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the reduction of the contracts of an insolvent life assurance company. Section paid a premium ou bis admission to the partoership, was entitled to a return
to go on with the partnership subsequently to his alleged discovery of the
terms might be a misfortune, but it
was not miscondact. It certainly was not within the rule that tbere must to everyone to whom the company was under a liability. This being so, on what principle should the court fix the date from which the reduction was to take
be gross misconduct to disentitle a partner who had paid a premium to a effect? It was said by those creditors whose claims had ripened since the
return of part of it in case of a dissolution before the expiration of the presentation of the petition that they ought to be paid in full. But, if the partnership term. And, as to the allegations contained in the affidavite, winding up had gone on, they would have only got a dividend from the
bis lordship agreed with Fry, J., that for this purpose allegations made in liquidator, and why should they get a benefit which ihey would not have got the action for dissolution could not be looked at. And, though the afidavits if the winding up bad gone on? The reduction was a substitute for the
were made in the other action, the two actions were in substance one. The winding up, and the substitution of one form of order for another was not
second action was in effect & counter-claim to the first. He should have intended to alter the rights of any persons. And, because the creditors who been of the same opinion, even if the second had been an independent became such before the presentation of the petition would get paid in full, action, for the allegations in question did not amount to a charge of fraud there was no reason that that preference should be extended. The Legislature against Y—; and there was nothing to show that they were false to the probably thought that the persons who would get that preference would be knowledge of B- His lordship added that the mere fact of incomfew in number, because if an insurance company did not pay its policies, pro- petenoy was not a bar to a return of premium, though it might be taken ceedings would soon be taken to wind it up. But the fact that there would into account in estimating the amount which should be returned. Unless be an injustice which could not be remedied was no reason for extending it. it was shown that the incompetency had actually occasioned some loss or His lord ship thought that the date of the settlement of the scheme would be an damage to the other partner, it ought not to prevent a return of premium. impossible time to fix for the operation of the reduction, for the amounts of His lordship also said that he thought that in the case of Bluck v. Capstick the assets and liabilities must be ascertained before the scheme could be (28 W. R. 75, L. R. 12 Cb. D. 863), Fry, J., had gone too far in saying settled. Nor would the date of the order directing the scheme to be settled do, that "there is no case in which a return of premium has been ordered when for that would make the rights of the parties depend on a mere accident the partner who has paid the premium bas himself brought about the disAnd this observation applied equally to the date of the order on the appeal. solution by his own miscondact." There had certainly been cases in which The rights of the parties ought not to depend on such accidents, and the date the partner who had been in the wrong, and who had brought about the of the presentation of the first petition, which would have been the date of the dissolution, had still got back a part of the premium which he had paid. commencement of the winding up, if a winding-op order had been made, was BRETT, L.J., said it was clear that no part of the premium could be recovered the proper date to fix. BRETT, L.J., said that, if a winding-up order had at law; this could only be done by reason of an equity, which appeared to him been made, it would have taken effect according to the state of things at the a very right and just equity. As at present advised he was strongly of date of the presentation of the petition, and therefore the Vice-Chancellor said opinion that mere incompetency, without any evidence of damage to the other that, unless there was some special reason to the contrary, the same day partner, would not be a sufficient ground for refusing a return of premium. should be fixed for the operation of the scheme of reduction. The question was Would it be equity that, merely because a man was found to be incompetent, whether, on the true construction of the Act, this was right? The Act did he should be fined £2,500 ? The other partner might be entitled to get rid of not fix any time, and his lordship would not say that, under some special him, but it seemed to his lord ship that it would be utterly unjust that be circumstances, some other date than that of the presentation of the petition should keep all the premium. 'If, however, damage had resulted to the might not be fixed, but, in the absence of any special circumstances, be thought business from the partner's incompetent acts, that ought to be taken into that date was the proper one to fix. HOLKER, L.J., said that section 22 gave account in estimating the amount of premium to be returned. But here the a large power and a large discretion to the court,
and in determining what was alleged incompetence had manifested itself before Y- had expressed his just the court must have regard to all the circumstances of the particular case. readiness to continue the partnership on different terms. After this he could It could not be just to fix a date the result of which would be to enable a not be allowed to say that B- -- was so incompetent that he could not go on numter of creditors to be paid in full who would bave only received a divi- with him as a partner. It was too late to take the objection. And, as to the dend if a winding-up order had been made. Jessel, M.R., added that he did objection of misconduct, bis lordship thought that it was necessary t) show not differ from the view of the Lords Justices as to the discretion of the some misconduct in the business. As to the not providing the fresh capital, court. He only intended to lay down that, as a general rule, the date of the a mere breach of contract was not only not gross misconduct, but was not presentation of the petition was the proper date. "He did not intend to say misconduct at all, though of course the circumstances under which the breach that the special circumstances of the particular case might not afford a reason of contract took place might make it amount to misconduct. It was said, for varying the date.-SOLICITORS, Longcroft & Myers ; G. Blagden ; Crump & however, that Bhad made frivolous, vexatious, and untrue allegations Son ; Bellamy, Strong, & Co.; Dean, Chubb, f Co., Miller f. Vernon ; W. Flux against Y- for the purposes of the action. There was not the slightest & Co. ; Ashurst, Morris, & Co.
evidence that any of these allegations were true, and many of them at first
sight looked very frivolous. But they were in effect brought forward in the PARTNERSHIP - DISSOLUTION RETURN OF PREMIUM MISCONDUCT OR action for dissolution, and his lordship agreed with Fry, J., that for this INCOMPETENCY OF PARTNER PAYING PREMIUM—INTEREST.-In a case of purpose nothing which had been done in the action for dissolution could be B~Y~, before the Court of Appeal on the 10th inst., the question relied on. Whether anything which
had been done in a previous action could arose whether, on a dissolution of a partnership, one of the partner?, who had be taken into account he would not say. Whers, however, there were two
cross-actions of this kind, and a decree for dissolution was made in them both, any part thereof. The testator died in 1866, and in 1881, after the death of he thought it would
be entirely wrong to treat the two actions otherwise than the wife, the trustees, professing to exercise the power of sale, entered into an as one. HOLKER, L.J., would not go the length of saying that incompetency agreement to sell part of the estate. The beneficial interests under the will would never, under any circumstances, be a ground for refusing a return of had become absolutely vested in persons who were sui juris, and the purchasers premium, for the partner who had received the premium might have consented objected that, this being so, the power of sale had come to an end, and that a to take a less premium than he otherwise would under the belief that the other good title could not be made without the concurrence of the beneficiaries. would be of use to him in his business, and if it afterwards turned out that he Fry, J., held that the power was still subsisting. He said that it was a could be of no use at all, this might be a good reason for not ordering a return question of the intention of the settlor, and if it was his intention that such a of the whole premium. It was not, however, necessary to decide the point power of sale should exist after the estate bad become absolutely vested in now. As to the imputations made against Y-, his lordship thought that persons sui juris, there was no reason why it should not be exercised during the they could not be considered as misconduct on tbe part of B-, because period fixed, provided that the period did not (as it did not in the present case) they were not misconduct in the conduct of the partnership, business. And exceed the legal limit. Of this rule the case of Lantsbery v. Collier (2 K. & J. there was nothing to show that the imputations were, to the knowledge of 709), and the recent case of Peters v. The Lewes and East Grinstead Railway B—, unfounded.
Company (29 W. R. 874, L. R. 18 Ch. D. 429), were illustrations. It was The question was also raised whether interest ought to be given on the clearly the intention of the testator in the present case that the power should amount of premium returned, and reliance was placed on the case of continue in any event until the end of the period which he named. Of course, Wilson v. Johnstone (L. R. 16 Eq. 606), in which a part of a premium the persons absolutely entitled might now, if they chose, at any time pat paid by a partner was ordered to be returned to him, with interest an end to the trusts altogether, but it was not alleged that they had done so.thereon from the time of the dissolution, but the question of interest does not SOLICITORS, Prideaux f. Son; Gedge, Kirby, f Co. appear to have been argued there. The court held that interest should be given, but only from the date of the chief clerk's certificate, inasmuch as the defendant could not pay the som until the amount had been ascertained. SOLICITORS, 4. Leslie ; Merriman, Pike, Merriman.
CASES BEFORE THE BANKRUPTCY REGISTRARS.
(Before Mr. REGISTRAR Hazlitt, acting as Chief Judge.) PRACTICE-COUNTER-CLAIM— Right TO RELIEF AGAINST THIRD PARTY
Feb. 10.-Ex parte Shubrook, Re Mannheimer. -JUDICATURE ACT, 1873, s. 24, SUB-SECTION 3—ORD. 16, R. 17—ORD. 19, R. 3—ORD. 22, R. 10.-In a case of Barber v. Blaibery, before Fry, J., abroad to give security for the trustee's costs upon an application to
It is contrary to the practice of the court to require a creditor resident on the 15th inst., a question arose as to the right of the defendant to an action admit the creditor's claim
against the estate, notwithstanding its partial to obtain, by means of a counter-claim, relief against a third party whom he makes a defendant to his counter-claim. The plaintiff brought the action rejection by the trustee. against the defendant Blaiberg alone, alleging that a bill of sale of certain This was an application on behalf of Joseph Shubrook, the trustee of the chattels had been duly executed in his favour by one Bass, and that Blaiberg estate and effects of Wolfgang G. Mannheimer, for an order that Heinrich had forcibly seized the chattels. And he claimed the return of the goods, and Steinsberg, of Galatz, in Roumania, mercbant, might be directed to give damages for their wrongful detention. Blaiberg delivered a statement of security for the said trustee's costs in respect of the application made by him defence and a counter-claim, to which he made Barber and Bass defendants. to have his claim admitted against the estate of the debtor, notwithstanding By bis statement of defence he alleged that Barber's bill of sale had not been its rejection by the trustee, to the extent of £200, and that, in the meantime, executed bona fide, and that a bill of sale of the same goods, with others, to all further proceedings in relation to the said application might be stayed. secare £110 had been executed by Bass in his favour, without notice of the F. 0. Crump, for the trustee, in support of the application. bill of sale to Barber, and he charged the defendants with fraud. And by his Yate Lee, for the creditor, took a preliminary objection, on the ground that counter-claim he claimed, as against both Barber and Bass, a declaration that the application was wholly without precedent. he was entitled to the goods comprised in his bill of sale; an injunction to Crump.- Although there is no absolute rule which requires a creditor resident restrain both Barber and bass from parting with those goods; an order that abroad to give security, rule 127 shows that the creditor is to bear the cost of they jointly and severally should pay to Blaiberg the balance of the debt due making proof of his debt uoless the court shall otherwise specially order. to him, after deducting the value of the goods; an order, in the alternative, That rule can be of no effect whatever if a person resident abroad can tender a that Bags should pay to Blaiberg the amount remaining due on his mortgage, proof without paying the costs. The creditor incurs no risk, whereas the with interest and costs ; an order, in any case, that Bass should pay to Blaiberg trustee may become liable to serious costs. In 1873, Mr. Registrar Murray all costs, &c., incidental to the seizure by him of the goods, and damages for made an order, Re Deveze, requiring a foreign creditor, upon an application for his fraud and misrepresentation. Bass by his reply insisted that the bill of the delivery up of bills of exchange, to give security for costs. sale to Barber was executed bona fide, and denied the validity of the bill of Mr. REGISTRAR Hazlitt said that when a creditor received notice that bis sale to Blaiberg, asserting that it had been obtained from him by fraud. At proof was rejected, it was his business to come to the court and to support the the trial Blaiberg abandoned the charges of fraud, and also abandoned the proof, and he must pay the costs of doing so, but the trustee, on the otber relief asked by the counter-claim against Barber, but insisted on the relief band, must bear the costs of opposing the proof. The present application thereby claimed against Bass. The objection was then taken tbat the counter- must be refused, with costs. claim could not be maiotained against Bass alone. Relief could not be granted
Solicitors for the trustee, Crump & Son. against a third party. In answer to this it was said that Bass had waived the Solicitors for the creditor, Bolion, Robbins, & Busk. objection by putting in a reply to the counter-claim. Fry, J., said that the relief claimed by Blaiberg against Bass was not a matter “relating to or con. nected with the original subject of the cause or matter." The subject of the original cause was Barber's right to have the goods which Blaiberg had seized.
QUEEN'S BENCH DIVISION. The two matters were totally distinct, and ought to be made the subject of dis.
(Sitting in Banc, before POLLOCK, B., and MANISTY and STEPHEN, JJ.) tinct litigation. The other parts of the counter-claim
having been abandoned, it must be dismissed, with costs.-SOLICITORS, P. Vernede; Moresby-White
February 21.-Re Symons. * & Co.; John Hopkins.
This was a rule calling upon Mr. Symons to show cause why a writ of attachment should not issue against him for contempt of court, in having
acted as a duly qualified solicitor, by having sued out a writ in the High SETTLEMENT-POWER OF SALE-DETERMINATION. –In a case of Cotton's Court in an action. Trustees to the School Board for London, before Fry, J., on the 11th inst., the It appeared that Symons, now in business at Barnstaple as an accountant, question arose whether a power of sale, given by a testator to the trustees of an wus formerly, for twenty years, clerk to a firm of solicitors. Since he has estate which he had settled by his will, had come to au end by reason of the been an accountant he wrote to a person named Vicary and demanded payestate having, under the provisions of the will, become absolutely vested in ment of a sum of money due to one Docking. The letter concluded with a persons who were sui juris. The testator devised the estate to the trustees in request that Vicary would not say anything about having received the letter fee, upon trust to raise by way of mortgage a sum of £30,000, which they were from Symons. A few days after the receipt of the above letter, a writ, pur. to hold on certain trusts, and, subject thereto, that the trustees should, for so porting to be issued by C. Smale, a solicitor, but which was not signed in long as they should think fit, during a period commencing at his decease, and accordance with ord. 5, r. 7, was served upon Vicary, the address for service ending at the expiration of a term of twenty-one years from the decease of the on the writ being Symon's offices in Barnstaple. At the time of the issuing last survivor of the several persons named in his will, manage the estate in of the writ Soale was in London, but Symons telegraphed to him saying that whatever manner they should deem expedient, they exercising, as regarded he had issued the writ in his (Smale's) name, and asking him to telegraph such management, all and every or any of the powers and discretions therein. back that he confirmed what had been done. Smale did 80. On after given to them, in conformity nevertheless with the express restrictions being served with the writ Vicary took it to his solicitor, who, seeing that it and qualifications thereinafter contained. And, subject thereto, the testator was unsigned, investigated the matter, and wrote to Smale to ask whether declared that his trastees should stand seised of the estate in trust for his wife the writ was issued by his authority. Then Smale denied that he had autho. for her life, with remainder in trust for bis children in certain shares. T. rized Symons to issue the writ. Smale's explanation was that in a former testator then, after stating that the estate consisted in part of building sites and matter a Mr. Bencraft, a solicitor, acted for him, and that Symons was then land adapted for building, and in other part of incomplete buildings and Bencraft's clerk, and that when he received Symons' telegram, he thought works, and that it was his wish that such sites and land should be built upon, that Symons was still with Bencraft, and that Bencraft was again acting for laid out for building, and otherwise improved, and that such incomo him. plete buildings and works should be completed as expeditiously as H. D. Greene showed cause.-Symons never acted as solicitor. In his affi. circumstances would reasonably admit of, proceeded to give to his davit he says that he told Smale that Docking would require a writ to be trustees various express powers for the management of the estate, such issued against Vicary, and asked if he should issue it in bis name, and that as a power to grant leases, a power to purchase and to sell building materials, Smale assented. Symons then issued the writ, and forwarded a copy, together and a power to raise money by mortgage. And, finally, he gave the trustees power, at any time during the period before mentioned, to sell the estate or
* Reported by W. Blew, Esq., Barrister-at-Lay
with the papers, to Swale in London, and asked by telegram for confirmation passengers between Kingstown and Londɔn, via the company's steamers and of what he had done. [STEPHEN, J.-Why, if he was acting with Smule's N. W. Company's trains was refused on the ground that the D. Steam Packet authority, did he telegraph for more authority ? It looks as though he were
Company bad agreed (under statutory powers) that the charges for the conveye conscious of doing wrong.]
ance of passengers' traffic between London and Kingstown were to be fixed froin Murray, in support of the rule.- The Incorporated Law Society have felt time to time, as regards the through rates, by the railway company. themselves compelled to take up this case, in order to check, if possible, the
Semble, that a company or persons using or working steam vessels for the
purpose of carring on a communication between any towns or ports are entitled growing practice on the part of unqualified persons of acting as qualified to apply for through rates under section 11 of the Regulation of Railways Act, solicitors. These offenders are generally people with some legal knowledge, 1873. for Symons advertises that he draws wills, agreements, notices, and obtains A railway company are not under any obligation to issue a through ticket for probate. Symons knew he was acting illegally, or why did bé tell Vicary any train not forming part of a through service. not to say anything about the letter threatening proceedings on default of Upon complaint by the D. Steam Packet Company that the N. W. Railway payment, and why did he telegraph for authority after the issue of the writ?
Company had not complied with section 16 of the Regulations of Railwats Act, POLLOCK, B.- I only hope that, in any expression of opinion to which I may 1868, which enacts (inter alia) that “where an aggregat: sum is charged by the give utterance, I shall not be understood to imply that I am disposed to tolerate company for conveyance of a passenger by A steam vessel and on the railway, the such conduct as that of which Symons has been guilty. But before dealing ticket shall have the amount of toll charged for conveyance by the steam ve sel
distinguished from the amount charged for conveyance on the railway," it wus with his conduct in particular, I think it right to say that there bas been admitted by N. W. Railway Company to be so, but as the D. Steam Pack-t great irregularity on the part of Mr. Smale. I forbear making any further Company did not show that such non-compliance bad caused any damag, lo remarks about him, because Mr. Smale is not the person whose conduct is themselves, the Commissioners made no order. impeached. With regard to Symons I can have no doubt as to what was his position in this case. He was a person who came forward pfficiously in the under section 11 of the Regulation of Railways Act, 1873, for through rates
This was an application by the City of Dublin Steam Packet Company, matter in the guise of a clerk as it were. Having previously acted for Bencraft as clerk, he put himself forward as a person to issue the writ, but I have for passengers between Kingstown and Euston Station viâ the company's little doubt be never did intend to put himself forward as a practising under section 2 of the Railway and Canal Traffie Act, 1854, for an injunc
steamers and the London and North-Western Railway, Company's trains, and solicitor. I think he acted as a tool, to get business with the intention to promote litigation in order to get payment for whatever he did. I think, tion to enjoin the North-Western Company not to subject the applicants to that this distinguishes this case from Hunt's case (25 SOLICITORS' anyundue disadvantage or prejudice. JOURNAL, 722). I think this application has been very properly made
The facts are fully stated in the judgment. by the Incorporated Law Society, but, looking at the facts, the decision we
Benjamin, Q.C., and P. Stephen, appeared for the applicants. have come to is that the rule must be discharged upon the terms of Symons
Webster, Q.C., and Ernest Moon, for the respondents.
The COMMISSIONERS delivered the following judgment:paying all costs.
An Act entitled “Improved Postal and Passenger Communication between MANISTY, J.-I am of the same opinion. affidavits that it does not admit of a doubt for one instant that Symons Dublin Steam Packet Company, conditionally upon an arrangement being STEPHEN, J. -- I am also of the same opinion. It appears to me upon the England and Ireland Act, 1855.” authorized the London and North-Western
Company, the Chester and Holyhead Railway Company, and the City of knew he was doing wrong. No man could have issued that writ and made between them and the Postmaster-General with respect to the converomitted to sign it who had the right to sign it. Then, as to the telegram, a man acting in a proper way does not ask for that kind of confirmation. The
ance of mails in their steamboats, to provide and employ steamboats for the real truth is that Symons was acting as Smale's jackal, to get business and section 8 of this Act extended to the steamboats to be so provided, and
conveyance of mails and passengers between Holyhead and Kingstown, and promcto litigation. It is not creditable to Smale, and clearly discreditable to Bymoos ; but as all the acts of the parties are confined to this case I agree that to the passengers and parcels carrieå therein, the provisions, so far as the rule must be discharged, and Symons let off with paying the costs. Should applicable, of the Railway Traffic Act, 1854. A new Irish postal service he offend again the consequences will be more serious.
between London and Kingstown to be accomplished each way within eleven Rule discharged.
hours as a maximum, baving been agreed upon between the companies and Solicitor, Williamson.
the Post Office, the railway companies undertaking the land portion by special mail trains, and the Steam Packet Company the sea portion (between Holyhead and Kingstown) by special steam vessels of a prescribed number,
size, and power, a sub-contract of the companies inter se was made THE RAILWAY COMMISSION.*
on January 3, 1859, which, as varied by a later agreement of November 29, Aug. 3, 4, 5, 6, 19.— The City of Dublin Steam Packet Company v. The London 1860, provides that the charges for the conveyance of passenger traffic are to and North-Western Railway Company.
be fixed from time to time as regards the through rates by the railway comThrough passenger rates,Steamboat traffic, Undue preference-Railway and panies, as regards the sea service by the three companies, and as regards the Canal Traffic Act, 1854, s. 2 (17 & 18 Vict. c. 31) -Regulation of Railways land service by the London and North-Western and Chester and Holyhead Act, 1873, s. 11 (36 & 37 Vict. c. 48)-Regulation of Railways Act, 1868, s. 16 Companies respectively, and that the receipts from through rates are to be (31 & 32 Vict. c. 119).
apportioned on the mileage principle, divides the total time of eleven hours Steamers were provided and worked for the conveyance of mails and passengers
in the proportion of six hours and forty minutes to the railway companies for between Holyhead and Kingstown by D. Steamboat Company, under statutory the land service, three hours and forty-five minutes to the Dublin Seumship powers and agreements obtained and made between that company and N. W. Company for the sea service, and tbirty-five minutes for the transfer at Holy. Railway Company. It was agreed that the charges for the conveyance of head, and reserves to the North-Western and Chester Railway Companies toll passenger traffic by such route (called the mail route) between Kingstown and right to run boats of their own or on their own account, as and when they may London, &c., should be fixed as regards the through rates by N. W. Railway think necessary, for the convenience of the public and the proper development Company, The N. W. Railway Company subsequently established a service of of traffic between England and Ireland, with a proviso that if thev should steamers for passengers between Holyhead and the North Wall in Dublin
(called thereby cause the receipts of the Dublin Company to fall below £35,000 per the North Wall route). The effect of the statutory agreement between the two companies was to give N. W. Railway Company a complete control over the fares with which the Chester and Holybead Company is now amalgacontud,
annum they should make good the deficiency. The North-Western Company, of both routes, as if they were sole owcers of both, and therefore the provisions of the Railway and Canal Traffic Act, 1854. (which were made expressly applicable Vict. c. 118, to carry on steam communication between Holyhead and Dublin,
are also authorized by 11 & 12 Vict. c. 60, 24 & 25 Vict. c. 123, and 33 & 34 to both those lines of steamers), applied to both routes. way Company's service of steamers was almost on a level with the mail including Kingstown, in connection with their railway, and in and upon th-ir service in point of speed and accommodation, and its fares were much steamboats to carry passengers, cattle, and goods of every description. They lower, the first and second class passengers who were charged 60s. and have run no steamboats between Holyhead and Kingstown since November, 458. respectively between Euston and Dublin, by the mail route, being only 1861, but they work steamboats regularly between Holyhead and North Wall, charged 47s. 6d. and 36s. 6d. by the North Wall route, being a difference of Dublin, and it is with the use they make of these steamboats as a competitive 128. 60. and 8a. 6d. respectively. The services over the distance between Holy- passenger line with the mail-boats, that the complaints of the Dublin Steam head and Dublin were substantially the same; the mileages (adding the railway Packet Company are chiefly conneoted. The through passenger rates by the from Kingstown to Dublin) were nearly equal; the accommodation by the North Irfsh mail route are regulated, as provided by the sub-contract, by the NorthWall route was practically as good as that by the mail, and the vessels of the two companies were worked at about the same cost. The mail through fares were
Western Company solely, and these rates are so much higher than the rates divided by mileage, and the N. W. Railway Company received for their land the North-Western Company charge to passengers travelling by their own portion of the through service 468. 10d. out of the first-class fare, and 35s. 3d. North Wail route, that they subject, as the applicants allege, the mail vessels out of the second-class, their North Wall fares (railway and steamboat combined) to an undue prejudice contrary to the Traffic Act, and the Dublin Company being 478, 6d, first class and 368. 60. second clase. In both cases they carried also apply to us to grant through rates by the Irish mail route, the same ja the passengers the same distance by railway, but the passengers to and from amount as the rates in operation on the North Wall route. North Wall travelled in addition by the railway companies' steamboat. Their We will deal with the second point first. The Regulation of Railways Act, boat fare was 88. first or second clask, and they received, therefore, in respect of 1873, has under certain circumstances authorized us to grant through rates, the North Wall passengers 398. 6d. first class, and 28s. 61. second class, for and on the 24th of June last the Dublin Company gave the North-Western railway fare from London to Holyhead, as against 463. 10d. and 358, 3d. for the Company a written notice, conformably to the provisions of section 11 of that same railway journey, with only the difference in the class of train, in respect of Act, requiring passenger traffic to be forwarded at the same through rates as the mail route passenger. Held, that the amounts by which the fares by the mail route were thus more
the North-Westera Company were charging by the North Wall route. The than those by North Wall route (whether in regard to the fares charged for the reply of the North-Western Company was a refusal, and the Dublin Company entire service to Dublin or the portions due to the land journey only) were now ask for, amongst other things, an order granting the through rates they excessive and an undue prejudice to the traffic by the former route, and that the proposed in their notice of last June. To this, the respondents take two obcircumstances did not justify an excess in the total fares to Dublin by the mail jections. They say, first, that the Dublin Company are not entitled to apply route of more than, at the outside, ten per cent.
for through rates, because the Regulation of Railways Act, 1873, s. 11, conAn application by the D. Steam Packet Company for through rates for fers such a power on railway or canal companies only; and, secondly, that
even it a steam packet company could under any circumstances apply for a * Reported by W. H. MACNAMARA, Esq., Barrister-at-Law. through rate, the Dublin Company are ngt entitled to do so, because they
have agreed by the sub-contract of January, 1859, that the charges for the be reasonable and fair. Now it cannot be held that it is not consistent with conveyance of passenger traffic between London and Kingstown are to be fixed the sub-contract that the railway company should develop any route by sea, from time to time, as regards the through rates, by_the railway companies. liable to be used by passengers in preference to the mail boats, because it is As to the first of these objections it is true that the Traffic Act, 1854, and the expressly provided by that contract that they may run boats of their own or amendment of the 2nd section of that Act by section 11 of the Regulation of on their own account, as and when they may think necessary, and whether the Railways Act, 1873, do not deal directly with steamboat companies as grounds they give why the mail fares should not be reduced notwithstanding carriers by sea, and that the special classes of public companies to which they the lower fares at which their own boats convey passengers, do or do not bave reference are railway or canal companies. But the 11th section of the justify the difference maintained, we cannot find, even if clause 8 or so much Act of 1873 ends with the following clause: “Where a railway company, or of it as relates to the fixing of through rates could be expunged without canal company, use, maintain, or work, or are party to an arrangement for vitiating the whole contract, that they have exercised their control over the using, maintaining, or working steam vessele, for the purpose of carrying on mail fares in a manner so unreasonable as to be tantamount to releasing the & communication between any towns or ports, the provisions of this section Dublin Company from their engagements, and qualifying them to require shall extend to such steam vessels and to the traffic carried thereby." The traffic to be forwarded at through rates of their own proposing. We must, terms of this clause do not make it necessary that the steam vessels shall be therefore, refuse to allow these through rates. used or worked by a railway company; they may be used or worked by The complaint of undue prejudice remains to be considered. It has been others. The arrangement in the present case for the performance of the sea already mentioned that by section 8 of the Improved Postal and Passenger service by the Dublin Company is clearly an arrangement within the clause, Communication between England and Ireland Act, 1855 (which Act authorand the provisions of section 11 extend therefore to the mail boats and ized the railway companies to contract and agree with the City of Dublin to the traffic carried thereby, and it is argued with considerable force Steam Packet Company to provide steamboats for the conveyance of mails and that they are thus necessarily extended to the company or persons using passengers betwoen Holyhead and Kingstown, and gave ihe aforesaid comor working the boats, so as to give them the rights of a railway company panies power to make contracts and agreements with each other in reference under that section, including that of compelling through traffic facilities to the conveyance of traffic in such steamboats, and with the Post Office in to be given. The steamboat company, it is urged, is under the liabilities and reference to the conveyance of mails in them, the provisions of the Railway obligations of this section as regards the forwardiog of through traffic at Traffic Act, 1854, so far as the same are applicable, are extended to the steamthrough rates at the request of any railway company, and notice would have boats to be provided under the provisions of the special Act, and that by the to be sent to it, and its objections, if any, entertained, the same as if it was sub-contract of 1859 the charges for the conveyance of passenger trafic by a railway company. And if the section must be read as applying to a steamboat the postal route between Kingstown and Londoo, &c., are to be fixed from company to impose liabilities, it cannot consistently, it is said, be otherwise time to time as regards the through rates by the North-Western Company. read when it is a question of right or privilege, and we were pressed with The Railway Traffic Act is also by 24 & 25. Vict, c. 123, and the Continuation the argument that a steamboat having to be treated as if was a railway, and Act (33 & 34 Vict. c. 118), extended and applied to the steamers between the traffic on board as if it was railway traffic, and the steamboat owners, Holyhead and Dublin worked by the North-Western Company under those as regards duties imposed, as if they were a railway company, it follows that and other special Acts. The effect of the provision in the sub-contract is to a company using the steam vessels and forwarding the traffic is fully, and for give to the North-Western Company, so far as fares are concerned, as complete all purposes under the section, to be regarded as if it was a railway company. control over both routes as if they were sole owners of both, and under these But it it is unnecessary for us to determine this question, because the provi- circumstances the provisions of the Traffic Act (which are made expressly sion in the sub-contract that through rates shall be fixed by the railway applicable to both these steamers) apply to both routes precisely as if they company presents an insuperable difficulty to our entertaining the application, formed part of a single system, and any inequality of terms which would conunder present circumstances, so far as it relates to through rates. The conten- stitute an undue preference in the one case would equally do so in the other. tion on the part of the Dublin Company is that the North-Western Company The special mail service comprises two journeys each way daily (two sailhave availed themselves of this power, not bonâ fide for the purpose for which ings and two trains in connection each way), the mail steamers leaving Kingsit was conferred upon them, the benefit of both the companies, but in order to town for the up journey at 7 a.m. and 7.15 p.m., and the mail trains leaving enable thamselves more effectually to compete with the mail route; and if Euston for the down journey at 7.15 a.m. and 8.25 p.m.Ooly first and such a misuse of the power had been made out, it would possibly have justified second class passengers are carried through, and the first-class fare is 60s. us in disregarding the provision, at least for the present purpose. But we (including 1s. 6d. railway fare from Kingstown to Westland-row, Dublin), do not think that this case has been established. The Irish mail rates have and the second-class 45s. (including 1s. railway fare from Kingstown to Dub. varied very little. Soon after the new postal service commenced in 1860, the lin). When the postal contract was entered into in January, 1859, the gross first-class fare 62s. 6d., and the second-class 459. 6d. ; and except in September, receipts from the passenger sea traffic between Kingstown and Holyhead 1877, when they were reduced to their present amount of 60s, and 458., there were computed at £35,000 per annum, and as it was expected that they has been no revision of them. The rates via North Wall have varied as little; would increase after the commencement of the new service, it was provided they were 469. first class, and 359. 6d. second class in 1869, were each advanced by the 16th article of the postal contract that half of any increase should be 1s. in 1873, and are now, and have been since 1877, 478. 6d. and 368. 6d. They deducted from the annual subsidy of £85,900 to be paid to the Dublin Com. were meant to be uniform with the rates charged by the Dublin Company for pany for the sea service to be performed by them under the contract. A passages by their Dublin to Liverpool vessels, and the North-Western Company table of the total annual receipts of the Dublin Company from passengers by desired to afford to that portion of the public who could not pay the express the mail packets via Kingstown from 1860, put in by the applicants, shows fares of the Irish mail an alternative route via Holyhead, to and from that the receipts increased from £37,630 in 1861 to £49,804 in 1872, £50,000 London, Manchester, &c., on the same terms as the Dublin Company in 1873, £50,064 in 1874, and £50,582 in 1875, and that in the years since were charging, via Liverpool, in connection with the Midland and 1875 they have successively decreased, falling in 1876 to £47,573, in 1877 to other railway companies at Liverpool. The service they provided for that £41,537, 1878 to £38,083, 1879 to £35,714, and in 1880 to £33,162. Meanparpose was of a character which made it competitive with the Dablin Com- while the receipts of the North-Western Company from the sea journey bepany's vessels to and from Liverpool, without being so with their mail packets, tween Holyhead and North Wall, Dublin, have been steadily increasing. and so long as it maintained that character the Dublin Company did not Before 1876 there were no North Wall boats not carrying goods and live complain of its lower fares. It was cheaper, but it did not divert traffic from stock as well as passengers and parcels. But in this year the railway comthe mail ronte because it was not so expeditious, and because the passengers pany put on boats for passengers exclusively, and a train packet service for by it travelled in vessels which carried cattle as well. But the service has passengers not conveying cattle is now established, which leaves North Wall been gradually improved until it has become almost as good as the Kingstown for Euston via Holyhead at 9.30 a.m, and 7.30 p.m., and Eustou for North mail service. The steamers of the railway company sail twice a day each Wall at 9 a.m. and 6.30 p.m., the comparative times occupied by the way, are express boats as to speed, and carry no cattle ; the trains also in journeys as between the same points (London and Dublin) being 12 connection with them are nearly as fast as the mail trains, and North Wall hours and 55 minutes North Wall route, and 11 hours and 30 minutes passengers may, if they like, travel from Holyhead by the Irish day mail train mail route. The effect of the improvements in the North Wall route for an extra payment of 59. 2d. and 3s. 6d., being the difference between the has been to bring a large accession of traffic to benefit by them, express and ordinary fares as far as to Chester, the fares on from Chester to and the gross earnings of the Holyhead and North Wall boats in respect of London being the same for that train as for all ordinary trains. This express first and second class passengers have increased from £8,407 in 1875 to passenger service, via Holyhead and North Wall, Dublin, began in 1876 as a £20,327 in 1880, and in respect of parcels from £5,995 in 1875 to $10,123 day service; the night service was not added till the middle of 1880. Both in 1880, the period 1875 to 1880 being that in which the receipts from first were regarded by the Dublin Company as run in opposition to the mail and second class passengers by the mail packets vid Kingstown have decreased packets; that in the day because, except from Holyhead and Kingstown, they from £50,582 to £33,162. The North Wall service is now almost on a level with had no day service of their own, none at least to Liverpool ; that in the night the mail service in point of speed and accommodation, and in one particular it because it was timed to leave North Wall, Dublin, for Holyhead at 7.30 p.m., has a great advantage over it, and that is that its fares are much lower, the the mail time from Kingstown to Holyhead being 7.20 p... (now 7.15 p.m.), first and second class passengers who are charged 60s. and 4ős. respectively and the Dablin Company, finding the number of passengers by the mail packet by the mail route being only charged 478. 6d. and 36s. 6d, by the North Wall falling off, applied in 1876 and again in 1877 to the North Western Company route. No objection can be made to the North-Western Company fixing the to connteract the effect of the competition by lowering the mail fares and fares by its North Wall route in any manner it thinks best, but their amount equalizing them or nearly so, with the North Wall fares. The North-Western is a criterion of the reasonableness of the fares the same company fix for the Company made some alterations in 1877, but the difference between the mail other route, and a difference without good cause or one disproportionately and the North Wall fares was only slightly lessened, and there was still a large, would in the circumstances of this case subject the traffic by the dearer difference in favour of North Wall of 12s.6d. first class, and 8s. 60, second route to an undue disadvantage in contravention of the Act. Now the less class. The Dublin Company, therefore, continued to complain of their being time that is occupied between London and Dublin by the Irish mail than by undersold, and to urge a reduction of the mail fares. But in 1880 the the other service is nearly one hour and a half, of which nearly one hour is North-Western Company finally declined to comply with their re- time gained on the land portion of the route between London and Holyhead, the quest, stating that having regard to the quickerservice by the mail trains doing the journey under six hours and forty-five minutes, and the mail' boats and the low rates charged by the Dublin Company express North Wall trains in a little over seven hours and thirty minutes. between Dąblia and Liverpool, they considered the differential fares to The mail trains ran for the express purpose of carrying the Irish mail, and the
weight of each train, the number of carriages of which it is composed, and the stoppages it makes, are only allowed to be such as will not interfere with its
SOCIETIES. being punctual, and being able to accomplish the journey in the allotted space of time. In these respects it differs from the trains carrying Irish traffic via North Wall, wbich are not limited to that one purpose, but serve other objects
INCORPORATED LAW SOCIETY. besides, and which working in connection with other trains which meet them
A special general meeting of this society was held at the Law Institution at junctions along the line, are necessarily slower trains, and less to be depended upon for punctuality. Charges may not unreasonably be different in
on Wednesday last for the purpose of considering the report of the committhe case of trains run under such different conditions ; not perhaps because the
tee which was appointed in November last to deal with the report of the railway company could not profitably carry a mail train passenger at the same
Legal Procedure Committee. A copy of the committee's report bas already rate as a passenger asing their other trains, for the postal subsidy which the appeared in our columns. Mr. CHARLES CLARIDGE Druce, president of the company receive and which pays them at the rate of about one shilling a train society, occupied the chair, and there was a large attendance of members of mile, reimburses the company any special expenses incident to the mail trains, the coupoil, together with about 230 members of the society. as trains by contract, but because the service is special in the speed and punco the meetings held on the 4th and 11th of November last, the recommenda.
The PRESIDENT, in opening the proceedings, reminded the meeting that at tuality with which it is performed, and in order to keep so is limited
in a way tions
contained in the report of the Legal Procedure Committee were laid that other trains are not in its power of adapting itself to traffic fluctuating before the
council and considered, and it was decided at the special general in its requirements, and of increasing the amount of accommodation it can afford. But the difference that is made is the difference between 60s, and meeting, on the 18th of the same month, that the subjeot should be sab478. 6d. first class, and 45g. and 368. 60. second class, or 123. 6d. and mitted to a committee of the members. That committee had, after three 8s. 6d. respectively; and of this the part that is properly attributable to months of continuous laboar, produced what was perhaps one of the most the distance between Holyhead and Dublin is small. The services over
admirable reports he had ever had oooasion to read. It was not for him, as that distance are substantially the same; the mileages (adding the railway be anfficient for his parpose if he referred to an artiole which appeared in
one of the members of the society, to unduly press that point, and it would from Kingstown to Dublin to the mail route) are nearly equal ; the accommodation by the North Wall steamers is practically as good as that by that day's Times, which would save him making many remarks with which the mail, and the vessels of the two companies appear to be worked at he would otherwise bave had to trouble the meeting. Oddly enough, on about the same cost, such difference as there is telling against and not the day on which the last general meeting had been held, the Times had in favour of the North Wall rone. The mail through fares are divided announced that the Role Committee of the
Judges were then meeting, and by mileage, and the North-Western Company receive for their land portion therefore time pressed; and oddly enough the counoil had received a letter of the through service 46s. 10d. oat of the first-class fare and 359. 30. oat from the Lord Chancellor's secretary two days before the present meeting, of the second, their North Wall fares (railway and steamboat combined) stating that the Role Committee of the Judges were to hold another meeting being 478. 61. first class and 368. 6d. second class. In both cases they shortly take an outline of the report of the committee of the society. The
on that day, and again, therefore, time pressed in the matter. He would very carry the passengers the same distance by railway, but the passengers to and from North Wall travel in addition by the railway company's steam.
first heading related to a much-vexed question, on which undoubtedly boat. Their boat fare is 88. first or second class, and they receive, there. opinions had differed; but he hoped that in the consideration of such a large fore, in respect of the North Wall passengers, 398. 6d. first class and 288.6d.
measure each and every member would be prepared to sacrifice, as far as second class for railway fare from London to Holyhead, as against 468. 10d. necessary, bis individual crotohets. He was quite prepared to do so in his and 358. 3d. for the same railway journey, with only the difference in the
The committee had come to the conolusion that pleadings were class of train, in respoot of the mail ronte passenger. The amounts by essential to define the real points at issue, and that the system of pleadings which the fares by the mail are
thus more than those by North Wali, prescribed by the Judioatare Act and Rales should be substantially adhered whether in regard to the fares charged for the entire service to Dublin or
to. The Lord Chancellor's committee, they would remember, had proposed the portions due to the land journey only, are, in our opinion, excessive, should hold them to be necessary. The committee of the society had
to disponse with pleadings apless a judge, on application being made to him, and an undue prejudice to the traffio by the former route, and we must grant an injunction against this continuing. We do not say that there approached the sabject with a desire to see all annecessary pleadings ought to be no difference between the two sets of fares; but we cannot find abolished. It would be observed that a very small minority approved of the anything in the circumstances to justify an excess in the total fares to suggestion of the Legal Procedure Committee with reference to pleadings. Dublin by the mail of more than, at the outside, the ten per cent suggested by They had all agreed to out off redundant matter, but that in many cases Mr. Watson in his letter of the 19th of May, 1877, as a reasonabl edifference the pleadings onght to remain, and they thought that the expense of an We do not see any ground for holding that any excess confined within those application to the judge would be balanced by the saving that would be limits would be undue or unreasonable so long as the existing difference otherwise effected. The next point was the jurisdiction of masters, and the in the quality of the two services is maintained.
committee suggested that every action should be assigned to a particular The application inoludes complaints on one or two minor points. It is master's list, and that work in chambers should be so re-arranged as to admitted that the North-Western Company's North Wall tickets do not provide for designating masters to whom actions should be assigned, and for show on their face how much of the total fare is for the railway and how such masters sitting daily in chambers to hear applications in respect of the much for the boat, and that section 16 of the Regulation of Railways Aot, matters so assigned to them.” Among matters of detail dealt with, they 1868, requires such a separation of the fare to be made. But the Dublin thought the practice of payment into court unnecessarily inconvenient and Company did not show any damage to themselves under this head. troublesome in some cases, and that for all soms formally paid into court by Another point is that passengers by any ordinary train requiring to book the defendant, the receipt of the plaintiff's solioitor should be sufficient. In through via Kingstown are cbarged the full rates by the mail roate, and the respect to summons for direction, the committee of the society did not railway company admit that they have no other than those rates at which
concar in the recommendations of the report ; they thought " that the they book through via Kingstown. But the railway company are not under existing practice of requiring a separate sommons for each separate matter any obligation to issue a through ticket for any train not forming part of should not be compulsory, and upon any gommons by either party it should be the through service, and if such a ticket is given to a passenger by any competent for the jadge or master to make any order which may seem just, ordinary train, it must be taken to have been issued to him solely for his at the instance of either party, in relation to the subject matter of the sumown convenience. Any passenger desiring to cross via Kingstown has it in mons.” In reference to discovery the committee thought that it is desirable his power to travel at local fares, the sum of which, if he travels by an
tbat each party to an action should be entitled, as of right, to deliver interordinary train, is somewhat less than the amount of the throngh mail fare, rogatories to, and have the discovery of documents from, the other party, and if he does not choose to avail bimself of the power be has only himsel' subject, in the case of interrogatories, to an application to a master to striko to blame.
out questions on the same grounds as at present ; but that in order to check On the question of costs we think these proceedings must be treated as
any abuse of such a rule, and upnecessary expense, the following course separable ; the application for through rates is quite distinct from the defence, to administer interrogatories, and also without any summons and
should be adopted :–Either party should be at liberty, after statement of complaint of a violation of the Traffic Act, and we think that the two order for discovery, either party should be bound, if so required by the other applications ought to be treated as having been separately made. We party within ten days after statement of defence, to deliver an affidavit of therefore dismsgs so much of the application as seeks for the allowance of documents ; but such discovery should be limited to such points relating to through rates with costs, and we direct the respondents to pay the costs of the matters in question in the action as should by notice be required.” And so much of the application as complains of an undue prejudice to the traffic by the mail route ; the two sets of costs to be taxed separately, and the one
" that the costs consequent on interrogatories, and of discovery, unless otherset off against the other, and the respondents are to pay or receive the discovery, and should be paid by him to the other party, unless payment into
wise ordered, should be borne in the first instance by the party asking for balance accordingly.
court be directed ; and such costs should be allowed as costs in the cause The COMMISSIONERS subsequently ordered that the injanotion should not where, and where only, such discovery and interrogatories should appear to have isgue until the 1st of October.
been reasonably asked for." The party requiring the discovery would bare Solicitors for the applicants, Carlisle d Ordell, for H. S. Watson, Dublin. thus to pay for it in the first instance, and he would bave the expense allowed Solicitor for the respondents, R. F. Roberts.
him in the costs, unless it was otherwise ordered. With respect to notice to admit specific facts the committee agreed with the Lord Chancellor's committee. With regard to appeals from chambers he had some difficulty in contrasting the one report with the other, because the committee of the society thought the
sittings in Banc should be abolished, and that, as in chancery, one judge At a dinner of the Fishmongers' Company last week, Vice-Chancellor should be permitted to settle and dispose of it. Subject to that there was no Bacon remarked, with regard to the recent discussion on the Long material difference. With regard to the question of judgment debtors' sum. Vacation, "that her Majesty's judges should not be called upon to work monses it was the opinion of the committee that "the jurisdiction of the judge more than three-quarters of the year, for they could not work longer safely at chambers should be transferred to the Court of Bankruptcy,” leaving out to themselves and usefully to the public."
the word " London," which was in the recommendation of the Lord Chan.