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named Act, which provides that the bankruptcy of a plaintiff shall not cause an action to abate “ if the trustee shall oleot to continue such action and to give security for the costs thereof.” It was held that this section did not apply under the above circumstances, and that the county court judge had no power to make any order requiring security for costs to be given by the trustee. \Vhether section 94 applies at all to a remitted action, may, perhaps, be questionable; but, at all events, it can have no application where, as in the case under consideration, bankruptcy supervenes before the remitting order is made, and the trustee in bankruptcy has already been joined as plaintiff by order of the High Court, and without requiring any security for costs to be given by him.

BY vmrcn of section 1, sub-section 6, of the Companies (Winding-up) Act, 1890 (53 & 54 Vict. c. 63), every county court possessing jurisdiction thereunder has for the purposes thereof “all the powers of the High Court.” That is to say, it possesses under that enactment all the powers and jurisdiction of the Chancery Division, if the matter was being dealt with there, and all the powers and jurisdiction of the Queen's Bench Division, if the matter was being dealt with there: per BRETT, M.R., in Ea: parts Reynolds, Re Barnett (33 W. R. 715, 15 Q. B. D., at p. 188). In the recent case of Re New Par Console (Limited) (ante, p. 343)1the Court of Appeal held that the above enactment prevents t e county court judge, when exercising winding-up jurisdiction, from being treated as an inferior court subject to prohibition. Consequently, in such a case, even when want of jurisdiction on the part of the county court judge is complained of, the proper mode of procedure is, not to apply for a prohibition, but to appeal, which was the course adopted in the previous case of Re Ilkley Hotel Co. (41 W. R. 639 ; 1893, 1 Q. B. 248).

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Tim decision of the Court of Appeal in Re Courtier (35 W. R. 85, 34 Ch. D. 136) has resulted in a good deal of uncertainty as to the liability of the tenant for life of leasehold property under a will to bear the burdens of the lease, and the uncertainty has been shewn by the varying views of the effect of the case taken in the Chancery Division. The construction given to it by KE1{EWICH, J., in Re Baring (41 W. R. 87 ; 1893, 1 Ch. 61), was objected to by STIRLING, J., in Re Rfrlding (45 W. R. 457 ; 1897, 1 Ch. 876), and now in Re Tomlinson (46 W. R. 299) KEKEWICH, J., has adhered to his former opinion, and has applied the exoneration of the tenant for life to a case where the life interest was accompanied by the legal estate.

In considering this conflict of judicial opinion it is necessary to refer to the earlier case of Re Fowler (29 W. R. 891, 16 Ch. D. 7 23). There a testator bequeathed leasehold houses to his trustees upon trust to receive the rents and profits arising therefrom, and to pay the same to a specified person for life. The tenant for life, who was one of the trustees, was allowed to go into direct receipt of the rents and profits, and the other trustee alleged that since the testatcr’s death the houses had not been properly repaired. He claimed to have provision made out of the rents and profits for executing necessary repairs. FRY, J., held that in this claim the trustee was right. It is the duty, he said, of trustees of leasehold property to keep it free from the risk of forfeiture. This is a duty imposed upon them in the interest of the remaindermen, and, since there is no other fund applicable, the duty must necessarily be performed by recourse to the rents of the property. He held, accordingly, that the plaintiff trustee had a right to have the covenants in the lease performed out of the rents of the houses, and he appointed a receiver of the rents for that purpose.

The practical result of Re Few er was to throw the burden of repairs upon the tenant for life, but this result was due to the intervention of the trustee. In Re Courtfer (supra) it was the reinainderman who applied to the court, and he was not equally successful. In this case a testator gave leaseholds to trustees upon trust for his wife for life, and after her death upon trust


that the property should be sold and the proceeds divided among four persons. The leaseholds were a bid stat; of repair it the death of the testator and the wi ow ept t em up int e same state of repair, biit declined to do more. Two of t_he remaindermen a plied for an order to compel the tenant for life Ea maintain the l):lt:89l110ldS in suchta statedof peppiq as to fitisfy e covenan sin e ease so as o avoi a or ei ure. was held, however, by the Coifrt of Appeal that the tenant for life was under no obligation to perform t(l11e covenants qf this le;slp, and the relief asked for by the remain erman was re use . e obligation to perform the covenants was on the trustees, and the tenant for life was exonerated. “She is not bound,” said COTTON, L.J., “ to the landlords under the covenants; the trustees are bound, and it is their duty to repair the houses in accordance with the covenants in the leases out of the corpus of the estate. There is no rule of law that the tenant for hfe is bound to do these repairs out of rents and profits. She is to enjoy these leaseholds in specie, but she is under no covenants to repair, and there is nothing in the will to shew that the testator intended her only to have the neg rents after fiBk1flg rovision for the liabilities that arose in t e testatcr’s ' etime. It cannot be fairly left to the widow to make good the deficiencies of the testator.”

There is an obvious distinction between Re Courtier and Re Fowler. In the former case the dilapidations were, as the passage just quoted states, due to the default of the testator ; in the latter the state of non-repair seems to have arisen during the possession of the tenant for life ; and upon this ground Re Fowler might have been set aside as inapplicable. If so, the subsequent doubt as to the effect of Re Uourtier would not have arisen. But the Court of Appeal did not so distinguish Re Fowler. In Re Fowler, it was said, there was no question between the tenant for life and the remaindermen. The question was whether trustees who were entitled to receive the rents and profits ought to provide thereout for repairs. “N0 question,” said Corrox, L.J., “was decided there between the tenant for life and the remaindermen; only that the trustees, having the property in their hands, and having the duty to receive the rents and profits, had also the duty to keep that part of the estate in repair, and having nothing but rents and profits in their hands, they must apply them for this purpose."

But whether the remainderman or the trustees are applying to the court does not seem to be the most material question. If the trustees can throw the burden of the covenants on the tenant for life by performing them out of the rents, this means that the property is to be preserved for the remaindermen at the expense of the tenant for life. Re Courtfor could have been without difiiculty decided upon the ground that the dilapidations were not due to the default of the tenant for life. They were the result of the testatcr’s neglect, and therefore could properly be thrown upon the corpus of the estate. But the terms in which Re Fowler was distinguished appeared to absolve the tenant for life from liability also for non-observance of the covenants during the period subsequent to the testatcr’s death.

In Re Bari'n_q (supra) Knicnwicri, J., held that such was in fact the result of the decision in Re C'ourtz'er. A testator bequeathed to his trustees and executors a leasehold house upon trust 101' successive tenants for life, with remainders over, and the trusts of the residuary personal estate included a direction to pay out of the income thereof all the expenses of carrying the trusts of the will into execution. The question arose whether the rent and expenses cf repairing the leasehold house ought to be borne by the tenant for life or by the trustees, and, if by the latter, out of what part of the testatcr’s estate. KEKEWICH, J ., considered that prtmri faoie the tenant for life ought to keep down those periodical payments which were necessary for the enjoyment of the property, but he thought himelf debarred from coming to such a conclusion by the decision of the Court of Appeal in Re Courtier. The judgment of COTTON, L.J., he considered to be based on the general non-liability of the tenll-11¢ for life to do repairs, and not merely on his non-liabilityto make good the default of the testator. Hence he hold that the liability was in the trustees only, and was to be performed by them, not out of the rents of the leasehold property, but out of the income of the residuary estate. In lit Itidding, on the other hand, STIRLING, J ., took the view that 111


deciding Ra Co-urticr, the lords justices were looking solely at the fact that the dilapidations had accrued in the testator’s lifetime, and he declined to allow it to be any authority for exonerating the tenant for life generally from the burdens incident to the possession of leasehold property. Hence, where a testator had directed that his trustees should pay to a tenant for life the income derived from leasehold property, it was held that this entitled the tenant for life to receive only the net income, and that she must bear the expense of all outgoings incurred after the testator’s death.

The question has now arisen before Knxr-zwrcn, J ., again in 1?» T omlinson (supra), and he has confirmed the view of the effect of Re Uouriier which he took in Re Bar-z'n_q. The Court of Appeal were dealing generally with the liability of the tenant for lite in respect of the leasehold property, and they held that he was not bound to do anything at any time to the leaseholds. In Ra Tomlinson there was not, as in the previous cases, a gift to trustees. Leaseholds were bequeathed directly to a legatee for life and to legatees in remainder. There was, therefore, additional reason for arguing that the tenant for life, as possessed of the legal estate, was liable to perform the covenants in the lease, and so to preserve the property for the sake of the remaindermen. KEKEWICH, J., held, however, that the exoneration of the tenant for life extended to this case also, and that the proper fund for the performance of the covenants was the estate of the testator who was originally liable upon them. If this is correct, it would seem that a tenant for life of leaseholds, unless under the terms of the will he takes them cum onera, can always decline to pay the rent and perform the covenants, and look for this to be done out of the testator’s estate. If the estate produces no income except that of the leasehold property, the burden may then be thrown back upon the legatee, and this seems to be the explanation of Re Fowler (supra). But otherwise the legatee for life takes the leaseholds free from liability to keep them up.


A Tanarrsrz on THE Law or Moarosons, Pnsncss, AND HYPOTHE— CATIONS (Fomvnsn on Coorn’s Law or Monrosons). By Lnoronn Gnonor: Gonnon Rormms, of Lincolns-inn, Barristerat-Law; assisted by FREDERICK T. MAW, of Lincoln’s-inn, Barrister-at-Law. Stevens & Sons; Sweet & Maxwell.

The editors of this elaborate treatise deserve great credit for restoring to the front rank of text-books on the law of mortgages the familiar Coote, which in recent editions had rather fallen below its old standard. It appears now in another name; and appropriately, for the mass of new work is very large. The treatise remains, however, on lines which are now sometimes considered to be the lines of a good old-fashioned text-book. It is a monument of elaborate and detailed industry in collecting and arranging all cases and statutes’ affecting, whether nearly or remotely, every branch of the subject, rather than a code of princi les illustrated by the more important cases. Each style has its aldvantages, as well as its disadvantages. The advantage of this style is that the practising lawyer will find in detail everything that he can possibly want, if only he has the patience to seek it in detail through a mass of other things which he does not want. The disadvantage is a little danger of bewilderment in the search, and a tendency to find no clear line between the ruling principles and the application of nthem to divers sets of facts. For this reason it is hardly a book to be recommended to students, but it will be a mine of wealth to their elders who desire to be acquainted with all the possible decisions bearing upon the application of doctrines to complicated facts. Some idea of the completeness and elaboration of the work may be gathered from the simple fact that the tables of contents, cases, statutes, and rules cover 220 pages, while no fewer are given to the index.

There arc, of course, some risks of error in a work edited on the lines above mentioned: first, some details of importance will get overlooked in spite of all industry, and the omission becomes noticeable by way of contrast; secondly, cases will creep in which are really not relevant although the facts in them involve a reference to mortgages; and thirdly, matters which should appear there will slip out of the index. There are instances in this book of these defects, but we have found very few. We may perhaps (not in the least in the way of carping) give one instance of each. To take the first—that of omissions: In discussing the power of municipal corporations to mortgage their lands, the provisions requiring the approval of the ‘Treasury under the earlier Acts and under the Municipal


Corgsorations Act of 1882 are carefully set out, but no mention is ma e of the fact that under the Local Government Act of 1888 the powers of the Treasury are transferred to the Local Government Board—which is important (pp. 445-447). As an instance of the second defect we may refer to the case of Davis V. lVhz'te7zead, (1894, 2 Ch. 133) which occupies nearly a. third of p. 25, and which is a case of trust, or specific performance, and has nothing to do with the law of mortgages, although the subject-matter of the trust or agreement happened in that case to be an equity of redempton. One instance of the third defect will also suffice. There is a chapter on marshalling of mortgaged assets (chapter 41) which is well indexed, and the index includes some other references to marshalling in the book—e.g., maritime securities, but another reference, where a factor has pledged his own goods with those of others (p. 1481), appears to have escaped the index-maker altogether.

These are very small defects in so large and elaborate a. work. We give them only as instances of the difficulty of writing a perfect work on these microscopical lines. Subject to these minor criticisms, we have nothing but congratulations to Mr. Robbins and Mr. Maw and their staff of assistants upon the learning and enterprize and industry ghich have gone to the reconstruction of this favourite old text


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This was an appeal from an order of the Court of Appeal (Lord Esher, M.R., Lopes and Chitty, L.JJ.), reported 45 W. R. 467; 1897, 1 Q. B. 692. The appellant company, wishing to obtain a. loan of £75,000, issued a prospectus inviting subscriptions. The loan was to be in sums of £50 secured by first mortgage debentures for that amount, the debentures constituting a floating charge on the whole ofithe properties and assets of the company, the loan was so to be secured by a trust deed. The money was to be paid by instalments—viz., 10 per cent. on application, 15 pcr cent. on allotment, and the balance by equal instalments payable two, four, and six months after allotment. The principal was to be repaid on the 31st of December, 1900, with a bonus on every £50 debenture. The respondent applied for an allotment of sixteen debentures, representing an advance of £800, and with his application remitted the sum of £80. His offer was duly accepted, and the remittance retained by thc company. The respondent having {declined to make any further advance, the present action was brought against him by the company for payment of a capital sum which they claimed (1) as in specific performance of his obligation ; (2) as the balance of the price which he had undertaken to pay for the debentures; and (3) as damages which they had sustained by his breach of contract. Wright, J ., gave judgment for the company for the amount of the instalment due, but his decision was reversed by the Court of Appeal. The case was argued at the end of November last, when

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THE Houss (Earl of HALSDURY, L.C., Lords WATSON, Huuscasnn, ltlscruoiirsn, and Susan) dismissed the appeal.

Earl of llsrsrmnv, L.C., in the course of his judgment, said : The applicant for debentures, on the face of the instrument, contracts to pay something, but the real nature of the whole transaction is an agreement by the applicant to lend money at certain interest, and the action in this case was in truth mainly, if not altogether, directed to compel the intend

H ing lender to perform his contract to lend, which undoubtedly he had

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refused and neglectedto do. With respect to the claim for specific performance, a long and uniform course of decision has prevented the application of any such remedy, and I do not understand that any court or any member of any court has entertained a doubt but that the refusal of the learned judge below to grant a decree for specific performance was perfectly right. But, of course, in this, like any other contract, one party to the contract has a right to complain that the other party has broken it, and if he establishes that proposition he is entitled to such damages as arc appropriate to the nature of the contract. In this case, as I have said, the contract was to lend money. Referring to the question of damages, the amount of interest to be paid for the loan, and the fact that £80 was under the contract itself forfeited to the company for the nonperformance of the contract in its entirety, render it dificult to see what substantial damages could have been recovered, and I regret that, under the circumstances, it should have been thought advisable to appeal to your lordships in a case which, upon a review of the facts, does not appear in any view of it to have been worth the expense necessarily involved in such an appeal. Your lordships were informed that it took seven minutes to try, with the result that it has now been to two courts of appeal, and, but for what I am about to say, might have resulted in a new trial. Upon a careful review, however, of the facts I have come to the conclusion that it would be impossible to suggest any serious damages in this fcase, and tho tacit admission of the parties by their declining to consider the question of a new trial upon payment of costs renders it unnecessary for me to do more than to say that in this case justice has been done by the Court of Appeal reversing the decision of the learned judge below. I think it right, however, to add that if any serious right were involved, or if it was reasonably possible that injustice has been done, I should have felt myself at liberty to give my opinion in favour of a new trial.

Lord Wxrsox, after stating the facts, continued: The only engagement made by the respondent with the company consisted in a promise to advance money to them on loan; and it is settled in the law of England that such a promise cannot sustain a suit for specific performance. It is equally clear, in my opinion, that the obligation of the company to issue mortgage bonds against the loan did not in any way alter or affect the character of the transaction or give the company any right to sue as for the price of an article sold by them which they were ready to deliver. The only remedy open to the company was by action against the respondent for any loss or damage which they might sustain through his breach of promise. The case was tried before Wright, J ., who gave the company a decree for the price of the debentures which the respondent had agreed to take up. I cannot say that the trial was satisfactory. The proceedings were chiefly occupied by a discussion between the learned judge and the respondent’s counsel, in the courseof which the former indicated the terms of the order which he meant to pronounce. N o evidence of damage was tendered by the appellant company. An appeal was taken by the respondent upon a notice of motion that the decree of Wright, J ., should be reversed or varied, and the judgment should be entered for him or a new trial allowed. At the hearing of the appeal counsel for the company urged the first and second of the claims made by them, and did not refer to their claim of damages. After the judgment of the Appeal Court was delivered, reversing the order appca ed from and entering judgment for the respondent, counsel, in the absence of the head of the court, moved two lords justices to remit the case for trial of the question of damage. Their lordships declined to entertain the application. On the hearing of this appeal, counsel for the company again pressed upon your lordships the desperate arguments which they had addressed to the Court of Appeal, and moved your lordships to send back the case, in order that the company might have an opportunity of proving damage. I do not doubt that it is within the discretion of the House to grant or refuse that motion: but I am very clearly of opinion that, in the circumstances of this case, that discretion ought no to be exercised in favour of the appellants, and that tho order appealed from ought to be aflirmed, with costs.

The other noble and learned lords concurring, the appeal was dismissed with costs.—Cot'ussr., Sir R. Reid, Q,.C. ; Herbert Smith and Woodcock ; Bray, Q.C., and Gore-Browne. Somcrroas, F. Voulu §' (70. ,' Ranger, Burton, §- Frost.

[Reported by C. H. Gsssrox, Barrister-at-Law.]

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This was an appeal from the Divisional Court (Wright and Kennedy, J J .) upon a special case stated by consent between the parties pursuant to the provisions of ord. 34, r. 1, and the question raised was whether the defendant company was a water company. The plaintiffs in the action sought to recover from the defendants the sum of £185 5s. for rates pa able in respect of the use by the defendants of certain subways of the plaintiffs. The defendants were incorporated under the Wharves and Warehouses Steam Power and Hydraulic Pressure Co.’s Act, 1871 (34 & 35 Vict. c. cxxi.), for applying motive power by hydraulic pressure to waterside and land cranes used for working machinery. They were authorized to take and use for the purpose of their undertaking water from the River Thames. Section 2 of the said Act incorporated therein certain general Acts, including the Companies Clauses Act, 1845, and the provisions of the Waterworks Clauses Act 1847 wi

, th respect to the breaking up of streets for the purpose of laying pipes. By section 25 of A


the said Act the company was empowered to take from the River Thames and distribute for the purposes of their undertaking not more than one million gallons of water per day. By section 30 it was provided that the company should construct works necessary to secure the return to the river of all waters taken therefrom and used by them immediately after the use of the same for the purposes of the said Act. Section 31 provided that the said company should not at any time supply water to be used for any purpose other than as a motive force. By section 38 the company were authorized to supply within their district motive power by hydraulic pressure to any person or company, and to erect and let for hire and work cranes, machines, and engines for the purpose of supplying such motive power. Section 9 of the London Hydraulic Power Act, 1884 (47 & 48 Vict. c. lxxii), imposed a penalty on any person who, being supplied by the company with water under the powers of the said Act, should use the water so supplied for any other purposes than as a motive force. By the London County Council (Subways) Act, 1893 (56 8: 57 Vict. c. ccii.), it was enacted that it should be lawful for the council to require a company to lay in or remove into a subway of the council any pipes belonging to the company where the council had a subway in the same street. And it was enacted that the expression “ the company ” should mean any company, body, or person having any power of opening or breaking up a street for laying any pipe or wire. By section 5 of the same Act the council was empowered to make on the company using any subway a charge for the use thereof according to a scale to be determined, and it was enacted that in the case of any water or gas company having statutory powers to break up streets, regard should be had only to such saving (if any) as might result to such company by reason of the pipe being laid and accessible in a subway instead of being laid or remaining under a street, and to any other saving resulting to such company by reason of the subway, andto the cost of management and supervision of the subway and the pipes therein. By section 10 of the same Act power was given to the council to make bye-laws fixing the scale of fees and charges to be paid by any company or person using any subway. Certain bye-laws were made by tho council containing provisions as to charges. There was

one table of charges in respect of water and gas companies having power

to break up streets, and another table on a higher scale in respect of com

panies, bodies, or persons other than water or gas companies having power to break up streets. Under the aforesaid provisions the council required the defendant company to lay their pipes and remove the same into their subways in certain streets and this was accordingly done. A question arose between the council and the defendant company as to the scale of charges applicable to the use by the defendants of such subways. The council contended that the defendants should be charged according to the second scale. The defendants contended that the scale applicable to water and gas companies was the scale to be used for the purpose Oi calculating what sum was payable by the company to the council. The question for the court was, under which scale the council were entitled to charge the company. The Divisional Court held that the company WE! nota water company but a company for supplying motive power, and they accordingly gave judgment for the plaintiffs for £185 5s. Tho defendants now appealed.

Taxi Counr (A. L. Surrn, Cnrrrr, and Connrxs, L.JJ.) dismissed the 9-PP°° - .

A. L. Snrra, L.J.—-This company was established for supplying m0§W9 power by hydraulic pressure. It is not a water company. It is prohlbllbd from supplying water for other purposes. It does not supply water for domestic or garden purposes, and has no duty imposed upon it to B11991! water qud water. The Companies Act has not the Waterworks Clause! Act incorporated in it but only certain provisions of it with respect to the breaking up of streets for the purpose of laying pipes, but that does PW constitute ita water company. lvater companies have large llflbllltleflr this company has not. It is not compelled to supply the motive powerFurther, it is not limited, as watcr companies are, in respect of the PW‘ ment of dividends. It is a private enterprize. It must, therefore, pay the ordinary charges under the scale relating to companies other than water or gas companies.

Cnrrrr, L.J., delivered judgment to the same effect., L.J.—I am of the same opinion. I quite agree this is not an ordinary water company, but I have some diiiiculty as to the mes.nin8 °t the expression “ water company ” in the Subways Act and the byo-1flW°This company equally has a right to break up the streets for the purpflfie of laying water pipes, and I cannot see why on principle it should come under the higher rate, for I fail to see that its pipes are not water PIP“But on looking at the Act we find that the Legislature, for some reaflvll °1' other, has placed gas and water companies on a better footing than 0t1}6!_ companies. Appeal dismissed.—Cou1vsss, Cripps, Q,.C., and Loehezrsi Dickens, Q,.C., and English Harrison, Q C. Somcrrons, Beald 4' 05- I W. A. Blazlanrl.

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This was an appeal by the plaintiff from a judgment of Bruce, J. _Th° act-ion was brought on a building contract. By an agreement in Writing dated the 3rd of October, 1896, and made between the plaintifi Md the defendant, the plaintifi agreed to erect for and on behalf of the del'endB1_1; two houses and a stable for a sum of £565, £365 of which was to be Pm in cash and £200 worth of horses. The work was to be completed bl’ the 31st of December, 1896. By the 28th of November the plaintiff had wmé pleted work to the value of £330, and he had received £119 in OB-Ehmt two horses valued at £100. The plaintiff at that date being in W611” °

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money was unable to continue the work. The defendant immediately took over the work and finished it. The plaintiff then brought an action, claiming damages for breach of contract and £222 as balance due to him for work and labour and materials. The defendant denied any liability and counter-claimed for damages by reason of the plaintiffs breach of contract whereby he, the defendant, had been obliged to complete the work himself at an additional cost beyond what he would have had to pay to the plaintiff. The learned judge in the court below held that the plaintiff had abandoned the work on the 28th of November, and that he was in default, and that he was not entitled on a quantum meruit, but only for £34 in respect of loose material left on the ground by him and used by the defendant. The plaintiff now appealed. It was contended on his behalf that if the case of Lysaght v. Pearson (T. L. R., March 3, 1879) is good law he ought to succeed, and that that case was on all fours with this one. There the owner had entered into possession, and had prevented the builder from completing, and it was held by the Court of Appeal that the latter was entitled to sue on a quantum meruit. The case of Appleby v. Myers (L. R. 2 C. P. 651) was also cited.

THE Counr (A. L. Snrru, Cnrrrv, and Conuus, L.JJ.) dismissed the appeal, and were of opinion that the plaintiff having no more money and beng unable to continue the work had abandoned the contract. The builder being unable to go on the defendant was bound to take over the works and complete them himself. There was an entire contract, and the plaintiff could not divide it and claim on a quantum mcruil. There was no evidence here, from the mere fact that the building owner had taken possession, that he had entered into a new contract with the plaintiff. Nor was there any evidence of an implied contract to pay on a quanlum meruit. Munro v. Butt (8 E. & Bl. 738) shewed the law upon this subject, and Zysagllt v. Pearson did not affect this case. Appeal dismissed.—Couussr., Harris, Q.C.,PeiZe, and G. T. Drury; Bray, Q.C., and E. Brag. Somerroas, Sydney B. Letohford; G. E. Philbrick.

[Reported by E. G. B1-rr.r.wsr.r., Barrister-at»Law.]

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Appeal from an order of Grantham, J ., at chambers under section 32 of the Companies Act, 1862, directing the Kent Coalfields Syndicate (Limited) (in liqui tion) and the liquidator to produce to the applicant for his inspection the register of members of the Kent Coalfields Syndicate (Limited). The syndicate was incorporated as a limited company under the Companies Act, 1862, and was being wound up voluntarily. Subsequent to the commencement of the winding up the applicant, who was neither a creditor nor a contributory, applied to the company for inspection of the register, tendering at the time one shilling, but inspection was refused. The applicant then applied to the judge at chambers for an order to inspect the register, and Grantham, J ., made the order. The company and the liquidator appealed, and contended that section 32, which imposed a penalty on the company for not allowing inspection of the register, did not apply to a company in liquidation, the register in such a case being under the control of the liquidator; and that when a company was being voluntarily wound up a contributory alone could get inspection of the register under sections 138 and 156 of the Companies Act, 1862, and in such a case the only judge who had jurisdiction to make an order for inspection was the judge having jurisdiction under the Companies (Winding up) Act, 1890. It was admitted that the company had ceased to carry on its business.

THE Covar (A. L. Burrn, Currrv, and Connms, L.JJ.) allowed the a eal.

pg. L. Snrrn, L J ., said that, in his opinion, looking at section 32 as a whole, it was obvious that the inspection of the register there referred to meant an inspection in the case of a going company alone and not in the case of a company being wound up. If authority were wanted for that proposition it would be found in the judgment of James, V.C., in Re Yorkshire Fibre Co. (18 W. R. 541, L. R. 9 Eq. 650). The learned judge, therefore, had no jurisdiction to make the order,

Cmrrr, L.J., concurred. Section 32 did not, in his opinion, apply to 0. company which was being wound up either by the court or under supervision or voluntarily. It occurred in a group of sections which on their face dealt with companies as going concerns. The section itself contemplated the company as a going concern. The penalty for refusal to allow inspection was imposed on the company and the directors, whereas when a company was in iquidation the register passed into the custody of the liquidator : Re Capital Fire Insurance Association (32 W. R. 260, 24 Ch. D. 408). The right of inspection given by section 32 was very important to anyone who contemplated dealing with the company when it was a going concern. In his opinion it was not intended that after winding up a stranger should have a right to inspect the register., L.J., concurred.—Couusar., F. Evan: ; Swinfen Eady, Q.C., and J. R. Alkin. Soucrrons, Lake 4- Lake; N. Herbert Smith.

[Reported by W. F. Bums, Barrister-at-Law.]

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Wright, JJ.), on a special case stated in an action by the AttorneyGeneral on the relation of the Newcastle Breweries (Limited) in which was claimed (1) a_ declaration that any agreement by the defendants to mdemmfy the chief constable of the borough against costs he might have, or might have had, to bear or pay in connection with licensing appeals from the borough justices to quarter sessions, and any ayment of such costs by the defendants was ultrd vireo and void; and 82) an injunction restraining the defendants from making or acting on any such agreement or from making any such payment. At the annual general licensing meeting held m August, 1895, the chief constable of the borough of Tynemouth raised objections to the renewals of certain public-house licences, and the justices refused to renew them. The holders of the licences gave notice of ap eal to uarter sessions, and on the 10th of October the Watch Committee of are borough refused to authorize the chief constable to act as respondent on the appeals, or to indemnify him against any costs. On the 15th of October the council resolved “that the chief constable, who is the respondent in the licensing appeals . . . be authorized to oppose such appeals, and that the council agree to indemnify him against any costs which he may have to bear or pay in connection with the appeals as such respondent.” On the hearing of the appeals the chief constable appeared by counsel and opposed the appeals, which were dismissed with costs. The costs incurred by the c ref constable exceeded the amount allowed on taxation by £132 5s. On the 19th of November, at a meeting of the new Watch Committee, it was resolved that this sum should be paid. The Divisional Court held that the resolution of the council was not sufficient, and that the sanction of the second \Vatch Committee could not override the resolution of the former Watch Committee. They therefore gave judgment for the plaintiifs. The defendants appealed.

Tm; Couar (A. L. Sxrm, Crirrrv, and CoLLms, L.JJ.), having taken time to consider, dismissed the appeal, holding that neither the Municipal Corporation Act, 1882, ss. 140-143, nor Schedule V., Part IL, thereof, nor the Borough Funds Act, 1872, authorized pa ment out of the borough fund of the costs incurred by the chief constable in opposing at quarter sessions renewals of licences.—Covxssr., Asquith, Q C., and Maomorran, Q.C.; J. Lawson Walton, Q.C., and T. W. (Zhittg. Somcrrons, Sharpe, Parker, Prilchards, §- Barliam, for H . A. Aziamson, Tynemouth; Pateraom, Snow, Bloxam, r§- Kinder, for Ramon, Nelson, §- Hemard, Sunderland.

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This was an appeal from a decision of Kekewich, J . (reported ante, p. 97), who had athrmed the refusal of the Comptroller-General of Patents to register the word “ Pirle ” as a trade-mark for woollen fabrics in Class 34, under the provisions of the Patents, Designs, and Trade-Marks Acts. Messrs. Ripley & Son, the applicants for registration, were dyers and cloth finishers at Bradford. The original application was to register the two words “Pirle” and "Pearl." The Comptroller-Genera _decided that “Pearl” could not be registered, because it was not an “ invented word,” but was in fact commendatory of the goods ; and that the word “ Pirle ” was open to the same objection, being really only an incorrect way of spelling “Pearl.” The applicants appealed to the court against the reffiisal to Eegisliéerl“ Pirlgii’ They allegeg thag; tPirle;1 wpzs fgrmeg from t e wor ‘ ip ey, eir own name o ing e y an transposing the other letters, and confendeg that “ Pirle ’f was an “ invented word ” and was not “ geographical ” or “_descr1pt1_ve of the character or quality of the goods.” Kekewich, J., being of opinion that the sagas plonsidprptiontsfilppéied tprtllile twolwlords Peizrl ” and 2 Pirle,” afirm t e ec s one e omp o er. e app ican s appeae .

Tm: Couar (Lrunrisr, liI.R., and RIGDY and Vauorum W1LLrAus, L.JJ.) di missed the appea .

ELINDLEY, M.R., said that the court could not see its way to allow the appeal and grant this application. They were not prepared to lay down the entirely new proposition of law that when a well-known English word could not, under the Acts, be put ufpon the register, another word, of prepiselydthe same sound, and d1 ering only in spelling, could be re stere .

§i.IOHY and! V.i>uou;ivl \Vrré, .,Wcg‘ncurrZd(.}—Cougsi}r., floplton, Q.C. and . . I a fer; ir i¢‘lG7' e tar . . an rig e oyoe. SOLICITORS, Speechly, Mumford, Landon, §- Rogers; Solicitor lo the Board of

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Appeal from the judgment of the Divisional Court (Grantham and

advanced shares. In September, 1893, the society was ordered to be wound up under the Companies Acts as an unregistered company upon a


petition presented by a depositor. In the course of the proceedings a petition was presented to o tain the sanction of the court to a scheme of arrangement between the creditors and the contributories of the society. The scheme as approved by the court in 1894 provided that the residue should be divided amongst the unadvanced shareholders. It was not then anticipated that there would be any residue, and no question arose as to the rights and riorities of the members. It afterwards, however, appeared that, when all claims were discharged, there was a surplus of about £2,800 for division amongst the unadvanced shareholders. An application was accordingly made to Wright, J ., who directed that the surplus assets should be distributed rateably amongst all the unadvanced shareholders other than those that had compromised and released their claims. That decision was now appealed from, and the Court of appeal came to the conclusion that the surplus assets ought to be distributed according to the legal rights of the shareholders. The decision of Wright, J., on this point was consequently reversed. The question then arose whether the widows and children of deceased members were entitled to recedence, and, if so, whether they must claim under a nomination. This question turned upon the construction of the following clauses in the society’s rules: “22. Members withdrawing.—That any member desirous of withdrawing his or her investments, and having been a member one year, shall, by giving one month‘s notice in writing to the directors, at any monthly meeting, be entitled to receive back his or her net monthly subscriptions, with simple interest at the rate of 5 per cent. per annum, and, in addition thereto, after the second year, such portion of the profits as shall be declared by the directors at the date of withdrawal. That, if more than one member shall give notice to withdraw at one time, they shall be paid in rotation, according to the priority of notice; provided always that the widows and children of deceased members shall always have the precedence. . . . ” “25. Death of members.—That, in case of a member dying, his or her share or shares and interest shall belong to, or be distributed among, his or her executors or administrators, or other the person or persons hereinafter mentioned, and such executors or administrators may vote and act in all cases whatsoever as fully as the deceased member whom they represent may have done if living. . . . When, on the death of any member of this society, without leaving u will, a sum of money not exceeding £50 shall become payable, such sum shall, in default of letters of administration being taken out to the deceased member, be paid by the trustees to any person nominated by the deceased in writing deposited with the secretary (such person being husband, wife, father, mother, child, brother or sister, nephew or neice, of such member), nnd, in case there shall be no such nomination, or the person so nominated shall have died before the deceased member, or in case the member shall have revoked such nomination, then such sum shall be paid to the person who shall appear to the said trustees to be entitled under the Statute of Distributions to receive the same, without taking out letters of administration in England or Ireland, and without confirmation in Scotland. . . .”

LINDLBY, M.R.—Althou h the rules are extremely obscure, I think I see my way to a tolerably plain conclusion on them. The court has to deal with the shares of deceased members. It must ascertain who are the persons the society must recognize on the death of members. It comes to this—that, according to ru o 25 the society must recognize the executors or administrators of deceased members. If there are neither the society must look further and must recognize any person nominated by the deceased to take the share. If there are neither executors nor administrators, and if the sum of money payable does not exceed £50 and there is no nomination, then the society must recognize the person entitled under the Statute of Distributions to receive the money. What are such persons to take? Mr. Bramwell Davis has said that they could not take anything without having given notice to withdraw. That was a startling proposition, and not warranted. There was nothing requiring notice of withdrawal to be given. WVhether a member gave notice to withdraw or not, on his death he ceased to be r\ member. Itule 22 refers to withdrawals. It does not refer to members who are dead. It contains a proviso “ that the widows and children of deceased members hall

s always have the recedence ” I had at fl t th h

_ ‘p . rs oug t that that proviso meziliatrwidpws an children of those members who had given notice of it

w awa , but on consideration I do not think that that is meant. I come to tho conclusion that, whenever there is a competition between persons who have given not-ice of withdrawal and the widows and children of deceased members, the widows and children shall always have precedence. It does not mean those whom the society is not bound to recognize under rule 25. It means those the society has to recognize so that if there is a competition between withdrawing members and widows and children whom the society are bound to reco iz d l

gu e un errue25, tgey are to have precedence. That a pears to me to make the best sense t t . . . .

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a company promoter, was engaged upon a projected scheme for the formation of a joint-stozk company to purchase and carry on the business of Messrs. Henry Green & Sons, china and glass dealers and gas engineers, and on tho 23rd of that month, in consideration of £1,000 then advanced and paid by the plaintiff to the defendant at his re nest, the defendant

(1 undertook and agreed with the plaintiff in tho terms contained in an uudertalrin in writ' f ll “

g mg as o ows: In consideration of your having advanced me one thousand pounds in connection with Henry Green & Sons, I hereby undertake to repay the same with one thousand pounds bonus, of which latter sum seven hundred and fifty pounds is to be in cash and two hundred and fifty pounds in cash or shares at my option; such payment of two thousand pounds to be made by me to you after allotment as and when I receive payment from the company,” signed, Martin Fradd. The plaintiff alleged that there was an iin lied term in

P this undertaking that the defendant would form the said company and that the company should go to allotment, and that the £2,000 should be .d .

pin within a reasonable time, and that such time had elapsed, and that e, the plaintiff, not having derived any benefit under the undertaking, the consideration on which he had advanced the £1,000 had wholly failed. The plaintiff also alleged that the defendant had committed a breach of the undertaking by not forming the company within a reasonable time. From the evidence at the trial it appeared that the defendant endeavoured to got the shares in the proposed company underwritten, but was unsuccessful in doing so and the company was never registered and therefore no allotment of shares was cvcr made. Wills, J ., held that the defendant was not liable. The plaintiff now appealed, and on his behalf it was contended that there was an obligation on the part of the defendant to register the company, otherwise the undertaking would not come before the public, and there could therefore be no allotment of shares. The risk the plaintiff ran was whether the public would or would not take up tho shares. The plaintiff further had an equitable claim for money had and received to the use of himself.

Tnii Covar (A. L. Snirn, Ciiii-rr, and COLLINS, L.JJ.) dismissed the appeal.

A. L. Siurn, L.J., after stating the facts of the case, said: It is clear there was here a bargain by the defendant to pay after allotment. The letter must be construed to mean that the defendant would pay the £1,000 after allotment if and when he received payment from the company, and the learned judge below was right in so holding. It has been argued that there was a contract by the defendant to register the company. I cannot find any such contract If however the plaintiff could k t

. ma e on that there is such a contract, it dbes not follow that the plaintifi could recover the £1 000 because 't d

, , i oes not follow that the company, even if registered, would ever have gone to allotment. The obligation the defendant undertook was to do his best to convert this business into a living company. He undertook nothing more. The contract implies that the defendant would take all reasonable steps he could. The evidence is that he did so by going about amongst persons and endeavouring to induce them to underwrite this company. I am of opinion that he did his best to give life to this company and that he has committed no breach of contract. This appeal must therefore be dismissed.

Ciiirrr and Coi.i.iivs, L JJ., delivered judgments to the same effect. Appeal dl8ml&8€d.—-COUNSEL, Witt, Q,.C., and (Jamar ; Dickens, Q.C., and Boxall. SOLICITORS, Bennett Q Ga. ,' A. Pulerton.

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High Court—Cha.ncery Division.

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CHARITY—-RAGGBD SCHOOL——MOBTGAGE or Pnoi-iiurr os—S.uscriox or CIIARXTY Coimissio1vnas—l6 8.: 17 VICE. c. 137, ss. 17, 62.

This was a petition presented by the trustees of this charity under the provisions of Sir S. Romilly’s Act (52 Geo. 3, c. 101), asking for the sanction of the court to a proposed mortgage of part of the property vested in the trustees. The schools were established in 1806 under a trust deed, and they were conveyed to the trustees upon trust to permit them to be used as a ragged, industrial, and reformatory school under a committee of management, the trustees having power to sell the original buildings and apply the proceeds of such sale in erecting and building larger schools. The situation of the schools having become unsuitable, and the buildings too small for the purposes of the trust, the trustees proposed to sell the existing schools, and to apply the proceeds of sale, together with other moneys in band and a further sum to be raised upon mortgage of the new premises, in buying a new site and building larger schools. By the Charitable Trusts Act, 1853, s. 17, it is provided that notice of legal proceedings as to any charity by any person except the Attorney-General should be given to the Board of the Charity Commissioners, and that the courts should not entertain proceedings as to charities except upon the eertificate of the Board. By section 62 of the same Act it is enacted that “ this Act shall not extend to the Universities of Oxford ‘ '

_ _ _ _ . . . _or any institution, esiabhisliment, or society for religious or other charitable purposes

. . . w ol y maintained by voluntary contributions. . . . Provided always that the said exemption shall not extend to any cathedral, collegiate, chapter, or other schools." The Charity Commissioners claimed that, under section 17 of the Charitable Trusts Act, 1853, their sanction was required to the presentation of the petition. The trustees of the charity, on the other hand, contended that the effect of the proviso to section 62 was that only schools of a like nature with the schools therein specified fell within that section.

STIRLING, J ., referred to Re Clergy Orphan Oorporation (1894, 3 Ch. 145

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