« PreviousContinue »
on a subsequent incumbrancer the duty of reading the con- then conclude a fortiori to the case of an equitable incumbrancer. ditions, and that where the incumbrancer was misled into The strength of the legal mortgage is that he has the legal believing that there was nothing in the debentures to touch his estate, and the problem is how to divest him of this advantage. security, he was not affected with constructive notice of the But in tho case of the equitablo incumbrancer no such considerrestriction (English, ge., Investment Co. v. Brunton, 41 W. R. ation arises. He has an equity which, apart from its priority in 133; 1892, 2 Q. B. 700). But it would not be safe to rely upon point of time, is exactly equal to that of the subsequent incumthis decision now that the restriction has become usual, and brancer, and the question is not whether he has bỹ negligence certainly not where the property in question is real estate.
or otherwise forfeited a substantial advantage, such as the legal Such a consideration only arises, however, when the sub- estate, but whether he has omitted a precaution against the sequent incumbrancer has notice of the debentures. Whether, creation of subsequent incumbrances which he ought to have in the absence of express notice, he is so put upon inquiry as to taken. Viewed in this light the case is simply an application have constructive notice is a point which has not previously of the rule laid down in Rice v. Rice (supra).* The debenturebeen decided. If the right of inspection of the company's holders, whether with or without negligence, failed to fortify register of mortgages was not by section 43 of the Companies themselves by possession of the title-deeds; the bank took this Act, 1862, expressly limited to creditors and members of the precaution. The bank therefore had the better equity, and the company, it would be possible that the register would give con- order of the incumbrances in point of time was immaterial. structive notice; but as against a prospective creditor this This seems to be a simpler way of treating the matter, but in limitation deprives it of any such effect. The sole question, either view the result is the same, and in the absence of a trust then, is whether the mere fact that companies frequently deed, debenture-holders cannot get a safe charge on the real issue debentures imposed on the bank in the present case property of the company unless the debentures provide for the the duty of making special inquiry. So to hold, however, would title-deeds being placed in independent custody. be to apply to new circumstances, and practically to extend, the doctrine of constructive notice, and to any such extension the courts are strongly opposed (see, for example, the judgment of
REVIEWS. BOWEN, L.J., in English, fc., Investment Co. v. Brunton (1892, 2
MAGISTRATES' PRACTICE. Q. B. p. 713). Upon this principle ROMER, J., acted in the present instance. Every company, he said, does not issue debenturos, THE MAGISTRATES’ ANNUAL Practice, 1898; BEING A COMPENDIUM and, moreover, every debenture does not charge all the property
OF THE LAW AND PRACTICE RELATING TO MATTERS OCCUPYING of the company, and certainly not property the title-deeds of
THE ATTENTION OF COURTS OF SUMMARY JURISDICTION, WITH AN
APPENDIX OF STATUTES AND RULES, LIST OF PUNISHMENTS DIARY which are left with the company. It might just as well be said,
FOR MAGISTRATES, &c. By CHARLES MILNER ATKINSON, Stipenhe continued, that because it is common for private individuals
dary Magistrate of Leeds. Stevens & Sons ; Sweet & Maxwell. to mortgage their properties, a person asked to make advances to a borrower, who appears to be unincumbered owner and has one will be surprised that it has reached the third year of its exist
This book is so well arranged and is so clearly written, that no the deeds showing him to be such owner, is bound to assume It seems now to have become firmly established as that the borrower has proviously mortgaged, or to make special authority on the subject with which it deals, and to bave a succF99inquiries of him on that footing. Such a contention, in the ful career before it. We pointed out in a notice of a former issue of the opinion of the learned judge, would be unreasonable, and he held book that, although the simplicity of its style enables the reader to that there was no negligence on the part of the bank which readily grasp the law on any subject which it treats of, still, by could affect it with constructive notice of the debentures.
aiming at such extreme simplicity the author occasionally misled
his readers in some slight degree. This defect has been to a great The question remains whether there wero any special con- extent remedied in the present volume, and although statute law is siderations affecting the failure of the debenture-holders to not always given in the precise words of the statute, the effect is obtain possession of the deeds which would save them from the given, as far as we have been able to test the book, with considerable operation of the rule above referred to. The circumstances accuracy. The book, in fact, is thoroughly good so far as it goes, under which a legal mortgagee will be postponed to a subse- but it does not go far enough or contain as much as it quent incumbrancer who has lent money on the faith of the ought, and when used in practice must constantly be suppledeeds are summed up in Northern Counties Insurance Co. v.
mented by reference to other works. To take an instance Whipp (26 Ch. D. p. 494). To state them shortly, the legal index, with a reference to p. 163.
almost at random, “BEER, Adulteration of,” is found in the
On turning to that page, mortgagee is not postponed on the ground of mere pegligence however, for information on the subject of this not uncommon in getting or keeping the deeds, but he is postponed (1) where offence, we merely find the words " as to adulteration of beer, see 48 he has connived at the fraud which has led to thọ creation of & 49 Vict. c. 51." Some subjects, too, of great importance are the subsequent equitable incumbrance without notice of his eutirely omitted. Thus, the Factory Acts are passed over in almost mortgage, of which connivance the omission to use ordinary complete silence, except in so far as they touch the subject of care in obtaining or keeping the title-deeds may be evidence'; education. In every populous place summonses for offences against and (2) where he has empowered the mortgagor to raise money would certainly be largely increased by the addition of seven or
these Acts are of frequent occurrence, and the utility of the book and the mortgagor has exceeded his authority : _Perry Derrick eight pages dealing with this branch of the law. Acts of Parliament v. Attwood (6 W. R. 204, 2 De G. & J. 21). In the present passed since the last edition was published, and recent decisions of case ROMER, J., considered that the debenture-holders had the courts which touch the subject matter of the book, are carebrought themselves under the second head; they had left the fully and accurately dealt with, and this edition is brought well up title-deeds in the possession of the company for the purpose of to date. Amongst recent cases noticed at some length, may be enabling it to deal with the property, and would have had to mentioned Powell v. Kempton Park Racecourse Co. (46 W. R. 8), the suffer for the unauthorized dealing by the company, oven if famous betting case, in which the full Court of Appeal (Rigby, L.J., they had been legal mortgagees. À fortiori, then, when they dissenting) differed from the decision of five judges of the Queen's
Bench Division in Hawke v. Dunn (45 W. R. 559). There is a very were only equitable incumbrancers. While, if this view was incorrect, ROMER, J., said they would at any rate have to suffer complete and usefol table, at the beginning of the book, of the
various penalties which may be imposed for offences which can be for negligently leaving the deeds in the possession of the dealt with summarily by magistrates. There is also a magistrates company.
calendar, which ought to be of service in reminding justices and With great deference, we should have said that neither conclu- justices' clerks of the matters which require partioular attention in sion followed. The title-deeds were left with the company because each month of the year. the debentures made no provision for their custody by the debenture-holders, and there was certainly no specific intention, as in Perry Herrick v. Attwood, that the company should have STONE's Justices' MANUAL ; BEING THE YEARLY JUSTICES' PRAC;
TICE FOR 1898. A GUIDE TO THE ORDINARY DUTIES OF A the deeds for the purpose of raising money on them; and the
JUSTICE OF THE PEACE. WITH TABLE OF STATUTES, TABLE OF negligence of the debenture-holders was not negligence amount
CASES, APPENDIX OF FORMS, AND TABLE OF PUNISHMENTS. ing to fraud which alone would be effectual to postpone a legal THIRTIETH EDITION. Edited by GEORGE B. KENNETT, Esq., mortgagee. It may be suggested, however, that it is unneces Town Clerk of Norwich. Shaw & Sons; Butterworth & Co. sary to base the reasoning on the case of a legal mortgagoe, and This well-known book has now actually reached a thirtieth edition,
and considerably more than half a century has elapsed since the first improvement. We would suggest, for instance, as the outcome of odition was published. It is hardly necessary to say more in recom article 134 that the title “ Surety" should be added to the index. A mendation of any work concerning wbich such a statement can be very large number of authorities are referred to in the Table of Cases, made. Indeed there can scarcely be an active magistrate in the which gives a complete set of references to the various reports, country, and there certainly cannot be a justice's clerk, to whom though the date of each decision is neither mentioned there nor in “Stone" is not almost indispensable. As we said when noticing the the text, which is matter for regret. Owing, we suppose, to the twenty-ninth edition, we think that the interest of London practi- date of the publication of the work, such cases as St. Asaph v. tioners might be consulted, by dealing more fully with the law Llanrhaiadr-yn-Mochnant, Overseers of (1897, 1 Q. B. 511 C. A.), relating exclusively to the metropolis; but within its professed limits, Reg. v. London, Justices of (45 W. R. 247; 1897, 1 Q. B. 433), which do not include this part of the law, this book attains a very and Lambeth Overseers v. London County Council (46 W. R. 79), high degree of excellence and is extremely accurate and trustworthy. are not amongst the cases cited, though we are glad to notice that The editor expresses a hope in the preface (which we think is reference is made to the very recent cases of Middlesex County likely to be fully realised) that the book will be found as useful and Council v. St. George's Union (44 W. R. 666; 1897, 1 Q. B. 64), reliable now that it has become an “annual,” as it has been for so and Lancaster Commissioners v. Barrow-in-Furnes8 (1897, 1 Q. B. long when it was merely a "manual.” Certainly the present 166). The text of the work is immediately preceded by a Table of volume loses nothing when compared with its predecessors. Statutes set out in the appendix, and of those merely referred to. The Acts of Parliament of 1897 which relate to the duties of justices are not very numerous, neither are there many of great importance. They are, however, all carefully dealt within this edit One short Act, the Volunteer Act, 1897, which was passed to remove the THE RATING OF MINES AND QUARRIES ; BEING A SHORT PRACTICAL
TREATISE ON THE LAW OF RATING GENERALLY, AND IN ITS difficulty found in the case of Reg. v. Lewis (1896, 1 Q. B. 665), is
SPECIAL APPLICATION TO MINES, IRON WORKS, AND QUARRIES. correctly noted in the text but is omitted from the list of statutes. The editor calls special attention to the Infant Life Protection Act,
By ARCHIBALD BROWN, M.A., B.C.L., Barrister-at-Law. Butter
worth & Co. 1897, which creates a number of new offences with the object of putting a stop to the cruelty to children which is so often brought to
The moderate dimensions of this work, which comprises less than light in connection with "baby farms.” This is certainly the most fifty pages of text, obviously prevents its being a very comprehensive important of the new Acts noticed in this volume. The decisions of treatise on the subjects to which it is devoted. It is, however, a the courts, reported up to the end of last year, which touch on the meritorious effort at condensation, which we hope will meet with the subject matter of the book, seem to be carefully noticed. Probably encouragement it deserves. The work is divided into two sections. one of the most important of these is Boulter v. The Justices of Kent Of these, the former is concerned with “ The Poor Rate,” while the (46 W. R. 114; 1897, A. C. 556) in which the House of Lords latter comprises “ Taxes; also Rates other than the Poor Rate.” decided that justices at a licensing meeting are not a court of The principles of law applicable to the rating and taxation of mines, summary jurisdiction, and that, consequently, appeals from the iron works, and quarries are accurately stated, together with rules decisions of such justices are not regulated by the provisions of the for the assessment and valuation of rateable properties. Apt Summary Jurisdiction Act, 1879.
instances and illustrations of the propositions set forth in the text are given when necessary, and though these refer almost exclusively
to special kinds of rateable property, it is believed that they will be RATING.
found to be readily adaptable to all other rateable properties, inA CODE OF THE LAW OF RATING AND PROCEDURE ON APPEAL, WITH author, reference may be made to p. 30, et seq., where the
cluding plant and machinery. In proof of the care displayed by the AN APPENDIX CONTAINING ALL THE STATUTES (INCLUDING THE differences between a mine and a quarry are indicated. A table of AGRICULTURAL RATES ACT, 1896), FULLY ANNOTATED, AND SPECIMENS OF VALUATIONS MADE FOR THE PURPOSES OF RATING. By cases, giving their dates and also references to all the reports, SYLVAIN MAYER, Barrister-at-Law. Waterlow & Sons (Limited). precodes the text, which is followed by an index of fifteen pages,
containing a number of suggestive titles. In no branch of law is a code more needed or likely to prove more useful than in that devoted to the thorny and difficult subject of Rating. The very title, therefore, of this work constitutes, in itself,
BOOKS RECEIVED. a recommendation to the reader, who, moreover, will find, on consulting its pages, that the favourable impression first produced is
Powell's Principles and Practice of the Law of Evidence. fully justified. The whole work is divided into two parts, of which Seventh Edition. By Joun CUTLER, B.A., Q.C., and CHARLES F. the first is entitled a "Code of the Law of Rating,” while the second CAGNEY, B.A., Barrister-at-Law. Butterworth & Co. consists of an appendix of statutes relating to rating. In this con A Manual of Common Law for Practitioners and Students, comnection it should be stated that the table of contents makes no prising the Fundamental Principles, with Useful Practical Rules and mention of Part II. in referring to the appendix, so that the reader, Decisions. By JOSIAH W. SMITH, B.C.L., Q.C. Eleventh Edition. unless he has read the preface, does not really know of what Part By CUTHBERT SPURLING, M.A., B.C.L. (Oxon), Barrister-at-Law. II. consists, or whether there is more than one part, until he turns stevens & Sons (Limited). Price 15s. to p. 285, when he finds what is, in itself, somewhat unusualnamely, Part II. described as an appendix. Tbis, however, is a very the English Law on the subject, the Outlines of the Roman
A Digest of the Law of Contract, containing the Outlines of small blemish, and might, we think, with advantage, be obviated in a Dutch Liw, a Collection of Illustrative English and Ceylon future edition by suppressing the word “ appendix regards Part I. it comprises ten titles, each of which is subdivided Cases, a Summary of the Chief Cəylon Statutes relating to conmay be mentioned that Title I. deals with rating generally (the Stevens & Sons (Limited). Price 103. net. into articles. Without setting out the names of the various titles, it tracts, Notes on some Maxims relating to Contracts, and Case Notes
on the Labour Laws of Ceylon. By ISAAC TAMBYAH. London: principles therein laid down applying to every description of property, whatever may be the subject matter thereof), Titles II. IX. The Universal Tutorial Series ; London LL.B. Examination with particular kinds of rateable property, and Title x. with proce- Papers, 1886-1898. W. B. Clive. Price 3s. 6d. dure on appeal against a rate, considered under two sections, the Handbook on the Workmen's Compensation Act, 1897, with first of which relates to appeals outside the metropolis, and the second Approved Scheme of Compensation, Statutes referred to, &c. Fifth to appeals inside it. This last-named title ought to be much appre- Edition, Revised and Enlarged. By M. ROBERTS-JONES, Esq., ciated by the profession and public on account of its practical value. Barrister-at-Law. Cardiff : Western Mail (Limited). Price 23. 6d. It indicates every step that should be taken by an appellant, from the notice of objection to the Assessment Committee until the appeal finally reaches the High Court.
So inuch for Part I. As regards Part II., it sets out all the “A Churchunan," writing to us with regard to the Temple Church statutes (some 27 in number) relating to rating, commencing with 43 Lenten Services, says: “It is pleasing to know that after a long interval Eliz. c. 2 (an Act for the relief of the poor) and ending with 59 & 60 of about twenty years or more the benchers have been induced to Vict. c. 16 (Agricultural Rates Act, 1896), and refers, in the notes, allow a service every Friday at 5.30. The late Dean Vaughan, when to many more. Each section of every statute set out is carefully Master of the Temple, used to give lectures in Lant to the general public annotated with the cases that have arisen under it, while at the end at eight o'clock on Fridays, and which were largely attended. "Why of the appendix will be found some specimens of Valuations of Rail- Canon Ainger has never had any service except on Sundays must be way, Dock, Gas, Electric Light, and Water Companies, which, it is Before Dean Vaughan's time I recollect when morning prayer was said
beyond the comprehension of many Churchmen in the legal profession. suggested, may with advantage be compared with the various articles daily at 9.15, and I well rec. llect a solicitor in the Temple of large practice of Part. I., so as to realize, at a glance, how the principles of rating, who travelled every morning from Weybridge, went to his office, opened which have been laid down, work out in practice. The index, at the all the letters, and then started for that service. It is quite true the same end of the volume, occupies nearly fifty pages, and seems sufficient gentleman did not burn the candle at both ends, for he might be seen at for all practical purposes, though, like most indexes, capable of 3.30 starting for Waterloo Station."
86 of the Companies Clauses Act, 1845, to shew that it must be invalid. CASES OF THE OF THE WEEK.
That would be putting upon section 85 a construction which has never
been put upon it during the last fifty years. To say that a contract Court of Appeal.
between two companies is invalid because the directors of one of them are
interested in it is not true. In this I differ from Kekewich, J. The next KAYE v, CROYDON TRAMWAYS CO. No, 2. 9th and 23rd Feb. point i', that there was no contract at all. The difficult question is, D Jes LIMITED Company-SALE OF UNDERTAKING TO New COMPANY– Bonus to this notice (which his lordship read) specify the purposes for which the DIRECTORS - ULTRA VIRES - NOTICE OF PURPOSE OF EXTRAORDINARY
meeting was convened ? To my mind this notice was most artfully and GENERAL MEETING-COMPANIES CLAU: ES Act, 1845 (8 Vict. c. 16), ss
carefully prepared. It was a tricky notice; the intention was to conceal 71, 85, 86.
from the shareholders the fact that a large portion of the purchase-money This was an appeal of the defendent company from a decision of ment requires must be done, but it must be done fairly.
was going into the pockets of the directors. All tbat the Act of Parlia
It follows that Kekewich, J., and raised several questions of general importance in although the contract is one which the company can lawfully adopt it is company law. The action was brought by the plaintiff, a shareholder of not one which is binding on absent shareholders. The order will be : the defendant company, on behalf of bimself and all other shareholders Discharge the order of Kekewich, J., and restrain the company from in the company, to restrain the directors from carrying out a provisional carrying the agreement into effect until sanctioned by the shareholders of agreement for the sale of the company's undertaking and assets to the the Tramways Co. at a meeting duly convened for that purpose. The British Electric Traction Co. The agreement made between the two costs of the original plaintiff and defendants to be costs in the action, and companies provided for the sale of the undertaking, and continued as
the Traction Co., added as defendants, to have their costs. follows: Clause 2. “In consideration of the said sale the Traction Co.
Rigby, L.J.--I am of the same opinion. First of all this contract is not shall, on the completion thereof, pay to the Tramways Co. the sum of ultra vires-that is, it is not a contract which the company has no power £30,543. The Traction Co. shall also pay the sum of £500 to each of the
to carry into effect. It would be monstrous to hold that a condition of present directors other than Mr. W. J. Carruthers Wain, to whom the this sort would make a contract ultra cires. I will say nothing about sum of £1,250 shall be paid, and £500 to the secretary of the Tramways Southall v. British Mulual Assurance Society (ubi supra) except that that Co. as compensation for loss of office." “This agreement and all the provisions hereof are conditional upon the question was clearly raised before the Master of the Rolls and the Court of
Appeal; and remembering that ullra vires is not a question of comparison, same being adopted by the shareholders of the Tramways Co., and in case
but a question of legality or otherwise, we find the question here is whether of non-adoption it shall be lawful for the Traction Co., by notice in the company has a legal capacity to enter into the contract. It seems to writing to the Tramways Co., to determine this agreement.” On the 26th of November, 1897, the Tramways Co. gave notice of an extraordinary holders the company in general meeting approves, may be a very proper
me that this is an agreement of which, if upon proper notice to the sharegeneral meeting of the shareholders to be held on the 14th of December, agreement; but on the question whether there has been sufficient notice at twelve noon," for the purpose of considering, and, it thought advisable, of approving the terms of an agreement to be made between the remember that there was no contract at any time and is not now any
to the shareholders and sufficient approval at a general meeting, we must Croydon Tramways Co. of the one part, and the British Electric contract in which any director has any interest at all. As to the question Traction Co. (Limited) of the other part, being an agreement for sale of of notice ; if it can be said that the purpose of the meeting is shewn in the undertaking and assets of the Croydon Tramways Co. to the British the advertisement we have no right to require anything more; but the Electric Traction Co. (Limited).” On the 1st of December, a circular was issued to the shareholders, stating that the sale to the Traction Co. would several purposes then the notice is not sufficient; if there was one purpose
question arises, Was the purpose of this meeting disclosed ? If there wers be at a price sufficient to pay off the preference capital at par and return it was not indicated. I cannot think that the notice actually given was 60 per cent. to the holders of the ordinary stock. The circular also either literally or in spirit within the meaning of section 71. It must stated: “The Traction Co., in addition, assume the responsibility for give at any rate a fair and candid and reasonable explanation of the the debentures and other liabilities of the company, and as they are desirous of having the management in their own hands the directors and purpose or purposes for which the meeting is to be held. This was far
from being a candid circular. secretary have agreed to retire on being paid a lump sum as compensation for their loss of office.” A form of proxy was also enclosed in the allowed. - COUNSEL, Cripps, Q.C., Warrington, Q.C., and Rowden ; Bram
VAUGHAN WILLIAMS, L.J., gave judgment to the same effect. Appeal circular. At the extraordinary general meeting the plaintiff opposed the well Davis, Q.C., and T. Bradford; Buckley, Q.C., and Stewart Smith. confirmation of the provisional agreement; neverthelees it was confirmed SOLICITORS, Hugh C. Godfray; Walter Webb & Co; Sydney Morse. by a very large majority. The plaintiff thereupon commenced his action, allegiog that the provision to pay a lump sum to the officers of the com
[Report ed by W. SHALLCROSS GODDARD, Barrister-at-Law.] pany was ultra vires, and that the meeting was not duly summoned, on the ground that the notice of the meeting and the circular did not
Re RIDLEY, RIDLEY V. VAUGHAN. No, 2. 5th and 17th Feb. sufficiently disclose the real terms of the agreement which were to be WilL-CONSTRUCTION - ADDITIONAL OR SUBSTITUTIONAL GIFT-CHILDREN or considered. This latter question depended upon the construction of
CHILD WHO “SHALL DIE" IN LIFETIME OF TESTATRIX. section 71 of the Companies Clauses Act, 1845, which Act was incorporated in the Tramways Companies Act. Section 71 is as follows: "Fourteen September, 1893, Jane Ridley appointed her sons, James Cartmell Ridley
Appeal from a decision of North, J. By her will, dated the 22nd of days' public notice at the least of all meetings, whether ordinary or and Samuel John Ridley, executors and trustees thereof, and after a extraordinary, shall be given by advertisement, which shall specify the pecuniary legacy to each of them as executor, fand specific bequests to place, the day, and the hour of meeting, and every notice of an extra- them and each of her other children then living and to her granddaughter ordinary meeting, or of an ordinary meeting, if any other business than Phæbe Frances Stoney, and certain pecuniary bequests, including & the business hereby, or by the special Act appointed for ordinary meetings is to be done thereat, shall specify the purpose for which the meeting bequest of £500 to the trustees upon trusts in favour of Phoebe Frances is called.” On motion for an injunction to restrain the directors from Stoney, she devised and beqneathed all the residue of her estate real and carrying out the terms of the provisional agreement, Kekewicb, J., granted personal unto her executors "upon trust to divide the same among all
my the injunction, being of opinion that the notice of the meeting was
children in equal sbares absolutely ; provided always that if any child insufficient to satisfy the statute, and that a majority of the meeting vive me, and, being a son or sons, shall attain the age of twenty-one years,
of mine shall die in my lifetime leaving a child or children who shall sur. could not, as against a dissentient shareholder, bind bim to an agreement by which a large sum of money wouid pass into the hands of the officers or, being a daughter or daughters, shall attain that age or marry under of the company and confer no benefit on the shareholders of the com
that age, then, and in every such case, the last-mentioned child or children pany. The Tramways Co. appealed, and after the appeal had been shall take (and if more than one equally between them) the share which the plaintiff in the absence of the purchasing company; The case stood of March, 1894, and her will was proved by the executors on the 7th of argued the court expressed an opinion that they could not do justice to bis, her, or their parent would have taken of and in the residuary trust
The testatrix died on the 15th over, therefore, for the writ to be amended by adding the Traction Co. as defendants, and for them to be served with notice of motion before the June, 1894. At the date of her will and at the time of her death the Court of Appeal.
testatrix bad six children living; she had had two other children, both of
whom were dead at the date of her will-namely, Charles Joseph Ridley, The Court (LINDLEY, M.R., and Rigby and VAUGHAN WILLIAMS, L.JJ.) who had died a bachelor, and Sarah Agnes Stoney, the mother of the allowed the appeal.
above-named Phoebe Frances Stoney, who was born in 1886. Ou the LINDLEY, M.R.-This is an extremely important case, and one or two division of the estate the question arose whether Phæbe Frances Stoney, it questions of general importance are raised. Kekewich, J., has restrained she lived to attain the age of twenty-one years or married, would be the carrying out of the agreement until the judgment in the action on the entitled to share in the residuary real and personal estate of the testatrix. ground that the agreement is ultra vires—that is, that one shareholder can North, J., in chambers, held that the grandchild was entitled to share in restrain the sale. The subordinate question is, Has Kekewich, J., gone too the residue. The defendants, the beneficiaries other than Phæbe Frances far in this? It is not yet a confirmed agreement, and the question turns Stoney, appealed. ultimately on the sufficiency of the statutory notice. It is quite obvious The Court (LINDLEY, M. R., and Rigby and Vaughan WILLIAMS, L.JJ.) that the clause providing for remuneration to be paid to the directors is, allowed the appeal. to say the least of it, a very unusual clause. It is to be paid to them as LINDLEY, M.R.-The case has been extremely ingeniously argued by compensation for loss of office. One would not think it was that merely Mr. Younger. After all, this is an attempt to force us by authority to from reading it. It is said to be an illegal agreement and such a one defeat the obvious intention of the testatrix. [His lordship stated the that no company can enter into even if the shareholders wish it. I am terms of the will, and continued :] She has provided for her only orphan not prepared to go that length, and there is no proposition of law to that grandchild. She provides for her children in clause 5 of her will, and not effect. I am not prepared to say that the shareholders cannot do it. for children who are dead. She meant children then living, and that is Southall v. British Mutual Life Assurance Society (19 W. R. 236, L. R. 11 the line which separates this case from Loring v. Thomas 19 W. R. 919, 1 Eq. 65, and on appeal 19 W. R. 865, L. R. 6 Ch. App. 614) is the nearest Drew. & Sm. 497). The appeal must be allowed. cake to this. Mr. Bramwell Davis based his argument on eections 85 and Rigby, L.J.-I am of the same opinion. I bave uot a word to say
against the decision in Loring v. Thomas (ubi supra), but in recent times was filed under section 25 of the Companies Act, 1867. This agreement judges bave set their faces against canons of construction which make contained a recital of the principal agreement, setting forth the parties to rules applicable to words used with one set of facts applicable also to the it and the nature and extent of the consideration to be paid in cash and same words used with a different eet of facts. The Vice-Chancellor, in fully-paid shares, but only referring to the subject-matter of the sale as Loring v. Thomas (ubi supra), said, though the meaning of the words “the businesses and property mentioned in the first part of the schedule" “shall die ” was undoubted, yet it was flexible. Here the testatrix was to the principal agreement, and “the leasehold hereditaments, short dealing with the immediate members of her family, only those of her particulars of which are set out in the second part of the said schedule. children who were still living.
No further description of the property or premises was given. The VAUGHAN WILLIAMS, LJ.-I concur in this decision with considerable question which the court had to determine was whether or not the filed satisfaction, because Mr. Younger has argued that, having regard to agreement contained a sufficient statement of the consideration for which Loring v. Thomas (ubi supra) and other cases, the court has no choice but the fully-paid shares were to be issued. Counsel for the company did not to put the construction on these words which he was arguing-that is, he argue the point, but stated that the company was willing to submit to put it to us that the case referred to laid down a canon of construction of such order as his lordship should deem proper. these words of universal application wherever these words occurred. The
KEKEWICH, J., after stating that, although the absence of any argument tendency of modern decision has always been to refuse to lay down any general rule. On this particular will I have arrived at the same conclusion preferred to decide the question of sufficiency rather than content himself
on the part of the company placed him at a serious disadvantage, yet he as the other members of the court. Appeal allowed.-COUNSEL, R. H. with making an order rectifying the register on the grounds that a Forster; Younger. SOLICITORS, Crossman, Prichard, & Co., for Dees f reasonable doubt existed, continued as follows: The question is, Is this a Thompson, Newcastle-on-Tyne.
sufficient contract within section 25 of the Companies Act, 1867 ? the [Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.)
objection being that the consideration for the issue of these fully-paid shares is not sufficiently stated. Now, it may be said that this is not a contract at all, and in one sense it is not, for it is not an original but
only a confirmatory contract. There is, however, no doubt that a short High Court-Chancery Division.
confirmatory contract is sufficient for the purposes of the Act, and it is
convenient and advantageous that it should be so. Whether you call it & Re VERNEY'S SETTLED ESTATES. Kekewich, J. 18th Feb.
confirmatory contract, or whatever you call it, it must have all the SETTLED LAND-APPLICATION OF CAPITAL MONEY-IMPROVEMENT Rent- elements of a contract; that is how I understand the decision in the
CHARGES-REDUCTION OF INTEREST-REDEMPTION OF CHARGES-REPAY- Kharaskhoma case. For the present purpose Chitty, L.J., puts the matter MENT TO TENANT FOR LIFE-SETTLED LAND ACT, 1887, s. 1
more plainly than the other lords justices, he says: “Now, what is the Money for the improvement of certain settled estates in Buckingham- object of the section ? Publicity; to give information by registering the sbire was raised by Ioan from a land improvement company and charged contract to any person who proposes to deal with the company either by
He is to upon the land by the Inclosure Commissioners in the form of terminable way of becoming a shareholder, or lending money or the like. annuities under the Improvement of Land Act, 1864. In 1896 Sir go to the register to find-what? To find the contract. He goes to the obtain a reduction of interest on the charges from 4 to 3 per cent. -- that is, the document of the 17th of August, and he would be at the Edmund Hope Verney, the tenant for life in possession, in order to register in this case, but he does not find the contract; he finds part-half
as it were—of the contract. He has no right to see the unregistered part obtained a transfer of the charges to the Clerical, Medical, and General Insurance Co. For this he paid to the original holders the sum of £915 mercy of the company whether they shewed'it or not." You must, out of his own moneys. On the 20th of December, 1897, Sir Edmund therefore, shew the essentials of a contract; you have not got a contract gave notice to the trustees of the settlement requiring them to repay him if you omit the name of the vendor, or the name of the purchaser, or a the sum of £915 out of capital moneys belonging to the settlement which description of the thing to be purchased, or the price to be paid for it.
You must have all these four essentials—the vendor, the purchaser, the had now come into the hands of the trustees. This was a summons taken out by Sir Edmund, which raised the question (inter alia) whether price, and the thing for which the price is given, or else you have not got the trustees would be justified in recouping him the £915 under the a contract. Now, in the present case you have got the first three, but provisions of the Settled Land Act, 1887, s. 1, which provides that have you got the property for which these shares are to be allotted ?
Where any improvement of a kind authorized by the Act of 1882 has Before deciding that question I shall refer to what Chitty, L.J., says been made and a rent.charge
has been created in about the particularity with which the consideration must be stated; he pursuance of any Act of Parliament with the object of paying off any with what degree of particularity the consideration must be stated in the
“This judgment of ours will not in any way affect the question moneys advanced for the purpose of defraying the expenses of such
contract. If the consideration is, for instance, a concession in South improvement, any capital money expended in redeeming such rent-charge or otherwise providing for the payment thereof, shall be deemed to be Africa, the person who reads the registered document will see that it applied in payment for an improvement authorized by the Act of 1882."
is a concession in South Africa and will form his own opinion about
it. So if it is furniture supplied to an hotel company, he may be able KEKEWICH, J.-Tbis reduction of interest was no doubt a great to go at once and see what that furniture is, or he may not, because advantage to the tenant for life and also to his successors if they succeed after a lapse of time the furniture may be worn out. Again, if it him while these rent-charges still remain. In order to get it he has had is the sale of a goodwill and stock-in-trade, the consideration stated to pay £915 out of his own moneys, and he wants it repaid to him out of being the goodwill and the stock-in-trade, he sees the nature of the capital money in the hands of the trustees. The question is, What is he consideration and he sees it stated.” I do not take it that the lord entitled to under the Settled Land Act, 1887, s. 17 Under that section justice meant to say that a reference to a concession in South Africa he is entitled to have the capital money expended in redeeming" these without more would be sufficient, and in his subsequent examples I rent-charges. Well, this is not a case of actually redeeming them. take it that the lord justice is speaking of the furniture in a particular Redemption is the paying off of principal, interest, and costs. Is it, then, hotel, or the good will of a particular business referred to in the contract. capital money expended " in otherwise providing for the payment Now turn to the recitals in the supplemental contract in the present case, thereof." I do not think that points towards recouping a tenant for life What have you? There is a recital that the vendor has agreed to sell, payments which he has made out of his own moneys. This is a voluntary and the company to purchase, the businesses and property mentioned in payment for reduction of interest made by the tenant for life partly for the schedule to the principal contract. There is no mention even of the his own benefit. I think, therefore, it would be wrong to allow the situation of the property. Then again, the leaseholds are only referred to trustees to recoup the tenant for life this payment out of the capital in the recital as being the leaseholds specified in the schedule to the money in their hands.- Counsel, Warrington, Q.O., and W. C. Druce; principal contract. Any person who read this supplemental contract W. H. Coltman. Solicitors, Twisden & Co., for Hearn f Hearn, Bucking would not know whether there was one leasehold house or fifty houses, or ham ; Western & Sons.
whether there was ground-rent or rack-rent payable in respect of them, [Reported by C. C. Hensley, Barrister-at-Law.]
or in fact anything at all about them. It seems to me idle to say that the
property is properly described by reference to the contents of a schedule Re MAYNARD'S (LIM.) Kekewich, J. 25th Feb.
which is not part of the document itself and which you cannot find out. COMPANY-SHARES ISSUED AS FULLY PAID-SUPPLEMENTAL CONTRACT
Chitty, LJ., said in his judgment that there must be some particularity STATEMENT OF CONSIDERATION-PARTICULARITY-SUFFICIENCY-COMPANIES
of description, but he did not say what degree of particularity was necesAct, 1867 (30 & 31 Vict. c. 131), s. 25.
sary; but here there is no particularity whatever, and I therefore do not
think this is a good contract within the section of the Act. Now, that This was a motion by Mr. Charles Riley Maynard for the rectification of being so, the register must be rectified, and on this point there is in Mr. the register of Maynard's (Limited), in respect of certain shares which had Chadwyck Healey's book a reference to a case which I have followed for been allotted to him as fully paid up in pursuance of a contract filed years. In a case like the present it seems to me that the court must under section 25 of the Companies Act, 1867. In consequence of the only rectify the register by striking off the applicant's name, for he recent decisiou of the Court of Appeal in Re Kharaskhoma Exploring and has been put on the register for so many shares not fully paid up, which, Prospecting Syndicate (46 W. R. 37; 1897, 2 Ch. 451) doubts had arisen of course, was not the contract. It has been suggested that the order concerning the sufficiency of the contract which had been filed, and the should direct that after the applicant's name has been cancelled a new applicant had taken the present proceedings in order to obtain the opinion and sufficient agreement should be executed and filed and new shares of the court. The facts were as follows: By an agreement dated the issued and delivered to the applicant. It does not seem to me to be a 14th of March, 1896, the applicant had agreed to sell, and the company proper form of order to direct that on something being done which has had agreed to purchase, at the price of £40,000, the businesses and not yet been done the register should be rectified. I think that what Mr. property specified in the first part of the schedule thereto and the lease - Chadwyck Healey says in reference to the course adopted in the Court of hold premises specified in the second part of the said schedule. The Appeal in the case of Re The New Eberhardt Co. (38 W. R. 97, 43 Ch. D. £40,000 was to be paid and satisfied partly in cash, partly in fully-paid shares. 118), which is unreported on this point, is right, and that the only order On the 13th of March, 1896, that contract was adopted by the company, which the court should make is an order directing the applicant's name to and a supplemental agreement for the issue of the fully-paid shares be struck off the register.-COUNSEL, Warrington, Q.O., and Whinney; W.
E. Vernon ; 4. R. Kirby. SOLICITORS, Rawlings g Butt ; Vernon, Son, & difficulty of working out appeals against such rates would be almost Stephens ; Harris, Wilkinson, f Raikes.
insuperable, and I can hardly think that any such principle has been laid [Reported by R. J. A. MORRISON, Barrister-at-Law.]
down. I can see no clear or satisfactory authority in favour of Mr. Foote's proposition ; the only authority which seems to be at all in favour of it is the case of the Metropolitan Board of Works v. The Vauxhall Bridge
Co., and there the opinion expressed in favour of it is an extra-judicial High Court-Queen's Bench Division. opinion, certainly by judges of authority. But I doubt if that case
meant more than that, according to law, lands could only be rated KNIGHT (Appellant) v. THE LANGPORT DISTRICT DRAINAGE BOARD (Respondents). Div. Court. 25th Feb.
according to their value. That was not an opinion which carries the
contention of the respondents as far as they want it to go. Further, DRAINAGE-RATES GENERAL AND SPECIAL RATES-DRAINAGE BOARD- whatever was said in that case in reference to the matter was an extra
POWER TO LEVY PROPORTIONATE OR DIFFERENTIAL RATES—SOMERSETS HIRE judicial opinion, and, in addition to being ambiguous, was said in DRAINAGE Act, 1877 (40 & 41 Vict. C. XXXVI.).
reference to a special Act. In the case of Pew v. Metropolitan Board of Case stated by the court of quarter sessions for the county of Somerset Works, the court expressed, or certainly implied, the view that the in the matter of an appeal against a special rate and of an appeal against extra-judicial opinion given by the court in the Vauxhall Bridge case was a general rate made by the Langport District Drainage Bcard on the 10th not in accordance with what the judges in Pew's case thought was the of March, 1896. The rates were required for the purposes of and pur- law on the subject, but in deference to the court which decided the suant to the Somersetshire Drainage Act, 1877 (40 & 41 Vict. c. xxxvi.). Vauxhall Bridge case, they did not overrule it. So Blackburn, J., in the It was arranged that the two appeals should be heard together, as the case of Grifiths V: Longdon Drainage Board, laid down the law-obiter, it is facts and principle involved were, so far as is material, identical. The true-in opposition to the respondents' contention-namely, that only quarter sessions quashed the rates. The appellant Knight is the owner
those who derived a benefit from the works can be rated. That is very and occupier of a certain house and shop in the town and parish Head, Crompton, J., goes out of his way to say that he was not a party to
different from the contention for the respondents. Again, in Reg. v. of Langport, within the jurisdiction of the Langport Drainage the extra-judicial opinion expressed in the Vauxhall Bridge case. There Board and of the Somersetshire Drainage Commissioners; and it is one other matter I refer to-namely, the Act 3 & 4 Will. 4, c. 22, s. 14, is in respect of such property that the rates appealed against were imposed. The respondents are a district drainage board constituted for which does not give us much help in deciding this case. "I very much the Langport district, and this district with certain other districts include doubt whether it is competent for the commissioners, under section 14 of and comprise the whole of the lands within the jurisdiction of the Somer- that Act, to constitute special districts by taking out particular properties setshire Drainage Commissioners, who, together with the boards of the according to levels, because, if we look at section 14, it relates to the districts, constitute the drainage authority under the Act. In addition to constitution of what are called special drainage districts, and I do not the powers vested in the commissioners and district boards under the Act,
see how it would be possible to apply this to isolated properties. All and except as expressly varied thereby, there are-by section 140 of the that can be done is to constitute districts as distinguished from Act-vested in such commissioners and district boards all powers con
individual cases. I think, therefore, the justices in quarter sessions were ferred on commissioners of sewers by Act of Parliament, law, or custom. right in their decision. The rates were expressed to be made under the provisions of the Act, and DARLING, J., concurred.-COUNSEL, Foote, Q.C., and Garland; R. were duly confirmed. One of such rates consists of a special rate, and Wallace, Q.C., Howland Roberts, and Weatherley. SOLICITORS, Louch, for the other of a general rate. The special rates are leviable by the com Louch f Puole ; Gearse, Son, f. Pease, for Hill & Son, Langport. missioners and district boards for the purpose of defraying the expenses
[Reported by Sir Sherstox BAKER, Bart., Barrister-at-Law.! of any improvements in existing work or the construction of new works, and form a tas upon owners. All the other rates leviable are general FARLEY (Appellant) v. HIGGINBOTHAM (Respondent). Div. Court. rates and form a tax upon occupiers. The expenses in which the two
25th Feb. rates were made were lawfully incurred by the commissioners
SUPPLY ARTICLE FOR and the Langport district board in respect of the drainage of the FooD AND Druos—ADULTERATION-REFUSAL TO Langport district, and the aforesaid property of the appellant
ANALYSIS - AUTHORITY OF CONSTABLE—LIABILITY OF SHOPKEEPER FOR comes within the area deriving benefit, and is, therefore, lawfully
RBFUSAL BY MANAGER-SALE OF FOOD AND DRUGS Act, 1875 (38 & 39 Tateable. The appellant objected to the rates on the ground that
Vict. c. 63), ss. 13 AND 17. instead of bis property being rated equally with all other rateable Case stated by Justices of the peace. At a petty sessions holden on property within the district the respondents had levied a differential the 30th day of October, 1897, at Newton le Willows, in the county of rate and had rated the appellant at a higher rate in proportion to the Lancaster, an information was preferred by John Higginbotham (the greater benefit received by such property. The principle adopted by the respondent) against the appellant, under section 17 of the 38 & 39 Vict. Langport District Board in the mode of levying their special and general c. 63 (the sale of Food and Drugs Act, 1875), charging the appellant rates made in pursuance of the Act, was as follows: The net annual value with having had, on the 13th of October, 1897, on sale by retail in his of the property as assessed to the poor rate was taken as the basis of the shop at Newton le Willows, a certain article of food- to wit, coffee; and value of the various properties for the purpose of apportioning the that one James Duncan, a constable in that behalf duly authorized and drainage rates. The board divided the different rateable properties into appointed, applied to the appellant to purchase from him the said three classes, which were relatively formed and arranged upon the prin- article of food and tendered to him the price for one half-pound of coffee, ciple of proportionate benefit received and danger avoided by the which Duncan required for analysis, and that the appellant unlawfully properties contained in each class by virtue of the Act, and a propor- refused to sell the same to the constable. The justices heard and detertionate or differential rate is levied in each of such three classes ; and the mined this information and convicted the appellant, imposing a fine of ratepayers are distributed into these three clasees according to the quantum £3 and coste. The facts were these : On the 13th of October, 1897, of supposed benefit received and danger avoided by each ratepayer. For Police-constable Duncan, then not an officer duly appointed under the the special rate the three classes pay respectively 28., 18. 4d., and 8d. in Sale of Food and Drugs Act, in obedience to verbal instructions from the the pound, and for the gene ral rate, 1s., 8d., and 4d. The appellant's respondent, who is an officer duly appointed under the Food and Drugs property was placed in class 1 as to both rates, and rated at the highest rate. Act, visited the provision shop, the proprietor of which was and still is The appellant contended that the respondents had acted contrary to law in the appellant. He demanded from one of the assistants half. adopting the above system of classification and differential rating, and a-pound of coffee, and after some conversation as to the price alleged that the respondents had no power to levy any rate other than an he eventually purchased, in the presence of another assistant, equal rate upon all the property benefited by the Act, and that if the balf-a-pound of coffee at 1s. 63., for which he tendered in payment 28., district were divided individual ratepayers in the same area could and received in return 1s. 3d. change. At this time another policenot be placed in the different classes because of the supposed different constable, who was not an officer appointed under the Act, entered the quantum of benefit received. The respondents contended that the prin: shop and Duncan informed bim of the purchase he had made. This ciple of classification and proportionate or differential rating was lawful constable then read over the usual caution in the presence of the two and in accordance with their powers. The court of quarter sessions assistants and of the manager, who had come in at this time, and he being of opinion that in thus classifying the different properties within stated that the coffee had been purchased for analysis. The coffee was their district and levying a proportionate rate the respondents had acted then divided into three parts, and as the constable was writing out the contrary to law, quashed the two rates, subject to a case for the opinion labels the manager suddenly got hold of the pots containing the coffee of the court. The question now was whether the principle of propor- and threw the contents over the floor. Duncan informed the manager tionate or differential rating, according to the supposed benefit received that the coffee had been bought and paid for by him and was therefore or danger avoided, was lawful and in accordance with the powers of the bis property, and demanded one half-pound of the same sort to replace it board. The following cases, amongst others, were referred to : Bow v. (at the time pointing to a tin where the first half-pound had come from). Smith (9 Mod. 94), Rex v. Commissioners of Sewers for the Tower Hamlets (9 The manager refused to supply the same, or to let either of the assistants B. & C. 517) Soady v. Wilson (3 A. & E. 248), Metropolitan Board of Works do so. The manager offered to return the money Duncan had paid, but v. The Vauxhall Bridge Co. (5 W. R. 711, 7 E. & B. 964), Reg. v. Head and Duncan refused to take it. No second tender of money was made by the Metropolitan Board of Works (11 W. R. 339, 3 B. & 8. 419), Pew v. Duncan. It was admitted that neither the appellant nor the respondent Metropolitan Board of Works (13 W. R. 580, 34 L. J. M. C. 97), Griffiths v. was present in the shop at the time the purchase was made by Duncan, or Longdon and Eldersfield Drainage Board (19 W. R. 1162, L. R. 6 Q. B. subsequently when the manager refused to supply a similar quantity on 738.
demand by Duncan. The appellant had given express instructions in THE COURT (WRIGHT and DARLING, JJ.) dismissed the appeal of the writing to the manager that all coffee must be sold as coffee and chicory drainage board.
except in the case of pure coffee at ls. 8d. per lb., and that whenever a WRIGHT, J.-It seems to me that the proposition for which Mr. Foote, customer asked for coffee the manager should tell him it was coffee and on behalf of the drainage board, contended, would, if well founded in chicory, except in the case of pure coffee at 18. 8d. per lb. The questions law, have been found in authorities decided a long time ago; but there for the opinion of the court were: (1) Whether the respondent could are no such authorities. If such a contention were to prevail the authorize the constable to act in bis absence in accordance with section 13