« PreviousContinue »
of section 10 of the Judicature Act, 1875, incorporated into the SET-OFF AGAINST CALLS ON SHARES. law of the winding up of companies so as to give a right of set
off in all cases, whether the contributory becomes bankrupt or The rule in chancery in the winding up of a limited company, not, thereby practically overriding the implication against such a established by the decision in Grissell's case (14 W. R. 1015, right of set-off in the case of a limited company contained in L. R. 1 Ch. 528), that in such winding up a contributory who is section 101 of the Companies Act, 1862, and rendering inafplic. also a creditor of the company is not entitled to set off against able to the present law the rule laid down in Grissell's case ? calls made on the shares held by him either his debt or any dividend And must not the rule of set-off contained in section 39 of the which may, after the date
of the call, come to him on his debt, was Bankruptcy Act, 1869, be taken to be one of the rules “ as to held in In re Duckworth (15 W. R. 858, L. R. 2 Ch. 578), and Ex debts and liabilities proveable . . . in force for the time being parte Strang (L. R. 5 Ch. 492), not to apply to the case where the under the law of bankruptcy with respect to the estates of contributory had become bankrupt. In such case it was held persons adjudged bankrupt," and, therefore, within section 10 of that, the ordinary jurisdiction of the Court of Chancery not ex- the Judicature Act, 1875 ? tending into bankruptcy, the rules of bankruptcy apply, and Startling as this argument may appear in its effect, there seems that the debt must be set off against the calls, whether the claim to be great plausibility in it. If the mutual credit clause of the be made in the bankruptcy or in the winding up. The reasons Bankruptcy Act, 1869, is by the section of the Judicature Act for this decision are stated by Lord Cairns in his judgment in In made applicable to the winding up of companies at all, it must be re Duckworth, as follows :- Where there is no bankruptcy, the so in its entirety, and all decisions thereon must be equally applicCourt of Chancery, in winding up a company, has subject to its able ; ergo, the decision in In re Duckworth would hereafter apply jurisdiction, the liquidator, the contributories, the creditors, and in all cases. But Bacon, V.C., and Fry, J., in the cases we have the other shareholders, and the course which the Court of Chan- cited have decided that Grissell's case is still law, notwithstandcery is to take is pointed out by the Companies Act, 1862. ing that section, and we think those decisions would be upheld According to the true construction of that Act, the Court of if the point ever came before the Court of Appeal. The section, Chancery is precluded from allowing the application of any it is well understood, was intended specially to alter the old rule set-off as between the liquidator and the persons who have in chancery which gave a secured creditor a right to prove for to pay calls. That is the positive enactment of a statute the full amount of his debt, and receive dividends thereon pari made upon due consideration, the expediency of which is passu with the other creditors, and retain his security against obvious; and such has been the decision of the court. In the any unpaid balance of his debt; the rule in bankruptcy being case of a bankrupt contributory very different considerations that a secured creditor must deduct the value of his security from apply; the ordinary jurisdiction of the Court of Chancery does not his debt, and only be allowed to prove for the balance, and, so far, extend into bankruptcy, and in the administration of a bank- the court has not shown any disposition to extend the application rupt's estate the Court of Bankruptcy must pursue the directions of the section any further than the words of the section clearly given by its own statutes. In the [Bankruptcy) Act of 1849 the indicate. enactment of the 171st section is that where there are mutual
The rule laid down in Grissell's case being then still law, debts between the bankrupt and any other person, one debt or the point has recently arisen whether any limitation can demand
may be set off against another. Now, putting out of con- must be put upon the right of set-off in case of a bankrupt sideration the Act of 1862, would there not in this case be a set, contributory in the following hypothetical case :-A., off under this section ? My opinion is that there clearly would.” tributory of a company in liquidation, was liable for calls made That decision was given upon the 171st section of the Bankruptcy in the winding up of the company amounting to £10,000, Act, 1849, but it will equally apply to section 39 of the Act of and he was also a creditor of the company on another account for 1869, which gives the right of set-off in cases of mutual dealings, a like sum of £10,000. His assets beyond this claim against the &c., so that the law may be taken to be well settled in this respect, so far, at least, as the facts of the case in In re Duck company were valued at £5,000, and he owed to creditors, in
addition to his liability for calls, £2,000. He was, therefore, worth
carry it; but there appears to be no decided case which unable to pay the amount of the calls, and these being pressed carries the effect of that decision any further.
against him, he became bankrupt. In the bankruptcy the right Until the decisions of Bacon, V.C., in Gill's case (27 of set-off arose as laid down in In re Duckworth, and consequently W. R. 934, L. R. 12 Ch. D. 755), and of Fry, J., in Ex the company was not able to make any proof against his estate. parte Brown (27 W. R. 869, L. R. 12 Ch. D. 823), it was all his other creditors were paid the full amounts of their debts, open to question whether, by virtue of section 10 of the with interest, under the bankruptcy, and after payment of costs Judicature Act, 1875, the whole effect of the decision in there was a surplus of £2,500. In the winding up of the company Grissell's case was not now done away with. That section pro- a dividend of five shillings in the pound only could be paid to the vides that,“ in the winding up of any company under the Com- creditors, but if A. had paid the full amount of the calls for which panies Acts, 1862 and 1867, whose assets may prove to be he was liable, ten shillings in the pound could have been paid to insufficient for the payment of its debts and liabilities and the the creditors of the company. In that case A. would have received costs of winding up, the same rules shall prevail and be observed his dividend of ten shillings in the pound on his debt, which would as to the respective rights of secured and unsecured creditors, have amounted to a return of £5,000, his other £5,000 being and as to debts and liabilities proveable, as may be in absorbed in making up the dividend of ten shillings in the pound force for the time being under the law of bankruptcy with respect to the other creditors. Had the company any claim to the to the estates of persons adjudged bankrupt; and all persons who surplus of £2,500 arising in the bankruptcy, or—the right of setin any such case would be entitled to prove for and receive divi- off having arisen in the bankruptcy-was A. thereby absolutely dends out of the
assets of any such company, may come released from the liability for calls, and so entitled to such surplus in under the
winding up of such company and make under section 45 of the Bankruptcy Act, 1869, and rule 137 of such claims against the same as they may respectively be entitled the Bankruptcy Rules, 1870 ? to by virtue of this Act." By section 39 of the Bankruptcy Act, The logical conclusion to be deduced from the judgment of 1869, it is provided that, “where there have been mutual credits, Lord Cairns would, at first sight, appear to be that the right of mutual debts, or other mutual dealings between the bankrupt and set-off having, under the rules in bankruptcy, once arisen, the any other person proving or claiming to prove a debt under his claim for calls was thereby absolutely discharged and could not, bankruptcy, an account shall be taken of what is due under any circumstances, be again revived. But it must be borne from the one party to the other in respect of such in mind that the prospect of a surplus arising in the bankruptcy mutual dealings, and the sum due from the one party shall was not, in any way, raised in the case, and the decision was only be set off against any sum due from the other party, and the directed to settling the rights as between the company and the balance of such account and no more shall be claimed or paid on creditors in the bankruptcy, and not as between the company and either side respectively.” Is not this section (which, according to the bankrupt himself. Still, once having decided that the rules the ruling in In re Duckworth, provides a right of set-off against in bankruptcy alone were applicable to the case, it is difficult to calls in the case of the bankruptcy of the contributory), by virtue see how it could afterwards logically be held that, in any circumstances, those rules should cease to operate and, the other creditors being paid off under the bankruptcy, the surplus assets THE ELECTRIC LIGHTING BILL. of the bankrupt should become liable to a claim which had also been discharged by set-off under the same bankruptcy. And, The Electric Lighting Bill, which has now been printed as were it not for the difficulties which we shall proceed to point out, amended by the Select Committee of the House of Commons to this would certainly be the opinion at which we should, almost which it was referred, may be fairly expected to become law unhesitatingly, arrive.
during the present session. The Select Committee appears to The first objection to such a conclusion which suggests itself is, have added some half-dozen clauses of importance to the original that if A. were entitled to such surplus, then he would, by reason twenty clauses of the Bill
, which we will now shortly abstract and of his bankruptcy, gain a sum of money at the expense of the criticize in its amended form. company. To make this proposition more clear, suppose he had
The Bill begins by empowering (clause 2) the Board of Trade not become bankrupt, and out of the £5,000 of assets which he to license any local authority—i.e., any town council or possessed he had paid off all his other creditors, the company improvement board or other authority, as would then be entitled to enforce payment pro tanto against the schedule, or any company or person, to supply electricity withremaining £3,000 of assets, thus entirely divesting A. of all his in any area. The license, which is to be for five years only, assets. But by getting himself made bankrupt he would deprive renewable, however, at the end of that time “upon such terms and the company of that amount for his own benefit. That would
conditions as the Board of Trade may determine,” may not be clearly be against the policy of the bankrupt laws, which are applied for without previous public notice, and it is particularly intended to work justice as between creditors, but not to entirely provided as follows: upset for the benefit of debtors, and to the detriment of creditors “ The license may make such regulations as to the limits within which or persons claiming against them, express rules and regulations of and the conditions under wbiob, a supply of electricity is to be compalsory equity laid down by statute and the courts. Then, to work out or permissive, and for enforcing the performance by the licensees of their the case further, suppose that, in addition to the company, A. had where the license88 fail to perform such daties ; and generally may contain
duties in relation to such supply, and for the revocation of the license had only one creditor for just sufficient an amount to be able to such regulations and conditions as the Board of Trade may think expedient." make him bankrupt, a bankruptcy in such a case, where the liabilities proveable would amount to £50 only, and the assets to B.," which will, we presume, be substituted for it, and which
This clause is repeated with greater particularity by a “clause £5,000, would appear very like a farce. Still, without bankruptcy A. would be unable to pay his liabilities which would then include provides for securing a sufficient supply of electricity, and for the £10,000 for calls, and there is nothing in the Act to prevent limiting the prices to be charged, and it is added that not only a man being made bankrupt in such a case, if he owes sufficient may the Board of Trade from time to time make “ such regulato constitute a petitioning creditor's debt and commits an act of tions as they may think expedient for securing the safety of the bankruptcy. But the fact that the result of his becoming bank- public from personal injury, or from fire, or otherwise,” but that rupt would, if the decision in In re Duckworth were held to apply they may from time to time" amend or repeal any regulations without limit to all cases of bankrupt contributories, be as we have which may be contained” in the license; and further, that the pointed out, suggests the equity of putting such a limit upon the local authority may, “ in addition to any regulations which may application of that decision as would prevent such a result from be made under the preceding provisions of this section for accruing.
securing the safety of the public, from time to time make, Again, if the application of the decision in In re Duckworth is rescind, alter, or repeal bye-laws for further securing such not to have any limit placed upon it, what is there to prevent a
safety.” It will be seen that a very close and lasting superperson with assets sufficient to enable him to pay all calls upon
vision is to be intrusted to the Board of Trade, and it may him, yet procuring himself to be made bankrupt so as to defeat the perhaps be feared that the ardour of promoters may be too claim of the company, and obtain the application of the right of much damped by these clauses until something positive is known set-off in the bankruptcy for his own benefit, thus opening up a
of the manner in which the Board of Trade will administer them. method of entirely evading the provisions of the Companies Act, A five years' license renewable on "conditions,” and revocable 1862, and the rule in Grissell's case? If the court were of
“where the undertakers have, in the opinion of the Board of opinion that there was collusion in instituting the proceedings into effect within a reasonable time,” is not a very satisfactory
Trade, practically failed to carry the powers granted to them in bankruptcy between the debtor and the petitioning creditor with this object, then possibly it would consider the whole proceed- guarantee for the expenditure of capital. Clause 3, however, ing an abuse of the machinery of the court, and on that ground authorizes the Board of Trade to make provisional orders having dismiss the petition. But that case, though an extreme one, is in the same effect as the licenses, but not terminable except by principle really no more than the one we have been discussing. In compulsory purchase, as we will mention presently. These proeither case the result would be a pecuniary benefit to the contribu- visional orders may be confirmed by special Act of Parliament in tory at the expense of the company, and this would
be an anomaly With regard to the prices to be charged, we observe that clause
like manner as provisional orders of other kinds are confirmed. which we think the court would find some means of defeating.
11 provides that, barring undue preference and excess of the At the Doncaster Borough Sessions, on Tuesday, the only case for trial was
limits fixed by the license, the undertakers may “make such one in which four boys were indicted for house-breaking. Mr. Shirley charges for the supply of electricity as may be agreed upon.” prosecuted, and Mr. Cordeaux defended. Another member of the bar was also This may give rise to difficulty, as it suggests the possibility of present, but disengaged. Directly the jury had retired to consider their separate bargains with individual consumers, and of frequent verdict, Mr. Verity, of the firm of Verity & Baddiley, solicitors, rose and changes of price. It should surely be stipulated that prices may requested the recorder (Edgar Meynell
, Esq.) to cancel the order made about not be varied, say, more than once a year, or without a reasonable a year ago by which exclusive audience was given to the bar in that court. It was a great hardship, he said, on him personally that, though a solicitor, he
notice. was not allowed to prosecute or defend criminals in his native town. It was A clause, “F.,” contains the salutary provision that the underalso a great hardship on the prisoners that they should not have a large choice takers shall not be authorized to place any electric line above sessions, and there were four prisoners, each of whom bad a right to be ground without the express consent of the local authority, and separately defended. Mr. Cordeaux, as leader of the bar present, said that it
adds that a court of summary jurisdiction, “where any was unreasonable to expect more than three barristers to come when there was electric line has been placed above ground,
upon comonly one case, and it was known beforehand who had got that. In answer to Mr. plaint made, if they are of opinion that such electric line is, or is Verity's point about each of the four prisoners having the right to be likely to become, dangerous to the public safety, may, notwitharrange to be defended before the day of trial. Moreover, Mr. Cordeaux standing such consent as aforesaid, make an order directing and blamed the clerk of the peace for not sending circulars round to the barristers authorizing the removal of such electric line by such person and usually attending as at other places. Mr. Shirley added that he thought upon such terms as they may think fit.” A slight amendment that solicitors had no right of audience at quarter sessions where the bar attended, and that barristers did not need any order to entitle them to exclusive the licensees, it should be the Board of Trade, not the local
seems needed here. In case the local authority are themselves he should not vary his order at present, he should do so it more members of the authority, whose consent should be required for the above-ground bar did not attend.
A clause “G.” has been inserted for the protection of canals, and clause 14 most elaborately and effectually protects "any telegraph
CORRESPONDENCE. line of the Postmaster-General,” but there is no special provision as to waterworks, and a suggestion which we believe at one time found
IN RE CLEW. favour with the Select Committee, that the pipes containing electric
[To the Editor of the Solicitors' Journal.] wires should be specially marked, has not been inserted in the Bill. Considering that a fifth kind of pipe is now to be added to the Grove and Lopes, JJ. in the above case, reported in last week's Weekly
Sir,-I wish to call your attention to the judgments delivered by four kinds—the drain-pipe, the water-pipe, the gas-pipe, and the Reporter, p. 704. telegraph-pipe—which already run through our streets, we think No doubt the particular conviction appealed against was bad, because this omission is to be regretted. The only special mention of gas it simply adjadged imprisonment in default of payment, without stating is highly significant. It is provided by a clause “ O.” that in any that it appeared to the court that there were no goods whereon to levy area where gas undertakers “ under any general or limited the amount. obligation to supply gas on demand,"
But the judges go much further than merely quashing the conviction,
and say that section 21 of the Summary Jurisdiction Act, 1879, does not “The Board of Trade may, upon the application of such gas undertakers, apply at all to cases under the Licensing Acts, but refers to other Acts inquire into the circumstances of the case, and if they are satisfied that any under which persons may be convicted and punished by fine, and, in specified part of such area is sufficiently supplied with electric light, and that default of payment of the fine, by imprisonment. But these last are the supply of gas in such specified part has ceased to be remunerative to the Acts under which no distress warrant could issue at all, and section 21 undertakers, that it is just that such gas undertakers should be relieved
expressly deals with cases (such as those under the Licensing Acts) from the obligation to supply gas upon demand as aforesaid, the Board of where a distress warrant is authorized, and with no others. Trade may, in their discretion, make an order relieving the gas undertakers from such obligation,
The judges are, therefore, reported to have said that section 21 applies either wholly, or in part, and upon such solely to Acta to which it can have no possible application. The judges terms and conditions as they may think proper.”
must be supposed to have meant something by their observations, and I There is, however, no corresponding provision relieving elec- should be very glad if any of your readers can give any clue to what tricity undertakers in their turn from the obligation to supply their real meaning was.
The matter is one of considerable importance.
A JUSTICES' CLERK. electricity in cases where the supply has, by the license (see clause “B." (a), been made compulsory.
[The report of the judgments is, we are assured, correct. We propose The remaining clause which calls for notice is that which pro- to be solved. —ED. S. J.]
hereafter to consider how the crux propounded by our correspondent is vides for compulsory purchase of an electricity undertaking by a local authority It is first to be observed that this clause applies only to cases where the undertaking was originally authorized by special Act or provisional order, and has no application to the licensees working under
CASES OF THE WEEK.
the newable license of the Board of Trade. The effect of the clause is that within six months after the expiration of a CATALOGUE-COPYRIGHT Act, 1842 (5 & 6 Vict. c. 45), s. 2.-In a case of
COPYRIGHT - INFRINGEMENT_BOOK"-ADVERTISEMENT - ILLUSTRATED period of fifteen years from the date of the Act authorizing the Maple & Co. v. The Junior Army and Navy Stores, before the Court of Appeal undertaking, and within six months after the expiration of every on the 29th ult., a question arose upon the effect of the Copyright Act of 1842subsequent period of five years the local authority may force à viz., whether the protection given by it extends to a book published by a sale to them of the undertaking, “ upon terms of paying the trader as an advertisement of the goods which he sells. The Act gives copythen value of all lands and plant
right to "every book," and by section 2 "book" is defined as including suitable to
every volume, part, or division of a volume, pamphlet, sheet of letter-press, and used for the purposes of the undertaking, such value to be, sheet of music, map, chart, or plan, separately published.” In this case the in case of difference, determined by arbitration,
without plaintiffs were cabinet-makers, upholsterers, and general furniture dealers in any addition in respect of compulsory purchase or of goodwill or
Tottenham-court-road. They had for some time past issued, by way of adver: of any profits which may, or might have been, or be, made from their “ Illustrated Catalogue of Furniture," containing engravings and plates
tisement, to their customers and the public an illustrated catalogue, called the undertaking, or of any similar circumstances." These pro- of the articles of furniture sold by them. They complained that the defendvisions are plain enough. They are to a certain extent copied ants had issued a catalogue containing engravings and plates copied from, or from the provisions in pari materia of the Tramways Act, 1870. which were a colourable imitation of, those in the plaintiffs' catalogue, and By section 43 of that Act local authorities may force a sale of they claimed an injunction to restrain the defendants from printing, publish
ing, issuing, and distributing any catalogues containing any engravings, plates, tramways “ upon terms of paying the value exclusive of any allow- or illustrations of furniture copied from, or which were a colourable imitation of, ance for past or future profits of the undertaking, or any compen- those for the first time published in the plaintiffs' catalogue. The plaintiffs” sation for compulsory sale, or other consideration whatsoever," engravings had been
engravings had been prepared for them at great expense from sketches taken but the period after the expiration cf which the powers of pur- registered at stationers' Hall under the Act. Hall, V.C., held that this
by artists employed by them, and the plaintiffs' catalogue had been duly chase may be exercised, is fixed at 21 and 7 instead of 15 and 5 catalogue was a subject of copyright, that it was a book, and, as such, within years. The exorbitant price, which was calculated as payable the Copyright Act. His lordship accordingly granted an injunction. . On the upon a proposed, compulsory purchase of the metropolitan appeal it was contended, on behalf of the defendants, that a book which was waterworks which has now fallen into abeyance, will no
used merely as an advertisement was not within the Copyright Act, and could doubt be urged as an argument for the insertion of these clauses of Lord Romilly, M.R., in Cobbett v. Woodward (20 W. R. 963, L. R. 14 Eq. 407),
not be the subject of copyright, reliance being placed on the decision to this effect into the Electric Lighting Bill. If promoters choose to set on Jessel, M.R., said thar, in his opinion, this catalogue was the subject of copyfoot electricity undertakings with such provisions staring them in right. The first question was whether it was a book.” It was clearly a the face, the Legislature cannot be reproached with unfairness.
“ book," and so it came within the very words of the Act. There were such But we fear that the closeness of this prospective bargain may had been pressed with an argument founded on the words of the preamble of
things as “ picture-books," and they were always called books. The court prove to be an additional means of unduly checking that private the Act. But the rule was that the preamble did not override the enacting commercial enterprize without the aid of which neither railways, part of an Act when the latter was quite clear. In the present case his tramways, gasworks, or waterworks would have been constructed. lordship thought the enacting part was quite clear. In the definition of the
word "book" an "engraving " was not mentioned, but there was nothing to exclude an engraving when it was in a book. The preamble did not help the defendants at all. It spoke of amending the law of copyright generally, and
there was nothing in it to cut down the enacting part to books containing the Sandwich Islands, says the Albany Law Journal, we find several novel down the words
of the Act, and especially in order to protect persons like the In the current Biennial Report of the Chief Justice of the Supreme Court of letterpress only, or to exclude books which contained pictures as well as
letterpress, or pictures alone. His lordship could see no reason for outting criminal offences noted; for example, selling eau de cologne as a beverage, defendants who were copying other people's pictures, which was not a very fishing with giant powder, playing truant from school, disobedience to parents, honest thing to do. Ag to the decided cases, some of them were rather difti: suppression of offences, Hoomanamana, deserting parents, refusal to leave cult to understand, and they were not quite consistent with each other. His house.
lordship thought that the decision of Lord Romilly in Cobbett v. Woodward was A movement has been set on foot for commemorating the jubilee gear of the not good law. There was no sound distinction as regarded copyright by reason of United Law Clerks' Society by the presentation of a portrait to Mr. H. G. the use to which the book was pat. You might use your book as an advertiseRogers, the esteemed honorary secretary. Mr. William May, of 3, Serjeants'. ment if you liked. A very common form of testimonial on application for an ind, has undertaken to act as hon. treasurer, and it is desired that intending office was a statement that the applicant was the author of such a book. That subscribers should send their names to him before Saturday, the 8th inst. would not deprive him of copyright in his book. The purpose for which a book
was used could not affect the copyright of it. The view of Lord Romilly would not. Then it was said that a view of the place by the jury was necessary. not bear legal examination. The majority of the authorities was against the if it was essential, of course it must be provided for in some way. But, in the notion that the use of a book as an advertisement would affect the copyright. first place, if it was desirable, though it could not be obtained legally if the Was there any reason why the court should not adopt the literal meaning of trial was at Leicester, it could no doubt be managed by arrangement between the Act ? Was not the reason the other way? What bad the appellants to the parties. And, in the next place, io his lordship's opinion, a view was not say for themselves? Simply this, that they thought they might copy the absolutely necessary. He had had a good deal of experience in trials of actions plaintiffs' engravings with impunity, and thus appropriate the labours of relating to interference with roads or with light, and he had never found any others without paying for them. They were not persons who were entitled difficulty in trying them if the parties took care to produce models of a proper to call on the court to parrow the meaning of an Act of Parliament. was size and proper photographs. In this way the positions of physical objects the duty of the court to construe an Act of Parliament in a rational way, and could be ascertained, and therefore a view was not really necessary. Another in furtberance of the interests of jastice. LINDLEY, L.J., was of the same point was that Leicestershire being what might be described as a grass county, opinion. The plaintiffs' book was an original one, and originality of design, while Camberland might be called a mining county, the views of a Leicesteras distinguished from literary merit or skill, was the test in regard to copy- shire jury about tramways crossing a public road might be very different from right. The plaintiffs' catalogue was a book, and it came within the defini. those of a Cumberland jury. But the venue could not be changed on any such tion in the Act. There would be no difficulty in the matter but for the deci. ground. A postponement of the trial boing out of the question, and the bard. sion in Cobbett v. Woodward. If that case could be reconciled with others, ship of depriving the plaintiffs of their most material witness being much and had been followed, his lordship would have been very slow to dissent greater than any hardship which would result to the defendants from the trial from it. Butit appeared very difficult to reconcile it with other cases of equal taking place at Leicester, the order of the division al court w us right, and the authority, such as Hotten v. Arthur (1 H. & M. 603) and Grace v. Newman appeal must be dismissed. LINDLEY, L.J., said that some limit must be imposed (23 W. R. 517, L. R. 19 Eq. 623), and his lordship thought it could not be on the right of appeal, and the court ought to discourage sach appeals unless reconciled on any intelligible principle. He thought that a book containing they were brought on very cogent grounds. The question of changing a venue literary matter with illustrations, all put together, was fairly within the Act. was a matter of discretion. It was the right of the plaintiff to fix the place of And there was no reason why the court should be astate to discover a loop. trial, but this right was subject to the control of the court, and if it could be hole by which to protect defendants who bad done that wbich could not be shown that, on the whole, justice required that the venue should be changed, justified. The appeal must be dismissed, with costs.
the court would change it. But after the decisions of a master, a judg, and In the course of the argument a question arose as to the effect of the case a divisional court, it was an abuse to appeal, except under very cogent circum. of Bogue v. Houlston (5 De G. & S. 267). It was said that the report of that stances. In the present case it appeared to bis lordship absolutely essential case showed that the plaintiff claimed copyright in certain stories, as well as that the female plaiotiff should be put in the box at the trial, if she could be in the illustrations which were published with them. JESSEL, M.R., sent for got there, and that, to his mind, concluded the case. The appeal ought not the original record, and said that it appeared from the bill that the plaintiff in to bave been brought.-SOLICITORS, Bompas, Bischoff, & Dodgson ; Thomas that case claimed copyright in nothing but the illustrations.-SOLICITORS, Wright. Lewin Co.Lumley 8. Lumley. PRACTICE-TRIAL OF ACTION CHANGE OF VENUE-DISCRETION OF
RAILWAY COMPANY, NEGLIGENCE-DAMAGES-LIABILITY TO REPAIR AND COURT-APPEAL-ORD. 36, R. 1.- In a case of Mutch v. Wilson, before the Light PUBLIC HIGHWAY.—In a case of Lancaster v. The South-Eastern Rail. Court of Appeal on the 29th ult., a question arose as to the change of venue in way Company, before the Court of Appeal on the 30th ult., a question ar0:0 the action. The action was brought by a husband and wife, who resided at
as to the liability of a railway company for an injury resulting to a passenger Leicester, against the proprietors of a colliery in Cumberland, and of a tram
in consequence of the defective state of a footpath leading to a station of the way which crosses at a level a public highway leading from Maryport to company, which had been constructed by them on land of their own. The Workington. On the 17th of November last the wife, who was then staying plaintiff, on January 2, 1881, took a return ticket from London Bridge to with an aunt at Maryport, was being driven in a phaeton by her aunt's coach the Greenhithe Station of the company. From this station a footpath leiding man along this bighway, wben, on crossing the defendants' tramway, a
to a neighbouring village ran along the side of the railway, on land belooging collision took place
for a distance of about five hundred yards. This path
was to the defendants, which were being driven along the tramway, and the wife at one spot interrupted by an artificial cleft, dowa the sides of which, which was seriously injured. The plaintiffs claimed £25,000 damages, on the ground were steep
chalk banks, the path was carried by wooden steps. In returning at that the accident was caused by the negligence of the defendants and their pight by this footpath to the station to take the train to London, the plaintiff, not servants. The plaintiffs gave notice of trial at Leicester. The defendants being able to see the steps from the extreme darkness of the night, missd denied the alleged Degligence
, and alleged contributory
negligence on the part bis footing and was precipitated from the top to the bottom of the steps, thereby of the coachman. They also alleged that the laying and working of the tram sustaining considerable injury., He claimed compensation from the company way across the public highway was not unlawfal, because the right to lay and
on the ground that, being on the premises of the company, by their invitawork it had been claimed and enjoyed from time immemorial, without tion, for the purpose of travelling by their line, they were liable for interruption by the public, by the defendants and their predecessors in title. the damage occasioned by their not having placed a light at the steps. At The defendants also alleged that the tramway was justified under a private the trial, Lord Coleridge, C.J., .gave judgment for the defendants. It Act of Parliament. The defendants applied to the court to have the venue appeared that the plaintiff had been in the habit of using the footpath on prechanged, and the trial ordered to take place at Carlisle. The application was
vious visits to Greenhithe, but, until January 2, 1881, always by daylight. refused by a master, then by Lopes, J., and again by a divisional court con.
On the first oocasion he had asked the station-master the nearest way to the sisting of Grove and Mathew, JJ. The defendants appealed. Jessel, M.R., village, and was told that he could go by the footpath if he liked. Jessel, M.R., said that a change of venue was dependent on the preponderance of said that the company had provided a public bighway which was open to the convenience-i.e., with a view to the attainment of justice. It was
use of all persons, and when that way was once provided they had nothing practically a matter within the discretion of the judge to whom the brought, except on the principle that railway companies were fair gimiehe
more to do with it. He could not understand how this action could have been application was made. partly from his own experience, whether there was such a preponder- questions of compensation. The footpath in question was clearly a public bigb: ance of convenience in favour of changing the venue as to justify him in way, with no liability on the part'of the company to repair or light it
. The fact changing it. No doubt an appeal would lie from his decision, but it was
that the plaintiff was told more than a year before that it was the nearest certainly the duty of the Court of Appeal to say that such an appeal world way to the place to which he wanted to go was no invitation to bim to use is
, not be entertained that is, that it would be dismissed, unless the court was
and certainly be was not invited to go along it by night in the dark. There satisfied that there had been a gross miscarriage, a mistake which
amounted to was, ia point of fact, no invitation,
nor anything like an invitation, on the a denial of justice. If no such rule were laid down, the court would be part of the company so as to affect
them with any liability. It would be not encouraging the wealthy litigant to wear out his opponent and overlade him only contrary to law, but also contrary to reason if the court were to allow with costs by appealing from every order. His lordship did not say this was judement was perfectly
right. LINDLEY, L.J., and Bowen, L.J.,
the railway company to be mulcted in damages in a case like this. The so in the present case ; indeed, he was satisfied for other reasons that the pre- SOLICITOR, W. 1. Herbert.
concurred. sent appeal was a bona fide one, and that the defendants really wished to have the venue changed. But it was necessary to adhere to the rule. Indeed, in the present case, his lordship was not persuaded that the order was wrong; on the contrary, he thought it was right. The defendants said that this was a MASTER-BREACH.-In a case of Eaton v. Western, before the Court of
CONTRACT OF APPRENTICESHIP-PLACE OF PERFORMANCE_REMOVAL OF county action; that the locus in quo was near Carliele ; and that their Appeal on the 4th inst., the question arose whether there had been
a breach witnesses, who were numerous, all resided in or about Carlisle. They also of a contract of apprenticeship by reason of the removal of the business of the that many of the plaintiffs' witnesses also resided at Carlisle. On the other when the contract was entered into. The action was brongắt by a father and hand,
the female plaintiff resided at Leicester, and was in such a state of his infant son for damages for breach of the covenants and agreements.com health owing to this unfortunate accident ' that she was unable to go tained in an indenture of apprenticeship entered into between the plaintiff
: perhaps the most important. It was said that she would be called only to ants were carrying on their business of mechanical engineers in Lambeth, in exoite the sympathies of the jury. His lordship was not sare that she
would which place, also, the infant resided with his father. By the deed the infant not be able to testify to many of the material facts. Onght the court to was bound Apprentice to the defendants in the ordinary way for
six years, and deprive the plaintiffs of this important witness ? Certainly not. It was said that the trial of the action might be postponed to the
next spring covenanted with the defendants that he would, at all times during the term.
was to serve them and to obey their lawful commands. And the father assizes. His lordship did not think that the defendants had a right to call provide his son
with suitable board and lodging
and clothes, and all for a postponement of the trial. The female plaintiff might die in the mean other necessaries, and that the son should fathfully serve the defendants as time, and then her evidence would be lost altogether. A postponement of the their apprentice during the terme. And, in consideration
of this, the defendan :
s trial could not be allowed. If so, was it conducive to the interests of justice contracted with the infant and his
father to teach the infant their business in t at the plaiatifis should be deprived of their most material witness ?" Clearly the usual manner, and to pay him certain Wages. In 1879 the defendants re
moved their business to Derby, and required all their apprentices to remove the presentation of any other winding-up petition, and of any proceeding being there, offering to pay their railway fare there and to pay them, if they removed, taken by any other mortgages or debenture-holder to enforce his security. increased wages during the remainder of their terms, or, in the alternative, to Fry, J., said that the court ought, no doubt, to have regard to the wishes of have their indentures cancelled, and to make them a present of four weeks' the creditors, but it ought not to regard merely the number of the creditors, wages. The infant plaintiff, with the consent of his father, refused to go to and the value of the debts due to them, but it should consider also the reasons Derby, and the defendants thereopon refused to continue bim as their appren which they gave for their wishes. In the present case the opposing creditors tice. This action was then brought in the Surrey County Court, and judg. had shown good reasons for their opposition to the making of an immediate ment was given for the plaintiffs. On appeal to the Queen's Berch Division winding-up order ; they were also more in number and value than the creditors this judgment was reversed. The divisional court (Mathew and Cave, JJ.) who supported the petition, and, therefore, the coort ought to attend to their were of opinion that they were bound by the decision of the Queen's Bench wishes, and not make an immediate winding-up order. Another reason for coming Division (Grove and Bowen, JJ.) in the recent case of Royce v. Charlton to this conclusion was, that the petitioners would not gain anything by a wind. (30 W. R. 274, L. R. 8 Q. B. D. 1). In that case a deed of apprenticeship ing-up order. In the winding up, the court would have to administer only contained the usual provision that the master should teach the apprentice, the equity of redemption of the mortgaged property, and substantially the but there was no express provision as to the place where the contract was to whole of the company's property was included in the mortgage, and in the be performed by the master. The apprentice's mother, with whom he resided, security of the debentare-holders. Therefore no practical benefit wonld result agreed to provide him with board and lodging duriog the term. And it was to the petitioners from a winding-up order.-SOLICITORS, Clarke, Woodcock, held that no stipulation could be implied that the contract of the master was & Ryland; Wilkins, Blyth, s Dalion ; Jones, Blaxland, f Son. to be performed at the place where the master carried on business and the apprentice and his mother resided at the date of the deed, and that tbere was no breach by reason of the master removing his business to a distant place.
LIMITED COMPANY-FRAUDULENT PROSPECTUS-RECTIFICATION OF Regis. In Eaton v. Western the Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN, TER-LACHES OF PLAINTIFF-COMPANIES Act, 1862, s. 35. In the case of and LINDLEY, L.J.) disapproved of this decision, and reversed the decision of Levy v. United Horse Nail Company (Limited), before Chitty, J., on the 30th Mathew and Cave, JJ., which was founded on it. They said that the case ult., a motion was made by the plaintiff for the rectification of the register of was quite different from that of an indoor apprentice in which the master was shareholders of the company by the removal of the plaintiff's name therefrom bound to provide the apprentice with board and lodging. It would not be a in respect of 500 shares applied for by and allotted to him, and also for the reasonable constraction to hold that the father was bound to provide the son return to him by the company of $250 paid in allotment. The ground of the with board and lodging at any place to which the master might choose to re
motion was that the plaintiff was induced to take the shares in consequence of move bis business. The master's command to the apprentice to remove to fraudulent representations contained in the prospectus issued by the company. Derby was not lawful and reasonable, and the apprentice was not bound to From the evidence produced by the plaintiff it appeared that on the 2nd of obey it. The decision of the county court was accordingly restored.-SOLICI- June, 1881, he believed, and stated his belief, that the company was not a TORS, Bordman & Co.; Western f. Sons.
bona fide one, bat the present proceedings were not instituted until March of the present year. CHITTY, J., said that the plaintiff had not shown that he
was misled by any representation of the kind he alleged, or, indeed, that there SHERIFF'S OFFICER-NEGLIGENCE-DELIVERY OF WRIT.-In a case of was any fraudulent misrepresentation at all, and that the motion, on these Truninger v. Keene, before the Court of Appeal on the 3rd inst., a question grounds, must be dismissed with costs. There was also another ground which arose as to the liability of a sheriff's officer for negligence iu not obtaining a was a sufficient one for dismissing the motion, and that was the delay of the warrant to levy under a writ of elegit. It appeared that it is a not uncommon plaintiff in making his application to the court.-SOLICITORS, Walter B. practice for the solicitor of a party who has issued a writ of elegit, instead of Styer ; Heritage & Co. delivering it in due course at the office of the under-sheriff in order that a warrant to levy may be issued to the sheriff's officer, to deliver the writ to
PETITION-APPOINTMENT OF NEW TRUSTEE-TRUSTEE Acts, 1850, 1852 one of the sheriff's officers in order that he may obtain the warrant, a small
-CONVEYANCING Act, 1881.-In the case of In re Oakden's Trusts, fee being paid to him for the purpose. Some advantage is sopposed to be before Chitty, J., on the 1st inst., a petition was presented by the tenant present case a writ of elegit was delivered in this way to a clerk of the defende for life of trust funds comprised in the will of a deceased testator for the ant, who was a sheriff's officer, in order that a warrant to levy might be appointment of a new
trustee of the will in substitution for one of the two obtained. The procuring of the warrant was so much delayed, that, before original trustees who was dead. Chitty, J., said that the proper course was it was issued, the execution debtor bad filed a liquidation petition, and the without coming to the court. In the present instance he would make the
to appoint a new trustee under section 31 of the Conveyancing Act, 1881, plaintiff (the execution creditor) thus lost the priority which he would have order with the view of sparing the parties expense, but similar petitions would, obtained if the levy had been made in time. 'he plaintiff claimed damages in future, be dismissed with costs.-SOLICITORS, Aldridge, Thorn, d Morris, from the sheriff's officer for negligence in not procuring the warrant in time. for Leech, Smith, & Broughall, Derby; Geare & Son; G. F. Hudson, At the trial without a jury Mathew, J., ordered judgment to be entered for Matthews, & Co. the defendant, on the ground that it was not proved that the defendant's clerk had any authority from bim to receive the writ. An order nisi for a new trial was obtained, on the ground that the judge had refused an application to PARTITION ACTI-SALE FREE FROM INCUMBRANCES-CONVEYANCING ACT, postpone the trial in order to enable the plaintiff to procure the attendance of 1881, s. 5.-In the case of Dickin v. Dickin, before Chitty, J., on the a witness whose evidence was alleged to be material. The Court of Appeal 1st inst., a consent order was sought ander the Partition Aots for the sale of (JESSEL, M.R., and LINDLEY, L.J.), discharged the rule, on the gronnd that hereditaments which were subjeot to an annuity of £20 in favour of a person it is not part of the duty of a sheriff's officer to receive writs of execution not made party to the action, and it was proposed that the property should directly from the execution creditor or his solioitor, and that, consequently, be sold under the provisions of the Conveyancing Act, 1881, s. 5, free from the defendant's clerk in receiving the writ was not acting in the ordinary the incombranoe of the annuity. CHITTY, J., made the order asked for, course of the business of a sheriff's officer, and his act could not, therefore, with a direction that ont of the parohase-money to be paid into court such bind his principal in the absence of express authority from him. The evi.
an amount as, when invested in Government securities, the court should dence did not prove any such authority, and if the absent witness had proved consider sufficient to provide for the annuity of £20 and costs should be set all which it was stated that he could have proved, his evidence would not aside and invested as a provision for each annuity, and thereupon that any have amounted to more than this, that it was a common practice for sheriffs' officers to allow their clerks to receive writs from the solicitors of execution party should be at liberty to apply for a declaration that the hereditaments
were free from the annuity. --SOLICITORS, Milne, Riddle, f Mellor, for creditors. There was, therefore, no ground for a new trial.-SOLICITORS, Withinglon, Petty, &• Boutflower, Manohoster ; C. W. Dommett. M, Abrahams & Co., Abbott, Jenkins, f Abbott,
COMPANY-WINDING UP_WISHES OF CREDITORS-COMPANIES ACT, 1862, 8. 91.-In a case of In re The Great Western Coal Consumers' Company,
CASES BEFORE THE BANKRUPTCY REGISTRARS. before Fry, J., on the 1st inst., a question arose as to the regard which the
(Before Mr. REGISTRAR MURRAY, acting as Chief Judge.) court should pay to the wishes of the creditors of a company in reference to the makiog of a winding-up order. The petition was presented by the first
April 26; May 17 ; June 28.-Re Currie. mortgagees of the company's property, who were also the holders of some A pension of £90 138. 10d. per year granted by the Madras Medical debentures of the company. The petition was opposed, not only by the com. Fund to the bankrupt, as the unmarried daughter of a deceased medical pany and by some of the shareholders, but also by a large number of the credi. officer in the Indian Army, held to pass to the trustee under the banktors. The amount of the debts due to the opposing creditors was consider- ruptcy, subject to the provisions of section 90 of the Bankruptcy Act. ably more than double the amount due to the petitioners and those creditors But the amount to be set apart in volves a question of discretion. who supported the petition, Substantially the whole of the company's property was mortgaged, and it did not appear that there was much proba- This was an application on behalf of Cecilia Cadogan Currie, spinster, a bility of a surplus. There was evidence that the position of the company was bankrupt, for an order that, notwithstanding the appointment of James Holah improving, and that, if it was allowed to continue its business, it was probable as trustee of the estate and effects of the
bankrupt, the annual pension of that it would be able to pay the interest on the mortgages, which had been £90 139. 101. derived from the Madras Medical Fand, and payable quarterly in arrear for some years, and gradually to extinguish the mortgage debt. to the bankrupt during her life, or until her marriage, might be paid to her as Under these circumstances Fry, J., declined to make an immediate winding the
same became due. There was also a cross-application on behalf of the up order, bat directed that the petition should stand over for six months, or trustee for an order on the Director of Military Funds to pay to the trustee so until the petitioners should, within the six months, take some proceedings much of the pension (subject to existing charges) as the court might think fit, to enforce their security, the company giving an undertaking, as was given in to be applied in such manner as the court might direct. In re St. Thomas' Dock Company (24 W. R. 544, L, R. 2 Ch. D. 116), not to The bankrupt stated that she was entitled to the pension in question, which wind up volontarily, and not to consent to a winding-up order on the petition was derived from the Madras Medical Fund, as the daughter of an Indian of any other creditor, and also to give notice in writing to the petitioner of medical officer, her father having been a subscriber to the fund during his life