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will being good by Belgian law, was also good by the law of of watching generally the progress of the Act." It this the Congo Free State, and was therefore well executed under has any meaning, it would appear that the first Order in 24 & 25 Vict. c. 114. Hence it prevailed over the will of 1891. Council is to be restricted to the small district suggested, and
that the county council are to have the opportunity of vetoing any further extension of the district. If this is so, there will
be a fairly reasonable compromise. But it must be remembered THE APPLICATION OF THE LAND TRANSFER ACT that the Order in Council which has been submitted to the TO LONDON.
county council proposes to apply the Act to the whole of London, Two rather important matters in connection with the proposed and that, if this order is not vetoed by the county council within application of the Land Transfer Act, 1897, to London have the period prescribed, the Land Registry will be left free to occurred during the past week. In the first place, it appears extend its operations over the whole county of London when that, in consequence of Mr. Gedge's having called the attention and as it likes, and whether such operations are successful or of the Lord Chancellor to the breach of faith involved in not. sonding the draft order to the London County Council before
The committee have declined to advise the council to voto the 1st of January last, Lord HALSBURY has intimated that the application of the Act to London, and have recommended “the Privy Council will not carry any order into effect without that a meeting of the council should be fixed for the 15th of the most careful consideration of any representation by the February to consider the question of the application of the Act London County Council made within three months from the to London. It is significant that, in adopting this recommencommencement of the Act, notwithstanding that, technically, dation, the council directed a copy of the committee's report to the locus standi of the Council will terminate on the 26th of be forwarded to the Land Registry for observations, and a copy of February.” As the present county council are to come to a the observations of the Land Registry to be placed on the agenda decision on the matter on the 15th of February, this is not for the special meeting. Every effort should be now directed to much of a boon. It is not very likely that the new county securing that the progressive taking effect of the order shall be council will reverse a decision of their predecessors, but the made a reality ; the first order assented to by the London extension of time may enable them to do so if they think fit. County Council being for the first of the four districts only.
The other matter is the report presented by the General Pur- We are sorry to say, however, that we do not believe the poses Committee of the London County Council, which we print Land Registry have the slightest intention of allowing their elsewhere in full. As we all know, the committee applied to the hands to be thus fettered unless they see there is no other way metropolitan vestries and district boards, and also to seventeen of getting hold of London. railway companies, the Incorporated Law Society, the Institute of Bankers, the Building Societies Association, the Ecclesiastical Commissioners, and two or three large estate owners in the
DISCLAIMER OF LEASEHOLD PROPERTY IN metropolis, asking them to state their views on the question of
BANKRUPTCY. the Land Transfer Act being applied to London. Out of the vestries and district boards who have replied, there are twelve
I. in favour of the application of the Act, and twenty-one against In spite of the greater certainty introduced into the system of it. Eight London building societies, and apparently Mr. B. G. the disclaimer of leaseholds by section 55 of the Bankruptcy LAKE and Mr. RUBENSTEIN, have, on their own initative, sent in Act, 1883, the subject is one in which questions of difficulty petitions and letters to the Council
, and upon the whole of the still from time to time arise. The general principles of the communications received by them, the result is that only the system as now established can be very shortly stated. Whentwelve vestries and dstrict boards above mentioned and Mr. B. ever any part of the property of a bankrupt consists of leaseG. LAKE are in favour of the Act being applied to London, while holds burdened with onerous covenants, the trustee, notwithno fewer than forty-four are against its application to London. standing that he has endeavoured to sell or has taken possession The bodies dissenting comprize, as already stated, twenty-one of the property, or exercised any act of ownership in relation to vestries and district boards; also eight great railway companies, it, may within twelve months of his appointment disclaim the the Institute of Bankers, the Building Societies Association, the property by writing signed by him. The effect of the disclaimer Auctioneers’ Institute, the Incorporated Law Society, eight is to determine as from its date the rights, interests, and land or building societies, and last, not least, the
Ecclesiastical liabilities of the bankrupt and his property in respect of the Commissioners. The weight of authority, as well as of num. property disclaimed, and to discharge the trustee from all per bers, was clearly against the application of the Act; and it sonal liability as from the date when the property vested in would be ridiculous to pretend that all these dissentient bodies him ; but, save for effectuating these purposes, it does not affect could be stimulated to opposition by solicitors. The Ecclesiastical the rights or liabilities of any other person. The trustee's Commissioners, for instance, can hardly be supposed to be a right to disclaim is not, however, absolute. In general he body very amenable to influence ; yet they strongly deprecated must obtain the leave of the court
, and this gives the court the application of the Act to London on the grounds of the the opportunity of imposing such terms as it thinks just as a expense and delay which it would occasion, and of the impedi- condition of granting the leave. Moreover, if any person ments which compulsory registration would probably throw in interested in the property calls upon the trustees to decide the operation of many of the statutes administered by the Com- whether he will disclaim or no, the twelve months' limit missioners.
is abrogated, and the trustee must give his decision within Here was, therefore, a difficult problem for a committee twenty-eight days, or such extended time as shall be which presumably wanted to report in favour of the application allowed by the court. Failing this, his power to disclaim of the Act. They had asked advice, and had been favoured is gone. The difficulty in disclaimer is that the lease is at with an overwhelming expression of opinion against its applica- an end as between the bankrupt and his trustee and the tion. What was to be done? The happy thought appoars to landlord, and yet there may remain a number of persons whose have occurred to the committee to apply to the authorities to rights must be determined on the assumption that the lease is furnish them with a handle, in the shape of some concession, still subsisting. To put an end to this inconvenient state of to enable them to decline to veto the application of the things, the court is enabled to vest the disclaimed Act. They got a reply stating that the intention was that the any person entitled thereto, but where such person is an underorder should
be made to take effect " progressively according to lessee or a mortgagee by sub-domise, he may be required at the a division of the county (i.c., the county of London) into con- same time to take over the liabilities of the bankrupt in respect venient areas not less than four in number," the first area to be of the
property. A person injured by the disclaimer is deemed selected with a view to the utilization of the existing Land a creditor of the bankrupt to the extent of the injury, and may Registry Office in Lincoln's-inn-fields as the land registry of the prove for the same as a debt under the bankruptcy. In condistrict. This, the council are solemnly assured, will afford sidering the subject more in detail it will be convenient to them "such an opportunity as the county council appear to arrange it under the following heads : (1) The position of a desire of estimating the value of the work as it proceeds, and trustee who
does not disclaim; (2) the trusteo's right to dis
property in claim; (3) the effect of disclaimer upon the bankrupt and his whole goes back to the lessor, and the trustee cannot retain the estate and upon the trustee; (4) the effect of the disclaimer upon chattels under the reputed ownership clause (Ex parte Allen, 20 third persons; (5) leave to disclaim; (6) application to the Ch. D. 341). Since the disclaimer puts an end to the lease so trustee to decide as to disclaimer ;. (7) vesting orders; and (8) far as the bankrupt and his estate are concerned, it follows that proof for injury done by the disclaimer.
the trustee cannot take advantage of any provisions relating to 1. The position of a trustee who does not disclaim.-A trustee in the determination of the tenancy (Ex parte Dyke, 22 Ch. D. bankruptcy has the power of disclaiming, but subject to this 410); thus if the lease provides for the removal of trade buildpower the leaseholds of the bankrupt vest in him absolutely ings and machinery, this provision is gone and the trustee canunder section 55 of the Act of 1883, and this result does not in not remove them (Ex parte Glegg, 19 C. D. 7). It has been held, any way depend upon his election to take them (Wilson v. however, that the trustee cannot rely upon the disclaimer as Wallani, 5 Ex. D. 155; Titterton v. Cooper, 9 Q. B. D. 473). justifying acts which are forbidden by the tenancy; hence, Consequently the trustee, as an assign of the lease, is personally where, in violation of the custom of the country, he removed liable under the lease as from the date when the lease vests in hay from a farm and then disclaimed, the landlord recovered him—that is, as from the date of his appointment; and from damages against him (Schofield v. Hincks, 58 L. J. Q. B. 147). that date he is liable for rent accruing due and for breaches of Apart from such special considerations, the disclaimer relieves covenant, though not for rent accrued due or breaches com- the trustee of all liability (Ex parte Allen, 20 Ch. D. 341), and mitted before his appointment (Wilson v. Wallani ; Titterton v. he is not liable to pay rent to the landlord in respect of his Cooper). His liability can be terminated, however, as in the occupation prior to the disclaimer, either as assignee, or on an case of any other assignee, by assigning the premises over (see implied contract of tenancy, or as trespasser (Lowrey v. Barker, Wilkins v. Fry, 1 Mer. p. 265). And, provided the assignment supra; Gabriel v. Blankenstern, 13 Q. B. D. 634). It may be is a real one, he may assign to a pauper for the express purpose mentioned that where a sum becomes due from the landlord to of ridding himself of liability (Hopkinson v. *Lovering, 11 the tenant for allowances at the determination of the tenancy, Q. B. D. 92; Onslow v. Corrie, 2 Madd. 330). It makes no the landlord cannot, as against the trustee, set off arrears of difference that the lease contains a covenant against assigning rent accrued due before the bankruptcy (Alloway v. Steere, 10 without licence (Re Johnson, 70 L. T. 38T). A release of the Q. B. D. 22; Ex parte Dyke, 22 Ch. D. 410); unless, indeed, by trustee under section 82 of the Act will secure him against any the custom of the country, the landlord pays only the amount of claim made by the lessor in the bankruptcy, but will, the valuation less arrears of rent (Re Wilson, 62 L. J. Q. B. apparently, be no protection against claims prosecuted in any 628). other jurisdiction (Ex parte Carter, 8 Oh. Ò. 731). But the
4. The effect of the disclaimer upon the rights and liabilities of trustee is entitled to indemnity out of the estate of the bank- third persons.-Under the Bankruptcy Act, 1869, no provision rupt (Lowrey v. Barker, 5 Ex. D., p. 173).
was made with regard to the effect of the disclaimer upon the 2. The trustee's right to disclaim. —The trustee's right to interests and liabilities of third persons. Section 23 provided disclaim is not limited to such property of the bankrupt as is that the lease should be deemed to have been surrendered at the divisible among creditors under section 44. The word "pro- date of the disclaimer, but the question of what relations were perty" in section 55 is to be taken in the wider sense given then to exist between the lessor and a sub-lessee of the bank. to it in the definition clause (section 168), and it includes, rupt was left undetermined. In Smalley v. Hardinge (29 W.R. therefore, property of the bankrupt from which no benefit can 554, 7 Q. B. D. 524) the surrender was treated as an actual one. accrue to him, as property which he has already contracted to Hence it put an end to the rights of the lessor under it, though sell. Hence leaseholds which have been so sold can be dis- by 8 & 9 Vict. c. 106, s. 9, his reversion became the reversion claimed if the purchaser assents (Re Maughan, 14 Q. B. D. 956), expectant on the sub-lease, and he had the rights of the bankthough, if he does not, it seems that the trustee must carry out the rupt against the sub-lessor. But in Ex parte Walton (17 Ch. D. contract and assign to him upon his giving a proper indemnity 746) the Court of Appeal treated the surrender as merely (Ex parte Edmonds, 48 L. T. 77). If the bankrupt has assigned fictitious, and limited its effect to the relief of the bankthe property by way of mortgage, the trustee is not liable on rupt and his estate and his trustee from liability in respect the covenants either by privity of contract or of estate ; conse- of the property comprised in the lease. Thus as between quently the equity of redemption is not "property burdened the lessor and the sub-lessee the lease was still subsisting, and with onerous covenants” within section 55, and the trustee the lessor was enabled to exercise any rights which did not cannot disclaim it (Re Gee, 24 Q. B. D. 65; though see Re depend upon privity of contract or of estate between him and Wilson, 13 Eq. 186). The provisions of section 55 are pro- the sub-lessee. He could therefore distrain for the rent reserved visions relating to the remedies against the property of a by the lease and take advantage of a power of re-entry for debtor " within section 150, so as to be binding on the Crown, breach of covenant. The lessee, on the other hand, provided and hence the trustee can disclaim a Crown lease (Re Thomas, he paid the rent and observed the covenants, was entitled to 21 Q. B. D. 380). The trustes may disclaim, notwithstanding remain in possession. Moreover, where the bankrupt was that the lease has been determined by expiration of time or by assignee of the lease, the original lessee remained liable on his forfeiture between his appointment and the execution of the covenants, notwithstanding the disclaimer (Hill v. East and West disclaimer, and, perhaps, also where it had been determined India Dock Co., 9 App. Cas. 448); and, similarly, the lessee before his appointment (Ex parte Dyke, 22 C. D. 410). The retained his right of action against a surety for the assignee Bankruptcy Act, 1869, required that the trustee should disclaim (Harding v. Preece, 9 Q. B. D. 281). This view of the effect of " by writing under his hand," and upon this it was held that the Act of 1869 has been incorporated in section 55 of the disclaimer must be signed by the trustee personally (Wilson the Act of 1883, which expressly provides that the disclaimer v. Wallani, supra). The Act of 1883 requires the disclaimer to shall not, except so far as is necessary for the purpose of relievbe" by writing signed by him," and whatever may have been ing the bankrupt and his property and the trustee from the case formerly, it seems clear that upon the latter words, liability, affect the rights and liabilities of any other person. since there is nothing in the section specially necessitating 5. Leave to disclaim.-Before disclaiming the trustee is, in personal signature, signature by an agent will
do (Re Whitley general, bound to get the leave of the court, and the court may Partners, 32 Ch. D. 337).
impose such terms as a condition of granting such leave, and 3. The effect of the disclaimer upon the bankrupt and his estate make such orders with respect to fixtures, tenant's improvements, and upon the trusteo.—By the express words of section 55 the and other matters arising out of the tenancy as the court thinks disclaimer operates to determine, as from the date of the dis- just. An exception is made by section 55 in any cases which claimer, the rights, interests, and liabilities of the bankrupt and may be prescribed by general rules, and in these the trustee his property in or in respect of the property disclaimed, and it may disclaim without leave. Such cases are defined by rule 320 also discharges the trustee from all personal liability in respect of the Bankruptcy Rules, 1890, as (1) cases where the bankrupt of the property disclaimed as from the date when the property has not sub-let or mortgaged and (a) the rent is less than £20, vested in him. Under the disclaimer the trustee gives up to the or (6) the estate is being administered under section 121 of the lessor the entirety of the property comprised in the demise; and Act of 1883, or (c) the lessor does not, upon notice to disclaim hence, if land and chattels are leased at an entire rent, the being served upon him, require the matter to be brought before the court; and (2) where the bankrupt has sub-let or mort- REG. v. THORNTON AND OTHERS (Justices), Ex parte LACON & Co.
19th Jan. gaged, and neither the lessor nor the sub-lessee or mortgagee, upon notice to disclaim being served upon them, requires the LICENSING Acts-ORDER SANCTIONING REMOVAL or LICENCE-GRANT OF
LICENCE ON CONDITION OF SURRENDERING OTHER LICENCE-LICENSING matter to be brought before the court. In these cases, since the
Act, 1872, s. 50. trustee can disclaim without leave, there is no opportunity for terms to be imposed upon him, and hence he cannot be called Ridley, JJ.). An order nisi had been obtained for a writ of certiorari to
This was an appeal from a judgment of a Divisional Court (Cave and upon to pay rent to the landlord, even though he has been in bring up and quash an order made by the licensing justices for the beneficial occupation of the premises for the purpose of the Wandsworth Division, granting a licence to G. C. Laceby in respect of bankruptcy (Re Sandwell, 14 Q. B. D. 960). Where, however, No. 2, Abercrombie-street, Battersea, for the sale of beer, wine, and the court grants leave to distrain and the trusteo's occupation spirits, to be consumed off the premises. Laceby was at the time of the bas resulted in benefit to the bankrupt's
estate (Ex parte Izard, house, which adjoined No. 2, Abercrombie-street. In 1890 the then 23 C. D. 115; Re Zappert, 1 Morr. 72; Re Brooke, I Morr. 82), holder of the licence for the Five Alls had taken a lease of the cellar of or even where no actual benefit has resulted, if the occupation No. 2, Abercrombie-street, and had obtained an off-licence in respect of has been with a view to obtaining such benefit (Ex parte Isher- the cellar. In 1897 Laceby gave notice of his intention to apply for a wood, 22 Ch. D., p. 395; Ex parte Arnel, 24 Ch. D. 26; Ex new licence for the whole of No. 2, Abercrombie-street. By the order
appealed from, such licence was granted to him subject to the condition parte Good, 13 Q. B. D. 731), the trustee is required, as a con- of his giving up the licence which he had just had renewed for the Five dition of disclaiming, to pay rent in respect of the occupation. Alls. Messrs. Lacon & Co., the reversioners of the Five Alls, obtained
the order nisi on the ground that the justices had no jurisdiction to make the order granting such licence, inasmuch as it was in effect an order sanctioning the removal of a licence within section 50 of the Licensing
Act, 1872, and the requirements of that section had not been complied REVIEWS.
with. The Divisional Court made the order absolute. Laceby appealed.
THE COURT (A. L. SMITH, Chitty, and COLLINS, L.JJ.) were of opinion BOOKS RECEIVED.
that this was in substance a case of a removal of a licence, and dismissed Private Bill Procedure. A Guide to the Procedure upon Private
the appeal.--Counsel, Bosanquet, Q.C., and J. C. Earle : Lawson Walton, Bills, together with Forms, Standing Orders of the House of Q.C., Foote, Q.C., Bodkin, and Travers Humphreys ; Avory and Edwardes Commons, Condensed Standing Orders of the House of Lords,
Jones. SOLICITORS, W. W. Young & Son; Wellington Taylor ; Corsellis,
Jossop, f Berney.
[Reported by F. G. RUCKER, Barrister-at-Law.]
High Court-Chancery Division.
WILL-CONSTRUCTION-DATE AT WHICH LEGACY PAYABLE. tion to Mines, Ironworks, and Quarries. By ARCHIBALD BROWN,
Emma Drinkwater, on the 22nd of February, 1894, made her will in the M.A., B.C.L., Barrister-at-Law. Butterworth & Co.
following terms, “This is the last will and testament of me the undersigned Emma Drink water. I do hereby give, bequeath, and devise the whole of my real and personal estate to my daughter Esther Field for her life, and at her death I desire that it shall be equally divided among her
surviving children, save and except the sum of £200 (two hundred pounds) CASES OF THE WEEK.
which I desire to be given from my estate to my nephew Walter Drink
water." Court of Appeal.
The testatrix died on the 8th of March, 1894, and the sum
mons now adjourned into court raised the question whether the legacy QUEENSLAND NATIONAL BANK v. PENINSULAR AND ORIENTAL Esther Field, the tenant for life.
to Walter Drinkwater was payable immediately or only upon the death of STEAM NAVIGATION CO. No. I. 18th Jan.
NORTH, J.-If the £200 legacy had been given first there would be no SHIP-BILL OF LADING -IMPLIED WARRANTY-FIT to Carry PARTICULAR question, there would simply be a gift of $200 and a gift of residue CARGO.
subject to the legacy. The same result would follow if the estate was Appeal from the judgment of Mathew, J., at the trial of the action given expressly subject to the legacy. I do not say that the conclusion I without a jury: 2 Com. Cas. 228. The action was brought to recover have come to is equally clear, but in my opinion the legacy is payable £5,000 damages for the loss of a box of 5,000 sovereigns shipped by the immediately. First there is a gift of the estate, and then there is a gift of plaintiffs, under a bill of lading, on the defendants' steamship Oceana
a sum out of the estate ; in each case she refers to her "estate." I think from Port Jackson to be delivered in London. The bill of lading con
that is the true meaning of the way in which the testatrix uses the word. tained exceptions of (inter alia) loss by robbers or thieves by sea or land, If the money had only been payable upon the death of the tenant for life, defects latent or otherwise in hull or its appurtenances, or from any act,
some direction such as the words “save and except £200,” would have neglect, or default whatsoever of the pilot, master, mariners, or other been added before the direction for the division among the children of servants, or of the agents, of the company. The box in question was placed Esther Field.-COUNSEL, Stanbury-Eardley ; Rowden. SOLICITORS, T. H. by the defendants in the bullion-room in The Oceana. The bullion-room was Philpots, for Leacroft, Birmingham; Peacock . Goddard, for Burman & Rigbey, broken open during the voyage and the box was stolen. The plaintiffs, in Birmingham. the statement of claim, alleged that there was an implied warranty that
[Reported by G. B. HAMILTON, Barrister-at-Law.] The Oceana had such a bullion-room as made her a safe and fit vessel for the carriage of bullion, and that the construction of the bullion-room was
AJELLO v. WORSLEY. Stirling, J. 18th Jan. EO defective that she was not a safe and fit vessel for the carriage of TRADER - ADVERTISING Goods at LESS THAN Cost PRICE-MALICE. bullion. It was ordered that the question whether there was any warranty by the defendants under the bill of lading that the room in London, to restrain the defendant,
who was a furnishing contractor at
This was an action by the plaintiffs, who were piano manufacturers in which the bullion was stowed was so constructed as to be reasonably fit to Manchester, from advertising the plaintiffs' pianos for sale without in fact resist thieves should be tried before the trial of the action. It was having any of them
in his possession. The plaintiffs, in the early part of defective, and Mathew, J., in his judgment, said: “I assume, for the 1895, supplied the defendant with certain pianos, among which were two purpose of my decision, that the vessel in question, The Oceana, like others trade at a cost price of 15 guineas, and one of what was called Class
of a class called in their price lists Britannia Models, and supplied to the of her class, was furnished with a receptacle for bullion and valuables, 6 A, and described as " an upright grand, iron frame, check action; usually called the specie-room; and that the contract in the bill of lading trichord," and was supplied to the trade at a price of £23 10s. In 1896 was entered into with the knowledge and upon the footing that this the defendant published in the Manchester Evening News an advertisement receptacle had been provided for the safe carriage of the gold mentioned of a great sale of pianos. The advertisement gave particulars of several in the bill of lading.” Mathew, J., held that there was an implied pianos and continued : " New instruments at Worsley's, a fine upright warranty that the builion-room was so constructed as to be reasonably fit grand by Ajello, iron frame, check action, trichord, prica 15 guineas, or to resist thieves. The defendants appealed.
158. per month.” Similar advertisements were also issued in other The Court (A. L. SMITH, Chitty, and Collins, L.JJ.) dismissed the papers. The plaintiffs contended that these advertisements applied to appeal, saying that the parties had contracted on the footing that there their pianos of the Class 6 A, and the object of the action was to restrain was a bullion-room in the ship, and that the very object of having a the continuance of the advertisements. It was proved at the trial that bullion-room was to secure the gold in it from thieves. In their opinion the advertisements bad injured the plaintiffs' trade, and also that the there was an implied warranty that the bullion-room was, at the time when defendant began to advertise in this way at a time when he had a piano the ship started, reasonably fit to resist thieves.-Counsel, Joseph Walton, of the plaintiffs', though not of the class advertised but of the Britannia Q.C., and R. M. Bray, Q.0.; J. Lawson Walton, Q.C., and Scrutton. Model class, in stock, but that he continued to advertise long after this SOLICITORS, Freshfields of Williams ; Waltons, Johnson, Bubb, f Whatton. piano had been sold, and when he had no pianos of the plaintiffs' [Reported by W. F. BARRY, Barrister-at-Law.]
manufacture in stock.
STIRLING, J.-It is obvious that the owner of any property is entitled STIRLING, J.-I assume that under the Judicature Act, 1893, s. 25 (6), to dispose of it as he may see fit, and either at a profit or loss, and the the legal right to sue was vested in the defendants Paul and Farish. It motive of the owner so acting cannot be inquired into : Allen v. Flood (ante, is admitted that these defendants are simply trustees for the plaintiffs, p. 149). I further am of opinion that as a general rule any person may and have not refused to become co-plaintiffs in the action. To justify sell or offer for sale at any price whatsoever goods of which he is not the service out of the jurisdiction the case must be brought within ord. 11, owner but which he expects to acquire. Section 5 of the Sale of Goods r. 1 (see Re Eager, 31 W. R. 33, 22 Ch. D. 36; Re Cliffe, 43 W. R. 436; Act, 1893, expressly provides that “future goods,” i.e., goods to be 1895, 2 Ch. 21). I will first deal with clause (é) of that rule. Now, the manufactured or acquired by the seller after the making of the contract, object of the writ, so far as specific relief is thereby sought, is to compel may form the subject-matter of a contract. If a seller can contract to the defendant Ebbeke to redeem the plaintiffs by paying off what is due sell future goods, he must be at liberty to offer them for sale, and the to them, and in default to become absolute owner of the policies. Under offer may be made by advertisement or in any other lawful way. Again, the claim for general relief the plaintiffs would also, I apprehend, be he is entitled to make the offer at any price he pleares, whether remunera- entitled to ask, if foreclosure were refused, to have the policies sold and tive or not. In all this, however, I assume that the seller is acting the proceeds applied in payment of their debt. In my opinion an action honestly. If what he does is tainted with fraud he may be guilty of an so framed is not founded on a breach of contract within the meaning of actionable wrong: see Richardson v. Sylvester (22 W. R. 74, L. R. 9 Q. B. ord. 11, r. 1 (e). The plaintiffs' title to a charge may possibly have 34). In the present case the plaintiffs in the autumn of 1895 refused to arisen by reason of a breach of contract, but the action is not founded on supply the defendant with any of their pianos, and they continued their any breach of contract whatever, but on the existence of a charge constirefusal down to the commencement of this action. The defendant tuting a security for the debt due to the plaintiffs. I think, therefore, could not, therefore, have obtained directly from the plaintiffs any that this case does not fall within rule 1 (e). Then, coming to rule 1 (9), new pianos, but he might have done so indirectly upon terms the question is whether the action is properly brought against Paul and which would have enabled him to sell them, not indeed at a Farish. The practice of the court requires that in a foreclosure action all profit, but without ruinous loss. If, therefore, the defendant had persons interested in the equity of redemption should be parties, and I advertised that he was prepared to supply new pianos of the plaintiffs' certainly think that Paul and Farish are proper, if not necessary, parties manufacture of the Britannia Model class he would have been within to this action. But the rule would be satisfied if those gentlemen had his rights. It is said, however, that the advertisements contained two been made plaintiffs; and I think that they ought more properly to have misrepresentations—first, that the pianos to which they related were been made plaintiffs, in this sense, that any extra costs occasioned by wrongly described ; and secondly, that they were in the defendants' | making them defendants might, on a proper application for the purpose, possession at the several dates at which the advertisements appeared. As be ordered to be borne by the plaintiffs. Now, Paul and Farish are made to the first, I have already said that I do not think that the description parties simply to comply with this rule of practice. No relief is sought was inaccurate. As to the second, on which most stress was laid in and no right claimed to be enforced against them. No reason is given why argument, this misrepresentation does not, in my judgment, make the they should be plaintiffs rather than defendants. If the plaintiffs had advertisement fraudulent; and in order that a misrepresentation may be taken an assignment to themselves instead of to these defendants the actionable it must not only be fraudulent but must cause damage to the action would not have fallen with ord. 11, r. 1, at all. I do not think it person complaining of it. Is, then, the damage caused to the plaintiffs is necessary for me to come to the conclusion tha the assignment to by the advertisements attributable to the misrepresentation of fact con- them as trustees was a mere device to enable this action to be brought, tained in them? In my opinion this question must be answered in the but in my judgment the action is not properly brought against them negative, for an advertisement such as the defendant might legally have within the neaning of the rule. The order for service out of the jurisdicissued would have been followed by the same consequences and produced tion must therefore be diecharged. COUNSEL, Grosvenor Toods, Q.C., and precisely the same damaging results. No decision in support of such an G. P. Lawrence ; Butcher, Q.0, and Kirby. SOLICITORS, Druces of Attlee ; action as the present has been cited. The plaintiffs mainly relied on a Norton, Rose, $ Co. passage from the judgment of Lord Bowen in the Court of Appeal in
[Reported by J. I. STIRLING, Barrister-at-Law.] Mogul Steamship Co. v. McGregor (37 W. R. 756, 23 Q. B. D. 598). I do not think it necessary to inquire whether the view there expressed is in
MERRY V. POWNALL, Kekewich, J. 25th Jan. any way limited or qualified by Allen v. Flood, because, in my opinion, the present case does not fall within those in which damage was caused BANKRUPTCY – VoID LIMITATION IN SETTLEMENT-Costs or TRUSTEES OF by misrepresentation within the meaning of Lord Bowen. He probably
SETTLEMENT—Costs OF BENEFICIARIES-UNNECESSARY PARTIES. had in his mind the class of cases of which Ratcliffe v. Evans (20 W. R. A question of costs arose upon the trial of this action. The facts were 578; 1892, 2 Q. B. 524) is an example—viz., where the defendant had as follows: The trustee in bankruptcy brought the action claiming a intentionally published an untrue statement regarding the plaintiff's declaration that he was entitled to the life interest of the bankrupt under business, and thereby caused damage to the plaintiff. Here the untrue a voluntary settlement executed by the bankrupt. Originally the trustees statement relates to the defendant's own business, and, further, it cannot of the settlement were made sole defendants to the action, but in coneebe said to affect the plaintiffs exclusively. I think, for the reasons quence of their submitting in their defence that the beneficiaries under already given, that the damage was not caused by the misrepresentation the settlement (the bankrupt’s wife and infant child, who were entitled contained in the advertisement, and that the action must be dismissed.-- under a discretionary trust arising on the settlor's bankruptcy) should be COUNSEL, Graham Hastings, Q.O., and John Cutler, Q.C.; Grosvenor Woods, made parties to the action, the plaintiff obtained leave to add them as Q.C., and Hon. C. Macnaghten, Q.C. SOLICITORS, Pritchard, Englefield, s parties. The plaintiff succeeded in the action. Upon the question of Co.; Ralph Raphael.
costs the following cases were referred to: Ex parte Barter (32 W. R. 809, [Reported by J. I. STIRLING, Barrister-at-Law.]
26 Ch. D. 510), Ex parte Russell (30 W. R. 584, 19 Ch. D. 588), Re Holden
(36 W. R. 189, 20 Q. B. D. 43), and Dutton v. Thompson (31 W. R. 596, DEUTSCHE NATIONAL BANK v. PAUL. Stirling, J.
18th and 23 Ch. D. 278). 26th Jan.
KBKEWICH, J.-The plaintiff represents the creditors of the settlor, and
those creditors ought not to bear any part of the costs of this litigation PRACTICE -SERVICE OUT OF JURISDICTION-ORDER 11, R. 1 (E. & G). further than what the court can make them bear. The plaintiff has sucThis was a motion to discharge an order which had been made for ceeded in getting that which the defendants said he should not have. service of the writ on the defendant Ebbeke out of the jurisdiction. The The plaintiff has not incurred excessive costs, he has not asked for any; writ which had been served was issued by the plaintiffs against two thing more in his statement of claim than that to which he was entitled. gentlemen named Paul and Farish, who were resident in England, and The defendant trustees said that some of the beneficiaries should be made the defendant Ebbeke, who was resident in Bremen. The writ claimed a parties, and that was done. Ought not those beneficiaries, then, to have declaration that the plaintiffs were entitled to charge for £6,022 63. 22., their costs out of this fund which goes to the creditors ?' I cannot say and interest on six policies of assurance, and also asked for foreclosure and that the trustees were wrong in suggesting that the beneficiaries should
further relief. The action arose in the following way: The firm of be made parties. The trustees have a very difficult position to fill. It Messrs. Jellings, Blow, & Co., who carried on business in London, has been said that I sanctioned the addition of the beneficiaries as parties. applied to the plaintiffs for a credit by a letter of the 1st of May, 1890, I was asked for leave to add them and I gave that leave, hut in so doing I which contained the terms of the credit. On this letter the plaintiff's did not adjudicate upon the question whether they were necessary or advanced Messrs. Jellings, Blow, & Co. £6,022 6s. 2d., and the policies in proper parties to the action. The old cases go to show the distinction question were deposited with them by way of security for this sum. On between unnecessary and improper parties. Now, these defendant benethe 21st of August, 1894, Messrs. Jellings, Blow, & Co. charged the ficiaries were unnecessary; they were not, however, improper, far from it. policies in favour of the defendant Ebbeke, subject to the prior charge. They were quite proper parties, but being unsuccessful I do not think Subsequently by deed of the 14th of December, 1894, the same firm that they ought to get their costs. Then, I think it is only fair for the conveyed
all their property to a Mr. Jackson as a trustee for the benefit of trustees to have their costs out of the fund before it is paid over, and I their creditors. On the 5th of June, 1897, the plaintiffs issued a writ think they ought to have their costs as between solicitor and client.-, against Jackson and the defendant Ebbeke claiming the same relief as was COUNSEL, Warrington, Q.O., Mulligan, Q.C., and C. Gurdon ; Bramwell asked for in the present action. This writ was never served on Ebbeke, Davis, Q.C., and C. L. Coote; Renshaw,
Q.O., and A. B. Shaw. Solicitors, but was served on Jackson, and an arrangement was made by which the G. L. B. Calcott; Woodcock, Ryland, f. Parker. bank became purchasers of all interest which Jackson had in the policies
[Reported by R. J. A. MORRISOX, Barrister-at-Law.] as trustee, and the equity of redemption, subject to the defendant Ebbeke's claim, was conveyed to the defendants Paul and Farish as
Re CASTELL & BROWN (LIM.), Ex parte UNION BANK OF LONDON. trustees for and by the direction of the plaintiffs. That action was then
Romer, J. 26th Jan. dropped and the writ was issued in the present action against Paul, Farish, and Ebbeke, and leave was obtained for service out of the jurisdiction. COMPANY-DERENTURES — Priority-Notice-NEGLIGENCE OF First Mort. This leave was obtained on an affidavit which did not disclose the fact
GAGEE IN CUSTODY OP Deeds. that the defendants Paul and Farish were simply trustees for the Adjourned summons. The question in this case was that of priority plaintiffs.
between two equitable incumbrancers. In 1885 the company issued debentures to the amount of £28,000, each debenture purporting to charge trespass and for £2 damages and for an injunction. The learned county all the property of the company whatsoever and wheresoever, both present court judge gave judgment for the plaintiff with 61. damages, and and future, including its uncalled capital for the time being. One of the granted the injunction prayed. The preliminary point was taken, on conditions indorsed was to the effect that the charge was to be a floating behalf of the plaintiff, that no appeal lay, the action being an action of tort security, but so that the company was not to be at liberty to create any where the damages claimed did not exceed £20, and no leave to appeal mortgage or charge upon its freehold or leasehold hereditaments in having been given by the learned county court judge. The County Courts priority to the debentures. No legal mortgage of the freehold or leasehold Act, 1888, 8. 120, provides : “If any party in any action or matter shall property of the company was ever made to the debenture-holders, and be dissatisfied with the determination or direction of the judge in point of the title deeds remained in the possession and control of the company. law or equity
the party aggrieved by the judgment, direction, The debenture-holders, therefore, were the first equitable incumbrancers decision, or order of the judge may appeal from the came to the High in point of date. The second was the Union Bank, who in 1892 had Court
; provided always that there shall be no appeal iu any allowed the company an overdraft on their depositing the title deeds of action of contract or tort
where the debt or damage claimed their leasehold property. This overdraft was paid, but in 1895 a further does not exceed twenty pounds
unless the judge shall think it overdraft was allowed, on the company giving a memorandum of equitable reasonable and proper that such appeal should be allowed, and grant charge on the deeds, and undertaking to execute a legal mortgage. The leave to appeal." It was contended that the injunction was not a separate interest on the debentures being in default, the above action was instituted cause of action, but was only a remedy for the tort, which was the cause by the debenture-bolders, and in July, 1896, the usual judgment was of action : Martin v. Bannister (4 Q. B. D. 491). On behalf of the defen made for the appointment of a receiver and directing inquiries as to dant it was contended that the claim for an injunction was an equitable the charges and their priorities. In April, 1896, the company passed matter and that section 120 gave a right of appeal in every case of a point resolutions for voluntary liquidation, and in June, 1897, an order was in equity, the proviso being limited to common law actions where debt or made for the continuation of the liquidation under the supervision of the damages only were claimed. The appeal was only brought against the court. In February, 1897, the bank was served with notice of judgment injunction. in the action. At that date the overdraft at the bank amounted to some THE COURT (Day and LAWRANCE, JJ.) disallowed the objection. £220. The bank stated that, until served with notice of the judgment, Day, J., said that as the defendant was only appealing against the they had not had any notice of the company having issued any debentures, injunction, and not against the damages, he might proceed with his or that it had created any charge upon the property comprised in the appeal.-COUNSEL, Howland Roberts ; Duke. SOLICITORS, Tayer & Horden, deeds deposited with the bank. The company being stated to be insol- for W. C. Vallance, Ottery St. Mary; Torr f Co., for Every, Honiton vent, the bank claimed to have a prior charge for £220 and interest, and to
(Reported by C. G. WILBRAHAM, Barrister-at-Law.} retain the deeds until their debt was paid. ROMER, J., said the question was one of priority between two equitable
ASHWORTH v. WELLS. Div. Court. 18th Jan. incumbrancers. The Union Bank, though subsequent in date, claimed priority, because
at the date of its charges it had no notice of the prior COUNTY COURT-Sale of ORCHID WITH WARRANTY-WARRANTY Falsedebentures. It was settled that where the equities of equitable incum
MBASURE OF DAMAGES -Costs-SALE OF Goods Act, 1893 (56 & 57 · brances were in other respects equal, the first in time was entitled to priority.
VICT. C. 71), s. 53 (2). The question was whether the bank had not the better equity, and in cases of This was an appeal by the plaintiff from a decision of his Honour the kind the possession of the deeds had always been treated as a matter of Judge Parry, sitting at the county court at Manchester. The facts were great importance in determining priority. In his lordship's opinion, however, these: In 1895 Mr. Wells decided to dispose of his collection of orchids, the observations of Kindersley, V.O., in Rice v. Rice (2 Drew, at p. 81), and instructed Messrs. Protheroe & Morris to sell them. Among the lots and Pearson, J., in Lloyd's Banking Co. v. Jones (33 W. R. 781, 29 Ch. D., was one described as a Cattleya Acklandia Alba, which the plaintiff pur. P: 229), on that point, it taken without restriction, went too far, for he chased for twenty guineas. He cultivated the plant for two years, when did not think that a prior equitable incumbrancer would lose priority it bloomed, and produced, instead of a white, a purple flower. The plainwhere, through no fault of his, the deeds had come into
the hands of a tiff thereupon brought an action to recover damages for breach of subsequent incumbrancer. In the present case there did not seem to warranty, and at the trial several orchid growers were called, and gave have been any negligence on the part of the bank. Finding the deeds evidence to the effect that a white Cattleya was such a rare flower that its in the possession of the company it was reasonable that they should value would probably be from £60 to £150, but that the orchid in question rely on obtaining a charge free from incumbrance. There were no was merely the common variety of the Cattleya, worth some 78. 60. The grounds for saying that the bank ought to have assumed that deben- county court judge, while being of opinion that if the orchid in ques. tures had been issued, any more than there were for saying that a tion had in fact been an Alba it would have been at the time of sale worth mortgagee who found a mortgagor in possession of deeds showing more than £50, held that until the plant had shewn its real nature no him to be owner ought
to make inquiries on the footing that he had orchid grower (on the evidence given by the witnesses called) would have previously mortgaged. Further, there appeared to be an obvious reason paid more than twenty guineas for it. As the defendant had paid that why, the company retained possession of the deeds notwithstanding sum into court, he entered judgment for him with costs. Hence the the issue of the debentures. The debentures only gave a floating charge, plaintiff's appeal. For the appellant, counsel contended that on his own leaving the company power so long as it was a going concern to deal with findings the county court judge ought to have entered judgment for the its property as absolute owner, and his lordship inferred that it was on plaintiff for £50 with costs, and section 53 (2) of the sale of Goods Act, this
account that the company were allowed to retain possession of the 1893, was referred to, and Randle v. Raper (E. B. & E. 84) and Peterson v. deeds. No doubt there was a restriction that the company was not Eyre (13 C. B. 355) were cited and discussed. The damages onght not to to be at liberty to create any mortgage or charge upon its freehold have been confined to the bare value of the plant at the time of sale. If and leasehold hereditaments in priority to the debentures, but the the orchid had been divided and sold to other persons the damages might debenture-holders could not rely on this restriction as against the have been materially increased. The claim was reduced to £50 in order to bank taking without notice. The case came within the principle acted give the county court jurisdiction to deal with the case. For the defenupon in Perry Herrick v. Attwood (2 De G. & J. 21) and Briggs v. Jones (L. R. dant it was submitted that the measure of damages awarded by the 10 Eq. 92), which was that if a first mortgagee, even though he had the county court judge was right, and that his judgment ought to be legal estate, authorized the mortgagor to retain the deeds in order that the affirmed. The claim for damages above that sum was based on mere mortgagor might thereby, as ostensible owner of the property, be able to speculation. A white Cattleya was so rare, if, indeed, it really existed, deal with it, though only to a limited extent, yet if the mortgagor took that the price realized for this supposed specimen was the only standard advantage of the deeds so left with him to deal with the property to an of what its market value really was. The plaintiff was perfectly satisfied extent beyond what was authorized, then the mortgagee could not set up with his purchase until it flowered, and then, although the defendant had his charge as against a purchaser for value without notice who claimed offe red him his money back and two guineas more, he refused to be satisunder the unauthorized dealing and relied on the d eds and the apparent fied, and claimed excessive damages. Counsel cited, on the measure of ability of the owner to deal with the property free from incumbrances. damages, Clare v. Maynard (6 A. & E. 519, but see footnote there to Cox These cases were between prior legal mortgagees and subsequent equitable v. Walker, p. 523) and Williams V. Reynolds (6 B. & S., 495). incumbrancers, and a fortiori the principle applied where the first mort- Day, J., in giving judgment, said that very reluctantly, and not with gage was only equitable. In his lordship's opinion, therefore, the bank out some hesitation, he had come to the conclusion that the county court had a stronger equity and was entitled to priority. His lordship further judge had erred in the matter of law, and therefore the case must go observed that the conduct of the debenture-holders would seem to come back to him for a new trial. He was not in a position to say what a white within the cases which have decided, that a first mortgagee, even a legal Cattleya would be worth if it were discovered; it was impossible to fix the one, who negligently leaves the deeds in the hands of the mortgagor, is value of a thing which had never been known to exist. In his opinion postponed to a subsequent mortgagee who obtains the deeds without the plaintiff was entitled to recover, not only the money he had paid for notice : Clarke v. Palmer (21 Ch. D. 125) and Northern Counties of England the orchid, but interest on that sum, and something more for the trouble Fire Insurance Co. v. Whipp (32 W. R. 626, 26 Ch. D. 482). ---Counsel, and expense which he had incurred in looking after it for two years. The Farwell, Q.O., and E. Ford; Neville, Q.O., and Gore-Browne. SOLICITORS, defendant admitted that he had warranted the orchid to be white, Pritchard & Sons ; Campbell, Reeves, & Hooper.
although he had never seen it in bloom, and the warranty was false. If (Reported by R ALEGH B. PAILLPOTTS, Barrister-at-Law.]
he had been ordered to pay the costs of the action he could not have com plained ; but because he had paid a sum into court the successful plaintiff had had to suffer the expense of bringing
the action. The appeal would High Court-Queen's Bench Division.
be allowed with costs, and the case remitted. BRUNE V. JAMES. Div. Court. 21st Jan.
LAWRANCE, J., said he did not disagree with Day, J., in sending the COUNTY COURT-PRACTICE --APPEAL-ACTION IN WHICH THE Debt OR
case back, although he thought they had sufficient evidence of value to DAMAGE CLAIMED DOES NOT Exceed TWENTY Pounds —INJUNCTION- difference between the auction price realized for the orchid and the price
decide the case themselves. The true measure of damages was not the COUNTY COURTs Act, 1888 (51 & 52 Vict. c. 43), s. 120.
at which it would
sell now. The damages ought to be the difference in This was an appeal from a county court. The action was brought for the value of a defective thing sold with a warranty and the value of the