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author is referring to the personal remedy, by an action for deceit, no idea whatever if he is kept in ignorance as to whether one or against directors for a fraudulent prospectus. “The only limit, half a dozen judges will be engaged in a given class of work. short of acquiescence, is the Statute of Limitations." This implies that
FRANCIS K. MUNTON. the right of action may be lost by acquiescence, which is not, we 954, Queen Victoria-street, E.C., December 6. think, sound law according to the authorities. Thus Lord Justice Thesiger, in delivering the judgment of the court in De Bussche v. Alt (8 Ch. D. 286) says: Acquiescence may be defined as quiescence
REMUNERATION ORDER-LEASES. under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by
[ To the Editor of the Solicitors' Journal. words or conduct. But when once the act is completed without Sir,-In 1884 Master Skirrow, after consultation with other any knowledge or assent on the part of the person whose right is masters, decided, in a case in which we were concerned, that notice by infringed, the matter is to be determined on very different legal con the lessor's solicitor to the lessor, without notice to the lessee, did siderations. A right of action has then vested in him which, at all not make the lessee liable to more than scale charges for lease and
S. events as a general rule, cannot be divested without accord and counterpart. satisfaction, or release under seal. Mere submission to the injury for London, Dec. 6. any time short of the period limited by statute for the enforcement [See observations under head of "Current Topics.”'-Ed. S. J.] 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 : see Re Greaves, Bray v. Tofield (30 W. R. 55, 18 Ch. D. 551).
CASES OF THE WEEK. We notice also an omission in the section “Directors and their
COX, PATTERSON, & Co. v. BRUCE & CO.-C. A. No 1, Powers,” where the cases of Ferguson v. Wilson (15 W. R. 80, 2 Ch.
6th December. 77) and Wilson v. Lord Bury (5 Q. B. D. 518) ought to have been, SHIPPING-Bill of LADING-AUTHORITY OF MASTER TO SIGN FOR PARTIbut are not, cited.
CULAR QUALITY OF Goods-SPECIAL CLAUSE IN BILL OF LADING. Messrs. Steel & Co., of Calcutta, shipped on board the defendants' vessel, The Panmure, 500 bales of jute, 26 of them being marked RO 1, 192 R C 2,
and 282 R03. Jute is shipped of various qualities, which are indicated CORRESPONDENCE.
on the bales by numbers, No. 1 indicating first quality, No. 2
second quality, and No. 3 third quality. These numbers are termed SITTINGS OF THE COURTS.
quality marks, R C being the leading mark. A bill of lading for the 500
bales was signed by the master, the bill of lading being in the customary [To the Editor of the Solicitors' Journal.]
form in the jute trade as used since 1881, and there was a clause in the -“If quality marks are used they are
to be of the same Sir,– Referring to the various discussions during the past twelve size as the leading marks and contiguous thereto, and if such quality months, I have had many communications, and in the result I have marks are inserted in the shipping notes, and the goods are accepted by made the following suggestions, on which I should be glad to have the mate, bills of lading in conformity therewith shall be signed by the the view of some of your readers if you will permit the correspon- captain, and the ship shall be responsible for the correct delivery of the dence to appear in your columns.
goods. The shipping notes (made out by the shippers, Steel & First, as to the Chancery Division, I suggest :
Co.) stated that the 500 bales were made up as follows :-26 bales of RC interlocutory business and be taken de die in diem by an independent more of quality No. 2 and 59 lese of quality No. 3 than were actually
1. That all witness and other causes should be separated from 1:251 of BC 2, and. 223 of RC 3; and these figures were inserted in the judge. 2. That cases of an administrative character (if a judge so directs) out notice of any incorrectness in the description of the goods shipped.
shipped. The bill of lading was indorsed to the plaintiffs for value with. should form the subject of an entirely separate list to be separately The 500 bales actually shipped were delivered to the plaintiffs in London; dealt with.
but the plaintiffs sought to recover from the defendants the difference in 3. That all original motions and petitions, and every other applica- the value of the bales owing to the non-delivery of the bales of the quality, tion in cases wherein there has been no previous intervention of the and bearing the quality marks, stated in the bill of lading. court, should be put in a separate list, and be dealt with by one THE COURT OF APPEAL, affirming the judgment of the Queen's Bench judge sitting for the time being for such purpose only, instead of Division, held that the defendants were not liable; that the true several judges taking such work to the obstruction and uncertainty meaning of the marginal clause m the bill of lading was that if the quality of other business.
marks which were actually upon the bales shipped were inserted in the 4. That some judge should sit in chambers for one or
shipping notes, and the mate accepted the goods, bills of lading in con, entire days every week to hear adjourned summonses.
more formity therewith should be signed by the captain, and the ship should
The summonses adjourned into court to be heard as now.
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 notes, and Next, as to the Common Law Division, I suggest :
so the defendants were not liable under the clause.
Nor were the 6. That the cause lists should be more completely separated into defendants liable by reason of any general authority in the master to bind (a.) special juries, (b.) common juries, (c.) causes without juries, (a.) them; per Lord Esuer, M.R., and Lopes, L.J., upon the ground that the causes standing over sine die.
master had no general authority to sign bills of lading stating the mer. 6. That special jury causes should be heard in the order in which cantile quality of the goods so as to bind the shipowners ; per LINDLEY, they are marked as such, and not be placed between other special L.J., on the ground that the special and limited authority, given to the juries already so marked.
master by the marginal clause ousted any general authority.-COUNSEL, Finally, as to both divisions, I suggest :
Bigham, Q.C., and J. Gorell Barnes ; R. T. Reid, Q.C., and F. W. Hollams.
SOLICITORS, W. A. Crump & Son ; Hollams, Son, f. Coward. 7. That every Friday evening the judge engaged on his particular list should announce that he will not go beyond such and such a REG. (ON THE PROSECUTION OF J. PRITCHARD) v. THE MAYOR case during the coming week. A good margin could be allowed for AND CORPORATION OF BANGOR-C. A. No. 1, 7th and 8th contingencies, and even if some unprecedented collapse happened
December. it would be better for a judge to be idle for twenty-four hours for MUNICIPAL Election - ELIGIBILITY or ALDERMAN FOR Office of Town once than that hundreds of people should be kept needlessly anxious.
COUNCILLOR-DUTY OF RETURNING OPriceR. 8. That no cause within the compass of the ensuing week's estimate be marked postponed" without the judge's consent (much confusion officer at municipal elections. It appeared that at the recent munici:
This case raised a question as to the duties
of the returning and uncertainty arising from uncontrolled changes). 9. That at least one day before the conclusion of every sitting there selves for the representation of the South Ward.
pal election for the borough of Bangor two candidates offered them. should be an announcement of the intended programme of the following was Mr. Pritchard, the othar Mr. Meshach Roberts, who was at
of these one sitting (emergencies excepted), it being submitted that the dates of the that time an alderman of the borough. The election took place on assizes and other known work ought to be fixed with a fairly long November 1, and the term of Mr. Roberts's office as alderman did not notice to the profession. This remark applies particularly to the long expire until November 9. vacation, nobody at present being able to form any idea of the Mr. Roberts on this ground, but it was overruled by the mayor, and the
An objection was taken to the nomination of Michaelmas plans till just on the eve of the sittings.
election proceeded. "On the votes being counted it was found that 171 had and Divorce Division, of classifying the work and fixing dates before- declaration of the elected candidate. The mayor, however, proceeded to
10. That, as far as possible, the plan, already adopted in the Probate been given for Mr. Roberts, and 151 for Mr. Pritchard. The returning hand should be applied to the other divisions, and especially that it should be stated whether it is expected that one or more courts will be the counting had taken place. Two days afterwards the returning officer devoted to a particular list. Any solicitor can make a rough calcula- having considered the point, published a placard in which, after stating tion what a single judge can get through ; but he can give his client the numbers of the votes given for the two candidates, he declared Mr.
Roberts to be ineligible for the office of town councillor, by reason of his was bound to pay for it. It might be so, if the circumstances raised a being an alderman for the borough, and announced that Mr. Pritchard presumption of ratification ; but it was not shewn that F. had any knowwas elected. Thereupon the town clerk sent notice to Mr. Pritchard that ledge of the circumstances. And the plaintiff was not taking advantage he was elected, and he accordingly qualified and took his seat. A few of any contract entered into by E., but of the contract effected by the days afterwards Mr. Roberts also qualified, and took a seat as town policy. The ground of the Vice-Chancellor's decision was that the pay. councillor. The mayor and the majority of the council declined to ment was made by E. with reference to the contract which he had entered receive Mr. Pritchard's vote, and he therefore applied to the Queen's into with D. With great respect to the Vice-Chancellor, his lordship Bench Division for a peremptory mandamus requiring them to receive must differ from him. There was no evidence that F. had authorized that and count his vote. That Court (Denman and Stephen, JJ.) having contract. It was true that if a man who had the real title to property granted the mandamus, the corporation appealed, but in the meantime a stood by, and saw a man who believed that the property was his laying meeting of the town council of Bangor was summoned, and Mr. Pritchard's out money on the property, equity would prevent him from insisting on vote being received in obedience to the mandamus, his party became his legal rights against the person who had so expended the money. But in the majority on the council, and it was decided by such majority he must know that the title of the person who spent that money was a not to proceed with the appeal. The Court of Appeal thereupon granted bad one. Here it was not shewn that F. knew anything. Did the fact Mr. Roberts leave to proceed with the appeal. It was now urged for the that E. was the owner of the ultimate equity of redemption of the policy respondents that Mr. Roberts was ineligible as a candidate for the town entitle him to a lien for the premium ? It would be strange if an ex. councillorship by reason of his being already an alderman of the borough, penditure in respect of mortgaged property by the mortgagor could and that his ineligibility was so notorious that votes given for him were entitle him to a charge on the property in priority to his own mortgagee. thrown away and could not be counted. It was further contended that It must be considered that E. made the payment, not with the view of Mr. Pritchard had been properly elected by the declaration made by the obtaining any charge in priority to his mortgagee, but in order to protect returning officer, and that, even if he had not been properly elected, the his own interest in case the policy should produce more than enough to office was filled by him until he was unseated on petition, and that, there- satisfy the charges on it. The owner of a mine could not have a charge as fore, a mandamus would lie to the corporation to receive his vote. The against his mortgagee_ for money expended by him to prevent the mine corporation appeared, and desired to state that they did not prosecute the from being flooded. Bowen, L.J., was of the same opinion. He said appeal.
that the general principle was that work and labour done by one person to The Court of APPEAL (Lord ESHER, M.R., LINDLEY and LOPES, preserve the property of another, without his request, did not create any L.JJ.), in allowing the appeal, said that the cases clearly laid it lien on the property preserved for the money expended in its preservation, down that a person holding an incompatible office was not made or even create an obligation on the part of the owner to repay the money. ineligible for another office by reason of its incompatibility, but that A liability could not be forced upon a man behind his back! There was if le was elected to and accepted the second office he thereby vacated an exception in the case of maritime lien for salvage; in this respect the the former office. The duty of a returning officer was clearly limited by maritime law differed from the common law. For purposes of public the Ballot Act (35 & 36 Vict. c. 36), s. 2, and was, after receiving or rejecting policy and for the advantage of trade, the maritime law had imposed the ballot papers, to count them, and forth with to declare the person obligation of a lien for salvage expenses. But that doctrine did not apply having the majority of votes to be elected. The subsequent declaration to goods lost on land. A lien in respect of labour expended on goods by the returning officer here was, therefore, entirely ultrà vires and void. could only be admitted, if there were facts from which the law would They considered Mr. Roberts to have been an eligible candidate and to imply a contract on the part of the owner to repay. If the owner of the have been duly elected, and, therefore, were of opinion that the mandamus property knew that the service was being performed, it was then a must be quashed.--Counsel, Sir Charles Russell, Q.C., R. S. Wright, and question of fact whether a contract by him to repay could be inferred. Marchant Williams ; Sir Henry James, Q.C., McIntyre, Q.C., and Douglas ; There was nothing to shew that F. had so acted as to justify any such Alexander Glen. SOLICITORS, Bloxam of Ellis, for J. B. Roberts & Roberts, inference by E. It was said, however, that his subsequent conduct in Bangor; Belfrage & Co., for R. S. Chamberlain, Llandudno ; Simpson, taking the benefit of the preserved policy made him liable to repay the Hammond, Co., for R. H. Pritchard, Bangor.
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 be FALCKE 1. THE SCOTTISH IMPERIAL ASSURANCE CO.--0. A. done for someone else. The payment of the premium did not purport to No. 2, 1st December.
be made for the benefit of F. If he had taken the benefit under circum
stances which led to the inference of a fresh contract to pay, it would be POLICY OF INSURANCE PAYMENT OF PREMIUM BY STRANGER OR MORTGAGOR a different case. But there was not a particle of evidence of that. With -LIEN ON POLICY.
certain exceptions, the rule in cquity was the same as that at law, and The question in this case was as to the right of a stranger, or of a
there was no equity in the present case. The mortgagor did not make mortgagor of a policy of insurance, who, without any request, pays a
the payment under any mistake as to his interest, and the mortgagee did
It was not even a case in wbich the the amount so paid. In August, 1879, E, purchased a policy for £29.000, his property back. Fry, L.J., concurred; – Corssel, Jelf, QC, and nemamo to keep alive the policy, to a lien on the policy or its proceeds for not stand by and allow him to pay.
owner of the property required the assistance of a court of equity to get
SOLICITORS, Longbourne f apnual premium of £1,211 19s. 2d., payable on the 30th of August in each Bonsey; Marten, Q.C., and Oswald; Beddall. gear. The policy was mortgaged by E. to the company to secure £1,950, Sterens ; Harper's Battcock ; J. S. Merten. and subsequently to F. for £6,000, and other incumbrances were created! THE BIRMINGHAM AND DISTRICT LAND CO. «. THE LONDON In September, 1882, E. filed a liquidation petition, and in March, 1883, AND NORTH-WESTERN RAILWAY 00.-0. A. No. 2, 8th Dec. obtained his discharge, on the terms of paying a composition of 2s. in the ember. pound to his creditors, other than those who had security on the policy. The money to pay the composition was found by some friends, to whom
R. S. C., 1883, XVI., 48-THIRD PARTY NOTICE_" INDEMNITY.” his property, other than the policy, was assigned as security. The compo The question in this case was, What is the meaning of the word "in. sition was duly paid, and the equity of redemption of the policy revested demnity” in rule 48 of order 16 of the Rules of the Supreme Court, 1883, in E. He afterwards entered into a contract with D., who professed to be which provides that, "where a defendant claims to be entitled to contriacting as agent for F., for the purchase of F.'s mortgage for £50, and, on bution or indemnity over against any person not a party to the action, he the 30th of August, 1883, he paid the premium then due, the other may, by leave of the court or a judge, issue a notice to that effect,” whicla persons interested in the policy not being prepared to pay it. It after is to be served on the third party? The corresponding rule (rule 17 of wards turned out that the contract for purchase could not be carried out, order 16) of the rules of 1875, contained the words, “where a defendant is as D. had not any authority to enter into it on behalf of F. This action or claims to be entitled to contribution or indemnity, or any other remedy or was brought by P.'s executrix to enforce her security on the policy. In relief over against any other person,” the words in italics being omitted the action the policy was sold by order of the court, and, after payment from the present rule. The plaintiffs sought to enforce against the of the amount due to the company as first mortgagees, a surplus of £1,722 defendant company some building agreements relating to some land near sufficient to discharge her mortgage debt, and E. claimed to be paid out with some trustees, who were then the owners of the land. The trustees of it the premium which he had paid, on the ground that his payment of afterwards contracted to sell the land to the defendant company free from the premium had kept the policy alive for the plaintiff's benefit. Bacon, incumbrances, alleging that the agreements with the plaintiffs had become
held that E. was entitled to repayment of the premium out of the forfeited. The plaintiffs sought to restrain the defendant company from stranger, yet, at the time when he made the payment, he had a bona fide for leave to serve a third party notice on the trustees on the ground that, belief that he had a valid contract for the purchase of F.'s mortgage.
as they had contracted to sell the land to the defendant company free from THE COURT OF APPEAL (Corton, Bowen, and Fry, L.JJ.) reversed the incumbrances, there was an implied contract on their part to indemnify decision, holding that E. had no lien on the proceeds of the policy for the the defendant company in case they should fail in the present action. premium. Cotton, L J., said that when the composition was paid to the Chitty, J., held that there was no right to indemnity, and that the rule creditors of E. he became the ultimate owner of the policy subject to the did not apply (ante, p. 64); charges on it. The general rule of law was that the payment by a stranger of The Court OF APPEAL (COTTON, Bowen, and Fry, L.JJ.) affirmed the the premium on a policy gave him no lien on the policy. A mere volunteer decision. Cotton, L.J., was of opinion that the word "indemnity” in meho made a payment in respect of the property of another, without any the rule must mean a right arising by contract, either express or implied. request by that other, gained no charge or lien on the property in respect If the court came to the conclusion that the position of the parties was of his payment. If the payment had been made at the request of F., E. such that, either at law or in equity, the one was under an obligation to necessarily a lien on the policy. On the evidence his lordship could not instance, if shares stood in the name of a trustee—there would come to the conclusion that there was any request, express or implied, by be an implied contract by the cestui que trust to indemnify the put on the broad ground that anyone who took the benefit of a contract be paid that there was any such contract, express or implied. It was
not suggested that there was en express contract. It might well be that, Aston, Q.C., and Chadwyck Healey. SOLICITORS, Salaman; Emmet, Son, f if the plaintiffs succeeded in this action, the railway company would be Stubbs, for A. J. G. W. Fox, Manchester. able to recover damages against the trustees for breach of contract or misrepresentation. No doubt, if one person requested another to do a HARGRAVE 2. KETTLEWELL-Chitty, J., 4th December. certain act, and, by reason of his doing it, he suffered loss, the law implied FUND IN COURT_PAYMENT OUT-CARRYING OVER SHARE or BENEFICIARY TO a contract by the first person to indemnify him. In the present case his
SEPARATE ACCOUNT-TITLE OF ACCOUNT. lordship could not see what request could be said to have been made by
This was a petition for payment out of part of a fund, and it was the trustees to the railway company, unless in every case of a sale of proposed to carry over the share of one of the beneficiaries to the account goods there was an implied contract of indemnity on the part of the
of such beneficiary “or his incumbrancers." It was stated that there vendor. That, however, was not the law. There was no contract for
were no incumbrancers of the beneficiary's share. indemnity in the present case, and, however convenient it might be to
Chitty, J., said that it would not be right to add the words, bring in the trustees, there was no power under rule 48 to authorize incumbrancers,” and such words must be omitted. There were, in fact, the serving of a third party notice on them. BOWEN, LJ, said
no incumbrancers; and, if the words were added, when the beneficiary that the present rule intended to cut down the old rule.
came to apply hereafter for payment out, he would be put to the In the present case the defendants had no right except that which unnecessary expense and trouble in proving that there were no incum. arose out of the express contract of sale. The rule was limited to brancers. --Counsel, Godefrui; Warrington. claims to indemnity, as such, at law or in equity. In nine cases out of ten such a right must be created either by express contract or by implied
MOORE v. MORTON-Chitty, J., 4th December. contract. Such a contract might be implied either on the ground that the
MORTGAGOR AND MORTGAGEE-FORECLOSURE ACTION AGAINST SUBSEQUENT parties intended it, though they did not say so expressly, or because there
INCUMBRANCERS AFTER JUDGMENT ALREADY OBTAINED AGAINST MORTGAGOR. was a legal duty or obligation which law or equity would assist the parties to enforce. There might possibly be a tenth case where a statute gave a
This was an action by a first mortgagee for foreclosure against the right to indemnity, and possibly there might be some other direct right second and third mortgagees. It appeared that the plaintiff, without in equity to indemnity not coming within the previous cases. But a right knowledge of subsequent incumbrancers, had already obtained against to damages was clearly not a right to an indemnity as such. It was the the mortgagor a foreclosure judgment nisi, but hat the chief clerk's
It arose out of the breach of a contract, and was not a provision certificate had not yet been made. The present action now coming on for of the contract. In cases of principal and agent the law implied an obli motion for judgment, the plaintiff stated that, although it was possible gation on the part of the principal to indemnify the agent who acted on that the second mortgagee might redeem, there was no probability of his request against loss, and this was not confined to cases of the mortgagor doing so. principal and agent. But it would be idle to maintain that, in the CHITTY, J., said that, as the mortgagor was not a party to the present case of a contract for sale, there was any such request. Fry, L.J., action, he could not make an order in it, and ordered the motion to stand concurred. He was of opinion that the rule intended a direct right over, with liberty to amend by adding the mortgagor as a defendant.-at law or in equity to indemnity as such, which must not be Counsel, Gaselee; Faruill; Bunting. Solicitors, Paterson, Snow, $ confounded with a right to damages for breach of contract or for tort. Bloxam ; Matheus & Brown; Hickin f. Graham. There might be cases of a right to indemnity not founded on either contract or statute, but in any case it must be a direct simple right to in
Re COATES TO PARSONS-North, J., 7th December. demnity as such. In the present case the defendants had no right to POWER OF APPOINTING New TRUSTEES-TRUSTEE PERMANENTLY RESIDENT anything but damages for breach of an express contract.-COUNSEL, ABROAD—"CONTINUING TRUSTEE”—ConveyANCING Act, 1881, s. 31. Ince, Q C., and 0. Leigh Clare; Romer, Q.C., and Woodroffe. SOLICITORS, C. H. Mason ; Robinson, Preston, f Stow.
In this case a question arose as to the validity of an appointment of 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 SOUTH WALES MINERAL RAILWAY CO. v. DAVIES–C. A. No. 2, provides that where a trustee (inter 'alia) “ is dead, or remains out of the 8th December.
United Kingdom for more than twelve months," then the person or PRACTICE-MOTION TO VARY MINUTES OF Order-ALTERATION OF ORDER- persons nominated for this purpose by the instrument, if any, creating STRIKING OUT UNDERTAKING.
the trust, or, if there is no such person, or no such person able and This was a motion to vary the minutes of a previous order of the Court time being, or the personal representatives of the last surviving or con:
willing to act, then the surviving or continuing trustees or trustee for the of Appeal. The appeal was from an injunction against the defendant, tinuing trustee, may, by writing, appoint another person or other persons and the order, as drawn up by the registrar, con'ained an undertaking bý to be å trustee or trustees in the place of the trustee dead, remaining the defendant to allow the plaintiff to enter on his land to remove some earth which he had been restrained from allowing to remain there.
out of the United Kingdom," &c. And, by sub-section 6, “ The prodefendant desired to have the undertaking struck out, on the ground or retiring trustee, if willing to act in the execution of the provisions of
The visions of this section relative to a continuing trustee include a refusing that his counsel were not authorized to give any undertaking on his behalf. The Court or APPEAL (Cotton, Bowen, and Fry, L.JJ.) refused the
this section.” In the present case there were eleven trustees of a chapel. application. COTTON, L.J., said that the motion was only to vary the
The deed of trust contained a power of appointing new trustees, but that minutes, not to discharge the order as erroneous.
power did not extend to the case of a trustee remaining out of the United minutes the court ought not to go into any question but whether the
on a motion to vary Kingdom for more than twelve months. One of the eleven trustees died,
and another remained abroad for more than twelve months, and the minutes correctly expressed the real decision of the court. In the present remaining nine trustees executed a deed by which, in exercise of the power case his lordship was of opinion that the minutes, as given out by the conferred by the Conveyancing Act, they appointed a new trustee in the registrar, accurately expressed the order which the court made. The place of the trustee who was abroad. The ten trustees entered into & 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 that the appointment of the new trustee was invalid, because the original
contract for the sale of the chapel, and the purchaser took the objection could not properly be brought before the court on the present motion. trustee who was abroad did not concur in it. A summons was taken BOWEN, 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 was validity of the objection. On behalf of the vendors it was contended
out by the vendors under the Vendor and Purchaser Act to determine the whether the intention of the court had been correctly expressed. Fry, that the words "continuing trustee” in section 31 included only a trustee L.J., concurred.-Counsel, Pearson, Q.C., and J. Chester; Sargant. who was to continue to act in the trusts after the appointment of the new SOLICITORS, J. J. & C. J. Allen; Norton, Rose, & Norton.
trustee should have been made. On behalf of the haser it was urged
that those words included a trustee who was about to retire or to cease to be LEVER & Co. v. GOODWIN BROS.-Chitty, J., 2nd December, a trustee, but who was "continuing” up to the execution of the appointPATENTS, &c., Act, 1883, s. 64–TRADE-MARK-FANCY WORDS--THE SELF
ment. WASHER SOAP.
NORTH, J., held that the concurrence of the outgoing trustee was un,
necessary, and that the appointment was valid. He said that, if he had This was an action between rival vendors of soap, in which the plain- to decide the question with reference to a deed which contained a power tiffs claimed an injunction to restrain infringement of their registered of appointing new trustees expressed in the words of sub-section 1 of trade-mark, “The Self-Washer," as a mark for soap. Amongst the section 31, without anything more, he should follow the decisions of advantages described by the plaintiffs on their wrappers as belonging to Kindersley, V.C., in Traris v. Illingworth (2 D. & S. 344), and Pearson, J., their soap was that of doing its work when let alone. The defendant's in Re Norris (27 Ch. D. 333), differing from the opinion expressed by soap was sold under the terms of "self-washing." The plaintiffs also Bacon, V.C., in Re Glenny and Hartley (25 Ch. D. 611) (though that claimed an injunction to restrain the defendants from selling the soap of opinion was not necessary to the decision of the actual case then before the defendants in packets, wrappers, &c., similar to those used by the the Vice-Chancellor), and hold that the words "continuing trustee." plaintiffs, to the deception of purchasers. CHITTY, J., said that the words claimed by the plaintiffs as a trade- ment of the new trustee, and that they did not include a trustee who was
applied only to a trustee who was to continue a trustee after the appointmark were, notwithstanding their grammatical absurdity, not "fancy to cease to be a trustee on the execution of the appointment. But, when words not in common use" within the Patents, &c., Act, 1883, s. 64, so the appointment was made under the statutory power, the point was as to be within the protection of the Act. There was some evidence of decided by sub-section 6. The provisions of the section as to a common use, and also they were descriptive of the qualities of the soap. tinuing” trustee were to apply to a retiring trustee only, if he was That such was the case was shewn in the description of their soap given by the plaintiffs themselves. The plaintiffs, therefore, could not set up the present case there was no evidence that the trustee who was absent
"willing to act in the execution of the provisions of this section." In the trade-mark. They were, however, entitled to an injunction in respect abroad was willing or competent to act in making the appointment, or of the defendant's misrepresentation, for the defendants had made an unfair attempt to obtain the benefitof the plaintiffs extensive trade by means sequently, the appointment must be held to be valid.-Counsel, Bunting ;
even that the other trustees knew where he was to be found. Con. of misrepresentation. -Counsel, Romer, Q.C., Lockwood, Q.C., and J. Cutler ; E. Ford. SOLICITORS, Ingle, Cooper, f Holmes ; Penley f Grubbe.
R. CARLYON, CARLYON v. CARLYON-North, J., 1st December.
to the second point his lordship said that Pearson v. Pearson distinctly over
ruled Labouchere v. Dawson. Cotton and Lindley, L.JJ., expressly founded R. S. C., 1883, LV., 3—ORIGINATING SUMMONS-JURISDICTION.
their judgments upon this, that Labouchere v. Dawson was wrongly A question arose in this case as to the jurisdiction to determine upon an decided. That was binding upon him. He was further informed that in originating summons the nature and extent of an interest in real estate a recent case of Collier v. Chadwick (reported, but not on this point, ante, p. 27) given by a will. A testatrix, who died in 1863, by her will, made in 1861, the Court of Appeal had treated Labouchere v. Dawson as overruled. In devised real estate in such a way as left it doubtful whether T. was this respect, therefore, the injunction must be refused.-COUNSEL, J. G. entitled in fee, or whether it went on the uses of a prior settlement of other Wood ; Vernon R. Smith. SOLICITORS, Peacock & Goddard, for Vickers, estates. The testatrix did not appoint any trustees. T. died in 1884, Son, f Brown, Sheffield ; Pritchard & Sons, for Webster f Styring, Sheffield. 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
HILL & CO. v. HILL-Kekewich, J., 3rd December. a 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
INJUNCTION-BREACH OP COVENANT NOT TO CARRY ON TRADE. re-settlement as defendants. The executors of the testatrix were not served This case raised the question of the meaning of the words “engage in, or with the summons. The summons asked for the determination of the be in any way concerned or interested in, any similar business." Shortly, question whether the estate devised by the will of the testatrix passed by the facts were these. The defendant Hill, while carrying on the business the will of T. to his trustees, or to whom, and for what interest, it passed by of a shipping and export butcher in the City of London, went into liqui. the will of the testatrix, and whether it was comprised in the re-settlement dation, in the course of which his trustee sold the business to one Tatham made by A.
as trustee for the plaintiff company, then about to be, and which was, North, J., held that there was no jurisdiction to decide the questions shortly afterwards, formed. By an agreement of the 8th of October, upon an originating summons. Rule 3 of order 55 gave jurisdiction to 1883, and made between the trustee in liquidation, the defendant, and determine, without an administration of an estate or trust (inter alia), “any Tatham, the defendant agreed with Tatham, both personally and on question arising in the administration of the estate or trust.” The power behalf of the company, that, so long as the company should carry on the extended only to matters which, before the rule, would have been business, the defendant would not " engage in, or be in any way concerned determined under an administration judgment, and the questions now or interested in, any similar business within ten miles of the Royal Exraised, relating, as they did, to a legal devise, would not then have been change, London." In 1885 the defendant entered, as an employé, the serdetermined in an action for the administration of the estate of the vice of B. & Co., who carried on a similar business to that of the plaintiff testatrix. The rule would not apply even if the executors of the testatrix company in the City. This action was brought to restrain the defendant had been served with the summons.—Counsel, Napier Higgins, Q C., from committing or continuing to commit any breach of the agreement in and S. Leeke; P. V. Smith ; Chadwyck Healey. Solicitors, Bell, Stewards, question. It was urged on behalf of the defendant that no breach had $ May ; Rose, Johnson, & Co.; E. S. Alderson.
been committed, as the defendant could not, as an employé, be said to be
“concerned or interested in the business." The following, amongst other Re CUNNINGHAM–North, J., 3rd December.
cases, were cited :-Barter v. Lewis (30 SOLICITORS' JOURNAL, 754), Jones
v. Heavens (25 W. R. 460, 4 Ch. D. 636), Ward v. Byrne (5 M. & W. 518) R. S. C., 1883, XLI., 5; XLII., 7-COMMITTAL-PERSONAL SERVICEWAIVER.
Kekewich, J. (after dealing with another part of the case], said: "Now as
to the other point raised, the plaintiff company sue on a covenant in these A question arose in this case as to waiver of personal service of an terms:-[His lordship then read the covenant.] The defence is that the order, with reference to an application for a committal for disobedience to an defendant is only a servant in, and is, therefore, not engaged or concerned order. An order had been made upon a solicitor to deliver a bill of costs. or interested in a similar business. It is not necessary to say that he The order had not been served on him personally, but had been delivered is “engaged" or "interested,” “interested” meaning in commercial to his clerk at his office. This was a motion to commit him for disobedi- | language entitled to profits. But I am of opinion that the word " concerned" ence to the order. There had been some correspondence between him was intended to cover this very case, aud I must regard it as meaning and the solicitors of the applicants in relation to the order, and in one of having something to do with a similar business, and if he has I think he his letters he had said, “You shall have the bill of costs in a week,” but he is “concerned” in a similar business. I entirely follow the suggestion had not carried out this promise. It was argued that this amounted to a that these covenants ought not to be extended. If Mr. Justice Stirling waiver of personal service of the order. North, J., held that it did not, bad not hesitated in the case of Bacter v. Lewis (30 SOLICITORS' Journal, and refused to make an order for committal.-Counsel, Cozens-Hardy, 754), I should not have felt any doubt. I am boun:! by the decided Q.C., and A. A. Terrell ; Cookson, Q.C., and Oswald. SOLICITORS, Cobbold cases, not the less that they coincide with my own opinion.—Corssel, & Woolley ; Cunningham.
Hemming, Q.O., and Buckley, Q.C. į Farwell. SOLICITORS, Lawless, Nelson,
Jones, f King ; Nutt f Savery.
MARGARY AND ANOTHER v. ROBINSON-P. D. & A. Div., 7th PARTICULAR NAME-GOODWILL-ASSIGNMENT-SOLICITING CUSTOMERS.
December. In this case two questions arose (1) whether an unqualified covenant
WILL EXECUTION ATTESTATION BY INITIALS MARK IN MIDDLE OF not to carry on a business under a particular name was void as being in
WRITING-WILLS Act, 1837 (1 Vict. c. 26), ss. 9, 20–LORD ST. restraint of trade, and (2) whether the assignor of the goodwill of a
LEONARDS' ACT (15 & 16 Vict. c. 24), s. 1. business can be restrained from soliciting the customers. The defendant Judgment was given in this case, which had been tried before the Prehad, by an indenture dated the 22nd of May, 1884, assigned to the late sident of the Division without a jury. The plaintiffs propounded, as Jabez Vernon the goodwill of the business of a hackle, pin, anil wire executors, the will and codicil of the Rev. Thomas Layard, who died on manufacturer carried on by him at the Butterthwaite Works, Eccles the 24th of November, 1885. The defendant, by her statement of defence field. In that indenture was contained a covenant by the defendant with and counter-claim, admitted the due execution of the will avd codicil the said Jabez Vernon that he would not, for the space of five years, propounded by the plaintiffs, but propounded a later testamentary instru
carry on the business of a manufacturer, either by himself, or jointly ment, bearing date the 20th of November, 1885. At the time when the with any other person or persons, under the name or style of John Hallam instrument propounded by the defendant was signed the testator was or Hallam Brothers.” The defendant was employed by Jabez Vernon suffering from paralysis, which had almost prevented him from exercising during his life as manager of the business, and afterwards by the plain- his powers of speech, but he was able to make himself understood by tiff who was the administratrix of Jabez Vernon. On the 8th of Novem means of signs. He communicated his wishes for a fresh testamentary ber the plaintiff learnt for the first time that the defendant was intending disposition of his property to the medical men—Sir Peter Eade and Dr. to carry on a similar business at Sheffield, and had sent to her customers Shepherd—who were in attendance upon him, and the former wrote on a circular signed Hallam Brothers, informing them that orders and com one side of a card the following words :-" £30,000 to Miss Robinson, to munications should in future be addressed to Hallam Brothers, hackle, be tied up to her for life, and after her death to come back to my family pin, and wire manufacturers, 7, Westfield-terrace, Sheffield, and soliciting and to be divided fair and equally." The testator, in the presence of the a continuance of their orders. The present action was for an injunction two doctors made a mark on the card after the word "life". (although there to restrain the defendant from, among other things, infringing the was sufficient space for the mark at the end of the writing), and Sir P. covenant contained in the assignment, and from soliciting customers of Eade wrote the words, “Mr. Layard's mark,” in a diagonal direction the late Jabez Vemon or of the plaintiff. The plaintiff now moved for from the mark to the left-hand upper corner of the card,
He then wrote an interim injuuction.
It was contended on behalf of the defendant on the back of the card the words “ witnesses to mark,” followed by bis that the covenant was a covenant in restraint of trade, and being unlimited own initials and those of Dr. Shepherd (in the handwriting of the latter), in point of space was void. With regard to the soliciting of customers, and the date. Shortly afterwards Sir P. Eade, after an interview with the it was argued on behalf of the plaintiff that the case of Labouchere v. half brother of the testator, told the testator that he and Dr. Shepherd Dawson (20 W. R. 309, 13 Eq. 322) had never been overruled, and that had taken too much responsibility on themselves, and without any oppothe dissent from it expressed in Pearson v. Pearson (32 W. R. 1006, 27 sition on the part of the testator he erased the initials from the back of Ch. D. 145) amounted merely to dicta not necessary for the decision. the card. The testator put the card in a bag, and on the following day
STIRLING, J., held, on the first point, that the words in the covenant gave it to the defendant, Miss Robinson, to whom, at the time of the "under the said name or style of John Hallam or Hallam Brothers" commencement of his illness, he was engaged to be married, and expressed qualified the whole covenant. It was not a covenant against trade but his wish that she should keep it. against carrying on a trade under a particular name. No authority had been Hansen, P., in delivering judgment, said that he was satisfied that the cited to shew that such a covenant came within the rule which applied to deceased had authorized the writing of the words which appeared upon covenants in restraint of trade. The defendant was at perfect liberty to the card, and had intended to give effect thereto as a testamentary instruemploy his talents, industry, or capital in any useful undertaking he ment, and therefore, subject to the question which arose as to the position Tue plaintiff was entitled to an injunction in this respect. With regard document. He also held that the writing of their initials by the witnesses
was a sufficient attestation, and that the subsequent erasure of those or comes into the occupation. In Hare v. Churchwardens and Overseers of initials was ineffective, because a will or codicil cau be revoked only in Putney (45 L. T. N. S. 337) the Court of Appeal, affirming Pollock, B., one of the ways mentioned in section 20 of the Wills Act, 1837—namely, and Hawkins, J., held that it is a condition precedent to the liability by another will or codicil, or a duly executed writing declaring an inten- of the incoming occupier for a proportion of the rate that his name be tion to revoke, or by burning, tearing, or destroying, by or in the presence on the rate book, and that the outgoing occupier is liable for the whole of the testator, with the intention of revoking. It remained for the court rate until somebody else is substituted. It was admitted by the plaintiffs to consider the question, Whether the position of the testator's mark in that neither the defendant's name nor Mr. George's name was on the rate the middle of the writing was consistent with an intention to give testa- book. If there be a vacant occupation, and no incoming, occupier, mentary effect to it? That question depended upon the provisions of Overseers of St. Werburg, Derby v. Hutchinson (42 L. T. N. S. 153), section 9 of the Wills Act, 1837, and of section 1 of Lord St. Leonards' Act. in 1880, decided that the outgoing occupier was liable for the whole In this case, although there was room for the mark at the end of the of the rate, but 45 & 46 Vict. c. 20, s. 3 (1882), enacted that the outgoing writing, it was not «placed at or after or following or under or beside or occupier, where there is no incoming occupier, is liable only for the proportion opposite to the end of the will” within the latter enactment. He there of the rate up to the time of his delivering up possession. But this was not fore held that the court would not be justified in admitting any part of in point, as plaintiffs did not rest their claim on vacant occupation, but on the words written upon the card to probate, especially having regard to occupation by defendant. As to the custom of the country, the custom the authority of the case of Sweetland v. Sweetland (4 S. & T. 6), where Lord could not override the statute. The plaintiffs'lease contained a covenant for Penzance said :-“The court would not be justified in fixing upon a sig payment by defendant of tithe rent-charge, land, and property tax only, nature in the midst of what the testator intended as his will, treating it and a covenant for payment by plaintiff of all rates, taxes, and other outas an execution of all that preceded it, and granting probate of so much goings whatsoever, Parliamentary, parochial, or otherwise, now or here. of the will to the disregard of the remainder.” He pronounced in favour after to be taxed, rated, or charged upon the holding, or any part thereof, of the will and the first codicil, but against the codicil propounded by the or on the defendant or plaintiff in respect thereof (excepting those deferdant, but he directed that the defendant should have ber costs out covenanted to be paid by the defendant). These covenants, it was conof the estate.-COUNSEL, Bayford, Q.C., and Middleton ; Lockrood, Q.C., tended, conclusively relieved the defendant of any liability to pay the and Searle. SOLICITORS, Saxton f Son; C. F. Martelli.
Judge WHIGHAM delivered the following judgment:- I took time to In the Goods of TURNER-P. D. & A. Div., 7th December.
consider the judgment to be given in this case, in hopes that in the interval ADMINISTRATION--Married Woman-BANKRUPTCY OF HUSBAND-GRANT to satisfy the executors of Mr. Green as to the £10 4s. 4d. in repayment
since last court day I might hear that some arrangement had been made To TRUSTEE-SPECIAL CIRCUMSTANCES -- BANKRUPTCY ACT, 1883 (46 & 47 Vict. c. 52), ss. 44, (ii.)— PROBATE Act, 1857 (20 & 21 Vict. c. 77), s. 73. to me clear that the executors should have the required return-not,
of the unexpended proportion of poor rate. I intimated that it seemed This was an application for a grant of administration to the trustee in indeed, from the Duke of Bedford as owner of the inheritance of the farm bankruptcy of the husband of an intestate. The only asset of the deceased (the Warren Farm, Millbrook), but from the person or persons who might was a policy of insurance on her life for the sum of £20 with the Pruden at law be held to have been the actual occupier, or occupiers, of the said tial Insurance Co. Shortly after her death her husband absconded, and farm to the 29th of September, 1885. At the outset of the inquiry (last he was afterwards adjudicated a bankrupt. In support of the application court day) it was contended that the Duke of Bedford, having accepted a for a grant of administration to the husband's trustee in bankruptcy virtual surrender of the remaining interest or term of the executors in the reliance was placed upon section 44 of the Bankruptcy Act, 1883, under farm, he, the duke, was remitted to his paramount estate as owner in fee, which the property of a bankrupt divisible amongst his creditors is to or otherwise, of the inheritance. It was not until the case had been more include "the capacity to exercise and to take proceedings for exercising fully developed that it appeared that there had been an incoming tenant, all such powers in or over or in respect of property as might have been designate, in Mr. George, who, in fact, had entered, as is customary in exercised for his own benefit at the commencement of his bankruptcy or such cases on the fallows, in May, 1885, before the ultimate or final end before bis discharge,' and on section 168 which defines “ property of the executors' holding the 29th of September, 1885; and immediately including "obligations.” It was also contended that, under section 73 thereon Mr. George entered into full, entire, and actual possession of all of the Probate Act, 1857, a grant of administration could be made to the that Mr. Green, the testator, or his executors, the present plaintiffs, ever husband's trustee in bankruptcy without citing the husband himself. held. That being so, there always had been an actual occupier of the
Butt, J., held that the husband's right of administration was not such farm-the outgoing, and then immediately the incoming, tenant. The a property or capacity to exercise power over property as would pass to Duke of Bedford was never actually or constructively the "terre-tenant,” his trustee in bankruptcy under section 44 of the Bankruptcy Act, 1883, consequently was never liable as occupier. It is the occupier of the land, which section appeared to be limited in its terms to powers which the and no other, who is responsible for the rate assessed on the land for the bankrupt could have exercised for his own benefit, but a right to a grant poor rate. The cases which have been cited by the defendant's counsel of administration was not necessarily so exerciseable. He thought, are clear on the subject. The authorities on which he relied—viz., The however, that the case was one for a grant under section 73 of the Probate Orerseers of St. Werburg, Derby v Hutchinson ; Hare v. Churchuardens and Act, 1857. The only difficulty arose from the husband not having been Orerseers of Putney; and 32 & 33 Vict. c. 41, s. 16-are conclusive. I have cited, but, having regard to the small amount of the wife's estate, he now, therefore, to give judgment for the defendant, with taxed costs to should make the grant to the trustee in bankruptcy without citing the the defendant, to be paid by plaintiffs in a fortnight.—Counsel, Rolland ; bankrupt himself.-COUNSEL, R. H. Pritchard. SOLICITORS, Doyle 8 Son, Cooper-Wyld. for Walmsley f Kay, Darwen.
LAW SOCIETIES. PURRETT AND GREEN v. THE DUKE OF BEDFORD-Leighton
SOLICITORS BENEVOLENT ASSOCIATION. Buzzard County Court, Judge Whigham, 14th October, 11th November.
The usual monthly meeting of the board of directors of this associa. 32 & 33 Vict. c. 41, s. 16 - Poor Rate-LANDLORD AND TENANT-Occupier. tion was held at the Law Institution, Chancery-lane, London, on Wed
The plaintiffs, as executors of George Green, claimed £10 4s. 4d., the nesday, the 8th inst., Mr. Henry Roscoe in the chair. The other directors unexpended proportion of a poor rate made for the Parish of Millbrook, present were Messrs. W. Beriah Brook, Edwin Hedger, Grinham Keen, Amphill, Bedfordshire, in respect of the Warren Farm, in their occupa
R. Pidcock (Woolwich), J. Anderson Rose, Sidney Smith, F. T. Veley tion till the 29th of September, 1885, when possession was given to (Chelmsford), W. M. Walters, F.T. Woolbert, and J. T. Scott (secrethe defendant, who then succeeded them and came into occupation.
tary) A sum of £290 was distributed in grants of relief, five new Counsel for the plaintiffs said that on the 29th of September, 1885, when
members were admitted to the association, and other general business was
transacted. the plaintiffs gave up possession, the overseers bad then in hand an unexpended balance of £91 19s. Warren Farm paid one-ninth part of the whole poor rate of the parish. The plaintiffs now claimed of the defendant,
GLOUCESTERSHIRE AND WILTSHIRE INCORPORATED as incoming occupier, a proportionate return of the amount paid by them
LAW SOCIETY. - viz., £104s. 4d. The plaintiffs contended that the defendant was liable, The following circular has been issued to the members of this society :as he succeeded to the occupation. Secondly, it was the custom of the country that unexpended poor rate was always allowed to the outgoing
CONDITIONS Or Sale- AUCTION Fees. tenant when the amount of the valuation was paid to him by the landlord; The committee desire to bring under your notice the following resolu• that such valuation was made and the amount thereof was paid by the tion which was passed at the last annual general meeting of the Society :defendant to the plaintiffs, but the unexpended poor rate now claimed was “That this society recommends the discontinuance of the practice of omitted by an oversight. Counsel for the defendant contended that the charging purchasers with auctioneers' fees at auction sales." defendant never was the occupier-there was an incoming tenant, Mr. This resolution was adopted after full discussion and atter the attention George, who worked the fallows from May, 1885, and he was con. of the members generally had been called to the subject in the report of structively in occupation from May to 29th of September, when he took the committee issued prior to general meeting, in the following terms: actual possession; there was no vacant occupancy. The rate was assessed “The attention of the committee has again been called to the use of upon the occupier, occupation was the test of liability to pay rate. All conditions of sale imposing on purchasers the payment of auctioneers' the Poor Rates Assessment Acts, from 43 Eliz. c. 2, s. 1, to 45 & 46 Vict. fees, and they have given a promise to members of the society to refer to c. 20, fixed the liability upon the occupier; the owner of the fee could not be the subject in this report with a view to taking the sense of the general liable unless in occupation. If the defendant were held to have been in meeting upon it. occupation by virtue of the surrender to him on the 29th of September of the remainder of the term by the plaintiffs, section 16 of 32 & 33 Vict. the use of conditions charging contract fees to purchasers, and that in the
“It will be remembered that the society has distinctly discountenanced c 41 estopped the plaintiffs from recovering, since it enacted that the over- reports of the committee adopted in the years 1882 and 1883, resolutions seers shall enter in the rate book the name of the person who succeeds of the Incorporated Law Society and of the practitioners at Gloucester