Page images









Sale days for the Year 1898,


Auctioneerg, Strteyors, and Valuers,
Full-length Figure in Judicial Robes, after painting by

Land, House, and Estate Agents,

that the following days have been fixed for their SALES J. Doyle Penrose. Axtist's proofs (number limited to 150),


at the AUCTION MART, Tokenhouse-yord, during the £3 38.; prints, £I 18. Subscription forms and prospectus,


year 1899:with reduced facsimile of portrait, post-free of


Thursday, April 28. Thursday, July 25. THE KELLY LAW-BOOK COMPANY, LIMITED,

(Opposite the Elephant and Castlej.

Thursday, May 12.

Thursday, August 4: Tuesday, May 17.

Thursday, August 11. Dealers in Law Books and Legal Portraits,

Wednesday, May 18. Thursday, September 29. Tokenhouse-yard, City, nearly every Thursday, Thursday, May 28.

Thur3lay, October 13. and on other days as occasion may require.

Thursday, June 2.

Thursday, October 27. Thursday, June 9.

Thursday, November 10. STIMSON & SONS undertake SALES and LETTINGS

Thursday, June 23.

Thursday, November 24, by PRIVATE TREATY, Valuations, Surveys, Negotiation Thursday, June 30.

Thursday, December 1, of Mortgages, in Chancery, References and Thursday, July 14.

Thursday, December 15.
Arbitrations, the Adjustment of Compensation and other

Thursday, July 21.
Claims, Sales by Auction of Furnitureand Stock, Collection
of Rents, &c.

No. 29, Fleet-street, Temple-bar, and 18, Old Broad.

streot, E.O. Every requisite under the above Acts supplied on the Separate Lists of Property, Ground Rents for Sale, and shortest notice.

Honges, Premises, &c., to be Let, are issued on the 1st of By Order of the Trustees of the Will of Joseph Thomas each month; and can be had gratis on application, or

Palmer, Esq., deceased.
The BOOKS and FORM8 kept in stock for immediate
free by post for two stamps. No charge for insertion.

Telegraphic address, “Servabe, London."

About a mile from Theydon Bois, 11 mile from ChigwellMEMORANDA and ARTICLES OF A88OCIATION

lane, and about 2 miles from Loughton Stations on speedily printed in the proper form for registration and JOHN GERMAN, SON, & BEVEN,

the Great Eastern Railway, and only 14 miles from distribution. SHARE CERTIFICATES, DÉBENTURES,

London.-In a delightfully rur'ıl and undulating district, CHEQUES, &c., engraved and printed. OFFICLAL LAND AGENTS, SURVEYORS & AUCTIONEERS commanding picturesque viers over the Forest, a BEALS designed and executed. No Charge for Sketche

valuable Freehold Residential Property, known as the 69 and 60, CHANCERY LANE, W.C.

Debden Hall Estate; it comprises Deblea Ilall, a subSolicitors' Account Books.

Country Ofices :

stantial residence. approached by a carriaza drive AJHBY-DE-LA-ZOUCH, LEICESTERSHIRE.

through a park, with lodge at entrance, and containing CHARTLEY, STAFFORDSHIRE,

19 bed and dressing rooms, capital entrance hall with

fireplace, 5 reception-rooms, consei vatory, and very WILLESLEY, DERBYSHIRE.

good domestic offices, spacious pleasure ground-, kitchen

Kingston, Norts. Stationes, Printers, Engravers, Registration Agents,

garden, stabling for 7 horses, 2 large coach-hjuses and Telegraphic Address, Cogitate, London."

other buildings, 4. cottages, and first-rate farmary, and 49, FLEET-STREET, LONDON, E.O. (corner

well-timbered park-like meadow, arable, and wood land, of Serjeants'-inn). SURVEYS for SANITATION, MORTGAGE, and

extending to about 140 acres, possessiog very extensive

frontages to main roads. Annual and other Returns Stamped and Piled.

DILAPIDATIONS. VALUATIONS for PROBATE, Debden-green House.-A well-Luilt Freehold Residence,
TRANSFER, and other purposes.

facing the Green, containing eight bed and dressing-

rooms, bath-room, five reception-rooms, and domestic

offices, with stalling for three horses, and pleasure and Terms on application.

kitchen gardens. DALRYMPLE HOME,

ROBT. W. MANN & SON, F.S.l.,

A Pair of substantial brick-built Villas, a pair of timber

and tiled Cotte ges, and a small Paddock, situate in EngRICKMANSWORTH, HERTS.

12, LOWER GROSVENOR-PLACE, land's-lane.

(nr Victoria Station), For Gentlemen, under the Act and privately.


S.W. For Terms, &c., apply to

have received instructions to OFFER the Abore for And at Lowndes-street. Telephone, “Westminster 40. SALE by AUCTION, at the MART, Tokenhouse-yard, R. WELSH BRANTHWAITE,

Lopdon, E.C., on WEDNESDAY, MAY 4, 1898, at TWO
Medical Superintendent.
ESSRS. H. GROGAN & CO., 101, Park- o'clock, in Two Lots.

Particulars, with plans and conditions of sale, may TREATMENT OF INEBRIETY and ABCSE of DRUGS. street, Grosvenor-square, beg to call the attention of shortly be obtained of Messrs. Alfred Cox & Son, Solicitors, intending Purchasers to the many attractive West-End | 10, St. Swithin’s-lane. E.C.; at the place of sale ; and at

the Auctioneers' Offices, 3), New Broal-street, Lonlon, HIGH SHOT OT HOUSE, tion. Surveys and Valuations attended to.

Houses which they have for Sale. Particulars on applica- | E.C.


With possession.-An exceptionally attractive Detached For Gentlemen under the Acts and privately. Terms,

G. F. BOX & CO.,

Residence, occupying a delightful position on the best 23 to 4 Guineas.

AUCTIONEERS, VALUERS, ESTATE AGENTS, RENT part of the main Streatham-road; it his had a particuApply to Medical Superintendent,


larly larg: sum of money expended upon it, and is in F. BROMHEAD, B.A., M.B. (Camb.), M.R.C.S. (Eng.) Auction Room for Sale of Furniture and every descrip

perfect substantial and decorative repair.
tion of Property. [Established 1883.)

Offices: 227, Lower CLAPTON-ROAD, N.E., and at 66, Grer-

SELL by AUCTION, at the MART, Tokeabousf-


o'clock, the commanding Detached LEASEHOLD RESWEST KENSINGTON.

DENCE, known as Derwent Mount, Streatham main rou, PRIVATE HOME FOR LADIES.

only 2 minutes' walk from Strentham-hill Station, containMedical Attendant : CHAS. J. BOND, F.R.C.S. Eng.,


iog 3 bedrooms of spacious dim-nsions, dressing-rom, 2 L.R.C.P. Lond. Principal: H. M. RILEY, Assoc. Soc.

bath-rooms, 3 handsome reception-rooms, conservatory,

AUCTIONEER, ESTATE AGENT, VALUER, Study of Inebriety. Thirty years' Experience

and domestic offices, fitted up in a most expensive minder: Excellent

RECEIVER BY APPOINTMENT. Legal and Medical References. For terms and particulars

there is siabling for 3 horses, large cuachhouse, man's apply Miss RILEY, or the Principal.

The Cedars Estate Office, (opposite) West KENSINGTON living rooms, &c., attractive garden', with greenhouses,
Station, w.

&c., comprising in all about 1 acre; it is held for a long Rents Collected, Eslal.8 Minaje, l'aluatins, Su vrys.

term at a moderate ground-rent.

Particulars of Messrs. Wellborne & Son, Solicitora, 17, Mr. J. W. Sibley has a large Estato Agency, and gives Duke-street, London Bridge, S.E.; and of the Auctioneers special attention to this branch of the Business.

6, Ironmonger-lane, Cheapside, É.C., 308, Brixton-hill, References to Principals and Bankers.

8.W., and at Brighton.

Large Sums awaiting Investment, also on Freehold and

Leasehold Properties, Large Estates or Farms. Good
Freehold Ground-rents Wanted. Principals placed in THE CONDUIT ST. AUCTION GALLERIES,
direct communication with clients.



(Telephone No. 4); and HARPENDEN. Prepared from finest ENGLISH MEATS

Of all Chemists and Grocers.

and District.- Owners wishing to sell or Let Property in BRAND & CO., LTD., MAYFAIR, W., & MAYFAIR

tbese districts should send to C. RAWLEY Cross & Co., who WORKA, VAUXHALL. LONDON, S.W.

ave more applications than they can suit; particulars ingerted in their Western Suburbs Register free. Rent collections undertaken (large or small), and Property of all kinds managed on inclusive terms; punctual payments guaran

teed ; references to clients of 20 years' standing. - Offices, 0000A-NIB EXTRACT.

"Ilchester House," (facing) Uxbridge-road Station, W. The choicest roasted pibs (broken-up beans) of the

(Established 1877). Telephone No. 669, Kensington. natural Cocoa on being subjected to a powerful hydraulic M. W. EDGLEY, 40 & 41, Fleet-st. pressure, give forth their excess of oil, leaving for use a finely-flavoured powder-"Cocoaine," a product which, AMERICAN ROLL TOP DESKS.

Open Gauy for reception of when prepared with boiling water, has the consistence of tea, of which it is now, with many, beneficially taking

M. W. Edgley, 40 & 41, Fleet-st. the place. Its active principle being a gentle nerve AMERICAN ROLL TOP DESKS.

anl all Classes of Va'uable Property intended for stimulant, supplies the needed energy without unduly

Sale by Auction. exciting the system. Sold only in labelled Tins. If unable

M. W. Edgley, 40 & 41, Fleet-st, to obtain it of your tradesman, a tin will be sent post-free



M. W. Edgley, 40 & 41, Fleet-st. 9, CONDUIT STREET & 231, MADDOX STREET, W.









[blocks in formation]





[ocr errors]

HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE : 56, Moorgate-street, E.C.

Cases Reported this Week.

In the Solicitors' Journal. In the Weskly Reporter.

Anderson v. Manchester, Sheffield, and An Act'oa of Duomore v. Wharam, in
Lincolnshire Railway Co. Man

The Court of Chancery of the Cunty To see that the Insurance Covenants include a policy covering the risk of

chester, Sheffield, and Lincolnshire

Palatine of Lancaster, Io the Matter

Railway Co. v. Anderson
396 of

353 Suitable clauses, settled by Counsel, can be obtained on application to

A Solicitor, Re. Ex parte The Incor Furness v. Beresford. York Election THE LICENSES INSURANCE CORPORATION AND Calcott and Elvin's Contract, Re.

porated Law Society.
397 Petition

352 Mander v. Ridgway.


Coppen Bros. v. Moore
397 Perry Almshouses, In re...


Municipal Election for the Central Reg. v. Sharman and Others (Justices).
Division of Hackney, Re. Ex parte

Ex parta Denton
Mortgages Guaranteed on Licensed Properties promptly, without

Wood and Stuart
396 Rowe. In re. Pike v. Hamlyn.

.......... 337 Piercy, Re. Whitwham v. Piercy


St. Matthew, Bethnal Green, Vestry v. special valuation and at low rates.

Reg. V. Bird and Other Justices. Ex

London School Board

353 parte Jones

397 South Hetton Cual Co. (Limited) v. ALLIANCE ASSURANCE COMPANY. Spencer v. Lancashire and Yorkshire Haswell, Shotton, and Easington


Railway Co.....
Established 1824. Capital, £5,000,000 Sterling.

Coal and Coke Co. (Limited).. 355

West Randt Proprietary (Lim), Re 395 West v. Williams

........... 362

Life Policies free from Restrictions, with Perfect Security and Liberal Bonuses.

Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES.

His HONOUR Judge Edge has been transferred from the Full Prospectuses on application.

ROBERT LEWIS, Chief Secretary. Devonshire County Courts (Circuit No. 58) to the Metropolitan LEGAL AND GENERAL LIFE ASSURANCE County Court (Circuit No. 41), and Mr. ROBERT WOODFALL has

been appointed to the county courts vacated by Judge EDGE, SOCIETY

Mr. WOODFALL was called to the Bar in 1883,



THE INCONVENIENCE and delay to ordinary litigants caused by

the protracted nature of the trial of patent actions has for a FUNDS

[ 3,000,000 long time been a subject of complaint, and it is to be hoped INCOME

£ 390,000

that some good result will follow from the remarks made by the

Lord Cbancellor in the course of his judgment in Gormully v. YEARLY BUSINESS

£1,000,000 Nürth British Rubber Co. In his view, apparently, the proper BUSINESS IN FORCE

£ 11,700,000 way to deal with such cases, if the trial cannot be brought

within reasonable limits, is for the court to order them to be THE PERFECTED SYSTEM of Life Assurance is peculiar to this Society tried before a referee. By section 14 of the Arbitration Act, and embraces every modern advantage.

1889, provision is made for such reference in cases involving

any scientific investigation "wbich cannot in the opinion PERFECTED MAXIMUM POLICIES

of the court or a judge conveniently be made before a WITHOUT PROFITS.

jury or conducted by the court through its other ordinary

officers,” and it is clear that a patent action may involve The Rates for these Whole Life Policies are very moderate.

ecientific investigation within the meaniog of this provision

(Saxby v. Gloucester Wagon Co., W. N., 1880, p. 28). A Age 1 Premium Age Premium Age Premium

reference, however, is at best an unsatisfactory expedient, 20 £1 78% 30 £1 16 % | 40

40 £2 10 %

and especially in a class of actions which frequently involve

interests of great pecuniary magnitude. The proper solution £1,000 POLICY WITH BONUSES

of the difficulty has been frequently suggested. What is

required is a special court for the trial of patent actions, According to last results.

and the assigamont of a judge specially for the work of the Valuation at 21 pc. :-Hm. Table of Mortality.

court. This would mean the appointment of an additional

judge; but now that the Lord Chancellor has had his attention Duration

called to the exigency of the matter, it ought to be possible to

secure such an appointment. There is abundant reason for Amount of Policy £1,199 £1,438 £1,724 £2,067

withdrawing patent cases from the ordinary lists, so that they Next Bonus as at 31st December, 1901.

shall not for days together interrupt business; but this withdrawal must be simultaneous with the provision of a suitable

tribunal to which they can be transferred. The Lord ChanOFFICES: 10, FLEET STREET, LONDON. cellor admits that it is most satisfactory that patent cases

10 yrs.

20 yrs.

30 yrs.

40 yrs.

should be determined in an ordinary court, and the institution interested him in connection with his favourite branch of law, of a special tribunal would remove all ground of complaint, the benefit of his learning and singularly acute intellect. and also facilitate the disposal of the general business of the courts.

It has been held by KEKEWICH, J., in Re Brooke and Tremlin's BUT WHILE patent actions frequently consume an excessive Contract that a married woman who is a mortgages under a amount of time, they have a justification for their length which mortgage made in 1895, and who owns the mortgage money as is lacking in some other cases. The issues before the court her separate property, can convey the mortgaged property depend upon scientific points, which require careful and pro- without the concurrence of her husband and without the neceslonged examination, and unless the judge is himself a scientific sity of acknowledging the deed. But for the decision of North, expert he has to go through a course of education before he is J., in Re Harkness and Allsopp’s Contract (44 W. R. 683; 1896, in a position to decide upon the facts and to apply to them the 2 Ch. 358) the point would have been too clear for argument. appropriate law. It is different where the trial is spun out Under the Married Women's Property Act, 1882, a married because it presents matter of great popular interest. The recent woman is enabled to dispose of property acquired after the Act death of the “Tichborne claimant” recalls perhaps the most as if she were a feme sole, and there is no reason for excluding flagrant instance of this misuse of the procedure of a court of this power in the case of land which she has acquired under a justice. It is difficult now to realize how those who had the mortgage. In Re Harkness and Allsopp's Contract, however, it conduct either of the civil or the criminal proceedings could was held that a married woman who was a trustee of real have consented to extend them to such an inordinate length, property could not convoy, except with the concurrence of her or how the presiding judges could have allowed it. A husband and by deed acknowledged. The ground of the speech of twenty-six days, such as the late Lord Chief decision was that section 18 of the Act expressly enables a Justice delivered for the defence in the civil action, is

married woman who is trustee of certain classes of personal doubtless a great performance, ard, in consequence of the extra- property to transfer as a feme sole, and it would seem, ordinary conflict of testimony' as to ARTHUR Orton's identity, therefore, that the game facility is not extended to the there was an immense mass of material with which to deal. case where the married woman is a trustee of real estate. But in such a case the very length of the proceedings defeats The conclusion is helped by the consideration that the initial their object. Whether the persons charged to decide the matter clauses of the Act, conferring on married women a general are judges or jurymen, their capacity to receive facts and power of disposition, appear to contemplate only property in arguments is limited, and for practical purposes the short which she is beneficially interested. The result is highly inconspeech, with its neat marshalling of facts and its concise yenient. Probably it is due to oversight on the part of the presentment of arguments, is the most effective. In ordinary draftsman of the Act, and clearly it should not be extended. cases this is the quality which counsel attempt to import into The only ground for applying it to the case of a mortgage would their speeches, and otherwise business would become impossible. be that the mortgagee is a trustee for the mortgagor, but this is In extraordinary cases, doubtless, some latitude must be allowed. not so.

While the mortgage is subsisting, the mortgagee is Judges, counsel, and witnesses are human, and with the public, interested in the land on his own account; the mortgagor only represented by the newspaper reporter, eagerly looking on, has the equity of redemption. Hence a married woman who is there is no great disposition to hurry over the matter. But a mortgage can convey as a feme sole, notwithstanding, Ro popular interest does not excuse the reckless waste of the time Harkness and Allsopp's Contract. And after the mortgage has of courts of law, and the Tichborne case will, it is to be been paid off she is, as KEKEWICH, J., pointed out, a bare hoped, remain as a "record" offender in this respect.

trustee, and can convey as a feme sole under section 16 of the Trustee Act, 1893.

WHEN WE referred last week to some observations made by THE CLAUSE frequently inserted in partnership articles giving Mr. H. W. CHALLis in the preface to the new edition of Hood to the partners power to expel one of the firm in case of breach and Challis on the Conveyancing and Settled Land Acts, we of duty or incapacity requires to be exercised in good faith or it little thought that the author of the observations was lying at may become an instrument of grave oppression. In the recent the point of death. His health was always somewhat delicate, case of Barnes v. Youngs (46 W. R. 332) ROMER, J., has placed and on the 1st inst. he succumbed to an attack of influenza. By a qualification upon its exercise which will prevent any such his death we have lost one of the comparatively few profoundly result. The articles there contained a very comprehensive clause learned real property lawyers of this generation. His attain giving the partners power to expel one of their number under a ments were the admiration of his friends long before, by the variety of circumstances. The expulsion was to take effect upon publication of his treatise on the Law of Real Property, notice in writing being served upon the expelled partner, but they became generally known to the profession. The labour he provision was made for a reference to arbitration if any quesbestowed upon

that work was enormous. He believed in Lord tion arose whether a case had happened to authorize the exerCOKE's remark that “There is no knowledge, case, or point of cise of the power. In consequence of information which the law, seom it of never so little account, but will stand our student defendants had received as to certain conduct of the plaintiff, in stead at one time or other; and therefore, in reading, nothing they, without warning and without giving an opportunity of is to be pretermitted” (Co. Litt. 9a), and he acted upon it to the explanation, served notice of expulsion upon him. The action fullest extent in the preparation of the book. He met with bis was thereupon commenced by the expelled partner to prevent reward; the treatise established his reputation, and he acquired the expulsion and the consequent dissolution of partnership from a good practice; but, as he himself wrote in our columns of taking effect, and the defendants, the other partners, moved his friend the late Mr. W. B. TREVELYAN, “he never to stay the proceedings and to refer the matter to arbitration. pushed himself into the prominence of a great practice,' In the opinion of ROMER, J., however, the defendants had not such as has been attained by many inferior men; and placed themselves in a position to require arbitration under the he probably did not desire it. Eminently scholarly, fas- articles. A notice of expulsion involves a decision by the tidious, and high-minded, he scorned any attempt to partners upon the conduct of the expelled partner, which is in attain distinction or popularity. Yet there was no greater the nature of a judicial decision ; and the decision should not favourite among his brethren at the equity bar. His genuine bo arrived at, and the notice served, until the partners have kindliness, old-world courtliness of manner, and readiness to proceeded in a judicial manner, and have given the impeached opon his treasures of learning to anyone who had a knotty point partner a chance of offering an explanation. “I think," said to consider in the course of practice, endeared him to them; and the learned judge, “that partners are not entitled to spring & there have been few men at the bar whose loss has been more notice of dissolution on their co-partrer without the slightest deeply regretted. For many years he was a frequent con- preliminary notice being given to him, and without calling his tributor to this journal, and up to almost the close of his life he attention in the slightest degree to any alleged cause of com: was always ready to give our readers, upon any matter which plaint, and without giving him the slightest opportunity of



meeting the case which is alleged against him.” In the present statutory definition of "necessaries” contained in section 2 of case no such opportunity had been given, and consequently the the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71). Moreover, it right to serve a notice of dissolution had not arisen. The upholds the rule which ought always to be strictly adhered to notice which was served was consequently bad, and ROMER, J., in the interest of the public-namely, that the power of appealdeclined to stay the plaintiff's action.

ing from the county court is, as it always has been, limited to those cases in which one of the parties is dissatisfied with "the

determination or direction of the judge in point of law or UNTIL PARLIAMENT interferes, it does not seem at all likely equity, or upon the admission or rejection of any evidence" that there will be any end to the cases which keep coming (51 & 52 Vict. c. 43, s. 120), and that, therefore, where there is before the High Court on the Betting Houses Act, 1853, no jury, the judge's findings of fact (if upon some evidence) are involving the question whether some place or other is, or is final, and cannot be questioned (Cousins v. Lombard Deposit Bank, not, a "place" within the meaning of that Act. Another of 1 Ex. D. 404; Smith v. Baker, 1891, A. C. 325), though an such cases was before the Court for Crown Cases Reserved last appeal will lie where it is clear that in coming to a conclusion on Saturday in Reg. v. Humphrey, and it was obvious from the the facts he must have taken an erroneous view of the law: tone of their judgments that the judges of the Queen's Bench Cawley v. Furney (12 C. B. 291), Cuthbertson v. Parsons (12 Division do not consider their court bound by the decision of the C. B. 304). Court of Appeal in Powell v. The Kempton Park Racecourse Co. (46 W. R. 8; 1897, 2 Q. B. 242), though of course they express the utmost respect for that decision. Hawkins, J., especially goods, or receives some other valuable consideration, upon an

WHERE A person whose goods have been stolen takes back the was careful to state that no word of his must be taken as agreement not to prosecute the thief, he is gulty of the misapproving of that case. The recent case was very different demeanour which was anciently known as theftbote, but which is from the Kempton Park case. enclosures on racecourses. The defendant was convicted under now called compounding a felony. An indictment for the misenclosures on racecourses. The defendant was convicted under demeanour is very seldom indeed met with in the criminal the Act of illegally using a certain archway in the city of courts, although no doubt it is an everyday offence. Such an Leeds, which he frequented at the same hour of the day, for agreement, however, is clearly illegal, and therefore cannot be the purpose of betting with any person who should come to enforced in an action at law. An example of this came before the archway for that purpose. The court, therefore, in upholding GRANTHAM, J., a few days ago in the Queen's Bench Division. the conviction, were able to do so without dissenting from the In this case it appeared that the plaintiff had had a clerk whom Kempton Park case. It will be interesting to see how the he suspected of embezzlement, and who confessed his guilt. The judges will treat a case which raises the same point. It is quite plaintiff threatened to prosecute the clerk, but some friends of clear that no court can overrule a judgment of the Court for the latter, amongst whom was the defendant, contributed and Crown Cases Reserved, and this court gave a final decision handed to the plaintiff a part of the sum that had been misin Hawke v. Dunn (45 W. R. 359 ; 1897, 1 Q. B. 579). The Court of Appeal, however, refused to follow it in the Kempton exchange for the balance.

appropriated, and the defendant gave the plaintiff a bill of

No criminal proceedings were Park case, and now these two courts appear to be at issue, and taken. The action was brought on the bill of exchange, and each seems likely to hold to its own expressed opinion. Under such circumstances it has become almost imperative that Parlia- illegal consideration-namely, to compound a felony. The

was defended on the ground that the bill was given for an ment should take up the question, and, if possible, lay it at rest judge found as a fact that the bill had been accepted by the once for all. The task would be no easy one, and any proposed defendant because the plaintiff had threatened to prosecute his legislation would probably meet with much opposition. One very unsatisfactory feature in the decision of the Court of in accordance with the defence set up, although no doubt tho

clerk, and

This was clearly

gave judgment for the defendant. Appeal is that the action was really a collusive one. The Act agreement not to prosecute was merely implied. After this of 1853 commences with a preamble, “Whereas a kind of finding of fact there was no room for doubt as to the law on the gaming has of lato sprung up.' It was admitted that the kind of gaming in question had been carried on since the beginning ficiently uncommon a nature to deserve some passing notice,

subject. The circumstances of the case, however, are of sufof this century. That admission had evidently, an important and the case supplies a good example of an important legal bearing on the judgment of the court, but it clearly weakens principle. the authority of that judgment, and WILLS, J., expressed an opinion that it is little short of a scandal that the leading authority on the subject should have been obtained under such A CASE affecting county court bailiffs and the fees chargeable circumstances. Anyhow, "muddle” is the only word which by them on levying a distress for rent has recently been adequately expresses the state of the law as to betting. The determined-Damely, Duncombe v. Hicks. There, by arrangeauthorities are irreconcileable, and the position is quite unseemly: ment with the tenant, the man put in possession by the The sooner legislation puts an end to the existing state of bailiff agreed to substitute, for "full possession,” what is called things the better will it be for the dignity of the law.

walking possession "—that is to say, instead of remainiog in possession, he agreed with the tenant to leave on receiving the key

of the premises, together with a written authority from the tenant IN THE recent case of Clyde Cycle Co. v. Hargreaves the oft- to re-enter as and when he (the bailiff's man) so pleased. Full raised question, what are necessarios suitable for an infant ? possession fees having, under these circumstances, been charged, was again under consideration. It was held in that case, by a it was held by the county court judge that they were not payable, county court judgo, when sitting alone without a jury, that a and that, moreover, tho bailiff's certificate must be cancelled. racing bicycle purchased by the defendant for £12 108., which On appeal to the High Court, the Divisional Court (WRIGIIT had been used by him for racing purposes as well as for exercise and DARLING, JJ.) declined to interfere in any way with the on the road, was an article of utility suitable for his circum- discretion exercised by the county court judge, and likewise stances and station in life, which was that of an apprentice to a expressed a doubt as to whether they had power to amend so scientific instrument maker, at a salary of 21s. a week. In much of his decision as related to the cancellation of the affirming this judgment, thé Divisional Court (Lord RUSSELL, certificate. That the High Court does not posees; the power in C.J., and RIDLEY, J.) held that, since the county court judge question is, we submit, clear from the language of section 33 of was acting as both judge and jury, his decision could not be the County Courts Act, 1888, which enables the high bailiff to reviewed if, in their opinion, the case was a proper one to have appoint bailiffs to assist him, and at his pleasurə to dismiss all been left to a jury-that is to say, one in which there was or any of them, and appoint others in their place, and provides evidence to justify a jury in finding for the plaintiff on the that every bailiff'80 appointed may be suspended or dismissed by the question of whether the bicycle supplied to the defendant was judge.or was not “necessaries." This decision is fully in harmony with what was laid down in the leading case of Ryder v. Womb

Mr. Justice Channell has fixed Friday, the 6th of May, as the come well (L. R. 4 Ex. 32), and likewise derives support from the mission day for the Spring Assizes at Leeds.

is capable of the construction thus sought to be put upon it. The RESERVE CAPITAL.

"purposes of the winding up” include the payment of all The Cuurt of Appeal have held in Bartlett v. Mayfair Property creditors, whether secured or not, in their duo order, and the Co. (Limited), affirming the decision of Wright, J. (46 W. R. use of these words does not necessarily prohibit the application 199), that an effective mortgage cannot be made of capital of a of the reserve capital 10 the payment of creditors who have limited company which by a special resolution passed under acquired a specific charge upon it. It must be admitted, howsection 5 of the Companies Act, 1879, has been declared not to ever, that a strong argument against this view is afforded by be capable of being called up except in the event and for the tho juxtaposition of the clauses dealing with the registration of purpose of a winding up. Having regard to the current of unlimited companies as companies having limited liability. As decisions hitherto upon mortgages of uncalled capital, it was by long as the liability was unlimited the capital at the disposal of no means clear that this was the correct view, and the argument the directors comprised, as the Master of the Rolls in his judg. in the judgment of LINDLEY, M.R., is based upon the analogy ment in the present case pointed out, only the nominal amount of of the operation of the Act of 1879 in the case of unlimited the shares. "In a winding up the calls which the liquidator companies rather than upon considerations applicable to limited could make were unlimited, but previously to the winding companies.

up no call beyond the nominal amount of the shares Originally there was, as is well known, no little doubt as to could be made, nor could the proceeds of calls beyond the validity of any charge on uncalled capital. Such a charge, such nominal amount be in any way pledged. It is natural to it was said, involved an interference with the discretion which infer that when, by the Act of 1879, the Legislature made it the directors ought to exercise in making calls (see Stanley's possible for the company to substitute for this unlimited case, 12 W. R. 894, 4 De G. J. & S. 407). But in Re Phænie liability in winding up a limited liability represented by the Bessemer Steel Co. (32 L. T. 854) Jessel, M.R., held the objec- nominal capital specially reserved, the same qualities should tion to be untonable, and in subsequent cases the controversy attach to calls made upon this reserve capital as had previously has turned rather on the words of the power in the memorandum attached to calls made in a winding up in excess of the nominal or articles of association authorizing the mortgage of uncalled value of the shares —that is, the calls on the reserve capital capital, than on the possibility of such power being conferred. were moant to be excluded altogether from the control of the In Re Pyle Works (Limited) (38 W. R. 674, 44 Ch. D. 534) it directors, and never to be available for any purpose whatever was held by the Court of Appeal that a mortgage of uocalled until a winding up had occurred. capital, when properly authorized by the constitution of the

But if this is the true effect of the section as to unlimited company, was effectual to charge calls made by the liquidator companies it may reasonably have the same effect when it uses in a winding up equally with calls made by tho directors; and precisely similar language with regard to limited companies. the validity of such mortgages was further affirmed by the Thus here again the reserve capital is removed from the control Privy Council in Newton v. Anglo-Australian Investment Co. (43 of the directors and is kept intact for the liquidator to W. R. 401; 1895, A. C. 244).

apply in the course of the winding up. "The prohibition," The section upon which the question in Bartlett v. Mayfair said LINDLEY, M.R., “against calling up the reserve capital in Property Co. has arisen provides, in the first instance, for the the case of limited companies is inserted for precisely the same case of unlimited companies which are being registered as purpose as in the case of unlimited companies--viz., to preserve limited under section 179 of the Act of 1862. Such a company

such capital for the general purposes of the company when may, upon the registration, increase the nominal amount of its wound up. To interpret the section so as to enable a company capital by increasing the nominal amount of its shares, but ia to defeat this object by pledging or otherwise disposing of its this case no part of the increased capital is to be capable of reserve capital is, in my opinion, entirely to miss the real being called up except in the event of, and for the purposes meaning of the Legislature as expressed in the language it has of, the company being wound up. The Act, it

The Act, it may be noticed, used. Neither the Act of 1879 nor the other Companies Acts was passed in consequence of the hardships incident to give a company power to dispose of assets which cannot come unlimited liability which were revealed by the failure of the into existence until it is wound up. To hand over the reservo Glasgow Bank in 1878, and the device of reserving a part of the capital or any part of it when called up to a prior assignee, or capital for use only upon a winding up was adopted as a means to a mortgages who has no claim against the assets until he has of reconciling limited liability with the credit which a company

realized or given up his security, is not to apply the reserve had possessed when unlimited. An unlimited company might capital for the purposes of the company being wound up within also upon registration with limited liability, instead of the true meaning of that expression as used in section 5, but increasing its nominal capital, reserve in the same manner a

to prevent such application." portion of its existing uncalled nominal capital.

Apart from technical considerations, the construction thus After making the above provision for the case of unlimited adopted gives greater utility to the provision in question. As companies, section 5 proceeds : “A limited company may by a

already pointed out, one object of creating a reserve capital is to special resolution declare that any portion of its capital which increase the goneral credit of the company, and directly the has not been already called up shall not be capable of being reserve capital is pledged—if this were possible--the additional called up, except in the event of and for the purpose of the source of credit would be gone. So far as the liability of the company being wound up; and thereupon such portion of shareholders is concerned the result is the same, for in no case capital shall not be capable of being called up, except in the could the capital be called up till a winding up, and when this event of and for the purposes of the company being wound up." occurred they would not be affected by the order in which the It was upon this provision that the Mayfair Property Co. acted. secured and unsecured creditors were paid. But otherwise the The company was registered in August, 1892, with a nominal resolution creating the reserve capital would become inoperative, capital of £50,000 in 5,000 shares of £10 each. The sum of

upon a mortgage being created it would cease to be avail. £4 5$, por share was called up, and by a special resolution able for tho general creditors. Under the present decision such passed under section 5 of the Act of 1879 in September, 1892, a result will not be possible. it was declared that £5 per share should not be capable of being called up except in the event of and for the purposes of the company being wound up. Both the memorandum and the articles of association authorized the creation of a charge on the

CORRESPONDENCE. uncallel capital, and in 1894 the company issued first mortgage debentures charged on all its property, both present and future,

[To the Editor of the Solicitors' Journal.] including the uncalled capital for the time being. A winding-up order was made in August, 1896, and the debenture-holders which has appeared in a daily paper for several days in succession,

Sir,--I venture to bring to your notice the enclosed advertisement c'aimed that their security extended to the capital which 2, Hare Court, Temple, April 4.

HENRY C, A. BINGLEY. thereupon became capable of being called up. Taking the provision quoted above apart from the preceding A gentleman, recently called, with some capital, can be introduced

[The following is the advertisement referred to: "To Barristers.-clauses relating to unlimited companies, it would seem that it to good practice by an established solicitor. --Address,




« PreviousContinue »