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for relief in the manner aforesaid to persons whose incomes are less than £150 a year."
CONCERNING SEARCHES. 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
(XIX.) JUDGMENTS. rules to which the claim of, and proof of title to, the exemption
II. THE MODERN Law OF JUDGMENTS (concluded). granted by the Act of 1842 were subject.
Effect of completed execution—Re Pope.—In the course of the In 1863 (by section 3 of 26 & 27 Vict. c. 22), while the exemp- discussion which has arisen upon the important case of Re Pope tion granted to persons whose incomes were under £100 a year (34 W. R. 654, 693, 17 Q. B. D. 743), so often referred to in was continued, an alteration was made both in the limit of income these columns, an opinion has been more than once advanced, at which a man ceased to be entitled to abatement, and in the which, if it be correct, would tend to diminish, if not to remove mode in which the abatement, when allowed, was made, for the altogether, the alarm which the decision excited. It may be resection provides that, in lieu of the relief granted by the 28th marked at the outset that the view alluded to was by no means section of the Act of 1853, persons whose incomes were less than that of the Court of Appeal, which decided the case in question. £200 a year should be relieved from so much of the duties assessed Cotton, L.J., observed (17 Q. B. D., at p. 752) :-" One cannot upon, or paid by, them as an assessment or charge of the duties but feel the difficulty imposed upon purchasers ; but it is not for upon £60 of their incomes would amount to. The applicant was this court to cure it.” to claim and prove, in the manner prescribed” by the Acts then
To support the conclusion that the decision in Re Pope establishes in force relating to income tax, that his income from every source
no doctrine that need alarm those who are in the situation of the was less than £200 a year.
purchaser in that case—that is, who have purchased without notice In 1872 (by section 12 of 35 & 36 Vict. c. 20), the limit of and obtained a conveyance of the legal estate, both purchase and income at which a man ceased to be able to claim abatement was conveyance being subsequent to actual delivery of the land in exe?uraised to £300, and persons whose yearly incomes did not amount tion, the following appears to be the argument put forward. It is to that sum were relieved of duty to the extent of £80 of their said that it is a case of adjusting the priorities between A. and B., incomes. No change was made in the mode in which the where A. has an equitable charge on the lands, and B. is a subseapplicant was to claim the abatement.
quent purchaser for value without notice, and has acquired the The Act of 1863 was repealed by the Statute Law Revision Act, legal estate. The equitable interest of B. under his contract is 1875. (38 & 39 Vict. c. 66), which also repealed the provision admitted to be posterior to A.'s equitable charge, but it is urged contained in the Act of 1853 (s. 28), allowing an abatement to that B., having contracted without notice, is entitled to the propersons whose incomes were less than £150 a year. The provision tection of the legal estate. in the same section which restricted the exemption from duty
Now, in the first place, a creditor who has obtained degranted by the Act of 1842 to persons whose incomes were less livery in execution has another right besides the charge on than £100 a year was repealed by the Statute Law Revision Act, the corpus-viz., a right to the possession or receipt of the rents 18*8 (41 & 42 Vict. c. 79).
and profits; and, from a purchaser's point of view, if a creditor The Act of 1872, so far as we are now concerned with it, was could establish this right as against him, it would, in most cases, repealed by the Statute Law Revision Act, 1883 (46 & 47 Vict. c.
be comparatively unimportant whether he had or had not the 39), but in the meantime, in 1876, an Act (39 & 40 Vict. c. 16) further right to satisfy his debt out of the corpus of the property. had been passed which (section 8) extended the relief given by the A creditor may enforce execution either by an elegit or by obtainAct of 1872 to persons whose incomes were less than £400 a year, ing an order for a receiver. If the creditor has obtained delivery in who were relieved of duty to the extent of £120 of their income. execution under an elegit he has a legal estate, and his title could The applicant for relief was to “ claim and prove, in the manner not be defeated by a subsequent purchaser, though for value and prescribed by the Acts relating to income tax, that his total income without notice (see per Wills, J., Re Pope, 34 W. R. 354; same from all sources, though amounting to £150 or upwards, is less case, 17 Q. B. D. 743, 745). That case also shews that an order than £400.". At the time this Act was passed the part of section appointing a receiver has not merely the effect of putting the execu28 of the Act of 1853 which gave relief to persons whose incomes tion creditor in such a position that, in his capacity of a person havwere less than £150 a year had been repealed, while, in substitu- ing a charge, he may go to the court for a further order to sell the tion for it, there was in force the above quoted provision of the Act property, but that it also operates as completed execution, to the of 1872, but the remainder of the section, including the direction fruits of which (i.e., to the enjoyment of the benefit of the land we have quoted, which indicated the mode in which the relief was until the debt is paid), so long as they are confined to the unaided to be claimed and the applicant's title to it proved, remained in effect of the process of execution, the execution creditor is entitled force. This direction, as we have said, made the regulations for by the order of the court ; and that he cannot be deprived of claiming, and proving the applicant's title to, the exemption granted his right “ by the act of the debtor” in contracting to sell) by the Act of 1842, applicable in case of a claim to abatement on any more than he could if he had the legal estate under the ground of the applicant's yearly income being less than the an elegit—i.e., the order is equally effectual against a specified amount.
One of these regulations provided that the purchaser without notice, so far as the right of the purappeal in case of a claim to exemption must be made to the chaser to possession is concerned. In Re Pope this was all that it general, and not to the special, commissioners. In the case, also, was necessary for the court to decide. There was no question then, of an appeal upon a claim to abatement of duty, on the before it as to a charge on the corpus of the property. In Hatton ground of the applicant's yearly income being less than the speci- v. Haywood (L. R 9 Ch., at p. 236), Mellish, L.J., said that fied amount (now £400), the appeal must be made to the general the order of the Court of Chancery effects, as to equitable commissioners.
The result of our inquiry seems to be that the Revenue i.e., it "vests the debtor's estate in the creditor."And in Re authorities are right in the directions they issue upon this subject. Pope (ubi sup.) Cotton, L.J., observed :-" I need not go into the But to arrive at this conclusion we have had to travel through a
difference between an actual writ of elegit and an order for a repartially repealed section of the Act of 1853 to sections of the Act ceiver, because it was decided in Hatton v. Haywood that where of 1842, while, in order to understand the circumstances in which there has been a receiver appointed under a judgment, that is abatement is allowed, we have had to refer to a wholly repealed equivalent to, and in law is, delivery of the land under lawful fough; we think, if any is required, of the great need that exists had been an elegit, and the creditor had been in possession by for an Act which shall consolidate and amend the existing Income virtue of the elegit.” It is apprehended that elegits and orders
of court appointing receivers are alike to be treated as matter of record, with respect to which a purchaser cannot be allowed to plead absence of notice; just as, under the old law of judgments,
a purchaser was bound by a judgment entered up and (after the bathe recently-issued Report of the Commissioners of Prisons shews Act of Wm. & M.) duly docketed, though he had no notice (ante, i det last year the total number of prisoners 2.149,832_-'assabout 12,000 p. 25); and even under the new law a purchaser without notice
of a duly registered judgment was, by 2 & 3 Vict. c. 11 (ante,
p. 58), left liable to the remedies given by the old law. Compare notice unless the purchaser searched; but, for the reasons above Fuller v. Redman (26 Beav. 600), which was a case of the lia- given, it is submitted that the same doctrine cannot apply to actual bility of personal representatives, who were never protected, either delivery in execution; that the purchaser in Re Pope must be at common law or under 2 & 3 Vict. c. 11, by absence of notice. taken to have been in the same position as if he had purchased and There Romilly, M.R., alluded to the “fiction of the law, which paid his money with notice of the creditor's charge; and that, held that everything that was of record was known, or was sup- therefore, his acquisition of the legal estate could not protect him. posed to be known, to every body. Everyone was presumed to It would appear that the creditor no longer needs the aid of section have notice of everything that was of record, in the same way that 13 of 1 & 2 Vict. c. 110 to give him a right to payment out of the everybody is bound by an Act of Parliament though he knows corpus of his debtor's interest, but can rely on section 4 of 27 & 28 nothing whatever of it”; and it was held that, the Act of Wm. Vict. c. 112 (ante, p. 90), which gives him a right to a sale; and it is & M. having provided that judgments not docketed were not to to be observed that that section refers to the practice of the court have any preference against executors and administrators, the 19th with respect to sales of real estates of deceased persons for the section of 1 & 2 Vict. c. 110, not requiring registration of a judg- payment of debts, and that section 5, defining the persons who are ment as against executors and administrators, and the Act of 2 & to be served with, and to have the benefit of, the order for sale, 3 Vict. c. 11, having closed the old dockets, the effect was to revive mentions only creditors, and provides for the distribution of the the old law (according to which no simple contract debt could be proceeds of sale and adjustment of priorities only as between the paid or allowed as against a judgment debt entered up), and to petitioning creditor and other creditors on judgments, but it make an administrator liable for a devastavit if he paid a simple makes no reference to any claim by a purchaser; and by section 6,
contract creditor before a judgment debt, though he had no notice "every person claiming any interest in such land through or under of the latter. Now the Act of 27 & 28 Vict. c. 112, does not the debtor by any means subsequent to the delivery of such land contain any provision for the protection of purchasers without in execution as aforesaid shall be bound by every such order for notice, and it abolishes registration of judgments as against pur- sale and by all the proceedings consequent thereon.” It may, chasers; and it is submitted that the result is to revive the old further observed that the preamble of the Act shews that its law, subject to the requirement of actual delivery in execution, general purpose was "to assimilate the law affecting freehold, which was supposed to be a sufficient protection to purchasers. copyhold, and leasehold estates to that affecting purely personal The protection given by the Docket Act of Wm. & M., and after- estates", and in the case of a seizure by the sheriff under a fi. fa., wards by the provisions of 1 & 2 Vict. c. 110 and the subse- it would' hardiy be contended that a subsequent purchaser from quent statutes as to registration and notice, was directed to cases the debtor without notice (if that be possible) would get a good of judgments hanging over lands without enforcement of execu- title. tion (see per Cotton, L.J., Re Pope, 34 W. R. 693 ; 17 Q. B. D., The concluding articles of this series, relating to the searches at p. 751); and the Divisional Court, in Re Pope, expressed the which should be made in various events and against various opinion that all this legislation left untouched the effect of com- persons, will appear after the ose of the Christmas Vacation. pleted 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
CASES OF LAST WEEK. from him on the same level.
PEPERNO v. HARMISTON-0. A. No. 1, 16th December. 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
PRACTICE-INJUNCTION--PARTNERSHIP AGREEMENT-SPECIFIC PERFORMANCE, of the estate, and therefore was not entitled to a sale, but that his A. L. Smith, JJ., refusing an order for an interim injunction. It appeared that
This was an appeal from a decision of the Divisional Court (Manisty and so-called charge or lien was merely a right to sue out execution the plaintiff and defendant were circus proprietors and had entered intona whereby he obtained and could hold possession of the lands as partnership agreement to take their joint circus for a year's tour, beginning tenant by elegit until his debt was satisfied out of the profits at Leamington. The defendant was to supply certain performing horses according to the extended value. But we also shewed that when and ponies and some performers. The plaintiff supplied for exhibition the Court of Chancery, in the course of administering an estate, committed various breaches of the partnership agreement by failing to
certain persons known as the Burmese Hairy Family. The defendant found it necessary to sell lands, the court, finding the creditor in supply the agreed number of horses and performers, in consequence of a condition to acquire a power over the estate by suing out the which the tour was unsuccessful. The plaintiff refused to supply any writ, would pay off the judgment creditor, because it could not threatening to remove this property and live'stock, applied for an injure.com otherwise make a title to the estate ; and the court would never sell the interest of a debtor subject to an elegit creditor (per Lord paraphernalia which he had supplied from Leamington where the circus Cottenham, C., in Neate v. Duke of Marlborough, 3 My. & Cr. 407). then was.
Then came the Act 1 & 2 Vict. c. 110, which (s. 13 : ante, p. 42) » Wagner (1 De G. M. & G. 601), and De Mattos v. Gibson (4 De G. & for the first time (29 Ch. D. 531) gave to the creditor, upon a judg- 276), where the court will not grant a decree for specific performance it interest. As against purchasers, however, there was no charge application and dismissed the appeal. They said the principle of the ment entered up, an equitable charge on the corpus of the debtor's will nevertheless, grant an injunction to indirectly compel it. until registration of the judgment; and if the debtor had sold decision in Lumley v. Wagner was that the circumstances in that chief (though not conveyed) the lands before registration, the purchaser toe the plaintif, and that the court, therefore, granted the bounc per: had acquired an equitable interest prior to any equitable charge and that in De Maltos v. Gibson it was still doubtful whether specific perrt of the creditor under the judgment, and that even though the formance could be granted or not. The rule now was that the corne purchaser bought with notice of the unregistered judgment (3 & 4 would not grant an injunction where specific performance could not be Vict. c. 82, s. 2; 18 Vict. c. 15, 8. 4; ante, p. 58). We have obtained unless they considered that damages would be an absolutely given our reasons (ante, pp. 74, 90) for the opinion that, as against iromenuate ang anda beradace Seamlet. Solicitors, T. R. Pakeman ; I. C. purchasers, registration of the judgment itself continued to be Barker necessary until the Act of 27 & 28 Vict. c. 112. That statute (s. 3 : ante, p. 90) expressly dispensed with registration of the SHAW v. SMITH AND PEACE-O. A. No. 1, 18th December. judgment, and therefore, in effect, repealed section 19 of 1 & 2 Practice—Inspection of Property-Two Dependants—R. S. C., L., 3; Vict. c. 110. But section 13 of the last-mentioned Act has not
XXXI., 12. been expressly repealed, and the result must be that that section, giving a charge, it'it be still operative, is to be read together with 21 aelenciand to inspect the property or another defendant. on December
This was an appeal from the decision of Manisty and Grantham, JJ.. Act, there can be no charge until the land has been actually de- ironstone, bre, minerals, &c., under 40 acres of land at Cleveland, faite, livered in execution. Delivery in execution is substituted for regis- liberty to work the same without leaving any support to the surfaces tration as the “ investitive fact,” or, as it was put arguendo in Re making compensation for surface damage and damage to the then existing that Act. Now it was settled that registration was not per se quiet enjoymentes emne plaintin built a house upon the land and this
house had been injured by the subsidence of the land. For this he interest, and also ordered the defendants to indemnify the plaintiff against brought the present action, in which he claiined against the defendant partnership liabilities. It was argued for the appellants that the order as Smith for breach of his covenant for quiet enjoyment, and against the to indemnity was in the nature of damages, and that such relief could defendant Peace for removing the minerals under the plaintiff's land and only be given in the case of wilful misrepresentations. under the land adjoining the 47 acres, and thus letting down the surface. The COURT OF APPEAL (COTTON, Bowen, and Fry, L JJ.), affirmed the The defendant Smith, on the ground that the surface belonging to the decision, holding that the plaintiff, on the rescission of the contract for plaintiff had not been let down by the mining of the defendant Peace partnership, was entitled to be put in the same position as he was before, under the 47 acres, obtained from Field, J., at chambers an order (under so far as the direct consequences of the contract were concerned, and, R. 8. O., L., 3) that he should be at liberty to inspect the mines of the therefore, to be indemnified by the defendants against his liability as a defendant Peace, under and adjacent to the plaintiff's land, and to take partner.- COUNSEL, Rigby, Q C., and Haldane ; Sir Horace Darey, Q.c., and drawings of the workings. This order was affirmed by the Divisional J. G. Wood. SOLICITORS, Parker, Garrett, f Parker ; Jaques, Layton, $ Court.
Jaques; W.g. J. Flower 8. Nussey. The Court of APPEAL (Lord Esher, M.R., LINDLEY and Lopes, L.JJ.) now reversed that decision. They said that ord, 50. r. 3, was not wider in STEWART ». THE WEST DERBY BURIAL BOARD — Kay, J., its terms than ord. 31, r. 12, where the words were that any party might
13th, 14th, and 15th December. obtain discovery from any other party. Those words did not necessarily mean plaintiff or defendant; in actions in the Chancery Division there BURIAL BOARD-INTERMENT IN CoNsEcRATED Portion of New CEMETERY were frequently several plaintiffs and several defendants, and the order
-RIGHT TO PERFORM SERVICE AND RECEIVE FEES — New PARISH for inspection might, in some cases, be made as between such plaintiffs or
SEPARATED FROM FORMER PARISI_“ INCUMBENT OR MINISTER—“ PREdefendants. They considered that the order could only be made in such
VIOUSLY RECEIVED"_METROPOLITAN BURIALS Act, 1852 (15 & 16 VICT. cases between plaintiffs or defendants who had some rights to be adjusted
c. 85), ss. 32, 52. between them. In the present case there were no rights to be adjusted The rector of West Derby claimed the exclusive right of performing between Smith and Peace, because, if the damage had occurred in con the burial service in the consecrated portion of the new burial ground sequence of the workings under the land adjacent to the 47 acres, Smith provided by the defendants under the Burial Acts, and to charge fees for could not be liable, while, as to the workings under the 47 acres, Smith to doing. The parish of West Derby originally formed part of the parish
ad assigned those m als to Peace to work as he liked, subject to of Walton-on-the-Hill, from which it was separated by Act of Parliament compensation, before he had assigned the surface to the plaintiff. He in 1813, the Act reserving to the rector of West Derby all the rights of the could not have given the plaintiff rights in derogation of his grant to rector of Walton to surplice fees, &c., in respect of that district. Before Peace. Therefore, since there were no rights to be adjusted between the this time there had been in the parish a parish churchyard and three defendants, there could be no order for inspection of the mines.-Counsel, chapels of ease with burial grounds, which were consecrated and in private Manisty; Wilberforce ; Cyril Dodd. SOLICITORS, R. T. Jarvis, for Hutchinson hands; the parishioners had not the exclusive right of burial, and the & Lucas, Darlington; Jackson & Co., for Jackson F Jackson, Middlesborough ; curates were entitled to charge double fees, half of which belonged to the Pitman & Co., for Buchannan f Richardson, Gainsborough.
vicar of Walton. 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 BARKER ». PURVIS–. A. No. 2, 21st December.
fees. The question depended upon the construction of the 32nd section R. S. C., 1883, XXVIII., 11-CORRECTION OF ERROR IN JUDGMENT
of the Metropolitan Burials Act, 1852.
Kay, J., said that under that 'section the plaintiff was obliged to perWITHOUT APPEAL-MISTAKE OF Parties.
form the burial service in the consecrated portion of the new churchyard, In this case a somewhat novel question arose upon the construction The double fees were compensation fees given to the vicar of Walton and of rule 11 of order 28, which provides that “Clerical mistakes in judg. were not reserved to the vicar of West Derby by the separation Act. ments or orders, rors arising therein from any accidental slip or Whether double fees could now be charged, or whether they were surplice omission, may at any time be corrected by the court or a judge on fees, could not be decided in the absence of the curates and the paris hioners; motion or summons without an appeal.” The question was whether this but it was not clear that the plaintiff was entitled to them; and rule applied to a case in which there was an error in a judgment, not as he had not "previously received " such fees he could not because it incorrectly carried out the intention of the court or of the exact fees for burial services in the new ground. But he was bound parties at the time when it was delivered, but because the parties were to perform those services and entitled to the rights incident to such duties, mistaken as to a fact upon which the judgment, as it stood, was founded. so that if the defendants charged any fees for such services they must The judgment at the trial as drawn up directed that the defendant should hand them over to the plaintiff.- Counsel, Hemming, Q.C., Jeune, and be at liberty to set off against a sum of £820, which he was ordered to pay C. Stewart ; Aspland, Q.C., Sir H. Davey, Q.o. Solicitors, Henshaw to the plaintiff, a sum of £453 on account of interest which he had paid on S. Russell, for Parry, Gamon, & Farmer, Chester; Pritchard & Sons, for behalf of the plaintiff. The judgment was not expressed to be made by Clearer, holden, f. Co., Liverpool. consent, though, in fact, the sum of £153 was arranged between the parties on the faith of a statement made by the defendant, which was THE UNITED TELEPHONE CO. . WALKER-Chitty, J., 15th accepted by the plaintiff as accurate, that he had made the payments of
December. interest on behalf of the plaintiff from May, 1876. After the judgment
MEASURE OF DAMAGES — ROYALTY had been drawn up, and the time for appealing from it had expired, it PATENT-INFRINGEMENT, DAMAGES was discovered that the payments of interest made by the defendant on
Profit RENTAL-INFRINGING INSTRUMENTS NOT IN USE-DELIVERY UP OF behalf of the plaintiff for two years, from May, 1876, to May, 1878, had
INFRINGING INSTRUMENTS. already been allowed to him in another account with the plaintiff, and This was a summons in an infringement of patent action. The plainthat only the sum of £346 was at the date of the judgment really due tiffs were the patentees of telephonic instruments, and had recovered from the plaintiff to the defendant in respect of interest paid by him on judgment. It appeared that the plaintiffs were in the habit of letting out behalf of the plaintiff. The plaintiff took out a sumusons asking that their instruments at a rent or royalty, and the present sumnions was adthe judgment might be corrected by substituting the sum of £346 for journed from chambers and raised the question as to what was the proper £453. Bacon, v.o., granted the application. The defendant appealed, mode of estimating damages. and it was contended on his behalf that ruly 11 did not apply; that CHITTY, J., said that the chief clerk had proceeded upon the footing there was no slip in the judgment; but that it was drawn up as the that the royalty was payable in respect of the entire time during which parties intended that it should be.
the defendants' instruments were being used, and had rightly gone upon The Court of Appeal (Cotton, Bowen, and Fry, L.JJ.) affirmed the the basis that he had not to find out the profit made by the defendants decision. They said that there had been an accidental slip cansed by the but the loss to the plaintiffs. The profit rental of the instruments sold defendant's mistaken statement of the amount of interest due to him, and by the defendants would be the rental during the time from when they this
gave the Vice-Chancellor jurisdiction to make the correction.- came into the possession of the infringer until the assessment of damage, Corssel, Renshaw, Q.C.; Barber, Q.C., and Perciral. SOLICITORS, Botterell unless such instruments were previously given up, and it was immaterial & Roche ; Clarke, Rawlins, & Co.
that any instruments lay for a period idle in the infringer's warehouse
The profit rental was ascertained by taking the gross rental and making NEWBIGGING v. ADAM-0. A. No. 2, 20th December.
deductions for working expenses.
It had been said that the value of the PARTNERSHIP – Dissolution — PARTNERSHIP INDUCED BY INNOCENT Ms. defendant's instruments delivered up under the judgment ought to be set REPRESENTATIONS-INDEMNITY AGAINST PARTNERSHIP LIABILITIES.
off against the damages. Such a view was absolutely untenable. The
view of the chief clerk was in every respect correct. Counsel, Aston, Q C., solution of the partnership, accounts, and repayment of the sum of £9,500 botham ; Hallett 8 Spottisivoode.
This was an action by a partner against his co-partners claiming the dis- and Micklem ; Romer, Q.C., and Dunham. Solicitors, Waterhouse & Winterwhich he had contributed as his share of the capital, on the ground that he had been induced to join the partnership through the misrepresentations of the defendants as to the profits of the business, the value of the
DAY v. SYKES, WALKER, & CO.-Chitty, J., 18th December.
- Dis of achinery, the quantity and value of the stock-in-trade, and the solvency COMPANY — Debenture Holder’s Action --Receiver — JUDGMENT
CHARGE OF RECEIVER. fraudulent—that is, not wilful The statements relied on as misrepresentations were not
made-and therefore did not entitle the In this case, being an action by debenture holders of the company for plaintiff to bring an action of deceit. set aside and to be restored to his status quo ante.
His claim was to have the contract enforcement of their security, and a receiver and manager of the comby the plaintiff as amounting to a misrepresentation contained a state plaintiffs, motion was made for judgment upon prepared minutes which and the Court of Appeal considered as untrue, and as having been an in- security, and for a sale, and for continuation until further order of the judgment for rescission, ordered repayment of the plaintiff's" capital, with tion, and the receiver and manager had been appointed liquidator.
CHITTY, J., said that receivers were too frequently continued rather opposition to the registration was raised by Messrs. Jackson & Co., of for their own benefit than that of the company, and ordered a direction Sheffield, who were the registered proprietors of a mark identical in all to be inserted in the minutes that the business of the company was not respects except that the square and compasses were surmounted by a to be carried on by the receiver and manager for a longer period than six small Maltese Cross. The registration of their mark having been applied for months without the leave of the judge in chambers, and that if any in March, 1876, and obtained in June, 1877, Messrs. Schmidt hud in further time was reqnired, an application for further time must be made March, 1876, instructed the Trade-Marks' Protection Society to apply for before the expiration of the six months.-COUNSEL Swinfen Eady. Solici and obtain registration of their mark on their behalf, and, having seen the TOR, Cldfield.
advertisement 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
been ASHWORTH ». MUNN-North, J., 20th December.
made by Messrs.
Jackson & Co. through the instrumentality of the Cutlers' Co., and the ADMINISTRATION-Mixed FUND OF REALTY AND PERSONALTY-PAYMENT OF
registrar had sent a letter addressed to Messrs. Schmidt to the care of the DEBTS AND LEGACIES OUT OF PERSONALTY-CONTRIBUTION BY REALTY
Trade-Marks' Protection Society informiog them that they must obtain INTEREST.
the leave of the court for the registration to be proceeded with. By some In this case the question arose (apparently for the first time, so far as inadvertence this letter was not forwarded by the society to Messrs. any reported decision goes) whether, when a testator has created a mixed Schmidt, and the matter dropped. It was contended on behalf of Meer is. fund of realty and personalty for the payment of his debts, legacies, Schmidt that the application of 1876 was not “abandoned ” within the expenses, and costs, and in the administration of the estate the debts, meaning of section 63 of the Trade-Marks Act, 1883, and that it was &c., have been, in the first instance, paid out of the personalty, the real open to them now to proceed with that application, and, further, that, estate is bound afterwards to contribute to the personal estate, not only having regard to the three marks rule, they were not barred by section its rateable proportion of the payments so made, but also interest upon 3 of the Act of 1875 and section 76 of the Act of 1883 from making a that rateable proportion from the times when the payments were made, fresh application for registration of the same mark by reason of the fact so as to place the personal estate in exactly the same position as if the that Messrs. Jackson & Co. had heen the registered proprietors of a real estate had, in the first instance, contributed its proper rateable similar mark for more than five years. proportion of the payments. The only authority to be found for directing STIRLING, J., said that section 63 of the Trade-Marks Act, 1883, was, in the payment of interest in such a case is the decree in Williams v. his lordship's opinion, retrospective. In determining, therefore, whether Kershaw, given in Seton on Decrees (4th ed.), vol. 1, p. 590. That case Messrs. Schmidt were now at liberty to proceed with the application of is reported 5 L. J. N. S. Ch. 84, and also, shortly, 5 O. & F. 111, but 1876 it was necessary to consider whether that application had been no reference is made to this point in either of those reports. In the “abandoned" within the meaning of the section. That depended on present case the testator, by his will, declared that all the moneys to be whether there had been "default on the part of the applicant." There received under the trusts of his will 'should form an aggregate fund, and was nothing in any of the Trade-Marks Acts to deprive a person sui juris should, after payment of his debts and funeral and testamentary expenses, of his common law right to appoint an agent. The evidence shewed that and after paying or providing for the several annuities and legacies the Trade-Marks' Protection Society were appointed by Messrs. Schmidt therein before given and bequeathed, and the costs, charges, and expenses their agents for obtaining registration, and they were competent, there. incidental to the execution of the trusts of his will, be held upon certain fore, to give their own address as the place where notices were to be sent. trusts. In administering the estate the debts, legacies, &c., were, in the The letter of the registrar requiring Messrs. Schmidt to apply to the first instance, paid out of the personal estate, and North, J., had decided court for leave to proceed was properly addressed to them to the care of that, by virtue of the above declaration in the will, the real estate was the Trade-Marks' Protection Society. The fact that the society had bound to contribute rateably to the payment made for those purposes, neglected its duty could not affect the question. Although no time was and that the real estate must now make good to the personal estate so specified by the section within which the leave of the court to proceed was much as that estate had contributed to those payments in excess of its to be obtained, still the application must be made within a reasonable rateable proportion. The question was then raised whether the real time. That had not been done, and Messrs. Schmidt were accordingly estate was also bound to pay to the personal estate interest upon the in default and could not now proceed with the application of 1876. His amourts to be so made good from the times when the excessive pay- lordship, however, held that the old application, not having been dealt ments were respectively made out of the personal estate.
with upon its merits and circumstances, not having changed so as to pre, North, J., held that interest must be paid by the real estate. The per- clude Messrs. Schmidt from making a fresh application, they were entitled sonal estate had, up to the present time borne more than its due propor- to do so. Neither section 3 of the Act of 1875, which makes the registra. tion of the debts, &c., but, now that the liabilities of the two estates had tion of a person as first proprietor of a trade-mark conclusive evidence at to be adjusted, the personal estate ought to be placed in the same posi- the end of five years, nor section 76 of the Act of 1883 operated to bar a tion as if the real estate had contributed to make the payments at the person who could make out a title to have his mark registered and who was times at which it ought to have done so. His lordship, therefore, thought that not precluded by his conduct or by disability. His lordship therefore the real estate ought to make good, not only its rateable proportion of the held that Messrs. Schmidt were entitled to proceed with the fresh applica. capital of the payments, but also interest on that proportion of the capital tion.-Counsel, Hastings, Q.C., and Hatfield Green ; W. Pearson, Q,C., from the times when the payments were made. If the contributions had Moulton, Q.C., and R. Ř. Norton. Solicitors, Cattarns, Jehu, f Hughes, been made at the proper times, the persons interested in the real estate for Younge, Wilson, f: Co., Sheffield; Ellis, Munday, $ Bartrum. would not have received interest upon those portions of capital from the times when the payments were made, and, on the other hand, the persons interested in the personal estate would have received income of which they bad been, in fact, deprived. It seemed to his lordship that tlie decree
BANKRUPTCY CASES. in Williams v. Kershaw was in the right form. He believed that he had seen other decrees in the same form, and his opinion was confirmed by the
Ex parte THORNBER, Re BARLOW.-C. A. No. 1, 17th December. analogy of the practice in cases in which a child of a testator, who had
BANKRUPTCY-COMPOSITION-APPROVAL Or Court-DISCRETION OF JUDGEreceived an advance in respect of his share of the testator's property
“Rash AND HAZARDOUS SPECULATIONS ” _“UNJUSTIFIABLE EXTRAVAduring the testator's lifetime, for which he had to account after the tes
GANCE IN LIVING."-BANKRUPTCY Act, 1883, ss. 18 (6), 28 (3). tator'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 wills, JJ.) to approve of a composition, which the creditors of a debtor
This was an appeal from the refusal of a divisional court (Cave and there was a second mortgage, under circumstances which entitled the had resolved to accept, and the question was raised whether betting and second mortgagee to indemnity or contribution. In both these cases gambling, and speculations on interest would also be payable, and the analogy of those cases applied.
the Stock Exchange are
hazardous speculations," Counsel, Cozens- Hardy, Q.O., and R. F. Norton ; Napier Higgins, Q.O., and within section 28 of the Bankruptcy Act, 1883.
unjustifiable extravagance in living,"
The debtor was a Bunting; Ingle-Joyce; Giffard, Q O., and E. S. Ford ; B. B. Swan'; Mothold ; young man twenty-six years of age, of no occupation, and having.no Cookson, Q.O., and Woodroffe. Solicitors, Clarke, Woodcock, & Ryland ; Walker & Battiscombe ; Gregory, Rowcliffes, & Co.; Hollams, Son, ģe Coward; transactions and Stock Exchange speculations. On the 25th of Septem
means of his own, and he had been engaged in betting and gambling Bollon, Robbins, Busk, & Co.; Robinson, Preston, f Stow.
ber, 1885, & receiving order was made against him. His liabilities
amounted to £8,073, and he had no assets. JACKSON & CO. v. NAPPER; In re SCHMIDT'S TRADE-MARK
His creditors resolved
to accept a composition of 2s. in the pound. The debtor's only income Stirling, J., 6th, 7th, 8th, 9th, 13th, and 15th December.
was a voluntary allowance of £300 a year from his father. His wife, Trade-Mark-REGISTRATION - ABANDONED APPLICATION FRESH APPLI
however, had an income of £3,000 a year, but it was settled on her to CATION — Three Marks RULE-TRADE-MARKS Act, 1875, s. 3-TRADE
her separate use. His debts were chiefly in respect of money borrowed Marks Act, 1883, ss. 63, 76.
to pay his losses in betting and gambling and otherwise. His debts In this
to tradesmen amounted only to £75, and £1,609 was owing to his father. questions arose (1) as
to the circumstances Section 18 (6) of the Bankruptcy Act, 1883, provides that, in any case in under which
an application for should be treated as abandoned under section 63 of the Trade-Marks Act, the debtor's discharge, if the debtor were adjudged bankrupt, the court
registration of trade-mark which the court would be justified in refusing, qualifying, or suspending trade mark which had been the subject of a previous abandoned applica- arrangement accepted by the creditors. By section 28, sub-section 3 (d); tion, another firm having been on the register in respect of a similar mark the court may refuse, suspend, or qualify the order of discharge if the for more than five years. The above questions arose on an adjourned bankrupt “has brought on his bankruptcy by rash and hazardous specun summons which came on for hearing with the trial of the action. summons was taken out by a firm trading at Elberfeld, in Germany, as
The lations, or unjustifiable extravagance in living." The judge of the Croydon manufacturers of iron and steel goods under the style of Peter Ludwig was affirmed by the Divisional Court. The debtor and the petitioning Schmidt, and was an application to proceed with the registration of an old mark consisting of a carpenter's square and a pair of compasses. The
creditor appealed, and none of the creditors opposed.
The Court (Lord Esher, M.R., and LINDLEY and Lopes, L.JJ.) dis
missed the appeal. Lord Esher, M.R., said that the debtor having nothing without deduction. If the solicitors in the present case had received the but the allowance from his father, which the father might withdraw at money and had paid it away as agents for the trustee, they would not be any time, and his wife's income being settled to her separate use, there liable for it; but, having received it with notice that it was trust money, was nothing upon which any creditor could come to satisfy his debt. It and retained it for their own costs, they were liable for it just as the was argued that the words “rash and hazardous speculations" applied trustee would be. And as the trustee had been charged with interest on only to speculations in trade. It was admitted that speculations on the the £660 at 4 per cent., the solicitors must also pay interest on it at that Stock Exchange would come within the words. It was clear also that rate. For some other sums which the solicitors had received from the gambling and betting were, under the circumstances of the present case, trustee in discharge of a legal claim against him, without notice that those rash and hazardous speculations. The present Bankruptcy Act applied sums were paid out of the trust estate, they were not liable.—COUNsel, to non-traders as well as to traders, and the words in question referred to Cozens-Hardy, Q.O., and Farwell ; Cookson, Q.O., and George Henderson ; speculations generally. The court was, therefore, entitled to refuse to Napier Higgins, Q.C., and 8. Hall. SOLICITORS, Bolton, Robbins, Busk, g Co.; approve the composition; and, looking at the fact that the debtor had Cole & Jackson ; Rooke g- Sons. 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 (d). It was said that the composition was for the benefit of his creditors. No doubt it
but so would a composition of 1s. in the pound be. The credi. tors agreed to the composition because they could not get more. No
LAW STUDENTS' JOURNAL. doubt they exercised all the pressure they could on the father to get more.
UNITED LAW STUDENTS' SOCIETY 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. The society held its annual general meeting on the 20th ult., at the It was a matter of discretion, on the balance of those considerations, Law Institution, Chancery-lane, Mr. Charles A. Elgood bring in the chair. whether the court would approve of the composition. The Court of The meeting was of an entirely business nature, and was characterized Appeal would not overrule the exercise of that discretion, unless it were only by an average attendance of members. 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 overrule their decision. In his lordship's opinion it would have been a dereliction of his duty to the public if the county court judge had not come to the conclusion to which
LEGAL NEWS. he did come. His lordship did not say this merely on the ground that only 28. in the pound was offered, for, if more had been squeezed out of the
APPOINTMENTS. father, he should, under the circumstances of this case, have come to the same conclusion. LINDLEY and Lopes, L.JJ., concurred.—Counsel, Gully, tionai Prosecuting Counsel to the Treasury at the Central Criminal
Mr. Charles W. Matthews, barrister, has been appointed an addi. Q.C., and Sidney Woolf. SOLICITOR, H. Montagu.
Court. Mr. Matthews is the step-son and adopted son of the late Mr.
the Middle Temple in Easter Term, 1862, and he practises on the SouthCASES AFFECTING SOLICITORS.
Eastern Circuit, and at the Middlesex, Hampshire, Winchester, Ports
mouth, and Southampton Sessions. Mr. Matthews is a revising barrister, STANIAR v. EVANS-North, J., 18th December.
and he was recently appointed senior prosecuting counsel to the Post SOLICITOR-Costs—Solicitor rok TrusteB-Right to Costs out or Trust Office at the Central Criminal Court. Estate-DEFAULTING TRUSTEE—Trust-MONEY IN SOLICITOR's Hands.
Mr. Ernest BAGGALLAY, barrister, M.P., junior prosecuting counsel In this case a question arose as to the right of a solicitor, who has acted to the Post Office at the Central Criminal Court, succeeds Mr Matthews for a trustee in respect of business relating to the trust, to retain his costs as Senior Prosecuting Counsel to the Post Office. Mr. Baggallay is the out of moneys in his hands belonging to the trust estate, the trustee being son of the Right Hon. Sir Richard Baggallay. He was educated at Marl. in default. The action was brought by S. and D., the trustees of a deed, borough College and at Caius College, Cambridge. He was called to the for the execution of the trusts of the deed. The order on further consi- bar at Lincoln's-inn in Easter Term, 1873, and he practices on the Southderation (S. then being dead) directed that D. should pay into court, on
Eastern Circuit and at the Surrey Sessions. Mr. Baggallay was secretary or before the 30th of July, 1886, the sum of £1,596, income of the trust to the Boston Election Commission in 1875, and to the Sandwich Election estate received by him. And it was further ordered that the costs of D. Commission in 1880, and he was formerly a revising barrister. He has and of 8. should be taxed, and that D. should be at liberty to retain his been M.P. for the Brixton Division of the borough of Lambeth in the own costs and those of s., when taxed, out of a sum of £660 (capital Conservative interest since November, 1885. 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 elected a Member of the Court of Common Council as a representative
Mr. WILLIAM John Foster, solicitor, of 21, Birchin-lane, has been the balance of the £660 into court. forming part of the trust estate, which had been paid off, and received by of the Ward of Cornhill. the solicitors of D., and it was in their hands, they having retained it on Mr. EDWARD Lee, solicitor, of 1, Basinghall-street, has been elected a account of their costs in relation to the trust estate. D. made default in Member of the Court of Common Cour cil as a representative of the Ward paying the $1,596 into court, and the costs were not taxed under the order. of Bassishaw. Some of the beneficiaries applied that, notwithstanding the order on further consideration, and the non-taxation' of the costs, the solicitors might be Mr. Frederick Mead, barrister, has been appointed Junior Prosecuting ordered to pay the £660 into court, with interest from the date of their Counsel to the Treasury at the Central Criminal Court in succession to receiving it.
Mr. Montagu Williams, who has been appointed a metropolitan police NORTH, J., ordered this to be done. He said that the strict form of magistrate. Mr. Mead was called to the bar at the Middle Temple in order against a trustee, who had money belonging to the trust in his hands, Trinity Term, 1869. He is a member of the South-Eastern Circuit, and was that he should pay into court, and that his costs should afterwards he has been for several years prosecuting counsel to the Treasury at the be taxed and paid out of it. The order in this case was made, not in the
Middlesex Sessions. ordinary form, on a representation which had turned out not to be true (though it was made with perfect bona fides), that the trustee would pay to the Irish Incorporated Law Society. Mr. Fleming was called to the
Mr. FREDERICK FLEMING, barrister, has been appointed Professor of Law in the £1,596 at once. This being so, he thought that there was jurisdic- bar at Dublin in 1877. tion now 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, Mr. Oswald HARDY, barrister, has been appointed Junior Prosecuting being in default, could not be entitled to receive any costs out of the Counsel to the Post Ómce on the Northern Circuit, in succession to Mr. trust fund until he had made good his default. A solicitor who was Thomas Whittenbury Wheeler, Q C. Mr. Hardy was called to the bar employed by a trustee in matters relating to the trust estate was com at Lincoln's-inn in January, 1880. monly said to be the solicitor to the trust estete. That, however, was not a correct expression. The solicitor had no retainer from the trust
Mr. JOSEPH McGUIRB, solicitor, deputy town clerk of the borough of estate. His retainer was from the trustee personally, and he was entitled Oldham, has been elected Town Clerk of the City of York, in succession to look to him only for payment of his costs. He had no claim against or
to Mr. Joseph Wilkinson, resigned. lien upon the trust estate for his costs. That was the general rule, though Mr. James Forrest Fulton, barrister, M.P., has been appointed there were some exceptions. The solicitor might, for instance, have Prosecuting Counsel to the Treasury at the Middlesex Sessions, and not at obtained a statutory charging order in respect of costs incurred in the the Central Criminal Court as previously stated. 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
PARTNERSHIPS DISSOLVED. property. The trustee himself, however, had a right to be indemnified ont of the trust estate against his costs and charges and expenses properly HERBERT WILLIAM DIBBEN and HERBERT EDWARD BOYLE, solicitors incurred, including the costs of employing a solicitor, and the solicitor e pould get the benefit of that right or charge, but only through the right (Dibben & Boyle), 17, Essex-street, Strand, London. Dec. 16.
Join HAWKES WoodWARD, and ARTHUR EDWARD BAINES, solicitors than the trustee himself did. If the trustee himself would have been |(Hawkes Woodward & Baines), Birmingham. Nov. 19. The business ordered to pay trust money into court without any deduction for his costs, will be henceforth carried on by the said John Hawkes Woodward alone. the solicitor, if he had retained the money, must equally pay it into court
[Gazette, Dec. 24.]