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On appeal to the House of Lords (Bloomenthal v. Ford, 45 W. R. 449; 1897, A. C. 156), it was held that as the company had obtained a loan by a representation in the certificate that the shares were fully paid, which BLOOMENTHAL believed and acted upon, the liquidator was estopped from alleging that the shares were not fully paid. The Appeal Court’s decision was therefore reversed, and the effect of the House of Lords’ decision is that the company is estopped in such cases even when it seeks to fasten liability on an original allottee. Anyone who for vaiue accepts the position of registered proprietor of shares on the faith of the company’s statement under its common seal that on each the full amount has been paid, is under no liability although not a shilling has been paid up. The speeches of the noble and learned lords entirely ignore the supposed distinction between a transferee and an allottee.
In the case of Re TV:-agg (45 W. R. 557; 1897, 1 Ch. 796), after winding up the liquidator wished to have it declared that there was a cash liability in respect of shares issued as fully paid under a duly-filed contract, on the ground that the shares were issued to the vendors to the company of certain property which, though of some value, was not of a value equal to the nominal value of the shares-—-the efiect being, as was contended, that the shares were issued at a discount. But it was held that as the contract stood unimpeached, the value of the property could not be inquired into. No other decision was possible, having regard to .PvZl's case (18 W. R. 31; L. R. 5 Ch. 11), Forbes and Judd’s case (18 W. R. 302 ; L. R. 5 Ch. 270), and several other decisions which are referred to in the judgment in Re Wragg.
Both Re Wrayg and Salomon v. Salomon §~ Co. are important contributions to the law of “private” companies—that is to say, companies registered under the Companies Acts, but not inviting the public to subscribe for their shares. No one could say that the directors of either company were what is called " an independent executive.” Now, it was clearly laid down in the House of Lords in Erlrmge-r v. New Sombrero Phosphate Co. (27 W. R. 65, L. R. 3 App. Gas. 1218, 1236) that if the owner of property promotes and forms a company, and then sells his property to it, “ he is bound to take care that he sells it to the company through the medium of a board of directors who can and do exercise an independent and intelligent judgment in the transaction.” But, as Lord Dsvnv pointed out in Salomon/s ease, Erlan_qer’s case “is often quoted, and not infrequently misunderstood. . . . Lord CAIRNS observations ”— cited in part above—“ were directed only to a case such as he had before him, where it was attempted to bind es large body of shareholders by a contract which purported to be made between the vendor and directors before the shares were ojlbred for subscriptfon, whereas it appeared that the directors were only the nominees of the vendor, who had accepted his bidding and exercised no judgment of their own.” In E'rlrm_ger’s case the publication of a prospectus materially influenced the share subscription (see p. 1221). Lord HALSBURY and Lord WATSON also took care to distinguish Erlanger’s case from that of a company like the one got up by Mr. Sanomon, which, as Lord Msonaonrnn points out (or his judgment means nothing), was essentially a private company. The forerunner of these cases was R0 B~ritish Seamless Paper Box Co. (29 W. R. 690, 17 Ch. D. 467), where a transaction which would not have stood in the case of a public company, was held to be valid in the case of a private one.
The much~vexed question as to who is an “ officer ” of a company within the meaning of section 10 of the Companies (Winding-up) Act, 1890, arose again in Re ll/Trstern Counties, §-0., Co. (45 W. R. 518; 1897, 1 Ch. 617). In Re London and General Bank (43 ’W. R. 481 ; 1895, 2 Ch. 166) it was held by the Court of Appeal that the auditor of a joint-stock banking company, appointed and acting under articles of association in the Table A or usual form, was an oflicer of the company, and that court held that an auditor, similarly appointed and acting, was an oflicer, although the company was an ordinary trading company: Re Kin-gston Cotton Mill Co. (44 W. R. 210; 1896, 1 Ch. 6). It will be remembered that Lord Hnnsonnnn, who presided in the Court of Appeal on the hearing of the case last cited, only acquiesced in the decision because he considered that, sitting where he was, he was bound by the former decision of
the Court of Appeal. If the same oint went to the House of Lords there would probably be a difference of opinion among the Lords, and it is clear that the law cannot be stretched any further so as to catch auditors as oflicers. But in the Western Counties case an attempt was made to strain the law still further. A firm of accountants had audited the accounts on a given occasion, being asked to do so by one of the directors. They were not appointed in the manner prescribed by the articles, but they were paid by the company. Mr. Justice Srrnmxo, misled by the specious argument that the accountants were do faclo officers, held that they could be proceeded against under section 10. The Court of Appeal, however, held that being n. ale facto auditor is not necessarily being a rle facto ofiicer, for an auditor is not expressly mentioned in the section, and that a mere “casual auditor,”to use a term employed in the argument, is not an ofiicer of the company. He stands, in fact, in the same position asa banker (Re Imperial Land Co. of llarseilles, L. R. 10 Eq. 298), or a solicitor who is not a salaried official (Carter's case, 31 Ch. D. 496). Lord Justice LINDLEY expressed the opinion, however, that even a banker or solicitor might, under certain circumstances, be an officer of the com any. The Western Counties case points out the high-water maid: of legal authority as to what persons are officers of a company within sections 8 and 10 of the Companies (Winding-up) Act, 1890.
Anotice of two or three cases as to voluntary winding up must plose our remarks about the winding up of companies in 1896- . .
A voluntary winding up commences with the passing of an extraordinary or special resolution, and the mode of passing a special resolution (whether for voluntary winding up or any other purpose) is pointed out by section 51 of the Companies Act, 1862. The section contemplates cases in which a poll is demanded as well as those in which there is no such demand, and, of course, there may be a valid resolution although no poll is demanded. But where by the articles of association voting by proxy is allowed, and a resolution is passed on a show of hands without a poll, how are the votes of proxies to be counted? In Re Bidwell Brothers (41 W. R. 363; 1893, 1 Ch. 603) Mr. Justice VAUGHAN VVILLI.-ms held that the chairman must count the vote of each person wlzo had appointed aprozy, not according to the number of votes which he might give on a poll, but as one vote. Mr. Justice Cnrrrr afterwards held that the chairman must count the vote of each person present who lzelzl proxies as a single vote, and not count a vote for each of the members whose proxies he holds; and this decision was affirmed on appeal, Re Bidwsll Brothers being overruled: Ernest v. Lama Golrl Jllines (45 W. R. 86; 1897, 1 Ch. 1). In the same case it was held that where the date of meeting is left blank in a proxy paper, and this paper, duly stamped, is signed and returned without the blank being filled in, the filling up of the blank by the secretary before it is lodged with the company does not invalidate the proxy, the secretary having implied authority to supply the accidental omission.
Another case as to voluntary winding up, and the special resolution in favour of it, is Lee v. Roumlwood Colliery Co. (45 W. R. 324; 1897, 1 Ch. 373). The decision of Mr. Justice Srmmno on the principal points of the case was reversed by the Court of Appeal; but he decided some minor points which were left untouched—viz., (a) that where a distress is levied by a company’s landlord, but not completed by sale, before the commencement of a voluntary winding up—that is, the date of the confirmatory resolution where the winding up is by special reolution —the court has jurisdiction to restrain by injunction further proceedings under the distress; (b) that to obtain such an injunction the liquidator must shew special reasons rendering it inequitable to allow the distress to go on ; (c) that the fact that the distress was levied between the date of the first and the confirmatory resolution is not a suflicient special reason.
More difficult questions were involved in Re National Bank of Wales (45 W. R. 401 ; 1897, 1 Ch. 298). In this case, after the commencement of the winding up, the voluntary liquidator had sanctioned transfers of the shares of certain contributories—as section 131 of the Companies Act, 1862, empowers him to doand some of the transferees had again transferred their shares with his concurrence. The Court of Appeal, differing from the
view taken by Mr. Justice VAUGHAN Winnmisis, held that on giving such sanction the liquidator had power to make alterations m the register of members; that the transferor was thereupon released from his liability as a present member, and could not be put on the A list of contributories; and that where there were successive transfers, only the ultimate transferee was to be put on the A list, the transferor and the other transferees being only under liability as past members. A reference to the various sections on which these conclusions were arrived at will shew how diffioult were the points involved.
the edperimental trial should not be the whole county of London. ' ' ' h ftht nt aslies
In my opinion it should embrace only so muc 0 a cou y within the county of Middlesex and is already subject to registration, though of deeds—not of title. The inconvenience, if the experiment should be unsuccessful, would in that case be reduced to a minimum.
The London County Council are not likely to wholly veto the application of the order to the county of London, and in my judgment ought not to do so. The efforts of those who dislike the experiment would be more wisely directed towards limiting the area in which it is to be made, and towards ensuring that, while the selected area shall he large and varied enough to afford a fair trial, the experiment shall, in the event of failure, be as little permanently injurious as possible.
My ow-n eflbrts will certainly be exerted in this direction, but Mr.
Fraser greatly overrates the extent of my influence. Bnmimm G. LAKE.
To the Editor of the Solicitors’ Journal]
[ ' .
Sir,—Knowing the interest you take in this subject, you will be pleased to hear that our Parliamentary Committee (Marylebone Vestry) fmyself in the chair—have unanimously decided against the application of this Act to the county of London, and that the London County Council should be so informed in reply to their circular.
This decision remains, of course, to be adopted by the vestry when the report comes up after Christmas, but I entertain no doubt that the recommendation will be confirmed. G. R. H. STRINGER.
[The report, confirmed by the Vestry, will be found elsewhere.—
It is announced that Mr. Graham Hastings, Q,.C., who has just retired from practice at the bar, has presented his clerk, Mr. G. Ellis, with a cheque for £1,000.
Mr. Justice Bigham was entertained by the Northern Circuit at a conRwtulatoi-_v dinner upon his recent elevation to the bench at the Whitehall Rooms, _HGtel Métropole, on Saturday last. Mr. Littler, Q.C., was in the chair, and among those present were Viscount Esher, the Lord Chief Jllfliltle, the Speaker of the House of Commons, Lord Justice Collins, Mr. Jlyitloe Wright, Mr. Justice Barnes, and Mr. Justice Kennedy. Mr. Littler proposed the health of Mr. Justice Blgham, who, in replying, said gal he joined the circuit twenty-seven years ago and commenced at
hyerpool m circumstances of no great encouragement. He had but few trfllds, httle means, and no influence 2 but in the profession of a barrister
I esuccess came by hard work. His record consisted of nothing but P_°d<1i11g. He gave to every task not half his heart but the whole. He “filled the members of the circuit to remember that though the Lord C_l1lm_cellor nominated judges and the Queen appointed them, it was the (§Nl1lttlIl8.li_I11l1(?.6 them. Lord Esher, in replying to the toast of “The
J°|'t_h°1'l Circuit Judges,” said that he was there to do honour to Mr.
Dinah“ Bikham and once more to proclaim himself “ a disreputable son ”
um °1¢1 Nortlierii Circuit.
NEW ORDERS, &c. TI-IE PATENTS, DESIGNS, AND TRADE-MARKS ACT, I883.
Whereas by the 25th section of an Act of Parliament passed in the 46th and ~l7th years of her Majesty’s reign, intituled “ The Patents, Designs, and Trade-marks Act, 1883, it is amongst other things enacted that a patentee may, after advertising in manner directed by any rules made under the said section his intention to do so. present a petition to her Majesty in Council, praying that his patent may be 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 leased 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 lawful for her Majesty in Council to make from time to time rules of procedure and practice for regulating the proceedings on such etitions, and subject thereto such proceedings shallbe regulated according to the existing procedure and practice in patent matters of the Judicial Committee :
And whereas her Majesty in Council has deemed it expedient to make rules for regulating proceedings in such petitions.
Her Majesty is therefore pleased by and with the advice of her Privy Council to approve of the several rules and regulations contained in the schedule hereunto annexed, and to order as it is 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. C. L. PEEL.
26 November, 1897.
The SCHEDULE above referred to.
Roms TO BE OBSERVED m PROCEEDINGS BEFORE THE JUDICIAL COMMITTEE or rm: Pnrvv COUNCIL UNDER THE PATENTS, DESIGNS,
AND TRADE'MARKs Aer, 1883, s. 25.
A party intending to apply by petition under section 25 of the Act shall give public notice by advertising three times in the London Gazette and once at least in each of three London newspapers. _
If the applicant’s principal place of business is situated in the United Kingdom at a distance of fifteen miles or more from Charing Cross he shall also advertise once at least in some local newspaper published or circulating in the town or district where such place of business is situated. If the applicant has no place of business, then, if he carries on the manufacture of anything made under his specification at a distance of fifteen miles or more from Charing Cross, he shall advertise once at least in some local newspaper published or circulating in the town or district where he carries on such manufacture. If he has no place of business and carries on no such manufacture, then, if he resides at a distance of fifty iniles or more from Charing Cross, he shall advertise once at least in some newspaper published or circulating in the town or district where he resides.
The applicant shall in his advertisement state the object of his petition and shall give notice of the day on which he intends to apply for a time to be fixed for hearing the matter thereof, which day shall not be less than four weeks from the date of the publication of the last of the advertisements to be inserted in the London Gazette. He shall also give notice that caveats must be entered at the Council Otfice on or before such day so named in the said advertisements.
Lords of the Committee at the hearmg. He shall also furnish three
2 THE SOLICITORS’ JOURNAL. Dec. 25
copies of the said balance-sheet for the use of the Solicitor the Treasury, and shall upon receiving two days’ notice give the Sohcitor to the Treasury or any person deputed by him for the purpose reasonable facilities for inspecting and taking extracts from the books of account, by reference to which he proposes to verify the said balance-sheet at the hearing or from which the materials for making up the said balance-sheet have been derived.
All copies mentioned in this rule must be lodged and furnished not less than fourteen days before the day fixed for the hearing.
A party intending to oppose a petition under section 25 of the Act must enter a. caveat at the Coimcil Oflice before the day on which the petitioner applies for a time to be fixed for hearing the matter thereof, and having entered such caveat shall be entitled to have from the petitioner four weeks’ notice of the time appointed for the hearing.
The petitioner shall serve copies of his petition on all parties entering caveats in accordance with this rule, and no application to fix a time for hearing shall be made without affidavit of such service.
All parties intending to oppose a petition shall, within three weeks after such copies are served on them respectively lodge at the Council Oflice eight printed copies of the grounds of their objections to the granting of the prayer of the petition.
On a divorce case being called on in the Probate Division on the 17th inst., says the Times, Mr. Inderwick, Q,.C., who appeared for the petitioner, stated that it was an extremely painful case, the details of which, in the public interest, had better not be made public property. The President: From what I have seen of the case I am certain that the evidence had much better not be given in public, and I can only express a hope that no one will remain in court except those who have real business there. The court then emptied of all but the reporters. counsel, and witnesses in the case. The President (addressing the reporters), said: I hope, gentlemen, that you will not report this case. One of the reporters : Does your lordship say that we must not report this case? The President. No, sir, I only express the hope that you will not. I must add that, from my past experience, I have every confidence in the gentlemen of the press. The reporters then left the court.
Appeal from an order of Day, J . , at chambers. The sherifi having levied execution on the goods of the defendant in respect of a judgment recovered by the plaintiffs for a sum exceeding £20, the defendant on the 18th of September, 1897, paid tho sherifi out. Upon the 2nd of October, which was a Saturday, a receiving order was made against the defendant upon his own petition, and on the same day the oflicial receiver sent notice of the petition and receiving order to the sheriff by telegram, which was received by the latter at 3.40 p.m. on that day. It was admitted that the fourteen days during which the sheriff was required by section 11, sub-section 2, of the Bankruptcy Act, 1890, to hold the money did not begin to run until the 19th of September (see section 141 of the Bankruptcy Act, 1883). The claimant, the oflicial receiver, claimed the money upon the ground that the notice was given within the fourteen days, which did not expire until midnight of the 2nd of October. The execution creditors claimed the money upon the ground that by rule 90 of the Bankruptcy Rules, 1886, service of notices must be efiected before two in the afternoon of Saturdays, and that the notice was therefore too late. Upon an interpleader summons Day, J ., ordered the sheriff to hand over the money to the execution creditors. The claimant appealed. By section 11, sub-section 2, of the Bankruptcy Act, 1890: “ Where under an execution in respect of a judgment for a sum exceeding £20 the goods of a debtor are sold or money is paid in order to avoid sale, the sheriff shall deduct his costs of the execution from the proceeds of sale or the money paid, and retain the balance for fourteen days, and if within that time notice is served on him of a bankruptcy petition having been presented against or by the debtor, and a receiving order is made against the debtor thereon . . . the sheriff shall pay the balance to the oflicial receiver. . . ." By rule 90 of the Bankruptcy Rules, 1886 : “ Service of notices shall be effected before the hour of six in the afternoon, except on Saturday, when it shall be effected before the hour of two in the afternoon. Service efiected after six in the afternoon on any week-day, except Saturday, shall for the purpose of computing any period of time subsequent to such service be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the-following Monday.”
Tm; Covnr (A. L. Siurn, Bronx, and CoLL1.\'s, L.JJ.) allowed the appea .
A. L. Ssuru, L.J., said that the contention of the execution creditor came to this, that the fourteen days during which the sheriff was required to hold the money, and which would naturally expire at midnight of the 2nd of October, was cut down by rule 90. In his opinion rule 90 did not 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 in this part dealt with notices of procedure. He agreed with the decision of Grove, J ., in Curtis v. Wainbrook Iron 00. (Cab. & Ell. 351), a case which, no doubt, had been acted upon ever since it was decided. There was another ground upon which the case could be decided-namely, that there was nothing in rule 90 which invalidated a notice served after 2 p.m. on Saturday as a notice served upon that day. The rule merely said that for the purpose of computing the time within which the other party had to take a subsequent step in the proceedings the notice must be deemed to have been served on the following Monday.
Bronx and Co1.Lnvs, L.JJ., concurred.—Cou1vss1., H. Reed, Q.C., and H. J. Tarrell; Muir Mackenzie ; R. W. Coventry. Somcrrons, Askwell, Browning, .j- Tulin ; Warren, Marlon, §* Miller ; Rowcligfu, Rawle, §' Co., for Blandy 5- Bland;/, Reading.
[Reported by W’. F. Bsnar, Barrister-at-flaw.)
ATTORNEY-GENERAL v. NEW YORK BREWEBIE8 G0. (LIM.) N0. I. llth Dec.
This was an appeal from the judgment of a Divisional Court (Wills and Grantham, JJ.) on the hearing of an information by the AttorneyGeneral, claiming that theldefendants had, by acting as executors dc .9021 tort, rendered themselves liable to the penalties and duties imposed by 55 Geo. 3, c. 184, s. 37, and 44 & 45 Vict. c. 12, s. 40. The defendant company, which was incorporated and registered in England, was formed for the purpose of acquiring, and did acquire, two businesses which had been carried on in New York. Henry Clausen, a person domiciled and resident in New York, was registered in the books of the company 111 London as the holder of preference shares, ordinary shares, and debentures of the nominal value of £42,210. He died on the 28th of December1893, and by his will he appointed two persons named Schmidt and Stocky, both of New York, his executors, and on the 19th of January, 1894, letters testamentary of Henry Olausen's estate were granted by the Surrogates Court of New York to Schmidt and Stocky. Article 44 of the articles of association of the company provided that any person bccomlllil
entitled to a share in consequence of the death of a member might, on producing such evidence of title as the directors should require, be registered himself as a shareholder. Article 47 provided that a person entitled to a share by transmission should be entitled to receive and might give a discharge for any dividends, bonuses, or other moneys payable in respect of the share. Schmidt and Stocky, without taking out probate in this country, applied to the company to transfer Clausen’s shares and debentures into their names. In order to raise the question which it was desired to raise in this case, the company transferred one share and one debenture into their names, and also paid them the dividends and interest due thereon. It appeared that this was done in accordance with an understanding with the Commissioners of Inland Revenue, and that the company were aware that Schmidt and Stocky had not taken out probate in this country, and did not intend to do so. The Divisional Court gave judgment against the claim of the Crown. The Crown appealed.
Tm; Govar (A. L. SMITH, Rronv, and Contms, L.JJ.) allowed the appea .
A. L. Sxrru, L.J., said this was a test case brought to determine whether an English company could, upon the death of a foreign shareholder, with impunity transfer into the names of his foreign executors shares and debentures standing in the name of the deceased shareholder in the books of the company, and pay to such executors the arrears of interest and dividends due thereon at the date of his death without such executors taking out or being aboutto take out representation to the deceased in this country. The Solicitor-General had stated in this court that he did not now ask for penalties. If the foreign executors had come over to this country and obtained a transfer of the shares of their testator and payment of the dividends thereon without taking out or intending to 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 personally come to this country. How then could the defendant company justify what they did at the request of these executors in administering the English assets of the deceased? Although it was clear that an executor might do many things connected with the estate of his testator before taking out probate, still, when either an executor had to justify what he had done as executor, or another had to justify what he had done 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 production 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 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 to receive it, with knowledge that that person would never become legally entitled to receive it. Even without that knowledge the defendant company would have made themselves executors do son tort: S/mrlanel v. .l[iIdon (5 Hare 469) and Hill v. Curtis (L. R. 1 Eq. 90). It was clear that an executor do son tort was liable to pay probate duty on the assets of a testator which he administered. In his opinion it was open to the Attorney- General to file an information against the company, asking that it might be declared that a debt had arisen and become payable to Her Majesty in respect of the duty upon the amount of the English assets in this country at the date of the death of the deceased which the defendants had administered: Attorney-General v. Dimond (1 Cr. & J . 356), AttorneyGeneral V. Hope (1 Cr. M. S: R. 530), and Attorney-General v. Brzmning (8 H. L. C, 243). And hc thought that the defendant company were liable to pay the duty claimed upon the assets which they had administered in this country.
Rrcur, L.J., was of the same opinion. Duty was payable in respect of all the assets of a deceased person which were locally situate in England, and local assets included shares and debentures standing in the name of the deceased. Therefore, even if the dividends and interest were paid abroad, the payment would still be the act of the company whereby a chose in action of the company was dealt with so as to constitute the company executors do son tort.
Corrms, L.J., concurred.—Couxssr., Sir R. E. Webster, A.G., Sir R. B. Hnlay, S.G., and Vaughan Hawkins; Moulton, Q.O., Asquith, Q,.C., grernpler, and Gore-Brown. Somorrons, Solicitor of Inland Revenue ; Burn if
H1‘! I 6.
In this case one of the defendants appealed, by leave, from a decision of Kekewich, J ., at chambers, refusing to order the plaintiff to give security for costs to a greater amount than £350, which sum had been directed by a previous order, and had been given. The appellant relied on the uncontradicted evidence of the managing clerk to the defendant’s solicitor to the effect that the defendant's costs of the action, if it went to trial, would be not less than £1,000. It was not disputed that the case was one in which security ought to be given, and the only contest was as to the sum to be ordered. Section 69 of the Companies Act, 1862, enacts that where a limited company is plaintiff in any action “ any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that if the defendant be successful in his defence the assets of the company will be insufficient to pay his costs, require sufiicient security to be given for such costs, and may stay all proceedings until such security is given. Kekewich, J ., was of opinion that there was no hard and fast rule obliging him to give the sum mentioned in the endepce filed on behalf of the defendant, and he refused to increase the security.
Tm: Couar (LINDLBY, M.R., and Cnrrrr and Vacuum: Wu.i.i.uxs, L.JJ.) varied the order and increased the security by £250, making the sum of £600 in all.
LrXm.a\', M.R., said: This case turns upon the true construction of section 69 of the Companies Act, 1862, and the proper mode of applying it. It is obvious that as to a question of quantum such as this you cannot lay down any very accurate principle or rule. The only principle which, as it appears to me, can be said to apply to a case of the kind is this, that you must have regard, in deciding upon the amount of the security to be ordered, to the probable costs which the defendant will be put to, so far as can be ascertained. It would be absurd, of course, to take the estimate of the managing clerk to the defendant's solicitor, and give him just what he asks for. You must look, as fairly as you can, at the whole case, remembering, also, that the security given should be neither illusory nor oppressive. Here we think that in Foster’s case the security ordered by Kekewich, J ., ought to be increased by the sum of £250, which will make it up to the sum of £600 in all. You must take into account the chance of the case collapsing without coming to trial; and on the whole we think that the sum of £600 is a reasonable one, and is suficient. The view we are taking is consistent with the case of Imperial Bank of Uhina, India, and Japan v. Bank of Hindustan, China, and Japan (14 W. R. S11, 1 Ch. 437), which seems to be the only case on the construction of section 69. The costs here and below must be costs in the action.
Ci-m-rr, L.J., said : Section 69 of the Companies Act, 1862, provides for an order for “ sufficient security ” for the defendant's costs. I really do not see how you can lay down any rule more useful than that, or any rule more precise. There must be some estimate made of what expenses tho defendant will be put to, and the court has to take a reasonable view of all the circumstances, the nature of the suit, and any other matters that may properly be brought in. The court is certainly not bound to give the amount of security which the defendant, by his solicitors, says he thinks will probably be the amount of his costs. I entirely agree with what has been said by the Master of the Rolls as to the proper amount to be given. Ia! seems to me that £600 is a reasonable amount in the circumstances of t 's case.
VAUGHAN \ViLu.u1s, L.J., concnrred.—Covxsnr., Maoaskie ; A. R. Kirby. Soticrrons, Nicholson, Graham, §' Graham ; Norton, Rose, Norton, 15- Co.
THE WEST LONDON SYNDICATE (LILL) (Appellants) o. THE COMMISSIONERS OF INLAND REVENUE (Respondents). Div Court. 1~lth and 15th Dec.
Case stated by the Commissioners of Inland Revenue pursuant to section 13 of the Stamp Act, 1891. On the 4th of January, 1897, an instrument was presented to them on behalf of the West London Syndicate (Limited), under s ction 12 of the Stamp Act, 1891, for their opinion as to what stamp (arty the instrument was chargeable. It was dated the 19th of March, 1895, and was an agreement under seal for the sale by one Thorne to the syndicate of, firstly, the goodwill of the business of an hotel proprietor and licensed vlctualler carried on by the vendor at Fischer’s Hotel, Bond-street, and the benefit of the licences, contracts, and privileges of the vendor; secondly, the lease of the hotel, subject to the yearly rent of £964; thirdly, furniture, fixtures, and fittings; and, fourthly, stock-in-trade and book debts. The consideration for the sale was the undertaking by the syndicate to pay £1,335 8s. 4d., trade debts of the vendor, and £4,250, of which latter sum £1,462 16s. 3d. was for stock-intrade. In other words, the purchase consideration was the sum of £5,585 8s. 4d., including for lease and goodwill £4,085 8s. 4d. It was stated to the commissioners that it was impossible to sever the goodwill from the lease itself, because the goodwill ceased to be of value when severed from the lease, but that without a covenant restricting the vendor from carr ying onbusiness in the neighbourhood the lease would beef less value by£ 400. The material clause in the agreement was as follows : (6) “ The leasehold 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 best endeavours to obtain the requisite consent for the assignment thereof to the syndicate or their assigns, and in the event of such consent not being obtained the vendor shall, at the option of the syndicate, execute a declaration of trust of the said leasehold premises in its favour.” There had been no assignment of the leasehold premises, but a declaration of trust bearing date the 21st of March, 1895, had been executed by which the equitable interest in the leasehold premises became vested in the syndicate. The commissioners, having regard to sections 5 and 15 of the Stamp Act, 1891, were of opinion that inasmuch as neither the sum of £4,085 8s. 4d. nor any other part of the consideration money had been expressed by the declaration of trust to be apportioned to the leasehold premises so as to make that instrument chargeable according to its terms with ad valorem duty as a conveyance on sale, the whole amount of the sum paid to the vendor except the sum of £1,462 16s. 3d. apportioned as the consideration for taking over the stock-in-trade, was to be regarded as having been paid for the other property contracted to be sold under the agreement. They decided, therefore, that under section 59 (1) of the Stamp Act, 1891, the agreement was chargeable with ad valorm conveyance duty on the sum of £5,585 8s. 4d. less £1,462 16s. 3d. for furniture and stock-in-trade, making the net sum of £4,122 12s. 1d. On
this net sum the commissioners considered that an ad valorum duty amounting to £20 15s. was payable under the agreement, being an ad valoram duty of 5s. for every £50 thereof payable under the head of “ Conveyance or Transfer on Sale” in the first schedule to the Stamp Act, 1891, and they also assessed the fixed duty of 10s. in respect of the agreement for the sale of the leasehold premises, furniture, and stock-in-trade. The instrument had since been stamped in accordance with the assessment. The commissioners, however, stated, at the request of the syndicate, this case, and the questions for the opinion of the court were: (1) Whether the instrument was chargeable with the ad valorem duty of £20 15s. as being in fact a conveyance on sale of an equitable interest in land? (2) If not, with what amount of ad valomn duty it was chargeable, the contention of the syndicate being that it was only liable to a 10s. stamp and an fill valorem duty on the book debts, which amounted to less than £50. During the argument the following cases were cited by the appellants: The Lbmmiasionera of Inland Revenue v. Glasgow and SouthWemm Railway C'o. (12 App. Cas. 315), Angus’ case (23 Q. B. 579), Oommisaioners of Inland Revenue v. Wale (4 Ex. D. 271), Potter v. Uornmiasimwfs of Inland Revenue (10 Ex. 147), and Ea: parts Punmtt (16 Ch. D. 226), where it was laid down that the goodwill of a public-house was not a personal goodwill, but on the sale of the house passed with it. gAt the conclusion of the appellants’ reply the Attorney-General claime in right of the Crown to reply to the reply of the appellants in Revenue cases, and the court decided he had a right to be heard.)
Tun Couiir (Gasx-rinui and Cnumann, JJ.) allowed the appeal. In their opinion the commissioners were wrong in holding that the instrument was a contract for fl conveyance on sale ; it was not the real conveyance, but merely an agreement setting out what the parties intended to do in the future. There was an option given to the syndicate-—the purchaserswho were at liberty to take, but were not bound to take, an equitable interest from the vendor, in the event of his failing to obtain from his landlords, as appeared to be the case, their consent for the assignment of his legal interest in the lease of the premises to the syndicate. Nor was it a contract by the vendor for the sale of any estate or interest in any property other than lands or goods within the exception provided in section 59 of the Stamp Act, 1891. Moreover, the parties had not treated the value of the goodwill and licences as an interest separate from the premises, although they had dealt with the goodwill in the instrument apart from the l68S€.—COUNSBL, A. T. Lawn-ma, Q.C., and Spearman; Sir R. E. Webster, A.G., and Danckwerts. Somcrrons, A. E. Grifiths ; The Solicitor to Inland Revenue.
Special case stated by J. Hanney, Esq., a stipendiary metropolitan magistrate. At the Marlborough-street police-court a complaint was was preferred by Thomas Fancett against Ann Bierman under section 33 of the Pawnbrokers Act, 1872, for that she had pawned with the appellants, J. B. Harrison and J. H. Caudell, pawnbrokers, a’ certain coat the property of one Joseph Lawrance without his authority to do so. The magistrate dismissed the summons. The facts were these: The informant Fancett was manager to the pawnbrokers, and on the 30th of November the woman came into their shop and pawned the coat in question for £1 1s. The evidence was that the coat had been given to the womanfs husband by Lawrance to repair, and she had no authority to pledge it. The owner of the coat then summoned the pawnbrokers under section 40 of the Metropolitan Police Act, 1839, and they were ordered to the coat ov_sr to him. They then prosecuted the woman, but the magistrate considered that section 33 of the Pawnbrokers Act, 1872, did not give the pawnbroker power to proceed against the woman. That section is as follows: “If any person knowingly and designedly pawns with a pawnbroker anything being the property of another person, the pawner not being employed or authorized by the owner thereof to pawn t_he same, he shall be guilty of an offence against this Act and shall be liable on conviction thereof in a court of summary jurisdiction to forfeit any sum not exceeding £5, and in addition thereto any sum not exceeding the full value of the pledge as ascertained by the court.” The question for the _decision of the court was whether the magistrate was right in dismissmg the summons on the ground that prosecutors were a party to the act complained of and had no right to give or withhold authority to the respondent to pledge the coat with them, and also that they were not the party injured by the wrongful pledging, but the person whose property the woman h-id pawned. Counsel for the appellants argued that, the magistrate was wrong and that the person injured by the wrongful pawniug was the pawnbroker. No one appeared to argue for the respondent.
Tns Couar (Gasxriisn and CKANNELL, JJ.) decided that the appeal must be allowed, In their opinion the magistrate ought to have convicted thewomau and imposed a fine siiflicient, at least, to cover the amount which the pawnbrokers had advanced on the article, and that such amount should be repaid to the prosecutors. The case was accordingly remitted to the magistrate to convict.—Cocxsr~:i., Bucknill, Q.C., and C. L. Attenborouyli. Soucirons, Attenborough 5- Son.
[Reported by Eiisiuss Brio, Barrister-atFLaw.]
The question in this case was as to the liability of Earl Grey to pay estate duty upon estates which were at one time the property of the late Earl Grey, but which had been transferred to him during the lifetime of the late earl. By a deed dated the 119th of October, 1885, the late earl. who was then living, transferred to his nephew, Albert Henry George Grey, the present earl, his estates in Northuniberland, iiicludmg the mansion-house at Howick, subject to an annual rent-charge in favour of the late earl of £4,000, upon trust to permit the late earl to occupy and enjoy the mansion-house and appurtenances together with the fumiture and effects therein as theretofore, and also upon the following trusts, to pay certain annuities ; to pay certain mortgage debts and interest ; to pay the rent-charge of £4,000 per annum; to keep up the mansion-house, gardens, &c. ; to pay the funeral expenses and debts of the late earl; and not to dispose of certain farms, but to continue farming them as theretofore. It was further provided that the late Earl Grey should have power to revoke the deed in the event of the present Earl Grey dying in the lifetime of the late earl, or_ of any breach by the present Earl Grey of any covenant on_ his part. By a deed dated the 26th,g_f September, 1894, the lute earl, in consideration of £5,000, released to the present earl the rent-charge of £4,000, and further released the present earl from the power of revocation and from the covenant to pay the rent-charge of £4,000, as well as from all claims under the covenant not to dispose of certain farms. The late earl died on the 9th of October, 1894, and thereupon the present earl succeeded to the earldom. The net annual income of the property comprised in the deed of 1885, after deducting interest on incumbrances and other charges and the cost of management, is now and was before the date of the lastmentioned deed very considerably in excess of £4,000. The present Earl Grey paid duty only upon the value of the mansion-house of Howick and the effects therein. An information was laid claiming duty upon the value (less the value of incumbrances subsisting thereon) of the whole of the property comprised in the deed of the 19th of October, 1885. _The duty was claimed under section 1 of the Finance Act, 1894 (57 & 58 Vict. c. 30) which grants a graduated duty upon all property which passes on the death of a deceased person. Section 2 provides that property passing on _the death of the deceased shall include: “ Property which would be reqinred on the death of the deceased to be included in an account under section 38 of the Customs and Inland Revenue Act, 1881, as amendsd_ by section 11 of the Customs and Inland Revenue Act, 1889, if those sections were herein enacted and extended to real property as well M personal property, and the words ‘ voluntary ’ and ‘ volun; tarily ’ and a reference to a ‘ volunteer ’ were omitted therefrom. Section 38 of the Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), grants stamp duties on accounts delivered of personal or moveable propefll of the following, among other, descriptions: Sub-section (2) (a)_: “ Any property taken as a donatio mortis cauad made by any person dying on or after the lst day of June, 1881, or taken under a voluntary disposition, 11-ifl-fie by any person so dying, purporting to operate as an immediate gift enter vivos whether by way of transfer, delivery, declaration of trust, or otherwise, which shall not have been bond jido made three months before the death of the deceased,” and (c) “ Any property passing under any past Of future voluntary settlement made by any person dying on or after such day by deed or any other instrument not taking effect as a will, whereby an interest in such property for life or any other period determinable by reference to death is reserved either expressly or __by _iinp%ication to the settler, or whereby the settlor may have reserved to himse the right. by the exercise of any power, to restore to himself, or to reclaim the absollltfi interest in such property." The Customs and Inland Revenue Act, 1839 (52 Vict. c. 7), s. 11, amends section 38 (2) and provides : “ The description of property marked (a) shall be read as if the word “ twelve "_ We" substitumd for the word “three” therein, and the said description °f pro erty shall include property taken under any gift, whenever made, of which property bond _/ids possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained, to the entire exclusion of the donor, or of 811$’ benefit to him by contract or otherwise.” On behalf of the Crown it W8-5 contended that duty was payable in respect of the property on the grmllljia that (1) bond fide possession of the property was not assumed to the entire exclusion of the donor, (2) that an express interest was reserved th° donor, and (3) that the deed reserved an express power of revocation 150 the donor. Attorney-General v. lVorrall (1895, 1 Q. B. 99) was cited-_ It was further contended that the deed of 1894 did not affect the question, because it could not alter the effect of the deed of 1885, and if taken 41° operate as a gift by itself, it was made too late. It was contendfid °n behalf of the respondent that the reservation of a smill income 011$ °f 3 large property would not render the whole property liable to duty, 11°‘ would the reservation of the use of the mansion-house. The respondent was only liable to pay duty to the extent to which a benefit was 1'6_B61'Y°d to the late Earl Grey. The power of revocation, it was‘ contended, TRIBE only a limited power, was not one of those contemplated by section 38. f
Tun Couiir (Giumrnsir and CHANNBLL, JJ.) gave judgment in favour 0 the Crown, upon the grounds that an interest was reserved to the 1?“ Earl Grey in the entirety of the property, and that a power of revocation was likewise reserved.
CBANNELL, J ., was inclined to think that if the interest had been reserved on a portion of the property only, section 38 (2) (c) would 1105 hag: ap lied, because “such property” in that section could not be t8k@"G refgr to a portion of the property.—Coi:nsni., Sir R. E. lVebater, 11Sir R. B. Finlay, S.G., and Danckwarts ; Gozens-Hardy, Q.C-1 3“