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On appeal to the House of Lords (Bloomenthal v. Ford, 45 W. the Court of Appeal. If the same point went to the House of R. 449; 1897, A. C. 156), it was held that as the company had Lords there would probably be a difference of opinion among obtained a loan by a representation in the certificate that the the Lords, and it is clear that the law cannot be stretched any shares were fully paid, which BLOOMENTHAL believed and acted further so as to catch auditors as officers. But in the Western upon, the liquidator was estopped from alleging that the shares Counties case an attempt was made to strain the law still further. were not fully paid. The Appeal Court's decision was therefore A firm of accountants had audited the accounts on a given occareversed, and the effect of the House of Lords' decision is that sion, being asked to do so by one of the directors. They were the company is estopped in such cases even when it seeks to not appointed in the manner prescribed by the articles, but they fasten liability on an original allottee. Anyone who for value were paid by the company. Mr. Justice STIRLING, misled by accepts the position of registered proprietor of shares on the the specious argument that the accountants were de facto officers, faith of the company's statement under its common seal that on held that they could be proceeded against under section 10. each the full amount has been paid, is under no liability The Court of Appeal, however, held that being a de facto although not a shilling has been paid up: The speeches of the auditor is not necessarily being a de facto officer, for an auditor noble and learned lords entirely ignore the supposed distinction is not expressly mentioned in the section, and that a mere between a transferee and an allottee.

"casual auditor,"to use a term employed in the argument, is In the case of Re Wragg (45 W. R. 557; 1897, 1 Ch. 796), not an officer of the company. He stands, in fact, in the same after winding up the liquidator wished to have it declared that position as a banker (Re Imperial Land Co. of Marseilles, L. R. 10 there was a cash liability in respect of shares issued as fully Eq. 298), or a solicitor who is not a salaried official (Carter's case, paid under a duly-filed contract, on the ground that the shares 31 Ch. D. 496). Lord Justice LINDLEY expressed the opinion, were issued to the vendors to the company of certain property however, that even a banker or solicitor might, under certain which, though of some value, was not of a value equal to the circumstances, be an officer of the company, The Western nominal value of the shares—the effect being, as was contended, Counties case points out the high-water mark of legal authority that the shares were issued at a discount. But it was held that as to what persons are officers of a company within sections 8 as the contract stood unimpeached, the value of the property and 10 of the Companies (Winding-up) Act, 1890. could not be inquired into. No other decision was possible, A notice of two or three cases as to voluntary winding up having regard to Pell's case (18 W. R. 31; L. R. 5 Ch. 11), must close our remarks about the winding up of companies in Forbes and Judd's case (18 W. R. 302; L. R. 5 Ch. 270), and 1896-7. several other decisions which are referred to in the judgment in A voluntary winding up commences with the passing of an exRe Wragg.

traordinary or special resolution, and the mode of passing a special Both Re Wragg and Salomon v. Salomon & Co. are important resolution (whether for voluntary winding up or any other purcontributions to the law of "private" companies—that is to pose) is pointed out by section 51 of the Companies Act, 1862. say, companies registered under the Companies Acts, but not The section contemplates cases in which a poll is demanded as inviting the public to subscribe for their shares. No one could well as those in which there is no such demand, and, of course, say that the directors of either company were what is called there may be a valid resolution although no poll is demanded. "an independent executive.” Now, it was clearly laid down But where by the articles of association voting by proxy is in the House of Lords in Erlanger v. New Sombrero Phosphate allowed, and a resolution is passed on a show of hands without Co. (27 W. R. 65, L. R. 3 App. Cas. 1218, 1236) that if the a poll, how are the votes of proxies to be counted ? In R. owner of property promotes and forms a company, and then Bidwell Brothers (41 W. R. 363; 1893, 1 Ch. 603) Mr. Justice sells his property to it, “he is bound to take care that he sells | VAUGHAN WILLIAMS held that the chairman must count the vote of it to the company through the medium of a board of directors each person who had appointed a proxy, not according to the number who can and do exercise an independent and intelligent judg- of votes which he might give on a poll, but as one vote. Mr. ment in the transaction.” But, as Lord DAVEY pointed out in Justice CHITTY afterwards held that the chairman must count Salomon's case, Erlanger's case “is often quoted, and not infre- the vote of each person present who held proxies as a single vote, quently misunderstood.

Lord CAIRNS observations". and not count a vote for each of the members whose proxies he cited in part above-" were directed only to a case such as he holds; and this decision was affirmed on appeal, Re Bidwell had before him, where it was attempted to bind a large body of Brothers being overruled: Ernest v. Loma Gold Mines (45 W. R. shareholders by a contract which purported to be made between 86; 1897, 1 Ch. 1). In the same case it was held that where the vendor and directors before the shares were offered for subscrip- the date of meeting is left blank in a proxy paper, and this tion, whereas it appeared that the directors were only the paper, duly stamped, is signed and returned without the blank nominees of the vendor, who had accepted his bidding and being filled in, the filling up of the blank by the secretary exercised no judgment of their own." In Erlanger's case the before it is lodged with the company does not invalidate the publication of a prospectus materially influenced the share sub-proxy, the secretary having implied authority to supply the scription (see p. 1221). Lord HALSBURY and Lord WATSON accidental omission. also took care to distinguish Erlanger's case from that of a com Another case as to voluntary winding up, and the special pany like the one got up by Mr. SALOMON, which, as Lord resolution in favour of it, is Lee v. Roundwood Colliery Co. MACNAGHTEN points out (or his judgment means nothing), wes (45 W. R. 324; 1897, 1 Ch. 373). The decision of Mr. essentially a private company. The forerunner of these cases Justice STIRLING on the principal points of the case was was Re British Seamless Paper Box Co. (29 W. R. 690, 17 Ch. D. reversed by the Court of Appeal; but he decided some minor 467), where a transaction which would not have stood in the points which were left untouched-viz., (a) that where a distress case of a public company, was held to be valid in the case of a is levied by a company's landlord, but not completed by sale, private one.

before the commencement of a voluntary winding up-that is, The much-vexed question as to who is an "officer” of a com- the date of the confirmatory resolution where the winding up is pany within the meaning of section 10 of the Companies by special resolution the court has jurisdiction to restrain (Winding-up) Act, 1890, arose again in Re Western Counties, by injunction further proceedings under the distress ; (6) that 8c., Co. (45 W. R. 518; 1897, 1 Ch. 617). In Re London and to obtain such an injunction the liquidator must show special General Bank (43 W. R. 481, 1895, 2 Ch. 166) it was held by reasons rendering it inequitable to allow the distress to go on; the Court of Appeal that the auditor of a joint-stock banking () that the fact that the distress was levied between the date of company, appointed and acting under articles of association in the first and the confirmatory resolution is not a sufficient the Table A or usual form, was an officer of the company, and special reason. that court held that an auditor, similarly appointed and acting, More difficult questions were involved in Re National Bank of was an officer, although the company was an ordinary trading Wales (45 W. R. 401 ; 1897, 1 Ch. 298). In this case, after the company: Re Kingston Cotton Mill Co. (44 W. R. 210 ; 1896, 1 commencement of the winding up, the voluntary liquidator had Ch. 6). It will be remembered that Lord HERSCHELL, who pre- sanctioned transfers of the shares of certain contributories—as sided in the Court of Appeal on the hearing of the case last section 131 of the Companies Act, 1862, empowers him to docited, only acquiesced in the decision because he considered that, and some of the transferoes had again transferred their shares sitting where he was, he was bound by the former decision of with his concurrence. The Court of Appeal, differing from the

view taken by Mr. Justice VAUGHAN WILLIAMS, held that on giving such sanction the liquidator had power to make altera

NEW ORDERS, &c. tions in the register of members; that the transferor was therenot be put on the A list of contributories; and that where there 46th and 47th years of her Majesty's reign, intituled "The Patents, upon released from his liability as a present member, and could THE PATENTS, DESIGNS, AND TRADE-MARKS ACT, 1883.

Whereas by the 25th section of an Act of Parliament passed in the were successive transfers, only the ultimate transferee was to be Designs, and Trade-marks Act, 1883, it is amongst other things put on the A list, the transferor and the other transferees being enacted that a patentee may, after advertising in manner directed by only under liability as past members. A reference to the any rules made under the said section his intention to do so, present various sections on which these conclusions were arrived at will a petition to her Majesty in Council, praying that his patent may be show how difficult were the points involved.

extended for a further term, but such petition must be presented at least six months before the time limited for the expiration of the patent; that if her Majesty shall be pleased to refer any such petition to the Judicial Committee of the Privy Council the said

committee shall proceed to consider the same; and that it shall be REVIEWS.

lawful for her Majesty in Council to make from time to time

rules of procedure and practice for regulating the proceedings on BOOKS RECEIVED.

such petitions, and subject thereto such proceedings shall be regulated The Elements of Mercantile Law. By T. M. STEVENS, D.C.L., according to the existing procedure and practice in patent matters of Barrister-at-Law. Second Edition. Butterworth & Co.

the Judicial Committee : The Law relating to Unconscionable Bargains with Money-lenders) And whereas her Majesty in Council has deemed it expedient to Including the History of Usury to the Repeal of the Ugury Laws, make rules for regulating proceedings in such petitions. with Appendices containing a Digest of Cases, Annotated, relating

Her Majesty is therefore pleased by and with the advice of her to Unconscionable Bargains, Statutes and Forms for the Use of Privy Council to approve of the several rules and regulations Practitioners. By HUGH H. L. BELLOT, M.A., B.C.L., and R. contained in the schedule hereunto annexed, and to order as it is JAMES WILLIS, Barristers-at-Law. Stevens & Haynes.

hereby ordered that on and after January 1, 1898, the same be respectively observed.

Whereof all persons whom it may concern are to take notice and govern themselves accordingly.


26 November, 1897.

The SCHEDULE above referred to.
[To the Editor of the Solicitors' Journal.]

RULES TO BE OBSERVED IN PROCEEDINGS BEFORE THE JUDICIAL Sir,—I agree with my friend Mr. Fraser that the selected area for COMMITTEE OF THE PRIVY COUNCIL UNDER THE PATENTS, DESIGNS, the experimental trial should not be the whole county of London. AND TRADE-MARKS ACT, 1883, s. 25. In my opinion it should embrace only so much of that county as lies

I. within the county of Middlesex and is already subject to registration, though of deeds—not of title. The inconvenience, if the experiment A party intending to apply by petition under section 25 of the Act should be unsuccessful, would in that case be reduced to a minimum. shall give public notice by advertising three times in the London

The London County Council are not likely to wholly veto the Gazette and once at least in each of three London newspapers. application of the order to the county of London, and in my judg If the applicant's principal place of business is situated in the ment ought not to do so. The efforts of those who dislike the experi- United Kingdom at a distance of fifteen miles or more from Charing ment would be more wisely directed towards limiting the area in Cross he shall also advertise once at least in some local newspaper which it is to be made, and towards ensuring that, while the selected published or circulating in the town or district where such place of area shall be large and varied enough to afford a fair trial, the business is situated. If the applicant has no place of business, then, experiment shall, in the event of failure, be as little permanently if he carries on the manufacture of anything made under his specifiinjurious as possible.

cation at a distance of fifteen miles or more from Charing Cross, he My own efforts will certainly be exerted in this direction, but Mr. shall advertise once at least in some local newspaper published or Fraser greatly overrates the extent of my influence.

circulating in the town or district where he carries on such manuBENJAMIN G. LAKE. facture. If he has no place of business and carries on no such manu

facture, then, if he resides at a distance of fifty miles or more from

Charing Cross, he shall advertise once at least in some newspaper [To the Editor of the Solicitors' Journal.]

published or circulating in the town or district where he resides.

The applicant shall in his advertisement state the object of his Sir,-Knowing the interest you take in this subject, you will be petition and shall give notice of the day on which he intends to pleased to hear that our Parliamentary Committee (Marylebone Vestry) | apply for a time to be fixed for hearing the matter thereof, which day -myself in the chair-have unanimously decided against the applica- shall not be less than four weeks from the date of the publication of tion of this Act to the county of London, and that the London the last of the advertisements to be inserted in the London Gazette. County Council should be so informed in reply to their circular.

He shall also give notice that caveats must be entered at the Council This decision remains, of course, to be adopted by the vestry when Office on or before such day so named in the said advertisements. the report comes up after Christmas, but I entertain no doubt that the recommendation will be confirmed. G. R. H. STRINGER.

II. [The report, confirmed by the Vestry, will be found elsewhere.- A petition under section 25 of the Act must be presented within one

week from the publication of the last of the advertisements required

to be published in the London Gazette. It is announced that Mr. Graham Hastings, Q.C., who has just retired

The petition must be accompanied with an affidavit or affidavits of from practice at the bar, has presented his clerk, Mr. G. Eilis, with a advertisements having been published according to the requirements cheque for £1,000.

of the first of these rules. The statements contained in such affidavit Mr. Justice Bigham was entertained by the Northern Circuit at a con

or affidavits may be disputed upon the hearing, gratulatory dinner upon his recent elevation to the bench at the Whitehall The petitioner shall apply to the Lords of the Committee to fix a Rooms, Hôtel Métropole, on Saturday last. Mr. Littler, Q.C., was in time for hearing the petition, and when such time is fixed the petithe chair, and among those present were Viscount Esher, the Lord Chief tioner shall forthwith give public notice of the same by advertising Justice, the Speaker of the House of Commons, Lord Justice Collins, Mr. once at least in the London Gazette and in two London newspapers. Justice Wright, Mr. Justice Barnes, and Mr. Justice Kennedy. Mr. Litiler proposed the health of Mr. Justice Bigham, who, iu replying, said

III. that he had joined the circuit twenty-seven years ago and commenced at A party presenting a petition under section 25 of the Act must Liverpool in circumstances of no great encouragement. He had but few lodge at the Council office eight printed copies of the specification; friends, little means, and no influence; but in the profession of a barrister but if the specification has not been printed, and if the expense of true success came by hard work. His record consisted of nothing but making eight copies of any drawing therein contained or referred to plodding. He gave to every task not half his heart but the whole. He would be considerable, the lodging of two copies only shall be wished the members of the circuit to remember that though the Lord Chancellor nominated judges and the Queen appointed them, it was the

deemed sufficient. circuit that made them. Lord Esher, in replying to the toast of “The

The petitioner shall also lodge at the Council Office eight copies of Northern Circuit Judges," said that he was there to do honour to Mr. the balance-sheet of expenditure and receipts relating to the patent Justice Bigham and once more to proclaim himself ** a digreputable son" in question, which accounts are to be proved on oath before the of the old Northern Circuit.

Lords of the Committee at the hearing. He shall also furnish three

Ed. S.J.


copies of the said balance-sheet for the use of the Solicitor to the Treasury, and shall upon receiving two days' notice give the Solicitor to

CASES OF THE , WEEK. the Treasury or any person deputed by him for the purpose reasonable facilities for inspecting and taking extracts from the books of account,

Court of Appeal. by reference to which he proposes to verify the said balance sheet LOLE AND ANOTHER •. BETTERIDGE ; MALLAM, Claimant. No. 1. at the hearing or from which the materials for making up the said

16th Dec. balance sheet have been derived. All copies mentioned in this rule must be lodged and furnished not BANKRUPTCY-PROTECTED TRANSACTION-EXECUTION-SHERIFF TO

PROCEEDS FOR FOURTEEN Days—NOTICE TO SHERIFF OF BANKRUPTCY less than fourteen days before the day fixed for the hearing.


(53 & 54 VIct. c. 71), s. 11, SUB-SECTION 2-BANKRUPTCY RULES,

1886, R. 90. A party intending to oppose a petition under section 25 of the Act must enter a caveat at the Council Office before the day on which the levied execution on the goods of the defendant in respect of a judgment

Appeal from an order of Day, J., at chambers. The sheriff having petitioner applies for a time to be fixed for hearing the matter recovered by the plaintiffs for a sum exceeding £20, the defendant on the thereof, and having entered such caveat shall be entitled to have 18th of September, 1897, paid the sheriff out. Upon the 2nd of October, from the petitioner four weeks' notice of the time appointed for the which was a Saturday, a receiving order was made against the defendant hearing.

upon his own petition, and on the same day the official receiver sent The petitioner shall serve copies of his petition on all parties notice of the petition and receiving order to the sheriff by telegram, entering caveats in accordance with this rule, and no application which was received by the latter at 3.40 p.m. on that day. It was to fix a time for hearing shall be made without affidavit of such admitted that the fourteen days during which the sheriff was required by service.

section 11, sub-section 2, of the Bankruptcy Act, 1890, to hold the money All parties intending to oppose a petition shall, within three weeks did not begin to run until the 19th of September (see section 141 of the after such copies are served on them respectively lodge at the Council Bankruptcy Act, 1883). The claimant, the official receiver, claimed the Office eight printed copies of the grounds of their objections to the days, which did not expire until midnight of the 2nd of October. The

money upon the ground that the notice was given within the fourteen granting of the prayer of the petition.

execution creditors claimed the money upon the ground that by rule 90 of

the Bankruptcy Rules, 1886, service of notices must be effected before two V.

in the afternoon of Saturdays, and that the notice was therefore too late. Parties shall be entitled to have copies of all papers lodged in Ypon an interpleader summons Day, J., ordered the sheriff to hand over respect of any petition under section 25 of the Act at their own the money to the execution creditors. The claimant appealed. By section expense.

ii, sub-section 2, of the Bankruptcy Act, 1890 : ** Where under an All such petitions and all statements of grounds of objection shall execution in respect of a judgment for a sum exceeding £20 the goods of be printed in the form prescribed by the rules which apply to pro- deduct his costs of the execution from the proceeds of sale or the money ceedings before the Judicial Committee of the Privy Council. paid, and retain the balance for fourteen days, and if within that time Balance-sheets of expenditure and receipts shall be printed in a form notice is served on him of a bankruptcy petition having been presented convenient for binding along with such petitions.

against or by the debtor, and a receiving order is made against the debtor thereon

the sheriff shall pay the balance to the official receiver. VI.

." By rule 90 of the Bankruptcy Rules, 1886 : “Service of notices Costs incurred in the matter of any petition under section 25 of the shall be effected before the hour of six in the afternoon, except on SaturAct shall be taxed by the Registrar of the Privy Council, or other day, when it shall be effected before the hour of two in the afternoon. officer deputed by the Lords of the Judicial Committee of the Privy Service effected after six in the afternoon on any week-day, except SaturCouncil to tax the costs in the matter of any petition, and the day, shall for the purpose of computing any period of time subsequent to registrar or such other officer shall have authority to allow or disallow Service effected after two in the afternoon on Saturday shall for the like in his discretion all payments made to persons of science or skill purpose be deemed to have been effected on the following Monday. examined as witnesses.

The Court (A. L. SMITH, Rigby, and COLLINS, L.JJ.) allowed the VII.

appeal. The Lords of the Committee may excuse petitioners and opponents

A. L. SMITH, L.J., said that the contention of the execution creditor from compliance with any of the requirements of these rules, and may to hold the money, and which would naturally expire at midnight of the

came to this, that the fourteen days during which the sheriff was required give such directions in matters of procedure and practice under 2nd of October, was cut down by rule 90. In his opinion rule 90 did not section 25 of the Act as they shall consider to be just and expedient.

apply to such notices as this, but only to notices of procedure. This part

of the rules was headed, “Service and execution of process." All the rules VIII.

in this part dealt with notices of procedure. He agreed with the decision The Lords of the Committee will hear the Attorney-General or of Grove, J., in Curtis v. Wainbrook Iron Co. (Cab. & Ell. 351), a case which, other counsel on behalf of the Crown on the question of granting the

po doubt, had been acted upon ever since it was decided. There was prayer of any petition under section 25 of the Act.

The Attorney

another ground upon which the case could be decided-namely, that there General is not required to give notice of the grounds of any objection was nothing in rule 90 which invalidated a notice served after 2 p.m. on he may think fit to take or of any evidence which he may think fit to the purpose of computing the time within which the other party had to place before the Lords of the Committee.

take a subsequent step in the proceedings the notice must be deemed to

have been served on the following Monday. TRANSFER OF ACTIONS.

Rigby and COLLINS, L.JJ., concurred.-COUNSEL, H. Reed, Q.C., and H. ORDER OF COURT.

J. Turrell; Muir Mackenzie ; R. W. Coventry. SOLICITORS, Ashwell, Brown

ing, f Tutin; Warren, Murton, 8 Miller ; Rowcliffes, Rawle, & Co., for Blandy Friday, the 10th day of December, 1897. & Blandy, Reading. I, Hardinge Stanley, Lord Halsbury, Lord High Chancellor of Great

[Reported by W. F. BARRY, Barrister-at-Law.] Britain, do hereby Order that the Action mentioned in the Schedule hereto shall be transferred to the Honourable Mr. Justice Wright.


11th Dec. Mr. Justice STIRLING (1897-H-No. 3,443). In re Harrisons, ld Thomas Price Gower and another v Harrisons, la EXECUTOR-EXECUTOR DE Son Torr—INTERMEDDLING WITH Assets of and another.



This was an appeal from the judgment of a Divisional Court (Wills and

Grantham, JJ.) on the hearing of an information by the AttorneyOn a divorce cage being called on in the Probate Division on the 17th General, claiming that the defendants had, by acting as executors de son inst., says the Times, Mr. Ivderwick, Q.C., who appeared for the peti- tort, rendered themselves liable to the penalties and duties imposed by 55 tioner, stated that it was an extremely painful case, the details of which, Geo. 3, c. 184, s. 37, and 44 & 45 Vict. c. 12, s. 40. The defendant in the public interest, had better not be made public property. The company, which was incorporated and registered in England, was formed President: From what I have seen of the case I am certain that the for the purpose of acquiring, and did acquire, two businesses which had evidence had much better not be given in public, and I can only express been carried on in New York. Henry Clausen, a person domiciled and a hope that no one will remain in court except those who have real business resident in New York, was registered in the books of the company in there. The court then emptied of all but the reporters, counsel, and London as the holder of preference shares, ordinary shares, and debenwitnesses in the case. The President (addressing the reporters), said : Itures of the nominal value of £42,210. He died on the 28th of December, hope, gentlemen, that you will not report this case. One of the reporters : 1893, and by his will he appointed two persons named Schmidt and Does your lordship say that we must not report this case ? The President. Stocky, both of New York, his executors, and on the 19th of January, No, sir, I only express the hope that you will not. I must add that, 1894, letters testamentary of Henry Clausen's estate were granted by the from my past experience, I have every confidence in the gentlemen of the Surrogates Court of New York to Schmidt and Stocky. Article 44 of the press. The reporters then left the court,

articles of association of the company provided that any person becoming

entitled to a share in consequence of the death of a member might, on The Court (LINDLEY, M.R., and CHITTY and VAUGHAN WILLIAMS, L.JJ.) producing such evidence of title as the directors should require, be regis varied the order and increased the security by £250, making the sum of tered himself as a shareholder. Article 47 provided that a person entitled £600 in all. to a share by transmission should be entitled to receive and might give a LINDLEY, M.R., said : This case turns upon the true construction of discharge for any dividends, bonuses, or other moneys payable in respect section 69 of the Companies Act, 1862, and the proper mode of applying of the share. Schmidt and Stocky, without taking out probate in this it. It is obvious that as to a question of quantum such as this you cannot country, applied to the company to transfer Clausen's shares and deben- lay down any very accurate principle or rule. The only principle which, tures into their names. In order to raise the question which it was desired as it appears to me, can be said to apply to case of the kind is this, that to raise in this case, the company transferred one share and one debenture you must have regard, in deciding upon the amount of the security to be into their names, and also paid them the dividends and interest due ordered, to the probable costs which the defendant will be put to, so far thereon. It appeared that this was done in accordance with an under- as can be ascertained. It would be absurd, of course, to take the estimate standing with the Commissioners of Inland Revenue, and that the com of the managing clerk to the defendant's solicitor, and give him just what pany were aware that Schmidt and Stocky had not taken out probate in he asks for. You must look, as fairly as you can, at the whole case, this country, and did not intend to do so. The Divisional Court gave remembering, also, that the security given should be neither illusory nor judgment against the claim of the Crown. The Crown appealed. oppressive. Here we think that in Foster's case the security ordered by

The Court (A. L. SMITH, RIGBY, and Collins, L.JJ.) allowed the Kekewich, J., ought to be increased by the sum of £250, which will make appeal.

it up to the sum of £600 in all. You must take into account the chance A. L. SMITH, L.J., said this was a test case brought to determine that the sum of £600 is a reasonable one, and is sufficient. The view we

of the case collapsing without coming to trial ; and on the whole we think whether an English company could, upon the death of a foreign shareholder, with impunity transfer into the names of his foreign executors Japan v. Bank of Hindustan, China, and Japan (14 W. R. 811, 1 Ch. 437),

are taking is consistent with the case of Imperial Bank of China, India, and sbares and debentures standing in the name of the deceased shareholder which seems to be the only case on the construction of section 69. The in the books of the company, and pay to such executors the arrears of costs here and below must be costs in the action. interest and dividends due thereon at the date of his death without such

CHITTY, L.J., said : Section 69 of the Companies Act, 1862, provides for executors taking out or being about to take out representation to the deceased in this country. The Solicitor-General had stated in this court not see how you can lay down any rule more useful than that, or any rule

an order for "sufficient security” for the defendant's costs. I really do that he did not now ask for penalties. If the foreign executors had come

more precise. There must be some estimate made of what expenses the over to this country and obtained a transfer of the shares of their testator defendant will be put to, and the court has to take a reasonable view of and payment of the dividends thereon without taking out or intending to all the circumstances, the nature of the suit, and any other matters that take out probate in this country, they would have constituted themselves executors de son tort; and this would have been so although they did not

may properly be brought in. The court is certainly not bound to give the personally come to this country. How then could the defendant com

amount of security which the defendant, by his solicitors, says he thinks pany justify what they did at the request of these executors in administer. been said by the Master of the Rolls as to the proper amount to be given.

will probably be the amount of his costs. I entirely agree with what has ing the English assets the deceased ? executor might do many things connected with the estate of his testator | It seems to me that £600 is a reasonable amount in the circumstances of

this case. before taking out probate, stiil, when either an executor had to justify what he had done as executor, or another had to justify what he had done SOLICITORS, Nicholson, Graham, f. Graham ; Norton, Rose, Norton, & Co.

VAUGHAN WILLIAMS, L.J., concurred.-COUNSEL, Macaskie ; A. R. Kirby. at the request of an executor, each must prove that the executor was in fact the executor of the deceased, and this could only be done by produc

[Reported by R. C. MACKENZIE, Barrister-at-Law.] tion of the probate : see Johnson v. Warwick (17 C. B. 522). The American will, as regarded the English assets, had no validity in this country. This therefore was not the case of a debtor of a testator paying his debt to the

High Court-Queen's Bench Division. executor named in the English will before the executor proved the will, but it was a case of payment made to a person who had no legal right tó THE WEST LONDON SYNDICATE (LIM.) (Appellents) v. THE COMreceive it, with knowledge that that person would never become legally MISSIONERS OF INLAND REVENUE (Respondents). Div Court, entitled to receive it. Even without that knowledge the defendant com

14th and 15th Dec. pany would have made themselves executors de son tort: Sharland v. Mildon REVENUB-STAMP-AD VALOREM Duty-CONSIDERATION FOR SALE-AGREE(5 Hare 469) and Hill v. Curtis (L. R. 1 Eq. 90). It was clear that an

MENT FOR THE SALE OF THE WHOLE OP THE VENDOR'S INTEREST IN ezecutor de son tort was liable to pay probate duty on the assets of a LICENSED PREMI SES-GOODWILL—“LEGAL OR EQUITABLE TRANSFER"testator which he administered. In his opinion it was open to the Attorney-General to file an information against the company, asking that

STAMP Act, 1891 (54 & 55 Vict. c. 39), ss. 13, 59 (1). it might be declared that a debt had arisen and become payable to Her

Case stated by the Commissioners of Inland Revenue pursuant to section Majesty in respect of the duty upon the amount of the English assets in 13 of the Stamp Act, 1891. On the 4th of January, 1897, an instrument this country at the date of the death of the deceased which the defendants was presented to them on behalf of the West London Syndicate (Limited), had administered: Attorney-General v. Dimond (1 Cr. & J. 356), Attorney- under section 12 of the Stamp Act, 1891, for their opinion as to what General v. Hope (1 Cr. M. & R. 530), and Attorney-General v. Brunning (8 stamp duty the instrument was chargeable. It was dated the 19th of H. L. C, 243). And he thought that the defendant company were liable March, 1895, and was an agreement under seal for the sale by one Thorne to pay the duty claimed upon the assets which they had administered in to the syndicate of, firstly, the goodwill of the business of an hotel prothis country:

prietor and licensed victualler carried on by the vendor at Fischer's Rigby, L.J., was of the same opinion. Duty was payable in respect of Hotel, Bond-street, and the benefit of the licences, contracts, and priviall the assets of a deceased person which were locally situate in leges of the vendor; secondly, the lease of the hotel, subject to the yearly England, and local assets included shares and debentures standing in the rent of £964; thirdly, furniture, fixtures, and fittings ; and, fourth lý, name of the deceased. Therefore, even if the dividends and interest were

stock-in-trade and book debts. The consideration for the sale was the paid abroad, the payment would still be the act of the company whereby undertaking by the syndicate to pay £1,335 8s. 4d., trade debts of the a chose in action of the company was dealt with so as to constitute the vendor, and £4,250, of which latter sum £1,462 16s. 3d. was for stock-incompany executors de son tort.

trade. In other words, the purchase consideration was the sum of COLLINS, L.J., concurred.-COUNSEL, Sir R. E. Webster, A.G., Sir R. B. £5,585 88. 4d., including for lease and goodwill £4,085 88. 4d. It was Finlay, S.G., and Vaughan Hawkins ; Moulton, Q.C., Asquith, Q.C., stated to the commissioners that it was impossible to sever the goodwill Bremner, and Gore-Brown. SOLICITORS, Solicitor of Inland Revenue ; 'Burn $ from the lease itself, because the goodwill ceased to be of value when severed Berridge.

from the lease, but that withouta covenant restricting the vendor from carr y(Reported by F. G. RUCKER, Barrister-at-Law.]

ingon business in the neighbourhood the lease would be of less value by £ 400.

The material clause in the agreement was as follows : (6) “The leasehold DOMINION BREWERY CO. (LIM.) v. FOSTER. No. 2. 8th Dec. premises hereby agreed to be sold, being only assignable with the consent

of the landlords from whom the same are held, the vendor shall use his PRACTICE-SECURITY FOR Costs - LIMITED COMPANY PLAINTIFF-"SUFFICIENT best endeavours to obtain the requisite consent for the assignment thereof SECURITY"-COMPANIES ACT, 1862 (25 & 26 Vict. c. 89), s. 69.

to the syndicate or their assigns, and in the event of such consent not In this case one of the defendants appealed, by leave, from a decision of being obtained the vendor shall, at the option of the syndicate, execute Kekewich, J., at chambers, refusing to order the plaintiff to give security a declaration of trust of the said leasehold premises in its favour.” There for costs to a greater amount than £350, which sum had been directed by had been no assignment of the leasehold premises, but a declaration of a previous order, and had been given. The appellant relied on the un- trust bearing date the 21st of March, 1895, had been executed by which contradicted evidence of the managing clerk to the defendant's solicitor to the equitable interest in the leasehold premises became vested in the the effect that the defendant's costs of the action, if it went to trial, would syndicate. The commissioners, having regard to sections 5 and 15 of be not less than £1,000. It was not disputed that the case was one in the Stamp Act, 1891, were of opinion that inasmuch as neither the sum of which security ought to be given, and the only contest was as to the sum £4,085 85. 4d. nor any other part of the consideration money had to be ordered. Section 69 of the Companies Act, 1862, enacts that where been expressed by the declaration of trust to be apportioned to the a limited company is plaintiff in any action“ any judge having jurisdic- leasehold premises so as to make that instrument chargeable according to tion in the matter may, if it appears by any credible testimony that its terms with ad valorem duty as a conveyance on sale, the whole amount there is reason to believe that if the defendant be successful in his defence of the sum paid to the vendor except the sum of £1,462 16s. 3d. apporthe assets of the company will be insufficient to pay his costs, require tioned as the consideration for taking over the stock-in-trade, was to be sufficient security to be given for such costs, and may stay all proceedings regarded as having been paid for the other property contracted to be sold until such security is given. Kekewich, J., was of opinion that there under the agreement. They decided, therefore, that under section 59 (1) was no hard and fast rule obliging him to give the sum mentioned in the of the Stamp Act, 1891, the agreement was chargeable with ad valorem evidence filed on behalf of the defendant, and he refused to increase the conveyance duty on the sum of £5,585 8s. 4d. less £1,462 16s. 3d. for security.

furniture and stock-in-trade, making the net sum of £4,122 128. ld. On


this net sum the commissioners considered that an ad valorum duty Vict. c. 30), s. 2 (1) (0)-CUSTOMS AND INLAND REVENUE Act, 1881 (44 amounting to $20 15s. was payable under the agreement, being an ad Vict. c. 12), s. 38. valorem duty of 58. for every £50 thereof payable under the head of " Conveyance or Transfer on Sale" in the first schedule to the Stamp Act, estate duty upon estates which were at one time the property of the late

The question in this case was as to the liability of Earl Grey to pay 1891, and they also assessed the fixed duty of 10s. in respect of the agree Earl Grey, but which had been transferred to him during the lifetime ment for the sale of the leasehold premises, furniture, and stock-in-trade. of the late earl. By a deed dated the 19th of October, 1885, the The instrument had since been stamped in accordance with the assessment. The commissioners, however, stated, at the request of the syndi: George Grey, the present earl, his estates in Northumberland, including

late earl, who was then living, transferred to his nephew, Albert Henry cate, this case, and the questions for the opinion of the court were: (1) the mansion-house at Howick, subject to an annual rent-charge in favour Whether the instrument was chargeable with the ad valorem duty of $20 158. as being in fact a conveyance on sale of an equitable interest in / of the late earl of £4,000, upon trust to permit the late eari to occupy land? (2) If not, with what amount of ad valorem duty it was chargeable, ture and effects therein as theretofore, and also upon the following trusts,

and enjoy the mansion-house and appurtenances together with the furnithe contention of the syndicate being that it was only liable to a 108. stamp and an ad valorem duty on the book debts, which amounted to less

to pay certain annuities; to pay certain mortgage debts and interest ; to than $50. During the argument the following cases were cited by the pay the rent-charge of $4,000 per annum; to keep up the mansion-house, appellants :, The Commissioners of Inland Revenue v. Glasgow and South- gardens, &c.; to pay the funeral expenses and debts of the late Western Railway Co. (12 App. Cas. 315), Angus' case (23 Q. B. 579), Com- barl; and not to dispose of certain farms, but to continue farming

them as theretofore. It was further provided that the late Earl missioners of Inland Revenue v. Wale (4 Ex. D. 271), Potter v. Commissioners of Inland Revenue (10 Ex. 147), and Ex parte Punnett (16 Ch. D. 226), where Grey should have power to revoke the deed in the event of the it was laid down that the good will of a public-house was not a personal present Earl Grey dying in the lifetime of the late earl, or of any goodwill, but on the sale of the house passed with it. [At the conclusion By a deed dated the 26th of September, 1894, the late earl, in consider;

esent Earl Grey of any covenant on his part. of the appellants' reply the Attorney-General claimed in right of the Crown to reply to the reply of the appellants in Revenue cases, and the ation of £5,000, released to the present earl the rent-charge of £4,000, and court decided he had a right to be heard.]

further released the present earl from the power of revocation and from The Court (GRANTHAM and CHANNELL, JJ.) allowed the appeal. In their under the covenant not to dispose of certain farms. The late earl died on

the covenant to pay the rent-charge of £4,000, as well as from all claims opinion the commissioners were wrong in holding that the instrument the 9th of October, 1894, and thereupon the present earl succeeded to the was a contract for a conveyance on sale ; it was not the real conveyance, earldom. The net annual income of the property comprised in the deed but merely an agreement setting out what the parties intended to do in of 1885, after deducting interest on incumbrances and other charges and the future. There was an option given to the syndicate--the purchasers, the cost of management, is now and was before the date of the lastwho were at liberty to take, but were not bound to take, an equitable mentioned deed very considerably in excess of £4,000. The present Earl interest from the vendor, in the event of his failing to obtain from his Grey paid duty only upon the value of the mansion-house of Howick and landlords, as appeared to be the case, their consent for the assignment of

the effects therein. his legal interest in the lease of the premises to the syndicate. Nor was value (less the value of incumbrances subsisting thereon) of the whole of

An information was laid claiming duty upon the it a contract by the vendor for the sale of any, estate or interest in any the property comprised in the deed of the 19th of October, 1885. The duty property other than lands or goods within the exception provided in section 59 of the Stamp Act, 1891. Moreover, the parties had not treated which grants a graduated duty upon all property which passes on the death

was claimed under section 1 of the Finance Act, 1894 (57 & 58 Vict, c. 30) the value of the goodwill and licences as an interest separate from the

of a deceased person. premises, although they had dealt with the goodwill in the instrument death of the deceased shall include: “Property which would be required

Section 2 provides that property passing on the apart from the lease.-COUNSEL, A. T. Lawrence, Q.O., and Spearman; Sir R. E. Webster, A.G., and Danckwerts. SOLICITORS, A. E. Griffiths ; The 38 of the Customs and Inland Revenue Act, 1881, as amended by

on the death of the deceased to be included in an account under sectiou Solicitor to Inland Revenue.

section 11 of the Customs and Inland Revenue Act, 1889, if those sections [Reported by ERSKINE REID, Barrister-at-Law.]

were herein enacted and extended to real property as well as FANCETT ». BIERMAN. Div. Court. 16th Dec.

personal property, and the words 'voluntary' and 6 volunPAWNBROKER-UNAUTHORIZED PERSON Pawns PROPERTY OF ANOTHER

tarily' and a reference to a 'volunteer' were omitted therefrom.”'

Section 38 of the Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), ORDER ON PAWNBROKBR TO RESTORE TO OWNER—PAWNBROKER'S RIGHT grants stamp duties on accounts delivered of personal or moveable property TO PROSECUTE PAwner - METROPOLITAN POLICE Courts Act, 1839 of the following, among other, descriptions : Sub-section (2) (a): "Any (2 & 3 Vict. c. 71), s. 40—PAWNBROKERS Act, 1872 (35 & 36 VICT. C

property taken as a donatio mortis causâ made by any person dying on or 93), s. 33.

after the 1st day of June, 1881, or taken under a voluntary disposition, made Special case stated by J. Hanney, Esq., a stipendiary metropolitan by any person so dying, purporting to operate as an immediate gift inter magistrate. At the Marlborough-street police-court a complaint was vivos whether by way of transfer, delivery, declaration of trust, or otherwas preferred by Thomas Fancett against Ann Bierman under section 33 wise, which shall not have been bona fide made three months before the of the Pawnbrokers Act, 1872, for that she had pawned with the death of the deceased,” and (c) “Any property passing under any past or appellants, J. B. Harrison and J. H. Caudell, pawnbrokers, a certain future voluntary settlement made by any person dying on or after such coat the property of one Joseph Lawrance without his authority to do so. day by deed or any other instrument not taking effect as a will, whereby The magistrate dismissed the summons. The facts were these : The an interest in such property for life or any other period determinable by informant Fancett was manager to the pawnbrokers, and on the 30th of reference to death is reserved either expressly or by implication to the November the woman came into their shop and pawned the coat in settlor, or whereby the settlor may have reserved to himself the right, by question for £1 18. The evidence was that the coat had been given to the the exercise of any power, to restore to himself, or to reclaim the absolute woman's husband by Lawrance to repair, and she had no authority to interest in such property." The Customs and Inland Revenue Act, 1889 pledge it. The owner of the coat then summoned the pawnbrokers under (52 Vict. c. 7), s. 11, amends section 38 (2) and provides : “ The descripsection 40 of the Metropolitan Police Act, 1839, and they were ordered to tion of property marked (a) shall be read as if the word "twelve" were hand the coat over to him. They then prosecuted the woman, but the substituted for the word three” therein, and the said deecription of magistrate considered that section 33 of the Pawnbrokers Act, '1872, did property shall include property taken under any gift, whenever not give the pawnbroker power to proceed against the woman. That made, of which property bond fide possession and enjoyment section is as follows: "If any person knowingly and designedly pawns shall not have been assumed by the donee immediately upon the gift and with a pawnbroker anything being the property of another person, the thenceforward retained, to the entire exclusion of the donor, or of any pawner not being employed or authorized by the owner thereof to pawn benefit to him by contract or otherwise.” On behalf of the Crown it was the same, he shall be guilty of an offence against this Act and shall be contended that duty was payable in respect of the property on the grounds liable on conviction thereof in a court of summary jurisdiction to forfeit that (1) bond fide possession of the property was not assumed to the entire any sum not exceeding £5, and in addition thereto any sum not exceeding exclusion of the donor, (2) that an express interest was reserved to the the full value of the pledge as ascertained by the court.' The question donor, and (3) that the deed reserved an express power of revocation to for the decision of the court was whether the magistrate was right in the donor. Attorney-General v. Worrall (1895, 1 Q. B. 99) was cited. It dismissing the summons on the ground that prosecutors were a party was further contended that the deed of 1894 did not affect the question, to the act complained of and had no right to give or withhold authority to because it could not alter the effect of the deed of 1885, and if taken to the respondent to pledge the coat with them, and also that they were not operate as a gift by itself, it was made too late. It was contended on the party injured by the wrongful pledging, but the person whose behalf of the respondent that the reservation of a small income out of a property the woman had pawned. Counsel for the appellants argued large property would not render the whole property liable to duty, nor that, the magistrate was wrong and that the person injured by the would the reservation of the use of the mansion-house. The respondent wrongful pawning was the pawnbroker. No one appeared to argue for was only liable to pay duty to the extent to which a benefit was reserved the respondent.

to the late Earl Grey. The power of revocation, it was contended, being The Court (GRANTHAM and CHANNELL, JJ.) decided that the appeal only a limited power, was not one of those contemplated by section 38. must be allowed. In their opinion the magistrate ought to have convicted The Court (GRANTHAM and CHANNELL, JJ.) gave judgment in favour of the woman and imposed a fine sufficient, at least, to cover the amount the Crown, upon the grounds that an interest was reserved to the late which the pawnbrokers had advanced 'on the article, and that such Earl Grey in the entirety of the property, and that a power of revocation amount should be repaid to the prosecutors. The case was accordingly was likewise reserved. remitted to the magistrate to convict.-COUNSEL, Bucknill, Q.C., and CHANNELL, J., was inclined to think that if the interest had been C. L. Attenborough. ŠOLICITORS, Attenborough & Son.

reserved on a portion of the property only, section 38 (2) (e) would not have [Reported by ERSKINE REID, Barrister-at-Law.]

applied, because “such property" in that section could not be taken to ATTORNEY-GENERAL v. EARL GREY. Div. Court. 13th Dec.

refer to a portion of the property.-COUNSEL, Sir R. E. Webster, A.G.;

Sir R. B. Finlay, s.G., and Danckwerts ; Cozens-Hardy, Q.c., and REVENUB-ESTATE DUTY-GIFT OF PROPERTY-RESERVATION OF INTEREST Bremner. SOLICITORS, Solicitor for Inland Revenue ; E. Flux f Leadbitler. RESERVATION OF POWER OF REVOCATION -FINANCE Act, 1894 (57 & 58

[Reported by C, G. WILBRAHAM, Barrister-at-Law.]

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