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CASES OF THE WEEK.

Court of Appeal.

Re PIERCY, WHITWHAM v. PIERCY. No. 2. 10th and 11th March. ADMINISTRATION OF ESTATE-CHARITABLE GIFT-IMPURE PERSONALTYPOWER OF SELECTION GIVEN TO TRUSTEES-SELECTION OF CHARITIES AUTHORIZED TO TAKE IMPURE PERSONALTY.

Appeal of the defendants from a decision of North, J. By his will, dated the 5th of December, 1883, Benjamin Piercy, the testator, directed his trustees to apply one-tenth of his estate over and above £110,000" to such charitable institutions and objects as my trustees may determine." The testator died on the 24th of March, 1888. In an action commenced by the trustees of his will the usual administration decree was made on the 21st of January, 1889. On the 14th of December, 1896, the plaintiffs took out a summons in the action to have it determined what was the Attorney-General's interest under the above bequest in (1) the corpus of the testator's estate, and (2) the income accrued thereon and thereafter to accrue. On the 27th of November, 1896, the Attorney-General took out a summons asking that no further payment be made under the order on further consideration of the 15th of January, 1896, out of the income of the estate of certain quarterly sums therein mentioned, except upon certain stated conditions. The two summonses came on together for hearing before North, J., who, following Lewis v. Allenby (18 W. R. 1127, L. R. 10 Eq. 668), held that the charitable bequest applied not only to pure personalty but also to impure personalty and proceeds of realty; that the power of selection or determination could not be properly exercised except in favour of such charitable institutions as were at the testator's death empowered by law to hold real estate or impure personalty, notwithstanding the statute 9 Geo. 2, c. 36 (the Mortmain Act). The defendants appealed.

THE COURT (LINDLEY, M R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal.

this case.

LINDLEY, M.R.-The real question in this case is whether this court is prepared to overrule Stuart, V.C., in Lewis v. Allenby (ubi supra). I will read the passage. [His lordship read from the judgment of Stuart, V.C., and continued:] I will state our view of the true principle which governs I cannot read this as a bequest to any charitable institution at all so far as the testator is concerned; the trustees may appoint to any charity; and until that power is exercised no appointment can be made. If they appoint to some charitable institution which is not capable of taking, and that appointment is read into the will, that cannot hold good. If the case came before us now for the first time I should have thought on principle that the Mortmain Act did not hit it. If we look at the authorities, I think Lewis v. Allenby (ubi supra) is right. I cannot follow the Vice-Chancellor's reasoning, but I find the case referred to in text-books, and I don't know that it has ever seriously been contested; it has certainly presented difficulties, and has been followed by Pearson, J., in Re Ovey, Broadbent v. Barrow (33 W. R. 821, 31 Ch. D. 113), and by North, J., in Re Seton Smith (in note to Re Piercy, Whitwham v. Piercy (23 L. T. Rep. 732)). The true principle is that on which Lord Hardwicke proceeded in Grimmett v. Grimmett (Amb. 210), and I think there is nothing amiss in this gift to the trustees. It is said that this decision is inconsistent with Baker v. Sutton (1 Keen 224) and Johnston v. Swann (3 Madd. 457), which were not cited before the Vice-Chancellor, and those decisions are opposed to the view taken by him. It is quite possible that in those cases the trustees may not have claimed the right of selection, and if so they are not opposed; if they did, then they are opposed to the decision of the ViceChancellor, and I say he is right. This is an ordinary power of appointment which may be properly or improperly exercised. The appeal must be dismissed.

RIGBY, L J.-I am of the same opinion. I much prefer to treat this case as one of principle quite apart from authority. The principle of law applicable to the case is clearly laid down in Lewis v. Allenby (ubi supra). For my purpose I need only refer to one case, a decision of the Court of Appeal: University of London v. Yarrow (5 W. R. 543, 1 De G. & J. 72) which sufficiently sums up the previous authorities. [His lordship discussed that case at length, and continued:] If the testator has pointed to two objects, one of which is lawful and the other unlawful, and has given the trustees power to select the lawful one, it is impossible to say that the bequest is void. In the present case there is a power in the trustees to select objects perfectly within the Act. There is no doubt about the testator's intention that all this fund should go to charities. It would be impossible to hold, if there had never been such a case as Lewis v. Allenby (ubi supra), that the gift was not good. No gift of mixed personalty to an unexempt charity would operate as a good gift, and the trustees would know plainly that they would be doing that which would frustrate the testator's intention if they applied any part of this fund to unexempted charities. Baker v. Sutton and Johnston v. Swann (ubi supra) I take to have been overruled if and so far as they are inconsistent with Lewis v. Allenby (ubi supra).

VAUGHAN WILLIAMS, L.J., gave judgment to the same effect. Appeal dismissed.—COUNSEL, Swinfen Eady, Q.C., and Badcock; Sir Richard Webster, A.G., and Ingle Joyce; Cozens-Hardy, Q.C., and Frederick Thompson. SOLICITORS, Crowders & Vizard; Solicitor to the Treasury; Field, Roscoe, & Co., for Evan Morris & Co., Wrexham.

[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

High Court-Chancery Division.

Re WEST RANDT PROPRIETARY (LIM.). North, J. 1st April, COMPANY-CONTRACT- CONSIDERATION INSUFFICIENTLY STATED SHARES FULLY PAID UP-RECTIFICATION OF REGISTER-COMPANIES ACT, 1867 (30 & 31 VICT. c. 131), s. 25.

This was an application for the rectification of the register by the cancellation of shares issued as fully paid up under the following circumstances. On the 20th of March, 1896, an agreement was made for the sale to the Western Main Reef Gold Mining Syndicate of 275 mining claims described in the schedule. On the 16th of October, 1896, an agreement was made for the sale of these claims to the company, the property being only described by reference to the agreement of the 20th of March, 1896. The agreement of the 16th of October, 1896, was filed on the 19th of October, 1896, and 20,000 shares were issued under it to the vendor, who, on the 26th of October, transferred these shares for a nominal consideration to Davenport. The latter then distributed the shares among the persons mentioned in the notice of motion, and the company gave them certificates that the shares were fully paid. It was doubtful, however, if the company was estopped from shewing that the shares had not in fact been fully paid, inasmuch as all the transfers had been for nominal considerations, so that Burkinshaw v. Nicolls (26 W. R. 819) did not apply. From Re Kharaskoma Syndicate (1897, 2 Ch. 451) it appeared that the full consideration for the contract must be set out in the contract that was actually filed, and Kekewich, J., in Re Maynards (Limited) (W. N. 1898, 22 (5)) held that in a case exactly similar to the present a contract filed which merely referred to a schedule in another document was insufficient. The application asked that the names of the persons who had transferred their shares should be struck off the register as well as the persons who were now actually upon the register, on the ground that they might be put upon the B list of contributories.

NORTH, J., said that there was no distinction between Re Kharaskoma Syndicate and Re Maynards (Limited), in each case what each person gives and takes must be clearly shewn in the contract filed. He could not take any name off the register except that of a registered shareholder. If the notice of motion was amended by making it apply to the persons at the present time actually registered as shareholders, and the consent of a secured creditor who had been referred to was obtained, and an affidavit of the present holders of shares produced, he might be able to make the order.-COUNSEL, Stewart Smith; Whittaker. SOLICITORS, Loughborough ; Gedge, Nisbet, & Drew.

[Reported by G. B. HAMILTON, Barrister-at-Law.]

Re CALCOTT AND ELVIN'S CONTRACT. Kekewich, J. 31st March. BANKRUPTCY-ORDER OF ADJUDICATION-ORDER FOR SUMMARY ADMINIS TRATION-VESTING OF PROPERTY-" DEED OR CONVEYANCE "-PRIORITY — REGISTRATION-BANKRUPTCY ACT, 1883 (46 & 47 VICT. c. 52), ss. 20, 54, 121.

By an indenture of the 7th of February, 1881, certain leasehold premises in Maida-vale, London, were leased to Michael Death for forty-one years. By two indentures of mortgage dated respectively the 4th of September and the 25th of December, 1894, Death mortgaged the premises to G. L. B. Calcott to secure moneys advanced to him by Calcott. These mortgages were duly registered in the Middlesex Land Registry on the 10th of October and the 29th of December, 1894. Death having made default Calcott entered into possession and in exercise of his power of sale as mortgagee on the 16th of November, 1897, contracted to sell the premises to T. G. Elvin. Just before completion the purchaser Elvin discovered that Death was an undischarged bankrupt, and that an order dated the 28th of January, 1887, had been made under the Bankruptcy Act, 1883, s. 20, adjudging him a bankrupt, and an order dated the next day had been made for the summary administration of his estate under section 121 of the Act. Under these orders the official receiver became Death's trustee in bankruptcy. No memorial of his title was, however, registered by the official receiver. The purchaser refused to complete, but the vendor, alleging that the official receiver's title was void for want of registration under the Registration Act, 7 Anne, c. 20, s. 1, took out this summons, asking for a declaration that, notwithstanding the bankruptcy of Death, the vendor, as mortgagee, had shewn a good tide to the premises. The purchaser contended that the orders making Death a bankrupt and for the summary administration of his estate were not "deeds or conveyances" requiring registration within 7 Anne, c. 20, s. 1, and that the official receiver was therefore entitled to the premises, and that the vendor had ro title.

66

KEKEWICH, J.-It is said on behalf of the purchaser that the vendor claims under a mortgage to him by an undischarged bankrupt, and that at the date of the bankruptcy the bankrupt's estate was vested in his trustee in bankruptcy, the official receiver, and that, therefore, the vendor has nothing to convey because he has no title. That would plainly be the case if it were not that the vendor has registered his mortgages, whereas no memorial of the official trustee's title has been registered. But it is said the orders of the court are not properly a conveyance " within the words of the Registration Act (7 Anne, c. 20), s. 1, and ought not, therePotter (23 W. R. 36, 10 Ch. App. 8), in which Lord Cairns says, fore, to be registered. In answer to that there is the case of Credland v. "There is no magical meaning in the word' conveyance."" Vesting orders under the Trustee Act, 1893, are in themselves conveyances, and operate as such and form links of title. Then it is urged that under section 54 (4) of the Bankruptcy Act, 1883, the certificate of a trustee's appointment is to be deemed a conveyance, and may be registered accordingly, and that

there is no provision for registration of an order under section 121, but
that is because the certificate does not vest the property, and is not itself
a conveyance, while the order itself vests the property. I am, therefore, of
opinion that the orders are "a conveyance
" within 7 Anne, c. 20, s. 1,
which is capable of registration, and that as they were not registered they
are void as against the registered title of the vendor. Then there is the
question of notice. On the evidence the vendor had no express notice,
and I do not think I can impute to him constructive notice. Then it is
said I ought not to force what is said to be a doubtful title upon the pur-
chaser. But I think I must say that on the present materials before me
the title is not a doubtful but a good title, and there must be a declaration
that, notwithstanding the bankruptcy of M. Death, the vendor has and
has shewn a good title to the premises.-COUNSEL, Warrington, Q C., and
Muir Mackenzie; Rowden and Carrington. SOLICITORS, G. L. B. Calcott;
Percy C. Ray.
[Reported by C. C. HENSLEY, Barrister-at-Law.]

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LANDLORD AND TENANT-COVENANT FOR QUIET ENJOYMENT-REVERSION
ACQUIRED BY A RAILWAY COMPANY-EXERCISE OF STATUTORY POWERS-ment, necessary for the decision, because in the present case it is not the
DAMAGES-LANDS CLAUSES ACT, 1845, s. 68-RAILWAY CLAUSES ACT, 1845

s. 6.

the other being also acquired. Lessor and lessee also know that their
respective interests may be injuriously affected by the railway company in
carrying out its statutory obligations and acting strictly within its
statutory powers, and both parties know that, should their or either of
their interests be injuriously affected, there are statutory provisions pro-
viding for compensation being paid. First, as between lessor and lessee,
what is the true meaning of a covenant for quiet enjoyment in the terms
of the covenant in the present case? Under such circumstances, do the
parties mean and intend that the lessor is to be liable in the event of
disturbance by the company in the legitimate exercise of its Parliamentary
powers, or do they mean that, subject to such exercise of the statutory
power, the covenant is to apply? I think that the true intent and mean-
ing of the covenant is that the covenantor will be answerable for his own
acts and for the acts of his assignees, but not that he will be answerable
for the acts of the railway company in the exercise of its statutory
powers, the company not being in the true sense his voluntary
assignee at all, although he conveys to the company and it is not put to
the actual exercise of its compulsory power. If, then, the
lessor would not be liable, how can his assignee, the railway company,
be liable in the absence of a fresh bargain on its part to be liable? It is
reasonably clear that the company cannot be liable. But, although I have
expressed this view as to the liability of the lessor, it is not, in my judg
lessor but the railway company against whom relief is sought, and I am
of opinion that, even if the plaintiff were entitled to sue the lessor upon
his covenant, he is not entitled to sue the railway company, the lessor's
compulsory assignee. I think that a railway company taking lands under
statutory powers, and constructing works within such powers without
negligence, is entitled to take the interest of any person having an
interest in land without incurring liability in respect of any existing
covenant entered into by the owner, whose interest the company acquires,
so far as the enforcement of such covenant would impose a burden upon
the company in derogation of its statutory rights and obligations. It is
not necessary to say or decide that the covenant is gone for all purposes.
Nor is it necessary to consider how far the acts done by the
railway company, if amounting to a destruction of the subject-
matter of the lease might or might not afford a good
answer to an action for rent, or in respect of other covenants of the
lease.
anomalous and unfair that the company can take the interest of a
It has been urged on behalf of the plaintiff that its seems
lessor with all such lessor's rights, and at the same time be free from the
obligations imposed by the lease upon the lessor. The question can only
arise in rare instances. If the land is really required for the purpose of
the undertaking it is, of course, as necessary, if not more necessary, in
most cases to take the interest of the lessee than that of the lessor, but it
may happen that the interest of one or other of the parties interested in
the land may be bona fide taken by the company before it discovers that it
does not require the land. I think the company has acted within its legal
rights, and that the plaintiff must look to his statutory right to compen-
of the plaintiff's action so far as his claim in respect of injury done to the
structure of his house is concerned, and it also disposes of the counter-
claim in the second action, and both must be dismissed with costs, except
as to the costs of the first action down to the time of the amendment,
which I allowed at the trial; those costs, I consider, ought to be borne
by the railway company.
for the rent claimed, but stayed execution on the terms of an appeal being
His lordship gave judgment for the company
promptly brought.-COUNSEL, Witt, QC., and A. Statham; Eve, Q.C.,
Macnaghten, QC., and S A. Sampson. SOLICITORS, Ford, Lloyd, Bartlett, &
Michelmore; Cunliffes & Davenport, for R. L. Monk, Manchester.

By the Manchester, Sheffield, and Lincolnshire Railway (Extension to London) Act, 1893, the defendant company were authorized to make and maintain a certain railway, and for that purpose were empowered to take the lands mentioned in the Act. In April, 1894, a house in Hampstead, part of the land authorized to be taken by the railway company, together with a right of way in common with other persons over a passage adjoining the house was demised by one Findlay to the plaintiff Anderson for twenty-one years as from the 25th of March previous, at a yearly rent. The lease contained a covenant on the part of the lessor that on paying the rent reserved and performing the covenants in the lease, the lessee might peaceably hold and enjoy the demised premises without any interruption by the lessor or any person claiming through him. The defendant company acquired by agreement the reversionary interest of the plaintiff's lessor in the demised premises subject to the lease under an assignment of October, 1895, from the lessor. The houses and premises were not, however, acquired for the actual site of the railway as constructed. The company proceeded with the construction of their railway in pursuance of their statutory powers, and in the course of such construction to some extent injured the structure of the plaintiff's premises, but, as was admitted, without negligence on their part. In the first action the plaintiff claimed to be entitled to damages for such injury on the ground that the company, by taking an assignment of the reversion, had rendered themselves liable under the covenant for quiet enjoyment entered into by their assignor Findlay. In the second action the company claimed rentsation for such remedy as he is entitled to. This involves the dismissal from Anderson under the lease, and to this claim the defendant set up the covenant for quiet enjoyment as a defence, and also counterclaimed for damages for the breach of the covenant.

March 24.-BYRNE, J.-The plaintiff does not dispute that but for the covenant for quiet enjoyment he would not be entitled to sue for damages in respect of the injury, but would be relegated to such remedy as he might have under section 6 of the Railway Clauses Consolidation Act, 1845, and section 68 of the Lands Clauses Consolidation Act, 1845; but he says that the company, having neglected to acquire his interest in the property, and having put itself into the position of an assignee of the reversion, is liable by reason of the existence of the covenant. Had the plaintiff's land been required for the actual construction of the railway the question would not have arisen, because the railway company could not have constructed their works without acquiring the plaintiff's interest in the property. The land in which he had an interest is, however, land which the company was entitled to take compulsorily, and, although it has acquired the reversion by agreement, I do not think that any distinction can be drawn on this ground having regard to the authorities bearing on the matter. The precise point that I have to determine is, so for as I am aware, new, but there are authorities which it is necessary to consider in order to arrive at a proper conclusion. [His lordship then referred to the cases of Kirby v. School Board for Harrogate (40 SOLICITORS' JOURNAL 239, 1896, 1 Ch. 437), Clark v. School Board for London (22 W. R. 354, L. R. 9 Ch. 120), and Bailey v. De Crespigny (L. R. 4 Q. B. 180), and proceeded as follows:] In each of the cases to which I have referred the point now raised is not precisely involved, because what has happened is not that the covenantor has sold to the railway company adjoining land in respect of which he has entered into restrictive covenants, but that he has sold his reversion in the same land included in the lease containing the covenant for quiet enjoyment; and a distinction is also pointed out in that, in the present case, the lease was granted to the plaintiff and the assignment to the company was executed after the passing of the Act under which the company has done the acts complained of. In my judgment, if the lease had been granted to the plaintiff prior to the passing of the Act the principle of the cases to which I have referred would have been clearly applicable to the present case, although the assignment had been made subsequently to that date, but I have to consider the other question-viz., What is the effect of a covenant for quiet enjoyment contained in a lease granted after the passing of an Act of Parliament authorizing, but not requiring, the taking of the land demised? Lessor and lessee must both be deemed to know when they enter into the contract that the land may or may not be taken by the railway company, and that the interest of either of them may be so taken without the interest of

[Reported by N. TEBBUTT, Barrister-at-Law.]

High Court-Queen's Bench Division.

Re THE MUNICIPAL ELECTION FOR THE CENTRAL DIVISION OF
HACKNEY. Ex parte WOOD AND STUART. Div. Court. 1st April.
MUNICIPAL ELECTION-DEATH OF ONE OF THE CANDIDATES-POSTPONEMENT
OF POLLING DAY-EXPENSES EXCEED MAXIMUM-APPLICATION FOR
RELIEF MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRACTICES) ACT,
1884 (47 & 48 VICT. c. 70), s. 20.

In this case counsel moved, on behalf of Mr. Thomas M'Kinnon Wood and Mr. James Stuart, M.P., the successful candidates for the Central Hackney division at the recent county council election, for relief under the Municipal Elections Act from the consequences of having exceeded the statutory limits imposed in respect of election expenses. The election was fixed for the 3rd of March in this division, and there were four candidates nominated. One of the candidates died, and the question was raised whether the poll should proceed as arranged or, under the circumstances, the date of the polling should be postponed. The Divisional Court (Wright and Grantham, JJ.) decided that a mandamus must issue directing that the election should be postponed until the 14th of March under the provisions of section 1 of the Ballot Act, 1872. Owing to the postponement, expenses for extra printing had been incurred to the amount of £43, and this unforeseen outlay brought the total over and above the maximum allowed by statute. unsuccessful candidates were represented at this application, but did not oppose it.

The

THE COURT (DAY AND BRUCE, JJ.) held that this was a case in which the relief sought should be granted.-COUNSEL, Macmorran, Q.C., and Corrie Grant; S. Day. SOLICITORS, Radford & Frankland; Day, Russell, & Co.

[Reported by ERSKINE REID, Barrister-at-Law.!

SPENCER v. LANCASHIRE AND YORKSHIRE RAILWAY CO. Div. whether the appellant W. H. Coppen could be properly convicted under Court. 17th March.

INSPECTOR OF WEIGHTS AND MEASURES-POLICE-CONSTABLE CONSTABLE TRAVELLING AS INSPECTOR-RIGHT TO TRAVEL AT REDUCED FARE CHEAP TRAINS ACT, 1883 (46 & 47 VICT. c. 34), s. 6. Appeal from the Manchester County Court. The plaintiff was, and had been for many years, a police-constable of the county police force, and in 1891 he was appointed an inspector under the Weights and Measures Acts, 1878 and 1889; and he was so appointed to act as inspector for the county council by the Standing Joint Committee, and he was paid out of the county fund and not out of the police rate. On the occasion now in question the plaintiff was travelling as an inspector of weights and measures and on business as such inspector. He produced to the railway company (the respondents) a "route" duly signed by a police officer within the meaning of section 6 of the Cheap Trains Act, 1883, and claimed a ticket at three-fourths of the ordinary fare, according to the provisions of that section. The railway company refused to carry him at the reduced fare and demanded the ordinary fare, and the plaintiff paid the full ordinary fare under protest, and now sued in the county court to recover the difference-namely, 2d. The question was whether the plaintiff being a police-constable and an inspector of weights and measures was entitled to be carried at the reduced rate when travelling on his duties as inspector of weights and measures. The Cheap Trains Act, 1883 (46 & 47 Vict. c. 34), provides, s. 6: "For the purpose of moving by railway on any cccasion of the public service, (a) any of the officers or men in or belonging to her Majesty's navy, or royal naval volunteers, and other officers or men under the command or government of the Admiralty; and (b) any of the officers or soldiers of her Majesty's regular army or auxiliary forces; and (c) any officers or men or any police force every railway company shall, on the production of a route duly signed for the conveyance of the forces provide conveyance for them and their personal luggage, and also for any public baggage, stores, arms, ammunition on such terms as may be agreed upon between the railway company and the Secretary of State, Admiralty, or police authority, and subject to or in default of agreement on the following terms: (2) If the number of persons conveyed is less than one hundred and fifty, threefourths" of the ordinary fare. It was admitted that the plaintiff presented a 66 route duly signed by a police officer," but it was said for the railway company that he was not within any of the classes above specified, and that he was not travelling on "an occasion of public service." The county court judge held that though the plaintiff was a police-constable he was not travelling on the public service while travelling on his duties as an inspector, and he gave judgment for the defendants with leave to appeal. The plaintiff appealed, and it was now contended for him that he was as an inspector of weights and measures travelling on the public service within the meaning of the section, and was entitled to be carried THE COURT (WRIGHT and DARLING, JJ.), without calling on the counsel for the railway company, dismissed the appeal, holding that the Act did not apply to an inspector of weights and measures, and that a constable travelling on duties as an inspector of weights and measures was not entitled to be carried at a reduced fare.-COUNSEL, Pickford, Q.C., and E. W. Jordan; C. A. Russell, Q.C., and T. F. Byrne. SOLICITORS, Ridsdale Son, for F. C. Hulton, Preston; Woodcock, Ryland, & Parker, for C. Moorhouse, Manchester.

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the statute of a criminal offence committed by his servant, since no guilty knowledge or intent on the part of the appellant was alleged by the prosecutor, came before Lord RUSSELL OF KILLOWEN, C.J., JEUNE, P., CHITTY, L.J., and WRIGHT, DARLING, and CHANNELL, JJ., and judgment was reserved.]-COUNSEL, Bonsey; Buszard, Q C., and A. J. David. SOLI CITORS, Neve & Beck; M. Moseley, for Weeks & Co., Birmingham. [Reported by ERSKINE REID, Barrister-at-Law.l

25th March.

REG. v. BIRD AND OTHER JUSTICES, Ex parte JONES. Div. Court. JUSTICES-LIMITED COMPANY WITH BRANCH ESTABLISHMENTS-BEER LICENCE -APPLICATION FOR GAME LICENCE-GAME ACT, 1831 (1 & 2 WILL 4, c. 32), s. 18.

This was a motion for a mandamus to the Kensington justices. The associate of the court read an affidavit filed by the justices giving the facts. It stated that since the matter was brought before them the decision on Boulter v. The Kent Justices (1897, A. C. 556) had decided that a meeting of licensing justices was not a court, and therefore they had no power to state a case, although a draft had been drawn up and approved of by them. Counsel in support of the motion said the justices' attention was called to the case of Schoolbred v. The Justices of St. Pancras (24 Q B. D. 346), and on that authority they appeared to have based their refusal to grant the licence. As a matter of fact, that case was not in point, and he desired to show that the justices had acted under a misimpression as to the state of the law. The question for the decision of the court was whether a company having branches in various districts, at some of which an off-licence to sell by retail intoxicating liquors was in force, was thereby prevented from selling game at those or at any of their establishments. The facts were that Mr. Jubal Webb, general provision merchant and grocer, for many years carried on business in Kensington High-street and elsewhere, and at some of the brauches an off-licence to sell beer and wine had been taken out. The business was converted into a limited company, and an application was made to the justices to grant a game licence. Section 18 of the Game Act, 1831, authorized the granting of such a licence to any person, being a householder or occupier of a shop or still, unless the person applying was a victualler or licensed to sell beer by retail, and the question was whether that proviso prohibited the granting of a game licence under such conditions as the present. In support of the motion it was argued (1) that Mr. Jones, the resident manager of the shop, was the keeper thereof within the meaning of the Act, and not being the holder of a licence to sell beer by retail, was qualified to hold a game licence; and (2) that if the company licensed to sell beer by retail, they were entitled to hold a game licence; were occupiers and not Mr. Jones, the company not being themselves and (3) if the court decided that the company were the keepers of the shop and were also the holders of the licence to sell beer by retail, nevertheless the beer licence was granted to Mr. Horsley, their manager, and as the premises in respect of which the beer licence was in force were situated at Kilburn, and the premises in respect of which a game licence was applied for was in Kensington, another and distinct division of the County of London, the company were entitled in law to hold both

licenses.

THE COURT discharged the application.

WRIGHT, J., said the court could not assist the applicant directly. In his opinion it was unfortunate that the justices doing administrative work should not be able to state a case. Here the justices said they had heard and determined the matter. That being so the court could not interfere unless they were satisfied that the justices had determined contrary to the manifest general principles of justice, or were influenced in their decision by bribery or bias or by something of that description. That was so even although they had exercised their discretion wrongly not only as regarded the facts but also as regarded the law by erroneously interpreting the meaning of the section of the Act in question. The court gave no judgment on the points raised, but they were of opinion that no harm would be done if the justices granted a supplementary licence to sell game to the applicant on the understanding that proceedings were taken to raise the question of the validity of the licence so granted. DARLING, J., concurred. Application refused.-COUNSEL, CourthopeMunroe and Percival Clarke. SOLICITOR, J. J. Chapman. [Reported by ERSKINE REID, Barrister-at-Law.]

Special case stated by magistrates for the borough of Richmond. The appellants, who are general provision merchants and sundriesmen, trading as the London Supply Stores at Richmond and elsewhere, were charged by cne Moore, an inspector of the Bacon Curers' Association of Great Britain, with having sold him a ham with a false trade description. On the day in question the informant asked at the Richmond shop to be supplied with an English ham. The assistant, who was standing outside the shop, pointed to some hams on a shelf inside and said" those are Scotch hams." Moore agreed to take one which, at 84d. per lb., came to 53. 51d. Before the money had been paid in at the desk, Moore asked the assistant to put the word "Scotch on the bill, as he had bought the ham as such, and this was done. The ham was proved to be an American ham. For the defence evidence was given that notice had been sent to the manager prohibiting the sale of this class of hams being called or described as anything but "breakfast" hams, and the assistant who sold the ham Re A SOLICITOR. Ex parte THE INCORPORATED LAW SOCIETY. Div. admitted having seen that notice. The justices convicted, and Coppen Bros. appealed.

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THE COURT (WRIGHT and DARLING, JJ.) by consent reserved their decision on the important question of whether the master was criminally liable for an unauthorized and false representation made by his servant, considering it to be one that should be determined by a specially-constituted court. On the other two questions raised they held that the false description, being merely verbal, would not alone have come within the mischief of the Act, but that it did so come when the word "Scotch" was written on the bill. Toey intimated that proceedings might very well have been brought in this case under the Sale of Foods and Drugs Act. It was not open for them to disturb the finding of the justices and to say whether in their opinion the justices had come to a right decision in holding that the applicant had not taken all reasonable precautions. On the 4th of April the question reserved by WRIGHT and DARLING, JJ., this case for a consideration by a specially-constituted court-namely,

Solicitors' Cases.

Court. 1st April.

SOLICITOR-ACTING WITHOUT AUTHORITY FOR A SHAREHOLDER-DISCRETION OF COURT TO ORDER THE SOLICITOR TO PAY COMPLAINANT'S COSTS AND THOSE OF THE INQUIRY-SOLICITORS ACT, 1888, s. 13.

In this case the charge against the solicitor was that he falsely represented that he had been instructed by the complainant and other shareholders to oppose a petition to wind up Thomas Edward Brinsmead & Sons (Limited), and had instructed counsel to appear accordingly, whereby the complainant had suffered loss. The complainant, who had applied for and been allotted four shares in the company, gave notice of a motion before the Chancery Division to have his name removed from the list of shareholders and his money returned. Meanwhile a petition was filed to have the company wound up. This motion stood over from time to time and was eventually heard with the petition. The complainant appeared by his own solicitor and did not instruct the respondent to act for him, nor was he aware he had assumed to do so until he was so informed

by his present solicitor. The complainant received a circular from the secretary of the company which was sent to all the shareholders, warning them against supporting the petition and asking them to fill up an enclosed form and stating that if they did so they would incur no responsibility or costs. The form ran as follows: "To the directors of Thomas Edward Brinsmead & Sons (Limited). I do not support the action taken or the petition presented by Mr. Walter Maskell." Eventually an order was made to wind up the company, and the complainant's

motion to have his name removed from the list of shareholders was refused

LAW SOCIETIES.

The committee have considered the communication from members of the

on the ground that he had, as a shareholder, appeared to oppose the petition. The complainant had more than one interview with the solicitor who was acting as clerk to the solicitors of the company, but he was not aware that the solicitor was also, under the name of a firm, purporting to act for him among others until he was so informed in May Tast by the official liquidator. Before the statutory committee a resolution of the company was produced to the effect that the shareholders who had signed the form sent to them should be separately represented on the hearing of the petition. In consequence of this resolution the solicitor, in the name of the firm, appeared for tl ese shareholders and instructed counsel on their behalf. The committee found that the complainant had signed the paper stating that he did not support the petition; that the solicitor was authorized by the company to arrange that the shareholders who had so signed should be separately represented, though the document which they had signed did not authorize such instructions; that the solicitor appeared and instructed counsel under the name before referred to to oppose the petition without communicating to the court that the firm consisted solely of himself, or the fact that he was but the managing clerk of the firm of solicitors then acting for the company, and they found the solicitor guilty of professional misconduct. Counsel for the solicitor urged that the alleged wrongful conduct of the solicitor did not amount to such professional misconduct as to require the court to pass more than a nominal sentence upon him. At the most it could but be said that the defendant had been guilty of an irregularity. He had acted perfectly honestly, and had not sought any profit. The complainant had not proved any loss that actually occurred to him from the solicitor appearing as he did. There was nothing improper in a solicitor's clerk, who was himself a solicitor, acting on behalf of certain shareholders in a matter in which his own principale were retained. All that he had done was to convey to the court the wishes of the shareholders as expressed in a resolution. These share-litigation, and had in its operation caused a great deal of injustice, and that, holders numbered some 200, and of these the complainant alone had found fault with what the defendant had done. It was impossible for him to have obtained from so many persons separate instructions. He asked their lordships to say that justice would be met by some very lenient treatment. Counsel for the complainant said the gist of the offence was that the defendant represented to the court, and thereby misled the court into the belief, that he was retained by the complainant, which was not the case. It was a fact that the official liquidator had held that by reason of the course taken by the solicitor on behalf of the complainant, the latter has been thereby debarred from the relief he sought-namely, the removal of his name from the list of contributories. That had caused his client a loss of £20 for calls, which sum did not include incidental expenses he had been obliged to pay. He hoped that the court, in meting out what punishment they considered the defendant should receive, would order, inter alia, that he should re-imburse the complainant. [DAY, J.We are not satisfied on the evidence that, but for the conduct of the defendant, the complainant would have succeeded in getting his name removed from the list of contributories.] The conduct of the defendant was clearly to the prejudice of the complainant, and had resulted in an actual monetary loss. Whatever that loss amounted to, that sum should be repaid his client by the solicitor.

THE INCORPORATED LAW SOCIETY. THE COMPANIES ACT, 1867-SECTION 25. Report to the Council of Special Committee appointed on the 29th of October, 1897. Adopted by the Council, the 17th of December, 1897society in South Wales, suggesting that the recent decision in the Kharaskhoma case (1897, 2 Ch. 451) calls for Parliamentary intervention to remove under Section 25 of the Companies Act, 1867. doubts and to prevent injustice where subsidiary contracts have been filed Before referring to the Kharaskhoma case it may be useful to mention the enactment on which the decision depended and the criticisms which it has called forth. Section 25 of the Companies Act, 1867, provides that every share in any company shall be deemed and be taken to have been issued and to be held subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing and filed with the Registrar of Joint-Stock Companies at or before the issue of such shares. It may be supposed that the object of the section was to give notice to the public of the fact where shares are not paid up in cash, and to secure dis closure of the actual consideration other than cash. In the absence of such notice credit might be given on the assumption that all the capital of the The committee company credited as paid up had been received in cash. have caused search to be made, and they do not find in the proceedings of Parliament or in Hansard any mention whatever of section 25 or of the subject-matter of that section in the Parliamentary Debates in 1867, or in the Report of the Parliamentary Committee (dated the 28th of May, 1867), on which the Companies Act, 1867, was founded. It has been sometimes stated that the section was introduced in consequence of a special contract in a particular case where the consideration was of an exceptional and problematical character. The justice and expediency of section 25 had the Kharaskhoma decision. been seriously called in question previously to the attention called to it by A very strong departmental committee, of which Lord Davey was chairman, was appointed by the Board of Trade in November, 1894, to consider amendments in the Limited Liability Acts. In their report, dated the 27th of June, 1895, the committee stated inter alia that section 25 of the Companies Act, 1867, had given rise to a great deal of on the other hand, it had not, it was believed, been found of great public advantage. They added that the loose, inaccurate, and ungrammatical language of the section seemed to indicate that it was passed hurriedly and think the section could be amended with any advantage, and they thought without much consideration. The committee reported that they did not it should be repealed. They recommended clauses for a return to the Registrar of Joint-Stock Companies of shares on allotment, stating, in the case of shares payable otherwise than in cash, the extent to which they are so paid up, and the consideration. They also recommended that in the annual returns, and in every balance-sheet, cash shares should be distinguished The committee added that they from shares issued otherwise than for cash. did not think it necessary to recommend any further substitution for section 25 of the Act of 1867. It may be noted, in connection with the last-mentioned recommendations, that the Act of 1862, section 25, already required particulars in the annual summaries of amounts paid, or agreed to be considered as paid, on the shares of each member. The report from which the above statements are taken was signed by all the members of the committee-viz., Lord Davey (chairman), Mr. Justice Chitty, Mr. Justice (now Lord Justice) Vaughan Williams (subject to an addendum which did not mention section 25 of the Act of 1867), Sir William Houldsworth, Bart., M.P., Sir A. K. Rollit, M.P, Mr. Buckley, Q.C., Mr. F. B. Palmer, Mr. John Smith, C.B., DAY, J., in giving judgment, said the finding in the report of the Mr. A. F. Wallace, Mr. Hollams, Mr. Crisp, Mr. Waterhouse, and Mr. statutory committee appeared to him to have been abundantly justified by Jameson. There was appended to the Report of the Departmental Comthe facts disclosed in the case, and the solicitor had undoubtedly been mittee the draft of a Bill which they recommended to amend the Companie guilty of professional misconduct. It appeared that he abused his Acts. By that draft Bill it was proposed to enact by section 47 that section 25 position by appearing in the winding-up court in a double capacity and of the Act of 1867 should be, and that it was, thereby repealed. In the under double names, sometimes using his private name and sometimes the Bill brought forward in the session of 1896 by the Board of Trade, and name of a firm, which he believed the defendant had at one time been March, 1896, a similar section was contained repealing section 25 of the which was introduced into the House of Lords by the Earl of Dudley in connected with, but which he had then no right to use. great impropriety for anyone to appear under an alias in a court of justice Bill introduced by Lord Dudley in the session of 1897. Lord Dudley's Bill Companies Act, 1867. The same clause was again contained in the similar and a man who so disguised himself practised what he considered was a fraud upon the court. The solicitor ostensibly acted professionally for was referred to a Special Committee of the House of Lords, who took the complainant without having received from him any proper instructions evidence in the session of 1896, and were again appointed and took further to do so of any sort or kind, and the result of his so doing was said to have evidence in 1897, and your committee do not find in the report of that evibeen disastrous to the complainant by depriving him of the remedy he dence any comment on the proposal to repeal section 25 of the Act of 1867. otherwise sought, of having his name removed from the list of contribuThe unqualified repeal thus proposed of section 25 might, it is conceived, tories to the company. While the solicitor appeared not to have done leave yet some doubt as to its operation during the last thirty years, because, anything fraudulent in the sense of obtaining money by fraud, he had been while section 38, sub-section 2, of the Interpretations Act, 1889, apparently properly found guilty of professional misconduct. Acting as he had done preserves any right, privilege, obligation, or liability acquired, accrued, or in a manner unworthy of a gentleman and of a profession whose members incurred under the repealed section, yet it might be argued that no liability were also members of the court, he had undoubtedly been guilty of pro-winding-up proceedings, and that no order for payment in cash could be made had accrued until either a c :ll had been made or a list of contributories settled in fessional misconduct. He thought it was not a case, however, in which they should either order his suspension from practice or direct his name to be struck off the rolls. The justice of the case would be met by directing the solicitor to bear all the costs which had been incurred by reason of the complaint having been brought against him, together with the costs of the Incorporated Law Society and those of the complainant. BRUCE, J., concurred.- COUNSEL, F. W. Hollams; Cranstoun; Norman Craig.

It was a very

[Reported by ERSKINE REID, Barrister-at-Law.] SOLICITORS ORDERED TO BE STRUCK OFF THE ROLLS. 1 April-WILLIAM LEONARD BUTLER (93, The Grove, Stratford, Essex). 4 April-JOHN HOPKINS (111, Finsbury-pavement, London).

after a repeal of the section in any other case. The committee are of opinion that any new legislation ought not to leave open any question in this respect for future litigation, and for the reasons given later on in this report, they The question in the case of The Kharaskhoma Syndicate arose as follows. An are of opinion that the repeal should have a guarded retrospective operation. agreement was made on the 17th of August, 1892, between the syndicate and a Concessions Development Company, of which one condition was the issue to the company of 163 preference shares of £10 each in the syndicate as fully paid and to be protected by a duly registered agreement under section 25 of the Companies Act, 1867. On the 31st of August, 1892, an agreement was made under the seals of the two companies reciting that by the agreement of the 17th of August it was agreed, for the considerations therein mentioned, that e

syndicate should allot 163 fully paid-up shares to be protected by a registered agreement "being this present agreement," and it was witnessed (1) that the syndicate should file this agreement, and (2) that the syndicate should allot the shares, which should be deemed for all purposes to be fully paid-up and be numbered as therein mentioned. The first point taken was that there was no consideration; but Mr. Justice Vaughan Williams held, on the evidence, that there was a good and valuable consideration, and that he ought to treat the transaction as an honest one, and one in which there was nothing that the parties would wish to conceal, and each of the judges in the Court of Appeal agreed in this part of his judgment. The second point was that the real contract was that of the 17th of August, which ought to have been filed, and that even if the contract of the 31st of August was the contract to be filed, the consideration ought to have been stated. Mr. Justice Vaughan Williams held, without laying down any general rule, that in the case before him the statute had been complied with, and he refused to make the order upon the gentlemen who took the shares as nominees of the Concessions Development Company to pay the £1,630. The Court of Appeal (Lindley, Lopes, and Chitty, L.JJ.) reversed Mr. Justice Vaughan Williams' judgment, and held that the consideration ought to have been stated in the subsidiary agreement, but they declined to give any opinion as to the particularity with which the consideration was to be stated. It would seem to follow, from the reservation at the end of the judgment in the Appeal Court, that in every case the decision will turn upon the particular circumstances-in other words, that a great number of suits will become necessary to ascertain whether or not the statute has been satisfied in each particular case. In the result, shareholders have to pay a second time the amount of the shares by reason of a mistake or misconstruction placed upon section 25, although it was found that the transaction was honest, the consideration good and valuable, and no concealment intended. It is understood that an appeal to the House of Lords has been lodged against the decision in the Kharaskhoma case, and although, ordinarily, legislation would await the final decision of the existing law, yet in the present case the committee think that there is no necessity to wait for the decision of the House of Lords, because the recent case has revealed a serious difficulty, which will remain, however the Kharaskhoma case may be decided; inasmuch, as even if Mr. Justice Vaughan Williams' judgment should be restored under the particular circumstances of that case, still in very numerous other cases it will be doubtful whether or not subsidiary contracts have sufficiently stated the consideration and the other terms of the principal agreement. The committee have made inquiry as to the extent of the hardship which may arise from the requirements of section 25 having been misconstrued or overlooked during the thirty years which have elapsed since the Act of 1867 was passed. They are assured that subsidiary contracts have been filed and acted upon in a very large number of cases, affecting probably many thousands of companies, and that enormous sums of money and property of great value may be involved in doubt by reason of the decision in the case in question, and that innocent persons, executors, or trustees may be exposed to claims or litigation. Transactions and titles may be rendered doubtful and lawsuits encouraged as to the validity of past dealings extending back over many years in cases where the arrangements were conceived and carried out in perfect good faith, and could not in justice be set aside as to a very material part without invalidating the whole transaction, or giving to parties a right to be restored as far as may be possible to their antecedent positions. The committee believe that in a large number of cases subsidiary contracts have been relied upon in honest transactions by shareholders who have accepted fully paid-up shares in good faith, and in the belief that the shares would always be treated as fully paid, and that great hardship and injustice will fall on numbers of innocent persons if some relief is not provided. It appears that for many years after 1867 a practice prevailed, founded on the view that section 25 would be satisfied by the filing of a subsidiary contract sealed by the company declaring that certain specified shares had been issued and were to be treated as fully paid shares. This practice was not confined to companies and their lay advisers and registration agents, but was acted on extensively by legal advisers. The practice was recognised in text-books and collections of precedents, and it is believed that no doubt was entertained in the office of the Registrar of Joint-Stock Companies as to the sufficiency of such subsidiary contracts. The committee are therefore of opinion that there is a very serious need for legislation to remove doubts and to prevent injustice, and they recommend that legislative relief should be sought by a repeal of section 25 of the Act of 1867 and by a declaration that, as regards the past, whenever any contract, or other document providing for or relating to the issue of paid-up or partly paid-up shares, in the capital of any company under the Companies Act, 1862, has been filed with the Registrar of Joint-Stock Companies, with a view to complying, as regards such shares, with the requirements of section 25 of the Companies Act, 1867, it shall be no objection to such contract or document, so far as regards the said section, that it does not disclose or sufficiently disclose the consideration for the issue of such shares, or that it only contains a part of the contract relating to the issue of such shares, or that it does not in law constitute such a contract in writing as the said section requires.

The following is a further report of the committee adopted by the Council, the 25th of March, 1898-The urgent necessity for the reform proposed by this Bill, and for the limited retrospective relief from suits and penalties which it provides, is shown by fresh recurring cases before the Courts in which large sums of money have been claimed for innocent breaches of the statute. Three such cases have come before the Courts within the last month-viz., Maynard's case (25th of February), the Coolgardie case (9th of March), and Ibbotson's Sheffield Steel Works case (10th of March). In each case the documents filed at Somerset House gave honest notice of the arrangement for issue of fully paid shares. In Maynard's case, relief was granted by the Chancery

was

Division as a matter of course and without question against the penal consequences of an inadvertent breach of the statute. In the Coolgardie case the whole agreement had been filed, but yet the statute broken because the company had an option to pay in cash, and the determination to issue fully paid shares was not on the file, as required by the strict reading of section 25, and the Court decided against the shareholders, notwithstanding the great hardship of the case. In Ibbotson's case, Lord Justice A. L. Smith said the point to be determined had only to be stated to show the unrighteous contention that the company could make the shareholder pay up £40,000 in cash and keep his property, which had been handed over in 1872, without giving him the fully paid shares as agreed. The Lord Justice stated that throughout the parties had acted in perfect good faith; and the Court of Appeal, confirming the previous judgment of Mr. Justice Wright, dismissed the claim to the £40,000, and the Court refused to help the claimants at all with reference to an appeal to the House of Lords. It may also be useful to refer to the case of Monnier (Veuve) et ses Fils and Bloomenthal. In that case the House of Lord's (Lords Halsbury, Herschell, Macnaghten, Morris, and Shand) in February, 1897, overruled previous judgments of Lords Justices Lindley, Lopes, and Rigby, and of Mr. Justice Vaughan Williams, who had all held that under section 25 of the Act of 1867 a shareholder was liable to pay £16,000 on shares given to him as fully paid up by the company as security for an advance of £1,600. It will be observed that section 25 prevailed in the Court of the first instance and also in the Court of Appeal, while five judges in the House of Lords unanimously held that the company were estopped by their representation that the shares were fully paid up, although that representation was untrue in fact, having regard to the terms of section 25. Such cases, and there are doubtless many others, prove the need for the prompt repeal of the section, and also for the limited retrospective relief which the Bill proposcs. They show that the Court grants without hesitation relief wherever it has the power, but that there are cases where it has not the power. They also show the urgency of the subject, and that it should not be delayed for the other many and important reforms comprised in Lord Dudley's Bill.

THE GENERAL COUNCIL OF THE BAR.
ANNUAL STATEMENT, 1897-98.

The "Law of Evidence (Criminal Cases) Bill, 1897."-The Council were of opinion that the principle that a prisoner should be competent to give evidence is, on the whole, a sound one, and should in the interests of public justice be made of general application. In view, however, of the difficulty which is frequently experienced by prosecuting counsel under existing Acts in judging as to the propriety of commenting or not upon the prisoner's absence from the witness-box, and of the uncertainty as to the proper practice which at present prevails the Council suggested that, in the event of this Bill becoming law, they should approach her Majesty's judges and invite them to lay down some uniform rule of practice as to the propriety or otherwise of such comment. The Council further desired to urge most strongly that a clause should be inserted in this Bill embodying the principle contained in section 1 (d) of the similar Bill introduced in 1896 in the House of Lords. The section above referred to is as follows: "A person called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to shew that any person charged has committed or been convicted of any offence other than that wherewith ho is then charged, or is of bad character, unless

"(I) The proof that he has committed or been convicted of such other offence is admissible evidence to shew that he is guilty of the offence wherewith he is then charged; or

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(II.) The person charged has asked questions of the witnesses for the prosecution with a view to establish his good character, or called witnesses to his good character, or otherwise has given evidence of good character; "(III.) The person charged and called as a witness has given evidence against any other person charged with the same offence,

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The" County Courts (Right of Audience) Bill, 1897."-This Bill was intended to amend the law relating to the right of audience of solicitors in county courts and consisted of the two following sections: 1. In section 72 of the County Courts Act, 1888, the expression "a solicitor being a solicitor acting generally in the action or matter" shall include any solicitor who is in the permanent and exclusive employment of the solicitor so acting, and who is instructed to appear in the action or matter by such lastmentioned solicitor. 2. This Act may be cited as the County Courts (Right of Audience) Act, 1897. The Council reported as follows: “(1) That the public would gain no advantage by the proposed change. (2) That the proposed change is wrong in principle, involving the representation of a solicitor by a solicitor in the county court. (3) That the proposed change would materially prejudice the interests of the junior bar. A matter which is assuming great importance in view of the continuing extension of the jurisdiction of the county courts. (4) The only argument in favour of the change appears to be the convenience of firms of solicitors representing large corporate bodies." The views of the Council were brought to the notice of the Lord Chancellor and the noble and learned lord who, on behalf of the Incorporated Law Society, had introduced the Bill in the House of Lords, with the result that the Bill was not further proceeded with. In November last a conference was held at the offices of the Council between representatives of the Council and of the Incorporated Law Society to discuss the principle of the measure, but no agreement was then arrived at. The following Bill has been introduced in the House of Commons during the present session.

The" County Courts (Audience) Bill, 1898."-Memorandum.-The object of this Bill is to render operative section 72 of the County Courts Act,

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