Page images

owners of a business turned it into a limited company, in which they became the only shareholders receiving paid-up shares on the conversion. Two of them, on behalf of the vendors, made with the company an agreement, which was filed before the issue of any shares, fixing the sale price of certain items of property transferred to the company at a much higher sum than that at which the same items were entered subsequently in the books of the company. On the winding-up, the Official Receiver claimed from the two signatories on behalf of the vendors the difference between these two valuations as damages for their misfeasance as officers of the company, and alternatively sought to make them liable for the amount as unpaid on their shares. On a preliminary objection, it was held, that though the joinder of the alternative claims might be inconvenient, it was not embarrassing, and that the claim to make the two vendors contributories was not improper; but that as there were no damages proved, the claim for misfeasance failed, and the claim for contribution failed, on the ground that the Official Receiver had not made out a case to induce the Court to go behind the registered contract.In te

E. J. Wragg, Limited, 75 L.T. 652. (i.) C. D.-Practice-Extending Objects of Company-Order on Petition

Advertising - Companies Acts, 1862 to 1890—Companies (Memorandum of Association) Act, 1890 (53 & 54 Vict., c. 62), s. 1, sub-s. 3.—There is no established practice as to advertising orders under sect. 1, sub-sect. 3 of the Companies (Memorandum of Association) Act, 1890, but the Court can dispense with advertisements of such orders.--In re The Lancaster

Banking Co., Limited, 75 L.T. 647. (ii.) C. D. & C. A.-Winding-up-Mining Lease-DistressValidity against

Debenture HoldersSeizure of Chattels on Neighbouring Land-Bills of Sale Act, 1878 (41 & 42 Vict., c. 31), ss. 4 & 6-Amendment Act, 1882 (45 & 46 Vict., c. 43), ss. 3 & 8Companies Act, 1862, ss. 85, 87, 138.— The day before a mining company confirmed a resolution to wind-up voluntarily the landlord distrained for rent and seized under powers of a lease chattels of the company not within the demise. Held, reversing the decision of the Court below, that the power was not a “ licence to take possession of personal chattels” within the meaning of sect. 4 of the Bills of Sale Act, and was not invalidated by being unregistered (Pulbrook v. Ashby considered). A distress made before a winding-up and before the appointment of a receiver is valid against debentures with a floating charge on the chattels of the company. Biggerstaff v. Rowatt's Wharf (Vol. 22, p. 7, vii.), and in re The Opera, Limited, L.R. (1891] 3 Ch. 260 ; 65 L.T. 371) applied.—In re the Round. wood Colliery Co., Limited ; Lee v. the Roundwood Colliery, L.R. [1897]

1 Ch. 375 ; 75 L.T. 508 & 641. (iii.) H. L.—“One Man" CompanyIndemnityCompanies Acts.—A boot

manufacturer, solvent at the time, converted his business into a limited company, he and six members of his family subscribing the memorandum of association for one £1 share each. The nominal capital of the company was £40,000 in £l shares, and the purchase money was fixed at £38,782, payable £10,000 in debentures and the remainder in cash. The vendor subscribed for 20,000 shares and the funds which came into the business were paid to him and returned to the company. until the 20,000 shares had been by this means fully paid up. The greater part of the rest of the cash portion of the purchase money was applied to the discharge of liabilities incurred before the conversion of the business. No shares beyond the 20,007 were issued. In a few months the company was wound-up, the debentures absorbing all the assets, leaving the trading debts unpaid. Held, reversing the decision of the Court of Appeal, that as the company was constituted in accordance with the Statute, the motive (in the absence of direct

fraud) of those who took part in its promotion was not a subject for enquiry by the Court; that the company was not the agent or the trustee of the vendor, and therefore that he was not liable to indemnify it against its creditors. Erlanger v. New Sombrero Phosphate Co. distinguished. See also Vol. 21, p. 7 (i.).—Salomon v. Salomon & Co.,

Limited, and Cross Appeal, L.R. (1897] A.C. 22; 75 L.T. 426. (i.) C. A.-Winding-upOpposition of Majority of Creditors-Discretion of

Court.-A winding-up order was made on the petition of a debenture holder of a company, notwithstanding that the petition was opposed by the great majority of the debenture holders who were practically the only creditors, and that evidence was given that there were no tangible assets. Held, that as the official receiver was not satisfied that there were no assets to be reached in a winding-up the order ought not to be disturbed.-In re The International Commercial Co., Limited,

75 L.T. 639. (ii.) C. A. -Winding-upTransfer of SharesChange of StatusCompanies

Act, 1862.- Decision of Court below (see Vol. 22, p. 42, i.) reversed.--
In re The National Bank of Wales, Limited, L.R. [1897] 1 Ch. 298;

76 L.T. 1. (iii.) H. L.-Debentures-Floating Security-When Attached.- Decision of

Court below (see Vol. 21, p. 6, iii.) affirmed.—Government Stock Invest

ment Co. v. The Manila Railway Co., L.R. (1897] A.C. 81; 75 L.T. 553. (iv.) C. D.-Liquidation-Debentures-Claim on Uncalled Capital.-" The

undertaking and all the property whatsoever and wheresoever both present and future” of a company which had power to borrow on any of its property, including uncalled capital, was charged as security for money owing on debentures. On the company going into liquidation it was held that the debentures were not a charge on the capital uncalled at the commencement of the winding-up.-In re Streatham and

General Estates Co., Limited, L.R. (1897] 1 Ch. 15; 75 L.T. 574. (v.) C. D.-Debenture HoldersRight to Take Copies of Register of Mort

gages-Companies Act, 1862, ss. 25 & 43—Companies Clauses Acts, 1845, ss. 9, 10, 36, 45, & 119; and 1863, s. 28.—The right of inspection of the register of mortgages which sect. 43 of the Companies Act, 1862, gives to a creditor or member of a company includes the right to take copies of entries in the register.—Nelson v. Anglo-American Land, Mortgage

and Agency Co., Limited, L.R. [1897] 1 Ch. 130; 75 L.T. 482. (vi.) C. D.-Winding-up-Misfeasance-AuditorsCompanies (Winding-up)

Act, 1890, s. 10.—Chartered accountants who have acted as auditors of a company, though not formally appointed as required by the Articles of Association, are properly joined as respondents to a summons for misfeasance under sect. 10 of the Winding-up Act, 1890. Coventry and Dixon's case, 42 L.T. 559; L.R. 14 Ch, Div. 660 applied ; in re London and General Bank, Vol. 20, p. 68 (vii.); and in re Cotton Mills Co., Vol. 21, p. 57 (iii.), considered.—In re The Western Counties Steam Bakeries

and Milling Co., Limited, 75 L.T. 648. (vii.) C. A. & C. D.Right of Creditor to Winding-up Order ex debito

justitiæ-Assets insuficient to meet DebenturesCompanies (Winding-up) Act, 1890.—Having regard to the decision in Solomon v. Solomon & Co., Limited (see above) where all the assets of a company would be absorbed by debentures which have been validly issued to the vendor, a winding-up order cannot be obtained by unsecured creditors.-In re The London Health Electrical Institute, Limited, 75 L.T. 658, and 76 L.T. 98.


(i. C.D. & C.A.-Winding-up-Substratum of Business gone-Fraudulent

PurposeCompanies Act, 1862 (25 26 Vict., c. 89), s. 79, sub-s. 5.-A limited company had been restrained from using the title under which it traded unless it added to it a statement that the company was distinct from an old established firm of the same name. On a petition being presented for winding-up on the ground, inter alia, that it was a bubble company, it was held that a material part of the substratum of the company's business having gone, it was just and equitable a balance of facts shown, that a winding-up order should be made.-In re Thomas Edward Brinsmead & Sons, Limited, L.R. [1897] 1 Ch. 45

and 406; 75 L.T. 585, and 76 L.T. 100. Contract:(ii.) C. D.-Agreement for Lease-Parol Evidence Negative Agreement.

A document in the form of an agreement for the lease of a house was signed by the proposing tenant, and subsequently, but without the intention of contracting, by the other party, and deposited by him with his solicitor with instructions to require a further condition. Held, that parol evidence was admissible to shew that there was no

agreement.-Pattle v. Hornibrook, L.R. (1897] 1 Ch. 25; 75 L.T. 475. (iii.) C. D.—Contract founded on LettersUncertainty of Date-Specific

Performance. A purchaser wrote that he had decided to accept” an offer made by letter of a freehold at the sum asked, but that he should like to know from what time the vendor wished the purchase to date.

Held, to be a completed contract.— Armstrong v. Hughes, 75 L.T. 487. (iv.) C. A.Personal ServicesAgreement to "act exclusively forEmployer.

-An agreement to "act exclusively for” an employer does not, in the absence of a negative covenant, entitle him to an injunction to restrain the servant from entering into the employment of other persons.The Mutual Reserve Fund Life Association v. The New York Life Insurance

Co. and Harvey, 75 L.T. 528. Copyhold :(v.) C. A.Heriots.—A beast never within the manor may be seized for

a heriot (see also_Vol. 22, p. 8, vi.)--Western v. Bailey, L.R. (1897)

1 Q.B. 86; 75 L.T. 470. Copyright:(vi.) C. D.-RegistrationValidityCopyright Act, 1842 (5 & 6 Vict., c. 45),

s. 13Fine Arts Copyright Act, 1862 (25 & 26 Vict., c. 68), ss. 1, 4.Drawings for a trade circular which was prepared by the managing director of a limited company, were paid for, and used by the company. He was registered as proprietor of the copyright in the catalogue and in the drawings; but there was no writing vesting the copyright in him. On an action by him and the company as co-plaintiffs to restrain infringement, held that he had acted as agent of the company, and that the registration was bad under both the Copyright Acts; that even if he were entitled to be registered as proprietor of the copyright in the catalogue, this would not protect the drawings ; and that the action was not maintainable. London Printing and Publishing Alliance v. Cox, 65 L.T. 60; L.R. (1891] 3 Ch. 291, followed. - Petty V. Taylor, L.R. (1897] 1 Ch. 465; 75 L.T. 545.

County Court:(vii.) Q. B. D.--Execution-Claim to Goods--SaleTitle of purchaser.

County Courts Act, 1888 (51 & 52 Vict., c. 43), s. 156.—Where goods which had been seized by a bailiff in execution of a County Court judgment

are claimed by some one other than the judgment debtor, the ways in which the claimant can arrest sale of the goods are stated in sect. 156 of the County Court Act, 1888. If the claimant should not perform any of the conditions, the bailiff must sell the goods; the purchaser without notice of the claim will have a good title.Goodlock v. Cousins, L.R. (1897) 1 Q.B. 348; 76 L.T. 86.

Criminal Law:(i.) Q. B. D.-PleadingCoroner's Inquisition.--A coroner's inquisition

stated the cause of a person's death to be injury from falling into a quarry, and that by the neglect of three persons to fence the quarry the deceased “ fell therein, and therefore the said " (three persons) “ did feloniously kill ” the deceased. Held, that the inquisition was bad, and might be quashed, as the qualification of the finding of manslaught shewed no legal ground for the finding.-Reg. v. The Clerk of Assize of the Oxford Circuit, L.R. (1897] 1 Q.B. 370.

Divorce:(ii.) P. D.-Maintenance and Allowance-Agreement set up in Bar

Matrimonial Causes Acts, 1857 (20 & 21 Vict., c. 85), 8. 32; 1866 (29 & 30 Vict., c. 32), s. 1.--A wife withdrew a petition for dissolution of marriage on an agreement by the husband to make her an annual allowance by way of permanent maintenance for herself and child, to be continued even if the marriage should be thereafter dissolved. On fresh grounds of offence, the wife subsequently obtained à divorce, and on petition for permanent maintenance and for maintenance and ed ation of the child, the registrar held the agreement to be a bar. The Court reversed the decision, but gave the respondent leave to appeal on paying the petitioner's costs up to date, and giving security for her costs on the appeal.—Bishop v. Bishop, 76 L.T. 28.

Easement:(iii.) C. D.-Grant of Right of Way to Lessee who acquires Fee.-A right of

way was granted to a tenant, from year to year, of the dominant tenement, who subsequently acquired the fee. Held, that having regard to the terms of the grant and the surrounding circumstances, the easement survived, and would pass to an assignee.-Rymer v. M'ilroy, L.R. (1897] 1 Ch. 528; 76 L.T. 115.


Ecclesiastical Law:-
(iv.) Consistory Court of London. - Military Colours fixed

Walls of Chancel-FacultyMember of Parliament and St. Margaret's,
Westminster.—Where a former rector and the churchwardens have
without a faculty affixed military colours to the walls of the chancel of
a church, the existing rector has no right without a faculty to remove
them. In such a case of removal from St. Margaret's, Westminster,
a Member of the House of Commons has a sufficient interest to
institute a suit, and the Ordinary has jurisdiction to authorise by
faculty the affixing of such colours to the chancel walls.—Vincent

and Tomlinson v. Eyton, L.R. (1897) P. 1. (v.) P. C.-Simony-False Declaration under Clerical Subscription Act,

1865--Clergy Discipline Act, 1892.–Proceedings cannot be taken under the Act of 1892 against a clergyman charged with simony or with a false declaration under the Act of 1865. Decision of Court below (see Vol. 21, p. 76, ii.) reversed.—A Beneficed Clerk v. Lee, 75 L.T. 461.

(i.) Q. B. D.-Title to Pew in Church.-In a claim of legal right to a pew

as being by prescription annexed to a house, it was held, that the relining of the pew with baize, secured to the woodwork by nails, would not alone be a sufficient act of repair to establish the right, but the right could be established by evidence of exclusive possession, and that the woodwork of the pew was removed and appropriated by the claimant many years before.-Stileman-Gibbard v. Wilkinson and Others,

76 L.T. 90. Estoppel: (ii.) Q. B. D.Matter of Record--Rivers Pollution Prevention Act, 1876

(39 & 40 Vict., c. 75), s. 3, 20.—The defendants in an action in the county court had consented

an order_declaring them to have committed an offence against the Rivers Pollution Prevention Act, and on being summoned for disobedience of the order, sought to shew that they were exempted by sect. 20 of the Act. Held, that the order of the Court was equivalent to a judgment, and that the defendants were estopped from disputing the commission of the offence.—The Joint Committee of the River Ribble v. The Croston Urban District

Council, L.R. [1897] 1 Q.B. 251. Evidence :(iii.) C. D.-Deed more than 30 years old--Executed by Attorney-Power not

ProducedPresumption.—Where no power of attorney is produced, or any evidence of its contents, in support of a deed more than 30 years old, which purports to be an appointment under a special power and to have been executed by an attorney, it was held, on the ground that there is no rule of law requiring the Court to presume that an attorney is duly authorised that the title of the appointees was not made out.

In re Airey; direy v, Stapleton, L.R. (1897] 1 Ch. 167; 76 L.T. 151. Executor:(iv.) C. D.-Misappropriation-Bankruptcy-Injunction.—The Court has

jurisdiction without appointing a receiver to restrain a person from acting as an executor.Bowen v. Phillips, L.R. (1897] 1 Ch. 174;

75 L.T. 628. Fixtures :(v.) C. A.-Engine under Hire and Purchase-Attached to SoilMortgagee

in Possession Rights of Vendor, of Hirer, and of Mortgagee.—A mortgagee of land in fee, who enters upon the mortgaged premises, can take possession of an engine which is attached by bolts and screws to the soil, although the engine never was the property of the mortgagor, and whether it was fixed before or after the date of the mortgage. The vendor on the hire and purchase system of an engine so fixed can remove it, so long as the freehold of the land is in the purchaser of the engine, if instalments are in arrear, but he has no such right in law or equity against a purchaser of the land without notice of his claim. The vendor's remedy is then by action against his purchaser for the price of the engine, or for damages for its loss, or if the purchaser is bankrupt by proof against his estate. If a licence is given by a mortgagee to remove a fixture during the continuance of a term, entry by him determines the licence.- Hobson v. Gorringe,

L.R. (1897] 1 Ch. 182 ; 75 L.T. 610. Factory and Workshop Acts :(vi.) Q. B. D.-Dangerous Machinery-Shuttles-Factory and Workshop

Acts, 1878 (41 42 Vict., c. 16), s. 5, sub-s. 3 ; 1891 (54 & 55 Vict., c. 75), s. 6, sub-s. 2.-Shuttles of looms in a cotton factory, if they are

« PreviousContinue »