity. I confess I view, in common with many others, with grave apprehension the delays, difliculties, and expense which will necessarily arise when Iam handed over to the tender mercies of the oflicers of the Land Registry. W. -T. FRASER.
2, Soho-square, Dec. 15.
These were appeals from two orders, the one made by Ridley, J., as Vacation Judge, on the 14th of October, 1897, and the other, a consequential order, made by North, J ., at chambers, on the 15th of November, 1897. The action was brought by a debenture-holder in the Maskelyne British Typewriter (Limited), suing on behalf of himself and all other holders of debentures of the same series (except the London and Northern Debcnture Corporation), and was for the purpose of euforcmg the security. Mr. J . M. Macleau, M.P., was chairman of the company, and also of the London and Northern Corporation. The debentures contained certain conditions, of which the following were material. The principal moneys were to become payable if a distress were levied on any of the property of the company and not promptly satisfied, and on demand of payment by the registered holder. At any time after the principal moneys had become due the registered holder might, as if he were a mortgagee within the meaning of the Conveyancing Act, 1881, appoint a receiver or receivers, who should have power to take possession and to carry on the business of the company. The plaintiff was the holder of debentures to the amount of £1,870. In October, 1897, a distress was levied and not satisfied, and before the end of the month the company passed and confirmed a resolution for a voluntary winding up, Akers, the secretary of the company, being appointed liquid:-itor. In October, also, the plaintiff and the corporation demanded payment of their debentures. Payment not being made, the plaintifi commenced this action ; and, subsequently, the corporation, under the power in their debentures, appointed a receiver, Akers the secretary, who went into possession. Stuart moved for the appointment of a receiver in the action, and Ridley, J ., appointed Akers receiver in the usual way on giving security. Akers, however, did not consent to this order, but relied upon his appointment by the corporation, and he continued in possession without giving security. On the 16th of October Maclean wrote as follows to the com
any’s solicitors: “ \Vc were reluctant to use our authority as debentureholders until we were forced to do so by Mr. Stuart, and have only interfered in order to protect our interests as the largest shareholders in the company. These interests are the same as those of the whole body of shareholders. I hope it may still be possible for us to save the concern." In November, 1897, an order was made to continue the winding up under the supervision of the court, and another liquidator was appointed. On the 15th of November, Akers not having given security, North, J ., on a summons taken out by the plaintifi, appointed one W. F. Marreco receiver and manager on giving security. The corporation appealed against the orders made by Ridley J ., and North, J .
Tris Covnr (Lisnmrr, M.R., and C1-lI'1'l'Y and VAUGHAN WILLIAMS, LJJ.) dismissed the appeal.
LINDLEY, M.B., said: In this case it appears to me that the whole question turns upon the admissibility in evidence of the letter of the 16th of October, 1897, and upon the true inference to be drawn from that. It is necessary, therefore, to say a few words about what I will call the bargain between the parties, by which term I mean the debenture-holders themselves as well as the mortgagor company. The mortgagor company wished to borrow money, and for that purpose issued debentures to (amongst others) the London and Northern Corporation. By the terms of the debentures the corporation has now the right to appoint a receiver, and as between the corporation and the mortgagor there is nothing more to be said. But we have also to consider on whose behalf the power of appointing ought to be exercised. That power was not conferred for their own exclusive benefit, for it is part of the bargain between the parties that the whole issue shall rank pari passu. Therefore the right for which the corporation stipulated is a right which they are bound, as between themselves and the other debenture-holders, to exercise for the benefit of the whole of the debenture-holders. They were trustees for themselves and the other debenture-holders. That is the peculiarity of this caselhat there is a quarrel between the corporation and the other debentureholders. The plaintiff is the holder of some debentures, and he says that although the corporation have a right to appoint a receiver—a right which
it would be extremely difiicult for the mortgagors to control—yot they
must exercise that right for the benefit of all the debenture-holders, and not for the benefit of the mortgagor company, or for their own benefit as holders of shares in that company. That case, I think, is unanswerable in point of law. If the plaintiff makes out his allegations he can call upon the court to interfere, for in a controversy like this the courfl beyond all question, has jurisdiction. \Vhat we are asked to do is not contrary to the bargain between the parties ; quit/e the reverse. It is enforcing that bargain. The plaintiff is justified, if he can make out that case, in coming to the court and asking it to control the corporation in the exercise of their power of appointing a receiver so as to secure the carrying out of the bargain between him and the other debenture-holders, on whose behalf he sues, and the corporation. The plaintiff alleges that the corporation is really presided over by Maclean, who, he says, is their chairman, and their manager and agent in these litigations. I think there is evidence of that if you read Maclean’s two affidavits together. I find that he is the person who is acting for the corporation in these proceedings and giving instructions on their behalf. He is, therefore, their agent for such purposes. Now, we find Maclean writing to the solicitors of the company a very extraordinary letter, dated the 16th of October, 1897, two days after the corporation had, pursuant to the power conferred by the debentures, appointed Akers receiver. The meaning of that letter clearly is that the corporation had made the appointment, not to protect their codebenture-holders, but to protect their own interests as the largest shareholders. The language convinces me that it had been done, not in the interest of the debenture-holders at all, but in the hope that it might still be ssible to save the company. Now, I regret that Mr. Maclean, who is aliioad, has not had an opportunity of commenting upon that letter. We can only act upon the evidence before us, and on that evidence I think the plaintifi’s allegation is absolutely made out. If so, it is not only within our jurisdiction, but it is certainly right and proper for us to hold that, since the corporation have exercised their power, not for the purpose of protecting the interest of the debentiire-holders, but for a purpose adverse to that interest, it is competent for the plaintiff to apply for the appointment of another receiver. I think this is a case in which it is proper for the court to exercise its jurisdiction and protect the plaintiff by appointing the receiver so asked for.
Ci-irrrr and VAUGHAN Wii.1.i.urs, L.J J . , delivered judgment to the same effect.—Couxsiii., Vernon Smith, Q.O., and W. F. Hamilton; /S/winfcn Eady, Q.C., and F. Wbirmey. Somcirons, Baker, Blalrvr, Q Hawee; Chester 5' 6'0.
Appeal from a decision of North, J. (reported 45 W. R. 284; 1897, 1 Ch. 422). Gardner Christopher Stevens made his will on the 12th of February, 1880, and appointed Charles Frederick Stevens, Matthew Sallitt Emerson, and John Sewell executors. The testator died on the 23rd of December, 1882, and the will was proved by C. F. Stevens alone on the 15th of October, 1889. The testator was entitled to a policy of £676 in the Scottish Widows‘ Assurance Office payable on the 21st of March, 1883. This sum was paid on the 18th of November, 1889, with £45 ls. 4d. interest at the rate of 1 per cent. from the 21st of March, 1883, to the 21st of November, 1889. The policy was mortgaged to the testator‘s bankers, Messrs. Gurney, as security, and was in their possession at the time of his death. Meanwhile interest at the rate of 5 per cent. was paid upon the mortgage debt due by the testator, and the difference in interest thus paid and received was £157 14s. 8d. Emerson was a solicitor and denied that he had acted as an executor, but he had acted as solicitor for Stevens, who subsequently proved the will with regard to certain actions against the estate of the testator. All the three executors named in the will wrote a letter to the Scottish Widows’ Assurance‘ Society on the 28th of July, 1883, requesting that the policy moneys might be paid to Messrs. Gurney, being creditors of the testator, but the society declined to make the payment until probate was taken out. The action was brought by one of the residuary legatees asking for an administration decree against both Stevens and Emerson upon the footing of wilful default. North, J ., directed the ordinary accounts to be taken against both the defendant executors, but declined to make any order on the footing of wilful default. The residuary legatee appealed.
Tris Couiir (Lrivnni-iv, M.R., and CHITTY, and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal.
Dec. 9.—Lrxi>Lar, M.R.—In this case a residuary legatee has brought an action against his testator’s executors seeldng not only the ordinary accoimts of their receipts and payments, but also an account against them on the footing of wilful default. So far as the plaintiff seeks to charge them with wilful default the action has been dismissed with costs, and from this decision the plaintiff has appealed. The testator‘s assets got in by the executors are said not to be sufficient to pay his debts. Hence the importance of the case to the plaintiff. Two acts of wilful default are relied upon and have to be considered. The first is that the executors omitted to get in adebt alleged to have been due to the testator at his death from a person named Clarke. The facts as to this are complicated and the pleadings are somewhat embarrassing. But, having regard to the mode in which this part of the case was dealt with in the court below, it would be unjust to the defendants to treat the pleadings as admitting that there was such a debt, and so far as evidence goes no such debt was proved either before North, J ., or before us. The next act of wilful default charged was the omission on the part of the executors to enable a secured creditor of the testator to realize his security sooner than he did. The consequence of this omission was that the testator’s estate
has been diminished by the amount of interest which would have been saved if the security had been realized sooner. The security was a policy for £676 on the tcstator’s life; he had deposited it with other documents of value with his bankers, and at his death there was due to them on those securities £1,700 odd. The policy was pledged for much more than it was worth. If the executors had in their hands assets suflioient to pay the debts of the deceased, including the debt due to the bankers, the executors ought to have paid the bankers off; and if, instead of doing this, they kept assets in their hands and allowed interest to run up against the estate, and ultimately had to pay more than they would have had to pay if they had not delayed paying the bankers the amount due to them, the executors would have been guilty of a deuastavit, and would be disallowed the interest thus unnecessarily paid by them. The policy was not assignedto the bankers, and they could not give a. valid receipt for the policy moneys without the concurrence of the executors. Moreover, the insurance oflice which had to pay the policy would not pay the bankers, even with the concurrence of the executors, until the testator’s will had been proved. For some reason or other the executors did not wish to prove it, and although eventually one of them did prove the will, the other has not proved it yet. As soon as the will was proved the bankers, or, rather, a person to whom they had assigned their debt and their policy, obtained the policy moneys, with the assistance of the executor who had proved, and the debt was reduced by the
< amount received from the insurance office. It must not be overlooked
that although the executors’ accounts have not yet been certified, they have been fully investigated, and there is no proof even now that the executors did wrong in not paying off the bankers and so reducing the policy and getting in the asset which it represented. In the absence, however, of such evidence I am unable to see how a case of wilful default can be established. If debts are paid in the wrong order to tho detriment of the creditor the executor is of course answerable. The payment would be disallowed in taking the account of the receipts and payments. _But the payment of debts even in a wrong order is not a wrong entitling a legatee to relief, nor does such payment amount to wilful default; and it is wilful default which we have to consider here. It is urged that it is the duty of an executor to prevent any loss to his testator's estate which it is in his power to prevent. But this proposition is far too _wide, as is shown inter clia by Turner v. Turner (1 Jac. & W. 39), m wh1ch_ it _was held that an executor’s right of paying one creditor before another justified him as against a legatee in paying even a simple contract debt not bearing interest in preference to a specialty debt bearing interest, although the estate was diminished by the additional interest which had ultimately to_be borne. A wrongful payment is one thing, and can be set_ri_ght by disallowing it when the executor brings in his account. But if it is sought to charge him with loss attributable to some other breach of duty, call it wilful default or by any other name, such breach of duty must be proved, and if no suflicient proof or even privmi facie evidence of it_is given it is not right to insert in the judgment any declaration of liability, or even an inquiry as to liability based upon such supposed breach of duty, In the present case no evidence of any such breach of duty has been given, and the attempt to charge the executors with more than they have received has failed. Whether any payment, by which the executors seek todischarge themselves, ought or ought not to be disallowed must be decided hereafter. That question is not before us now. This appeal fails, and must be dismissed with costs. I have preferred to base my Judgment on the above ground rather than to investigate the question whether executors who delay proving their testator's will can be rendered liable for losses which they could have avoided if they had proved it earlier. In the present case the will has been proved by one of the defendants, and the court, therefore, has the probate before it. The pro_ba_te shows that both defendants are appointed executors by the will, and it is proved th_at_ both of them have accepted the office of executor by acting in the administration of the testator’s estate. Under these circumstances I fail to see upon what principle they can derive any benefit from _ delaymg to obtain probate. It appears to me that, having accepted_ offlce, they ought to be treated as executors as from that time, and not simply as executors de son tort, as their counsel contended. It is unnecessary, however, to pursue this inquiry. The appeal must be dismissed with costs.
Cnirrr, L.J.—North, J., has dismissed the action so far as it claims relief, on the footing of wilful default, and has made against both the defendants, Stevens and Emerson, as executors, the common decree under which they have to account for assets received. The will was not proved until 1889, nearly seven years after the testator‘s death, when probate was obtained by Stevens alone. The probate shews that Emerson also was appointed executor. North, J ., has held that he accepted the oflice by intermeddling with the assets in 1883. There is no appeal from this part of the judgment. The statement of claim raised several cases of devaatavit or of wilful default against the executors; but the appeal is confinedtotwo. The first is the case of Clarke, an alleged debtor, which may be disposed ofin a few words. The plaintiff, who is one of several residuary legat/ees, failed to prove that there was any debt owing by Clarke. Proof of the debt is the foundation of a wilful default decree. When the debt is proved the burden is thrown on the executor to shew why he did not get it in: Styles v. Guy (1 Mac. 8: G. 422) and Re Bragden, Billing v. Brogden (37 W. R. 84, 38 Ch. D. 546). I am satisfied by the judge's notes and the statements of counsel that, although the £4,000 promissory notes given by Clarke to the testator were mentioned, the only substantial contest before North, J ., was confined to the £395. The evidence put in, consisting of the agreement and the valuation, coupled with the admission that notes for £4,000 only were taken, and the fact that Clarke was in court and could have been called by tho plaintiff, all_ went to shew that the £395 was not owing at the testator's death. The m_ference was that that sum had been paid or satisfied in the testatnr's lifetime.
The other case relates to the policy for £676, which became payable in March, 1883. This policy was mortgaged by the testator with other securities for an amount far exceeding the sum recoverable under the policy. The mortgage, which was held by the testator’s bankers, was effected bya deposit of the policy and amemorandum. As there was no assignment of the policy within the Policies of Insurance Act, 1867 , the bankers could not sue the insurance ofiice. The right of action at law remained vested in the executors. But inasmuch as the policy was equitably mortgaged for an amount in excess of its value, the executors, assuming they had proved the will, could not have sued for or recovered the policy moneys or any part of them. They were not entitled to receive the moneys without the consent of the mortgagees, and there is no evidence or even suggestion that the mortgagees would have consented to the receipt of the moneys by the executors. The only proceedings which they could have taken against the bankers or their assignees, Mann, was an action to redeem in which they might have joined the insurance office as defendants. The result appears to be this; the executors could not be charged under w at is termed a wilful default decree. Under such a decree the executors are charged with what they have received or might have received but for their wilful default or neglect. But the case does not rest here. If on the facts proved a case of (levnstavit by negligence is established other than what is technically termed wilful default, the court ought to make the proper declaration against the executors. The loss alleged is the difference between the interest allowed by the insurance oflice and the interest which the mortgage debt carried, a difference of 4 per cent. The charge made by the plaintiifs pleading is not merely for wilful default, it is also for a devastacit. I pause for a moment to say that on taking the common account of their receipts, executors can properly be and are often charged with a rlevaxlavil arising on the accounts themselves. On taking the account they stand charged with their receipts; and if they seek to discharge themselves by unlawful payments their dischargc is disallowed. Further, if on taking the accounts it appears that the executors have improperly retained balances in their own hands, they are liable to be charged interest on the balances, although no such charge is raised on the pleadings. For this purpose an additional inquiry is generally directed. The charge of interest, when it is made by the court, rests upon the foundation of a deoastavit. Where a charge of the nature now under consideration is made by the pleadings, the general rule is that it ought tobe disposed of at the trial (see Smith v. Armitage, 24 Ch. D. 727, 31 W. B. Dig. 78). But the rule is not universal, and there may be, and are, cases where it would be proper to direct an inquiry. The plaintiffs’ counsel on this appeal ask for a declaration of liability, or, in the alternative, for an inquiry. Now, in this case there is the fact that an order for administration against Stevens alone had been made at the instance of another residuary legatee. The accounts had been taken and were ready for the chief clerk’s certificate, but no certificate had been made. North, J ., stayed all further proceedings under that order with liberty to adopt the proceedings under it in this action. It is plain that the numerous charges in the plaintiff's pleadings in this action are in great measure founded upon a knowledge of the accounts in the former action. The charge against the executors resolves itself into a charge that they were answerable to the plaintiff and other the residuary legatees for loss arising from their negligence in not paying off sooner than they did the interest-bearing debt secured by the mortgage. This charge does not appear to me to rest upon the question whether it was their duty to have proved the will sooner than they did. I will assume that they cannot set up their delay in proving the will as a defence, and that they stand in the same position as if they had both proved the will in 1883, when, by intermeddling, they accepted the ofilce. But to make good the proposition that the executors are liable for not paying off the mortgage, or in other words for not redeeming it, it is incumbent on the plaintiff to shew that the executors had assets which they were bound toapply in redemption of the mortgage. I say “ bound to apply ” advisedly, because here there comes in the right of an executor to prefer one creditor to another of the same degree at any time before a decree for administration is made by a court of equity. Some few years ago an attempt was made to interfere with this right by appointing a receiver; but it is now established that a receiver ought not to be appointed merely for the purpose of depriving the executor of his right of preference. It suflices to refer on this point to Stirling, J .’s, decision in Re Walls, Melony v. Brooke (39 W. R. 139, 45 Oh. D. 569), where the authorities are cited and dealt with. Where an executor has assets in his hands which he ought to apply in payment of an interest-bearing debt he is liable for the loss to the estate occasioned by his unjustifiable neglect and delay in paying the debt (see Seaman v. Dee, Administrator of Everad, 2 Lev. 40). But he is not liable for loss accruing to the estate by reason of his paying, in exercise of his right to prefer, anon-interest-bearing debt before an interest-bearing debt. This is established by Turner v. Tumor (1 J. & W. 39) and by Robinson v. Cumminy (2 Atk. 409), where the executor's claim for fifteen years’ interest on his own interest-bearing debt was allowed. The plaintiff has not proved or attempted to prove that the executors had at any time before the actual payment of the mortgage debt assets in hand suficient for its payment, much less that they had assets which they were bound so to apply. There is not even an allegation to any such effect in the plaintiffs’ statement of claim. For these reasons I think that no declaration of the executors’ liability ought to be made, and on the facts that no sufiicient ground has been shewn for granting an enquiry. It will be observed that I have not rested my judgment on any supposed duty of the executors to obtain probate. 1t may be that their delay in obtaining probate would not afford any defence to a charge of wilful default or of negligence for which otherwise they were accountable. My opinion is that it would not. It is plain that the mortgageee. being creditors, and
This was a motion by two shareholders in the defendant company asking for an injunction restraining the company from refusing to allow them to inspect the register and take copies of it. The plBiI.\li1fi’B shares had been forfeited by the company. The names of shareholders whose shares purported to be forfeited had a red line drawn through them, but the company contended that the name, although still able to be read, did not form part of the register. lfollanrl v. Dixon (37 Ch. D. 669), Mutter v. Eastern and illirllami Railway O0. (38 Ch. D. 92), and Nshorz v. AngloAmerinm Land Mortgage 00. (1897, 1 Ch. 130) were cited in support of the plaintiffs‘ application. The company denied the right of the plaintiffs to take copies, and said that, as their shares had been forfeited, they had ceased to be shareholders.
Noarn, J .—The present application is that the company may be restrained by injunction from preventing the plaintiffs at reasonable times inspecting and taking extracts from the register. The case is, in my opinion, covered by authority. Where there is power to inspect the register there is power to take copies. Holland v. Dixon and Jlluttor v. Eastern and Midland Railway 00. are clear authorities, unless there is s distinction, because this is an application section 32 of the Companies Act, 1862. It is said as the plaintiffs can have a copy if they pay the company for it, their right to take copies is excluded. In my opinion the power to call on the company to give copies is an additional privilege, the plaintiffs can take notes as well as call on the company to give them copies, and the right to inspection is clear. The plaintiffs must have the costs of the motion in any event. Gouussr, Swinfm Esdy, Q,-0.; Stewart Smith; Vernon Smith, Q.C.; W. Hiygina. Somcrroas, Wyatt, Digbg, 5- (Jo. ,Burgoyne, Watts, \§- (Jo.
By his will dated the 19th of January, 1891, Charles Tomlinson gave and bequeathed to his niece Mary Tomlinson (inter alis) the house in which he then resided, being N 0. 7, N orth-road, Highgate, for the term of her natural life “ and after her death to go to George Andrew and his wife, my niece, Mary Andrew, for their benefit and that of their family of children.” In a letter to the said Mary Tomlinson dated the 20th of Jime, 1894, which was admitted to probate as a codicil to the said will, the testater wrote as follows: “ I leave you in absolute possession of the house and furniture and monetary residue for the remainder of your life.” The house referred towas a leasehold house held by the testator under an indenture of lease dated the 28th of December, 1867, for the term of ninety years from the 25th of December, 1867, at a yearly rent of £10. The lease contained the usual covenants by the lessee to pay the rent, rates, and taxes, to insure, keep in repair, and paint, and to deliver up at the end of the term in good and substantial repair. Neither the will nor codicil contained any provisions relating to the house other than those above stated. The testator did not appoint trustees of his will. The testator died on the 15th of February, 1897, and his will and codicil were duly proved. This was a summons taken out by his executrix, the said Mary Tomlinson, for the determination (inter alia) of the following question—viz., whether upon the true construction of the will and codicil the plaintiff Mary Tomlinson was liable to pay the rent reserved by, and perform the covenants by the lessee contained in, the said lease under which the said house was held, or by whom the same ought to be paid and performed. On behalf of the plaintiff it was argued that the tenant for life was entitled to enjoy the house free from liability on the covenants, and the following cases were referred to : Re Gourtisr (35 VV. R. 85, 34 Ch. D. 136), Re Baring (41 XV. R. 87; 1893, 1 Oh. 61), and Re Redding (45 W. R. 457; 1897, 1 Ch. 876); Hickling v. Boyer (3 Mac. &: G. 635), and Re Hotchkya (34 W. R. 569, 32 Oh. D. 408).
KEKKWIO}l, J .-—This case differs from the cases cited in that here_W6 have a direct gift to the beneficiary. It has been argued that this being a direct gift must be a gift cum onera, and all the more so because there are no trustees. The answer to that is, to my mind, that this being 8 lease of the testator‘s, he is liable to perform the covenants of the least?» and this liability is a burden on his estate, and his executors are bound to discharge it and to see that it is discharged. The executors would be liable in an action on the covenants, and if they are, there is no substance in the argument that they cannot enter upon the property to do the repairs; they are entitled to say to the tenant for life that they must come on to the property to do them. I think I am bound to adhere to the view 1 took in Re Baring of Ra Uourticr, and to decide this question on the general law. A case before Lord Truro has been referred to, but I do