Page images
PDF
[graphic]

author is referring to the personal remedy, by an action for deceit, against directors for a fraudulent prospectus. “The _only_ limit. short of acquiescence, is the Statute of Limitations." This implies that the right of action may be lost by acquiescence, which is not, we think, sound law according to the authorities. Thus Lord Justice Thesiger, in delivering the judgment of the court in he Busschc v. Alt (S Cb. D. 286) says: “Acqnii-sconce may be defined as quiescence under such circumstances as that assent may be reasonably inferred froui it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge Or assent on the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in_ him which, at all events as a general rule, cannot be divested without ac_co_i'd and satisfaction, or release under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right." The confusion has probably arisen from the doctrine (now obsolete) that courts of equity were not bound by the Statutes of Limitation, but adopted them in cases where acquiescence endured for the statutory period: lee Re (lreaves, Bray v. To/irlcl (30 W. R. 55, 18 Ch. D. 551). We notice also an omission in the section “Directors and their Powers," where the cases of Ferguson v. Wilson (15 W. R. 80, 2 Ch. 77) and Wilson v. Lord Bury (5 Q. B. D. 518) ought to have been, but are not, cited.

[ocr errors][merged small]

Sir-,—Referring to the various discussions during the past twelve months, I have had many communications, and in the result I have made the following suggestions, on which I should be glad to have the view of some of your readers if you will permit the correspondence to appear in you columns.

First, as to the Chancery Division, I suggest :

1. That all witness and other causes should be separated from inté-irlocutory business and be taken de die in die/n by an independent ju ge.

2. That cases of an administrative character (if a jud e so directs) should form the subject of an entirely separate list to is separately dealt with.

3. That all original motions and petitions, and every other application in cases wherein there has been no previous intervention of the court, should be put in a separate list, and be dealt with by one judge sitting foi the time being for such purpose only, instead of several judges taking such work to the obstruction and uncertainty of other business.

4. That some judge should sit in chambers for one or more entire days every week to hear adjourned summonses. The summonses adjourned into court to be heard as now.

Next, as to the Common Law Division, I suggest :—

5. That the cause lists should be more completely separated into (a.) special juries, (b.) common juries, (0.) causes without juries, (d.) causes standing over sine die.

6. That special jury causes should be heard in the order in which they are marked as such, and not be placed between other special juries already so marked.

Finally, as to both divisions, I suggest :—

7. That every Friday evening the judge engaged on his particular list should announce that he will not go beyond such and such a case during the coming week. A good margin could be allowed for contingencies, and even if some unprecedented collapse happened it would be better for a judge to be idle for twenty-four hours for once than that hundreds of people should be kept needlessly anxious.

8. That no cause within the compass of the ensuing week’s estimate be marked ‘f postponed " without the judge’s consent (much confusion and uncertainty arising from uncontrolled changes).

9. That at least one day before the conclusion of every sitting there should be anannoiincement of the intended programme of the following sitting (emergencies excepted), it being submitted that the (lal'.0S of the assises and other known work ought to be fixed with a fairly long notice to the profession. This remark applies particularly to the long W593‘-1°11. 110b0dy at present being able to form any idea of the Michaelmas plans till just on the eve of the sittings.

10. That, B5 _f1§l‘_8-5 possible, the plan, already adopted in the Probate and Divorce DWIBIOH, Of classifying the work and fixing dates beforehand should be applied to the other divisions, and especially that it Bhmlld beflied Whether it is expected that one or more courts will he devoted to a particular list. Any solicitor can make a rough calculati°I1 What 9' sinyi“ ludge Q1“ 89¢ through ; but he can give his client

[ocr errors]
[merged small][merged small][graphic][merged small][ocr errors][ocr errors]

Messrs. Steel & Co. of Calcutta, shi ed on board the defendants’ vessel, Tho Plmllfllft‘, 500 bales of jute, 26 of ililem being marked _R O 1, 1€_)‘Z C 2. and 282 R C 3. Jute is shipped of various o_ual_ities, which are indicated on the bales by numbers, No. 1 indicating first quality. N°~ 2 second quality, and No. 3 third quality. These numbers are terma.% quality marks, R C being the leading mark. A bill of lading for the 5 bales was signed by the master, the bill of lading being in the customary form in the jute trade as used since 1881, and there was a clause in the margin :—“ lf quality marks are used they are to be of the same size as the leading marks and contiguous thereto, and if such quality marks are inserted in the shipping notes, and the goods are accepted by the mate, bills of lading in conformity therewith shall be signed by the captain, and the ship shall be responsible for the correct delivery oflthz goods.” The shipping notes (made out by the Slllp[39l'9» htC Co.) stated that the 500 bales were made up as follows :—-2_c bales of R 1, 251 of R C 2, and 223 of R C 3 ; and these figures were inserted in tlhe bill of lading, the bill of ladiiig thus stating that there were o9 ba-is more of quality No. 2 and 59 less of quality No. than Wsrfl BP~t\1}1lY shipped. The bill of lading was iudoi-sed to the plaintiifs for value without notice of any incorrectness in the description of the goods shipped. The 500 bales actually shipped were delivered to the plaiutifis in L011 OI}. but the plsintifis sought to recover from the defendants the diffei-ence_i1i the value of the bales owing to the non-delivery of the bales of the qul-111?-Y. and bearing the quality marks, stated iii the bill of lading. y h

Ti-in CUURT or Ari-sit, atlii-ming the judgment of the Queen s Benc Division, held that the defendants were not liable; that the true moaning of the marginal clause in the bill of lading was that if the <1u8hW marks which were actually upon the bales shipped were inserted_i11 the shipping notes, and the mate accepted the goods, bills of lnding in coiié formity therewith should be signed by the captain, and the ship B110“ be responsible for the correct delivery of the goods; that in this case the quality marks on the goods differed from those in the shipping H0965, and so the defendants were not liable under the clause. Nor were the defendants liable by reason of any general authority in the master to bind them; per Lord Esiisa, M.R.., and Lui-as, L.J., upon the Bl“?““dmt the master had no general authority to sign bills of lading stating the inercaiitile quality of the goods so as to bind the sliipowners ; Pf” L‘-“”“"’ L.J., on the ground. that the special and limited authority given to the master by the marginal clause ousted any general authority.-Coi'.\'.<si., Big/lam, Q,.O., and J. Gorcll Barnes ,- R. 1'. Reid, 1.1.0., and F. W- lI¢""""Soniciroas, W. A. Cramp §- Son ; Hollams, Sim, §- Coward.

[ocr errors]

This case raised a question as to the duties of the rct11l'h}"B ofiicer at municipal elections. It appeared that at the recent municipal election for the borough of Bangor two candidates offered themselves for the representation of the South \Vard. 0t these 0115 was Mr. Pritchard, the other Mr. Meshach Roberts, who was it that time an alderman of the borough. The election took place 011 November 1, and the term of Mr. Roberta's oflice as alderman did 11019 expire until November 9. An objection was taken to the nomination of Mr. Roberts on this ground, but it was overruled by the mayor, “mi the election proceeded. Un the votes being counted it was found that 171 hfld been given for Mr. Roberts, and 151. for Mr. Pi-itchard. The returning oflieer thereupon communicated the numbers to the mayor, but mflde 11° declaration of the elected candidate. The mayor, however, proceededw announce the result of the poll to the crowd outside the building in which the counting had taken place. Two days afterwards the returning ollicer, having considered the point, published a placard in which, after stating

[graphic]

the numbers of the votes given for the two candidates, he declared ML

[ocr errors]
[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][graphic]
[graphic]

Roberts to be ineligible for the oflice of town councillor, by reason of his being an alderman for the borough, and announced that Mr. Pritchard was elected. Thereuplon the town clerk sent notice to Mr. Pritcliard that he was elected, and e accordingly qualified and took his seat. A few days afterwards Mr. Roberts also qualified, and took a seat as town councillor. The mayor and the majority of the council declined to receive Mr. I’ritchard‘s vote, and he therefore applied to the Queen's Bench Division for a peremptory mlmrlamus requiring them to receive and count his vote. That Court (Denmaii and Stephen, JJ.) having granted the mnmIm1m.\~, the corporation appealed, but in the meantime a meeting of the town council of Bangor was summoned, and Mr. I’ritchard's vote being received in obedience to the mnndamin, his party became in the majority on the council, and it was decided by such majority not to proceed with the appeal. The Court of Appeal thereupon granted Mr. Roberts leave to proceed with the appeal. It was now urged for the respondents that Mr. Roberts was ineligible as a candidate for the town councillorship by reason of his being already an alderman of the borough, and that his ineligibility was so notorious that votes given for him were thrown away and could not be counted. It was further contended that lilr. Pritchard had been properly elected by the declaration made by the returning otflcer, and that, even if he had not been properly elected, the ofiice was filled by him until he was unseated on petition, and that, therefore, amandamu~' would lie to the corporation to receive his vote. The corpoqation appeared, and desired to state that they did not prosecute the appca .

Tiis Qociir 01-: Ai~i-s.\i. (Lord Esiiiin, M.R., LINDLEY and Lorna, L.JJ.), in allowing the appeal, said that the cases clearly laid it down that a pcisoii holding an incompatible ofilce was not made ineligible for another ofllce by reason of its incompatibility, but that if lc was elected to and accepted the second oflice he thereby vacated the former ofiice. The duty of a returning officer was clearly limited by the Ballot Act (35 & 36 Vict. c. 36), s. 2, and was, after receiving or rejecting ballot papers, to_ count them, and forthwith to declare the person having the majority of votes to be elected. The subsequent declaration by ihe returnmg Officer here was, therefore, entirely ulzrd rim and void. They considere Mr. Roberts to have been an eligible candidate and to have been duly elected, and, therefore, we re of opinion that the marirlzimiis must be quashed.—Couisssr., Sir Clinrln Russell, Q.C., R. S. Wright, and Harv/Mill Wcllirmu; Sir Henry Jamrr, Q,.O., Jlrlnlyre, Q.C., and Douylns; Alexander Glen. SOLICITORS, Blorzm Q Ellis, for J. B. Roberts Q ITO/11718, 3311801’; lklfmys if Co., for R. S. lllmmberlain, Llandudno; Simpson, Hammond, 5- 00., for 13. II. .Pn'tchnrd, Bangor.

[merged small][ocr errors]

The question in this case was as to the right of a stranger, or of a mortgagor of a policy of insurance, who, without any request, pays a premium to keep alive the policy, to a lien on the policy or its proceeds for the amount so paid. In August, 1879, E. purchased a policy for £29000, effected on the life of B., with the defendant company, and subjectto the annual premium of £1211 19s. 2d., payable on the 30th of August in each year. The policy was mortgaged by E. to the company to secure £1,950, 511d5l1b$€%;le€litly to F. for £6,000, and other iiicumbrances were created. In -5'_‘i>wm r._1ss2, E. flied a liquidation petition, and in March, 1883, obtained his discharge, on the terms of paying a composition of 2s. in the pound to his creditors, other than those who bad security on the policy. lithe money to pay the composition was found by some friends, to whom

,1“ P1'°PP1'ly, other than the policy, was assigned as security. The compoFmWdull’ P1115, Bud the equity of redemption of the policy revested 111 He afterwards entered into a contract with D., who professed to be pfiting as agent for F., for the purchase of F.’s mortgage for £50, and, on

9 30th of August, 1883, he paid the premium then due, the other persons interested in the policy not being prepared to pay it. It afterWags turned out that the contract for purchase could not be carried out, 88 . had not any authority to enter into it on behalf of F. This action :18! brought by h:'s cxecutrix to enforce her security on the policy. In

feflqction the policy was sold by order of the court, and, after payment re e amount due to the company as first mortgagees, a surplus of £1,722 Eulgiained. The plaintiff claimed the whole of this sum, which was not of _tCl;Iil; to dischargeher mortgage debt, and E. claimcd to be paid out th l I e premium which he had paid, on the ground that his payment of V %pl’Ehl11l\lil1 had kept the policy alive for the plaintiff's benefit. Bacon, £i T52 eld that E. was entitlid to repayment of the premium out of the sh» °11 the ground that though, as it turned out, he was a mere befinfgxy yet, at the time when he made the payment, he had a bomffide

TE Cfltbe had a valid contract for the purchase of I<‘.’s mortgage. deck,‘ °l;~B'l'_°P APPEAL (Co'i'ro.\‘, BUWEN, and Far, L.JJ.) reversed the

remion, olding that E. had no lien on the proceeds of the policy for the lgxeditum. f(:i)T‘l‘i>N, L J., said that when the composition was paid to the chm S1’! 0 _l1. he became the ultimate owner of the policy subject to the the Er B On it. The general rule o_f law was that the payment by a stranger of whopufiiaium on a policy gave him no lien on the policy. A mere volunteer R “nabizllmiment In respect of the property of another, without any otllhia 8 y at other, gained no charge or lien on the property in respect would]; ymelpt. If_ the payment had_been made at the request of F., E. necewulillve ad s. right of action against him for repayment, though not come to tg B_1ien o_n the policy. On the evidence his lordship could not F to F me conclusion thatthere was any request, express or implied, by

at " make the P")'mcnt. The argument for the appellant had been

P °" "10 broad ground that anyone who took the benefit of a contract ,

[graphic]

was bound to pay for it. It might be so, if the circumstances raised a presumption of ratification ; but it was not shewn that F. had any knowledge of the circumstances. And the plaintiff was not taking advantage of any contract entered into by E., but of the contract effected by the policy. The ground of the Vice-Chancellor's decision was that the payment was made by E. with reference to the contract which he had entered into with D. With great respect to the Vice-Chancellor, his lordship must differ from him. There was no evidence that F. had authorized that contract. It was true that if a man who had the real title to property stood by, and saw a man who believed that the property was his laying out money on the property, equity would prevent him from insisting on his legal rights against the person who had so expended the money. But he must know that the title of the person who spent that money was a bad one. Here it was not shewn that F. knew anything. Did the fact that E. was the owner of the ultimate equity of redemption of the policy entitle him to alien for the premium? It would be strange if an expenditure in respect of mortgaged property by the mortgagor could entitle him to a charge on the property in priority to his own mortgagee. It must be considered that E. made the payment, not with the view of obtaining any charge in priority to his mortgagee, but in order to protect his own interest in case the policy should produce more than enough to satisfy the charges on it. The owner of a mine could not have a charge as against his mortgagee for money expended by him to prevent the mine from being flooded. Bowsx, L..l., was of the same opinion. He said that the general principle was that work and labour dons by one person to preserve the property of another, without his request, did not create any ien on the property preserved for the money expended in its preservation, or even create an obligation on the part of the owner to repay the money. A liability could not be forced upon a man behind his back. There was an exception in the case of maritime lien for salvage ; in this respect the maritime law differed from the common law. For purposes of public policy and for the advantage of trade, the maritime law had imposed the obligation of a lien for salvage expenses. But that doctrine did not apply to goods lost on land. A lien in respect of labour expended on goods could only be admitted, if there were facts from which the law would imply a contract on the part of the owner to repay. If the owner of the property knew that the service was being performed, it was then a question of fact whether a contract by him to repay couldbe inferred. There was nothing to shew that F. had so acted as to justify ang such inference by E. It was said, however, that his subsequent con uct in taking the benefit of the preserved policy made him liable to repay the money expended in preserving it, by virtue of some act of adoption or ratification. A man could not adopt or ratify that which purported to he done for someone else. The payment of the premium did not purport to be made for the benefit of F. If he had taken the benefit under circumstances which led to the inference of a fresh contract to pay, it would _be a different case. But there was not aparticle of evidence of that. \Vith certain exceptions, the rule in equity was the same as that at law, and there was no equity in the present case. The mortgagor did not make the payment under any mistake as to his interest, and the mortgagee did not stand by and allow him to pay. It was not even a case in which the owner of the property required the assistance of a court of equity to get his property back. Fiir, L.J., concurred.-Cor.\"si:i., Jrlf. Q C., and Bonsey; Marlon, Q.C., and Oswald; Beddall. SOLICITORS, Lwiflwurne QS/rrens; Harper §- Battcork; J. S. Moria/l.

[merged small][ocr errors]

The question in this case was, What is the meaning of the word “ indemnity " in rule 48 of order 16 of the Rules of the Supreme Court, 1884}, which provides that, “ where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the action,_he may, by leave of the court or a judge, issue a notice to that effect," which is to be served on the third party? The corresponding rule (rule 17 of order 16) of the rules of 1875, contained the word s, “ where a defendant is or claims to be entitled to contribution or indemnity, or any otlirr ramqly or relief over against any other person,” the words in italics being omitted from the present rule. The plaintiffs sought to enforce against the defendant company some building agreements relating to some land near Birmingham. The agreements had been entered into by the plaintiffs with some trustees, who were then the owners of the land. The trustees afterwards contracted to sell the land to the defendant company tree from incumbrancss, alleging that the agreements with the plamtifls had become forfeited. The plaintiffs sought to restrain the defendant company from interfering with the land. The defendant company applied to Ohitty, J ., for leave to serve a third party notice on the trustees on the ground that, as they had contracted to sell the land to the defendant company free from incumbranccs, there was an implied contract on_their part to indemnify the defendant company in case they should fail in the present action. (lhitty, J ., held that thcgs was no right to mdemnity, an that the rule did not app y mm, p. .

Tris COURT 01-‘ APPEAL (Corrox, Bowiiil, and Far, L.JJ-)_ sfflrmedntlge decision. Corron, L.J., was_0_f opinion that the_ word “indemnity _ in the rule must mean a right arising by contract, either express or implied. If the court came to the conclusion that the position of the parties was such that, either at law or in equity, the one was under an Obiig&tlOI1ft0 indemnify the other, as in the case of trustee and calm que lru0I—- pi‘ instance, if shares stood in the name of a t:rustee_—-there_ woph be an implied contract by the ccslm que trust to indemnifyd 1:: trustee against liability on the SllI\‘l'i‘S. In the present _case_itd coqt 31;’ be said that there was any such contract, express or implle

not suggested that there was en express contract. It might well be that, if the plaintifis succeeded in this action, the railway company would be able to recover damages against the trustees for breach of contract or misrepresentation. No doubt, if one person requested another to do a certain act, and, by reason of his doing it, he suifered loss, the law implied a contract by the first person to indemnify him. In the present case his lordship could not see wliat request could be said to have been made by the trustees to the railway company, unless in every case of a sale of goods there was an implied contract of indemnity on the part of the vendor. That, however, was not the law. There was no contract for indemnity in the present case, and, however convenient it might be to bring in the trustees, there was no power under rule 48 to authorize the serving of a third party notice on them. Bo\\'s.\', L.J , said that the present rule was intended to cut down the old rule. In the present case the defendants had no right except that which arose out of the express contract of sale. The rule was limited to claims to indemnity, as such, at law or in equity. In nino cases out of ten such a right must be created either by express contract or by implied contract. Such a contract might be implied either on the ground that the parties intended it, though they did not say so expressly, or because there was a legal duty or obligation which law or equity would assist the parties to enforce. There might possibly be a tenth ease where a statute gave a right to indemnity, and possibly there might be some other direct right in equity to indemnity not coming within the previous cases. But a right to damages was clearly not a right to an indemnity as such. It was the converse. It arose out of the breach of a contract, and was not a provision of the contract. In cases of principal and agent the law implied an obligation on the part of the principal to indemnify the agent who acted on his request against loss, and this was not confined to cases of principal and agent. But it would be idle to maintain that, in the case of a contract for sale, there was any such request. h‘ni', L.J., concurred. He was of opinion that the rule intended a direct right at law or in equity to indemnity as such, which must not be confounded with a right to_ damages for breach of contract or for tort. There might be cases of a right to indemnity not founded on either contractor statute, but in any case it must be a direct simple right to indemnity as such. In the present case the defendants had no right to anything but damages for breach of an express contract.—(}o|:ivsr-:r., Inca, Q ., and 0. Letyh Olare; ROIHH‘, Q.O., and Wommya. Soiicirons, C’. H. Mason ; Robinson, Preston, 5' Slaw.

[ocr errors][merged small]

. . , 8 Y the defendant to allow the plaintiff to enter on his land to remove some (elaiéthgvhich he had been restramed from allowing to remain there. The

e en _ant desired to have the_undertal<ing struck out, on the ground that his counsel were not authorizedto give any undertaking on his behalf. Tiia (_7ooitr or APPEAL (Cortex, BU\\'14.\', and 1<‘iw, L.JJ.) refused the application. COTTON, L.J., said that the motion was only to vary the minutes, not to discharge the order as erroneous. On a motion to vary minutes the court ought not to go into any question but whether the mmute_s correctly expressed the real decision of the court. In thc present case his lordship was of opmion that the minutes, as given out by the registrar, accurately expressed the order which the court made. The court was asked to treat the motion as one to relieve the defendant from his burden. If that were done, the whole order would go. Such a matter could not properly be b_rouglit before_the court on the present motion. B0“ ax, L.J., said that it was a very important rule of practice that the only question which could be discussed on a motion to vary minutes

[ocr errors]
[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[graphic]
[ocr errors]
[ocr errors][ocr errors]

This was a petition for payment out of part of a f_und, and it was proposed to carry over the share of one of the beneficiaries to the account of such beiieflciary “or his incumbrancers." It was stated that there were no incumbrancers of the beneficiai-y’s share. l _

CHITTY, J., said that it would not be right to add the words, _ ‘ or his incunibrancers," and such words must be omitted. There were, in fact, no incumbrancers; and, if the words were added, when the b811':fiC1B1‘y came to apply hereafter for payment out, he would be put _to the unnecessary expense and trouble in proving that there were no incumbrancers.-Coc.\"ssi., Gudifr-n' ; Wan-inqlmi.

[ocr errors][ocr errors]

This was an action by a first mortgagee for foreclosure against the second and third mortgagees. It appeared that the pl8.1l1l_‘.1fi, with_out knowledge of subsequent incumbrancers, had already obtamed against the mortgagor a foreclosure judgment nisi, but that the chief clerk’s certificate had not yet been made. The present action now coming on_for motion for judgment, the plaintiff stated that, although it was possible that the second mortgagee might redeem, there was no probability of the mortgagor doing so.

Ci-iirrr, J ., said that, as the mortgagor was not a party to_the present action, he could not make an order in it, and ordered the motion to stand over, with liberty to amend by adding the mortgagor as a defendant.—Coi<xssL, Gas<'Iv¢' ,' Fnruvll; Iiuuting. Soucirons, 1'uIer.~=on, Snow, Q lllormn ; Matliews Q Brown ; Hicltin Q Graham.

[ocr errors][ocr errors]

In this case a question arose as to the validity of an appointment of a new trustee, which purported to be made under the power conferred by section 31 of the Conveyancing Act, 1881. Sub-section 1 of section 31 provides that where a trustee (inter ulia) “ is dead, or remains out of the United Kingdom for more than twelve months," then “the person_ or persons nominated for this purpose by the instrument, if any, creating the trust, or, if there is no such person, or no such person able and willing to act, then the sur1.'iz'i'n_// or oonlimting trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom,” &c. And, by sub-section 6, “The p_rovisions of this section relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.” In the present case there were eleven trustees of a chapel. The deed of trust contained a power of appointing new trustees, but that power did not extend to the case of a trustee remaining out of the United Kingdom for more than twelve months. One of the eleven trustees died, and another remained abroad for more than twelve months, and the remaining iiine trustees executeda deed by which, in exercise of the power conferred by the Conveyancing Act, they appointed a. new trustee in the place of the trustee who was abroad. The ten trustees entered into a contract for the sale of the chapel, and the purchaser took the objection that the appointment of the new trustee was invalid, because the original trustee who was abroad did not concur in it. A summons was taken out by the vendors under the Vendor and Purchaser Act to determine the validity of the objection. On behalf of the vendors it was contended that the words “ continuing trustee” in section 31 included only a trustee who was to continue to act in the trusts after the appointment of the new trustee should have been made. On behalf of the purchaser it was urged that those words included a trustee who was aboutto retire or to cease to be a triistee, but who was “ continuing" up to the execution of the appointmen .

NORTH, J ., held that the concurrence of the outgoing trustee was unnecessary, and that the appointment was valid. He said that, if he had to decide the question with reference to a deed which contained a power of appointing new trustees expressed in the words of sub-section 1 of section 31, without anything more, he should follow the decisions Of liindersley, \'.C., in Tm/iii v. I/(mgworth (2 D. & S. 344), and Pearson, J., in Re Norris (_27 Ch. 1). 333), differing from the opinion expressed by Bacon, V.C., in Ru Glmny and Hartley (25 Ch. D. 611) (though that opmion was not necessary to the decision of the actual case then before the _\'ice-Chancellor), and hold that the words “continuing trustee" apphed only to a trustee who was to continue a trustee after the appoint

ment of the new trustee, and that they did not include a trustee who was pp] cease be a trustee on the execution of the appointment. But, when

e_appointment was made under the statutory power, the point was decided by sub-section 6. The provisions of the section as to a “con§inu_m_g” trustee were to apply to a retiring trustee only, if he was

willing to act in the execution of the provisions of this section." I11 the present case there was no evidence that the trustee who was absent abroad was willing or competent to act in making the appointment, or even that the other trustees knew where he was to be found. C011sequently, the appointment must be held to be valid —COU\IsBL, 11imtin_// ;

[graphic]
[ocr errors]
[merged small][graphic][ocr errors]

A question arose in this case as to the jurisdiction to determine upon an originating summons the nature and extent of an interest in real estate given by a will. A testatrix, who died in 1863, by her will, made in 1861, devised real estate in such a way as left it doubtful whether T. was entitled in fee, or whether itwent on the uses of a prior settlement of other estates. The testatrix did not appoint any trustees. T. died in 1884, having by his will devised his real estate to trustees on trust for sale. A., the tenant for life under the settlement, had executed a disentailing deed and 11 re-settlement of the other estates. The summons was issued by the trustees of the will of T. as plaintiffs, against A. and the trustees of his re-settlement as defendants. The executors of the testatrix were not served with the summons. The summons asked for the determination of the question whether the estate devised by the will of the testatrix passed by the will of T. to his trustees, or towhom, and for what interest, it passed by the will of the testatrix, and whether it was comprised in the re-settlement made by A.

NORTH, J ., held that there was no jurisdiction to decide the questions upon an originating summons. Rule 3 of order 55 gave jurisdiction to determine, without an administration of an estate or trust (1'nle1'r1Iin), “ any question arising in the administration of the estate or trust.” The power extended only to matters which, before the rule, would have been determined under an administration judgment, and the questions now raised, relating, as they did, to a legal devise, would not then have been determined in an action for the administration of the estate of the testatrix. The rule would not apply even if the executors of the testntrix had been served with the summous.—Cocxssi., Napier Higgim, Q C., and S. Locke; F. V. S»m'lb ,- 0/milwyok Hcale}/. SOLICITORS, Ball, Stewards, Q May; Rose, Johnson, Q U0. ,‘ E. S. Alllcrson.

[ocr errors][ocr errors]

A question arose in this case as to waiver of personal service of an order, with reference to an application for acommittal fordisobedience to an order. An order had been made upon a solicitor to deliver a bill of costs. The order had not been served on him personally, but had been delivered to hii clerk at his oiilce. This was a motion to commit him for disobedience to the order. There had been some correspondence between him and the solicitors of the applicants in relation to the order, and in one of his letters he had said, “ You shall have the bill of costs in a week," but he had not carried out this promise. It was argued that this amounted to a waiver of personal service of the order. Noiirii, J., held that it did not, and refused to make an order for committal.—Coi"xsiai., Uozans-Hm-dy, Q.C., and A. A. TH‘I‘¢”,' Cookson, Q.C., and Oswald. SOLICITORS, Cobbold §' Woollcy; Cfiuininyham.

[ocr errors][ocr errors]

In this case two questions arose (1) whether an unqualified covenant not to_ carry on a business under a particular name was void as being in restraint of trade, and (2) whether the assignor of the goodwill of a business can be restrained from soliciting the customers. The defendant had, by an indenture dated the 22nd of May, 1881, assigned to the late Jahez Vernon the goodwill of the business of a hackle, pin, flllll wire manufacturer carried on by him at the Butterthwaite Works, Ecclesfield. _In that iiideiiture was contained ii covenant by the defendant with the said Jahez \'ernon that he would not, for the space of five years,

carry on the business of a manufacturer, either by himself, or jointly with any other tperson or persons, under the name or style of John Hallam or Idallaiii 13ro ers." The defendant was employed by Jahez Vernon during his life as manager of the business, and afterwards by the plaintiff who was the administratrix of Jahez Vernon. On the 8th of November the pl&l1\i51fi_ learnt for the first time that the defendant was intending $0 parry on a similar business at Sheffield, and had sent to her customers 5 ¢l1’<_>11la_i' signed Hallam Brothers, informing them that orders and comniunications should in future be addressed to Hallam Brothers, hackle, P111, and wire manufacturers, 7, Wesliield-terrace, Sheflield, and soliciting a continuance of their orders. The present action was for an injunction to restram the defendant from, among other things, infringing the Covenant contained in the assignment, and from soliciting customers of the_late dab_ez_Veruon or of the plaintiff. The laintiff now moved for an mteriin injunction. It was contended on behalf of the defendant that the covenant was a covenant in restraint of trade, and being unlimited {I1 point of space was void. \Vith regard to the soliciting of customers, it was argued on behalf of the plaintiff that the case of Laboucliere v. Dawson (20 W. R. 309, 13 Eq. 322) had never been overruled, and that the dissent from it expressed in Pmrson v. 1’enrsan (32 W. R. 1006, 27 Ch. D. 145) amounted merely to diam not necessary for the decision. H STIRLING, J., held, on the first point, that the words in the covenant

under the said name or style of John Hallam or Hallam Brothers" qualified the whole covenant. It was not a covenant against trade but against carrying on a trade under a particular name. No authoril y had been filted to shew that such a covenant came within the rule which applied to covenantsin restraint of trade. The defendant was at perfect liberty to e',1'Pl°Y 111! talents. industry, or capital in any useful undertaking he _§_‘*"B4-‘|-, Iio was only restrained from doing so under a particular name.

11¢ Plblltlfi I'll! entitled to an injunction in this respect. With regard

[ocr errors]
[ocr errors]
[ocr errors]

This case raised the question of the meaning of the words “ engage iii, or be inany way concerned or interested in, any similar business." Shortly, the facts were these. The defendant Hill, while carrying on the business of a shipping and export butcher in the City of London, went into liquidation, in the course of which his trustee sold the business to one Tath-am as trustee for the plaintifi company, then about to be, and which was, shortly afterwards, formed. By an agreement of the 8th of October, 1883, and made between the trustee in liquidation, the defendant, and Tatham, the defendant agreed with Tatham, both personally and on behalf of the company, that, so long as the company should carry on the business, the defendant would not “ engage in, or be in any way concerned or interested in, any similar business within ten miles of the Royal Exchange, London." In 1885 the defendant entered, as an mzployé, the service of B. & Co., who carried on a similar business to that of the plaintiff company in the City. This action was brought to restrain the defendant from committing or continuing to commit any breach of the agreement in question. It was urged on behalf of the defendant that no breach had been committed, as the defendant could not, as an employé, be said to be “ concerned or interested in the business." The following, amongst other cases, were cited:—Bar!¢r v. Lewis (30 Soticiroiis‘ Jouuxsn, T54), J1»/1e.v v. Ileuziens (25 \V. R. 460, -1 Ch. D. 636), Ward v. B3/rna (5 M. & W. 518)

Kaiiawicis, J . [after dealing with another part of the case], said: “ N ow as to the other point raised, the plaintiff company sue on a covenant in these terms:—[His lordship then read the covenant.] The defenceisthat the defendant is only a servant in, and is, therefore, not engaged or concerned or interested in a similar business. It is not necessary to say that he is “engaged ” or “interested,” “interested ” meaning in commervial language entitled to profits. But Iam of opinion that the word “ concern: d " was intended to cover this very case, and I must regard it as meaning having something to do with a similar business, and if he has I think_he is “concerned” in a similar business. I entirely follow the suggestion that these covenants ought not to be extended. If Mr. Justice Stirling had not hesitated in the case of Bu.vm- v. Lewis (30 Somciroas‘ Joi'ii§'AL, 754), I should not have felt any doubt. I am bound by the decided cases, not the less that they coincide with my own opinion.—Coc.\~ssi., Hemming, Q.C., and Buckley, Q.C.i Farwell. Souciroiis, Lawless, Nelson, Ioncs, 5- King; i\'utt 5- Saver!/.

MARGARY AND ANOTHER v. ROBINSON—P. D. & A. Div., Tth December.

[ocr errors]

Judgment was given in this case, which had been tried before the President of the Division without a jury. The plaintiffs propounded, as executors, the will and codicil of the Rev. Thomas Layard, who died on the 24th of November, 1885. The defendant, by her statement of defence and count/er-claim, admitted the due execution of the will and codicil propounded by the plaintiffs, but propounded a later testamentary instrument, bearing date the 20th of November, 1885. _At the time when the instrument propounded by _the defendant was signed the testator_ was sufiering from paralysis, which had almost prevented him from exercising his powers of speech, but he_was abl_e tomake himself understood by means of signs. He communicated his wishes for a fresh testamentary disposition of his property to the l11(.‘dl\2I.l men—Sir Peter Eade and Dr. Shepherd—who were in attendance upon him, and the former wrote on one side of a card the following words :—“ £30,000 to llliss Robinson,_to be tied up to her for_ life, and a ter her death to com_e back to my family and to be divided fair and equally." The testator, in_ the presence of the two doctors made a mark on the card after the word “ l1f8:'_ although there was suflicient space for the mark at the end of the writing), and Sir _P. Eade wrote the words “ Mr. Layard’s mark," in a diagonal direction from the mark to tho left-hand llfapfllf corner of the card; He then wrote on the hack of the card the wor “ witnesses to mark, ’ followed by his own initials and those of Dr. Shepherd (in the handwriting of the latter), and the date. Shortly afterwards Sir P. Eade, after an interview with the half brother of the testator, told the test-ator that he and Dr. Shepherd had taken too much responsibility on themselves, and without any opposition on the part of the test-ator he erased the mitials from the back cf the card. The testator put the card in a bag, and on the following day gave it to the defendant, Miss Robinson, to whom, at the time of thg C0iIJln6lI:Cehm6l1%‘ of lhis ildiliefifl, was engaged to be married, and expressc hiswis tats es on eepi. _ _

Hansen, P., in delivering judgment, said that he was satisfied that the deceased had authorized tho writing of the words which appeared up0l1 tlie card, and had intended to give effect thereto as a testamentary l11B_:¥:l; ment, and therefore, subject to the question which arose as to t e posl 1 of the testator's mark, he held that there wasa duly executed tcstinioiituff document. He also held that the Wtltlflg of mm mama bi the Wlwism

[graphic]

was a sufilcient attestation, and that the subsequent erasure of those initials was ineffective, because a will or codicil can be revoked only in one of the ways mentioned in section 20 of the Wills Act, 1837—namely, by another will or codicil, or a duly executed writing declaring an intention to revoke, or by burning, tearing, or destroying, by or in t e presence of the testator, with the intention of revoking. It remained for the court to consider the question, Whether the position of the tcststor‘s mark in the middle of the writing was consistent with an intention to give_testamentary effect to it? That question depended upon the provisions of section 9 of the Wills Act, 1837, and of section l of Lord St. Leonards' Act. In this case, although there was room for the mark at the end of the writing, it was not “placed at or after or following or under or beside or opposite to the end of the will” within the latter enactment. He therefore held that the court would not be justified in admitting any part of ‘the words written upon the card to probate, especially having regard to the authority of the case of Su'¢‘r'flan(l v. »§'!l't('!ItIIl!l (4 S & T. 6), where Lord Penzanflce said :-“ The court would not be justified in fixing upon a signature in the midst of what the testator intended as his will, treating it as an execution of all that preceded it, and granting probate of so much of the will to the disregard of the remainder." He pronounced in favour of the will and the first codicil, but against the codicil propounded by the defendant, but he directed that the defendant should have her costs out of the estate.—OocnsaL, Bayford, Q.C.. and lfiddlelon; Lockwood, Q.C., and Ssarle. Soucirons, iS'a.z'ton Q Son; C. F. llartllli.

[ocr errors]
[ocr errors]

This was an application for a grant of administration to the trustee in bankruptcy of the husband of an intestate. The only asset of the deceased was a policy of insurance on her life for the sum of £20 with the I’ruden~ tial Insurance Co. Shortly after her death her husband abscondcd, and he was afterwards adjudicated a bankrupt. In support of the application for a grant of administration to the husband's trustee in bankruptcy reliance was placed upon section 4-1 of the Bankruptcy Act, 1883, under which the property of a bankrupt divisible amongst his creditors is to include “the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised for his own benefit at the commencement of his bankruptcy or before his discharge," and on section 168 which defines “ property ” as including “obligations.” It was also contended that, under section 73 of the Probate Act, 1857, a grant of administration could be made to the husband‘s trustee in bankruptcy without citing the husband himself.

Burr, J ., held that the husband's right of administration was not such aproperty or capacity to exercise power over property as wculd pass to his trustee in bankruptcy under section 44 of the Bankruptcy Act, 1883, which section appeared to be limited in its terms to powers which the bankrupt could have exercised for his own benefit, but a right to a. grant of administration was not necessaril so exer ' bl H h

y cisea e. e t ought, however, that the case was one for a grant under section 73 of the Probate

Act, 1857. The only diificulty arose from the husband not having been cited, but, having regard to the small amount of the wife’s estate, he should mak_e the grant to the trustee in bankruptcy without citing the bankrupt himself.-——CounsaL, R. 11'. .Pritc/zard. Soucirons, Doyle 5- Son, for Walni-slay g Kay, Darwen.

[ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small]

_ ay, o, an e was constructively in occupation from May to 29th of September, when he took actual possession - tl

_ , iere was _no vacant occupancy. The rate was assessed upon the occupier, occupation was the test of liability to pay rate. All the Poor Rates Assessment Acts, from 43 Eliz. c. 2, s. 1 to 45 & 46 Vict

c. 20, fixed the liability upon the occupier; the owner of Life fee could not bé liable unless in occupation. It the defendant were held to have been in occupation by virtue of the surrender to him on the 29th of September of U16 femflilldflOf the term by the plaintiffs, section 16 of 32 & 33 Vict

c -ll estopped the plaintiifs from rccoverin since it ted '

[ocr errors]
[graphic]

or comes into the occu ation. In Hare v. Chiirchwm-den.v_and Overseers of 1‘utmi/ (45 L. T. N. 337) the Court of Appeal, afiirming Pollot-k,_Il., and Hawkins, J., held that it is a condition precedent to the liability of the incoming occupier for a proportion of_the_rate that his name be on the rate book, and that the outgoing occupier is liable for the _whole rate until somebody else is substituted. It was admitted by the plaintiffs that neither the defendant's name nor Mr. George's name was on the rate book. If there be a vacant occu ation, and no incoming occupier, Overseer-i of St. Werburg, Drrlry VI.’ Jlilfrfiinson (-lg L. T. N. S. 153), in 1880, decided that the outgoing occupier was liable for the whole of the rate, but 45 & 46 Vict. c. 20, s. 3 (188%), enacted that the outgoing occupier,where there is no incoming occupier, is liable o_nly for the proportion of the rate up to the time of his delivering_up possession. But this was not in point, as plaintiffs did not rest their claim on vacant occupation, but on occupation by defendant. As to the ciistom of the country. H16 °'1$t°"1 coul not override the statute. The plaintiffs lease contained a covenant for payment by defendant of tithe ren_t- charge, land, and property tax only, and a covenant for payment by plaintiff of_aIl rates, taxes, and other outgoings whatsoever, Parliamentary, parochial, or otherwise, now or hereafter to be taxed, rated, or charged upon the holding, or any part thereof, or on the defendant or plaintiff in respect thereof (excepting those covenanted to be paid by the defendant). These covenants, it was contended, conclusively relieved the defendant of any liability to pay the plaintiffs’ claim. _ _ _

Judge Wuioiisn delivered the following judgment: —I took _time to consider the judgment to be given in this case, in hopes that in the interval since last court day I might hear that some arrangement had been made to satisfy the executors of Mr. Green as to the _£1_O 4s. 4d. in repayment of the unexpended proportion of poor rate. I intimated that it seemed to me clear that the executors should have the required return-not, indeed, from the Duke of Bedford as owner of the inlieritanoe of the arm (the \Varren Farm, Millbrook), but from the person or persons who might at law be held to have been the actual occupier, or occupiers, of the said farm to the 29th of September, 1885. At the outset of the inquiry (last court day) it was contended that the Duke of Bedford, having accepted a virtual surrender of the remaining interest or term of the cxecuto1s_in the farm, he, the duke, was remitted to his paramount estate as owner in fee, or otherwise, of the inheritance. It was not until the case had_ been more fully developed that it appeared that there had been an incoming tenant, designate, in Mr. George, who, in fact, had entered, as is customary in such cases on the fallows, in May, 1885, before the ultimate _or final end of the executors’ holding the 29th of September, 1885; and immediately thereon Mr. George entered into full, entire, and actual possession of all that Mr. Green, the testator, or his executors, the present plaintiffs, eve!‘ held. That being so, there always had been an actual occupier of the farm—the out-going, and then immediately the incoming, tenant. Th: Duke of Bedford was never actually or constructively the ‘f terre-tenant, consequently was never liable as occupier. It is the occupier of the land, and no other, who is responsible for the rate assessed on the land for the poor rate. The cases which have been cited by the defend_ant's counsel are clear on the subject. The authorities on which he relied—viz., The Orer->¢ s of St. Wrrburg, Derby v Hutchinson," Hare V. Ohurclin-ardens and Om-.\m-.i of Purnc_i/,- and 3'2 & 33 Vict. c. ill, s. l6—~are conclusive. I have now, therefore, to give judgment for the defendant, with taxed costs to the defendant, to be paid by plaintiffs in a f0rtnight.—Couxsi~:i., Rollmid ; 0oapsr- W3/Id.

[graphic]
[graphic][merged small][merged small][merged small][merged small][merged small]

t_ Thelcoigimittee desire to bring under your notice the following reso1u'

iop w iic was passed at the last annual general meeting of the Society :—Tliat this society recommends the discontinuance of the practice of charging purchasers with auctioneers’ fees at auction sales.”

This resolution was adopted after full discussion and alter the attention of the ineuibers generally liad been called to the subject in tho report of the‘ committee issued prior to general meeting, in the following terms:

The attention of the committee has again been called to the use of conditions of sale imposing on purchasers the payment of auctioneers’ recs, Bllfi they have given a promise to members of the society to refer to the subject in this report with a view to taking the sense of the general meeting upon it.

“ It will be remembered that the society has distinctly discountenanced the use of conditions charging contract fees to purchasers, and that in the reports of the com ‘tt

of the I _ tellll cc adopted in the years 1882 and 1883, resolutions I nco '

[ocr errors]
« PreviousContinue »