« PreviousContinue »
right. Jones was entitled to a payment contingent on or varying with the profits of the business, and the receipt of such a payment was primâ facie evidence that Jones was a partner in the business. It was not, however, the intention of the parties to the agreement that there should be any partnership until Jones exercised the option given by him by the agreement of becoming partner. The £500 paid into the banking account by Jones was held to be a loan to Young, and it was paid in on a contract under which Jones was to receive a share of the profits. A contract that a person shall receive a fixed amount out of the profits is equivalent to a contract that he shall receive a share of the profits. An agreement for the receipt of a fixed sum out of the profits is an agreement for the receipt of a share of the profits.
Trustees' Investments and Depreciation. A decision which somewhat clears the path of those willing to fulfil the arduous duties of trustees was that of Re Chapman ; Cocks v. Chapman. There the testator had died in 1880, and part of his estate comprised mortgages on agricultural land, the value of which was falling. Looking at this impending depreciation the trustees took advice as to whether they should hold on, until the apparently temporary depression passed away, or get rid of the estate, and the advice given was to hold on. No improvement, however, resulted, and the trustees were sued for the loss incurred by the beneficiaries under the testator's will. The Divisional Court held that the trustees were liable, following in this case the old practice on the subject. The Court of Appeal, however, reversed this decision, and held that the trustees had only committed an error of judgment such as any one might commit. The evidence shewed that agricultural and other experts would have acted in exactly the same way under the same circumstances, and, therefore, there was no ground for suggesting that there had been any carelessness or neglect on the part of the trustees. The result of the decision, therefore, indicates that it is not actually necessary for an executor to realise his mortgage securities, unless the immediate distribution of the estate is in prospect. When a good mortgage security, in which the testator's property is invested, drops in value, this is not in itself any reason for accusing the trustees of breach of trust for not realising at the best time. As Lord Justice Lindley pointed out, there is no rule which compels the Court to hold that an honest trustee is liable to make good loss sustained by retaining an authorised security in a falling market if he did so honestly and prudently, in the belief that it was the best course to take in the interest of all parties. Since this decision has been given, there has been passed the Judicial Trustees Act, 1896 (59 & 60 Vic., c. 35), under which, if it appears to the Court that a trustee is, or may be, personally liable for any breach of trust, but has acted honestly and reasonably, and ought to be fairly excused for the breach of trust and for omitting to obtain the directions of the Court, the Court may relieve the trustee either wholly or partly from personal liability for the same. This clause is now in force, and legal opinion seems to consider that it is in defiance of all usual equity rules, inasmuch as it makes the more innocent (the cestui que trust) of two innocent persons suffer.
Preference Shareholders and their Shares. The decision in Andrews v. Gas Meter Company shews that it should be made clear whether articles can be altered by special resolution so as to allow of the issue of new preference shares. The memorandum of association of a limited company gave power to increase capital as provided by the articles of association. The original articles had no provisions authorising the raising of preference capital, ncr as to the priority of different classes of shares. The articles were altered so as to allow of the raising of preference shares, but the Court held that the preference shares were issued ultra vires. It appeared that the company for thirty years paid a preferential dividend of 5 per cent. to the holders of the preference shares. The ordinary shareholders had received considerably more in the shape of dividends, but, nevertheless, there was a large surplus available for distribution. The question then arose as to the validity of the preference shares, and as to the right of the preference shareholders to participate in the distribution. Following the decision of Hutton v. Scarborough Cliff Hotel Co. (4 De Gex Jones and Smith), the Court said the company had no right to issue the preference shares, and, moreover, the holders of such shares could not be recognised as shareholders of the company. The only benefit these unfortunate shareholders got, was to have their money returned to them. There have been some other decisions in conflict with Hutton v. Scarborough Cliff Hotel Co. supra, e.g., British Corporation v. Cowper (1894) A.C. 399, but this decision was not followed.
Transfers, Calls, and Contributories. According to the decision in Re National Bank of Wales it would seem to be very imprudent to transfer shares during liquidation, unless the transferee is perfectly solvent. In this case the company was in voluntary liquidation. A shareholder, T., after the liquidation transferred his shares and the transferee transferred them to a third person, and all this was done with the liquidator's assent. A necessity for making calls arising, the question occurred if T. could be placed on the list as a contributory, and the Court held that he could, but that the subsequent transferees were not contributories, nevertheless, it was considered that T. should be indemnified by his transferee, and the latter must be indemnified by his transferee (the third person). Any surplus would then be divided between the transferor T. and the last transferee. Mr. Justice Vaughan Williams pointed out that although a transferee, with the liquidator's consent, had certain rights, such as the right to share in any surplus, the consent of the liquidator did not affect the status of the transferor so as to free him from liability as a contributory. If that could be done, it must be by some order of the Court. Under sect. 153 of the Companies Act, 1862, the Court could say the change of status should not be void in a compulsory winding-up or a voluntary winding-up continued under supervision. If it could be done in a voluntary winding-up under supervision, it must be competent to the Court to do it in a voluntary winding-up without supervision. The status of T. was not affected by the liquidator's assent to the transfers, so as to absolve him from liability for calls on shares. Generally, it is of advantage to companies in voluntary liquidation not to allow transfers, except in cases where it is intended to transfer from a poor man to a rich man.
Change of Name of Registered Trade Mark Proprietor.
Owners of trade marks will be satisfied with a recent decision. In this case the comptroller of Trade Marks, acting in conformance with the decision of a Divisional Court in the case of Re New Ormonde Cycle Co., had altered the register of trade marks by substituting for the name of the “St. Andrews Cycle Company, Limited,” the name of the “ New Ormonde Cycle Company, Limited.” The comptroller had desired that the alteration should be made, and thought it would be better done without application to
the Court. The case, however, was not met by the Rules under nor by the Trade Mark Acts, no actual provision being made for the alteration in the register in the name of the owner of the trade mark, though means were given for the assignment of a trade mark to another person. Mr. Justice North, however, came to the conclusion that the alteration could be made under sect. 87 of the Patents, Designs, and Trade Marks Act, 1883, and gave the comptroller power to make the alteration in the register. If a company which is proprietor of a trade mark changes its name, the new name should appear on the register; and if a lady proprietor of trade mark changes her name on marriage, her married name should appear there; as it is clear that the object of the statute is that the present name of the proprietor of a trade mark should appear on the register. Change of name, although voluntary, may come within the words “ operation of law" as set out in sect. 87, and when a change of name is duly effected, it is the duty of the proprietor to apply to the comptroller to make the corresponding alteration in the register. The cases Re The National Wholesale Tea Supply Association, Limited (10 Rep. Pat. C. 164), as dealing with sect. 92, and Re The Patent Plumbago Crucible Company's Trade Mark (7 Rep. Pat. C. 282), as touching on sect. 90 were quoted, but they did not deal exactly with the point in question. This case Re New Ormonde Cycle Company, Limited, is the first one in which the point as to the change of name of the registered proprietor and the insertion in the register of the new name in the place of the old one, has been argued and settled.
T. F. UTTLEY.