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IX

OF

High Court-Chancery Division.

High Court-Queen's Bench Division. THE LAGUNAS NITRATE

CO. p.
THE LAGUNAS SYNDICATE.

PAYNTER v. WATSON. Div. Court. 9th May.
Romer, J. 1011 May.

LONDIN BUILDING ACT-NEW AND SOMEWHAT DIFFERENT DOMESTIC BUILD. COMPANY_VENDOR TO IN FIDUCIARY POSITION-DIRECTORS' LIABILITY

ING ERECTED IN PLACE or Old PREMISES—“DevIATE IN ANY RESPECT ". MISREPRESENTATIONS PROSPECTUS-CONTRACT, RESCISSION

GROUND TO BE COVERED DOES Nor Exceed AREA OCCUPIED BY OLD PREM DAMAGES.

ISES — Plans Must BE SENT IN-London BuilrisG Acr, 1894 (57 & 58

VICT, C CCXIII) ss. 41, 43, 145, 150. Tbis was an action against the defendant syndicate and its directors for

Special case stated by a metropolitan police magistrate upon a notice of the rescission of a contract made in June, 1894, for the purchase by the

an objection to an objection under the London Building Act, 1894, s. 43. company from the syndicate at a price of £850,000 of certain nitrate The facts were as follow : The appellant had served a building notice under grounds and works at Laguna', Chile, and for damages. The question section 145 on the district surveyor of the district of St. George's, Hanover. shortly was whether the description of the property in the contract and square North, and had annexed thereto the plans and sections of new the statements in the prospectus contained such misrepresentations as

domestic buildings which he proposed to erect on ground previously would support a case for rescissi in and damages, and after having occupied by housee. The plans shewed that the new buildings would voluminous evidence, the court found that of the numerous matters complained of two only were legitimate grounds for complaint-namely, the of the upper floors was such that a certain amount of the former

not cover any ground that was uncovered before, but the arrangement state of the water supply at the date of the contract and for some time existing air space would be occupied by the new buildings, which after, and the non-completion in some respects of one-half of the factory

were to be higher and to contain more cubic feet than the old. or “maquina" until some short time after the contract. The facts, so

The surveyor served notice of his objection to pass the plans under far as material, are sufficiently referred to in the judgment.

Eection 159 of the Act, and the matter came before the magi-trate, who ROMER, J., after referring to the fact that fraud was not alleged against found that the plans of the proposed new buildings deviated in certain any of the defendants, nor was ever intended to be alleged, and con respects from the plans of the old buildings, and he held that the word sidering at length the material circumstances, continued : I think it would “ deviate" in section 43 (2) applied not only to the area of ground not be fair or equitable to now decree rescission of the contract. I quite covered by the old buildings, but also to any structural alteration in the agree that if the company had satisfied me, on looking at all the circum- buildings in respect to their height and width and depth on the several stances, that it was entitled to ask for rescission, I should not have allowed floors, and he affirmed the objection to them given by the surveyor of any option to the syndicate of paying damages or making good its repre- the district, the present respondent, under section 150. The question sentations instead of rescission : see Rawlins v. Wickham (7 W. R. 145, for the decision of the court was whether the owner of premises had 3 De G. & J. 304) and the authorities there cited, in all of which it is to a right to rebuild them in a different manner to the old buildings be noted that nothing but rescission would have afforded complete or so long as the new buildings did not, in fact, cover more of the ground proper relief to the parties complaining. In the case now before me I than the old buildings did, without first obtaining the leave of the London think that justice will be done, and the company will obtain all the relief County Council. For the owner of the premises it was contended that it is entitled to against the syndicate, by directing, upon the alternative section 43 (2) had reference to the ground-plan only, and that so long as claim of the company for damages for breach of contract, an inquiry as to the new buildings occupied no more land than did the old he was free to what loss or damage the company has sustained by reason of the maquina rebuild a domestic building in such a way as he thought fit provided that not being in complete working order on the 30th of June, 1894. With he did not contravene any of the provisions as to height and the like in regard to the case put forward against the original directors of the section 47. For the respondent it was pointed out that Part V. of the company, it follows from what I have already said as to these directors Act, in which part this group of sections was to be found, was headed, not having been guilty of bad faith that the case against them must be "Open Spaces about Buildings, and Height of Buildings." By section 41 substantially based on negligence. Nothing that they have done was all new buildings were to leave air space from the ground upwards, and in beyond their powers as directors. The company said they were liable (1) many instances to rebuild on the old plan would be to evade this important for entering into such a contract without proper investigation, and (2) for provision of the Act. carrying it out and for paying the purchase-moneys with notice of the The Court (Wills and KENNEDY, JJ.) dismissed the appeal, and defects in the property. Now, directors are not liable when acting intra supported the decision of the magistrate. The cardinal object of the Act vires and in good faith for loss accruing to their property by their acts was the limitation of private rights over property for the general good. unless arising from what has been called “ gross negligence on their If the building owner desired to erect his new buildings on a different part. Exception has often been taken, and with good cause, to that plan to that upon which the old building was put up, ha must submit his phrase. But it has been frequently used, and in other cases besides those complete set of plans for the approval of the county council. Perhaps if concerning directors, and has its use, inasmuch as there is a practical his new building was identical with the old, then he might get the difference between the degrees of negligence for which different classes protection of section 41 (1), if not, he must submit plans for the of persons are responsible (Giblin v. McMullen, L. R. 2 P. C. 317, per Lord discretionary sanction of the county council.-COUNSEL, Macmorran, Q.C., Chelmsford, pp. 336 and 337). A director is no doubt liable for acts done and Poyser ; Horace Avory and Daldy. Solicitors, Sandlands og Co.; by him which he knows to be ultra vires the company and result in loss Blaxland. to the company, nor can be with impunity pay away without inquiry the

(Reported by EBSKINE REID, Barrister-at-Law.] company's moneys if it should subsequently turn out that they have been paid for a purpose to which they could not lawfully be applied, but MERSEY DOCKS AND HARBOUR BOARD v. TWIGGE AND BUTTERS. imprudence or want of judgment would nct by iteelf make a director

Div. Court. 29th April. liable: Marzetti's case (28 W. R. 541, per the present Lord Esher, p. 543). With reference to the position of the directors in the present case as being DERBEY Dock Acts-Dock Rates on Goods-Goods IMPORTED COASTWISE also interested as directors of the syndicate, the observations of Lord

-THANSHIPPED AT A PORT IN ENGLAND-MERSEY Dock Acts CONSOLIDASelborne in Hirsche v. Sims (L. R. 1894 A. C. 654, p. 660; 43 W. R. Dig.

TION ACT, 1858 (21 & 22 VICT. C. XCII.). 36) may be referred to, where be says: “If the defendants truly and In this case the question was whether under the Mersey Dock Acts reasonably believed at the time that what they did was to the interest of Consolidation Act, 1858 (21 & 22 Vict. c. xcii.), s. 234, certain goods the company they are not chargeable with dolus or breach of trust merely imported into Liverpool from Singapore, but transhipped at London, because in promoting the interests of the company they were also pro were liable to foreign dock rates and town dues, or whether they were moting their own.” Now, in the present case, ought the directors to be liable to town dues only in accordance with the resolutions of the board held liable for breach of duty under the circumstances above stated now in force in respect of goods imported coastwise. Section 234 provides, because they entered into the contract and gave the syndicate time to so far as relates to this case, as follows: "All goods imported from parts remedy the defects, and because, notwithstanding the delay in the remedy | beyond the seas or coastwise into the port of Liverpool, and brought into and pending the remedy, they proceeded with the contract and obtained the docks, or land at, or deposited upon, or carried over any quay, &c., the conveyance and paid the purchase-money? I think not. Although belonging to the board shall be liable to the rates specified they did not call the attention of the shareholders to the defects and in Schedule hereunto annexed.

By Schedule C the rates on delay, I see no sufficient evidence to justify me in coming to the conclu- tapioca imported from parts beyond the seas is declared to be 3d. per sion that they did not truly and reasonably believe that what they were cwt. and coastwise 1}. Since the Act was passed the Mersey Docks doing was for the interest of the company, though they may have been | and Harbour Board, by resolution, remitted the dock rates on goods imprudent in some respects. Bearing in mind the knowledge of the imported coastwise. A consignment of 306 bags of tapioca was shipped by property they had, I do not see why they were bound to make further the consignors at Singapore on board the steamship Agamemnon, belonging investigations before sealing the contract on behalf of the company ; to a Dutch company registered at Amsterdam, for carriage to Liverpool and on this part of the case I may, refer to Overend, Gurney, under the terms of a bill of lading which contained a power to tranship at & Co. v. Gibb (L. R. 5 H. L. 480), and in considering the conduct London. The Dutch company and the Ocean Steamship Co., an English of the directors the position of affairs at that time has to be company, worked in conjunction, and the profits of the Dutch company regarded. His lordship dealt with this, and concluded that there had went to the shareholders of the English company. The Agamemnon, after been no negligence of a kind for which directors could be held liable by touching at Amsterdam, proceeded to London, where she discharged all action to their company.--Counsel, Swinfen Eady, Q.C., A. T. Lawrence, her inward cargo, including the tapioca. Entry was made of all her cargo Q.C., Kirby, and Peterson ; Cozens-Hardy. Q.C., Carson, Q.C., Macnaghten carried to London, and the usual London dues paid on it. For the purQ.C., and Russell Clarke ; Crackanthorpe, Q.C., Farwell, Q C., and 0. Leigh poses of the Customs Act the ship and cargo were treated as arriving from Clare. SOLICITORS, Slaughter of May ; Budd, Johnsons, & Jecks; Blunt & beyond the seas. The tapioca was then shipped on board The Sarpedon, Co.

belonging to the Ocean Steamship Co. The Sarpedon's voyage was to [Reported by J. F. WALEY, Barrister-at-Law.]

Liverpool and thence to China. The Liverpool cargo, including the

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tapioca, was carried under a “transire" from the Customs, a document into voluntary liquidation in January, 1898. This was a summons by the which is only issued in respect of cargo carried (80 far as Customs are liquidator of the African Gold Co. in the winding-up of the Auriferous concerned) coastwise. At Liverpool the tapioca, with the other cargo from Co. to raise the question whether he was entitled to set-off the amount due London, consigned to Liverpcol was discharged and was treated for from the Auriferous Co. to the African Gold Co. against the calls due Customs purposes as carried coastwise, and no examination and no entries from the latter to the former company. were paseed in respect of it. The defendants were the purchasers of 150 bags of the tapioca, and these were delivered to them from the plaintiffs' the sum due für calls. If the African Gold Co. had not been in liquidation it

WRIGHT, J., held, that the amount of the debt could not be set off against docks. The plaintiffs' claim was for £1 5s., being the amount of the could not have set off its claim for money lent against its liability for the foreign dock dues at 2d. per cwt., less credit for coastwiee town dues.

amount of the calls. This was decided before the Judicature Act, 1875, It was contended on behalf of the defendants that the tapioca was imported coastwise, and that for the purpose of ascertaining the meaning 1 Ch. 528), Black f Co.'s case (21 W. R. 68, L. R. 8 Ch. 254, 261), and

in Re Overend, Gurney, & Co. (Limited), Grissell's case (14 W. R. 1015, L. R. of the expression "coastwise" in section 234 it was necessary to refer to since the Judicature Act it had been decided that the same rule held good the Customs Laws Consolidation Act, 1876 (39 & 40 Vict. c. 36), under whether the call was made before or after the liquidation had commenced, which the goods in question ought to be treated as imported coastwise ; and whether the liquidation was compulsory or voluntary: Re Whitehouse Mersey Docks and Harbour Board v. Henderson (13 App. Cas. 600) was cited . Co. (27 W. R. 181, 9 Ch. D. 595); the ground of the rule being that in support of this proposition. The following sections of the Customs all contributions from shareholders are by the Companies Acts made Laws Consolidation Act, 1876, were referred to: Sections 40, 41, 64, 101, applicable for the payment of the company's creditors pari passu, and that 140, and 145.

a person who is a creditor and a contributory cannot b; allowed to do Mathew, J., in delivering judgment, said that section 234 of the Mersey

what amounts to paying his

claim in full out of Dock Acts Consolidation Act, 1858, provided that all goods imported into fund which ought to be distributed rateably : Black 8 Co.'s the port of Liverpool from ports beyond the seas should be liable to the

case ; Re Pyle Works (38 W. R. 282, 44 Ch. D. 534, 537, dock rates mentioned in Schedule C. The section further provided that

585). Whether the same rule would apply if the liquidator goods imported coastwise should pay certain other dock rates. When the plain language of section 234 was looked at, nothing would seem to be sought to enforce the call by action seemed never to have been decided,

but the call though made before the liquidation and therefore at one time clearer than tbat, under the circumstances of this case, the goods were imported into Liverpool from a port beyond the seas. It was caid, order as a contribution to be made in the winding-up for pari passu

a debt to the company was also enforceable by the liquidator by balance however, on behalf of the defendants, that the section had a subtle and distribution, and in this eenee was not a subject of set-off in the case of a concealed meaning, and that it must be construed by reference to the limited company. In the present case the African Gold Co. was also in statute. It was said that the effect of that statute was to deprive the liquidation, and the question arose as to the effect of that. If the African plaintiffs of the dues payable in respect of goods imported from beyond Co. must have enforced his claim in bankruptcy and according to the bank

Gold Co. had been a bankrupt individual the liquidator of the Auriferous the seas, which they would otherwise have been entitled to under the Act ruptcy law, which even before the Judicature Act would have allowed the of 1858. That would be a most extraordinary result, because the Customs set-off : Re Duckworth, Ex parte Cooper (15 W. R. 367, L. R. 2 Ch. 578); Re Act had nothing to do with these dock dues, which were payable for

Universal Banking Corporation, Ex parte Strang (18 W. R. 475, L. R. 5 Oh. 492). harbour and dock services rendered by the plaintiffs. The defendants' case was put in this way. The Customs Act, it was said, must be taken to tion and the particular ground on which Re Duckworth was decided was not

Here the creditor was not a bankrupt individual but a company in liquidacontain a provision that goods transhipped at London were to be deemed applicable. The liquidator of the Auriferous Co. had not to proceed in to be imported into London, and then carried coastwise to Liverpool There was no express provision in the Customs Act to that effect, or in the the benefit of the Companies Act as there administered. The question

the Bankruptcy Court but in the Chancery Division, and was entitled to regulations made under it, but it was said such a provision ought to be implied from the course of business. The evidence showed that the the law of the winding-up of companies the bankruptcy rules as to set

therefore was, Had section 10 of the Judicature Act, 1875, introduced into course of business of the Customs authorities was that when a veseel off ? This question was decided in the negative by Gill's case (27 W. R. arrived in London it was ascertained what dutiable and what non-dutiable 934, 12 Ch. D. 775), which was cited with approval in the Court of Appeal goods were on board, and when that had been done the Customs had no

in Re Washington Diamond Co. (41 W. R. 681 ; 1893, 3 Ch. 95), and the liquid. further interest in non-dutiable goods. The tapioca in question, which was non-dutiable after transhipment, was not placed on a coasting vessel, but African Gold Co. for the whole amount still due on the shares,

ator of the Auriferous Co. was entitled to prove in the winding-up of the on The Sarpedon, which, after discharging a part of her cargo at Liverpool, leaving the liquidator of the African Gold Co. to his right of proceeded on a foreign voyage, so that the action of the Customs authorities proof in the winding-up of the Auriferous Co. It was

true in sending the tapioca under a " transire,” which was only issued in respect that in Gill's case the creditor contributory was not & company of goods carried coastwise, was irregular. When the goods were dutiable in liquidation, but that circumstance did not prevent it from being in point they were treated after transhipment in a different manner. They were forwarded under a bond. In other words, the Customs authorities kept Judicature Act into the law of companies so as to allow a set-off against

as a decision that the bankruptcy law of set-off was not imported by the their hands on them till they reached their destination, where the Customs calle, though for other purposes there may be the same right as in bankwere paid and the record made. Therefore in the case of the tranruptey to a set-off of cross-claims as existing at the time of bankruptcy. shipment of dutiable goods, no such implication as was contended for by Re Duckworth had therefore no application. This view seemed to be the defendants could arise. But if the contention of the defendants consistent with all the decisions on section 101 of the Companies Act, prevailed, it would result that there would be one set of dock dues payablo 1862, since the Judicature Act, though there was some dificulty in to the plaintiffs in respect of dutiable goods and another set of dues in reconciling Re Duckworth, with what Lord Selborne said in Black | Co.'s case respect of non-dutiable goods. Under these circumstances, there did not with reference to a "statutory trustee,” yet the learned judge did not appear to be any reason for implying any such regulation in construing think that the House of Lords would 'now overrule what was said in Re the Mersey Docks Act of 1858. The extremely elender foundation ou Duckworth.-Counsel, George R. Northcote; Howard Wright. SOLICITORS, which the defendants' argument was based was that, in the case of Watts 5 Habershon ; Freshfields f Williams. Henderson v. Mersey Docks and Harbour Board (13 App. Cas. 600), the late Master of the Rolls and the House of Lords had had recourse to the

[Reported by C. W. Mead, Barrister-at-Law.] language of the Customs Act in order to ascertain the meaning of the words * trading inwards" in a section of the Mersey Docks Act; but in that case the Customs Act was merely referred to as a dictionary might be referred to for the purpose of ascertaining the meaning of an ambiguous

NEW ORDERS, &c. word. Because that had been done, it was now argued in this case that, whenever a question arose as to the meaning or construction of the Mersey

TRANSFER OF ACTIONS, Docks Act, that question must be decided by referring to the Customs

ORDER OF Court. Act. The argument of the defendants was, in his lordehip's opinion, quite untenable. There would, therefore, be judgment for the plaintiffs

Thursday, the 5th day of May, 1898. for the amount claimed, with costs on the High Court scale.- COUNSEL,

Whereas, from the present state of the businoss before Mr. Justice Joseph Walton, Q.C., Cerver, Q.C., and T. G. Horridge; Boyd, Q.O., and North, Mr. Justice Stirling, Mr. Justice Romer, and Mr. Justice Byrne Scrutton. SOLICITORS, Rowcliffe, Rawle, f Co., for 4. T. Squarey, Liver- respectively, it is expedient that a portion of the Causes assigned to Mr. pool; Stokes f Stokes, for Thornely g. Cameron, Liverpool.

Justice North, Mr. Justice Stirling, and Mr. Justice Romer, should for [Reported by C. G. WILBRAHAM, Barrister-at-Law.)

the purpose only of Hearing or of Trial be transferred to Mr. Justice Byrne; Now I, the Right Honourable Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, do hereby Order that the

several Causes and Matters set forth in the Schedules hereto, be accordWinding-up Cases.

ingly transferred from the said Mr. Justice North, Mr. Justice Stirling,

and Mr. Justice Romer to Mr. Justice Byrne for the purpose only of HearRe AURIFEROUS PROPERTIES (LIM.). Wright, J. 4th May. ing or of Trial, and be marked in the Cauee Books accordingly. And this COMPANY-WINDING-UP-CREDITOR AND CONTRIBUTORY-UNPAID CALLS OF

Order is to be drawn up by the Registrar and set up in the several Offices COMPANY-Debt or COMPANY-RIGHT TO SET-OFF.

of the Chancery Division of the High Court of Justice. The African Gold Properties (Limited) were holders of shares in the

FIRST SCHEDULE. Auriferous Properties (Limited). In January and June, 1896, two calls were

From Mr. Justice NORTII, made on these shares amounting to nearly £1,500, but these calls were

1897. not paid. In January, 1896, the Auriferous Co. became indebted to the African Gold Co. to the extent of over £2,000. A compuleory winding-up Pneumatic Rubber Stamp Co, ld v Lindner 1896 P 2,354 July order was made against the Auriferous Co. The African Gold Co. went Foster v Wagstaffe 1897 F 744 July 10

Aug 13

In re Ehrhardt's Patent, No 3,116 of 1891 petn entered in Witness List Sulley v Sulley 1897 S 1,357 Aug 12
July 10

Bates v Chignell 1897 B 1,981 Sept 7
Lord Iveagh v Davies 1897 I 487 July 13

Priestley v Oxley 1897 P 752 Oct 4 Massingberd v Massingberd 1897 M 777 July 17

Hobbs v Mills 1897 H 1,963 Oct 4 Spurgeon v Keddie 1897 S 1,038 July 21

Mayor, &c, of Newcastle-on-Tyne v Houseman 1897 N 689 Oct 25 Holt v May 1897 H 1,949 July 21

Same v Francis 1897 N690 Oct 25 Gregory v Freame 1897 G 857 July 22

1898. Lee Conservancy Board v London Agency ld 1897 L 262 July 24 Cook v Suart 1897 C 500 July 24

Same v Jackson 1898 N 158 April 13 Cook v Suart 1897 C 501 July 24

Same v Coote 1898 N 159 April 13 F C Calvert & Co v D Calvert & Co 1897 C1,566 July 26

Cheasley v Cheston 1897 C1,152 Oct 27 Kilner v Taylor 1897 K 141 Aug 4

National Provincial Bank of England v Tommy 1897 N 812 Nov 2 Trustees, Executor3, & Securities Insurance Corpn, id v Deutsche Bank In re Mallam Mallam v Mallam 1897 M 1,219 Nov 5 1895 T 796 Aug 5

Roe v Roe 1896 R2,094 Nov 11 Woodward v Darby & Cumberland 1897 W 1,828 Aug 5

Pickstock v Earle 1897 P 1,137 Nov 15 Moran v Raby 1897 M 2,437 Aug 5

Browne v Calnan 1897 B 2,795 Nov 19 Boileau v Heath 1897 B 2,027 Aug 6

Becher v Davey 1897 B 1,915 Nov 24 Octopus ld v Hardinz & Co 1897 0 259 Aug 7

Franklin v Lee 1897 F 186 Nov 29 Bilton v Woodbridge 1897 B 522_ Aug 10

In re Hale Lilley v Foad adjd sumns Nov 30 Bovril ld v Bouillon Fleet ld 1897 B 2,255 Aug 11

Metkie v Curd 1896 M 2,542 Dec 2 Bovril ld v MacSymon's Stores ld 1897 B 2,258 Aug 11

Harvey v Greig 1897 H 3,332 Dec 10 Same v McBirnie 1897 B 2,262 Aug 11

Evelyn v Howard 1897 E 1,211 Nov 10 Same v Evans 1897 B 2,266 Aug 11

1898. Same v Shaw 1897 B 2,267 Aug 11

In re Cerckel's Patent, 1896 No 15,493 and Patents, &c, Acts petn Same v J P Evans & Co 1897 B 2,269 Aug 11

entered in witness list Feb 5 Pierce v Weston 1896 P 2,082 Aug 11

Fabriques de Produits Chimiques de Thann & de Mulhouse v Lafitte & In re Buckett Aldridge v Buckett 1897 A 559 Aug 11

Co 1897 F 1,523 Feb 10 Simmance v W Sugg & Co ld 1897 S 760 Aug 12

In re Sinnette's Patent, No 1,670 of 1888 petn entered in witness list Darby v London Agency ld 1896 D 1,827 Aug 13

Feb 12 Delannoy v The Hostabuch Copper Syndicate ld 1897 D 579

HALSBURY, C. Edison United Phonograph Corpn ld v Roberts 1893 E 397 Aug 14 Keates v Keates 1897 K 208 Aug 14

RULES PUBLICATION ACT, 1893.
Reynolds v Biltcliffe 1897 R 839 Aug 20

THE PRIZE COURTS ACT, 1894.
Duhamel et Cie v Cunningham Egg Fruit Co 1897 D 290 Aug 24
Ellis v Churley 1897 E 65 Sept 10

Notice is hereby given that, after the expiration of forty days from the Banister v Landon 1897 B 2,202 Oct 9

date hereof (May 10) it is proposed to submit to her Majesty in Council, Holford v Blaiberg 1897 H 2,983 Oct 28

in pursuance of the above-mentioned Act, the draft of an order in Council Davis v Wbite Cliffs Opal Mines ld 1897 D 397 Oct 28

making Rules of Court touching the practice in prize proceedings to be White Cliffs Opal Mines ld v Davis 1897 W 869 Nov 5

observed in Vice-Admiralty Courts and Colonial Courts authorized to act Inskip v Horwood 1897 I 1,314 Nov 3

as Prize Courts. And notice is hereby further given that, in accordance

with the provisions of the Rules Publication Act, 1893, copies of the proSECOND SCHEDULE.

posed draft Order in Council can be obtained by any public body, within

forty days of the date of this notice, at the Privy Council Office, From Mr. Justice Stirling.

Whitehall.
Coates v Danes 1897 C 793 July 19
Halford v Lewinsohn 1897 H 855 July 21
Fanning v Fennessy 1897_F 491 July 23
Warren v Invicta Patent Brick Manufacturing Co ld 1896 W 2,806

LAW SOCIETIES.
July 24

INCORPORATED LAW SOCIETY.
Lennox v Peters 1897 L 1,344 July 27
McLeod v Power 1896 M 1,837 July 28

SELECT COMMITTEE ON MONEY LENDING, 1898.
Harward v Australian South African Gold Exploration Co ld 1897 H

Report of special committee of the Council of the Incorporated Law 74 July 29

Society, as adopted by the Council 22nd of April, 1898 :
Renouf v Spalding & Bros 1896 R 1,921 July 31
Williams v Wheeler 1897 W 1,371 Aug 4

The committee have considered the communication (referred to them by

the Council on the 25th of March), from the Select Committee of the House Attorney-General v Radstock Urban District Council 1897 A 627 of Commons on Money Lending, inquiring if the Council had any sugAug 5

gestions to offer as to remedies, or alterations to recommend in the Barton v Beal 1897 B 409 Aug 9

present state of the law with regard to money lending. The committee Vilanova y Domenech v The Olot & Gerona Ry Co ld 1896 D 2,144 find that in the evidence taken by the Select Committee the following, Aug 9

among other suggestions, have been made : (1) That professional money Armstrong v Croft 1897 A 104 Aug 9

lenders should be registered. (2) That professional money lenders should In re Willcox Armitage v Pauling 1897 W 1,792 Aug 9

be compelled to take out a licence to be granted to a person only in his Mascias v Anglo-American Construction Co, ld 1893 M2,441 Aug 11

(3) That the minimum limit of bills of sale should be raised West v Harper 1897 W 872 Aug 12

from £30 to £50; in other words, that bills of sale for less than £50 should Helios Electricitas Actien Gesellschaft v Braulik 1897 H 1,345 Aug 12 be illegal. (4) That the provision in the Bills of Sale Act, 1878 (repealed Lord Hastings v North-Eastern Ry Co 1897 H 1,564 Aug 14

by the Amendment Act, 1882, as regards bills of sale by way of security), Clerical, Medical, and General Life Asece Soc v Rogers 1897 C 1,053 that bills of sale should be attested by a solicitor, and state that the Aug 14

document had been previously explained by him, should be re-enacted ; Harper & Battcock y Lewis 1897 H 2,035 Aug 24

or, in substitution, that attestation should be before a registrar of a county Horton v Redfern 1897 H 2,631 Aug 28

court. (5) That it should be made a criminal offence for professional Paynter v Galindez Bros 1897 P 397 Oct 20

money lenders to issue falee and misleading advertisements.

(6) That Howson v Dunlop Pneumatic Tyre Co, ld 1897 H 3,758 Oct 23 power shouid be given to the court to fix a fair rate of interest in all cases Hoskin v J Shoolbred & Co 1897 H 1,276 Oct 25

where there is anything unfair or oppressive in the bargain. (7) That the Shurey v Kinnis & Co 1897 S 1,063 Oct 26

practice of interference with contracts by professional money lenders Allen v Pyatt & Co 1897 A 522 Oct 30

should be assimilated to that which is adopted by courts of equity Huntly-Gordon v Hall 1896 H 2,964 Nov 1

in eetting aside “unconscionable bargains made with expectant Bergheim v Bryan 1897 B 2,080 Nov 1

heirs and reversioners.” (8) That further discretionary powers Jones v Koral . 1897 J 514 Nov 8

should be given to county court judges. The committee conGompertz (trading, &c) v The Credit Reform Assoc 1896 W 3,885 sider that their remarks and suggestions may conveniently follow Nov 8

the order of these suggestions. While recognizing the advantages THIRD SCHEDULE.

which would accrue from the check which proper registration and From Mr. Justice ROMER.

licensing would put upon professional money lenders, the committee

consider that such a measure is not practicable. They see difficulty in Barnes y de Montmort 1896 B 2,846 July 29

giving a legal definition of a professional money lender" so as to confine In re Chard, Chard v Chard 1897 C 565 Aug 4

it to the class concerned with the mischief to be dealt with, and to avoid In re the Marie Rose Gold Mining Co, ld, & Co's Acts (ex parte Rawson) bringing in bankers, financial and trust companies and firms, discount motion entered in witness list Aug 4

houses, stockbrokers, solicitors, insurance companies, and others, who In re the Same (ex parte Brand) motion entered in witness list Aug 4 lend money with or without security. They also agree in the opinion In re the Sharkington Combined Pick and Shovel Syndicate, id motion which has been expressed that professional money lenders, if registered entered in witness list Aug 6

and licensed, would make use of that fact in pushing their trade, and Anderson v Anderson 1896 A 1,564 Aug 10

thus obtain additional power over the unwary. The committee also think Jackson v Horner 1897 J 863 Aug 10

that if registration were practicable, the registers would not in practice be

own name.

resorted to by the classes for whose protection they would be intended. hesitate in several actions in the King's Bench to grant relief in cases of Moreover, to be of any use, the entries on the register must be renewed at bard and unconscionable bargains, and Lord Chancellor Hardwicke, in frequent intervals, and a system of supervision would be needed to ensure Chesterfield v. Jansen, stated that there were instances where the common compliance with the law and to prevent its becoming a dead letter. The law had given relief, giving as an example a case before Hyde, J., in 1663. proposal that professional money lenders should be compelled to trade In another case, Thornbury v. Whitacre, & court of law stated that in the only in their own names, also involves the practical difficulty of defining event of the case going to trial the jury would consider the folly of the professional money lenders in such a way as to include only the so-called defendant and give only reasonable damages. There are, in fact, professional money lender and to exclude bankers and others who lend numerous cases in the reports from the leading case of Chesterfield v. money. There are many firms and companies who trade under names Jansen, decided in 1750, down to the present time, to prove that relief which do not indicate the individuals who actually carry on the business, may be given in all cases where, from the circumstances or conditions of and it would seriously interfere with business if this long-established the parties contracting, or from weakness on one side or usury on the custom were prohibited. The committee approve of the proposal that the other, or extortion or advantage taken of that weakness, the presumpminimum limit of bills of sale should be raised from £30 to £50, and that tion of fraud arises, and that fraud in this sense does not mean deceit or bills of eale for less than £50 should not be allowed. In some cases it may circumvention, but it means an unconscientious use of the power arising no doubt happen that a bill of sale is the only security which borrowers out of these considerations and conditions. The late Denman, J., in in great need can offer, and the restriction may shut out all chance of Neville v. Snelling (15 Oh. D. 679), said that the doctrine might be applied help. But those cases must be comparatively few, while the cases of to all cases of undue advantage taken by money lenders. At the same oppression by the means of small bills of sale are numerous. The com time a mere high rate of interest will not be conclusive, because, as was mittee are of opinion that the rate of interest on bills of sale might be pointed out by Byles, J., a merchant a manufacturer under pressing limited to 15 per cent. per annum on bills of sale to secure £100 and under, necessities may require an immediate advance, and the security he can and 10 per cent. per annum on bills of sale to secure over £100, following offer may be such that some additional interest in the nature of a premium the principle of the Pawnbrokers Acts. The committee are also in favour of insurance against the risk may be required, or the demand for temof the re-enactment of the provision in the Bills of Sale Act, 1878, that porary financial accommodation may be so great that the supply may not bills of sale should be attested by a solicitor, and that the attestation be commensurate with the demand. In such cases it may be absolutely should state that the effect had been explained to the grantor by the essential in the manufacturer's or merchant's interest, and for the benefit attesting solicitor. It is considered that this safeguard constitutes a of the whole community, that lenders should be at liberty to advance valuable check upon usurious bills of sale, and tends to ensure that money at high rates of interest. The county courts having only a limited illiterate borrowers do not sign documents without proper knowledge of equitable jurisdiction have not power to give effect to the equitable their contents. With deference to the weighty opinions expressed before doctrine of relief against unconscionable bargains. Under the County the select committee, the committee consider that the suggestion to make Courts Act, 1888, s. 67, the jurisdiction in equity is limited to eight it criminal for professional money lenders to issue false and misleading classes of actions or watters, and no action not coming within those advertisements and circulars is not capable of being carried out in practice, classes can be safely commenced in a county court. Actions for relief much as they would wish to see some remedy of this character put in against fraud or mistake are included, but they do not, it is conceived, force to check the evils of such advertisements and circulare. Suggestions embrace cases in which the presumption of fraud arises from the circumof this kind would meet with universal approval provided they could be made stances of the parties. It might be convenient that any new Act of operative and be restricted to the classes of cases intended; but it seems Parliament should contain a preamble shewing that it is directed against to the committee that any proposals dealing with money lending adver- the evils attendant upon the system of money lending by professional tisements as such must of necessity go beyond the limits intended, and money lenders at high rates of interest, or under oppressive conditions might produce disastrous results. The committee consider that the chief as to repayment, and especially in cases where misleading advertisements remedy for the evils under consideration must be sought in the direction or circulars have been resorted to, or where young or aged or indicated in the proposals that unjust and oppressive transactions should ignorant persons or married women have been concerned, or persons be revised by the courts of law, including county courts, and, in proper under fear of publicity to themselves or their friends, or where the business cases, a fair rate of interest fixed. It is no doubt a serious thing to is carried on under false or misleading names. The object of such a premeddle with freedom of contract, but the Legislature has seen fit to do so amble (and there are many precedents in forcible language in the old on more than one occasion, and to prohibit certain classes from contract statutes against usury) would be to indicate the class of cases in which ing themselves out of protective statutes. It would be still more serious the court is expected to interfere, and not to specify or limit the circumto interfere with banking and mercantile business or to place any obstacle stances which would justify interference. The committee think that it in the way of ordinary commercial transactions. But the remedy of would not be expedient to attempt in any such act of Parliament to granting relief by the court against unconscionable bargains does not define the cases which should constitute unfair dealing, or that legislation necessarily involve interference with freedom of contract. It is more should be limited to lending money at high rates of interest. Such transanalogous to cases where contracts are avoided as being against public actions may be carried on under many specious disguises, such as sale and policy, and it is assumed that the suggested legislation need not forbid re-purchase of goods, or hire and purchase of goods, or the loan of procontracting out, because the remedy will, of necessity, override any perty, or they may take the form of mortgage transactions, or annuities contract. In all ages and in all countries endeavours have been made by on lives or other contingencies. What seems desirable is that it should legislation to deal with the evils of money lending at high rates of be recognized that in all cases the court, of its own initiative, and with. interest, but with small success, as will be seen on reference to the useful out any request on the part of a defendant, should have power at any book on “The Law of Unconecionable Bargains," by Bellot & Willis, ( time to set aside or rectify any dealing or bargain where the parties have recently published. An interesting history of the efforts to repress usury not been on equal terms, and where any advantage has been taken by and hard dealing, and of the shifts of money lenders is there given, one party against the other, either from necessity, or pressure, or ignor. together with the reasons which led to the total abolition of the Usury ance, and to open up any accounts or transactions purporting to have Acts in 1854. The extreme difficulty of dealing with the evil by repressive been closed under such conditions, and to go behind and set aside any legislation is there abundantly illustrated. But, even while the usury law judgment of the court, and to order repayment of any amounts already existed, extensive classes of transactions were always free from restriction. paid in excess of the amount held by the court to be reasonable. The Among these may be mentioned contracts in a foreign country or loans committee think that any proposed legislation might also enable the to be repaid abroad, and cases where the right to recover the money county court to restrain a grantee under a bill of sale from removing or lent is put in jeopardy. As instances of the latter class may be mentioned selling chattels or otherwise as provided by the Bills of Sale Act, 1882, 8. sums lent on bottomry or at respondentia, and also annuities for lives or 7. And that in money lending transactions the lender should be bound other contingencies. Moreover, in ordinary banking and mercantile to furnish at the time to the borrower and his surities, if any, copies of transactions, commission in addition to interest is frequently charged, every document signed by him or them, and that any breach of this duty and when money is dear the commission may be at a high rate. Legisla- should be taken into consideration by the urt upon any question of tion would be disastrons which interfered with such transactions, especially unfair dealing. It is also thought that it should be a matter for conin times of panic or financial embarrassment. Cases, too, not unfre- sideration in the drafting of any Bill dealing with the money lending quently occur in which money is lent at great risk, and consequently at question whether transactions of the nature of renewals of loans should be large interest, where no unfair advantage is taken by the lender. For valid between judgment debtor and judgment creditor so long as the these reasons the committee are of opinion that restrictive legislation judgment remains unsatisfied. And further, that the powers of the attempting to re-introduce to any extent the laws against usury, or fixing county court to order payment by instalments should be extended to a maximum rate of interest in the case of professional money lenders, is judgments for sums exceeding £20, and that the power given by section undesirable, except in the cases of bills of sale. In their opinion legisla-153 of the County Courts Act, 1888, in cases such as sickness should be tion in the direction of rectifying unconscionable bargaius is more likely extended to all cases of money lending, if for any reason the defendant to be attended with success in remedying the undoubted evils attendant is unable to discharge the debt or damages. There is another point to upon the present system of money lending by professional money lenders. which the committee attach especial importance, and that is that the proThe committee suggest that the legislation might take the form of a de cess of obtaining such relief should be easy, inexpensive, and not claration that the law against unfair dealings might be enforced by order of accompanied with unnecessary publicity. It is a matter of common any judge or master of the High Court, or of any judge or registrar of experience that the business of professional money lenders depends to a the county courts, declaring the bargain unfair, or the rate of interest large extent on the fact that needy borrowers cannot, or will not, face excessive, and substituting a lower rate of interest or other modification publicity. The committee therefore recommend that the proposed Act of of the contract, as occasion may require. It has been suggested that the Parliament should enable either party to invoke the aid of the court practice of the High Court exercising its equitable jurisdiction in setting privately, and not necesearily on a trial in open court. It is suggested aside unconscionable bargains with expectant heirs and reversioners that this end might be attained by giving a right in any existivg action or should be adopted. It may be remarked that this doctrine of the court proceeding to either party to have any question of unfair dealing referred is not confined to the Chancery Divieion nor to bargains with expectant without pleadings or any interlocutory proceeding in the Queen's Bench heirs or reversioners. In more than one case eminent Common Law Division to an official referee, and in the Chancery Division to a master or judges have applied the same doctrine. Lord Mansfield, C.J., did not judge in chambers; and in the county courts to the registrar, or judge, site

ting in chambers. And that, where there is no existing action or suit, pro- Mitchell, Albert

Shakeshaft, Charles Vivian ceedings might, without writ or pleadings, be commenced by originating Morgan, William Swancott Sharpe, Sydney George summous for plaiut, asking relief against unfair dealings, and be disposed Mossman, Frederick Adolph Tromel Sharratt, Walter James of in chambers. The committee are of opinion that the evils of the Newton, John Deacon

Sharrott, 03wal 1 Henry existing system of money lending would bato a large extent remedied if Pacy, Robert William

Shield, Arthur Robert the relief could be granted without publicity. In many cases needy Parker, George Berthold

Smith, Welboru O wston borrowers are deprived of any independent advice or protection when Parkes, William Taylor

Solomon, Phineas Simuel they have recourse to professional money lenders, and they submit to any Parry, Bernard

Stockdale, Norman Eskrigge conditions for immediate and secret relief. In conclusion the committee Paterson, William Augustus Elliot Talbot, Samuel Thomus recommend that the following suggestions be communicated to the Payne, John Melvin

Thornback, Arthur Henry Parliamentary Select Committee : (1) To raise the minimum limit of bills Penny, Bruce

Thorpe, Alfred of sale from £39 to £50, and to limit the rate of interest to 15 per cent. Perham, Charles Horwood

Tilly, Tobias Harry, B.A. (Cumb.) per annum on bills of sale to secure £100 and under, and to 10 per cent. Phillips, Herbert Ashley

Tippetts, Percy William Berriman per annum on bills of sale to secure over £100. (2) To re-enact the pro- Pickles, Hartley

Turner, Charles Philip vision in the Bills of Sale Act, 1878, taat bills of sale should be attested Pope, Cyril Kelway

Veneer, Edward Cawkill by a solicitor, and that the attestation should state that before the execu Prior, Bernard Henry Liathes Vergette, Edward Dudley tion of the bill of sale the effect had been explained to the grantor by the Procter, William

Warburton, Samuel Arthur attesting solicitor. (3) To give a borrower under a bill of sale liberty to Raisen, Arthur Frederick

Warmington, George Edward Dud. repay a loan, nominally payable at a fixed date or by instalments, by Ray, Cecil

ley tendering, at any time, the principal sum with interest at the rate speci. Redfern, Thomas Howard

Watkins, Thomas Percival Holmes fied, together with fourteen days' interest in lieu of notice. (1) To Reece. Lewis Frederick Bernard Watson, Gerald Hubert Lacon declare and extend the powers of the High Court and county courts 80 as Reynolds, Edward Lionel

Watson, John Bertrand to enable them to interfere as referred to above where there has been Riddell, William Edmeston, B.A. Western, Alfred Edward, B.A. oppression or unfair dealing, and especially that this relief should be (Camb.)

(Camb.) rendered available without unnecessary publicity.

Rigden, William Percy

Weston, Percival Aaron Albert Robertson, Hugh Lauder

White, Raymond Gilbert

Rootham, Ernest Augustus Williams, Aubrey Bransby
SOLICITORS' BENEVOLENT ASSOCIATION.

Rowlands, John Evau

Wilson, Hugh Randall The usual montbly meeting of the board of directors of this association Ruddock, George

Wood, John was held at the Law Institution, Chancery-lane, on Wednesday, the 11th Rye, Arthur Lockyer

Wood, Ricbard Holeoyde inst., Mr. Henry Morten Cotton in the chair. The other directors present Samuel, Frank Victor, B.A. (Oxon) Wyllye, George Harvey were : Messrs. Wm. Geare, J. R. B. Gregory, Augustus Helder, M.P. Sargeant, Kinneff Napier

Youll, William Chartres (Whitehaven), F. Rowley Parker, Richard Pennington, J.P., Sidney Smith, and J. T. Scott (secretary). A sum of $250 was distributed in

FINAL EXAMINATION. grants of relief, twelve new members were admitted to the association, The following candidates (whose names are in alphabetical order) and other general business transacted.

were successful at the Final Examination held on the 18th and 19th
April, 1898 :
Adams, Alfred Jobu

Holt, Henry Cecil
LAW STUDENTS' JOURNAL.

Almy, Percival Henry William Hopson, Frederick Ongley
Archbold, Thomas Forster

Houghton, Bertram Francis
INCORPORATED LAW SOCIETY.

Arton, Clement

Hughes, Charles Edward Price Austin, Edgar Montague

Ireland, Herbert Francis Kellie INTERMEDIATE EXAMINATION.

Ayrton, Edwin

Ironside, Alfred Allan The following candidates (whose names are in alphabetical order) were

Ball, Donald Stephen

Jefferies, Charles Wright successful at the Intermediate Examination held on the 20th of April, Bashalí, John, M.A. (Oson.)

Barker, Harold

Jolly, Arthur Adams 1898.

Jones, Timothy Morris

Kaye, William Astell, B.A. (Oson.) Anstey, Alfred, B.a. (Camb.)

Bates, Alfred
Edmunds, William Rees

Batham, Charles Frederick

Kennington, Sydney, B.A. (Camb.) Archdale, John Frederick St. Quin- Evans, Cecil Wilfrid

Batley, James Arthur

Lacy, Joseph Aloysius tin Farmer, Frank Morley

Bennett, Charles Oatlsy

McDiarmid, Arthur Hallam Archer, Goodwyn Luddington Farrar, James Gill Lister

Bere, Francis Wentworth, M.A. Mager, George Edmund Atkinson, Reginald Olege

Fraser, James Scholfield Barnes, Walter Sidery

McLintock, Walter Oswald

(Oxon.) Fream, Ralph Barton, John Austin, B.A. (Camb.) Galloway, Thomas Percival, B.A.

Berkeley, Rowland Henry

Manisły, Edward Ashburner, B.A. Berry, Harry Leopold Firth

(Camb.) Bartram, Cecil

(Oxon.)

Bevan, Theophilus Hamilton Martin, Henry Walter Bate, Benjamin Horace

Geare, John Walter Beale, Walter Herbert, B.A. (Oxon.) Gosden, Oscar George

Birdseye, Fred Hamilton

Mason, Daniel Johnston
Bompas, Alan Chantrey

Blount, George Alfred Stanislaus May, George Herbert
Gregory, Charles Lewis
Brenan, Herbert Eustace, B.A. Griffiths, Trevor Coleridge

Bowly, Richard Thomas, B.A. Mellersh, William Lock, B.A. (Oxon)

(Camb.) (Camb.)

Metcalfe, Frederick Evelyn
Guerrier, Arthur Philip

Brewer, John Henry Latham Miller, Alexander Thomas
Britten, Algernon John

Guillet, William Percy Burge, Sydney George

Brown, Herbert William, B.A. Moberley, Edward Haworth Von Haines, George Emeris

(Oxon.)

Essen Butler, Alfred Warren

Hannay, Erekine
Carlyle, Thomas Fairfax

Buckingham, Claude Septimus, B.A. Parkinson, Henry Fairfax
Harral, Francis Monckton
Carvalho, Samuel Nunes

(Camb.).

Penley, Reginald Herbert, B.A.
Harrison, William Robinson
Castellan, Charles Ernest

Clowes, Richard Percy, B.A. (Camb.) (Camb.)
Harvey, George
Cayley, Norman, B.A. (Camb.)

Colley, John Herbert, B.A. (Camb.) Pennington, Hugh
Hobbs, Ernest William, M.A. (Edin.)
Ohadwick, Richard Stanley

Coverdale, William Herbert Pollitt, James Sumner
Hodgkinson, Robert Frank Byron
Clarke, Charles Neville

Croome, Alexander Swayne Pope, Elward Alex under
Hopkinson, Charles Alden
Clarke, Leslie, B.A. (Oxon.)

Davies, Randall Robert Henry Poultor, Richard Charles McCrea
Horden, John
Clarke, Stephen Hardcastle, B.A. Horton, Charles Ernest

Davis, William Stephen

Prescott, Richard Melling (Oxon.)

Dawes, Frank

Quinn, Hugh Clemen'
Howard, George Frederick Thomas
Coe, Charles Grabura, B.A. (Camb.) Howarth, Humphrey, B.A. (Camb.)

DuBois, Edward

Ratford, John Francis
Cook, George Rope

Eames, Alexander
Howe, Harry

Rees, Harry Stanton
Cooper, John Campbell

Edleston, Robert Rainford

Rees, William
Humphrey, William Murray
Cottam, Charles Edmondson, B.A. Jenner, John Henry

Elmhirst, William

Robertson, William Woodward, (Camb.)

Ely, Rutland Stephen

B A. (Camb.)
Johnstone, William Yuile
Crow, Percy Falshaw Castlereagh Jones, William Llewelyn

Evans, Reginald

Rolfe, Edgar Charles
Thompson

Fisher, Alfred Sellwood, B.A (Oxon.) Rump, Frederic
Kelly, Charles Edward
Cuthbert, Robert Frederick

Foster, Charles Frederick

Rushworth, Albert Lincoln
Kendrick, Henry Haden

Fox, Hubert
Dawby, Edward Sherman

Schofield, Simeon
Lambert, Thomas
Davies, Daniel John

Garner, Edward James

Scholefield, John
Larken, Edmund

Gibbs, William Slocombe
Davis, Sydney Carlile

Spencer, Edmund
John Gerald
Davson, Arthur Mackenzie, B.A. Lemon, Allan Bruce

Goffey, Arthur

Springett, Thomas Brook Springelt

Green, Frederick William (Camb.)

Stansfield, Walter Daniel
Longhurst, Alfred Melvillo
Deans, John

Guye, Eugene, LL.B. (Lond.) Stocken, Walter Aloysius
Longinotto, Leo
Derry, William

Haigh, William Mackenzie Stokes, George Lort
McBean, Alexander Hamilton
Dobb, Richard Barrett

Hall, Alfred Herbert

Storey, Leonard
Maitland, Max Gray
Dobell, George Berkeley

Hall, Charles John Ernest

Taylor, Alfred Miles
Marshall, William Leslie
Donaldson, James Gordon, B.A. Marten, Charles Joseph

Hamilton, Gibson Warwick Finlay Thomas, Daniel Howell Rowland (Oxon.)

Hanson, Oswald Hesketh, B.A. Tringham, Edgar Mason
Martyn, Gerald Stephen
Dundas, Charles Percival During Meggy, Harry

(Camb.)

Upton, Archer Robert
Eaden, Harold

Hawkins, Lawrence Francis Upton, Robert George
Meyer, Herhönt Ellis

Holden, Herbert Charles

Watson, Harold Henry

Lawrence,

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