Page images
PDF
EPUB

(i.) C. D.- Reduction of Capital— Powers of Memorandum and Articles

Opposition by Shareholder-Companies Acts, 1867, ss. 11, 15; and 1877.-A company had in its memorandum of association a clause that shares might be “divided into different classes with such preference priorities, restrictions, or special incidents, as may from time to time be provided by the articles and special resolution of the company”; and there was a power in the articles to attach or take away priorities from any shares by special resolution. An article was subsequently added giving power to reduce capital, and a resolution was passed and confirmed to cancel a certain number of deferred shares and to convert the remainder of the deferred shares into ordinary shares. On the petition being presented it was opposed by a holder of ordinary shares who was also a creditor. Held, that having regard to the clauses in the memorandum and articles, the resolution was not ultra vires; that the objecting shareholder had full notice of the proposal; that bis position as a creditor was not affected ; and that the resolution was

not inequitable.-In re The Hyderabad (Deccan) Co., Limited, 75 L.T. 23. (ii.) C. A.-Winding-up-Distress for Interest by MortgageesCompanies

Act, 1862, 88. 87, 163.—Where on the winding-up of a Cotton Mill Co. the liquidator had continued the business in order to sell the undertaking as a going concern, leave was refused to mortgagees to distrain for interest accrued due during the liquidator's possession as his efforts were as much in their interest as in that of the creditors.-In re Higginshaw Mills and Spinning Co., Limited ; the Manchester and County

Bank v. the Higginshaw, &c., Co., L.R. [1896] 2 Ch. 544; 75 L.T. 5. (iii.) H. L.- Interest out of Capital on Prepaid Calls.—Decision of C. A.

(see Vol. 21, p. 58, ii.) affirmed.-Lock v. Queensland Investment and

Land Mortgage Co., Limited, 75 L.T. 3. (iv.) H. L.-Fraudulent ProspectusRepudiation of Contract to Take Shares

- Calls.-Where a defendant pleads in an action for calls on shares that he was induced to take the shares by fraud, it lies on the plaintiff to shew that the defendant adhered to the contract after he discovered the fraud. A document which is intentionally made to convey a false impression upon which persons are induced to act is false and fraudulent although no specific statement in it is proved to be false.

Aaron's Reefs, Limited v. Twiss, L.R. [1896] A.C. 273; 74 L.T. 794. (v.) C. A.- Option to Call for SharesBreach of Contract-- Measure of

Damages.-A company agreed to give to a person an option or call on some of its shares up to a fixed date, but before that date entered into a contract to sell its assets to another company. Held, that in estimating the damages, if any, of the option holder the price paid by the purchaser should alone be taken into account. In re The South

African Trust and Finance Co., Limited; e. p. Hirsch & Co., 74 L.T. 769. (vi.) C. D.--Borrowing Powers— Articles of Association, Uncalled ('apital.

-Where articles of association, but not the memorandum, authorised a company to borrow on its property and effects, it was held that it could mortgage its uncalled capital.-Jackson v. Rainford Coal Co.,

L.R. (1896] 2 Ch. 340. (vii.) H. L.-Judgment of C. A. (see Vol. 20, p. 37, ii.) affirmed; but each

party_to pay own costs.-Craig v. Midland Coal and Iron Co.,

74 L.T. 744. (viii.) C. A.- Prospectus - Omission of Facts -- Rescission of Contract ?

Decision of C. C. (see Vol. 21, p. 74, vi.) affirmed.—McKeown v.
Boudard Peveril Gear Co., Limited, 84 L.T. 712.

(i.) C. A.-Winding-up - Shares Allotted as fully paid-Liability of Holder

-Companies Act, 1867, s. 25.--The holder of shares purporting to be fully paid, of which he was the original allottee, is liable to be placed on to the list of contributories in a winding-up, if he had knowledge of facts which should have led him to the conclusion that the shares were not paid up as described. The Building Estates Brickfield Co., Limited ; Parbury's Case (see Vol. 21, p. 37, ii.) followed.—In re Veuve Monnier

et ses fils, Limited ; e. p. Bloomenthal, L.R. [1896] 2 Ch. 525 ; 74 L.T. 670 (ii.) C. A.--Winding-up--Offer to Underwrite--Acceptance after close of

Public Subscription.-Decision of Court below (see Vol. 21, p. 75, v.) reversed.-In re The Hemp Yarn and Cordage Co., Limited; Hindley's Case,

L.R. (1896) 2 Ch. 121 ; 74 L.T. 627. (iii.) C. A.-Companies (Winding-up) Act, 1890—-Misfeasance-Directors

Auditors.--(See Vol. 21, p. 57, ii.). Affirmed as to misfeasance. An auditor is not an insurer, and where there is nothing to excite suspicion, less care may be reasonable than would be so considered if suspicion ought to have been aroused.In re The Kingston Cotton Mill Co., Limited ;

e. p. Pickering and Peasegood, No. 2, L.R. (1896] 2 Ch. 278; 74 L.T. 568. (iv.) C.D.--General Meeting--Evidence of Resolution-Extraordinary Meeting

-Sufficiency of Notice Companies Act, 1862, s. 51. — Though by sect. 51 the declaration of the chairman of a general meeting of a limited company is “conclusive evidence” that a resolution has been carried, the Court may enquire whether the provisions of the Act has been complied with. A statement in a notice convening an extraordinary general meeting that a resolution rescinding Table A which was to be submitted could be seen at the offices of the company's solicitors was held sufficient.—Young v. South African and Australian Exploration

and Development Syndicate, Limited, L.R. [1896] 2 Ch. 268; 74 L.T. 527. (v.) C. D.-Winding-up-Debentures-Covering Deed Poor and General Rate

-Distress.—Goods of a company in hands of a receiver for the trustee of a covering deed securing debentures are not distrainable for poor or general rates.- Richards v. Overseers of the Poor of the Parish of

Kidderminster, L.R. [1896] 2 Ch. 212; 74 L.T. 483. (vi.) C. A.-Preference Shares-Cumulative or Non-Cumulative Dividends ?

The memorandum of association of a company provided that “holders of preference shares shall be entitled out of the net profits of each year to a preference dividend at the rate of 10 per cent. per annum.” Held, that these dividends were not cumulative.-Staples v. The Eastman

Photographic Materials Co., L.R. (1896] 2 Ch. 303; 74 L.T. 479. (vii.) C. A.-Floating Security-DebenturesDate of Assignment-Set-of

Receiver-Goods Paid For but not Delivered-Managing Director.Debentures issued as floating security over assets of a company operate as an assignment of debts due to the company on the appointment of a receiver, but until assignment there is a right of set-off. A purchaser of goods paid for and delivered only in part, and not ear. marked, has a claim for liquidated damages for money had and received on a consideration which has totally failed. Persons dealing with a managing director who acts within his apparent authority have a right to assume that he is properly appointed. --Biggerstaff v. Rowatts Wharf, Limited; Howard v. Rowatt's Wharf, Limited, L.R. (1896]

2 Ch. 93 ; 74 L.T. 473. (viii.) C. A.-Powers of Board to deal with Business without Notice.—A board

of directors can deal at any meeting with all business of the company, whether it has been announced or not in a notice summoning the meeting.-La Compagnie de Mayville v. Whitley, L.R. [1896] 1 Ch. 788 ; 74 L.T. 441.

(i.) C. A.-Winding-up-Scheme of Arrangement - Meaning of Discount "

for Prepayment of Calls.—The word “discount" in an essentially commercial document means “rebate of interest;” not present value.”In re the Land Securities Company, Limited; e. p. Farquhar,

L.R. [1896] 2 Ch. 320 ; 74 L.T. 400. (ii.) C. D. & C. A.-Underwriting Contract to Subscribe for Shares

Withdrawal-Irrevocability-Companies Act, 1862, s. 35.-An underwriting contract to subscribe for shares in a company was entered into with the promoter by a person who, before allotment, repudiated the agreement. Held, that the contract was an authority coupled with an interest and irrevocable. -In re Hannans Empress Gold Mining and Development Co., Limited, 74 L.T. 550 ; 75 L.T. 45.

Contract:(iii.) P. C.--Indemnity-Estoppel-Abandonment of Claim.-A guarantor,

who had agreed to indemnify a joint guarantor for a loss suffered, sought to have the agreement of indemnity discharged. Held, that in absence of a contract to discharge it, it could be enforced notwithstanding an express representation of an intention to abandon it.-

Chadwick v. Manning, L.R. (1896] A C. 231. (iv.) H. L.-Implied Condition of FitnessSale of Goods Act, 1893, s. 14–

Evidence.-Evidence of negotiation prior to contract is admissible to raise the implication of condition specified in sect. 14 of the Sale of Goods Act, 1893.-Gillespie Brothers and Co. v. Cheney Eggar and Co.,

L.R. (1896] 2 Q.B. 59. (v.) C. D.-Option Limited in Time-Exercised by Unauthorised Agent

Ratified after Limited PeriodInvalid.--A partnership deed provided for the purchase of the business by the surviving partner on notice within a given time after the decease of the other. Such notice was given on behalf of the surviving partner (a person of unsound mind) by his solicitor without authority. After the given time had expired, & further notice was given under the Lunacy Act. Held, that both notices were invalid.—Dibbins v. Dibbins, L.R. [1896] 2 Ch. 348 ; 75 L.T. 137.

Copyhold :(vi.) Q. B. D.-Heriots.—The lord's right to a heriot may exist in copyhold

as well as in freehold tenements of a manor.- Western v. Bailey, L.R. [1896] 2 Q.B. 234.

Corporation of London :(vii.) H. L.-RevenueMetage on Grain Act, 1872, s. 4.—(See Vol. 21,

p. 38, i.) Affirmed.—Cotton v. Vogan & Co., 74 L.T. 598.

Costs :(viii.) C. A.-Administration for purpose of Making Title-Lands Clauses Act,

1845, s. 80.—Where a railway company took leasehold lands settled on a life tenant under a will with remainder to several legatees who predeceased the life tenant, it was held that the company was liable under sect. 80 of the Act for the costs of administration to the legatees in remainder, but not to costs of administration to the original testator. (In re Midland Great Western (Ireland) Railway; e. p. Rorke (1894], İr. Ch. 146; and City of Dublin Junction Railways; e. p. Kelly, 31 L. Rep. Ir. 137, followed.)—In re Lloyd and North London Railway (City Branch), L.R. (1896] 2 Ch. 397; 74 L.T. 548.

Counsel:(i.) Q. B. D.- County Court CostsCounsel's FeesSpecial Allowance.

The special item, No. 8h, can only be allowed once in the same case, though counsel may have been in Court more than once.-Atkinson v. Carlisle (Mayor of), L.R. (1896] 1 Q.B. 393.

County Court :(ii.) Q. B. D.-Action in County Court by Trustees of Charity-Rent Charge

- Question of Title-Charitable Trusts Act, 1853, s. 41-County Courts Act, 1888, s. 60.-An action to recover £10 arrears of rent charge brought by trustees of a charity after leave obtained under sect. 17 of the Charitable Trusts Act was held to be within the jurisdiction of a county court as not being a “proceeding ” within sect. 41 of that Act; as not raising a question of title to land under sect. 60 of the County Court Act; and as the value of the hereditament did not exceed £50 a year. Bassano and Others v. Bradley and Others, L.R. [1896]

1 Q.B. 645; 74 L.T. 553. (iii.) Q. B. D.-High Bailif-Failure to Levy-Remedy-County Courts Act,

1883, s. 49.- The remedy given by sect. 49 of the County Courts Act against a high bailiff who has negligently failed to levy execution, is not in substitution but in addition to the common law action.-Watson

v. White, L.R. [1896] 2 Q.B. 9; 74 L.T. 702. (iv.) C, A.- Practice-Joinder of Plaintiffs--Separate Causes of_Action

County Court Rules, 1882, 0. iii., r. 1; 0. xliv., rr. 18, 19Employers Liability Act, 1880, 8. 6, sub-s. 3.—Though out of one act of a defendant several plaintiffs may have cause of action, they cannot be joined under 0. iii., r. 1, in a county court action. And 0. xliv. of the county court rules and sect. 6 of the Employers Liability Act, 1880, make no exception to this rule.-Carter and Others v. Rigby & Co.,

L.R. (1896] 2 Q.B. 113; 74 L.T. 744. (v.) Q. B. D.-Administration of Insolvent Estate-CostsDiscretion of

Registrar-County Court Rules, O. 50 A., r. 20.-In taxation the administrator of an insolvent estate is allowed only such costs as are necessary in the discretion of the registrar for the protection of the

estate.- Pain v. Bowden, L.R. [1896] 2 Q.B. 301; 75 L.T. 102. (vi.) Q. B.-Claim under a Counter Claim over £20— Appeal without Leuve

- County Court Act, 1888, s. 120.—The right of appeal under sect. 120 of the County Court Act, 1888, applies when the counter claim exceeds £20 although the plaintiff's claim is below that amount.-Smith v. Gill, L.R. (1896] 2 Q.B. 166.

Constitutional Law:(vii.) At Bar.--Foreign Enlistment Act, 1870Construction--- British Subject

out of JurisdictionIndictment-- Allegations. When a statute is applic able to the Queen's Dominions it applies to all the Queen's subjects. Therefore, a British subject may commit a crime within the jurisdiction while he is beyond the Queen's dominions. Such a statute also applies to foreigners during a residence within the dominions. In an indictment for an offence against the Foreign Enlistment Act, 1870, it is sufficient to allege that the Act was in operation where the alleged offence was committed ; and the conclusion of the indictment that the offence is against the form of the statute and against the peace of the Queen is sufficient without stating that the defendants are subjects of the Queen.--Reg. v. Jameson and Others, 75 L.T. 77.

Covenants :(i.) C. A.- Restrictive Covenants Variation Private Treaty. (See

Vol. 21, p. 75, vii.) Affirmed. Knight v. Simmonds, L.R. (1896] 2 Ch. 294; 74 L.T. 563.

Criminal Law:(ii.) Q. B. D.--Contempt of Court-Impending Trial-- Newspaper Comments.

-An applicant for a writ of attachment for contempt of court against the writer and publisher of articles in a newspaper commenting on criminal charges under investigation, must shew that something has been published which either is intended, or is calculated, to prejudice a trial which is pending.- Reg. v. Payne & Cooper,

L.R. (1896] 1 Q.B. 577; 74 L.T. 351. (iii.) Q. B. D.- Intent to Defeat CreditorsDebtors Act, 1869, s. 13, sub-s. 2.

-A defendant in an action for unliquidated damages who, before judgment, gives a bill of sale to defeat the plaintiff, cannot be convicted under the Debtors Act, as the plaintiff is not a creditor of the defendant until recovery of judgment.-Reg. v. Hopkins & Ferguson,

L.R. [1896] 1 Q.B. 652. (iv.) Q. B. D.-Practice-Indecent Assault-Evidence of Complaint made

by Prosecutrix in absence of Prisoner.-In a trial of an indictment for assault on a female, if the prosecutrix has made a complaint immediately after the occurrence, the whole statement containing her alleged complaint should be submitted to the jury.Reg. v. Lillyman, L.R.

[1896] 2 Q.B. 167; 74 L.T. 730. (v.) Q. B. D.-Evidence-Statements made by a Bankrupt on Bankruptcy

Examination-Bankruptcy Acts, 1883 and 1890.—A bankrupt's statements in his examination are not induced by undue influence and are, there. fore, admissible in evidence against him unless excluded by sect. 27 (2) of the Act of 1890, and oral evidence of them is not excluded by sect. 17 (8) of the Act of 1883.-Reg. v. Erdheim, L.R. [1896] 2 Q.B. 260 ;

74 L.T. 734. (vi.) C. C. R.-Offence not Originally Indictable-Claim to be Tried by

Jury Indictment - Necessary Averment Summary Jurisdiction Act, 1879, s. 17.—Where a person charged with an offence which is punishable summarily claims to be tried by jury in accordance with the provisions of the Summary Jurisdiction Act, the fact that the indictment is preferred in consequence of his claim is not a necessary averment.-Reg. v. Chambers, 75 L.T. 76.

Crown:-(vii.) H. L.-Salmon Fishings-Crown Claims.—Where the Crown appears

to have rights to salmon fishings, the Court will stay an action in which they are in dispute pending a decision of the Crown authorities to intervene.-Ogston v. Stewart, L.R. (1896] A.C. 120.

Design: (viii.) C. A.-Copyright-New or Original Design-Patents, Designs and Trade

Marks Act, 1883, ss. 47, 50, 60, 90, and 1888.-A combination of old shapes may result in a new or original design for shape; but an old shape, or an old shape with the omission or addition of unimportant detail, applied to a new use will not be protected by the Acts if registered.-In re Clarke's Registered Design; Clarke v. Šax and Co., Limited, L.R. (1896] 2 Ch. 38; 74 L.T. 631.

« PreviousContinue »