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not criticize that case, because I am bound to follow Re Courtier, which I must take as my guide; therefore, I think that the plaintiff is not under

Winding-up Cases. any liability in respect of the rents and covenants of the lease.- COUNSEL, Cann; Henry Terrell, Q.O., and Oswald. SOLICITORS, Charles Sawbridge &

BARTLETT v. MAYFAIR PROPERTY CO. (LIM.) 9th and 10th Nov. Son.


COMPANIES Act, 1879 (42 & 43 Vict. c. 76), s. ij. THE LEEDS AND HANLEY THEATRE OF VARIETIES (LIM.) v. The Mayfair Property Co. (Limited) was registered in August, 1892, BROADBENT. Kekewich, J. 10th Dec.

with a capital of $50,000 divided into 5,000 shares of £10 each. The MORTGAGE— PUNCTUAL_PAYMENT OF INTEREST-PAYMENT WITHIN Reason- memorandum and articles of association authorized a charge being made ABLE TIMB-INJUNCTION RESTRAINING SALE.

on uncalled capital. On the 12th of September, 1892, the following special

resolution was passed : “That such portion of the company's capital as This was a motion for an injunction to restrain the defendants from consists of £5 per share remaining uncalled upon all the ordinary shares selling or advertising for sale certain premises comprised in an indenture of the company shall not be capable of being called up, except in the of mortgage dated the 15th of February, 1897, and made between the event of and for the purposes of the company being wound up in accordplaintiffs of the one part and the defendants of the other part. The facts ance with the provisions of the Companies Act, 1879.". The section of the were shortly as follows: In February, 1897, the defendants sold " The Act referred to which applies to a limited company is as follows:. “A Empire" theatre at Hanley to the plaintiffs, and by the above mentioned limited company may by a special resolution declare that any portion of mortgage the plaintiffs mortgaged the same to the defendants to secure its capital which has not already been called up shall not be capable of £7,000 and interest at £5 per cent. There was a clause in the mortgage being called up, except in the event of and for the purposes of the deed to the effect that the principal money should not be called in for a company being wound up.” The resolution was confirmed on the 12th period of three years if in the meantime every half-yearly payment of of October, 1892. In June, 1894, the company issued mortgage debeninterest should be punctually paid. The first half-yearly payment of tures puporting to charge all its property whatsoeyer and wheresoever, interest fell due on the 15th of August, 1897, and on the 16th of August both present and future, including its uncalled capital for the time being. the defendant Broadbent, not having received a cheque, wrote to the This action was commenced in August, 1896, on behalf of the debenturesecretary of the plaintiff company asking for immediate payment. The holders and a receiver was appointed. A compulsory winding-up order secretary replied stating that he would submit the matter to the next was made against the company about the same time. The question at board meeting. Broadbent was not satisfied and wrote again on the 20th issue was whether the mortgage debentures were a first charge on this of August giving notice that he called in the principal money at the end of unpaid capital, which had been called up by the liquidator in the three months. The receipt of this letter was acknowledged by the secretary, winding-up, or whether the special resolution in 1892 and section 5 of the but as no cheque was forthcoming, Broadbent telegraphed to the secretary Companies Act, 1879, prevented the uncalled capital of £5 per share being threatening to issue a writ unless the interest due was remitted on that charged by the debentures. day. Thereupon a cheque was received by Broadbent from a third party WRIGHT, J., held that prima facie the language of the section meant who had no standing in the plaintiff company, and who subsequently, on what it said, it created a statutory inability to call up capital except for the 22nd of September, wrote to Broadbent to know if he intended to act winding-up, and that, therefore, these mortgage debentures were not a upon his notice to the company. Broadbent replied that such was his first charge on the uncalled capital.--Counsel, R. F. Norton (Swinfen intention. On the 15th of November the solicitor to the company wrote Eady, Q.Ö., with him); Farwell, Q.C., and G. Henderson. SOLICITORS, to Broadbent disputing the validity of his notice, and on the 22nd issued the Munns f Londen ; Mackrell, Maton, Godlee, f Quincey. writ in the present action claiming a declaration that the defendants were

[Reported by C. W. Mead, Barrister-at-Law.] not entitled to require payment of the principal moneys under the mortgage deed.

KEKEWICH, J., held that in the circumstances punctual payment must be taken to mean payment within a reasonable time, that in his opinion

High Court-Queen's Bench Division. the plaintiff company had procured the payment within a reasonable time, and that they were entitled to the injunction.--COUNSEL, Warrington, Q.C., LONDON COUNTY COUNCIL V. DAVIS; THE SAME v. ROWTON and Church; Bramwell Davis, Q.C., and A. J. Allen. SOLICITORS, George

HOUSES (LIM.). Div. Court. 9th Dec. B. W. Digby; Goodale $ Hobson, for Butterworth, Rose & Morrison, Swindon. METROPOLIS–New BUILDINGS-DWELLING-HOUSE TO BE INHABITED (Reported by R. J. A. MORRISON, Barrister-at-Law.]


LONDON BUILDING Act, 1894 (57 & 58 Vict. C. CCXIII.), s. 13. 4th Dec.

Cases stated by metropolitan police magistrates. The question in each WILL-ABSOLUTE GIFT-SHARE SETTLED BY CODICIL “INSTEAD OF GIFT”

case was whether the respondents were bound to set back their buildings IN WILL-No REVOCATION.

as required by section 13 of the London Building Act, 1894. That section

prohibits the erection of new buildings within a prescribed distance of the Adjourned summons. David Wilcock, by his will, dated the 10th of centre of the roadway of a street, being a high way; sub-section (5) conOctober, 1840, gave and bequeathed all his personal estate not otherwise tains an exception in favour of buildings to be erected upon the site of disposed of unto his two daughters, 8. and H., share and share alike, and buildings existing at the commencement of the Act or within seven further directed that each of his said two daughters should have and be years previously in cases where plans of such old buildings have been subpaid £1,000 on their respective days of marriage, part of their respective mitted to and certified by the district surveyor; but upon the exception shares. By a codicil the testator proceeded to revoke the gifts of 1,000, there follows the proviso that "no dwelling-house to be inhabited or and" instead of such bequests in the manner expressed in my said will to adapted to be inhabited by persons of the working class shall, without such daughters absolutely," directed bis executors to hold his personal the consent of the council, be erected or re-erected within the prescribed estate on trust for sale and conversion and pay one moiety of the income of distance to a height exceeding the distance of the front or nearest external the proceeds to each daughter respectively, and upon their respective deaths wall of such building from the opposite side of such street, and that no to hold one moiety of the fund on trust for the children of the one so dying building or structure shall be converted into such dwelling-house within as she should by deed or will appoint, and in default among such children the prescribed distance so as to exceed such height." In Davis's case there equally. There was no gift over in the event of either daughter dying existed, before the commencement of the Act, upon a piece of land witbout issue. H., a daughter, died a widow without ever having had fronting on a street which was a highway, a row of shops with living issue, and the question was whether there was an intestacy as to the rooins behind and on the upper floors; these were within the prescribed moiety wbich had been given to her absolutely by the will, but in which distance from the centre of the roadway. In 1895 Davis submitted plans under the codicil she only took a life interest.

of the old buildings to the district surveyor, and these were duly certified ROMER, J., said, after considerable doubt, he had come to the conclusion by him under section 13 (5); he also gave notice of his intention to erect that there was no intestacy as to the daughters' share in question. The on the site new buildings described as “domestic buildings, to be used as principles governing the case were-first, that referred to by Lord Cairns shops and dwelling-houses." The new buildings were erected and did in Kellett v. Kellett (L. R. 3 H. L. 160), where he said : “The principle is not extend beyond the site or the frontage line of the old buildings. The perfectly clear that where you have a distinct disposition made by a will, county council required him to set back one of the new buildings. that disposition cannot be revoked by a codicil except through the Davis had let the whole building to a working clockmaker, and the upper medium and use of words equally clear and distinct.” The other rooms, which were fitted up as living rooms, were sub-let by Davis's principle was that pointed out by Lord Cottenham in Lassence v. Tierney (1 tenant to three cabinet-makers, who lived there with their families. The Dlac. & G. 551), that "If a testator leaves a legacy absolutely as regards question was whether the building was "to be inhabited or adapted to be his estate, but restricts the mode of the legatees' enjoyment of it to inhabited by persons of the working class." The magistrate dismissed the secure certain objects for the benefit of the legatee, upon failure of summons of the county council, holding that “to be inhabited" meant such objects the absolute gift prevails.” In his lordship's opinion the intended at the time of erection to be inhabited,” and that " adapted” words in the codicil, " instead of such bequests in the manner expressed meant “specially constructed or arranged," and that under the circumin my said will to such daughter absolutely” were meant to point, not a stances stated the building did not fall within the proviso to section 13 (5), total substitution of the new gift for the old, but merely to a modification above set out. In the case of Rowton Houses (Limited) the new building of the old, gift, and that the same meaning should be given to the word complained of occupied the site (and no more) of thirteen old dwelling: " instead” as was given in Doe d. Murch v. Marchant (6 M. & G. 813). On houses existing within the prescribed distance at the commencement of these grounds bis lordship held that there was no intestacy.-Counsel, the Act; plans of the old buildings were submitted and certified as in H. Greenwood; Farwell, R.O., and Pattullo; Neville, Q.C., and E. F.

Davis's case, and the new building was described in the notice as “ a public Spencer ; Levett, Q.C., and Mark Romer. SOLICITORS, Windybank, Samuell, building to be used as a lodging-house for men. It was adapted to pro& Behrend, for Simpson & Denham, Leeds ; R. H. Behrend; Ince, Colt, & vide board and lodging for single men at a cheap rate by the night or Ince, for Carter, Atkinson, f Bentlej, Pontefract.

week, and had sleeping accommodation for about 800 men, and the [Reported by RALEGI B. PHILLPOTTS, Barrister-at-Law.!

cubical contents exceeded 25,000 cubic feet. The magistrate found that

the building was adapted to be inhabited by persons of the working class, according to a form to the like effect: (2) if default is made in complying although it was not exclusively reserved for or used by persons of that class, with the requirements of this section with respect to the delivery or send and that it was properly described as a poor man's hotel, and that it was ing of a ticket or note,

the seller of the coal shall be liable to a a “public building” within the definition in section 5 (27), and not a fine not exceeding five pounds." Section 22 (1): “Where any quantity

dwelling-house" within the definition in section 5 (25) or within section of coal exceeding two hundredweight is conveyed for delivery on sale in 13 (5) ; be therefore dismissed the summons. The county council appealed a vehicle in bulk, the seller of the coal shall cause the weight of the in both cases.

vehicle, as well as of the coal contained therein, to be previously ascerThe COURT (HAWKINS and CHANNELL, J.J.) dismissed both appeals. tained by a weighing instrument stamped by the inspector, and being on

HAWKINS, J., after referring to the facts in Davis's case, said : The or near to the place from which the coal is brought, and shall from time real question is what is the meaning of the words "to be inhabited or to time cause the true weight of the vehicle to be marked thereon ; (2) in adapted to be inhabited by persons of the working class." I think that any such case the seller of the coal shall insert or cause to be inserted in the the words “ to be inhabited ", mean“ intended to be inhabited”-viz., so ticket required by this Act to be given by him a statement of the correct intended by the person who erects the dwelling-house; if the person who weight of the vehicle, or of the vehicle and of the animal drawing it erects the house intends it to be inhabited by persons of this class the where both are weighed together with the load, as well as of the correct case would come exactly, within the terms of the proviso. Then the weight of the coal contained in the vehicle," under a fine not exceedwords “ adapted to be inhabited ” I take to mean structurally adapted ing five pounds. Then the form of the ticket in the schedule provides to be inhabited,” and nothing more. In this case there is nothing to for the weight of the coal and vehicle, and the tare weight of the vehicle. shew that when the house was built it was either intended or structurally At the hearing before the justices on the 14th of January, a police-conadapted to be inhabited by persons of the working class. It was said that stable, who was an assistant to the inspector, was called, and he proved the manner in which the house was actually used was ev nce of the that on the day in question he met the appellants’ cart loaded with coal, intention with which it was built. I agree that if it be shewn that a that he followed it to a house and there saw the coal delivered and a ticket house was at the time of its erection specially adapted to be used in a at the same time delivered to the purchaser of the coal by the appellants' particular way and that it was afterwards actually so used, that would be carter, which ticket showed the appellants' horse and cart to weigh a strong case as to the intention. But here I do not think there was 29cwts. ; that he then took the horse and cart to the weighing machine evidence on which the magistrate was bound to find that this house was at the railway station and there caused them to be weighed, when the built with the intention that it should be inhabited, or even that it was in weight was shewn to be 28cwts., 3grs., or a difference of 28lbs. (in favour fact inhabited, by persons of the working class. There was no special of the purchaser) between the weight shown upon the ticket and that adaptation for inhabitation by any particular class ; it is simply a shop registered by the machine at the station ; the cart was not weighed apart with the upper floors utilized in the ordinary manner. In the case of from the horse. There was no dispute about the facts, which were taken to Rowton Houses the county council took the view that, though it was a case be as above stated. The justices convicted the appellants of an offence in which their consent ought to be given if asked for, they must refuse to under sub-section 2 of section 22, and fined them in a sum of 20s. and allow the building to remain unless the respondents' would adopt their 10s. 6d. costs. The question now was whether the conviction under subview of the law and abandon their own and ask for consent. I cannot section 2 was correct. For the appellants it was contended that there was understand that view. The magistrate has found that this is a poor no evidence to support the conviction ; that the 2nd sub-section required man's hotel and also that it is a public building, and, therefore, not a the correct weight of the vehicle, or of the horse and vehicle, to be inserted dwelling-house within the meaning of the Act. I do not quite agree in the ticket, and that there was no evidence that this was not done ; that with this last view. I conceive that a building may be a public building the correct weight meant the correct weight, not at the time when the and yet a dwelling-house within the Act. But this does not seem to me coal was delivered to the purchaser, but at the time the vehicle was to be a building constructed with the intention that it shall be inhabited weighed before being sent out at or near the place from which the coal by persons of the working class ; it is built for the accommodation of any was brought. For the respondent it was contended that by.“ correct class which may choose to use it. I think, therefore, that this appeal also weight” in sub-section 2, was meant the correct weight at the time of the must be dismissed.

delivery of the coal to the purchaser, and as the weight inserted in the CHANNELL, J., said that the point of the main enactment in section 13 ticket was not the correct weight when the coal was delivered to the pur(5) was that as to sites occupied at the commencement of the Act the chaser, an offence under sub-section 2 was committed, and that the conowner was not to have his existing rights taken away. Then the effect of viction was therefore right. the proviso was that if the owner was going to build a certain class of The Court (HAWKINS and CHANNELL, JJ.) allowed the appeal, and buildings he was to be subject to some restriction; what was dealt with quashed the conviction. was the time of the erection of the buildings, not the subsequent user ; if HAWKINS, J.-I think this conviction ought to be quashed, and for this there were an improper user of the buildings, that could be dealt with

The weighing evidently implied in section 21 is a weighing before under the Public Health (London) Act, 1891. If the house was built the coal is sent out, and the section says that a ticket is to be sent accord. with the intention that it should be inhabited, or so as to be structurally ing to the form in the schedule, and referring to the schedule we see the fitted to be inhabited, by the working classes it was within the proviso; form provides for the weight of the coal and vehicle and the tare weight the object was to give reasonable air space in localities inhabited by a class of the vehicle; and the section also provides that the ticket is to be of people amongst whom overcrowding was likely to occur. [His lordship delivered, or is to be sent by post or otherwise, to the purchaser or his then dealt with the facts of each case, and held that in neither case did servant. Then, reading sections 21 and 22 together, it is clear that the the building fall within the proviso as interpreted by him.] As to the ticket which is to be delivered under section 21 is the ticket which is view taken by the magistrate in the case of Rowton Houses (Limited) it was referred to in section 22, and I am satisfied tbat there was no intention wrong to say that because the definition of “domestic building” included that there should be two tickets, but that the ticket in which the correct a" dwelling house" and excluded a “public building" therefore a public weight of the vehicle is to be stated under section 22 (2) is the ticket probuilding could not be a dwelling house; that was a wrong use to make of vided for in section 21, and I have no doubt that the object was that the the interpretation clause. He agreed, however, with the opinion of the weighing of the vehicle should take place before it was sent out "at or magistrate that the building was not a dwelling house to be inhabited or near the place from which the coal is brought," and the ticket, with the intended to be inhabited by persons of the working class. He also weight of the vehicle inserted in it, as so ascertained, was to be sent by thought that where, as in this case, the building was clearly not within post or at the option of the seller was to be given to the purchaser at the the mischief of the Act a public body ought not to administer the Act time. The result of the weighing by the constable was to shew that the harshly and to attempt to force the owners to apply for consent contrary to purchaser obtained twenty-eight pounds of coal too much. I think the their view of the law.-COUNSEL, Horace Avory and Daldy; Cripps, Q.C., conviction was wrong for the simple reason that there was no evidence at and Marshall Hall; Macmorran, Q.C., and Roskill. SOLICITORS, W. A. all to support it, and no proof that the ticket was erroneous in any Blaxland; Hanbury, Whitting, & Nicholson ; Ashurst, Morris, Crisp, & Co. respect. I think, therefore, the conviction ought to be quashed. [Reported by T. R. C. DILL, Barrister-at-Law.]

CHANNELL, J.-I am of the same opinion. The section in question

clearly refers to a previous weighing, and the ticket was to be sent with KNOWLES & SON (Appellants) v. SINCLAIR (Respondent). Div. Court. the result of that previous weighing inserted in it. The expression 9th Dec.

“correct weight” in sub-section 2 means the correct weight as ascertained

at a time previous to the time when the coal is delivered to the purchaser WEIGHTS AND MEASURES-COAL-SALE or–TICKET GIVEN ON SALE or re-weighed at his request.-COUNSEL, Willes Chitty; Loehnis. SOLICI

“ CORRECT WEIGHT OF VEHICLE-WEIGHTS AND MEASURES Act, 1889 TORS, Sharpe, Parkers, & Co., for Richardson & Marsh, Bolton; Rowoliffes, (52 & 53 Vict. c. 21), s. 22 (2).

Rawle, & Co., for J. Hall, Bury. Case stated by justices for the county of Lancaster. An information

[Reported by Sir SHERSTON BAKER, Bart., Barrister-at-Law.! was laid by the respondent, an inspector of weights and measures, against the appellants, who are colliery proprietors carrying on business at Little

REG. v. WEST. C.C.R. 11th Dec. Lever, near Bolton. The information was originally laid under subsection 1 of section 22 of the Weights and Measures Act, 1889, but at the CRIMINAL LAW--CRIMINAL LAW AMENDMENT Act, 1885 (48 & 49 Vict. C. hearing it was amended into an information under sub-section 2 of that

69), ss. 5, 17-COMMENCEMENT OF PROSECUTION. section, and the summons was treated as having been taken out under Case stated by Sir Walter Phillimore, Bart., Commissioner of Assize. sub-section 2, for not having stated in the ticket given by the appellants The prisoner was committed by the magistrates on the 27th of July, 1897, on to the purchaser on a sale of coal by the appellants to the purchaser, the a charge of rape alleged to have been committed on the 19th of July. The correct weight of the vehicle, or of the vehicle and animal drawing it, depositions appearing not to warrant such a charge, the bill laid before contrary to the provisions of that sub-section. Section 21 (1) provides : the grand jury at the Durham Assizes on the 22nd of November, and the “Where any quantity of coal exceeding two hundredweight is delivered indictment found by them, was for an offence under section 5, sub-section by means of any vehicle to a purchaser, the seller of the coal shall there- (1), of the Criminal Law Amendment Act, 1885, against a girl over with deliver, or cause to be delivered, or to be sent by post or otherwise, thirteen and under sixteen years of age. It was contended on behalf of to the purchaser or to his servant, before any part of the coal is unloaded, the prisoner that an acquittal ought to be directed on the ground that the a ticket or note according to the form in the third schedule to this Act, or section referred to provides that “no prosecution shall be commenced


for an offence under sub-section (1) of this section more than three bis finding on it would not be interfered with by the court. The months after the commission of the offence,” and that the prosecution for learned judge agreed that the custom set up on behalf of the plaintiff the offence alleged in the indictment was not commenced until the bill would not be unreasonable in itself, and also in thinking that the fact was sent to the grand jury on the 22nd of November. The prisoner was of a servant leaving within the first month created no obligation on the convicted. After conviction it was submitted that the indictment ought master to hand over the character of the servant which she brought with to be quashed because by reason of section 17 of the Act of 1885 and of her.-COUNSEL, Tyrrell Paine ; Boydell Houghton. SOLICITORS, Dodd, Longthe Vexatious Indictments Act, 22 & 23 Vict. c. 17, no indictment for an staffe, f: Co.; Budă, Johnsons, f Jecks. offence under section 5 (1) ought to have been allowed to be found by the

[Reported by T. R. C. Dill, Barrister-at-Law.] grand jury, there having been no commitment for that offence.


COUNTY COURT-APPEAL-Judge's NOTE-POINT NOT RAISED AT TRIAL. Lord RUSSELL OF KILLOWEN, C.J., after stating the facts, said that if the course had been taken of indicting the prisoner for rape, no difficulty This was an appeal from the Bow County Court. The action was one for could have arisen because, under section 9 of the Criminal Law Amend - damages for personal injuries caused by the negligence of the defendants' ment Act, 1885, the judge might have directed the jury to acquit of rape servants. The case was tried before a jury, who gave their verdict in favour and convict of the misdemeanour. The point taken was that this was a of the plaintiff. The appeal was upon the ground: (1) that there was no prosecution for a misdemeanour under section 5 (1), and that, therefore, evidence of negligence proper to go to the jury; and (2) of misdirection. the proviso to that section applied. But he thought that the prosecution The learned judge, at the end of his note of the case, appended the following for the offence of which the prisoner was convicted was commenced observation : "Úpon the application of the defendant, I furnish the note within three months after the commission of the offence. A prosecution of the case taken by me during the trial. No point of law was taken at the for rape was a prosecution for any offence for which on an indictment for trial, and I am unable to say what legal question arises. I thought the case rape a person could be convicted. The evidence before magistrates might was fought on questions of fact

On appeal, the objection raise a doubt as to whether a person ought to be committed for rape, but was taken that no point of law was raised in the court below. Smith they might easily think that no harm could be done by their committing v. Baker & Sons (1891, A. C. 325) was cited. On behalf of the him for that offence, because on an indictment for rape he could be found defendants Barber v. Burt (1894, 2'Q. B. 437) was cited, and it was guilty of the lesser offence. He therefore thought the judge ought not contended that where the point of law arose in the summing up of the to have directed an acquittal or quashed the indictment.

judge, as in the present instance, it was neither necessary nor practicable HAWKINS, MATHEW, GRANTHAM, and DARLING, JJ., concurred. Convic- that it should be formally raised by counsel. All that was necessary was tion affirmed.—COUNSEL, Meynell. SOLICITOR, The Treasury Solicitor. The that the point should be present in the judge's mind, and in the case of a prisoner was not represented.

misdirection, the judge's mind was ipso facto directed to it. The judge had (Reported by T. R. C. Dill, Barrister-at-Law.]

no right to record his view that no point was raised at the end of his note after the case was over.

The Court (GRANTHAM and CHANNELL, JJ.) dismissed the appeal. MOULT v. HALLIDAY. Div. Court. 8th Dec.

GRANTHAM, J., said that the learned judge was justified in appending to MASTER AND SERVANT—DOMESTIC SERVICE—Notice GIVEN DURING FIRST his note the words quoted, and the court would be guided by them. There was

FORTNIGHT OF SERVICE TO LEAVE AT END OF FIRST MONTH-OUSTOM no difficulty, in the case of a misdirection, in counsel drawing the judges' REASONABLENESS.

attention to it before verdict. Appeal from the Westminster County Court. The facts were as follows :

CHANNELL, J., said that every now and then a point arose which could On the 12th of March, the plaintiff, who had entered the service of the not be taken at the trial, but both the grounds of appeal taken in the defendant as upper housemaid on the 1st of March, gave notice to leave present case consisted of points which could have been taken at the trial. on the 1st of April. The defendant claimed one month's notice and refused --COUNSEL, Jelf, Q.C., and Morten Smith ; E. Morten. SOLICITORS, Watson to pay the plaintiff's wages, but offered her six weeks' wages if she would Sons & Room; Shaen, Roscoe & Massey. stay ten days later. The plaintiff then brought the action, claiming

[Reported by C. G. WILBRAHAM, Barrister-at-Law.! £2.68. 8d. for her month's wages. Evidence was given by servants and persons experienced in the business of servants' registry offices that it was common for notice to be given by either mietress or servant during the first fortnight of the service to determine the service at the end of the

Bankruptcy Cases. first month ; and the existence of a custom of that nature was alleged. Re IZOD, Ex parte OFFICIAL RECEIVER. C. A. No, 1. 10th Dec. The county court judge held that there was no such custom; he thought BANKRUPTCY-RECEIVING ORDER-APPLICATION TO RESCIND—ASSENT OF that a month's notice was requisite, and further that the custom alleged

CREDITORS-JURISDICTION AND DISCRETION OF REGISTRAR-BANKRUPTCY would be unreasonable, and he gave judgment for the defendant. On the appeal Williams v. Byrne (7 A. E. 177), Turner v. Mason (14 M. & W. 112),

Act, 1883 (46 & 47 Vict. c. 52), s. 104—BANKRUPTCY Act, 1890 (53 & 54

VICT. C. 71), s. 3, SUB-SECTION 6.
Metzner v. Bolton (9 Ex. 518), Wigglesworth v. Dallison (Smith's Leading
Cases, 9th ed., p. 582), Ex parte Powell (1 Ch. D. 501), and Crawcour v.

In this case the official receiver appealed against an order of Mr. RegisSalter (18 Ch. D. 30), were cited.

trar Hope, whereby a receiving order made against the debtor on his own THE COURT (HAWKINS and CHANNELL, JJ.) dismissed the appeal. petition was rescinded. The receiving order was made on the 22nd of

HAWKINS, J., said that he regretted that the judgment of the court on July, 1897. At a private meeting of the creditors three of their number the case would not settle the law on the question which the parties were appointed to inquire and report as to the debtor's affairs, and to act desired to have settled. The question was one of fact, and they had no in the interests of the creditors generally. They came to the conclusion power to say that the custom set up by the plaintiffs had been so recognized that they should receive an immediate cash dividend of 10s. in the pound, as to enable the court to take notice of it. The law had made the and that, if bankruptcy proceedings were continued, the assets would not county court judge the sole judge of fact, and as he had found as a fact suffice to pay such a dividend. At the first public meeting of the creditors that there was no such custom this court could not reverse his finding. it was agreed that it was for their benefit to be paid the aforesaid dividend, On that ground, therefore, ard on that alone, the appeal must be dis- and that, to avoid the expense and delay of bankruptcy proceedings, they miseed. There was evidence before the county court judge which would should withdraw their proofs. The debtor's father paid the said dividend have justified him in coming to that conclusion that the custom prevailed to all the creditors, and they assigned to him by deed their debts and But there was no obligation on him to come to that conclusion, and his released the debtor therefrom and withdrew their proofs. The debtor decision could not be upset. As to the reasonableness of the custom attended his preliminary examination by the official receiver, and, with in question and with the view to dispose of one point, he had no hesita- the latter's consent, an order was made staying all proceedings until the tion in saying that the custom would not be unreasonable if it existed. 5th of November, so as to enable the debtor to make such application to He would add one word as to the custom which had been suggested the registrar as he might be advised to. The debtor then applied to Mr. before the county court - namely, that if a servant left at the end Registrar Hope to have the receiving order rescinded, and the latter, of the first month she had a right to have the character with which she knowing the state of affairs and that the debtor had committed no delina came handed over. That was not a reasonable custom. There was no quency, and thinking that this was an exceptional case and one in which legal obligation to hand over the character. Supposing that during the the application should be acceded to, made the order asked for. The month for which the servant who had come with a good character stayed, Board of Trade now appealed against the order of the registrar. It was circumstances occurred which shewed that the servant was not of good contended on their behalf that the registrar had no jurisdiction to rescind character, it would be deceitful and improper to band over the old good the order, and tbat, if he had, he had in this case wrongly exercised his character.

discretion. A receiving order could only be rescinded if the order was CHANNEI L, J., concurred. To be judicially noticed a custom must be wrongly made, or if the debtor had paid 20s. in the pound. Where less so notorious and so well understood that it was unnecessary for people than that amount was paid, there must, under section 3 of the Bankruptcy doing business together to mention it, as it would be taken to be included Act, 1890, be a public examination of the debtor before an application can in the contract unless expressly excluded. In the engagment of a servant be made to the court for the approval of a scheme. The following cases the well-known custom of a month's wages or a month's warning was were cited : Re Leslie (35 W. R. 395, 18 Q. B. D. 619), Re Dixon and Cardus an instance. The supposed custom set up in this case was thought to be (37 W. R. 161, 5 Morrell 291), Re Hester (22 Q. B. D. 632), and Re Flatau incorsistent with the custom of terminating the service by a month's (1893, 2 Q. B. 219). For the debtor it was contended that, under the notice or a month's wages. But, even if that were the case, it would not general power given by section 104 of the Bankruptcy Act, 1883, there was matter, inasmuch as a custom grew up from an accumulation of instances, jurisdiction to rescind the receiving order, and that the registrar had, in and a custom might therefore change in certain particulars from time to doing so, properly exercised his discretion; and in support of this Re time. Then when the change became sufficiently notorious it would be taken Davidson (W. N., 1894, p. 210) and Ex parte Carr (35 W. R. 150) were as being included in contracts of service unless it was excluded. The cus cited. tom set up by the plaintiff had gone some way towards being established, THE COURT (A. L. SMITH, Rigby, and Collins, L.JJ. dismissed the but it still remained a question of fact for the county court judge, and I appeal (RIGBY, L.J., disssenting).

A. L. SMITH, L.J.-The order must stand. The first question was whether the registrar had jurisdiction to rescind the receiving order, and

LAW SOCIETIES. the second question was whether, if he had, he had properly exercised his discretion. The circumstances in this case made it a most exceptional

GENERAL COUNCIL OF THE BAR. case. The learned judge then, having dealt with the facts of the case, said he was of opinion that there was jurisdiction to rescind the receiving order, resolution of the council passed in October, 1896, and published in the

(1) The attention of the council having been called to the following although on first reading section 3, sub-section 6, of the Bankruptcy Act, council's last annual statement, and adopted by the general meeting of 1890, it appeared that this could not be done until after the debtor had the bar on the 4th of May, 1897—viz. :-" That a barrister holding the undergone his public examination; yet section 104 of the Act of 1883 gave office of town clerk, clerk to guardians, or any similar public body, ought the court power to rescind any order it had made. Re Davidson clearly not to practise at the bar," shewed that there was a discretion to rescind, and Re Flatau and Re Hester shewed that the matter was discretionary and was not limited to the two would be justified in refusing to hold a brief with anyone who trans

The council have resolved as follows: “That in their opinion a barrister cases where twenty shillings in the pound had been paid or a public examination had been held, and in those cases it was pointed out how that gressed the above resolution, and that barristers ought pot to hold briefs discretion should be exercised and under what circumstances. Those with members of the profession who wilfully transgress established rules

of the profession." circumstances existed here and were taken into consideration by the

(2) The council have resolved as follows: “That in their opinion it is registrar, who thought that no further investigation was necessary, and he

undesirable that a barrister who is a member of a county council should accordingly rescinded the receiving order. The registrar properly exer

appear as counsel before a committee of such county council." cised his discretion and the appeal should be dismissed.

(3) The council have resolved as follows: “(1) That it is not contrary Rigby, L.J., in dissenting from the above judgment, said : The to etiquette for a barrister to attend a county court without being discretion of the registrar to rescind a receiving order is a limited instructed in any case before the court. (2) That there is no objection to discretion. If a general discretion existed it would detract from the a barrister so attending in robes." provisions of the Bankruptcy Acts, which were intended to aim at a

(4) Taxes Management Act, 1880 (43 & 44 Vict. c. 19), 8. 57 (9).private arrangement made with creditors. R. Hester, which was decided Appeals.-"No barrister, solicitor, attorney, or any person practising the under the Act of 1883, shews the leading consideration which ought law shall be allowed to plead before the said commissioners on such to guide the court is whether the debtor is proposing a scheme within appeal for the appellant or officers either viva voce or by writing." that Act. The judges there did not determine whether a discretion It having been represented to the council that complicated and difficult existed or not, and they expressly refused to decide whether a debtor, as questions arise before the commissioners involving large sums of money, regards an arrangement with his creditors, is or is not bound to proceed and that the taxpayer is precluded by the above section from any prounder section 18 of the Act of 1883, which section has been repealed and fessional assistance, whereas the Revenue authorities are represented by is replaced by section 3 of the Act of 1890. Under this latter section, no

trained experts, application to the court to approve a scheme is to be heard until the The council have resolved as follows: “That step3 should be taken to debtor has undergone a public examination. That was enacted to clear enable persons appealing to the commissioners under the above section of 'up any doubt whether there is a general discretion or not. It was never the Taxes Management Act, 1880, to be represented by counsel on such intended that an application to rescind should be founded on a private appeals if they should so desire.! arrangement with the creditors. In this case the debtor filed his own (5) In response to the council's application, the Secretary of State for petition and thus placed himself under the bankruptcy laws. He then the Home Department has been pleased to instruct the governors of Her made a private arrangement with his creditors. That is entirely against Majesty's prisons to supply the council with copies of the calendars of the object of the Bankruptcy Acts, and the exercise of the registrar's prisoners awaiting trial at assizes and quarter sessions. Members of the discretion ought to be overruled, as there was no ground at all for it. þar may see such calendars upon application at the offices of the council. There is no distinction in principle between rescinding a receiving order and anvulling an adjudication under section 35 of the Act of 1883, and

THE BARRISTERS' BENEVOLENT ASSOCIATION. the court is entitled to look at that section to see upon what grounds an A meeting of this association was held on Wednesday afternoon in adjudication can be annulled. In the present case the debts were not Lincoln's-inn Hall. The Attorney-General presided, and among those paid in full, nor is there anything to shew that the receiving order ought present were the Master of the Rolls and Lord Justice Chitty. not to have been made. The order to stay proceedings was only on The ATTORNEY-GENERAL, in moving the adoption of the report of the certain terms. It does not shew that nothing could be ascertained against committee of management for the year ending the 30th of June, 1897, the debtor, because all the means of ascertainment were not exhausted. said it was more favourable than any report that had ever before been There is nothing special in this case, and the order to rescind ought to be submitted. He wished to express publicly the thanks of the association discharged.

for a munificent anonymous donation of £5,000, and he hoped that this COLLINS, L.J., delivered judgment agreeing with that of Smith, L.J. gift would lead to other additions to the invested funds, which it was Appeal dismissed. --Counsel, sir R. Webster, A.G., and Muir Mackenzie; establishment of local committees at Liverpool and Manchester, and it was

Considerable success had attended the H. Reed, Q.C.; Carrington and Cautlcy. SOLICITORS, Solicitor to the Board of Trade ; P. C. Ray.

now proposed to establish committees at Birmingham and Leeds. He was

still not quite satisfied with the number of members—829-although there (Reported by E. G. STILLWELL, Barrister-at-Law.?

had been an increase of fifty-nine during the year. The funds were not

adequate for the cases the committee had to meet. The grants made Re GILBERT, Ex parte GILBERT. Wright, J. 13th Dec.

during the year amounted to £2,278 among ninety-eight cases, but the

income fell £400 short of that sum. BANKRUPTCY-DECEASED INSOLVENT-RETAINER BY EXECUTOR-BANKRUPTCY The MASTER OF THE ROLLs seconded the motion, which was carried. Act, 1883 (46 & 47 Vict. c. 52), s. 125.

In seconding the motion appointing the committee of management for This was a motion by Mrs. Laura Gilbert, the widow and executrix of CRACK ANTHORPE, Q.C., said that the names of no fewer than 10,000

the ensuing year, which was proposed by Lord Justice CHITTY, Mr. a person who had died insolvent and whose estate was being administered

barristers appeared in the current law list, and he thought he was within the in bankruptcy under section 125 of the Bankruptcy Act, 1883. Mrs. Gilbert asked for an order that the trustee in such administration should circuits. He thought, therefore, they ought to have a very much larger

mark when he said that 2,700 appeared as holding chambers and attending deliver up to her all the goods that he had taken possession of under the administration order. The grounds of her claim were, that her husband subscribed to a similar association and the same was the case in France,

number of subscribers. In Germany nearly every advocate in the empire had died indebted to her in the sum of £850; that his entire estate, which and in the latter country if an advocate did not subscribe his name was consisted of a drapery business, was under the value of £300; and that in liable to be struck off the tablet de l'ordre. exercise of her right of retainer as executrix, she had retained the estate in

Several votes of thanks having been passed, the proceedings terminated. satisfaction of her claim prior to any notice of the petition for administration. It was objected on behalf of the trustee that she could not retain in specie, but must first realize the estate, and also that she could not claim a right of retainer over book debts which had not been got in (Re Compton, Norton v. Compton, 33 W. R. 157, 30 Ch. D. 15).

LAW STUDENTS' JOURNAL. WRIGHT, J., decided that she could not retain the book debts which had

INCORPORATED LAW SOCIETY. not been got in, but upheld her claim to retain in specie. He said it was

HONOURS EXAMINATION. curious that there was no direct authority on the point. It might very well be that where the assets of a testator exceeded in value the debt to

November, 1897. the executor, the executor could not set up a right to retain in specie un At the examination for Honours of candidates for admission on the less he had clearly appropriated certain of the assets of ascertained value roll of solicitors of the Supreme Court, the Examination Committee in payment of his debt. But where the assets of a testator were recommended the following as being entitled to honorary distinction : manifestly much less in value than the debt due to the executor, he was

FIRST CLAss. not prepared, in the absence of authority, to hold that the executor could not retain the assets in specie in satisfaction of the debt, but was bound to (In the opinion of the committee the standard attained by the canrealize the estate before he could pay himself. In the present case the didates does not justify the issue of any first class list.) executrix had clearly asserted her right to retain in specie before she

SECOND Class, received notice of the petition in bankruptcy. Under the circumstances therefore she was entitled to judgment. - COUNSEL, T. M. Stevens ; Carring

[in Alphabetical Order.] ton. SOLICITORS, W. R. Millar ; J. V. Mason.

Ronald Stewart Brown, B A., who served his clerkship with Mr. John [Reported by P. M. FRANCKE, Barrister-at-Law.]

Dickinson, of Liverpool.

Robert Burrow Harrison, LL.B., who served his clerkship with Mr. Brecon. He was a director of many trading companies, most of which John Edward Bolton, of Kendal.

owed their origin to his enterprize and capital. His antiquarian work Herbert Harvey Moseley, B.A., B.C.L., who served his clerkship with included the restoration of the Priory Church at Brecon, which was Messrs. Field, Roscoe, & Co., of London.

chiefly due to his exertions and expenditure; the undertaking of large Richard Irvine Steele, who served his clerkship with Messrs. Dobinson works of excavation and preservation at the Castles of Manorbere and & Watson, of Carlisle.

Pembroke, which he leased for the purpose ; the saving from imminent THIRD CLASS.

destruction of an interesting twelfth century house at Pembroke, and its

complete restoration; and the purchase of Caldicot Castle, in Monmouth[In Alphabetical Order.]

shire, the home of the De Bohuns, which had been used as a quarry for Sydney Malcolm Baird, who served his clerkship with Messrs. Fladgate three centuries, and which he restored as a residence. In 1892 he bought & Co., of London.

from a German shipbreaker Nelson's old ship, The Foudroyant, and Charles Edward Bischoff, B.A., who served his clerkship with Mr. restored her as a sea-going ship of war of the last century. On this he spent Thomas William Bischoff, of the firm of Messrs. Bompas, Bischoff, Dodg- £25,000, and it was a source of profound indignation to him that, not son, Coxe, & Bompas.

only did he receive no help in this undertaking, but that his work was Henry Cane, who served his clerkship with Mr. John Colbatch Clark, of described as a commercial speculation. the firm of Messrs. Colbatch Clark & Son, of Brighton. Philip Hugh Childs, who served his clerkship with Mr. Thomas Arthur

Bramsdon, of Portsmouth ; and Mr. Arthur Walter Mills, of London.
Alfred Montagu Gibb, who served his clerkship with Messrs. Brighouse,

Mr. ERNEST EDWARD WILD, barrister, has been appointed Judge of the Brighouse, & Jones, of Ormskirk.

ancient Guildhall Court of Record in Norwich. Arthur Morgan James, who served his clerkship with Mr. Thomas Mr. ALFRED HOPKINSON, Q.C., M.P., has been appointed Principal of William James, of Swansea ; and Mr. John Thomas Lewis, of London.

Owens College, Manchester, in succession to Dr. Ward. John Egbert James, LL.B., who served his clerkship with Messrs. Sharman, Jackson, & Archer, of Wellingborough; and Messrs. Russell, Cooke, nard), of Eastcheap-buildings, London, and Upper Norwood, has been

Mr. EDWARD J. STANNARD, solicitor (of the firm of Robinson & Stan& Co., of London. Arthur Daniel Jones, who served his clerkship with Mr. Henry Warring Deeds, and a Commissioner for Oaths for Great Britain and Ireland for the

appointed a Commissioner to take the Proof and Acknowledgment of Jones, of London; and Mr. John Durham, of Kingston-on-Thames. James Brown Killey, B.A., who served his clerkship with Mr. William

State of New York, U.S.A. Arthur Weightman, of the firm of Messrs. Weightman, Pedder, & Mr. John Evan WILLIAMS, M.A., solicitor (of the firm of Williams & Weightman, of Liverpool.

Gladstone), of Cardiff, has been appointed a Commissioner for Oaths.
Frederick William Beale Poste, LL.B., who served his clerkship with Mr.
Robert Fortescue Moresby White, of Grantham; and Messrs. Paterson,

Snow, Bloxham, & Kinder.
Walter Treverbian Prideaux, who served his clerkship with Sir Walter

It is stated that Sir Francis Maclean, the new Chief Justice of Bengal, Sherburne Prideaux, of the firm of Messrs. Prideaux & Sons, of London.

has been in ill-health since his arrival at Calcutta in the summer of the William Milner Ratcliff, B.A., who served his clerkship with Messrs. present year. He was ill at Simla, and has since been a sea-voyage to Bell, Brodrick, & Gray, of London.

Ceylon, from which he has failed to benefit. William Edward Richardson, who served his clerkship with Mr. Arthur Mr. Justice Byrne and Mr. Justice Ridley will be the Christmas Vacation William Bares, of Lichfield.

judges, one of whom will attend at Queen's Bench Judges' Chambers, on Mr. Edgar Thomae Woodbridge, who served his clerkship with Mr. certain days to be fixed, during the first half, while the other will attend Thomas Hurry Riches Woodbridge, of the firm of Messrs. Woodbridge & during the second part of the vacation. Sons, of Uxbridge ; and Mr. George Ernest Rigden, of London. William Humphrey Woodhouse, who served bis clerkship with Mr. representatives for the Court of Common Council for next year, it was

At a meeting of the parish of St. Sepulchre, London, to nominate Alexander Silk Crowther Doyle, of London.

announced that Her Majesty's Judges had expressed their intention of The Council of the Incorporated Law Society have accordingly awarded approving the plans submitted by the Corporation of London for the erection to Mr. Baird “The John Mackrell Prize," value about £12.

of a new Central Criminal Court, and that the work of demolition would The Council have given Class Certificates to the candidates in the Second then proceed at no distant date to make way for the new building. and Third Olasses. Eighty-five candidates gave notice for the examination.

At a meeting of the judges of the Queen's Bench Division, held on Wednesday, presided over by the Lord Chief Justice, the Judges' Circuits

for the ensuing Winter Assizes were : rearranged as follows: viz., Midland LAW STUDENTS' SOCIETIES.

Circuit, the Lord Chief Justice and Hawkins, J., the Lord Chief Justice Law STUDENTS' DEBATING SOCIETY.-Nov. 30.-Chairman: Mr. C. A. going only to Warwick and Birmingham. Oxford Circuit, Day and Anderson.-The subject for debate was " That The Christian' does not Kennedy, JJ., the latter judge going only to Stafford and Birmingham; deserve the popularity it has attained.” Mr. F. J. Berryman opened in South-Eastern Circuit, Wright, J.; Honie Circuit, Darling, J.; Western the affirmative ; Mr. Archibald Hair opened in the negative. The follow- Circuit, Bigham and Darling, JJ.; Northern Circuit, Wills and ing members also spoke : Messrs. G. W. Powers. James Brennan, R. H. Bruce, JJ. ; North-Eastern Circuit. Lawrence and Ridley, JJ.; North Armstrong, J. Bowen Davies, and V. Lyons. The motion was lost by one Wales Circuit, Channell, J.; South Wales Circuit, Phillimore, J. vote. Dec. 7.-Chairman : Mr. T. Seager Berry.-The subject for debate another have had Allen v. Flood before them, it appears that thirteen

It is stated that, taking into account all the judges who in one way or was, “That the case of Plant v. Bourne (1897, 2 Ch. D. 281) was wrongly have been on one side and eight on the other. Their names are as follow : decided.” Mr. F. H. Stevens opened in the affirmative ; Mr. D. S.


FOR ALLEN. Comock seconded in the affirmative. Mr. C. H. L. Alder opened in the negative ; Mr. John Blair seconded in the negative. The following mem

Kennedy, J.

Mathew, J. bers also spoke : Messrs. J. A. Dixon, G. H. Daniel, Neville Tebbutt,

Esher, ex-M.R.

Wright, J. and J. S. Wilkinson. The motion was carried by two votes.

Ludlow, L.J.

Herschell, Lord
Rigby, L.J.

Watson, Lord
Dec. 14.-Chairman, Mr.J, S. Wilkinson. The subject for debate was :

Hawkins, J.

Macnaghten, Lord “ That Parliament should forthwith constitute a tribunal for the com

Cave, J.

Davey, Lord pulsory settlement of labour disputes." Mr. C. Herbert Smith opened in

North, J.

Shand, Lord the affirmative; Mr. G. W. Powers opened in the negative. The follow

Wills, J.

James, Lord ing members also spoke : Messrs. A. W. Watson, J. J. Edwards, G. G.

Grantham, J.
Baily, H. E. Miller, and Tebbutt. The motion was lost by one vote.

Lawrance, J.
Halsbury, L.C.
Ashbourne, Lord

Mcrris, Lord



Mr. Justice Darling was this week the guest of the Kensington Parliament The death is announced, on the 6th inst., of Mr. JOSEPH RICHARD COBB, at their annual dinner at the Café Monico, and in the course of a speech, F.S.A., solicitor, of Brecon, at Nythfa, Brecon. He was, says the Times, replying to the toast of bis health, said, according to the St. James's Gazette, one of the pioneers of railway enterprize in South Wales, and a learned that he came prepared to address them on the patent law and upon antiquary, who spent large sums in the preservation of ancient structures. Venezuela, but he was not prepared to stand up and justify his appointment In 1858 he promoted the Brecon and Merthyr Railway, to which he con to the bench. As he had not studied that topic he had not learned the tributed largely, and when the contractor failed he carried on the works names of certain law books. If he had simply told them that from his for some weeks at his own cost. For the next thirty years there was earliest days his constant pastime had been to read those books they could hardly a Bill affecting South Wales railways on which he was not not have contradicted him, and he need not have gone far into their contents engaged, and several schemes he promoted largely at his own expense. if he had only mentioned enough names to take up ten minutes of their time. He was interested in geology and ornithology, and in his early years was Then he supposed he should have gone away with the reputation, which a keen sportsman and master of the Breconshire Harriers. For a long many people had earned just as easily, of a great lawyer. Instead of that, period he filled the offices of county treasurer and governor of Christ he had been trying to puzzle out what was the exact resemblance between College, Brecon, where he founded the Parry de Winton Scholarship, and himself and the Matterhorn. One of the criticisms of his appointment, so later was county alderman and justice of the peace for the county of ! far as he could make out, was that, so far from resembling the Matterhorn

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