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High Court—Chancery Division.

Re WEST RANDT PROPRIETARY (LIM.). North, J. 1st Apri), Court of Appeal.



(30 & 31 VICT. C. 131), s. 25. ADMINISTRATION OF Estate-CHARITABLE GIFT-IMPURE PersonaLTY This was an application for the rectification of the register by the

POWER OF SELECTION GIVEN To Trustees -SELECTION OF CHARITIES cancellation of shares issued as fully paid up under the following AUTHORIZED TO TAKE IMPURE PERSONALTY.

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 Appeal of the defendants from a decision of North, J. By his will, claims described in the schedule. On the 16th of October, 1896, an dated the 5th of December, 1883, Benjamin Piercy, the testator, directed agreement was made for the sale of these claims to the company, the his trustees to apply one-tenth of his estate over and above £110,000" to property being only described by referenco to the agreement of the 20th such charitable institutions and objects as my trustees may determine.” of March, 1896. The agreement of the 16:h of October, 1896, was filed The testator died on the 24th of March, 1888. In an action commenced

on the 19th of October, 1896, and 20,000 shares were issued under it to by the trustees of his will the usual administration decree was made on the vendor, who, on the 26th of October, transferred these sbares for a the 21st of January, 1889. On the 14th of December, 1896, the plaintiffs nominal consideration to Davenport. The latter then distributed the took out a summons in the action to have it determined what was the shares among the persons mentioned in the notice of motion, and the Attorney-General's interest under the above bequest in (1) the corpus of company gave them certificates that the shares were fully paid. It was the testator's estate, and (2) the income accrued thereon and thereafter to doubtful, however, if the company was estopped from shewing that the

On the 27th of November, 1896, the Attorney-General took out shares had not in fact been fully paid, inasmuch as all the transfers had a summons asking that no further payment be made under the order on been for nominal considerations, so that Burkinshaw v. Nicolls (26 W. R. further consideration of the 15th of January, 1896, out of the income of 819) did not apply. From Re Kharaskoma Syndicate (1897, 2 Ch. 451) it the estate of certain quarterly sums therein mentioned, except upon appeared that the full consideration for the contract must be set out in certain stated conditions. The two summonses came on together for

the contract that was actually filed, and Kekewich, J., in Re Maynards hearing before North, J., who, following Lewis v. Allenby (18 W. R. 1127, (Limited) (W. N. 1898, 22 (5)) held that in a case exactly similar to the L. R. 10 Eq. 668), held that the charitable bequest applied not only to present a contract filed which merely referred to a schedule in another pure personalty but also to impure personalty and proceeds of realty; document was insufficient. The application asked that the names of the that the power of selection or determination could not be properly exer- persons who had transferred their shares should be struck off the register cised except in favour of such charitable institutions as were at the testa

as well as the persons who were now actually upon the register, on the tor's death empowered by law to hold real estate or impure personalty, ground that they might be put upon the B list of contributories. notwithstanding the statute 9 Geo. 2, c. 36 (the Mortmain Act). The North, J., said that there was no distinction between Re Kharaskoma defendants appealed.

Syndicate and Re Maynards (Limited), in each case what each person gives THE COURT (LINDLEY, M R., and Rigby and VAUGHAN WILLIAMS, L.JJ.) and takes must be clearly shewn in the contract filed. He could not take dismissed the appeal.

any name off the register except that of a registered shareholder. If the LINDLEY, M.R.-The real question in this case is whether this court is notice of motion was amended by making it apply to the persons at the prepared to overrule Stuart, V.C., in Lewis v. Allenby (ubi supra). I will present time, actually registered as shareholders, and the consent of a read the paseage. [His lordship read from the judgment of Stuart, V.C., of the present holders of shares produced, he might be able to make the

secured creditor who had been referred to was obtained, and an affidavit and continued :) I will state our view of the true principle which governs order.- COUNSEL, Stewart Smith; Whittaker. SOLicitors, Loughborough ; this case. I cannot read this as a bequest to any charitable institution Gedge, Nisbet, f Drew. 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.

[Reported by G. B. HAMILTON, Barrister-at-Law.] 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. BANKRUPTCY-Order of ADJUDICATION--Order for SUMMARY ADMINIS

Re CALCOTT AND ELVIN'S CONTRACT. Kekewich, J. 31st March. 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 authori.

- VESTING OF PROPERTY_"Deed OR CONVEYANCE”—PRIORITY ties, I think Lewis v. Allenby (ubi supra) is right. I cannot follow the

- RegistRATION-BANKRUPTCY Act, 1883 (46 & 47 Vict. c. 52), ss. 20, Vice-Chancellor's reasoning, but I find the case referred to in text-books,

54, 121. and I don't know that it has ever seriously been contested; it has certainly By an indenture of the 7th of February, 1881, certain leasehold premises presented difficulties, and bas been followed by Pearson, J., in Re Ovey, in Maida-vale, London, were leased to Michael Death for forty-one Broadbent v. Barrow (33 W. R. 821, 31 Ch. D. 113), and by North, J., in years. By two ivdentures of mortgage dated respectively the 4th of Re Seton Smith (in note to Re Piercy, Whitwham v. Piercy (23 L. T. Rep. September and the 25th of December, 1894, Death mortgaged the premises 732)). The true principle is that on which Lord Hardwicke proceeded in to G. L. B. Calcott to secure moneys advanced to him by Calcott. These Grimmett v. Grimmett (Āmb. 210), and I think there is nothing amiss in mortgages were duly registered in the Middlesex Land Registry on the this gift to the trustees. It is said that this decision is inconsistent with 10th of October and the 29th of December, 1894. Death having made Baker v. Sutton (1 Keen 224) and Johnston v. Swann (3 Madd. 457), which default Calcott entered into possession and in exercise of his power of sale were not cited before the Vice-Chancellor, and those decisions are opposed as mortgagee on the 16th of November, 1897, contracted to sell the to the view taken by him. It is quite possible that in those cases the premises to T. G. Elvin. Just before completion the purchaser Elvin trustees may not have claimed the right of selection, and if so they are not discovered that Death was an undischarged bankrupt, and that an order opposed ; if they did, then they are opposed to the decision of the Vice- dated the 28th of January, 1887, had been made under the Bankruptcy Chancellor, and I say he is right. This is an ordinary power of appoint- Act, 1883, s. 20, adjudging him a bankrupt, and an order dated the next ment which may be properly or improperly exercised. The appeal must day bad been made for the summary administration of his estate under be dismiseed.

section 121 of the Act. Under these orders the official receiver became Rigby, L J.-I am of the same opinion. I much prefer to treat this Death's trustee in bankruptcy: No memorial of his title was, however, case as one of principle quite apart from authority. The principle of law registered by the official receiver. The purchaser refused to complete, applicable to the case is clearly laid down in Lewis v. Allenby (ubi supra). but the vendor, alleging that the official receiver's title was void for want For my purpose I need only refer to one case, a decision of the Court of of registration under the Registration Act, 7 Anne, c. 20, s. 1, took out Appeal : University of London v. Yarrow (5 W. R. 543, 1 De G. & J. 72) this summons, asking for a declaration that, notwithstanding the bankwhich sufficiently sums up the previous authorities. [His lordship dis- ruptcy of Death, the vendor, as mortgagee, had shewn a good title to cusked that case at length, and continued :) If the testator has pointed the premises. The purchaser contended that the orders making Death a to two objecte, one of which is lawful and the other unlawful, and has bankrupt and for the summary administration of his estate were not given the trustees power to select the lawful one, it is impossible to say

deeds or couveyances” requiring registration within 7 Anne, c. 20, s. 1, that the bequest is void. In the present case there is a power in the and that the official receiver was therefore entitled to the premises, and trustees to select objects perfectly within the Act. There is no doubt that the vendor had ro title. about the testator's intention that all this fund should go to charities. It KEKEWICH, J.-It is said on behalf of the purchaser that the vendor would be impossible to hold, if there had never been such a case as Lewis claims under a mortgage to him by an undischarged bankrupt, and that V. Allenby (ubi supra), that the gift was not good. No gift of mixed at the date of the bankruptcy, the bankrupt's estate was vested in his personalty to an unexempt charity would operate as a good gift, and the trustee in bankruptcy, the official receiver, and that, therefore, the vendor trustees would know plainly that they would be doing that which would has nothing to convey because he has no title. That would plainly be the frustrate the testator's intention if they applied any part of this fund to case if it were not that the vendor has registered his mortgages, whereas unexempted charities. Baker v. Sutton and Johnston v. Swann (ubi supra) I no memorial of the official trustee's title has been registered. But it is take to have been overruled if and so far as they are inconsistent with said the orders of the court are not properly a

" within the

conveyance Lercis V. Allenby (ubi supra).

words of the Registration Act (7 Anne, c. 20), s. 1, and ought not, thereVAUGHAN Williams, L.J., gave judgment to the same effect. Appeal Potter (23 W. R. 36, 10 Ch. App. 8), in which Lord Cairns says, “There

fore, to be registered. In answer to that there is the case of Credland v. dismissed. - Counsel, 'Svinfen Eady, Q.C., and Badcock ; , SirRichard is no magical meaning in the word conveyance.'” Webster, A.G., and Ingle Joyce ; Cozens-Hardy, Q.C., and Frederick Thomp- the Trustee Act, 1893, are in themselves conveyances, and operate as

Vesting orders under SOLICITORS, Crowders f Vizard; Solicitor to the Treasury; Field, such and form links of title. Then it is urged that under section 54 (4) Roscoe, f Co., for Evan Morris & Co., Wrexham.

of the Bankruptcy Act, 1883, the certificate of a trustee's appointment is [Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

to be deemed a conveyance, and may be registered accordingly, and that



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there is no provision for registration of an order under section 121, but the other being also acquired. Lessor and lessee also know that their that is because the certificate does not vest the property, and is not itself respective interests may be izjuriously affected by the railway company in a conveyance, while the order itself vests the property. I am, therefore, of carıying out its statutory obligations and acting strictly within its opinion that the orders are “a conveyance" within 7 Anne, c. 20, s. 1, statutory powers, and both parties know that, should their or either of which is capable of registration, and that as they were not registered they their interests be injuriously affected, there are statutory provisions proare void as against the registered title of the vendor. Then there is the viding for compensation being paid. First, as between lessor and lessee, question of notice. On the evidence the vendor had no express notice, what is the true meaning of a covenant for quiet enjoyment in the terms and I do not think I can impute to him constructive notice. Then it is of the covenant in the present case ? Under such circumstances, do the said I ought not to force what is said to be a doubtful title upon the pur- parties mean and intend that the lessor is to be liable in the event of chaeer. But I think I must say that on the present materials before me disturbance by the company in the legitimate exercise of its Parliamentary the title is not a doubtful but a good title, and there must be a declaration powers, or do they mean that, subject to such exercise of the statutory that, notwithstanding the bankruptcy of M. Death, the vendor has and power, the covenant is to apply? I think that the true intent and meanhas shewn a good title to the premises.-Counsel, Warrington, Q C., and ing of the covenant is that the covenantor will be answerable for his own Muir Mackenzie ; Rowden and Carrington. SOLICITORS, G. L. B. Calcott ; acts and for the acts of his assignees, but not that he will be answerable Percy C. Ray.

for the acts of the railway company in the exercise of its statutory [Reported by C. C. HENSLEY, Barrister-at-Law.]

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 ANDERSON MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE the actual exercise of its compulsory power. If, then, the

RAILWAY CO. MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE lessor would not be liable, how can his assignee, the railway company, RAILWAY CO. v. ANDERSON, Byrne, J. 12th, 19th, and 24th be liable in the absence of a fresh bargain on its part to be liable ? * It is March.

reasonably clear that the company cannot be liable. But, although I have LANDLORD AND TENANT-COVENANT FOR QUIBT ENJOYMENT - REVERSION expressed this view as to the liability of the lessor, it is not, in my judg.

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 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 By the Manchester, Sheffield, and Lincolnshire Railway (Extension to compulsory assignee. I think that a railway company taking lands under London) Act, 1893, the defendant company were authorized to make and statutory powers, and constructing works within such powers without maintain a certain rail way, and for that purpose were empowered to take negligence, is entitled to take the interest of any person having an the lands mentioned in the Act. In April, 1894, a house in Hampstead, interest in' land without incurring liability in respect of any existing part of the land authorized to be taken by the railway company, together covenant entered into by the owner, whose interest the company acquires, with a right of way in common with other persons over a passage ad

so far as the enforcement of such covenant would impose a burden upon joining the house was demised by one Findlay to the plaintiff Anderson the company in derogation of its statutory rights and obligations. It is for twenty-one years as from the 25th of March previous, at a yearly rent. not necessary to say or decide that the covenant is gone for all purposes. The lease contained a covenant on the part of the lessor that on paying Nor is it necessary to consider how far the acts done by the the rent reserved and performing the covenants in the lease, the lessee railway company, if amounting to a destruction of the subject: might peaceably hold and enjoy the demised premises without any matter of the lease might might not afford good interruption by the lessor or any person claiming through him. The defen

answer to an action for rent, or in respect of other covenants of the dant company acquired by agreement the reversionary interest of the plain- lease. tiff's lessor in the demised premises subject to the lease under an assign- anomalous and unfair that the company can take the interest of a

It has been urged on behalf of the plaintiff that its seems ment of October, 1895, from the lessor. The houses and premises were lessor with all such lessor's rights, and at the same time be free froun the not, however, acquired for the actual site of the railway as constructed. obligations imposed by the lease upon the lessor. The question can only The company proceeded with the construction of their railway in pur- arise in rare instances. If the land is really required for the purpose of suance of their statutory powers, and in the course of such construction the undertaking it is, of course, as necessary, if not more necessary, in to some extent injured the structure of the plaintiff's premises, but, as plaintiff claimed to be entitled to damages for such injury on the ground the land may be bona fide taken by the company before it discovers that it was admitted, without negligence on their part. In the first action the 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 that the company, by taking an assignment of the reversion, had rendered does not require the land. I think the company has acted within its legal themselves liable under the covenant for quiet epjcyment entered into by rights, and that the plaintiff must look to his statutory right to compen, their assignor Findlay. In the second action the company claimed rent Pation 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 of the plaintiff's action so far as his claim in respect of injury done to the covenant for quiet enjoyment as a defence, and also counterclaimed for structure of his house is concerned, and it also disposes of the counterdamages for the breach of the covenant.

claim in the second action, and both must be dismissed with costs, except March 24.-Byrne, J.—The plaintiff does not dispute that but for the as to the costs of the first action down to the time of the amendment, covenant for quiet enjoyment he would not be entitled to sue for damages which I allowed at the trial; those costs, I consider, ought to be borne in respect of the injury, but would be relegated to such remedy as he by the railway company. might have under section 6 of the Railway Clauses Consolidation Act, for the rent claimed, but stayed execution on the terms of an appeal being

His lordship gave judgment for the company 1845, and section 68 of the Lands Clauces Consolidation Act, 1845; but he promptly brought.-Counsel, Will, Q.C., and A. Statham, Eve, Q.C. says that the company, having neglected to acquire his interest in the Macnaghten, Q O., and S A. Sampson. Solicitors, Ford, Lloyd, Bartlett, f property, and having put iteelf into the position of an assignee of the Michelmore; Cunliffes f Davenport, for R. L. Monk, Manchester. Teversion, is liable by reason of the existence of the covenant. Had the

[Reported by N. TEBBUTT, Barrister-at-Law.] plaintiff's land been required for the actual construction of the railway the question would not have arisen, because the railway company could pot have constructed their works without acquiring the plaintiff's interest in the property. The land in which he had an interest is, however, land High Court-Queen's Bench Division. which the company was entitled to take compulsorily, and, although it Re THE MUNICIPAL ELECTION FOR THE CENTRAL DIVISION OF has acquired the reversion by agreement, I do not think that any

HACKNEY. Ex parte WOOD AND STUART. Div. Court. 1st April. distinction can be drawn on this groupd having regard to the authorities bearing on the matter. The precise point that I have to determine is, so

MUNICIPAL ELECTION-DEATH OF ONE OF THE CANDIDATES - POSTPONEMENT for as I am aware, new, but there are authorities which it is necessary to

OP POLLING DAY-EXPENSES Exceed MAXIMUM—APPLICATION FOR consider in order to arrive at a proper conclusion. [His lordship then

Relief-MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRACTICES) Act, referred to the cases of Kirby v. School Board for Harrogate (40 SOLICITORS'

1884 (47 & 48 Vict. c. 70), s. 20. JOURNAL 239, 1896, 1 Ch. 437), Clark v. School Board for London In this case counsel moved, on behalf of Mr. Thomas M'Kinnon Wood (22 W, R. 354, L. R. 9 Ch. 120), and Bailey v. De Crespigny (L. R. 4 and Mr. James Stuart, M.P., the successful candidates for the Q. B. 180), and proceeded as follows :) In each of the cases to which I Central Hackney division at the recent county council election, for have referred the point now raised is not precisely involved, because what relief under the Municipal Elections Act from the consequences of having has happened is not that the covenantor has sold to the railway company exceeded the statutory limits imposed in respect of election expenses. adjoining land in respect of which he has entered into restrictive The election was fixed for the 3rd of March in this division, and there covenants, but that he has sold his reversion in the same land included in were four candidates nominated. One of the candidates died, and the the lease containing the covenant for quiet enjoyment; and a distinction question was raised whether the poll should proceed as arranged or, is also pointed out in that, in the present case, the lease was granted to under the circumstances, the date of the polling should be postponed. the plaintiff and the assignment to the company was executed after the The Divisional Court (Wright and Grantham, JJ.) decided that a mandamus passing of the Act under which the company has done the acts complained must issue directing that the election should be postponed until the 14th of. In my judgment, if the lease had been granted to the plaintiff prior of March under the provisions of section 1 of the Ballot Act, 1872. to the passing of the Act the principle of the cases to which I bave Owing to the postponement, expenses for extra printing had been referred would have been clearly applicable to the present case, although incurred to the amount of £43, and this unforeseen outlay brought the the assignment had been made subsequently to that date, but I have to total over and above the maximum allowed by statute. consider the other question- viz., What is the effect of a covenant unsuccessful candidates were represented at this application, but did not for quiet enjoyment contained in lease granted after the oppose it. passing of an Act of Parliament authorizing, but not requir The Court (DAY AND Bruce, JJ.) held that this was a case in which jpg, the taking of the land demised ? Lessor and lessee must the relief sought should be granted. -Counsku, Macmorran, Q.C., and both be deemed to know when they enter into the contract Corrie Grant ; S. Day. Solicitors, Radford f Frankland ; Day, Russell, f that the land may or may not be taken by the railway company, and Co. that the interest of either of them may be so taken without the intereat of

[Reported by ER-KINE REID, Barrister-at-Liw.!


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

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 INSPECTOR OF WEIGHTS AND MEASURES-POLICE-CONSTABLE CONSTABLE

prosecutor, cime before Lord Russell OF KillowEN, O.J., Jeune, P., TRAVELLING AS INSPECTOR--Right to TRAVEL AT Reduced Fare, Chitty, L.J., and Wright, Darling, and ChanneLL, JJ., and judgment CHEAP TRAINS ACT, 1883 (46 & 47 Vict. c. 34), s. 6.

was reserved. )-Counsel, Bonsey; Buszard, Q C., and A. J. David. Soli. Appeal from the Mavchester County Court. The plaintiff was, and had CITORS, Neve & Beck ; M. Moseley, for Weeks f: Co., Birmingham. been for many years, a police-constable of the county police force, and in

(Reported by ERSKINE REID, Barrister-at-Law.] 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 REG. v. BIRD AND OTHER JUSTICES, Ex parte JONES. Div. Court. council by the Standing Joint Committee, and he was paid out of the

25th March. county fund and not out of the police rate. On the occasion now in Justices-LIMITED COMPANY WITH Branch EstARLISHMENT3-Beer LICENCE question the plaintiff was travelling as an inspector of weights and -APPLICATION FOR GAME LICENCE-Game Act, 1831 (1 & 2 WILL 4, c. measures and on business as such inspector. He produced to the rail


32), 8. 18. 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 associate of the court read an affidavit filed by the justices giving the

This was a motion for a mandamus to the Kensington justices. The a ticket at three-fourths of the ordinary fare, according to the provisions facts. It stated that since the matter was brought before them the of that section. The railway company refused to carry him at the reduced decision on Boulter v. The Kent Justices (1897, A. C. 556) had decided that a fare and demanded the ordinary fare, and the plaintiff paid the full meeting of licensing justices was not a court, and therefore they had no ordinary fare under protest, and now sued in the county court to recover the difference-namely, 2d. The question was whether the plaintiff being of by them. Counsel in support of the motion said the justices' attention

power to state a caso, although a draft had been drawn up and approved 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 a B. D. 346), and on that authority they appeared to have based their

was called to the case of Schoolbred v. The Justices of St. Pancras (24 of weights and measures. The Cheap Trains Act, 1883 (46 & 47 Vict. c.

refusal to grant the licence. As a matter of fact, that case was not in 34), provides, s. 6:,.“For the purpose of moving by railway on any point, and he desired tɔ show that the justices had acted under a miscccasion of the public service, (a) any of the officers or men in or belong. Impression as to the state of the law. The question for the decision of ing to her Majesty's navy, or royal naval volunteers, and other officers or men under the command or government of the Admiralty; and (6) any

the court was whether a company having branches in various districts, at of the officers or soldiers of her Majesty's regular army or auxiliary force, was thereby prevented from selling game at those or at any of their

some of which an off-licence to sell by retail intoxicating liquors was in forces;

and (c) any officers or men or any police force every railway company shall, on the production of a route duly signed for merchant and grocer, for many years carried on business in Kensington

establishments. The facts were that Mr. Jubal Webb, general provision the conveyance of the forces provide conveyance for them and their High-street and el-ewhere, and at some of the brauches an off-licence to personal luggage, and also for any public baggage, stores, arms, ammuni. sell beer and wine had been taken out. The business was converted into tion

on such terms as may be agreed upon between the railway company and the Secretary of State, Admiralty, or police authority, and

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 grantsubject to or in default of agreement on the following terms : (2) If the number of persons conveyed is less than one hundred and fifty, three-ing of such a licence to any person, being a householder or occupier fourths" of the ordinary fare. It was admitted that the plaintiff pre- licensed to sell beer by retail, and the qnestion was whether that

of a shop or still, unless the person applying was a victualler or sented a “route duly signed by a police officer," but it was said for the proviso prohibited the granting of a game licence under sach conditions railway company that he was not within any of the classes above specified, as the present. In support of the motion it was argued (1) that Mr. Jones, and that he was not travelling on an occasion of public service.” county court judge held that though the plaintiff was a police-constable meaning of the Act, and not being the holder of a licence to sell beer by

the resident manager of the shop, was the keeper thereof within the he was not travelling on the public service while travelling on his duties retail, was qualified to hold a game licence ; and (2) that if the company 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 licensed to sell beer by retail, they were entitled tɔ hold a game licence;

were occupiers and not Mr. Jones, the company not being themselves he was as an inspector of weights and measures travelling on the public and (3) if the court decided that the company were the keepers of the service within the meaning of the section, and was entitled to be carried shop and were also the holders of the licence to sell beer by retail, never; at the reduced rate.

The Court (Wright and Darling, JJ.), without calling on the counsel theless the beer licenco was granted to Mr. Horsley, their manager, and for the railway company, dismissed the appeal, holding that the Act did situated at Kilburn, and the premises in respect of which a game licence

as the premises in respect of which the beer licence was in force were 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 County of London, the company were entitled in law to hold both

was applied for. was in Kensington, another and distinct division of the entitled to be carried at a reduced fare.-COUNSEL, Pickford, Q.C., and

licenses. E. W. Jordan ; C. 4. Russell, Q.C., and T. F. Byrne. Solicitors, Ridsdale $ Son, for F. C. Hulton, Preston; Woodcock, Ryland, f Parker, for C.

Tue Court discharged the application. Moorhouse, Manchester.

WRIGHT, J., said the court could not assist the applicant directly. In

his opinion it was unfortunate that the justices doing administrative work (Reported by Sir SHENSTON BAKER, Bart., Barrister-at-Law.]

should not be able to state a case. Here the justices said they had heard COPPEN BROS. v. MOORE. Div. Court. 25th March.

and determined the matter. That being so the court could not interfere

unless they were satisfied that the justices had determined contrary to the TRADE-MARK — False Trade DESCRIPTION —A MERICAN Bacon SOLD AS manifest general principles of justice, or were influenced in their decision

"Scotch ”– MERCHANDISE Marks Act, 1887 (50 & 51 Vict. c. 28), by bribery or bias or by something of that description. That was so even sf. 2, 5.

although they had exercised their discretion wrongly not only as regarded Special case stated by magistrates for the borough of Richmond. The the facts but also as regarded the law by erroneously interpreting the appellants, who are general provision merchants and sundriesmen, trading meaning of the section of the Act in question. The court gave no judg, as the London Supply Stores at Richmord and elsewhere, were charged ment on the points raised, but they were of opinion that no barm would by one Moore, an inspector of the Bacon Curers' Association of Great be done if the justices granted a supplementary licence to sell game to the Britain, with having sold him a ham with a falee trade description. On applicant on the understanding that proceedings were taken to raise the the day in qnestion the informant asked at the Richmond shop to be question of the validity of the licence so granted. supplied with an English ham. The assistant, who was standing outside DARLING, J., concurred. Application refused.-COC'NSEL, Courthopethe shop, pointed to some hams on a shelf inside and said " those are Scotch Munroe and Percival Clarke. SOLICITOR, J. J. Chapman. hams.” Moore agreed to take one which, at 8 d. per lb., came to 53. 5 d.

[Reported by ERSKINE REID, Barrister-at-Law.] Before the money had been paid in at the desk, Moore asked the assistant toʻput 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

Solicitors Cases. 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.

Court. 1st April. admitted having seen that notice. The justices convicted, and Coppen Bros, appealed.


OF COURT TO ORDER THE SOLICITOR TO PAY COMPLAINANT's Costs AND decision on the important question of whether the master was criminally THOSE OF THE INQUIRY-SOLICITORS Act, 1888, s. 13. liable for an unauthorized and false representation made by his servant, In this case the charge against the solicitor was that he falsely repre. considering it to be one that should be determioed by a specially-con- sented that he had been instructed by the complainant and other sharestituted court. On the other two questions raised they held that the holders to oppose a petition to wind up Thomas Edward Brinsmead & false description, being merely verbal, would not alone have come within Sons (Limited), and had instructed counsel to appear accordingly, the mischief of the Act, but that it did so come when the word “Scotch" whereby the complainant had suffered loss. The complainant, who bad was written on the bill. Toey intimated that proceedings might very applied for and been allotted four shares in the company, gave notice of well bave been brought in this case under the sale of Foods and Drugs a motion before the Chancery Division to have his name removed from the Act. It was not open for them to disturb the finding of the justices and list of shareholders and his money returned. Meanwhile a petition was to pay whether in their opinion the justices had come to a right decision filed to have the company wound up. This mo:ion stood over from time in holding that the applicant had not taken all reasonable precautions. to time and was eventually heard with the petition. The complainant On the 4th of April the que tion reserved by Wright and DARLING, JJ., appeared by his own solicitor and did not instruct the respondent to act for In this case for a consideration by a specially-constituted court-namely, bim, 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 sbareholders, warning

LAW SOCIETIES. them against supporting the petition and Eskivg them to fill up an enclosed form and stating that if they did so they would incur no

THE INCORPORATED LAW SOCIETY. responsibility or costs. The form rau as follows: "To the directors of

THE COMPANIES ACT, 1867-SECTION 25. Thomas Edward Brinsmead & Sons (Limited). I do not support the action taken or the petition presented by Mr. Walter Maskell.' Even

Report to the Council of Special Committee appointed on the 29th of tually an order was made to wind up the company, and the complainant's October, 1897: Adopted by the Council, the 17th December, 1897:motion to have his name removed from the list of shareholders was refused

The committee have considered the communication from members of the on the ground that he had, as a shareholder, appeared to oppose the society in South Wales, suggesting that the recent decision in the Kharaskpetition. The complainant had more than one interview with the homa case (1897, 2 Ch. 451) calls for Parliamentary intervention to remove solicitor who was acting as clerk to the solicitors of the company, doubts and to prevent injustice where subsidiary contracts have been filed but he was not aware that the solicitor was also, under the name of under Section 25 of the Companies Act, 1867. Before referring to the a firm, purporting to act for him among others until he was so

Kharaskhoma case it may be useful to mention the enactment on which the informed in May last by the official liquidator. Before the statutory decision depended and the criticisms which it has called forth. Section 25 committee a resolution of the company was produced to the effect of the Companies Act, 1867, provides that every share in any company shall that the shareholders who had signed the form sent to them should be be deemed and be taken to have been issued and to be held subject to the separately represented on the hearing of the petition. In consequence payment of the whole amount thereof in cash, unless the same shall have of this resolation the solicitor, in the name of the firm, appeared for been otherwise determined by a contract duly made in writing and filed with these shareholders and instructed counsel on their behalf. The committee the Registrar of Joint-Stock Companies at or before the issue of such shares. found that the complainant had signed the paper stating that he did not It may be supposed that the object of the section was to give notice to the support the petition; that the solicitor was authorized by the company to public of the fact where shares are not paid up in cash, and to secure dis. arrange that the shareholders who had so signed should be separately closure of the actual consideration other than cash. In the absence of such represented, though the document which they had signed did not notice credit might be given on the assumption that all the capital of the authorize such instructions; that the solicitor appeared and instructed company credited as paid up had been received in cash. The committee counsel under the name before referred to to oppose the petition without have caused search to be made, and they do not find in the procommunicating to the court that the firm consisted solely of himself, or ceedings of Parliament or in Hansard any mention whatever of section 25 the fact that he was but the managing clerk of the firm of solicitors then

or of the subject-matter of that section in the Parliamentary Debates in 1867, acting for the company, and they found the solicitor guilty of professional or in the Report of the Parliamentary Committee (dated the 28th of May, misconduct. Counsel for the solicitor urged that the alleged wrongful 1867), on which the Companies Act, 1867, was founded. It has been someconduct of the solicitor did not amount to such professional misconduct as

times stated that the section was introduced in consequence of a special to require the court to pass more than a nominal sentence upon him. At contract in a particular case where the consideration was of an exceptional the most it could but be said that the defendant bad been guilty of an

and problematical character. The justice and expediency of section 25 had irregularity. He had acted perfectly honestly, and had not sought any the Kharaskhoma decision.

been seriously called in question previously to the attention called to it by profit. The complainant had not proved any loss that actually occurred

A very strong departmental committee, of to bim from the solicitor appearing as he did. There was nothing which Lord Davey was chairman, was appointed by the Board of Trade in improper in a solicitor's clerk, who was himself a solicitor, acting on November, 1894, to consider amendments in the Limited Liability Acts. In behalf of certain shareholders in a matter in which his own principale their report, dated the 27th of June, 1895, the committee stated inter alia were retained. All that he had done was to convey to the court the that section 25 of the Companies Act, 1867, had given rise to a great deal of 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 alune had

on the other hand, it had not, it was believed, been found of great public found fault with what the defendant had done. It was impossible for him advantage. They added that the loose, inaccurate, and ungrammatical to have obtained from so many persons separate instructions. He asked language of the section seemed to indicate that it was passed hurriedly and their lordships to eay that justice would be met by some very lenient think the secticn could be amended with any advantage, and they thought

The committee reported that they did not treatment. Counsel for the complainant said the gist of the offence was that the defendant represented to the court, and thereby misled the it should be repealed. They recommended clauces for a return to the court into the belief, that he was retained by the complainant, which was

Registrar of Joint-Stock Companies of shares on allotment, stating, in the not the case. It was a fact that the official liquidator had held that by

case of shares payable otherwise than in cash, the extent to which they are reason of the course taken by the solicitor on behalf of the complainant, annual returns, and in every balance-sheet, cash shares should be distinguished

80 paid up, and the consideration. They also recommended that in the 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 from shares issued otherwise than for cash. The committee added that they his client a loss of £20 for calls, which sum did not include incidental did not think it necessary to recommend any further substitution for section 25 expenses he had been obliged to pay. He hoped that the court, in meting of the Act of 1867. It may be noted, in connection with the last- mentioned out what punishment they considered the defendant should receive, would recommendations, that the Act of 1862, section 25, already required parorder, inter alia, that he should re-imburse the complainant. [DAY, J.

ticulars in the annual summaries of amounts paid, or agreed to be considered We are not satisfied on the evidence that, but for the conduct of the as paid, on the shares of each member. The report from which the above defendant, the complainant would have succeeded in getting his name

statements are taken was signed by all the members of the committee --viz., removed from the list of contributories.] The conduct of the defendant Lord Davey (chairman), Mr. Justice Chitty, Mr. Justice (now Lord Justice) was clearly to the prejudice of the complainant, and had resulted in an

Vaughan Williams (subject to an addendum wbich did not mention section 25 actual monetary loss. Whatever that loss amounted to, that sum should of the Act of 1867), Sir William Houldsworth, Bart., M.P., Sir A. K. be repaid his client by the solicitor.

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 profeseional 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 bad at one time been 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.

It was a very

March, 1896, a similar section was contained repealing section 25 of the great impropriety for anyone to appear under an alias in a court of justice 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

Bil introduced by Lord Dudley in the session of 1897. Lord Dudley's Bill 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 contribu- The unqualified repeal thus proposel 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 in a manner unworthy of a gentleman and of a profession whose members had accrued until either a c:ll had been made or a list of contributories settled in properly found guilty of professionai misconduct. Acting as he had done preserves any right, privilege, obligation, or liability acquired, accrued, or were also members of the court, he had undoubtedly been guilty of professional misconduct. He thought it was not a case, however, in which winding-up proceedings, and that no order for payment in cash could be made they should either order his suspension from practice or direct his name to after a repeal of the section in any other case. The committee are of opinion be struck off the rolls. The justice of the case would be met by directing that any new legislation ought not to leave open any question in this respect the solicitor to bear all the costs which had been incurred by reason of the for future litigation, and for the reasons given later on in this report, they complaint having been brought against him, together with the costs of are of opinion that the repeal should hava a guarded retrospective operation. the Incorporated Law Society and those of the complainant.

The question in the case of The Kharaskhome Syndicate arose as follows. An Bruce, J., concurred. - Counsku, F. W. Hollams ; Cranstoun ; Norman agreement was made on the 17th of August, 1892, between the syndicate and a Craig.

Concessions Development Company, of which one condition was the issue to [R+ ported by ERSKINE Reid, Barrister-at-Law.]

the company of 163 preference shares of £10 each in the syndicate as fully SOLICITORS ORDERED TO BE STRUCK OFF THE ROLLS.

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 1 April--William LEONARD BUTLER (93, The Grove, Stratford, Essex). under the seals of the two companies reciting that by the agreement of the 4 April—John Hopkins (111, Finsbury-pavement, London).

17th of August it was agreed, for the considerations therein mentioned,


syndicate should allot 163 fully paid-up shares to be protected by a Division as a matter of course and without question against the penal registered agreement “ being this present agreement,” and it was witnessed (1) consequences of an inadvertent breach of the statute. In the Coolgardie that the syndicate should file this agreement, and (2) that the syndicate should case the whole agreement had been filed, but yet the statute allot the shares, which should be deemed for all purposes to bě fully paid-up broken because the company had an option to pay in cash, and the and be numbered as therein mentioned. The first point taken was that there determination to issue fully paid shares was not on the file, as required was no consideration ; but Mr. Justice Vaughan Williams held, on the by the strict reading of section 25, and the Court decided against the shareevidence, that there was a good and valuable consideration, and that he holders, notwithstanding the great hardship of the case.

In Ibbotson's case, ought to treat the transaction as an honest one, and one in which there was Lord Justice A. L. Smith said the point to be determined had only to be nothing that the parties would wish to conceal, and each of the judges in stated to show the unrighteous contention that the company could make the the Court of Appeal agreed in this part of his judgment. The second point shareholder pay up £40,000 in cash and keep his property, which had been was that the real contract was that of the 17th of August, which ought to handed over in 1872, without giving him the fully paid shares as agreed. have been filed, and that even if the contract of the 31st of August was The Lord Justice stated that throughout the parties had acted in perfect good the contract to be filed, the consideration ought to have been stated. Mr. faith ; and the Court of Appeal, confirming the previous judgment of Mr. Justice Vaughan Williams held, without laying down any general Justice Wright, dismissed the claim to the £40,000, and the Court refused to rule, that in the case before him the statute had been complied with, help the claimants at all with reference to an appeal to the House and he refused to make the order upon the gentlemen who took the of Lords. It may also be useful to refer to the case of Monnier shares as nominees of the Concessions Development Company to pay | (Veuve) et ses Fils and Bloomenthal. In that case the House of Lorc's the £1,630. The Court of Appeal (Lindley, Lopes, and Chitty, L.JJ) (Lords Halsbury, Herschell, Macnaghten, Morris, and Shand) in February, reversed Mr. Justice Vaughan Williams' judgment, and held that the con- 1897, overruled previous judgments of Lords Justices Lindley, Lopes, and sideration ought to have been stated in the subsidiary agreement, but they Rigby, and of Mr. Justice Vaughan Williams, who had all held that under declined to give any opinion as to the particularity with which the con section 25 of the Act of 1867 a shareholder was liable to pay £16,000 sideration was to be stated. It would seem to follow, from the reservation on shares given to him as fully paid up by the company as security for an at the end of the judgment in the Appeal Court, that in every case the advance of £1,600. It will be observed that section 25 prevailed in the decision will turn upon the particular circumstances—in other words, that a Court of the first instance and also in the Court of Appeal, while five judges great number of suits will become necessary to ascertain whether or not the in the House of Lords unanimously held that the company were estopped statute has been satisfied in each particular case. In the result, share- by their representation that the shares were fully paid up, although holders have to pay a second time the amount of the shares by reason of that representation was untrue in fact, having regard to the terms of a mistake or misconstruction placed upon section 25, although it was found section 25. Such cases, and there are doubtless many others, prove the need that the transaction was honest, the consideration good and valuable, and no for the prompt repeal of the section, and also for the limited retrospective concealment intended. is understood that an appeal to the House of Lords relief which the Bill proposes. They show that the Court grants without has been lodged against the decision in the Kharaskhoma case, and although, hesitation relief wherever it has the power, but that there are cases where ordinarily, legislation would await the final decision of the existing law, yet it has not the power. They also show the urgency of the subject, and that in the present case the committee think that there is no necessity to wait it should not be delayed for the other many and important reforms comprised for the decision of the House of Lords, because the recent case has revealed in Lord Dudley's Bill. a serious difficulty, which will remain, however the Kharaskhoma case may be decided ; inasmuch, as even if Mr. Justice Vaughan Williams' judgment

THE GENERAL COUNCIL OF THE BAR. should be restored under the particular circumstances of that case, still in vory numerous other cases it will be doubtful whether or not subsidiary

ANNUAL STATEMENT, 1897-98. contracts have sufficiently stated the consideration and the other terms The Law of Evidence (Criminal Cases) Bill, 1897.”—The Council were of the principal agreement. The committee have made inquiry of opinion that the principle that a prisoner should be competent to give as to the extent of the hardship which may arise from the require- evidence is, on the whole, a sound one, and should in the interests of ments of section 25 having been mieconstrued or overlooked during public justice be made of general application. In view, however, of the the thirty years wbich have elapsed since the Act of 1867 was passed. They difficulty which is frequently experienced by prosecuting counsel under are assured that subsidiary contracts have been filed and acted upon in a very existing Acts in judging as to the propriety of commentin g or not upon large number of cases, affecting probably many thousands of companies, and the prisoner's absence from the witness-box, and of the uncertainty as that enormous sums of money and property of great value may be involved to the proper practice which at present prevails the Council suggested in doubt by reason of the decision in the case in question, and that innocent that, in the event of this Bill becoming law, they should approach her persons, executors, or trustees may be exposed to claims or litigation, Majesty's judges and invite them to lay down some uniform rule of Transactions and titles may be rendered doubtful and lawsuits encouraged practice as to the propriety or otherwise of such comment. The Council as to the validity of past dealings extending back over many years in cases further desired to urge most strongly that a clause should be inserted in where the arrangements were conceived and carried out in perfect good this Bill embodying the principle contained in section 1 (d) of the similar faith, and could not in justice be set aside as to a very material part without Bill introduced in 1896 in the House of Lords. The section above invalidating the whole transaction, or giving to parties a right to be restored referred to is as follows: "A person called as a witness in pursuance as far as may be possible to their antecedent positions. The committee of this Act shall not be asked, and if asked, shall not be required to believe that in a large number of cases subsidiary contracts have been answer, any question tending to shew that any person charged has relied upon in honest transactions by shareholders who have accepted committed or been convicted of any offence other than that wherewith he fully paid-up shares in good faith, and in the belief that the shares would is then charged, or is of bad character, unless always be treated as fully paid, and that great hardship and injustice will (I ) The proof that he has committed or been convicted of such other fall on numbers of innocent persons if some relief is not provided. It offence is admissible evidence to shew that he is guilty of the offence appears that for many years after 1867 a practice prevailed, founded on the wherewith he is then charged ; or view that section 25 would be satisfied by the filing of a subsidiary contract (II.) The person charged has asked questions of the witnesses for the sealed by the company declaring that certain specified shares bad been prosecution with a view to establish his good character, or called witnesses issued and were to be treated as fully paid shares. This practice was to his good character, or otherwise has given evidence of good character; not confined to companies and their lay advisers and registration agents, but or was acted on extensively by legal advisers. The practice was recognised in "(III.) The person charged and called as a witness has given evidence text-books and collections of precedents, and it is believed that no doubt against any other person charged with the same offence," was entertained in the office of the Registrar of Joint-Stock Companies

The "County Courts (Right of Audience) Bill, 1897.”—This Bill was intended as to the sufficiency of such subsidiary contracts. The committee are

to amend the law relating to the right of audience of solicitors in county therefore of opinion that there is a very serious need for legislation to courts and consisted of the two following sections: 1. In section 72 of remove doubts and to prevent injustice, and they recommend that the County Courts Act, 1888, the expression " a solicitor being a solicitor legislative relief should be sought by a repeal of section 25 of the Act acting generally in the action or matter” shall include any solicitor who of 1867 and by a declaration that, as regards the past, whenever any is in the permanent and exclusive employment of the solicitor so acting, contract, or other document providing for or relating to the issue of and who is instructed to appear in the action or matter by such lastpaid-up or partly paid-up shares, in the capital of any company under the mentioned solicitor. 2. This Act may be cited as the County Courts Companies Act, 1862, has been filed with the Registrar of 'Joint-Stock (Right of Audience) Act, 1897. The Council reported as follows: "(1) Companies, with a view to complying, as regards such shares, with the That the public would gain no advantage by the proposed change. requirements of section 25 of the Companies Act, 1867, it shall be no (2) That the proposed change is wrong in principle, involving the objection to such contract or document, so far as regards the said section, representation of a solicitor by a solicitor in the county court. (3) That that it does not disclose or sufficiently disclose the consideration for the proposed change would materially prejudice thọ interests of the the issue of such sbares, or that it only contains a part of the contract junior bar. A matter which is aksuming great importance in view of the relating to the issue of such sbares, or that it does not in law constitute continuing extension of the jurisdiction of the county courts. (4! The such a contract in writing as the said section requires.

only argument in favour of the change appears to be the convenience of

firms of solicitors representing large corporate bodies." The views of the The following is a further report of the committee adopted by the Council, Council were brought to the notice of the Lord Chancellor and the noble the 25th of March, 1898 :– The urgent necessity for the reform proposed by this and learned lord who, on behalf of the Incorporated Law Society, bad Bill, and for the limited retrospective relief from suits and penalties which it introduced the Bill in the House of Lords, with the result that the Bill provides, is shown by fresh recurring cases before the Courts in which large was not further proceeded with. In November last a conference was sams of money have been claimed for innocent breaches of the statute. Three held at the offices of the Council between representatives of the Council such cases have come before the Courts within the last month – viz., Maynard's and of the Incorporated Law Society to discuss the principle of the case (25th of February), the Coolgardie case (9th of March), and Ibbotson's measure, but no agreement was then arrived at. The following Bill bas Sheffield Steel Works case (10th of March). In each case the documents filed at been introduced in the House of Commons during the present session. Somerset House gave honest notice of the arrangement for issue of fully The County Courts (Audience) Bill, 1898."--Memorandum.—The object paid shares. In Maynard's case, relief was granted by the Chancery of this Bill is to render operative section 72 of the County Courts Act,

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