Page images



for reliafin file manner aforesaid to persons whose incomes are less than £150 a _1/ear.”

The effect of this enactment was to subject the claim of, and proof of title to, the abatement granted by the Act of 1853 to the rules to which the claim of, and proof of title to, the exemption granted by the Act of 1842 were subject.

In 1863 (by section 3 of 26 & 27 Vict. c. 22), while the exemption granted to persons whose incomes were under £100 a year was continued, an alteration was made both in the limit of income at which a man ceased to be entitled to abatement, and in the mode in which the abatement, when allowed, was made, for the section provides that, in lieu of the relief granted by the 28th section of the Act of 1853, persons whose incomes were less than £200 a year should be relieved from so much of the duties assessed upon, or paid by, them as an assessment or charge of the duties upon £60 of their incomes would amount to. The applicant was to “claim and prove, in the manner prescribed ” by the Acts then in force relating to income tax, that his income from every source was less than £200 a year.

In 1872 (by section 12 of 35 & 36 Vict. c. 20), the limit of income at which a man ceased to be able to claim abatement was raised to £300, and persons whose yearly incomes did not amount to that sum were relieved of duty to the extent of £80 of their incomes. No change was made in the mode in which the applicant was to claim the abatement.

The Act of 1863 was repealed by the Statute Law Revision Act, 1875 (88 8: 39 Vict. c. 66), which also repealed the provision contained in the Act of 1853 (s. 28), allowing an abatement to persons whose incomes were less than £150 a year. The provision in the same section which restricted the exemption from duty granted by the Act of 1842 to persons whose incomes were less than £100 a year was repealed by the Statute Law Revision Act, 18-8 (41 & 42 Vict. 0. 79).

The Act of 1872, so far as we are now concerned with it, was repealed by the Statute Law Revision Act, 1883 (~16 & 47 Vict. c. 39), but in the meantime, in 1876, an Act (39 & 40 Vict. c. 16) had been passed which (section 8) extended the relief given by the Act of 1872 to persons whose incomes were less than £400 a year, who were relieved of duty to the extent of £120 of their income. The applicant for relief was to “ claim and prove, in the manner prescribed by the Acts relatino to income tam, that his total income from all sources, though amounting to £150 or upwards, is less than £400.” At the time this Act was passed the part of section 28 of the Act of 1853 which gave relief to persons whose incomes were less than £150 a year had been repealed, while, in substitution for it, there was in force the above quoted provision of the Act of 1872, but the remainder of the section, including the direction we have quoted, which indicated the mode in which the relief was to be claimed and the applicant's title to it proved, remained in force. This direction, as we have said, made the regulations for claiming, and proving the applicant's title to, the exemption granted by the Act of 1842, applicable in case of a claim to abatement on the ground of the app1icant’s yearly income being less than the specified amount. One of these regulations provided that the appeal in case of a claim to exemption must be made to the general, and not to the special, commissioners. In the case, also, then, of an appeal upon a claim to abatement of duty, on the ground of the applicant's yearly income being less than the specified amount (now £400), the appeal must be made to the general commissioners.

The result of our inquiry seems to be that the Revenue authorities are right in the directions they issue upon this subject. But to arrive at this conclusion we have had to travel through a Partially repealed section of the Act of 1853 to sections of the Act of 1842, while, in order to understand the circumstances in which abatement is allowed, we have had to refer to a wholly repealed Acto£1863, and to a partially repealed Act of 1872; evidence enough, we think, if any is required, of the great need that exists riff B: Act which shall consolidate and amend the existing Income

ax cts.

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

II. Tm-: MODERN Law or Jnnonsxrs (concluded).

Efii-ct of completed e.reeuti'on—Re Pope.—Iu the course of the discussion which has arisen upon the important case of Re Pope (34 W. R. 654, G93, 17 Q. B. D. 743), so often referred to in these columns, an opinion has been more than once advanced, which, if it be correct, would tend to diminish, if not to remove altogether, the alarm which the decision excited. It may be remarked at the outset that the view alluded to was by no means that of the Court of Appeal, which decided the case in question. Cotton, L.J., observed (17 Q. B. D., at p. 752) :—“()_ne cannot but feel the difliculty imposed upon purchasers; but it is not for this court to cure it.” _

To support the conclusion that the decision in Rs Pope establishes
no doctrine that need alarm those who are in the situation of the
purchaser in that case—that is, who have purchased without notice
and obtained a conveyance of the legal estate, botli pzzrchase and
conveyance being subsequent to nclual delii"er_y of the lnml in are rif-
tioli, the following appears to be the argument put forward. It is
said that it is ii case oi adjusting the priorities between and B.,
where A. has an equitable charge on the lands, and B. is _a subse-
quent purchaser for value without notice, and has _acquired th_e
legal estate. The equitable interest of B. under lus'co_ntract is
admitted to be posterior to A.’s equitable charge, _but it is urged
that B., having contracted without notice, is entitled to the pro-
tection of the legal estate. _

Now, in the first place, a creditor who _ has obtained de-
livery in execution has another right besides the charge on
the corpus'—-viz., a right to the possession or receipt _of the rents
and profits; and, from a purchaser’s poin_t of view, if a crcdltvl
could establish this right -as against him, it would, in most cases,
be comparatively unimportant whether he had or had 110$ the
further right to satisfy his debt out _of the corpus oi the property-
A creditor may enforce execution either by an elc_qz_t or by _obtain-
ing an order for a receiver. If the creditor has obtained delivery 111
execution under an elegit he has a legal estate, and his title could
not be defeated by a subsequent purchaser, though for \_"alue and
without notice (see per Wills, J., Re Pope, 34 W. R. 354 ; same
case, 17 Q. B. D. 743, 745). That case also shews that an order
appointinga receiver has n_0_t merely the _eflfect of_ putting the execu-
tion crcditor in such a position that, in his capacity of ii person hav-
ing a charge, he may go to the court for. a further order to sell the
property, but that it also operates as completed execution, to the
fruits of which (i'.e., to the enjoyment of the benefit of the long
until the debt is paid), so long as they are confined t_o th_e uua_1dc
effect of the process of execution, the execution creditor is entitled
by the order of the court; and that he cannot be depmed 1?
his right “by the not of the debtor ” (in contracting to sei )
any more than he could if lie had the legal estate _ iin e.
an sIe_qit—i'.e., the order is equally efifectual against a
purchaser without notice, so far as the right of tqe hp€1r-
chaser to possession is concerned. I_n Ra Pope this was al t a_ it
was necessary for the court to decide. There was no qucsglon
before it as to a charge on the corpus of the property. In _Ha liar‘:
v, Haywood (L. R 9 Ch., at p. 2-36), Mellish, L.J., said tia
the order of tho Court of Chancery clfccts, as to equitabls
interests, what the action of the sherifl does as to l,egal estate;
--i'.a., it “vests the debtor’s estate in the creditor. An_d tin the
Pope (ubi sup.) Cotton, L.J,, observed:—-: I need notdg° £111 ° °
difference between an actual writ of elegzt and an op e_r tor ohm-
ceiver, because it was decided in_ Ilotlon v. H'a_i/‘woo trip tr tor:
there has been a receiver _appoin_ted under a juggmeg » 1" £51
equivalent to, and in law is, delivery of the lan un er“ [mere
authority, just in the same way and to the same extent as _ b
had been an elayzt, and the creditor had been in _p0BS6aS10l:der£
virtue of the elegit." lt_ is apprehended that elsgzfsl an o tter
of court appointing receivers are alike to be treat? qsi mad to
of record, with respect to which a purchaser capnot fen dovgleents
plead absence of notice; just as, under the oldd aw o lzfiter thé
a purchaser was bound by a judgment entere lap 8I1(0tice(ante
Act of Wm. & M.) duly docketed, though he ha no_€lh0ut noticé
p. 25); and even under the new law 8 P111‘°_h";°€__:‘;;0 H (ante
of a duly registered judgment -W115» by 2 & ' ' ' ’

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

p. 58), left liable to the remedies given by the old law. Compare Fuller v. Badman (26 Beav. 600), which was a ease of the liability of personal representatives, who were never protected, either at common law or under 2 & 3 Vict. c. ll, by absence of notice. There Romilly, l\[.R., alluded to the “ fiction of the law, which held that everything that was of record was known, or was supposed to be known, to everybody. Everyone was presumed to have notice of everything that was of record, in the same way that everybody is bound by an Act of Parliament though he knows nothing whatever of it”; and it was held that, the Act of \Vm. & M. having provided that judgments not docketed were not to have any preference against executors and administrators, the 19th section of 1 & 2 Vict. c. 110, not requiring registration of a judgment as against executors and administrators, and the Act of 2 & 3 Vict. c. ll, having closed the old dockets, the effect was to revive the old law (according to which no simple contract debt could be paid or allowed as against a judgment debt entered up), and to make an administrator liable for a devastavil if he paid a simple contract creditor before a judgment debt, though he had no notice of the latter. Now the Act of 27 & 28 Vict. c. 112, does not contain any provision for the protection of purchasers without notice, and it abolishes registration of judgments as against purchasers; and it is submitted that the result is to revive the old law, subject to the requirement of actual delivery in execution, which was supposed to be a suflicient protection to purchasers. The protection given by the Docket Act of Wm. & LL, and afterwards by the provisions of 1& 2 Vict. c. 110 and the subsequent statutes as to registration and notice, was directed to cases of judgments hanging over lands without enforcement of execution (see per Cotton, L.J., Re Pope, 34 W. R. 693; 17 Q. B. D., at p. 751); and the Divisional Court, in Re Pope, expressed the opinion that all this legislation left untouched the efiect of completed execution, “ whether by legal or equitable process ” (34 W. R. 655, 17 Q. B. D. 744). Moreover, as we have pointed out (ante, p. 73), the Act of 23 & 24 Vict. c. 38 protects only purchasers and mortgagees, and not the debtor himself; but the terms of 27 & 28 Vict. c. 112 are general, and put both the debtor and purchasers from him on the same level.

We have pointed out above (pp. 5, 24) that under the law before 1 & 2 Vict. c. 110 the creditor had no right as against the corpus of the estate, and therefore was not entitled to a sale, but that his so-called charge or lieu was merely 0. right to sue out execution whereby he obtained_and could hold possession of the lands as tenant by elegzt until his debt was satisfied out of the profits according to the extended value. But we also shewed that when the Court of Chancery, in the course of administering an estate, found necessary to sell lands, the court, finding the creditor in a cpndition to acquire a power over the estate by suing out the Writ, would pay off the judgment creditor, because it could not otherwise make u title to the estate ; and the court would never sell the interest of a debtor subject to an elegit creditor (per Lord Cottenham, C., in Neafe v. Duke qfillarlborouqli, 3 My. & Cr. 407).

Then came_the Act 1 & 2 Vict. c. ll0, which (s. 13: anle, p. 42) for the first time (29 Ch._D. 531) gave to the creditor, upon a udgment entered up, an equitable charge on the corpus of the debtor’s interest. _As against purchasers, however, there was no charge until registration of the judgment; and if the debtor had sold (though n_ot conveyed) the lands before registration, the purchaser had acquired an equitable _interest prior to any equitable charge of the creditor under the judgment, and that even though the purchaser bopght with notice of the unregistered judgment (3 8: 4 Yum °- 82, 5- 2; 18 Vict. c. 15, s. -1; ante, p. 58). lVe have given our reasons (zmte, pp. 74, 90) for the opinion that, as against purchasers, registration of the judgment itself continued to be necessary until the Act of 27 & 28 Vict. e. 112. That statute (s. 3: ante, p. 90) expressly dispensed with registration of the judgment, and therefore, in efiect, repealed section 19 of 1 & 2 Vict. c. 110. But section 13 of the last-mentioned Act has not been expressly repealed, and the result must be that that section, giving ;i_ charge, if it be still operative, is to be read together with 27 if 28 l lot. 0- 112, so that, as to judgments since the last-mentioned

ct, there can be no charge until the land has been actuall de

livered in execution. Delivery in execution is s.,bSmuted for ti - ' tration as the “ investitive fact,” or, as it was put arguenrlo inglie

P9116 (ubi sup.) the creditor obtains a “title b ' " - ' . _ _ yseizure under that Act. how it was settled that registration was not per se


notice unless the purchaser searched; but, for the reasons above given, it is submitted that the same doctrine cannot apply to actual delivery in execution; that the purchaser in Re Pope must be taken to have been in the same position as if he had purchased and paid his money with notice of the creditor’s charge; and that, therefore, his acquisition of the legal estate could notprotect him. It would appear that the creditor no longer needs the aid of section 13 of 1 & 2 Vict. c. 110 to give him a right to payment out of the corpus of his debtor's interest, but can rely on section 4 of 27 2_8 Vict. c. ll2 (ante, p. 90), which gives him a right to a sale ; and it is to be observed that that section refers to the practice of the court with respect to sales of real estates of deceased persons for the payment of debts, and that section 5, defining the persons who are to be served with, and to have the benefit of, the _oi-der for sale, mentions only credilars, and pI'OV1(l6S.f0'l"tl1C distribution of the proceeds of sale and adjustment of priorities only as between the petitioning creditor and other creditors on judgments, but it makes no reference to any claim by a purchaser ; and by section 6, “ every person claiming any interest in such land_ through or under the debtor by any means subsequent to the delivery of such land in execution as aforesaid shall be bound by every spch order for sale and by all the proceedings consequent thereon.’ It maybe further observed that the preamble of the Act shews that its general purpose was “to assimilate the law. affecting freehold, copyhold, and leasehold estates to that afiecting purely personal estates ” ; and in the case of a seizure by the sheriff under afa-, it would hardly be contended that a subsequent purchaser from the debtor without notice (if that be possible) would get a good title.

The concluding articles of this series, relating to the searches which should be made in various events and against_vario11! persons, will appear after the close of the Christmas Vacation

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

This was an appeal from adecision of the Divisional Court (Maoist! *3“: A. L. Smith,JJ.) refusinganordei-for aiiinterun injunction. Itappesroflt B the plaintiff and defendant were circus proprietors and had entered_iut_0 R partnership agreement to takethcir joint circus for aycar stour, _bcg1H11"1B at Leamington. The defendant was to supply certain performing _hol9B and ponies and some performers. The plaintiff supplied for eXlll.l)ltl0l; certain persons known as the Burmese Hairy Family. The defend“ committed various breaches of the partnership agreement by failing R; supply the agreed number of horses and ‘performers, in conscquenceo which the tour was unsuccessful. The p nintiff refused to supply 511% more money for carrying on the concern, and upon the defend” threatening to remove his property and live stock, applied for all l"J‘1“§' tion to restrain him from removing the horses and ponies and t B paraphernalia which he had supplied from Leamingtoi_i where the Cl!Clll5 then was. It was urged for the plaintiff that, on the authority of Lina efv v. Wngm'r (l De G. M. & G. 60-1), and Do Haltos V. Gibson (4 D6 G- ‘K fie 276), where the court will not grant a decree for specific perforniancel will, nevertheless, grant an injunetinn to indirectly compel it. h

THE COURT (Lord Esiisii,, Lixnuar and Lor-as, L-J-l-l refused the application and dismissed the appeal. They said the prinf!1P1e °f t 8 decision in Lmniey v. Wagner was that the circumstances in that Co-9? were such that no amount of damages would have given adcilllflte ".118 to the plaintiff, and that the court, therefore, granted the injunction, and that in Dc Matias v. Gibson it was still doubtful whether spoolfic Pei‘ formnnce could be granted or not. The rule now was that the com would not grant an injunction where specific performance could not ll79 obtained unless they considered that damages would be an absolute)’ inadequate remedy for the non- performance of the Bg1‘68I‘ll8l1li.—C0UNSEl6, Romcr, Q 0., and Boddall; Scarlett. Soi.ici'roiis, J. R. Pakmum; 5- ' Barker

[ocr errors]
[ocr errors]

This was an appeal from the decision of Manisty and Grantham» U-1 ani raised a question as to the power of the court to give leave to 011° defendant to inspect the property of another defendant. 011 Decembfir til, 1864, the defendant Smith granted to the defendant Peace all in? ironstone, ore, minerals, &c., under 47 acres of land at Cleveland» W‘ liberty to work the same without leaving an support to the B"_l'f'l°e’ making compensation for surface damage and dyiimage to the then existing buildings. In 1871, Smith conveyed a portion of the surface to ghe Pllilllmf in lee. Wflflrving the mines and minerals, with a covenafltflfig quiet enjoyment. Tue plaintifi built a house upon the land Mid

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

house had been injured by the subsidence of the land. For this he brought the present action, in which he claimed against the defendant Smith for breach of his covenant for quiet enjoyment, and against the defendant Peace for removing the mineralsunder the plaintiffs land and under the land adjoining the 47 acres, and thus letting down the surface. The defendant Smith, on the ground that the surface belonging to the plaintiff had not been let down by the mining of the defendant Peace under the 47 acres, obtained from Field, J ., at chambers an order (under R. S. 0., L., 3) that he should be at liberty to inspect the mines of the defendant Peace, under and adjacent to the plaintiff's land, and to take dcrawings of the workings. This order was affirmed by the Divisional ourt.

Ti-is Covar or Arrasn (Lord Esiiim, M.R., LINDLBY and Lo:-as, L.JJ.) now reversed that decision. They said that ord, 50. r. 3, was not wider in its terms than ord. 31, r. 12, where the words were that any party might obtain discovery from any other party. Those words did not necessarily mean plaintiff or defendant; in actions in the Chancery Division there were frequently several plaintiffs and several defendants, and the order for inspection might, in some cases, be made as between such plaintiffs or defendants. They considered that the order could only be made in such cases between plaintiffs or defendants who had some rights to be adjustrd between them. In the present case there were no rights to be adjusted between Smith and Peace, because, if the damage had occurred in consequence of the workings under the land adjacent to the 47 acres, Smith could not be liable, while, as to the workings under the 47 acres, Smith had assigned those minerals to Peace to work as he liked, subject to compensation, before he had assigned the surface tothe plaintiff. He could not have given the plaintiff rights in derogation of his grunt to Peace. Therefore, since there were no rights to be adjusted between the defendants, there could be no order for inspection of the mines.—Couivssi., Jfaniny ; Wilbnfw-cs; Cyril Dodd. Soucirons, R. T. Jarvis, for Hutchmsm 4' Luau, Dar-lington; Jackson 4- Co., for Jackson if Jaelmm, Middlesborough ; Iilman Q Co., for Buclmnnan Q .R¢'cbm'dson, Gainsborough.

[ocr errors][ocr errors]

In this case a somewhat novel question arose upon the construction of rule ll of order 2:5, which provides that “Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a judge on motion or summons without an appeal." The question was whether this rule applied to a case in which there was an error in a judgment, not because it incorrectly carried out the intention of the court or of the parties at the time when it was delivered, but because the parties were mistaken as to a fact upon which the judgment, as it stood, was founded. The judgment at the trial as drawn up directed that the defendant should be at liberty to set off against a sum of .6820, which he was ordered to pay to the plaintiff, ii sum of £-153 on account of interest which he had paid on behalf of the plaintiff. The judgment was not expressed to be made by consent, though, in fact, the sum of £453 was arranged between the parties on the faith of a statement made by the defendant, which was accepted by the plaintiff as accurate, that he had made the payments of interest on behalf of the plaintiff from May, 1876. After the judgment had been drawn up, and the time for appealing from it had expired, it was discovered that the payments of interest made by the defendant on behalf of the pluintiflf for two years, from May, 1876, to May, 1878, had already been allowed to him in another account with the plaintiff, and that only the sum of £3-16 was at the date of the judgment really due from the plaintiff to the defendant in renpect of interest paid by him on behalf of the plaintiff. The plaintiff took out a summons asking that the judgment might be corrected by substituting the sum of £3-16 for £453. Bacon, V.O., granted the application. The defendant appealed, and it was contended on his behalf that rule 11 did not apply; that there was no slip in the judgment; but that it was drawn up as the parties intended that it should be.

T_us Corar or APPEAL (Corrox, Bowsx, and Far, L.-lJ.) afllrmed the decision. They said that there had been an accidental slip caused by the defendant's mistaken statement of the amount of interest due to him, and this gave the Vice-Chancellor jurisdiction to make the correction.Corsssn, Rmslmw, Q.O.; Barb':r, Q.(J., and Pen-ii-al. Souciroiis, Dolterell 5’ ROM: ; Clarke, Rnwlins, Q Co.

[ocr errors][ocr errors]

This was an action by a partner against his co-partners claiming the diswlutlon of the partnership, accounts, and repayment of the sum of £9,500 which he had contributed as his share of the capital, on the ground that he hid been induced to join the partnership through the misrepresentations _of the defendants as to the profits of the business, the value of the machinery, the quantity and value of the stock-in-trade, and the solvency of the concern. The statements relied on as misrepresentations were not fra1_idulent—that is, not wilfully made—and therefore did not entitle the Pliillllfifi to brinipn action of deceit. His claim was to have the contract :3‘ Mlde an_d to restored to his status qua rmla. The document relied on

y the plaintiff as amouutingto a misrepresentation contained a statement as to the efficiency of spinning machinery, which both Bacon, V.G., and Y-lie Court of Appeal considered as untrue, and as having been an in_‘10€Inent to the plaintiff to enter into the contract. Bacon, V.O., gave 1“‘l8ment for rescission, ordered repayment of the .plaintif‘f"s capital, with


interest, and also ordered the defendants to indemnify the plaintiff against partnership liabilities. It was argued for the ap ellanfs that the order as to indemnity was in the nature of damages, and that such relief could only be given in the case of wilful misrepresentations.

Tan Couar or Ar-Pear. (Cor-roiz, Bownx, and Fair, L JJ.), affirmed the decision. holding that the plaintiff, on the rescission of the contract for partnership, was entitled to be put in the same position as he was before, so far as the direct consequences of the contract were concerned, and, therefore, to be indemnified by the defendants against his liability as a partner.—Ocvz~'ssi., Itigby, Q C., and Haldane,’ Sir Harare Darcy, Q.C., and J. G. Wmd. Soi.ici'r0us, 1’arl:er, Garrett, Q Purim"; Jaqucs, Layton, Q I/rqum,' W. §-. J. Flower §- Nu.~s¢~y.

[ocr errors][ocr errors]

The rector of West Derby rlaimed the exclusive right of performing the burial service in the consecrated portion of the new burial ground provided by the defendants under the Burial Acts, and to charge fees for so doing. The parish of West Derby originally formed part of the parish of Walton-on-the-Hill, from which it was separated by Act of Parliament in 1813, the Act reserving to the rector of \\'est Derby all the rights of the rector of Walton to surplice fees, &c., in respect of that district. Before this time there had been in the arish a parish churchyard and three chapels of ease with burial groundlb, which were consecrated and in private hands; the parishioners had not the exclusive right of burial, and the curates were entitled to charge double fees, half of which belonged to the vicar of \Valton. The chapels of ease were all in West Derby, and after the separation the vicar of that district took the vicar‘s half of the double fees. The question depended upon the construction of the 32nd section of the liletropolitan Burials Act, 1852. _

Kn, J ., said that under that section the plaintiff was obliged to perform the burial service in the consecrated portion of the new churchyard. The double fees were compensation fees given to the vicar of Walton and were not reserved to the vicar of West Derby by the separation Act. \Vhefher double fees could now be charged, or whether they were surplice fees, could not be decided in the absence of the curates and the p8l'lElll0l1el’S ; but it was not clear that the plaintiff was entitled to them ; and as he had not " reviously received ” such fees he could not exact fees for burial, services in the new ground, _Bnt he was bound to perform those services and entitled to the rights incident to such duties, so thatif the defendants charged any fees for such services they must hand them over to the plaintifE.—Cot'Nsizi., Ht-mmmy, Q. C., Jtlllltu and I], .5'1¢w”¢ ; _4.~];I(md, Q_C., Sir H. llrrrey, (-1.0. Soi.i<ri'r0ns, He-nshaw .5'_ Ru.mII, for Parry, Gnmon, g- Farmer, Chester ; Prilchard Q Sam, for Clearer, lroldm, 4- Co., Liverpool.

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

l journed from chambers and raised the question as to what was the proper

mode of estimating damages. _

Cuirrr, J., said that the chief clerk had proceeded upon the footing that the royalty was payable in respect of the entire time during which the defendants’ instruments were being used, and had rightly gone upon the basis that he had not_to find out the proflt made by_ the defeiidniitis but the loss tothe plaintiffs. The profit rental of the instruments so by the defendants would be the rental during the time from when they came into the possession of the infringer u_ntil the assessment of damage, unless such instruments were previously given up, and it was immaterial that any instruments lay for a period idle in the infringer s ware ouse The profit rental was ascertained by taking the gross rental and matkplilg deductions for working expenses. It had been s_aid that the 11:11:: (gm Se: defendant's instruments delivered up under the ]ll|.‘l8n1]8Ill; ong me The off against the damages. Such a view was absolute y un na . C view of the chief clerk was in every respect O0l'1’fl0t- COVNQIM AM,;;Q, -I and lllicklrm ,~ Romer, Q..C., and Dunham. Bonioiroas, Watarlwuseg m erbatlmm ; Hullvtt Q .S'

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

In this case the question arose (apparently for the first time, so far as any reported decision goes) whether, when a testator has created a mixed fund of realty and personalty for the payment of his debts, legacies, expenses, and costs, and in the administration of the estate the debts, &c., have been, in the first instance, paid out of the personalty, the real estate is bound afterwards to contribute to the personal estate, not only its rateable proportion of the payments so made, but also interest upon that rateable proportion from the times when the payments were made, so as to place the personal estate in exactly the same position as if the real estate had, in the first instance, contributed its proper rateable proportion of the payments. The only authority to be found for directing the payment of interest in such a case is the decree in Williams v. Kn-show, given in Seton on Decrees (4th ed.), vol. 1, p. 590. That case is reported 5 L. J. N. S. Ob. 84, and also, shortly, 5 C. 6: F. lllu, but no reference is made to this point in either of those reports. In the present case the testator, by his will, declared that all the moneys to be received under the trusts of his will should form an aggregate fund, and should, after payment of his debts and funeral and testamentary expenses, and after paying or providing for the several annuities and legacies thereinbefore gliven and bequeathed, and the costs, char es, and expenses incidental to t e execution of the trusts of his will, be held upon certain trusts. In administering the estate the debts, legacies, &c., were, in the first instance, paid out of the personal estate, and North, J., had decided that, by virtue of the above declaration in the will, tho real estate was bound to contribute rateably to the payment made for those purposes, and that the real estate must now make good to the personal estate so much as that estate had contributed to those payments in excess of its rateable proportion. The question was then raised whether the real estate was a so bound to pay to the personal estate interest upon the amounts to be so made good from the times when the excessive payments were respectively made out of the personal estate.

Nonrn, J ., held that interest must be paid by the real estate. The personal estate had, up to the present time borne more than its due proportion of the debts, &c., but, now that the liabilities of the two estates had to be adjusted, tho personal estate ought to be placed in the same position as if the real estate had contributed to make the payments at the times at which it ought to have done so. His lordship, therefore, thought that the_rea.l estate ought to make good, not only its rateabla proportion of the capital of the payments, but also interest on that proportion of the capital from the times when the payments were made. If the contributions had been made at the proper times, the persons interested in tho real estate would not have received interest upon those portions of capital from the times when the payments werc made, and, on the other hand, the persons interested in the personal estate would have received income of which they had been, in fact, deprived. It seemed to his lordship that the decree in Williams v. Ker.-zhriw was in the right form. He believed that he had seen other decrees in the same form, and his opinion was confirmed by the analogy of the practice in cases in which a child of a testator who had received an advance in respect of his share of the testator‘s' property during the testator's lifetime, for which he had to account after the testatoi-‘s death, and the practice in a case in which a mortgagee of two

estates had taken the whole of his debt out of one of the estates on which there was a second mortgage, under circumstances which entitled the second mortgagee to indemnity or contribution. In both these cases interest would also be payable, and the analogy of those cases a plied COUNSEL, Oozem-Hardy, Q.C., and R. F. Norton; Napier Hiyyim 8 Q aim} Bunting; Ingle-Joyce,’ Gifard, Q. 0., and E. S. Ford," B. B. Swan; Jlfoiholrl ' §‘;‘$Z‘;:";&Qj’b.t,l and bwoogrrfe. bonicirons, Clarke, Woodcock, Q R;/land ; B I » ‘f '~‘”"" f‘: "’.9°"V. Ifowcllflva, it Co. ; Hollams, Son, g» Coward; ° 5°": R°b3'""i 3“='7~= Q’ 00- ; Robinson, Piaslon, 4 Slow.

[ocr errors][ocr errors]

In this case uestions should be treated as abandoned under section 63 of the T d llla lhmark 1333, and (2) whether a fresh application could be mademine_ at l; Act, trade-mark which had been the subject of a previous abando redpec 19f a tionf another firm having been on the register in res ect of an? ‘lam, mafor more than five years. The above questions Krill-1e on filmiiar mark summons which came on for hearing with the trial of theuactll Jourirllfld Bmm°n5 "95 taken 011$ by a firm trading at Elberfeld in Ger on. e manufacturers of iron and steel goods under the style'of Peterminy’ ‘ls Schmidt, and was an application to proceed with the re istrati f udwlg mark Ionsisting of a carpenter's square and a pair 0% comphgsgs gig


opposition to the registration was raised by Messrs. Jackson & Co., of Sheffield, who were the registered proprietors of a mark identical in all respects except that the square and compasses were surmounted by a small Maltese Cross. The registration of their mark having been applied for in March, 1876, and obtained in June, ISTT, Messrs. Schmidt h id in March, 1876, instructed the Trade-Marks‘ Protection Society to apply for and obtain registration of their mark on their behalf, and, having seen the adverlhement of this application in the Trade-Marks‘ Journal believed that the mark had been duly registered. Such, however, was not the case. Opposition to the application had been made by Messrs. Jackson & Co. through the instrumentality of the Cutlers' Co., and the registrar had sent a letter addressed to Messrs. Schmidt to the care of the Trade-Marks’ Protection Society informing them that they must obtain the leave of the court for the registration to be proceeded with. By some inadvertence this letter was not forwarded by the society to Messrs. Schmidt, and the matter dropped. It was contended on behalf of hlélrffl. Schmidt that the application of 1876 was not “ abandoned" within the meaning of section 63 of the Trade-Marks Act, 1883, and that it was open to them now to proceed with that application, and, further, that, having regard to the three marks rule, they were not barred by section 3 of the Act of 1875 and section T6 of the Act of 1883 from makings fresh application for registration of the same mark by reason of the fact that Messrs. Jackson 6: Co. had been the registered proprietors of a similar mark for more than five years.

Srinrrsc, J ., said that section 63 of the Trade-Marks Act, 1883, was. in his lordship’s opinion, retrospective. In determining, therefore, whether Messrs. Schmidt were now at liberty to proceed with the application of 1876 it was necessary to consider whether that application had been “abziiidoiied" within the meaning of the section. That depended on whether there had been “default on the part of the applicant." There was nothing in any of the Trade-Marks Acts to deprive a person sui juris of his common law right to appoint an agent. The evidence shewed that the Trade-Marks’ Protection Society were appointed by Messrs. Schmidt their agents for obtaining registration, and they were competent, therefore, to give their own address as the place where notices were to be sent. The letter of the registrar requiring Messrs. Schmidt to ap ly to the court for leave to proceed was properly addressed to them to the care of the Trade-Marks‘ Protection Society. The fact that the society had neglected its duty could not affect the question. Although no time was specified by the section within which the leave of the court to proceed was to be obtained, still the application must be made within a reasonable time. That had not been done, and Messrs. Schmidt were accordingly in default and could not now proceed with the application of 1876. H1! lordship, however, held that the old application, not having been dealt with upon its merits and circumstances, not having chan ed so as to preclude Messrs. Schmidt from making a fresh application, grey were entitled to do so. Neither section 3 of the Act of 1875, which makes the registration of a person as first proprietor of a trade-mark conclusive evidence at the end of five years, nor section 7 6 of the Act of 1883 operated to bar a person who could make out a title to have his mark registered and who was not precluded by his conduct or by disability. His lordship therefore held that Messrs. Schmidt were entitled to proceed with the fresh applicati0i1.—C0iiNsi;L, Hastings, Q.C., and Hatfield Gram ,' W. Pearson, QC-1 Uoulton, Q.C., and R. 1". Norlon. Soucirous, Cattarns, Jeliu, Q Hughes, for Younge, Wilson, Q Co., Shefiield; Ellis, Hunduy, 4- Bartram.

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

missed the appeal. Lord Esiiim, M.R., said that the debtor having nothing but the allowance from his father, which the father might withdraw at any time, and his wife's income being settled to her separate use, there was nothing upon which any creditor could come to satisfy his debt. It was argued that the words “rash and hazardous speculations" applied only to speculations iii trade. It was admitted that speculations on the Stock Exchange would come within the words. It was clear also that gambling and betting were, iinder tlic circumstances of the present case, rash and hazardous speculations. The present Bankruptcy Act applied to non-traders as well as to traders, and the words in question referred to speculations generally. The court was, therefore, entitled to refuse to approve the composition; and, looking at the fact that the debtor had nothing of his own, it was plain that gambling and betting amounted also to “unjustifiable extravagance in living.” The debtor had, therefore, been guilty of improper conduct within section 28, sub-section 3 (rl). It was said that the composition was for the benefit of his creditors. No doubt it was, but so would a composition of ls. in the pound be. The creditors agreed to the composition because they could not get more. No doubt they exercised all the pressure they could on the father to get more. The court, however, had to consider both sides, and to exercise its discretion having regard to its duty to the public and its duty to the creditors. It was a matter of discretion, on the balance of those considerations, whether the court would a prove of the composition. The Court of Appeal would not overrule the exercise of that discretion, unless it were satisfied that the discretion had been wrongly exercised. The same view of the case had been taken by the county court judge and the two judges of the Divisional Court, and this court could not overriilo their decision. In his lordshipls opinion it would have been adereliction of his duty to the public if the county court judge had not come to the conclusion to which he did come. His lordshig did not say this merely on the ground that only 2s. in the pound was o ered, for, if more had been squeezed out of the father, he shou d, under the circumstances of this case, have come to the same conclusion. LINDLBY and Loriis, L.JJ., O011Clll'!‘€d-—C0l.'Z\'SBL, Gully, Q.C., and Sidney Woolf Souciroiz, H. Montagu.

[graphic][merged small][ocr errors]

In this case a question arose as to the right of a solicitor, who has acted for a trustee in respect of business relating to the trust, to retain his costs out of moneys in his hands belonging to the trust estate, the trustee being in default. The action was brought by S. and D., the trustees of s deed, for the execution of the trusts of the deed. The order on further consideration (S. then being dead) directed that D. should pay into court, on or before the 30th of July, 1886, the sum of £1,596, income of the trust estate received by him. And it was further ordered that the costs of D. and of S. should be taxed, and that D. should be at liberty to retain his own costs and those of S., when taxed, out of a sum of £660 (capital belonging to the trust estate) which was in his hands, and that he should, within fourteen days after the date of the taxing master's certificate, pay the balance of the £660 into court. The £660 was a mortgage debt, forming part of the trust estate, which had been paid off, and received by the solicitors of D., and it was in their hands, they having retained it on account of their costs in relation to the trust estate. D. made default in paying the £1,596 into court, and the costs were not taxed under the order. Some oi the beneficiaries applied that, notwithstanding the order on further consideration, and the non-taxation of the costs, the solicitors might be orde_re_dtopay the £660 into court, with interest from the date of their receiving it.

Nom-u,_ J ., ordered this to be done. He said that the strict form of order against a trustee, who had money belonging to the trust in his hands, was that he should pay into court, and that his costs should afterwards be taxed and paid out of it. The order in this case was made, not in the ordinary form, on a representation which had turned out not to be true (though it was made with perfect bona _/flies), that the trustee would pay in the £1,596 at once. This being so, he thought that there was j urisdiction new to order that the whole £660 should be paid into court at once, Without a prior taxation of the defaulting trustee's costs, inasmuch as he, being in default, could not be entitled to receive any costs out of the trust fund until he had made good his default. A solicitor who was employed by a trustee in matters relating to the trust estate was commonly said to be the solicitor to the trust estate. That, however, was not a correct expression. The solicitor had no retainer from the trust estate. His retainer was from the trustee personally, and he was entitled $9 look to him only for payment of his costs. He had no claim against or lien upon the trust estate for his costs. That was the general rule, though there were some exceptions. The solicitor might, for instance, have Obtained a statutory charging order in respect of costs incurred in the recovery or preservation of the trust property, or he might have a lien on documents in his hands, or upon his employer's share of the trust fund. But, with these exceptions, the solicitor had no right against the trust PY°Pel'iy. The trustee himself, however, had a right to be indemnified out of the_trust estate against his costs and charges and expenses properly incurred, Including the costs of employing a solicitor, and the solicitor would get the benefit of that right or charge, but only through the right of the trustee. He stood, as against the trust estate, in no better position than the trustee himself did. If the trustee himself would have been ordered pay trust money into court without any deduction for his costs, the sohcitor, if he had retained the money, must equally pay it into court

without deduction. If the solicitors in the present case had received the money and had paid it away as agents for the trustee, they would not be liable for it ; but, having received it with notice that it was trust money, and retained it for their own costs, they were liable for it just as the trustee would be. And as the trustee had been charged with interest on the £660 at 4 per cent., the solicitors must also pay interest on it at that rate. For some other sums which the solicitors had received from the trustee in discharge of a legal claim against him, without notice that those sums were paid out of the trust estate, they were not 1iable.—Coimsar., Case-rm-Hardy, Q,C., and Fa;'u:cll ; Coo/l-son, (1.0 , and George Henderson ; Napier Hi]/gins, Q.C., and 8. Hall. Soi.ici-roiis,1laIton, Robbins, Dusk, Q Ca. ; Cole §' Jackson, Roakc 4- Sims.

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

Mr. CHARLES W. Mari-iisws, barrister, has been ap ointed an additional Prosecuting Counsel to the Treasury at the sentral Criminal Court. Mr. Matthews is the step-son and adopted son of the late Mr. Charles Matthews, whose name he assumed. He was called to the bar at the Middle Temple in Easter Term, 1862, and he practises on the SouthEastern Circuit, and at the Middlesex, Hampshire, Winchester, Portsmouth, and Southampton Sessions. Mr. Matthews is a revising barrister, and he was recently appointed senior prosecuting counsel to the Post Ollice at the Central Criminal Court.

Mi. Eimssr BAGGALLAY, barrister, M.I’., junior prosecuting counsel to the Post Otfice at the Central Criminal Court, succeeds Mr Matthews its Senior Prosecuting Counsel to the Post Oflice. Mr. Bagg“allay is the son of the Right Hon. Sir Richard Baggallay. He was educated at Marlborough College and at Cains College, Cambridge. He was called to the bar at Lincoln's-inn in Easter Term, 1873, and he practises on the SouthEastem Circuit and at the Surrey Sessions. Mr. Baggallay was secretary to the Boston Election Commission in 1875, and to the Sandwich Election Commission in 1880, and he was formerly a revising barrister. He has been M.I’. for the Brixton Division of the borough of Lambeth in the Conservative interest since November, 1885.

Mr. \Vii.i.i.ui JOHN Fo.<1-im, solicitor, of 21, Birchin-lane, has been elected a Member of the Court of Common Council as a representative of the Ward of Coruhill.

Mr. EDWARD Las, solicitor, of 1, Basinghall-street, ha.s_been elected n Member of the Court of Common Coui cil as a representative of the Ward of Bassishaw.

Mr. Faanaaicir MEAD, barrister, has been appointed Junior Prosecuting Counsel to the Treasury at the Central Criminal Court in succession to Mr. Montagu Williams, who has been appointed a metropolitan police magistrate. Mr. Mead was called to the ar at the Middle _Temple in Trinity Term, 1869. He is a member of the South-Eastern Circuit, and he has been for several years prosecuting counsel to the Treasury at the Middlesex Sessions.

Mr. FREDERICK FLEMING, barrister, has been appointed Professor of Law to the Irish Incorporated Law Society. Mr. Fleming was called to the bar at Dublin in 1877.

Mr. OSWALD HARDY, barrister, has been appointed Junior Prosecuting Counsel to the Post Otiice on the Northern Circuit, in succession to Mr. Thomas iVhittenbu3y \Vheeler, Q, C. Mr. Hardy was called to the bar at Lincoln's-inn in anuary, 1880.

Mr. J ossvii McGiiias, solicitor, deputy town clerk of the borough of Oldham, has been elected Town Clerk of the City of York, in suwession to Mr. Joseph Wilkinson, resigned.

',' Mr. J/mas Foaussr FULTON, barrister, M.P., has been flPP°ll1i-9'3 Prosecuting Counsel to the Treasury at the Middlesex Sessions, and not at the Central Criminal Court as previously stated.


Hzuiuiiir WILLIAK Dnmax and Hsansar Eow/tan Boris, solicitors (Dibben & Boyle), l7, Essex-street, Strand, London. Dec. 16.

Jonrv Hswxiis Woonwaan, and An-riivii Enwann BAINBS, solicitors (Hawkes Woodward Baines), Birmingham. Nov. 19. 'l‘he busness will be henceforth carried on by the said John Hawkes Woodward One

[graphic][ocr errors][ocr errors]
[ocr errors]
« PreviousContinue »