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NORTH in Edwards v. Standard Rolling Stock Syndicate (1893, 1
THE GAME LAWS. In 41 SOLICITOR'S JOURNAL p. 109) we stated that the case of ORE'S GAME LAWS: CONTAINING THE WHOLE LAW AS TO GAME Gaskill v. Gosling (1896, 1 Q. B. 669), would probably go
LICENCES AND CERTIFICATES, GUN LICENCES, POACHING PREVENfurther," and remarked on the likeness which the facts of the
TION, TRESPASS, RABBITS, DEER, GROUND GAME, DOGS, BIRDS, case bore to those in Cox v. Hickman (8 H. L. Cas. 268). On POISONED GRAIN, AND WILD BIRDS THROUGHOUT THE UNITED appeal to the House of Lords, the decision of the Court of KINGDOM. SYSTEMATICALLY ARRANGED, WITH THE ACTS, DEAppeal was reversed, the judgment of Lord Justice RIGBY, OISIONS, NOTES, AND FORMS. FOURTH EDITION. By J. W. who dissented from his colleagues, being approved (Gosling v. WILLIS BUND, M.A., LL.B., Barrister-at-Law. Butterworth & Co. Gaskill, 1897, A. C. 575). In the House of Lords the Lord
A new edition of this valuable work will be welcome to many, Chancellor prefaces his judgment with the following observa- especially when brought out under the editorship of one whose wide tion : “In this case I am of opinion that it is covered by knowledge of the subject is so well recognized. The third edition authority. The case of Cox v. Hickman in this House appears was published twenty years ago, but a few years after its appearance to me expressly (sic.) in point” (1897) A. C. 579. It was two Acts of Parliament were passed of such importance to the accordingly held that the trustees of thé debenture trust deed subject treated that it was found necessary in 1881 to print a supplewho had appointed a receiver were not personally liable for ment in order to bring the book up to date. These Acts were the Wild debts contracted by him in carrying on the business of the Birds Protection Act, 1880, and the Ground Game Act, 1880; and company. The wording of the trust deed in this case should, third edition, which became thenceforth a rather clumsy book. This
the supplement dealing with them was published bound up with the therefore, be carefully borne in mind by company draftsmen. is, of course, all changed in the fourth edition, which, besides being Probably some other recent decisions of the Court of Appeal as brought quite up to date, is much better arranged than its predecessor. regards debenturo-holders' receivers would not survive an In former editions the statutes and forms were mixed up with the appeal to the House of Lords.
text. Now we have them conveniently collected in the appendix Debenture-holders have, of course, the right to inspect the without notes other than page references to the preceding parts of register of mortgages required to be kept by section 43 of the the book. The consequence of this is that, while being increased in Companies Act, 1862, and Mr. Justice STIRLING has held that utility, the book has lost in bulk. Besides the statutes dealt with in the right to inspect includes the right to take copies (Nelson v. publication of the third edition which have made great and remark
the supplement of 1881, several Acts have been passed since the Anglo-American Land Mortgage Agency Co., 45 W. R. 171 ; 1897, able changes in the law relating to birds. In fact, as the learned 1 Ch. 130).
editor points out, the Game Laws proper have now become of less Section 25 of the Companies Act, 1867, and the question importance than the general law as to wild birds. whether shares not wholly or at all paid up in cash are in By the Wild Birds Protection Act, 1880, all wild birds are procertain circumstances to be treated as fully paid, have lately tected to some extent, and certain birds mentioned in the schedule been prominent. Section 25 is a short one, and provides that are particularly protected during a defined part of the year. By “Every share in any company shall be deemed and taken to the consent of a Secretary of State) to prohibit the taking or have been issued and to be held subject to the payment of destroying the eggs of any wild birds, and also to extend the prothe whole thereof in cash, unless the same shall have been other visions of the principal Act by adding to the schedule thereof the wise determined by a contract duly made in writing and filed names of any other wild birds. By the amending Act of 1896 powers with the Registrar of Joint-Stock Companies at or before the issue | are given to county councils (subject to the same consent) to extend of such shares.' The section can only be ironically described as the protection afforded to certain birds by the principal Act, so as to a "pretty piece of drafting.” “Issued " is a somewhat doubt- prohibit the taking or killing of such birds during the whole or any ful word, and no one seems to know what “the same ” refers to part of the year. It will at once be seen, therefore, that the law as There has always been considerable doubt as to what sort of a
to wild birds may differ in every county. It is liable to constant " contract' must be filed, and considerable light has been by obtaining copies of the orders made for that county. The
changes, and can only be discovered with certainty as to any county thrown on this part of the section by the Court of Appeal appendix contains a large number of orders already made by the in Re Kharaskhoma Exploring and Prospecting Syndicate (1897, 2 several county councils, the collection of which must have given the Ch. 451). There were two agreements. By one of them, dated editor a vast amount of trouble. Any practitioner, however, who has the 17th of August, 1892, the K. syndicate agreed, for a con- to deal with any question touching game or birds, provided he is in sideration which was not cash, to allot to the C. company shares in possession of any orders which may affect his case, will find everythe syndicate, the allotment to be protected by a filed agree thing else he may require in this book. We have discovered a few ment. The second agreement was under seal, and dated the the insertion of two lines in section 12 of the Game Act, 1831, which 31st of August, 1892. It recited that by the agreement of the makes the section ambiguous as far as the penalty is concerned. 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 pro
CRIMINAL LAW. ceeded to provide that the syndicate should file the second agreement and allot the shares to the company, which shares A SELECTION OF LEADING CASES IN THE CRIMINAL LAW (FOUNDED should be deemed to be fully paid. It was held (roversing Mr.
ON SHIRLEY'S LEADING CASES), WITH NOTES. By HENRY WAR
BURTON, Barrister-at-Law. SECOND EDITION. Stevens & Sons. Justice VAUGHAN WILLIAMS' decision) that the omission of the consideration prevented the document filed from being a suffi- author's aim to make the work " a handbook for practitioners as well
We are told in the preface to this edition that it has been the cient contract, and that the allottees were liable to pay up the
as for students.” He may certainly be said to have succeeded in his full amount of the shares. It was also laid down that the object, for, while the book is undoubtedly valuable to the student, agreement was contained in the two documents, and that if it is at the same time a useful book in practice. It may often be both had been filed the allottees would have been protected. seen in the hands of counsel in criminal courts, and is especially The allottees are taking the case to the House of Lords. welcome at assizes and quarter sessions in the country, where books
of reference are not always easy to obtain " at a moment's notice."
This edition contains some excellent new matter and a few additional The dinner of the Oxford Circuit to Mr. Justice Darling, in celebration of leading cases. his recent elevation to the Bench, will take place at the Café Royal on (43 W. R. 14; 1894, 2 Q. B. 766), a valuable case on the indictment
The most important of them are Reg. v. Silverlock Monday, January 17th. Mr. Jelf, Q.C., the leader of the Circuit, will preside. in false pretences ; Reg, v. Lillyman (44 W. R. 654; 1896, 2 Q. B.
The annual social meeting in connection with the Royal Courts of Justice 167), which decides that in cases of rape, &c., evidence is admissible Temperance Society, of which Lord Herschell is president, was held, on the of the matter of a complaint made by the female soon after the 10th inst., at Exeter Hall, Strand, when there was a very full attendance. offence ; Reg. v. Ring (17 Cox 491), which establishes the principle the course of which he said that the society endeavoured to afford aid, from the person without there being any necessity to prove that there comfort, and pleasure to those among whom its members lived. Its real objects were summed up in the maxim, “To help to bear each other's was at the time of the attempt anything capable of being stolen upon burdens." During the evening an address and recitations were given by the person of the individual against whom the attempt was made. Mr. T. Harner Greenwood, of Toronto, and a programme of vocal and As to the last-mentioned case, we do not think that the notes are instrumental music was performed.
quite adequate to the importance of the law as to attempt, nor do we
think they are up to the high level of the notes on the majority of in force in other maritime countries are succinctly set out at the end the cases dealt with.
of the chapter, and it is worthy of notice that countries whose At the end of the notes on a case we very often find words to this interests are inimical have different rules. For example, in effect, “ Other cases on this subject are : ” and then follows a long Germany if both ships are in fault, neither can recover; whilst in list of names of cases in one instance, on p. 202, no less than thirty- France the loss is apportioned according to the degree of fault in each three) without a word to indicate the nature of the decision in each ship. Holland and Belgium have different rules --Holland following case. Such a list cannot be of any real use, and might be very well the German rule, Belgium the French. The Spanish rule is different omitted entirely. More time would be wasted in looking up these to the Portuguese. In Turkey the loss is divided according to the cases in the reports than by going to one of the larger works on values of the ships, and in Russia neither vessel can recover. criminal law, where the effect of each of these cases would probably In the appendix will be found the local rules of the road which be given.
aro enforced in some of the ports round our coasts, and it is to be regretted that these have not been made complete by including the
rules enforced within our dockyard ports. POLICE OFFICER'S GUIDE.
Not only to lawyers will this carefully-prepared book prove SNOWDEN'S POLICE OFFICER'S GUIDE. WITH AN EPITOME OF THE invaluable, but seamen will find the explanations of the rules of
POLICE (ENGLAND) ACTS; THE POLICE ACT, 1890 ; THE CRIMINAL the road of great assistance in helping them to more clearly under-
CONVEYANCING. This book bas now reached a tenth edition, and that fact alone THE STUDENT'S CONVEYANCING : BEING SPECIALLY INTENDED FOR shews that it has been found useful by the class for which, primarily, THE USE OF CANDIDATES AT THE FINAL AND HONOURS EXAMINAit is intended. This is the third edition for which Mr. Hastings Lees TION OF THE LAW SOCIETY. FIFTH EDITION. By ALBERT is responsible, and it would be hard to find any person whose career GIBSON and ARTHUR WELDON. The “Law Notes” Publishing has better qualified him for such a task. He was once in the Royal Offices. Irish Constabulary; then he was Chief Constable of Northampton
The preface to this edition states that the work, although originally shire; next he practised for several years on the Midland Circuit, and written for students, is now largely used and relied on by pracenjoyed a considerable amount of criminal business ; and, finally, he titioners, and we can quite understand that its sphere should have returned to the police as Chief Constable of the Isle of Wight.
been thus extended. In a practical manner it goes through the leadThe book is a very complete summary of all a policeman need ing points incident to the various transactions in which the conveyknow in order to regulate his dealings with members of the public, ancer is engaged-sales, mortgages, leases, settl-ments, and wills not only according to law, but also with discretion and humanity and in each the matters which require attention are clearly explained. Thus in dealing with breaches of the peace, the author says: " If the For the student to take full advantage of the book it is necessary disturbance be of a serious nature, or if the offenders do not immedi- that he should use it in the course of actual professional work. ately desist, he should take them into custody ... but if the Apart from such assistance, the details, we should imagine, are too offenders desist, it is better to take their names and summons them. numerous to be successfully grappled with. But if he uses it in A constable should exhibit a great amount of forbearance before this manner he will find it a reliable guide, and he will not be likely exercising his power of arrest.” Again, we read, “There is nothing to bid farewell to it when he has passed his examination. The recommends a policeman so much to the favourable notice of the
chapter on Abstracts of Title, in particular, is full of information on the public as kindness to the poor, to the helpless, and to children. . Great points which are likely to arise in that connection, and under the forbearance should be shewn towards children who may be guilty of Head of Bills of Sale (pp. 314, 315) a convenient list is given of the minor street offences... A policeman who knows his duty will reason special clauses and other matters which are permissible in these with children committing minor offences, and point out to them that securities. On such points as constructive notice and assignments of they are doing wrong."
equitable interests in trust funds, upon which Briley v. Barnes (12 From lowest to highest we may divide police officers into three W. R. 66; 1894, 1 Ch. 25) and Ward v. Duncoinbe (42 W. R. 59; classes : first, there is the ordinary constable ; next, the experienced 1893, A.' c. 369) are referred to as recent authorities, the cases superintendent or inspector, who, by his ability, has risen from the
are neatly grouped and their practical effect usefully stated. The ranks; and, lastly, the chief constable, who is generally a man editors have successfully brought the work up to date. 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 understood by the ordinary constable of intelligence, and it ought to be his duty to understand and know it; but
THE MERCHANT SHIPPING ACTS. the rest of the book is probably rather beyond him. The second part TIE MERCHANT SHIPPING ACTS, 1894-1897. WITH NOTES, APPENcontains the law, in a summary form, on every subject that the DICES, AND INDEX. SECOND EDITION. By JAMES DUNDAS officer is likely to have to deal with, and ought to be of great use to WHITE, M.A., LL.M., Barrister-at-Law. Eyro & Spottiswoode. officers of superior rank. While the appendix, consisting as it does largely of statutes, will, in the main, recommend itself only to the second edition of his book on the Merchant Shipping Acts shews
That Mr. Dundas White, at this early date, has had to publish a highest class of officer.
This edition is well up to date, and contains references to quite that the book has proved of use not only to lawyers but also to the recent cases. Amongst these may be noticed Powell v. Kempton Park down to the end of August last. It includes much new matter,
mercantile community. This new edition is revised and brought Racecourse 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. 1896. This Act makes it compulsory for commanders of ships to
among which may be mentioned the Derelict Vessels (Report) Act, We are, however, quite unable to discover any such summary, or any give to Lloyd's agents such information as they possess of the further reference to the case.
position of any floating derelict on the bigh seas. The volume also contains the Merchant Shipping Act, 1897, relating to the under
manning of ships, the new regulations for preventing collisions at COLLISIONS AT SEA.
sea, and many Orders in Council dealing with maritime matters. The A TREATISE ON THE LAW OF COLLISIONS AT SEA. WITH AN APPENDIX book is carefully arranged and—what is so necessary in a work of
CONTAINING EXTRACTS FROM THE MERCHANT SHIPPING ACT, this description—an ample index has been provided.
The Practitioner's Probate Manual. Containing Instructions as to Since the last edition of Mr. Marsden's useful treatise the Merchant Procedure in obtaining Grants of Probate and Administration. With Shipping Acts have been consolidated by the Merchant Shipping the Rules, Orders, and Fees, and Full Directions as to the Payment Act, 1894, and a new set of rules for preventing collisions at sea have of Probate and Estate Duty. Seventh Edition. Waterlow & Sons come into force. Besides bringing the old edition up to date, Mr. (Limited). 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 Causes. Sixth Edition. By L. D. POWLES, Esq., Barrister-at-Law.
Browne and Powles' Law and Practice in Divorce and Matrimonial records of the High Court of Admiralty, upon which the author has Sweet & Maxwell (Limited); Stevens & Sons (Limited). spent so much useful labour in his edition of them for the Selden Society, shew clearly that those who first applied the rule were Commentaries on the Law of Trusts and Trustees, as Administered evidently at a loss to find in it either principle or reason. The rules in England and in the United States of America. By CHARLES FISK
BEACH, Counsellor-at-Law. In Two Volumes. R. James Berkin- | they are entitled to exercise under the statute without any threat as to shaw,
what may happen if they do not come to a conclusion acceptable to Conveyancing Costs (Rubinstein's). The Solicitors' Remuneration
the Land Registry officials. Act, 1881 (44 & 45_Vict. c. 44), and the General Order made in
For fully thirty years I have been able to deal with my own freehold pursuance thereof. Being a Complete Guide to the Scale of Charges. properties North and South of the Thames, as well as with the proBy WALTER PERKS, Solicitor of the Supreme Court; assisted by perties of others, in all matters relating to the conveyance thereof J. F. C. BENNETT and F. P. CHARLES, Solicitors of the Supreme with ease and celerity. I confess I view, in common with many others,
and Court. Eighth Edition. Revised and Corrected up to date. Water- will necessarily arise when I am handed over to the tender mercies
expense low Bros. & Layton (Limited).
of the officers of the Land Registry.
W. J. FRASER. The Bills of Sale Acts, with an Epitome of the Law as Affected by
2, Soho-square, Dec. 15. the Acts. By HERBERT REED, Q.C. Eleventh Edition. Waterlow Bros. & Layton (Limited).
CASES OF THE WEEK.
Court of Appeal.
Re MASKELYNE BRITISH TYPEWRITER (LIM.), STUART v. SAME
COMPANY. No. 2. 8th Dec. [To the Editor of the Solicitors' Journal.]
COMPANY - DEBENTURE — POWER TO APPOINT RECEIVER CONFERRED UPON Sir,- The article which appeared in the Times of Monday last was no doubt inspired in view of the not unnatural objections which are
DEBENTURE-HOLDER BY REFERENCE TO CONVEYANCING ACT, 1881-POWER
TO BE EXERCISED FOR BENEFIT OF DEBENTURE-HOLDERS EXERCISE OF necessarily being raised to the application of this measure to the
POWER, BY DEBENTURE-HOLDER LARGELY INTERESTED IN THE COMPANY, whole administrative county of London. The details, moreover, were FOR BENEFIT OF COMPANY-JURISDICTION OF COURT TO APPOINT OTHER never discussed in either House of Parliament, simply because RECEIVER, neither House was prepared to go into details, but had to trust to the representations which were made on the subject by those who Vacation Judge, on the 14th of October, 1897, and the other, a con
These were appeals from two orders, the one made by Ridley, J., as were interested in procuring the passage of the measure through sequential order, made by North, J., at chambers, on the 15th of NovemParliament.
ber, 1897. The action was brought by a debenture-holder in the Now that the measure has become law, those authorities to whom has Maskelyne British Typewriter (Limited), suing on behalf of himself and been entrusted the power of determining whether they will have it or all other holders of debentures of the same series (except the London and not are being threatened with the universal application of the Northern Debenture Corporation), and was for the purpose of enforcing measure all over the country if they do not forego the exercise of the the security. Mr. J. M. Maclean, M.P., was chairman of the company, powers expressly conferred upon them by the statute, and accept and also of the London and Northem Corporation. The debentures conthe trial of the experiment in the form in which the authorities The principal moneys were to become payable if a distress were levied on require it to be put in force. What was the use of giving county any of the property of the company and not promptly satisfied, and on councils the opportunity of saying that they do not consider demand of payment by the registered holder. At any time after the compulsory registration of title to be desirable, unless they are to principal moneys had become due the registered holder might, as if he deal with the inatter on its merits ?
were a mortgagee within the meaning of the Conveyancing Act, 1881, But the measure having been passed, although this power has been appoint a receiver or receivers, who should have power to take possession conferred, it is now proposed to coerce the local authorities by telling and to carry on the business of the company. The plaintiff was the them that, if they do not waive their right to consider the question holder of debentures to the amount of £1,870. In October, 1897, a dison its merits—except they agree to a trial—then, whether they like it tress was levied and not satisfied, and before the end of the month the or no, compulsory registration shall be made universal.
company passed and confirmed a resolution for a voluntary winding up, Mr. B. G. Lake, in his paper read at the recent provincial meeting, Akers, the secretary of the company, being appointed liquidator. In insists that the area for the trial experiment should not be too October, also, the plaintiff and the corporation demanded payment of large, and assumes that the whole county of London is not to be this action; and, subsequently, the corporation, under the power in their
their debentures. Payment not being made, the plaintiff commenced selected. As the matter is presented to the authorities, the proposal debentures, appointed a receiver, Akers the secretary, who went into is to try the experiment in the whole of the administrative county of possession. Stuart moved for the appointment of a receiver in the action, London. There is not the slightest reliable or trustworthy guarantee and Ridley, J., appointed Akers receiver in the usual way on giving security. that the trial of the experiment will be confined within reasonable Akers, however, did not consent to this order, but relied upon his appointlimits, supposing a trial to be decided upon.
ment by the corporation, and he continued in possession without giving I do not pretend to say whether the London County Council will security. On the 16th of October Maclean wrote as follows to the comor will not resolve that compulsory legislation is undesirable, but I pany's solicitors : "We were reluctant to use our authority as debenturedo earnestly trust and pray that the trial of the experiment may be holders until we were forced to do so by Mr. Stuart, and have only confined to a reasonable area, which unquestionably the whole of the interfered in order to protect our interests as the largest shareholders in administrative county of London is not; and I venture energetically the company. These interests are the same as those of the whole body of to protest against the authorities holding the threat over land- In November, 1897, an order was made to continue the winding up, under
hope it may still be possible for us to save the concern. owners and others that unless the London County Council agrees the supervision of the court, and another liquidator was appointed. On to the trial, legislative efforts will be made to make the Bill com
the 15th of November, Akers not having given security, North, J., on a pulsory throughout the whole of the country.
summons taken out by the plaintiff, appointed one w. F. Marreco If the Legislature had not intended the county councils to exercise receiver and manager on giving security The corporation appealed an intelligent and independent consideration of the question, why against the orders made by Ridley J., and North, J. was the power to do so conferred upon them? Have the authorities THE COURT (LINDLEY, M.R., and CHITTY and VAUGHAN WILLIAMS, L.JJ.) so little confidence in the real merits of the question that they must thus dismissed the appeal. early resort to threats ? Surely the measure will bear dispassionate
LINDLEY, M.R., said: In this case it appears me that the whole consideration. It is true that one of the most enlightened of the question turns upon the admissibility in evidence of the letter of the 16th vestries of the metropolis is not in favour of granting the measure
of October, 1897, and upon the true inference to be drawn from that. It & trial.
But if the vestry is wrong, the London County Council is necessary, therefore, to say a few words about what I will call the may be trusted to assert their right and to deal wisely with the bargain between the parties, by which term I mean the debenture-holders
themselves as well as the mortgagor company. The mortgagor company question.
wished to borrow money, and for that purpose issued debentures to This is neither the time nor place to refer to the political aspect of (amongst others) the London and Northern Corporation. By the terms of the question, but those who happen to be for the time in office should the debentures the corporation has now the right to appoint a receiver, remember that some consideration is due to those who helped to and as between the corporation and the mortgagor there is nothing more place them in power, and that an unwise and indiscreet exercise of to be said. But we have also to consider on whose behalf the power of the r power may be likely to have a disastrous result when the time appointing ought to be exercised. That power was not conferred for their for the renewal of the trust comes round.
own exclusive benefit, for it is part of the bargain between the parties A special responsibility rests upon Mr. B. G. Lake. It is to be that the whole issue shall rank pari passu. Therefore the right for which hoped that the authorities, having made all the use of him that they themselves and the other debenture-holders, to exercise for the benefit of
the corporation stipulated is a right which they are bound, as between wanted to since the passing of the Act, are not now going the whole of the debenture-holders. They were trustees for themselves entirely to throw him over and to reject his counsel. He is not
and the other debenture-holders. That is the peculiarity of this casegenerally deficient in determination, and I heartily trust that, as he that there is a quarrel between the corporation and the other debentureconsiders a trial of the experiment to be desirable, he will use bis best holders. The plaintiff is the holder of some debentures, and he says that exertions to confine the experiment within reasonable limits, and to although the corporation have a right to appoint a receiver—a right which secure to the London County Council that freedom of action which it would be extremely difficult for the mortgagors to control-yet they
must exercise that right for the benefit of all the debenture-holders, and has been diminished by the amount of interest which would have been not for the benefit of the mortgagor company, or for their own benefit as saved if the security had been realized sooner. The security was a policy holders of shares in that company. That case, I think, is unanswerable for £676 on the testator's life; he had deposited it with other in point of law. If the plaintiff makes out his allegations he can call documents of value with his bankers, and at his death there upon the court to interfere, for in a controversy like this the court, beyond was due to them on those securities £1,700 odd. The policy was all question, has jurisdiction. What we are asked to do is not contrary pledged for much more than it was worth. If the executors had in their to the bargain between the parties ; quite the reverse. It is enforcing hands assets sufficient to pay the debts of the dec sed, including the debt that bargain. The plaintiff is justified, if he can make out that case, in due to the bankers, the executors ought to have paid the bankers off ; and coming to the court and asking it to control the corporation in the if, instead of doing this, they kept assets in their hands and allowed exercise of their power of appointing a receiver so as to secure the carrying interest to run up against the estate, and ultimately had to pay more out of the bargain between him and the other debenture-holders, on whose than they would have had to pay if they had not delayed paying the behalf he sues, and the corporation. The plaintiff alleges that the cor bankers the amount due to them, the executors would have been guilty of poration is really presided over by Maclean, who, he says, is their chair a devastavit, and would be disallowed the interest thus unnecessarily paid man, and their manager and agent in these litigations. I think there is by them. The policy was not assigned to the bankers, and they could not evidence of that if you read Maclean's two affidavits together. I find that give a valid receipt for the policy moneys without the concurrence of the he is the person who is acting for the corporation in these proceedings and executors. Moreover, the insurance office which had to pay the policy giving instructions on their behalf. He is, therefore, their agent for such would not pay the bankers, even with the concurrence of the executors, purposes. Now, we find Maclean writing to the solicitors of the company until the testator's will had been proved. For some reason or other the a very extraordinary letter, dated the 16th of October, 1897, two days executors did not wish to prove it, and although eventually one of them after the corporation had, pursuant to the power conferred by the deben did prove the will, the other has not proved it yet. As soon as the will tures, appointed Akers receiver. The meaning of that letter clearly is was proved the bankers, or, rather, a person to whom they had assigned that the corporation had made the appointment, not to protect their co their debt and their policy, obtained the policy moneys, with the assistdebenture-holders, but to protect their own interests as the largest share ance of the executor who had proved, and the debt was reduced by the holders. The language convinces me that it had been done, not in the amount received from the insurance office. It must not be overlooked interest of the debenture-holders at all, but in the hope that it might still that although the executors’ accounts have not yet been certified, they have be possible to save the company. Now, I regret that Mr. Maclean, who been fully investigated, and there is no proof even now that the executors is abroad, has not had an opportunity of commenting upon that letter. did wrong in not paying off the bankers and so reducing the policy and We can only act upon the evidence before us, and on that evidence I think getting in the asset which it represented. In the absence, however, of the plaintiff's allegation is absolutely made out. If so, it is not only such evidence I am unable to see how a case of wilful default can be within our jurisdiction, but it is certainly right and proper for us to hold established. If debts are paid in the wrong order to the detriment of the that, since the corporation have exercised their power, not for the pur. creditor the executor is of course answerable. The payment would be pose of protecting the interest of the debenture-holders, but for a purpose disallowed in taking the account of the receipts and payments. But the adverse to that interest, it is competent for the plaintiff to apply for the payment of debts even in a wrong order is not a wrong entitling a appointment of another receiver. I think this is a case in which it is legatee to relief, nor does such payment amount to wilful default; and proper for the court to exercise its jurisdiction and protect the plaintiff by it is wilful default which we have to consider here. It is urged that it is appointing the receiver so asked for.
the duty of an executor to prevent any loss to his testator's estate which CHITTY and VAUGHAN WILLIAMS, L.JJ., delivered judgment to the same it is in his power to prevent. But this proposition is far too wide, as is effect.— COUNSEL, Vernon Smith, Q.O., and W. F. Hamilton ; Swinfen Eady, showu inter alia by Turner v. Turner (1 Jac. & W. 39), in which it was Q.C., and F. Whinney. SOLICITORS, Baker, Blaker, f Hawes ; Chester & Co. held that an executor's right of paying one creditor before another justified [Reported by R. C. MACKENZIE, Barrister-at-Law.!
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 Re STEVENS, COOKE v. STEVENS. No. 2.
estate was diminished by the additional interest which had ultimately to be 9th, 10th, 11th Nov.; borne. A wrongful payment is one thing, and can be set right by dis9th Dec.
allowing it when the executor brings in his account. But if it is sought EXECUTOR-ACTING
PROBATE-DELAY PROVING WILL, to charge him with loss attributable to some other breach of duty, call it RECOVERING OUTSTANDING ASSETS-WILFUL DEFAULT.
wilful default or by any other name, such breach of duty must be proved, Appeal from a decision of North, J. (reported 45 W. R. 284; 1897, and if no sufficient proof or even prima facie evidence of it is given it is not 1 Ch. 422). Gardner Christopher Stevens made his will on the 12th of right to insert in the judgment any declaration of liability, or even an February, 1880, and appointed Charles Frederick Stevens, Matthew Sallitt inquiry as to liability based upon such supposed breach of duty. In the Emerson, and John Sewell executors. The testator died on the 23rd of present case no evidence of any such breach of duty has been given, and December, 1882, and the will was proved by O. F. Stevens alone on the the attempt to charge the executors with more than they have received has 15th of October, 1889. The testator was entitled to a policy of £676 in failed. Whether any payment, by which the executors seek to discharge the Scottish Widows' Assurance Office payable on the 21st of March, 1883. themselves, ought or ought not to be disallowed must be decided hereThis sum was paid on the 18th of November, 1889, with £45 18. 40. after. That question is not before us now. This appeal fails, and must interest at the rate of 1 per cent. from the 21st of March, 1883, to the be dismissed with costs. I have preferred to base my judgment on the 21st of November, 1889. The policy was mortgaged to the testator's above ground rather than to investigate the question whether executors bankers, Messrs. Gurney, as security, and was in their possession at the who delay proving their testator's will can be rendered liable for losses time of his death. Meanwhile interest at the rate of 5 per cent. was
which they could have avoided if they had proved it earlier. In the paid upon the mortgage debt due by the testator, and the difference in present case the will has been proved by one of the defendants, and the interest thus paid and received was £157 14s. 8d. Emerson was a court, therefore, has the probate before it. The probate shows that both solicitor and denied that he had acted as an executor, but he had acted as
defendants are appointed executors by the will, and it is proved that both solicitor for Stevens, who subsequently proved the will with regard to
of them have accepted the office of executor by acting in the administracertain actions against the estate of the testator. All the three executors tion of the testator's estate. Under these circumstances I fail to see upon named in the will wrote a letter to the Scottish Widows' Assurance Society what principle they can derive any benefit from delaying to obtain on the 28th of July, 1883, requesting that the policy moneys might be probate. It appears to me that, having accepted office, they ought to be paid to Messrs. Gurney, being creditors of the testator, but the society treated as executors as from that time, and not simply as executors de son declined to make the payment until probate was taken 'out. The action tort, as their counsel contended. It is unnecessary, however, to pursue was brought by one of the residuary legatees asking for an administration this inquiry. The appeal must be dismissed with costs. decree against both Stevens and Emerson upon the footing of wilful CHITTY, L.J.-North, J., has dismissed the action so far as it claims default. North, J., directed the ordinary accounts to be taken against relies, on the footing of wilful default, and has made against both the both the defendant executors, but declined to make any order on the defendants, Stevens and Emerson, as executors, the common decree under footing of wilful default. The residuary legatee appealed.
which they have to account for assets received. The will was not proved THE COURT LINDLEY, M.R., and CHITTY, and VAUGHAN WILLIAMS, until 1889, nearly seven years after the testator's death, when probate was LJJ.) dismissed the appeal.
obtained by Stevens alone. The probate shews that Emerson also was Dec. 9.--LINDLEY, M.R.-In this case a residuary legatee has brought appointed executor. North, J., has held that he accepted the office by an action against his testator's executors seeking not only the ordinary intermeddling with the assets in 1883. There is no appeal from this part accounts of their receipts and payments, but also an account against of the judgment. The statement of claim raised several cases of them on the footing of wilful default. So far as the plaintiff seeks to devastavil or of wilful default against the executors; but the appeal is charge them with wilful default the action has been dismissed with costs, confined to two. The first is the case of Clarke, an alleged debtor, which and from this decision the plaintiff has appealed. The testator's assets may be disposed of in a few words. The plaintiff, who is one of several got in by the executors are said not to be sufficient to pay his debts. Hence residuary legatees, failed to prove that there was any debt owing by the importance of the case to the plaintiff. Two acts of wilful default Clarke. Proof of the debt is the foundation of a wilful default decree. are relied upon and have to be considered. The first is that the executors When the debt is proved the burden is thrown on the executor to shew omitted to get in a debt alleged to have been due to the testator at his why he did not get it in: Styles v. Guy (1 Mac. & G. 422) and Re Brogden, death from a person named Clarke. The facts as to this are complicated Billing v. Brogden (37 W. R. 84, 38 Ch. D. 546). I am satisfied by the and the pleadings are somewhat embarrassing. But, having regard to the judge's notes and the statements of counsel that, although the £4,000 mode in which this part of the case was dealt with in the court below, it promissory notes given by Clarke to the testator were mentioned, the only would be unjust to the defendants to treat the pleadings as admitting substantial contest before North, J., was confined to the £395. The that there was such a debt, and so far as evidence goes no such debt was evidence put in, consisting of the agreement and the valuation, coupled proved either before North, J., or before us. The next act of wilful with the admission that notes for £4,000 only were taken, and the fact that default charged was the omission on the part of the executors to enable a Clarke was in court and could have been called by tho plaintiff, all went secured creditor of the testator to realize his security sooner than he to shew that the £395 was not owing at the testator's death. The inferdid. The consequence of this omission was that the testator's estate ence was that that sum had been paid or satisfied in the testator's lifetime,
The other case relates to the policy for £676, which became payable in that any of the residuary legatees could have cited them to take or refuse March, 1883. This policy was mortgaged by the testator with other probate. It would seem that this is the only remedy against executors securities for an amount far exceeding the sum recoverable under the for not taking out probate. policy. The mortgage, which was held by the testator's bankers, was VAUGHAN WILLIAMS, L.J., gave judgment to the same effect. Appeal effected by a deposit of the policy and a memorandum. As there was no dismisded.-COUNSEL, Butcher, Q.O., and Methold; Swinfen Eady, Q.O., assignment of the policy within the Policies of Insurance Act, 1867, the and Christopher James. SOLICITORS, S. S. Seal, for Steavenson, Darlington ; bankers could not sue the insurance office. The right of action at law Whitef Co., for Emerson, Norwich. remained vested in the executors. But inasmuch as the policy was
[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.] 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
High Court-Chancery Division. evidence or even suggestion that the mortgagees would have consented to the receipt of the moneys by the executors. The only proceedings which BOORD v. AFRICAN CONSOLIDATED LAND CO. North, J. 10th Dec. they could have taken against the bankers or their assignees, Mann, was an action to redeem in which they might have joined the insurance ofice COMPANY–Register— INSPECTION-COMPANIES Act, 1862 (25 & 26 Vict. c.
89), s. 32. as defendants. The result appears to be this; the executors could not be charged under what is termed
wilful default This was a motion by two shareholders in the defendant company askdecree. Under such a decree the executors charged with ing for an injunction restraining the company from refusing to allow them what they have received or might have received but for their wilful to inspect the register and take copies of it. The plaintiff's shares had default or neglect. But the case does not rest here. If on the facts been forfeited by the company. The names of shareholders whose shares proved a case of devastavit by negligence is established other than what purported to be forfeited had a red line drawn through them, but the is technically termed wilful default, the court ought to make the proper company contended that the name, although still able to be read, did not declaration against the executors. The loss alleged is the difference form part of the register. Holland v. Dixon (37 Ch. D. 669), Mutler v. between the interest allowed by the insurance office and the interest Eastern and Midland Railway Co. (38 Ch. D. 92), and Nelson v. Anglowhich the mortgage debt carried, a difference of 4 per cent. The charge American Land Mortgage Co. (1897, 1 Ch. 130) were cited in support of the made by the plaintiff's pleading is not merely for wilful default, it is also plaintiffs' application. The company denied the right of the plaintiffs to for a devastavit. I pause for a moment to say that on taking the common take copies, and said that, as their shares had been forfeited, they had account of their receipts, executors can properly be and are often charged ceased to be shareholders. with a devastavit arising on the accounts themselves. On taking the NORTH, J.-The present application is that the company may be account they stand charged with their receipts; and if they seek to dis- restrained by injunction from preventing the plaintiffs at reasonable times charge themselves by unlawful payments their discharge is disallowed. inspecting and taking extracts from the register. The case is, in my Further, if on taking the accounts it appears that the executors have im- opinion, covered by authority. Where there is power to inspect the properly retained balances in their own hands, they are liable to be register there is power to take copies. Holland v. Dixon and Mutter v. charged interest on the balances, although no such charge is raised on Eastern and Midland Railway Co. are clear authorities, unless there is a the pleadings. For this purpose an additional inquiry is generally distinction, because this is an application section 32 of the Companies Act, directed. The charge of interest, when it is made by the court, rests 1862. It is said as the plaintiffs can have a copy if they pay the company upon the foundation of a devastavit. Where a charge of the nature now for it, their right to take copies is excluded. In my opinion the power to under consideration is made by the pleadings, the general rule is that it call on the company to give copies is an additional privilege, the plaintiffs ought to be disposed of at the trial (see Smith v. Armitage, 24 Ch. D. 727, can take notes as well as call on the company to give them copies, and 31 W. R. Dig. 78). But the rule is not universal, and there may be, and the right to inspection is clear. The plaintiffs must have the costs of the are, cases where it would be proper to direct an inquiry. The plaintiffs' motion in any event. COUNSEL, Swinfen Eady, Q.C.; Stewart Smith ; counsel on this appeal ask for a declaration of liability, or, in the alterna Vernon Smith, Q.C.; W. Higgins. SOLICITORS, Wyatt, Digby, f Co.; tive, for an inquiry. Now, in this case there is the fact that an order for Burgoyne, Watts, f. Co. administration against Stevens alone had been made at the instance of
[Reported by G. B. HAMILTOX, Barrister-at-Law.] 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 Will-LEASEHOLDS-LEGAL TENANT FOR LIFE-LIABILITY FOR RENT AND
Re TOMLINSON, TOMLINSON V. ANDREW. Kekewich, J. 14th Dec. the proceedings under it in this action. It is plain that the numerons charges in the plaintiff's pleadings in this action are in great measure
REPAIRS-TENANT FOR LIFE AND REMAINDERMAN. founded upon a knowledge of the accounts in the former action. The By his will dated the 19th of January, 1891, Charles Tomlinson gave charge against the executors resolves itself into a charge that they and bequeathed to his niece Mary Tomlinson (inter alia) the house in were answerable to the plaintiff and other the residuary legatees for loss which he then resided, being No. 7, North-road, Highgate, for the term arising from their negligence in not paying off sooner than they did the of her natural life" and after her death to go to George Andrew and his interest-bearing debt secured by the mortgage. This charge does not wife, my niece, Mary Andrew, for their benefit and that of their family appear to me to rest upon the question whether it was their duty to have of children.” In a letter to the said Mary Tomlinson dated the 20th of proved the will sooner than they did. I will assume that they cannot set June, 1894, which was admitted to probate as a codicil to the said will, up their delay in proving the will as a defence, and that they stand in the the testater wrote as follows: “I leave you in absolute possession of the same position as if they had both proved the will in 1883, when, by inter- house and furniture and monetary residue for the remainder of your life.” meddling, they accepted the office. But to make good the proposition that The house referred to was a leasehold house held by the testator under an the executors are liable for not paying off the mortgage, or in other words indenture of lease dated the 28th of December, 1867, for the term of for not redeeming it, it is incumbent on the plaintiff to shew that the ninety years from the 25th of December, 1867, at a yearly rent of $10. The executors had assets which they were bound to apply in redemption of the lease contained the usual covenants by the lessee to pay the rent, rates, mortgage. I say "bound to apply" advisedly, because here there comes and taxes, to insure, keep in repair, and paint, and to deliver up at the in the right of an executor to prefer one creditor to another of the same end of the term in good and substantial repair. Neither the will nor degree at any time before a decree for administration is made by a court codicil contained any provisions relating to the house other than those of equity. Some few years ago an attempt was made to interfere with above stated. The testator did not appoint trustees of his will. The this right by appointing a receiver ; but it is now established that a testator died on the 15th of February, 1897, and his will and codicil were receiver ought not to be appointed merely for the purpose of depriving the duly proved. This was a summons taken out by his executrix, the said executor of his right of preference. It suffices to refer on this point to Mary Tomlinson, for the determination (inter alia) of the following Stirling, J.'s, decision in Re Wells, Molony v. Brooke (39 W. R. 139, 45 question-viz., whether upon the true construction of the will and codicil Ch. D. 569), where the authorities are cited and dealt with. Where an the plaintiff Mary Tomlinson was liable to pay the rent reserved by, and executor has assets in his hands which he ought to apply in payment of perform the covenants by the lessee contained in, the said lease under an interest-bearing debt he is liable for the loss to the estate occasioned which the said house was held, or by whom the same ought to be paid and by his upjustifiable neglect and delay in paying the debt (see Seaman v. performed. On behalf of the plaintiff it was argued that the tenant for Dee, Administrator of Everad, 2 Lev. 40). But he is not liable for loss life was entitled to enjoy the house free from liability on the coveaccruing to the estate by reason of his paying, in exercise of his right to nants, and the following cases were referred to : Re Courtier (35 W. R. 85, prefer, a non-interest-bearing debt before an interest-bearing debt. This 34 Ch. D. 136), Ré Baring (41 W. R. 87; 1893, 1 Ch. 61), and Re Redding is established by Turner v. Turner (1 J. & W. 39) and by Robinson v. (45 W. R. 457 ; 1897, 1 Ch. 876); Hickling v. Boyer (3" Mac. & G. 635), Cumming (2 Atk. 409), where the executor's claim for fifteen years' interest and Re Hotchkys (34 W. R. 569, 32 Ch. D. 408). on his own interest-bearing debt was allowed. The plaintiff has not KEKEWICH, J.-- This case differs from the cases cited in that here we proved or attempted to prove that the executors had at any time before have a direct gift to the beneficiary. It has been argued that this being the actual payment of the mortgage debt assets in hand sufficient for its a direct gift must be a gift cum onere, and all the more so because there payment, much less that they had assets which they were bound so to are no trustees. The answer to that is, to my mind, that this being a apply. There is not even an allegation to any such effect in the plaintiffs' lease of the testator's, he is liable to perform the covenants of the lease, statement of claim. For these reasons I think that no declaration of and this liability is a burden on his estate, and his executors are bound to the executors' liability ought to be made, and on the facts that no discharge it and to see that it is discharged. The executors would be sufficient ground has been shewn for granting an enquiry. It will be liable in an action on the covenants, and if they are, there is no substance observed that I have not rested my judgment on any supposed duty of in the argument that they cannot enter upon the property to do the the executors to obtain probate. It may be that their delay in obtaining repairs ; they are entitled to say to the tenant for life that they must probate would not afford any defence to a charge of wilful default or of come on to the property to do them. I think I am bound to adhere to the negligence for wbich otherwise they were accountable. My opinion is view I took in Ře Baring of Re Courtier, and to decide this question on the that it would not. It is plain that the mortgagees, being creditors, and general law. A case before Lord Truro has been referred to, but I do