« PreviousContinue »
CHITTY, L.J., agreed. In the case of a pecuniary legacy given to one CASES OF THE WEEK.
person only one sum of money was given so that the legatee got a clear
sum: Haynes v. Haynes (1 W. R. 204, 3 De G. M. & G. 590). The legatee Court of Appeal.
bore none of the expenses of raising the legacy. There must be words,
however, in order to free him from duty to shew that intention, and the TURNER V. STALLIBRASS AND OTHERS. No. I. 22nd Nov. word pointed out was "clear"; his lordship could make no distinction
between a net sum and a clear sum. PRACTICE-Costs-ACTION FOUNDED ON TORT-HORSE DELIVERED TO BE
In ascertaining what portion was AGISTED – INJURY TO HORSE-NEGLIGENCB-COUNTY COURTS Act, 1888 appointed, you must clear that part of all charges; it would be so much (51 & 52 Vict. c. 43), s. 116.
stock as would raise a clear sum of £2,000; that was arrived at by
excluding all the trustees' expenees and the duty. The case was not like Appeal by the plaintiff from an order of Day, J., at chambers. The Banks v Braithwaite (ubi supra), where his lordship would have arrived at a action was to recover damages for injury to the plaintiff's horse. The different conclusion. This was a question of contruction, and the case statement of claim alleged that the plaintiff delivered to the defendants was not governed by Banks v. Braithwaite (ubi snpra); here the appointed his horse to be agisted, in consideration of a payment of one shilling, a portion of the trust funds was clear of all charges. day, and the defendants promised to keep, agist, and take care of the VAUGHAN WILLIAMS, LJ.-I cannot say that I am
by any horse ; and that in breach of the contract the defendants negligently means as clear as the other members of the court are as to the allowed the horse to be kept in a field where there was a barbed wire fence true construction of these words, having regard to the fact that concealed by long grass, whereby the horse was injured. At the trial it is merely a question of construction of particular words in a particular the jury found a verdict for the plaintiff for £30. Upon the taxation of document; but I am not prepared to differ from them. The question to costs the master was of opinion that the action was founded upon contract, my mind to be answered in the construction is this : Ought the word "net" and taxed the plaintiff's costs upon the county court scale. The learned to be annexed to the gift or to,
what is precisely the same thing, the judge affirmed this decision.
measure of the gift, or ought the word to be annexed not to that but to The Court (A. L. SMITH, RIGBY, and COLLINS, L.JJ.), allowed the the raising of the sum ? Is the word "net" to be treated as qualified by the appeal.
quantity of the stock with which the trustees were to deal, or was it to be A. L. SMITH, L.J., said that if the action was one in which it was annexed to the gift to Edward George Saunders ? Various authorities necessary to prove and rely upon a contract, then the action was founded have been cited, but it seems to me to be a dangerous thing to lay down any on contract within section 116 of the County Courts Act, 1888. If not, general rule as to the meaning of words of this sort ; you must look at the it was founded on tort. The pleadings in the action were immaterial whole document, and ascertain the meaning of the words when the whole upon this point: Taylor v. Manchester, Sheffield, and Lincolnshire Railway document is taken into consideration. Very often you get words which Co. (43 W. R. 120 ; 1895, 1 Q. B. 134); Kelly v. Metropolitan Railway Co. make it clear that the word "net" qualifies the quantum of the gift, as (43 W. R. 497; 1895, 1 Q. B. 944; and, in his opinion, it was immaterial where you have “raise and pay” in immediate collocation. If the will says how the plaintiff opened his case at the trial and how the judge directed you are to raise and pay a clear sum of so much, I think the word "clear" the jury. The question was, could this cause of action be maintained applies not only to the sum raised, but also to the sum be handed over. without proof of a contract? In his opinion it could. There was a In the present case there are no such words. The word “net" seems bailment of the horse upon which the duty arose not to be negligent limited in its application to the sum to be raised, to the amount of consols towards the animal. This was, therefore, an action of tort.
to be handed over, and not to the amount to be transferred. Having said Rigby, L.J., concurred.
this because I have a very strong feeling as to the danger of deciding the COLLINS, L.J., concurred.-A bailment must arise out of some con- meaning of particular words in a particular document by laying down a tractual relationship, if it could be so called, between the parties, some universal rule of universal application, so far as my judgment in conmeeting of the minds; but that was not such contract as determined cerned I concur in the opinion of the court. These documents are whether the action was an action founded upon contract or upon tort generally drawn by professional men, but occasionally by laymen; it within the meaning of this section. The contract came in after that. I would be a dangerous thing to include the construction of a particular Having got the common law obligations arising out of the bailment, then document as covered by decisions arrived at on similar words in other if the plaintiff, in order to support bis cause of action, must shew that documents. Appeal allowed.-COUNSEL, Cozens-Hardy, Q.C., and Medd; the defendant ought to have done something which was not embraced in Godefroi ; Swinfen Eady, Q.C., and Peterson ; W. Å. Peck. SOLICITORS, the common law obligation, and must rely upon some contract, it was Valpy, Chaplin, 8 Peckham; Witham, Roskell, Munster, & Weld; Hasties. an action founded on contract. If the plaintiff was not obliged to rely
[Reported by W. SHALLOROSS GODDARD, Barrister-at-Law.] upon anything more than the common law obligation, it was an action founded on tort. That seemed to him to explain all the cases on the
DIEDERICHSEN V. FARQUHARSON. No, 2. 5th and 22nd Nov. subject.-COUNSEL, T. W. Chitty; A. Lyttelton. SOLICITORS, 4. Slater ; King & Burrell.
SHIP-BILL OF LADING-INCORPORATION OF CONDITIONS OF CHARTER-PARTY [Reported by W. F. BARRY, Barrister-at-Law.]
INTO BILL OF LADING. Re SAUNDERS, SAUNDERS v. GORE. No. 2. 17th and 18th Nov. This was an appeal from the judgment of the Divisional Court (Day and SETTLEMENT-CONSTRUCTION-APPOINTMENT of Stock SUFFICIENT TO RAISE the Mayor's Court, London. The plaintiff was the owner of the ship
Lawrance, JJ.) reversing a judgment of the Common Serjeant, sitting at NET SUM-SUCCESSION DUTY.
Thea, and the defendants were the indorsees of a bill of lading for timber Appeal from a decision of Stirling, J. (reported 45 W. R. 456; 1897, shipped upon the vessel at a port in Sweden for Londoo. The ship was 1 Ch. 888). By marriage settlement certain funds were settled, in the under charter, and by the charter-party the ship was to load a full and events which happened, upon trust for the wife for life, and after her complete cargo of battens, including a deck cargo " at merchants' risk, decease upon the children of the marriage as she should by deed or will
and deliver the same.' appoint. "In exercise of the power of appointment she appointed (inter Tbe timber, which was carried on deck, was shipped under bills of lading, alia) “ that so much of the stock, funds, and securities now held by the which stated that the goods were “shipped in good order and well conpresent trustees of the said indenture of settlement upon and subject to ditioned,
and to be delivered in like good order and condition. the trusts thereof as shall be sufficient to raise the net sum of £2,000 shall
Freight and all other conditions as per charter-party." The henceforth belong and be vested in the said Edward George action was brought in the Mayor's Court for freight. The defendants Saunders, and be held in trust for him, the said Edward George Saunders, counter claimed for damage to the goods. The defendants were also the bis executors, administrators, and aesigns." The question raised on indorsees of the other bills of lading for the cargo carried. The jury cummons before Stirling, J., was whether the appointee was entitled to found that the goods were damaged while on the voyage to the extent of receive the sum appointed to bim free from succession duty. Stirling, J., £10, that the damage was not caused by the negligence of the shipowner following Banks v. Braithwaite (32 L. J. Ch. 35), held that the appointee or his servants, that the ship was seaworthy when she sailed, and that the took subject to payment of Euccession duty by him. The plaintiff, the damage was not caused by unseaworthiness. The question of law, which appointee, appealed.
arose upon the counter-claim, no question arising upon the claim, was THE COURT (LINDLEY, M.R, and Chitty and VAUGHAN WILLIAMS, whether the condition in the charter-party that the timber should be "at L.JJ.) allowed the appeal.
merchants' risk was incorporated in the bills of lading. The Common LINDLEY, M.R., said that, with reference to Stirling, J.'s, judgment, it Serjeant held that it was, and gave judgment for the plaintiff upon the appeared to his lordship tbat what was given to E. G. Saunders was a net claim and counter-claim. The Divisional Court held that the words " at eum of £2,000 stock; and he could not follow the distinction between a merchants' risk” were not incorporated in the charter-party, and entered net sum of stock and the stock itself; the true intent was the appoint- judgment for the defendants upon the counter-claim for £10. The plainment of a net sum of £2,000 in a particular form; if that were so, bow tiff, by leave appealed. Judgment was reserved. could it be maintained that any expenses were to come out of it? Reading Nov. 22.-The Court (A. L. Smith and Collins, L.JJ., Rigby, L.J., it in that way apart from all authority, his lordship could not read it as a dissenting) dismissed the appeal. gift of a sum of £2,000 stock groes. He was not going through all the A. L. SMITH, L.J., read a judgment in the course of which be said that authorities, but with regard to the case pressed on Stirling, J. (Banks v. they were called upon to consider the, at one time, much-debated question Braithwaite, ubi supra), his lordship would not have construed the docu- as to how much of a charter-party is incorporated into a bill of lading ment in the same way as Kindersley, V.C., did. He should have read it which contained the words " be or they paying freight and all other conas a clear yearly income of £150 to the nephew, but he could see a differ- ditions as per charter-party.” The question in this case was whether the ence between that case and this. This was a simple appointment to form of the charter-party as to the deck cargo being carried "at merchants' E. G. Saunders, and on the true construction of this document Banh8 v. riek” was incorporated into the bill of lading by the words " freight and Braithwaite (ubi supra) did not apply. Of coureo there was a difference all other conditions as per charter-party,” for, if not, the plaintiff was between legacies and appointments of funds. The case of legacies was liable under the counter-claim to the defendants. There was a body of easier, but the reasoning with regard to legacies did not apply here. The authority which had established conclusively that the words in a biil of appeal must be allowed, and the costs must come out of the last appointed lading, “ paying freight for the goods and all other conditions as per fund.
charter-party,” did not incorporate all the conditions of the charter-party,
but only those conditions "which would apply to the person who has ceding the general words? Was it equivalent to the words "paying taken the bill of lading and is taking delivery of the cargo, such, for freight”? The word “performing" could not be brought in without instance, as payment for demurrage, the payment of freight, the manner first getting in “paying." “ Freight as per charter-party” meant freight of paying, and so on." Those were the words of Lord Blackburn in the as fixed by the charter-party, and nothing else. The phrase did not conHouse of Lords in Taylor v. Perrin (unreported, but cited in (1891] 1 Q. B., vey the idea of payment any more than if the rate followed the word in at p. 295). It would be a waste of time to go through all the cases upon the bill of lading itself without having to be imported from the charterthis question, especially as this was done by Kay, L.J., in this Court in party. In each case the obligation to pay would be involved as an im1890 in Serraino v. Campbell, (1891, 1 Q B. 283), and he would only take plication of law. But on the question of construction it was necessary to three cases to show what had been held to be incorporated in a bill of lading distinguish clearly between the interpretation of the language used and containing the words “paying freight and all other conditions as per the consequences arising in law from using it. In his opinion the author:charter-party,
,” and what was the rule of construction to be applied ties relied upon were not applicable, and the reference could not be cut thereto. Thirty-three years ago, in the case of Russell v. Niemann (17 down to mean only conditions to be performed by the holder of the bill of C. B. N. S. 163), Willes, J., gave the judgment of the Court of Common lading. As to the second question—namely, whether the term Pleas upon this point as follows: "We now proceed to dispose of the a deck cargo was to be carried at merchants' risk” was to be resecond point-that is, whether the exception contained in the bill of jected as repugnant to the bill of lading-the bill of lading was lading is expanded by the exception in the charter-party. That depends a contract of carriage, and in so far as the charter-party might con. upon whether the words ' and other conditions as per charter-party' in- tuin terms not applicable to such a contract they would not be treated clude all the stipulations and conditions contained in that instrument, or as incorporated. But here the term proposed to be introduced bad whether they are pot limited to conditions ejusdem generis with those pre- direct reference to the carriage of the goods. In nearly every bill of viously mentioned-viz., payment of freight, conditions to be performed lading and in nearly every charter-party there were provisions cuttinz by the receiver of the goods. It is a mere question of language and con- down and limiting the absolute obligation of the shipowner to deliver. struction, and we think it is enough to say that the latter is the construc- Was it more reasonable to suppose that the parties intended the contract tion we put upon those words." That case had never been overruled, to be interpreted literally, and so to incorporate the terms of the charterbut, on the contrary, this court in Serraino v. Campbell pointed out that it party, or not? In the first case the shipowner would be getting in freight had' been expressly approved of by the House of Lords. In Serraino v. a consideration commensurate with a limited obligation. In the second Cam, bell Lord Esher, M.R , laid down the rule of construction thus : he would be entering into an exceptional contract. In his opinion the “After full consideration, I think the words ought to be construed literal interpretation of the contract was the most reasonable one, and as meaning all the conditions of the charter-party which would have to be therefore the correct one. performed by the receiver of the goods.” Lopes and Kay, L.JJ., arrived Collins, L.J., read a judgment concurring with that delivered by Lord at the same result. Again, in Manchester Trust v. Furness, Withy, f Co. Justice A. L. Smith. (1895, 2 Q. B, 282, 539), Mathew, J., treated this rule of construction as Appeal dismissed.-COUNSEL, Lawson Walton, Q.C., and E. Bray; J. A. then well known and settled ; and in the same case on appeal the present Hamilton. SOLICITORS, Harper & Badcock; 1. A. Crump. Master of the Rolls said that the effect of the reference was to incorporate
(Reported by F. 0. ROBINSON, Barrister-at-Law.] so much of the charter-party as related to the payment of freight and other conditions to be performed on the delivery of the cargo, but there was no authority whatever for incorporating more than that. The rule of construction was therefore settled by conclusive authority. It was now
High Court-Chancery Division. insisted by the plaintiff that when he by his captain signed this bill of lading containing the words "freight and all other conditions as per
PEGGE v. NEATH AND DISTRICT TRAMWAYS CO. North, T. charter-party," the word “paying" being left out, he, by so doing,
23rd Nov. incorporated into the bill of lading conditions which otherwiee would not
COMPANY-DEBT-AGREEMENT TO Issue DEBENTURR. have been incorporated. His lordship could not agree with the contention
In November, 1882, the plaintiff was a director of the company, which that the word " freight” did not mean “ paying freight” in this mercantile required money to pay off debentures then falling due. The
plaintiff document. The words meant the same thing. If they were to accede to found £300 of the money required, and to yk as security a promissory note the plaintiff's contention, they would, in his opinion, be unsettling that which had long been settled, and upon the faith of 'which business had of the company for £300 at 5 per cent. interest, and an uudertaking by the been transacted for years. In bis opinion, the rule of construction above company at any time to issue to him debentures to a like amount of a mentioned applied to all bills of lading which sought to incorporate parts series of debentures then being issued and forming a second charge upon of a charter-party by the words "paying
freight and all other conditions the property of the company. In 1884 the plaintiff lent a further sem as per charter-party,” or “freight and all other conditions as per charter- upon similar terms. In 1895 judgment in the action in which
In 1896 the party," unless there was something therein clearly shewing that the well claimed as holder of first debentures was pronounced. known rule was to be excluded. To point out that the contract of carriage plaintiff claimed to be allowed to exercise his option to take debentures contained in the bill of lading in the present case was absolute and without instead of bis promissory notes, and to be paid pari passu with the holders exceptions did not avail the plaintiff, for it did not, in luis opinion, shew of second debentures. Uutil the judgment interest on the promissory that the rule was to be excluded, it being a rule as applicable to a bill of notes was paid at the rate of 5 per cent.,
the interest payable upon the lading containing no exceptions as to one containing exceptions. He did debentures was 43 per cent. The claim was rejected by the master, and not propose to discuss the question whether the term in the charter-party
now the appeal came on with the further consideration of the action. “including a deck cargo at merchants' risk” was or was not inconsistent decided the question. The option to take a debenture could not be
North, J., said that Re Queensland Land and Coal Co. (1894, 3 Cb. 181) with the bill of lading, which was silent as to a deck cargo, and only covered a cargo which was to be carried at shipowners' risk. In his taken away. The right to a second debenture was not waived because it opinion the Divisional Court were right in holding that the clause in the 1896, the plaintiff made an affidavit claiming to exercise bis option to
was not mentioned in the statement of claim. On the 7th of October, charter-party was not incorporated into the bill of lading; and the appeal take second debentures, and in his lordship’s opinion he was entitled so must be dismissed with costs. Rigby, L.J., read a judgment in which he said that he was unable to till the judgment he took interest at the higher rate payable on the pro
to do, as nothing bad happened to deprive him of his right, although concur in the conclusion that the counter-claim of the defendants should missory note. The costs must be added to the security. --Counsel, Svinsucceed. The question was one of construction only, and the issues were fen Eady, Q C., and Ashton Cross ; D. Pollock ; Hume Williams. Solicie two: (1) Whether the words "freight and all other conditions as per Tors, Everilt & Hodgkinson ; Tamplin, Tayler, & Joseph. charter-party" in the bill of lading were to be construed to extend only to conditions to be performed by the holder of the bill of lading, in which
[Reported by G. B. HAMILTON, Barrister-at-Law.] case none of the terms of the charter-party relieving the shipowner from SOUTH AFRICAN REPUBLIC ». LA COMPAGNIE FRANCO-BELGE DU responsibility would be introduced; (2) whether the clause relied upon as
CHEMIN DE FER DU NORD. North, J. 24th Nov. a defence to the counter-claim ought not to be treated as incorporated by the general words of reference on the ground of its being repugnant to
COUNTER-CĻAIM-Suit by Foreign STATE. the other terms of the bill of lading. As to the first issue, the argument This was a summons in an action by the South African Republic to depended entirely upon the decisions, of which Serraino v. Campbell was a protect a fund in which the republic claimed an interest. The fund conspicuous example. He had not the slightest intention of laying down stood in the names of two trustees, one nominated by the plaintiffs and anything inconsistent with that class of case. The real question was what one by the defendants. The plaintiffs' nominee died, and they brought those cases in fact decided, and it was as important not to extend them so this action for the appointment of a new trustee and the preservation of as to cover a case not really included as to preserve their authority with the fuud. The defendants pleaded that it was inequitable that the fund reference to cases really covered by them. None of those cases went should be placed under the control of the plaintiffs, and counter-claimed beyond what was laid down by Willes, J., in Russell v. Niemann. In all for sums due to them by the plaintiffs for breaches of agreement. A of them the words were “paying freight and all other conditions as per part of their counter-claim asking for damages for libel had already been charter-party,” or their equivalent. Willes, J., held that they were struck out. It was said that a counter-claim could be brought against a limited to conditions to be performed by the receiver of the goods. That foreign state suing in this country. learned judge and the Court of Appeal in Serraino v. Campbell treated the North, J.-The application to strike out the counter.claim must matter purely as a matter of construction of the very words used, and had no succeed. The plaintiffs are a foreign republic, in the position of a foreign intention of laying down any general rule as to the meaning of the words sovereign. One of two trustees of a fund died, as to the application of "all other conditions” independently of the introductory words “paying which the plaintiffs and defendants differ, leaving the trustee nominated freight.” The Court of Appeal in Gardener v Trechmann (15 Q. B. D. by the defendants surviving, and he proposed to deal with it in a way 154) seemed to him to have held that the words “ all other conditions as the defendants think right, but which the plaintiffs think wrong. Toe per charter-party," when not controlled by the context, were sufficient to plaintiffs ask for the appointment of a new trustee and payment out of introduce all the terms of the charter-party not repugnant to the contract the fund, so that matters may go on as before the death of the trustee contained in the bill of lading. What was the effect of “freight” pre- (nominated by the plaintiffs. The funds have been paid into court. The
defendants say that the plaintiffs have acted wrongly in many respects, Wilkinson ; Mulligan, Q.C., and Gurdon. SOLICITORS, Indermaur g Brown, and after forty-two paragraphs of defence proceed to counter-claim for for Blackburn $ Main, Carlisle ; Gray, Mounsey, $ Fuller, for Wannop & payment of three sums of £60,000, $1,800, and $147,000, and they also Westmorland, Carlisle. ask that the plaintiffs may be restrained from taking proceedings in their
[Reported by Neville TEBBUTT, Barrister-at-Law.] owr courts to get the concessions granted to the defendants declared void, or in the alternative £500,000 damages. The application as to damages for libel has been struck out, but on that application I was not asked to strike out anything else. Duke of Brunswick v. King of Hanover (6 Beav.
Winding-up Cases. 1) and Strousberg v. Costa Rica Republic (29 W. R. 125) state the law on the subject. It is conceded that the part of the counter-claim seeking to Re THOMAS EDWARD BRINSMEAD & SONS (LIM.). TOMLIN'S CASE, restrain the plaintiffs from applyivg to the courts of their own country
19th Nov. cannot succeed. The claim for the three sums of money is not a claim in COMPANY-WINDING UP – - CONTRIBUTORY — STRIKING NAME respect of the sum in court, but is a claim altogether outside this action.
OPPOSING PETITION TO WIND UP. If the plaintiffs could be sued, it would be the proper subject matter of a separate action and not of a counter-claim. I give no costs because this
This was an application by Mr. Tomlin under section 35 of the Com. counter-claim might have been struck out at the same time as the panies Act, 1862, that his name might be struck off the list of contribucounter-claim for libel.-COUNSEL, Svinfen Eady, Q.C., and Woggett; tories in the winding up: Tomlin had applied for shares in the company Vernon Smith, Q.C.
, and Whinney. SOLICITORS, Harwood & Stephenson ; & Sons (Limited). To the directors of Thomas Edward Brinsmead & Sons Clarke, Rawlins, $ Co. [Reported by G. B. HAMILTON, Barrister-at-Law.]
(Limited), 94, Cannon-street, London, E C. Gentlemen, [Having paid to your bankers the sum of £-, being a deposit of 103. per share payable
on application, for shares of £5 each in] Thomas Brinsmead & Sons PAGET ». PAGET. Kekewich, J. 2nd and 16th Nov.
(Limited), I request you to allot me five hundred pounds in [that number MARRIED WOMAN - RESTRAINT ON ANTICIPATION - Relief — Husband's of one hundred shares, and I agree to accept the same, or any smaller
DEBTS-Wife's RIGHT TO INDEMNITY-CONVEYANCING AND LAW or Pro- number that may be allotted to me, upon the terms and conditions of the PERTY Act, 1881 (44 & 45 Vict. C. 41), s. 39.
prospectus and memorandum and articles of association of the company. This was an action for the determination of the question whether the I request you to place my name on the register of members in respect of tře plaintiff was entitled to be indemnified by her husband out of his property shares so allotted to me, and I undertake to pay the further instalments
upon in respect of moneys raiced out of her life estate in certain settled property number of shares are applied for, and I undertake to pay in full on allotment.
such allotted shares as and when the same become due, provided the total and applied in payment of her husband's debts. The plaintiff was, the settlement, restrained from anticipation, but on the 28th of June: Dudley-street, Leighton Buzzard ; description, no occupation ; date 21th July,
Ordinary signature, -; name (in full), George William Tomlin ; addrosi, 1882, and the 11th of August, 1887, Chitty, J., had made two uncondi. tional orders under section 39 of the Conveyancing and Law of Property 1896. If you desire to pay is full on allotment sign the following: I Act, 1881, relieving the plaintiff from the restraint in order to enable desire to pay in full on allotment. This form is to be filled up, cut out, her to raise money for payment of the defendant's debts. During the and forwarded, together
with cheque or cash for the amount payable on course of the arguments the following cases were cited: Hudson v. Car- application to the bankers, &c., or to the secretary at the offices of the michael (1 Kay 613), Aguilar v. Aguilar (5 Mad. 414), Clinton v. Hooper (1
company, 94, Cannon-street, London, E.C." The form was a printed Vesey, jun. 172a), Pawlet v. Delaval (2 Ves. sen. 662), Milnes v. Busk 12
one, but was altered by Tomlin by striking out the words enclosed in Ver. jun. 488), and Huntingdon v. Huntingdon (2 Bro. P. O. 1), White and square brackets above and inserting the words in italics. He did not pay Tudor's L. O., 6th ed., 1147.
any money with the application or at any subsequent time. The comKBKBWICH,
J., dismissed the action, basing his judgment on the broad pany shortly afterwards went to allotment, and Tomlin was allotted the ground that where the wife's interest had been made available for raising shares he had applied for although the total number of shares were not money for payment of her husband's debts by means of relief from
the applied for ; but no notice of such allotment was sent to him. Finding restraint on anticipation under the sanction of the court, it was inconceiv.
out that something was wrong with the company, be, on the 17th of able that she intended, or that the court intended, that she should bave a
August, 1896, applied, under section 35 of the Companies Act, 1862, to remedy over against him not reserved by the order giving such sanction, have his name removed from
the register on the ground of misrepresenor that a doctrine flowing from the relations of husband and wife and tation in the prospectus. The application stood over by consent, and called into operation by her action independently of the court should be before it again came on for hearing a petition for winding up the comthus extended.-Counsel, Renshaw, Q.C., Carson, Q.C., and A. àB. pany was presented. Tomlin gave the usual contributories' notice that Terrell; Lawson Wallon, Q.O., Warrington, Q.o., aná J. Henderson. he would oppose the petition and did so oppose when it was heard. A SOLICITORS, Leman & Co.; Dawes & Sons.
winding-up order having been made, Tomlin together with others
appealed against it, but the Court of Appeal dismissed their application. [Reported by R. J. A. MORRISON, Barrister-at-Law.]
Tomlin now applied again to have his name struck off the list of con- ·
tributories. CARLISLE CAFE CO. AND TODD v. MUSE BROTHERS & CO. Byrne, J. WRIGHT, J., held that before the hearing of the winding-up petition 12th and 15th Nov.
the applicant was not in default, and that his appearing as a coatributory LANDLORD AND TENANT-LEASE OF Rooms-Outer Walls-DeROGATION at that hearivg, did not make him a shareholder if he was not one FROM GRANT-IMPLIED CONTRACT.
before or alter his position, and that he had done nothing to estop By agreement in writing of the 2nd of March, 1896, the plaintiff Todd to have his name taken off the list of contributories.-Counsel, Norman
himself from denying that he was a shareholder, and that he was entitled “agreed to let to H. T. Muse” (one of the defendant firm), “photo-Crnig; Hon. Frank Russell. SOLICITORS, Beall & Co.; Day, Russell, & Co. grapher, the studio, work-room, and drawing-room on the top floor of my new building and the reception-room on the second floor thereof” for one
[Reported by C. W, MEAD, Barrister-at-Law.] year at £35. The defendants alleged that during the negotiations Todd represented that the defendants should have the exclusive right to affix sign-boards and advertize their business on the outside of the walls of the rooms let. Subsequently the plaintiff company was formed, and the
High Court-Queen's Bench Division. rest of the house was demised by Todd to them, with an agreement that WHITFIELD V. BISHOP AUCKLAND URBAN DISTRICT COUNCIL. the company might put up in front of the house such signs and advertise.
Wright, J. 20th Nov. ments as they thought fit, and in particular that the words "Silver Grill", should occupy a position over the cornice above the second floor. Public HEALTH--DAMAGE CAUSED BY DEFECTIVE SewerS—MISFEASANCE BY The plaintiff company, which carried on a restaurant in the house, put up
LOCAL AUTHORITY. a large sign with the words “Silver Grill" upon it in letters between two Further consideration of an action tried before Wright, J. and a jury and three feet in height in the position mentioned. The sign was upon at the last Durham Summer Assizes. The action was brought to recover the outer walls of the rooms on the top floor occupied by the defendants. damages for injury to the plaintiff's houses alleged to have been caused The defendants objected to this sign on the ground that it prevented by the negligence and breach of duty on the part of the defendants them putting up their own signs, and also because it was a representa- in not properly maintaining and repairing a sewer which was under their tion making their customers and the public believe that the business of control. The sewer was laid in 1866, and the houses in question were the plaintiff company, and not that of the defendants, was carried on in built about 1872. The pipes of the sewer were the same as those in the rooms of the defendants, and at the trial they gave evidence in sup- common use at the time, but without proper flanges to prevent the escape port of these allegations. The defendants requested the plaintiff com- of sewage. In 1879 the sewer was taken over by the defendants. Before pany to remove the said sign, and upon their refusing they took it down 1892 the sewer was repaired; and again in 1892 part of it became defecin the night and placed their own signs there instead. Thereupon the tive owing to subsidence, and had to be repaired. The defendants' surplaintiffs brought this action for an injunction against the defendants veyor ordered the pipes to be taken up for a distance of ten yards on each interfering with the signs of the plaintiff company.
side. In 1895 the plaintiff's houses, wbich were lower down the street BYRNE, J.-The premises constitute a little dwelling by itself. It was than the place where the repairs were done, were flooded with sewage ; argued that the letting did not include the outer walls, but I think that causing the damage complained of. It was contended for the plaintiff it did include them, so far as they were solely appropriate to the use of that the defendants, having knowledge of the defectivo condition of the rooms let. The present use by the defendants of the walls is a the joints of the pipes, were negligent in allowing the pipes to remain reasonable one, and the signboard removed was inconsistent with such in the ground. The jury the learned judge left the following quesuse. His lordship also found that there had been a representation at the tions to the jury: (1) Were the foundations of the plaintiff's houses time of the contract that the defendants should have all reasonable facilities insufficient? Answer.—No. (2) Was the defendants' sewer badly confor advertising, and that the plaintiff company had not given them these structed originally-that is, before their time, and, if so, in what respect ? facilities. Judgment for the defendants.- COUNSEL, Eve, Q.C., and I Answer. It was badly constructed in consequence of defective joints.
(3) Was the defendants' sewer improperly and negligently maintained or were as follow : In 1864 two freehold farms were mortgaged to J. Bailey repaired by them, and, if so, in what respect? Answer. --The sewer was to secure £6,000 and interest. On the 30th of December, 1876, this mortimproperly and negligently maintained, because the defendants did not gage was transferred to the defendants Prance and Webb for £6,000, examine the drain the whole length of the street on the second occasion stated in the indenture of transfer to have been paid by them out of upon which they opened it out. (4) Was the damage caused entirely by moneys belonging to them on a joint account. As a matter of fact the the bad situation or bad foundation or bad construction of the houses ? £6,000 belonged as to £3,000 to the firm of New, Prance, & Garrard, for Answer.-No; it was caused by the water from the sewer. On these whom Prance and Webb were trustees, and as to the other £3,000 to the findings the defendants moved for judgment, on the ground that the trustees of Hester Stokes. New, Prance, & Gerrard acted on the occasion damage was caused by mere nonfeasance for which an action would not of the transfer as solicitors for the Stokes trustees. On the 1st of lie, the proper remedy being a complaint to the Local Government Board January, 1877, Prance and Webb executed a memorandum to the effect under section 299 of the Public Health Act, 1875: Atkinson v. Newcastle that of the £6,000 £3,000 belonged to the Stokes trustees and the remain. and Gateshead Waterworks Co. (2 Ex. D. 441), Leek Improvement Commis. ing £3,000, the residue of the principal sum of £6,000, belonged to New, sioners V. Justices of Stafford (20 Q. B. D. 794), Cowley v. Newmarket Local Prancé, & Garrard. On the 2nd of January, 1877, another memorandum Board (1892, A. C. 345), and Robinson v. Workington Corporation (45 W. R. was executed whereby New, Prance, & Garrard, in consideration of the 453 ; 1897, 1 Q. B. 619) were cited.
Stokes trustees accepting interest at 4 per cent. instead of 45 per cent. on WRIGHT, J., said that he thought the findings of the jury were contrary their £3 000, guaranteed to them the repayment of their £3,000. In 1880 to the evidence, but he could not say that they were perverse, and he must New, Prancé, & Garrard transferred their £3,000 and interest at 4 per treat them as if they were correct. Assuming them to be so, there was no cent. to Messrs. Jewsbury and New and Mrs. E. Smith, the executors ground for liability except misfeasance in the sense that there was some- and trustees of the will of Henry Smith, and memoranda similar to those thing improper or negligent in the way in which the works of mainten- of the 1st and 2nd of January, 1877, were executed by them in favour of ance or repair were done. Before 1892 there were partial and local repairs the Smith trustees. In 1886 the plaintiff Stokes and Garrard were done to the sewer. In 1892 another local and partial collapse occurred, appointed trustees of Hester Stokes's will, and the mortgage property was That was made good, not for the whole length, but partially. He should vested in them and the defendant Webb. Prance was also appointed a say that all was done that ought to have been done. The jury found trustee of Smith's trust in place of Jewsbury. A memorandum of the otherwise; they thought it was reasonable and proper to open up the 8th of October, 1886, almost identical with that of the 1st of January, whole of the length of the sewer, and that it was negligent to do part of 1877, was drawn up declaring that the £6,000 belonged as to the work and not the whole. Upon the findings he could not do other: £3,000 to Webb, stokes, and Garrard, and as to £3,000 to the wise than enter judgment for the plaiatiff. Stay of execution was granted Smith trustees. The firm of New, Prance, & Garrard again acted pending an appeal. -COUNSEL, Tindal Atkinson, Q.O., and Simey; Strachan, as solicitors for the trustees. On the 22nd of December, 1891, part of the Q.C., and H. F. Manisty. SOLICITORS, Hickens, Smith, & Capel - Cure, for £3,000 was paid to the Smith trustees. The said £3,000 was then made up Simey & Niff, Sunderland; Field, Roscoe, f. Co.
of £1,630 advanced by the defendant Mrs. Valentine (formerly Smith) and [Reported by T. R. C. Dill, Barrister-at-Law.]
of £1,370 advanced by New, Prance, & Garrard. By an indenture of this date the £3,000 was treated as if New, Prance, & Garrard were trustees
thereof, and it was declared that Prance and Webb should stand possessed Solicitors' Cases.
of the mortgage security for the benefit of the persons interested in the
two moieties of £3,000 and £3,000 pari passu without any priority other WATERLAND V. SERLE. C.A. No. 2. 24th Nov.
than the priority granted by New, Prance, & Garrard in respect of the
£1,630 over the remaining £1,370. On the 28th of November, 1893, New, PRACTICE-SOLICITOR-Costs—“PROPERTY RECOVERED OR PRESERVED ". the senior partner in the firm, died. On the 22nd of January, 1894, New,
CHARGING ORDER-Costs of APPEAL-SOLICITORS Act, 1860 (23 & 24 Prance, & Garrard were adjudicated bankrupts, and the defendant West Vict. c. 127), s. 28.
was appointed trustee in the bankruptcy. On the 24th of July, 1894, the Appeal from an order of Kekewich, J. The plaintiff's solicitor took plaintiff Whitfield was appointed a trustee of the will of Hester Stokes in out a summons in the action asking for a declaration that he was entitled the place of Garrard. The £6,000 was still owing on the mortgage to a charge on certain funds, which had been recovered in the action and security, wbich had not yet been realized, but was admitted by all parties paid into court, for the balance of bis unpaid costs, charges, and expenses. to be insufficient to satisfy the debt. Section 28 of the Solicitors Act, 1860, is as follows : "In every case in
STIRLING, J., held that the memorandum of the 1st of January, 1877, which an attorney or solicitor shall be employed to prosecute or defend could not be fairly read as giving priority to the £3,000, wbile the any suit, matter, or proceeding in any court of justice, it shall be lawful guarantee of the 2nd of Jannary, 1877, was simply a personal contract by for the court or judge to declare such attorney or solicitor enti- the firm as to which it might be right to prove in bankruptcy, but which tled to a charge upon the property recovered or preserved, and upon such conferred no rights against the specific property in question. His lordship declaration being made, such atto-ney or solicitor shall have a charge upon continued: As to the third point, the argument is that a breach of trust the property which shall have been recovered or pre
on the part of New, Prance, & Garrard precluded them from taking any served through the instrumentality of any such attorney or solicitor for the action to the prejudice of the trust estate. In my opinion the mortgage taxed costs, charges, and expenses of or in reference to such suit, matter, investment was a breach of trust I think that in omitting to advise their or proceeding; and it shall be lawful for such court or judge to make clients, the Stokes trustees, that it was so, New, Prance, & Garrard were such order or orders for taxation of, and for raising and payment of, such guilty of a breach of trust towards them. For this, but for their bankcosts, charges, and expenses out of the said property as to such court or
ruptcy, they might be answerable in damages, and proof may possibly judge shall appear just and proper
Kékewich, J., dismissed be admissible for it in the bankruptcy. But under ordinary circumthe summons, and refused to make any order. The solicitor appealed.
stances they are not responsible for a breach of trust : Barnes v. Addy The Court (LINDLEY, M.R., and Chitty and Vaughan WILLIAMS, L JJ.) (9. Ch. App: 251). It is said, however, that the law prevents them allowed the appeal.
taking any benefit to the disadvantage of the Stokes trustees. UnLindley, M R., said that their lordships had been considering the ques. doubtedly the law imposes considerable disabilities on solicitors in dealing tion of costs, and although there was nothing in the Act about the costs with their clients : See Segrave v. Kirwan (Brat. 157), Bulkley v. Wilford of an appeal, yet, on principle, they ought to be included in the order. (2 Cl. & Fin. 102), Horan v. MacMahon (17 L. R. Ir. 641), Cockburn v. Edwards The order was, therefore, that the appellant was entitled to a charge on (30 W. R. 446, 18 Ch. D. 449) ; Re Birt, Birt v. Burt (31 W. R. 334. 22 the fund in court for his costs, charges, and expenses of recovering and Ch. D. 604). Against those decisions there is not a word to be said, but preserving the property, it being referred to the taxing-master to settle in each case the solicitor was claimiog a benefit or advantage which the the amount, with liberty to roview his former taxation; such costs to
client never intended him to have. The argument in the present case include, as between solicitor and client, costs in the court below and costs seems to me to push those authorities much further than any previous of the appeal. Appeal allowed.-Counsel, Cozens-Hardy, Q.C., Warrington, decision. The transaction contemplated in 1876 was an advance of Q.C., and Ingpen; Renshaw, Q.C., and J. M. Stone ; Badcock ; H. L. £6,000 in two sums of £3.000, one to be advanced by the Stokes trustees Manby; Herbert Jacob. SOLICITORS, F. W. Bertie ; Stones, Morris, f Stone ; and the other by the solicitors, and they were to be secured on a footing of J. Hextall ; R. Norman ; Lickorish g Co.
equality as to their respective advances. The instrument by which the [Reported by W. SHALLcross GODDARD, Barrister-at-Law.]
transaction was carried into effect contained no unusual provisions to the disadvantage of the trustees, and nothing could be urged against the
solicitors if their clients had not been trustees and been involved by the STOKES v. PRANCE. Stirling, J. 28th and 29th July, 3rd August,
transaction in a breach of trust. Still, the only breach of duty ou the 17th Nov.
part of the solicitors was that they permitted their clients to advance SOLICITOR AND CLIENT
MORTGAGE — BREACH OF TrusT – FIDUCIARY money on insufficient security. For that they are answerable in damages, RELATIONSHIP --GUARANTEE.
but the clients are not entitled to any priority of payment out of the This was an action to obtain a declaration that the trustees of the will solicitors' security.-Counsel, Woods, Q.C., and Eastwick ; Dauney ; W. of Hester Stokes, deceased, were, according to the true construction of
C. Prance ; Hasting8, Q.C, and Badcock; J. R. Brooke. SOLICITORS, Blake two declarations of trust dated respectively the 1st of January, 1877, and $ Moss, for Nevinson & Barlow, Great Malvern; M. H. Prance ; Crowders & the 8th of October, 1886, entitled with the defendant Webb to be paid a
Vizard; Burton, Yeates, & Hart, for Johnson, Barclay, f Rogers, sum of £3,000 and interest out of the mortgage debt and interest referred Birmingham. to in the said declarations of trust in priority to all claims of the defend
[Reported by J. I. STIRLING, Barrister-at-Law.] ants, the trustees of New, Prance, & Garrard, bankrupts, and of Henry Smith, deceased, in respect of the residue of the said mortgage debt and
[We have becu favoured with the foliowing note :) interest, and to have the trusts declared by the said declarations of trust carried into execution, and the trust estate subject thereto administered
HALLETT v. ANDREWS. Day, J. 17th Nov. by the court. Certain questions were raised as to the liability of solicitors PRACTICE-Orr. 14, R. 1-SUFFICENCY OF AFFIDAVIT IN SUPPORT to trustees who had failed in their duty to their clients in not advising
APPLICATION. them that an investment made by them was a breach of trust. The facts Upon an application for judgment under ord. 14, r. 1., the defendant
did not appear, but the master refused to order judgment to be entered Dodds, Thomas
Morison, Lennox James, B.A. because the affidavit in support was made by the plaintiff's solicitors' Dowker, Frederick Henry
Morris, William Pilgrim clerk, and he held that the clerk could not make it. The affidavit was in Drinkwater, George William Morton, William Henry the ordinary form with the exception that the clerk deposed “that he was Dyer, Watson
Nash, Herbert Warren in the employ of the plaintiff's solicitor and was duly authorized by the Eddrup, Edward Charles Paroissien, Newman, Charles Arnold, B.A. plaintiff to make the affidavit."
Nisbet, Alfred On appeal to the judge in chambers (Day, J.) he held that the affidavit Edwards, Percy John
Ogilvie, Alan Freeman Walker, B.A. was regular and perfectly good, and ordered judgment to be entered for Everett, William John
Osborne, Edward Charles Harold plaintiff.-SOLICITORS, Aird, Hood, f Cc.; S. Ğ. Edridge.
Ewing, James Archibald
Owen, John Arthur George
Parish, Charles Ernest
Parker, George Watson Trevor, B.A.
Parkes, Harry Stanley, B.A. LAW SOCIETIES.
Forward, Williain Graham
Parkip, Leonard Maurice, B.A.
Fowell, Arthur Duncan Andrew Parry, Henry Owen THE SOLICITORS' MANAGING CLERKS' ASSOCIATION.
Parsons, John Robert
Parsons, William Lansbury lecture before a large gathering of members of this association iy one of Garner, James Brooke
Pascall, Charles Montague the lecture rooms of the Inner Temple. The chair was taken by Lord Gledhill, John Joseph
Payne, Horace Justice Vaughan Williams, who in a few introductory remarks dwelt Good, Jonas Albert Thomas
Payne, Robert Sidney, B.A. upon the importance to the proper conduct of legal business that solicitors' Griffiths, Thomas William
Peacock, Percy James managing clerks should be gentlemen of learning, tact, and discretion. Grimwood, Francis George
Penoyre, Ralph Penoyre Baker It would be a serious blow to the administration of justice in this country Grove, Edward Dunsterville
Stallard if there should be any falling off in the high conduct which had Hadaway, Charles Stanley
Perkins, Harold Wootton Characterized those gentlemen in the past. Mr. Wheeler then delivered Hadrill, Arthur William
Perkins, James Wickstead an interesting lecture on “ Contracts implied by Law.” At the conclusion Hardwick, Arthur
Pickles, John William of the lecture hearty votes of thanks were accorded to Lord Justice Harker, Thomas Rowand
Piercy, George Vaughan Williams, to the lecturer, and to the Benchers of the Inn for Harradine, Robert
Platts, William Henry John the use of the room. Lord Justice Williams, in reply, said that the law Harrison, Frederick Herman
Purkis, Charles Sydney of implied contracts was particularly interesting from the point of view Harrison, Henry James
Purkis, Harry Wakeham that it was illustrative of the character of the nation. Such contracts had Harrison, Percy Alexander
Randall, Henry John been forced on the law by the common sense of the people. It was really Harrison, William
Reay-Nadin, Robert Armstrong the wish of the merchants that their commercial usages should be recognized Hart, George Ernest
Reed, John James which compelled the law to adopt the method of implying terins in cer.
Ridley, Thomas Matthew tain classes of contract. In foreign countries the attempt--a laudable Helm, 'Edward
Hazell, Ernest Hopkins
Ritchie, Robert attempt—was made to work under a hard and fast code.. That system Hewitt, Edwin Williamson
Romney, Francis William, B.A. might have its advantages, but the .system adopted in this country was Hickes, George, B.A.
Roney, Ernest characteristic of the nation, as shewing the strong desire and will of the Hiscock, Charles Froud
Rooke, Cecil Bradley people that the law should be adapted to their wants.
Seaton, George Stuart
Sharpley, Edward Burgess
Hodgaon, Frederic Charles
Sheldon, Ernest Alfred Nov. 22.-Mr. C. W. Williams in the chair. -Mr. W.J. Boycott moved : Holland, William
Sherrard, Stanley Cecil “That the decision of the Divisional Court in Kero ison v. Šmith (1897, 2 Holloway, Ernest James
Sidgwick, Edward Dury Q. B. 445) was wrong.” Mr. C. H. Kirby opposed, and the debate was
Holmes, Harry James Carleton Sladen, Thomas Oliver Ramsay continued by Messrs. Neville Tebbutt, A. w. Sells, A. W. Marks, and Horne, Benjamin Worthy
Slater, Gilbert 0. A. Cayley. On the motion being put to the vote it was lost by one
Hulbert, Charles Kenelm
Smith, Charles Alfred vote.
Hunter, Trevor Havard
Smith, Euan Maclaurin Euan, B.A. Hutchison, Stanley
Smith, Wilfrid Basil Woodd, B.A. Jacks, Philip
Smitton, Herbert Allan
Jackson, Alfred Horswill
Somerville, Robert Baxter
Spafford, Frederic Christian
Jackson, Hugh Willan
Spicer, John Wynne
Johnson, John Richard
Stallwood, John Charles St. Luurence
Stidston-Broadbent, Herbert Owen The following candidates (whose names are in alphabetical order) were Jones, Rhys Thomas
Stimson, Harold George successful at the Intermediate Examination, held on the 3rd of Novem Jones, Sydney
Stott, Oswald ber, 1897 :
Jones, William Caer
Stratford, Harold George
Keareley, Robert Henry
Stratton, William Robert, B.A. Adey, John Daniel Butler, Edward Charles
Stroud, Douglas Aikenhead
Lamaison, Leonard William Henry Sugar, James Burt
Thew, William Ernest
Torkington, John Kerr
Laws, Edward Lucien
Townshend, Brian Chambré, B A. Bacon, Walter Hugh Carlyon, Herbert Sydney
Lea, Ernest Walter
Turner, Augustus, M.A.
Lester, Horace Lentoa
Turner, Harry Clifford Baines, Alexander Talbot, B.A. Cartmell, Henry Studholme
Lloyd, Harold Montague
Walker, Harold Felvus
Walter, George Andrew
McConnan, Arthur Ellis
Walters, John Howard
McGowan, James, B.A.
McMillin, William John
Watson, Douglas Statham
Manby, Vyvgan Benson, B.A. Waugh, Algernon
Marsh, Dudley Palk
Wells, Charles Henry
Marshall, John Stead Stanley Whittaker, John Henry
Williams, Alured Humphrey
Menzies, Louis Edward
Williams, Hugh Neville
Menzies, William Henry Wood Wills, Henry
Mignon, De la More, B.A.
Wontner, Adrian Russell
Mileham, Edgar Charles
Woods, Francis Edmund Brandling. William Joseph Cox, William Henry, B.A.
Yodliu, Henry Frederick Jonathan Wright, Bernard Swanwick
Mogford, Richard Hambrouk Wright, Charles Reuben
Young, William Henry Valenting Brown, Herbert
Davies, David John
Davies, William Thomas
The following candidates (whose names are in alphabetical order were) Budd, William George De Orellana, Cecil
successful at the Final Examination, held on the 1st and 2nd of Bulcraig, Herbert Henry
Desprez, Carden Charles Soulbieu November, 1897 :Bullock, Albert Henry
Dickson, William Herbert
Arnold, William Channing
Barraclough, John William
Baird, Sydney Malcolm
Barratt, Walter Henry
Baker, Charles Morton, B.A., LL,B. Baxter, Francis William