« PreviousContinue »
the work performed by the chancery taxing masters ; but from the answer to that question, I am able to extract another proof of the
CASES OF THE WEEK. need of the additional master; and it is in the admission that “there is no difficulty in obtaining appointments for the taxation for any Re CLOUGH, THE BRADFORD COMMERCIAL JOINT STOCK bill within a month of the application."
BANKING CO. v. CURE-C. A. No. 2, 16th February. As there are eight masters and appointments can be given in a R. S. C., 1883, LVIII., 15-APPEAL-SecuritY FOR Costs-Costs or month, it follows that there is at all times eight months' work for
APPEAL ALREADY INCURRED. another master to perform. If we deduct the legal holidays, we shall
This was an original motion that an appellant might be ordered to give find that the legal year is a little over nine months in duration ; and, security for the costs of an appeal. The appeal was from an interlocutory therefore, there is, beyond all shadow of doubt, work enough order. The notice of appeal was served on the 8th of February, and the notice for another master; and, if this is so, the non
non-appointment of of motion for security was served on the 10th of February. Both the appeal one must of necessity cause delay to suitors and their solicitors. and the motion were on the paper for to-day, the motion standing first. I want everyone to understand that mean unavoidable delay, There was evidence of the insolvency of the appellant, and also that he not delay for which the masters are responsible. I mean delay had repeatedly changed his solicitors, and that another person, who was a which could, and, I submit, ought, to be prevented by the appoint- man of means and well able to pay the costs, was really instructing the ment I am advocating. The following facts and figures will, I hope, appellant's solicitors. This allegation was not contradicted. In opposiconvince everyone that the appointment, if made, would be a boon tion to the motion it was urged that, as the appeal was actually in the to suitors and a source of increased profit to the revenue :
paper, all the costs must have been already incurred, and that in such a
case it was contrary to the practice to order security to be given. And Re The total fees earned by the seven Chancery Taxing
Indian, Kingston, and Sandhurst Mining Co. (22 Ch. D. 83) and Pooley's Masters, from 1870-1 to 1877-8, was
Trustee v. Whetham (33 Ch. D. 76, 30 SOLICITORS' JOURNAL, 548), were cited Ditto by eight masters, from 1878-9, when Mr. David
as authorities to that effect. son was appointed, to 1881-5, was
£246,156 The Court of APPEAL (COTTON, LINDLEY, and Lopes, L.JJ.) held The average fees earned by the seven masters for the
that security must be given. Cotton, L.J., said that, as a general rule, period aforesaid was per annum.
£30,332 the court would not order security to be given for the costs of an appeal Ditto by each of the seven per annum was
£1,333 when the appeal was in the paper for hearing on the same day as the Ditto by the eight masters, from 1878-9 to 1881-5,
motion for security. It would be unreasonable to order security to be per annum, was.
given after all the costs had been incurred if the respondent had had Ditto by each of the eight, per annum was
an opportunity of applying for security before. But in the present case the The numbers of orders of reference for taxation to the
notice of motion for security had been given as soon as possible; there hod eight masters for the last-mentioned period was
And there was 36,560
been no delay, as there had been in Re Indian, $c., Co.
this additional circumstance, that the appëllant was not the person who Average to each of the eight per annum
was really prosecuting the appeal; it was really being prosecuted by The number of certificates and allocaturs made for the
another person who was a man of substance. Taking this circumstance like period was
32,313 into consideration and also the fact that there had been no delay in apply. The average number per eight masters per annum was. 4,616 ing for security, the order ought to be made. The ordinary rule must not The average number made by, or attributed to each of,
be used to do injustice. Lindley, L.J., concurred. Lopes, L.J., added the eight masters per annum
577 that the absence of delay distinguished the case from Pooley's Trustee v. The number of cases in which no certificates or
Ihetham.-Counsel, Manby; B. Eyre ; Decimus Sturges. SOLICITORS, W. allocaturs was made for the same seven years was
4,247 & J. Flower & Nussey ; Jaques & Co., Vincent & Vincent. Average per annum
RUST v. THE VICTORIA GRAVING DOCK 00.-C. A. No. 2, The last two averages are, to my mind, most important; they
15th February represent the work which the additional master would have to per- Damages-Building Land-FLOOD-INJURY TO Reversion–DIMINUTION IN form. I have shewn the average number of certificates made in each
SELLING VALUE. year by each master to be 577, and there is, on an average, 606 cases, as shewn above, in which no certificates have been made. They
In this case there was a question as to the right of the plaintiff, a land. represent a full year's work.
owner, who had let land on building leases, to recover damages from the The taxing masters make a great profit for the country, and sion by reason of the flooding of the land through the default of the
defendants on account of a diminution in the selling value of his rever. suitors must have the benefit of it, as it comes from their fees. The fees earned by the chancery taxing masters from 1870-1 to of a merely temporary nature, and that damages could properly be given
defendants. Chitty, J., held that the damage done by the flood was not 1884 5 amounted to £488,812, made up thus :
in respect of the depreciation in the value of the ground-rents. By the seven masters to 1877-8
£242,656 The Court of Appeal (Cotton, LINDLEY, and Lopes, L.JJ.) reversed By the eight masters from that year
£246,156 the decision, holding that, it being shewn that there was no permanent The average amount of fees earned per year by the
injury to the houses which would affect the value of the reversion when it seven masters for the period above referred to was . £30,332 fell into possession, and there being no recognized trade or business of And by each of the seven
£4,333 selling ground-rents, the plaintiff was not entitled to any damages in The average amount of fees earned per year by the
respect of the decrease in the selling value of the reversion.-COUNSEL, eight masters from 1878-9 to 1884-5 was
Jeune; Ince, Q.C., and Ashton Cross. SOLICITORS, Gedge, Kirby, & Co.; And by each of the eight
Watson, Son, & Rooin. The salary of a taxing master is £1,500 a year; and the salaries of his two clerks can never exceed £1,000 a year. The total expense EASEMENT-Light-Joint OWNERSHIP-CONVEYANCE WITHOUT Notice Of
BEDDINGTON v. ATLEE-Chitty, J., 8th and 9th February. of all the masters and all their clerks does not exceed £21,000 a year, as may be seen in Whitaker's Almanack. The average of the eight
CONTRACT. inasters' yearly earnings is £35,165, as shewn above, shewing an In this case it appeared that the owner of two plots of land, on one of annual profit of over £14,000 !
which some recently built houses stood and the other of which was vacant, taken very carefully from the judicial statistics, and by which I hope adjacent Houses, and before actual conveyance to the defendant gold painting
If the information which I have given above, and which I have contracted to sell the vacant plot to the defendant; but did not in such they will be tested, does not prove the necessity for, and the propriety conveyed to the plaintiff the other plot and houses thereon together with of, the appointment of an additional taxing master, it is difficult to see what possibly could be considered sufficient evidence for the a lease thereof for an unexpired term granted by the owner previous to that purpose.
JAMES RAWLINSON. of the contract to sell the vacant land to the defendant. The lessee was Upper Holloway, N., Feb. 14.
joined as co-plaintiff. It was contended by the plaintiff that his conver:
ance operated as a conveyance of an easement of light over the defendant's A NEW SCALE OF COSTS,
land, inasmuch as, at the date of such conveyance, the grantor was in law [ To the Editor of the Solicitors' Journal.
the common owner of both plots of land, and that a grantor could not Sir, -The enclosed is a clipping from yesterday's Daily Telegraph. of the defendant's contract, there was no equity. Russell v. Watts (34
derogate from his own grant, and that as he, the plaintiff, had no notice Is it a hoax or a genuine advertisement? If the latter, I much | W. R. 277, 10 App. Cas. 590) was referred to. regret that the advertiser has withheld his name, as otherwise it might have been duly marked in the Law Lists of his professional the grantor had ceased to be the equitable owner of the vacant plot by
CHITTY, J., said that inasmuch as at the date of the plaintiff's conveyance bretbren.
F. H. having contracted to sell it to the defendant, the grant of the ease; Feb. 15. [The following is the advertisement referred to :
therefore the maxim that a grantor could not derogate did not apply. The obtained;" wills proved; writs' issued; actions defended'; money entered into with the defendant by her common owner.--Counsel, Roger £2; leases, transfers, settlements, £3; Chancery claims, £2 ; divorces berent wanted during the unity of ownership and previously to the contract,
case, therefore, in go far as it was that of the freeholder plaintiff failed; recovered. Charges moderate.-Address, Solicitor, Box 4,190, m.tered into xiexander, anadanhanhuney Clan Arthur Watson, Q.O., and F. Postal Department, Daily Telegraph, Fleet-street, E.C.”]
Thompson. SOLICITORS, H. Montagu ; Simpson & Cullingford.
Re THE ROYAL LIVER FRIENDLY SOCIETY, Chitty, J., 11th
The plaintiff also claimeil a judgment (analogous to the personal judg
ment against an individual mortgagor for the mortgage debt) against the February
company for the whole of the debenture debt due to the plaintiff and FRIENDLY SOCIETIES Act, 1875 (38 & 39 Vict. c. 60), s. 22 (D.) AND S. 30 (10) the other persons on whose behalf he sued, so as to enable them to -County Court JURISDICTION—CERTIORARI.
enforce payment of their debt out of chattels of the company which In this case an action was commenced by members of the above
were not comprised in the security. The action came on upon à motion society in the County Court at Liverpool, against the committee of
for judgment upon admissions in the pleadings. management, the secretary, the treasurer, and the trustees of the Royal the other holders of debentures of the same issue were entitled to stand
North, J., inserted in the judgment a deelaration that the plaintiff and Liver Friendly Society for an injunction to restrain the defendants from making what were alleged to be unauthorized payments, and for repay.
as judgment creditors of the company for the amount of principal and in
terest due on the whole of that issue of debentures. And the order extended ment. Amongst the alleged unauthorized payments sought to be restrained were payments of the costs of the syndicate of members appearing on the
the powers of the receiver to all chattels and other property of the comrecent inquiry before the Hon. E. Lyulph Stanley. On January 31 the
pany which could be taken in execution under the judgment. Liberty defendants obtained a rule nisi for a writ of certiorari to issue to transfer Cookson, Q.c., and J. Bradford Theobală; Barlow. Solicitors, Walter
was given to the receiver to put the judgment in force. — Counsel, the proceedings to the High Court of Justice on the ground that the pay. ments had been authorized by the society in general meeting, and that
Webb & Co.; Sutton f Ommanney. difficult questions of law were likely to arise, and that the amount claimed was over £1,800. The plaintiffs shewed cause against the rule, and argued
Re GRIMMETT'S TRUSTS.-North, J., 12th February. that the Friendly Societies Act, 1875, gave an exclusive jurisdiction to Person of UNSOUND MIND Not so FOUND-APPLICATION OF PROPERTY FOR county courts in questions of disputes between a member and the society,
MAINTENANCE-JURISDICTION OF CHANCERY Division. and that the rules of the society incorporated the sections of the Act. The defendants submitted that the sections referred to-namely, section 22,
In this case the court was asked by petition, by the trustee and executor sub-section (d ), and section 30, sub-section 10-merely conferred a per
of a will, who had in his hands a sum of money representing the inmissive right on the county court, and did not oust the jurisdiction of the inquisition) to appoint a quasi-guardian of the lunatic and to give direc
terest under the will of a person of unsound mind (not so found by High Court. CHITTY, J., said that section 30, sub-section 10, was merely permissive, fund in court, and no action had been brought for the administration of
tions for the application of the fund for his maintenance. There was no and so was section 22, sub-section (d.), and that the jurisdiction of the
the testator's estate. High Court was not ousted. It being admitted that if ihe jurisdiction of
NORTH, J., held that under such circumstances the court had no juristhe High Court was not ousted the case was a proper one for certiorari, the rule would be made absolute.-COUNSEL, Romer, Q.C., and Rutherford; Chancery Division to direct the application of the property of a person of
diction to deal with the property of the lunatic. The jurisdiction of the Ralph Neville. SOLICITORS, Gregory, Rowcliffes, & Co.; Brabner & Court, unsound mind for his maintenance existed only when either money Liverpool.
belonging to him was in court or there was some action or other proceed
ing, such as an administration action, which gave the court control over CALLOW v. YOUNG-Chitty, J., 11th February.
his property. As to this In re Tayler (2 D. F. & J. 125) was directly in PRACTICE-ATTACHMENT OR COMMITTAL-R. S. C., 1883, XLIV., 1, 2. point, and such cases as In re Tuer's Will Trusts (32 Ch. D. 39, 30 SoliciIn this case the plaintiff moved for leave to issue a writ of attachment
TORS' JOURNAL, 384), In re Brandon's Trusts (13 Ch. D. 773), and Vane v. against the defendant for breach of an undertaking, such undertaking SOLICITOR, H. Tyrrell.
Vane (2 Ch. D. 124) were distinguishable.- COUNSEL, Chadwick ; Emden. being given in the terms of a notice of motion for an interim injunction restraining him from continuing the acts complained of. The plaintiff did not, by his present notice of motion, ask for attachment or committal,
Re THE COMMERCIAL BANK OF SOUTH AUSTRALIA-North, J., and the defendant took the preliminary objection that attachment was
11th February. not the right remedy and that the plaintiff could not obtain an order for COMPANY-WINDING UP-PRIORITY_PAYMENT OF BILL OF EXCHANGE IN committal on the present notice of motion. In support of the pre
FULL-BILL INTRUSTED TO BANKERS FOR COLLECTION. liminary objection it was argued that there is a distinction between com
This was a claim by the holder of a bill of exchange, which he had mittal and attachment, the latter being the lesser remedy-attachment intrusted to the company (whose head office was in Australia, but who had went to the sheriff, who could, in certain cases, accept bail, whereas a branch office in London) for collection in Australia, to be paid in full, in the committal was a more summary remedy and the party committed had to winding up of the company, out of the assets of the company in England, go to prison at once.
in priority to the other creditors of the company: The bill was paid in CHITTY, J., said that the former distinction between attachment and com- Australia, and the proceeds were remitted with other money to the mittal was that the writ of attachment issued at the instance of the party London omce of the company, but before the claimant was paid the comaggrieved and at his risk, but notice of committal was necessary. Since the rules under the Judicature Acts this distinction had been abolished,
NORTH, J., said that the company were acting as the agents of the and notice was necessary in both cases. There was formerly a further claimant in collecting the bill, and that the ordinary relationship of banker distinction between committal and attachment, the former being the and customer did not exist between them. The applicant was justified in proper remedy for doing a forbidden act, the latter the proper remedy for claiming priority.—Counsel, Cookson, Q.C., and Buckley, Q.C.; C. E. neglecting to do an act ordered to be done. Though for most purposes
Jenkins. SOLICITORS, A. D. Smith f. Eldridge; Edwin Andrew. distinction had been abolished, there were cases in which it would be maintained. The remedy by committal was sometimes more speedy and O'KELLY 4. CALLAGHAN-North, J., 12th February. convenient; for instance, where there was danger of the party in contenıpt leaving the country. As there was this distinction between the two
MORTGAGE-FORECLOSURE-OMISSION TO PROCEED BY SUMMONS-Costs-remedies he should give leave to amend the notice of motion by asking
R. S. C., 1883, LV., 54. (DECEMBER, 1885). for committal.-COUNSEL, Romer, Q.C., and Oswald; Wright Tuylor. This was an action (commenced by writ) by a mortgagee for foreclosure. SOLICITORS, Herbert F. Oddy; P. M. James.
By his writ the plaintiff claimed foreclosure of his mortgage, and also the
appointment of a receiver, but he did not claim a personal judgment MONTAGU ~. LAND CORPORATION OF ENGLAND-Chitty, J., against the mortgagor for the mortgage debt. The defendant did not
12th February R.8 C., 1883, XXI., 6; XXVII., 11–Morion in Default of Defence for judgment in default of appearance. At the hearing the plaintiff's DEFENCE SUBSEQUENTLY PUT IN.
counsel did not ask for the appointment of a receiver.
North, J., said that the plaintiff ought to have proceeded by summons In this case, defendants having obtained leave for further time to put in under rule 5a. of order 55 (30 Solicitors'_JOURNAL, 143), and he should statement of defence, suffered the time to expire, and the plaintiffs moved only allow him the costs of a summons.
He would not allow rule 5a. to under ord, 27, r. 11, for judgment on statement of claim in default of be defeated by the insertion in the writ of a claim for a receiver, when the defence. The defendants being served with notice of motion delivered appointment of a receiver was not really required. —Counsel, Dundas their defence, but did not appear at the hearing of the motion.
Gardiner. SOLICITORS, Slaughter Colegrave. CHITTY, J., being referred to Gibbings v. Strong (32 W. R. 757) and Gill v. Woodfin (32 W. R. 393), said that, although he could not read the defence,
Re WILCOCK-North, J., 10th February. he could not treat it as an absolute nullity. He should give judgment for Sertled Land Act, 1882, s. 38–Trustees of SerTLEMENT the plaintiffs as asked, but should direct the order not to be drawn up for a week, and that the defendants be served with copy of the order on or
PURPOSES OF THE ACT-APPOINTMENT BY Court-VACANCY- JURISDICbefore the 14th (Monday), together with notice of their being at liberty to,
TION TO APPOINT New TRUSTEE. within a week from such service, move the court to discharge the order.
The question in this case was how a vacancy, by resignation, in the Counsel, Romer, Q.O., and D. L. Alexander. SOLICITOR, 1. Montagu.
number of trustees of a settlement appointed by the court for the pure
poses of the Settled Land Act, 1882, was to be supplied. Section 38 of the HOPE . THE CROYDON AND NORWOOD TRAMWAYS CO.
Act provides :-“(1) If at any time there are no trustees of a settlement North, J., 11th February.
within the definition in this Act, or when in any other case it is expediCompany- DEBENTURE-ACTION BY DEBENTURE-HOLDER TO REALIZE Secu
ent, for purposes of this Act, that new trustees of a settlement be RITY--FORM OF JUDGMENT FOR DEBT -
appointed, the court may, if it thinks fit, on the application of the tenant CHATTELS NOT COMPRISED IN SECURITY.
- RECEIVERSHIP EXTENDED
for life, or of any other persons having, under the settlement, an estate This was an action by a debenture-holder, on behalf of himself and in the case of an infant, of his testamentary or other guardian, or next the other holders of debentures of the same issue, by the defendant
friend, appoint fit persons to be trustees under the settlement for purcompany, to enforce the security for the debentures in the ordinary way.
poses of this Act.
(2) The persons so appointed, and the sur
270 vivors and survivor of them, while continuing to be trustees or construction to the other. He did not see how the fact that the benefit trustee, and, until the appointment of new trustees, the personal repre- for the wife was in the Act expressed to be " for her separate use sentatives or representative for the time being of the last surviving or could aid the one construction rather than the other. The cases which continuing trustee, shall, for purposes of this Act, become and be the had been decided upon the construction of similar words in wills did not trustees or trustee of the settlement." In the present case the court had, shew that a mere direction that the parent should take for her separate under section 38, appointed two trustees of a settlement. One of those use pointed to a joint tenancy between her and her children. In the trustees desired to retire, and a summons was taken out asking the court case of such a policy, effected by a husband, it was obvious that the to appoint another trustee in his place. The chief clerk was of opinion children must always be in esse when the proceeds of the policy came into that the continuing trustee could appoint a new trustee under the power existence on the death of the assured. Another consideration was this, given by section 31 of the Conveyancing Act, 1881, and that the applica- section 10 enabled a married woman to effect a policy upon the life of her tion was unnecessary.
husband for her separate use, and, in that case, the separate use would North, J., would not say that the appointment could not be made under operate to protect the fund if she should marry again. And under the the Conveyancing Act, because he might be invalidating the title to land same section a man might effect a policy for the benefit of his wife alone, which depended on appointments so made in other cases. But he was of for her separate use, and in that case also the money would be protected opinion that the court had power, under section 38, to make the appoint- from any future husband she might have. His lordship could see ment, and he thought it safer to do so.-COUNSEL, T. Ribton. SOLICITOR, nothing to indicate that the separate use was not to attach to the share Behrend.
of the wife, whether it was a life interest or a part of the capital, just as
it would to the whole capital, if she alone was the object of the trust. Re SEYTON, SEYTON SATTERTHWAITE_North, J., 14th Section 10 provided also for the appointment of trustees of the policy February.
money, but that did not necessarily indicate that there was to be a con. HUSBAND AND WiFB-Policy for Benefit_OF WIFE AND CHILDREN_tinuing trust. The object was merely to enable the insurance company
to obtain a valid discharge for the money, and to relieve them from CONSTRUCTION-JOINT TENANCY OR LIFE ESTATE WITH REMAINDER
the obligation of seeing to the execution of the trusts. In the present MARRIED Women's ProPERTY Act, 1870, s. 10.
case, whatever the construction of the policy was, the appointment of The question in this case was whether the proceeds of a policy of in, did not think that the Married Women's Property Act of 1882 affected
trustees was necessary, because the children were infants. His lordship surance, effected by a husband on his own life, under the Married
It did, indeed, provide that a man might effect a policy for Women's Property Act, 1870, for the benefit of his wife and children, the benefit of his children only, and it was true that the Legislature belonged after his death to the widow and children as joint tenants, or whether the widow was tenant for life of the whole fund, with remainder had contemplated that the interests of the wife and children might to the children. Section 10 of the Act provided that "a married possibly not be concurrent, but that was not the same thing as saying woman may effect a policy of insurance upon her own life or the life of that, under a trust for the benefit of the wife and children, the inher husband for her separate use, and the same, and all benefit thereof, the policy and the Act of 1870 together, his lordship was of opinion
terests of the wife and children were not to be concurrent. Looking at if expressed on the face of it to be so effected, shall enure accordingly, that the policy operated as a settlement of the money upon the mother, and the contract in such policy shall be valid as if made with an unmarried woman. A policy of insurance effected by any married man on
and those of the children who were living at the death of the father, as his own life, and expressed upon the face of it to be for the benefit of his joint tenants. The decision of Malins, v.c., in Re Mellor's Policy (7 wife or of his wife and children, or any of them, shall ensure and be Ch. D. 200) was really to the same effect, though it seemed to have been deemed a trust for the benefit of his wife, for her separate use, and of his misunderstood, and the report of it was very brief and not very satis
SOLICITORS, Boroman, $ chi dren, or any of them, according to the interest so expressed, and shall factory: --Counsel, G. 4. Watson; Amedrož. not, so long as any object of the trust remains, be subject to the control
Crawley-Boevey. of the husband or to his creditors, or form part of his estate. When the sum secured by the policy becomes payable, or at any time previously, a
Re THE YSTALYFERA GAS CO.–Stirling, J., 27th January. trustee thereof may be appointed by the Court of Chancery, and the Register -RectIFICATION—Lien-TRUSTEE AND CESTUI QUE Trust. receipt of such trustee shall be a good discharge to the office. In the present case a husband, who died in April, 1886, had effected in July,
In this case a question arose as to the right of a company to a lien 1871, a policy for £4,000 on his own life. The policy contained a recitai upon shares registered in the name of a trustee for a debt due to the that he was desirous of assuring his life under the provisions of the Act company from the cestui que trust. The articles of association of the for the benefit of his wife (whose Christian names and surname were
Ystalyfera Gas Co. gave the company a lien on shares held by a shareholder stated) and of the children of their marriage, and it provided that under for debts due to the company by, or on behalf of, such shareholder, the provisions of the Act “ his said wife and the children of their whether the debts were those of such shareholder solely or jointly orbin marriage, whom failing, the heirs, executors, administrators, or assigns of partnership with any other person.” In January, 1885, 150 shares in this the assured, shall be entitled to receive out of the funds of the said company were registered in the name of Joseph Richard Cobb: He was institution at the end of six months after the decease of the assured, the
a trustee of them for another company called “The Ystalyfera Co.," sum of £4,000, but which sum shall not be exigible until three months at
which was entirely distinct from the Ystalyfera Gas Co.” In the remark least after proof shall have been made to the satisfaction of the directors column of the register it was stated that the Ystalyfera Co. was the of the said institution that the event has occurred in respect of which the agreed to sell its interest in the shares to J. R.'Cobb, and in the December trustees for the purpose of receiving the policy money from the inetitu. following it was ordered to be wound up. The Ystalyfera Co. was indebted
to the gas company in a considerable sum, and in May, 1886, the gas the marriage. One of them died in infancy before the date of the policy: caused them to be registered in the name of the Ystalyfera Co. instead
company, with the object of asserting a lien on the shares in question, 1869, died unmarried soon after the death of her father. The four sur- ledge. The present application was by J. R. Cobb for the rectification the mother, as plaintiff, against the trustees and the infants by their behalf of the applicant that J. R. Cobb was the shareholder, for det guardian ad litem, as defendånts, to determine the respective interests of bection 30 of the Companies Act, 1862, the gas company was precluded the parties. North, J., thought it clear that, on either construction, the children lien upon those shares except for a debt due from J. R. Cobbio
from recognizing a cestui que trust; and, therefore, that it should have no regarded; and that the interest of the child who died after the death of shares held by a shareholder for a debt due from that shareholder.ch the father survived, either to the mother and the other surviving children, or to the surviving children. On the construction of the policy taken
was plain that Mr. Cobb was the shareholder. He was registered as such, along, his lordship was of opinion that the mother and children would randum in the register that the Ystalyfera Co. were the beneficial errores authority for that construction, and in Re Adam's Policy (23 Ch. D. 525) no tiene fara debit aduerfrom them. The register must be rectified, and Chitty, J., on an ex parte application, took the same view of the construction of a similar policy under the Act. But he also expressed an
the gas company must pay the costs.-COUNSEL, Warrington and Ashton opinion (without deciding the point) that the effect of the Act and policy
Cross. Solicitors, Blyth, Wilkins, & Co.; Richard White. taken together was to constitute a declaration of an executed trust. lordship felt great difficulty in following this view. It was very important to see what the Act authorized to be done, but it was to the policy itself
Re TUCKER, BOUCHIER v. GORDON-Stirling, J., 10th February. that one would look to find what the assured intended, and, as might have
Will-CONSTRUCTION-LIFE INTEREST DURING
WIDOWHOOD--CHILDREN been expected, section 10 referred to the policy for the expression of what
LIVING AT DEATH OF TENANT FOR LIFE-CLASS WHEN ASCERTAINABLE. two constructions, the one within, and the other nok within the powers of upon the will of the Tate Walter Tucker, as to when the class of children, true construction, alone must be looked at, and that its construction was not affected by the Bouchier during her life or until she should marry again, and immediatena
Buť beyond that his lordship Ehought that the policy directed this trusteds to incest mes, 000and to pay the income to Mrs fately lead together as one declaration of trust, his lordship pould not be sent to afpen heusde condivides the samericality between the children & share ianguage of the set. But even if the Act and the policy Hotele last time the Bfter hier decrease or second marriage to stand "Possessed of the said fame. mainder to the children. Either that mode of provision or wat hjoint Bike hier The testator died on the hedh hof Fury, 1874, leaving his wridente menianey would have been equally within the Act, and a prison his Loráship and six children surviving mone of the Children died in 1878, am intant did not see how the Act could supply any reasons for preferring the on and unmarried. The wiđów married again in 1886. The five surviving
children, who were all of age, then applied to the trustees to divide the veyed away the whole of the undertaking and assets of the company. It fund. The trustees declined to do so without the sanction of the court, therefore infringed the rights of the debenture-holders, and they were on the ground that the class of children entitled could not be ascertained entitled to have the property preserved until the trial as much as if the until the death of the testator's widow.
company had been ordered to be wound up. The plaintiff would have STIRLING, J., held reluctantly, following Bainbridge v. Cream (16 Bear. been entitled to have had a receiver and manager appointed, and à 25) and Stanford v. Stanford (35 W. R. 191), that the class must be deter. fortiori he was entitled to the less relief which he now asked.--Counsel, mined at the death or second marriage of the testator's widow which Hastings, Q.D. and Dauney ; Pearson, Q.C., and Elgood ; Buckley, Q.O. should first happen ; and therefore that the testator's widow having SOLICITORS, Carter & Bell; Powell & Burt ; Freshfield & Williams. married again the fund was now divisible.-Counsel, Robinson, Q.C., and Tanner; Hastings, Q.O., and Tanner : Buckley, Q.C., and E. Ford. INGHAM ~. WALKER; ELLWOOD, CLAIMANT-Q. B. Div., 11th SOLICITORS, Finis & Wylie ; McArthurs ; Mead & Daubeny.
INTERPLEADER-IDENTITY OF THE SUBJECT-MATTER OF THE CLAIMS.
The defendant, who was an auctioneer, sold by auction a horse belonging
to the plaintiff for £40. The horse was described in the particulars of The question in this case was whether service of a petition could be sale as being sound. The purchaser subsequently discovered that it was directed upon respondents out of the jurisdiction. Seven of the respond - not sound, and threatened the auctioneer with an action for misrepresentaents to the petition were resident in Scotland, and leave was asked to tion. The vendor, being unable to get the purchase-money from the serve them with it in Edinburgh and Aberdeen. The petition was for the auctioneer, commenced this action for money received for his use.
Tho distribution of a fund in court and payment oat to the persons entitled. defendant asked for leave to interplead. A master made an interpleader Order 11 of the Rules of the Supreme Court, 1883, makes no provision as order ; but it was set aside by Field, J. The defendant appealed. It to the service of a petition out of the jurisdiction.
was argued on his behalf that the right to an interpleader order was not STIRLING, J., held, following a decision of Kay, J., in Colls v. Robins (30 barred by the fact that the two claims were not co-extensive. The SOLICITORS' JOURNAL, p. 550, W. N., 1886, p. 111), that in the case claimant had made an affidavit that he was about to bring an of a petition simply dealing with the distribution of a fund, the action, which would be either for breach of warranty or for miscourt might direct the petition to be served upon respondents out of the representation. In either case the responsibility would really lie on jurisdiction, not with the view of effecting a formal service, but by way of the vendor. Therefore it was a matter which ought to be fought out giving them information that the petition was pending.-Counsel, Stokes, between the vendor and the vendee. Crawshay v. Thornton (2 My. & Cr. 1), Mac Swinney, and Ingle Joyce. SOLICITORS, Arnold g Co, Simpson & Co., and Best v. Hayes (1 H. & C. 718,11 W. R. Dig. Com. Law, 71), Attenborough v. Linklater.
St. Katharine's Dock Co. 26 W. R. 583, 30. P. D. 450), and Wright v.
Freeman (48 L. J. Q. B. 276, 27 W. R. Dig. 101), were cited. Re HILLEARY AND TAYLOR-Stirling, J., 15th February. The Court (Lord COLERIDGE, C.J., and POLLOCK, B.) held that the PARTY AND PARTY Costs—SHORTHAND NOTES BEFORE THE TAXING MASTER
order of Field, J., was right, and dismissed the appeal. Lord COLERIDGE, -Costs of SHORTHAND NOTES.
C.J., said that the two claims here were different in their nature. The
claim of the vendor against the auctioneer was for money received on his In this case it had been referred to the taxing master to tax, as between behalf. The claim of the purchaser against the auctioneer, if there was party and party, certain bills of costs. The taxation was objected to on
any such claim, which his lordship did not at present see, was of a the following point, among others. His taxing master, having to hear different sort-viz., for damages for misrepresentation in the sale of a vicâ voce evidence to determine certain questions arising upon the taxation, horse. It was true a jury might assess the damages at the same sum as informed the parties that he intended to rely upon the shorthand notes of the vendor claimed. But the identity of the sums could not affect the this evidence. The taxing master, in taxing the costs of the taxation, difference in the nature of the claims. POLLOCK, B., said that the case did allowed certain costs in respect of the shorthand notes, those upon which not come within order 57, the words of which shewed that the subjectcosts were disputed, with the exception of certain incidental discussions matter of the two claims must be the same. The rules had been carewhich could not be severed from the note without great difficulty, related fully drawn, and after great consideration. And rule 1 (a.) spoke of a exclusively to evidence. It was objected that the taxing master had no person under liability for any debt, money, goods, or chattels.' The word power to allow anything in respect of the shorthand notes.
damages” had been intentionally left out. In Attenborough v. St. STIRLING, J., said that, both by the ordinary practice of the court and Katharine's Dock Co. there was no difficulty on this point. There the under ord. 65, r. 25, of the Rules of the Supreme Court, the taxing mister only difficulty was that there might be a claim for damages for detention had power to cause witnesses to be examined before him. Acting in pur. over and above the demand for the goods. But the main subject-matter suance of the order to tax, he had eventually proceeded to tax the costs of of the whole contest was specific goods.—Counsel, Lumley Smith, Q C., the taxation itself, and, in doing so, had allowed part of the expenses of and Statham ; Yarborough Anderson. SOLICITORS, Ridsdale $ Son; J. H. the shorthand notes. Of course, if he had been taxing, costs as between Bridgford, for W. H. Boocock, Halifax. party and party, and the judge at the trial bad given no direction allowing the cost of a shorthand note relating to the proceedings at the trial, the allowance by the taxing master would have been erroneous; but SHEFFIELD WATERWORKS CO. v. GUARDIANS OF SHEFFIELD that was not the point in this case.
UNION-Q. B. Div., 7th February. It was most important that the discretion of the taxing master in cases like the present should not be FORM OF SPECIAL CASE ON APPEAL FROM QUARTER SESSIONS. fettered; while it is true that it was his duty (as it was the duty of any judge of fact) to take notes of the evidence ; cases must arise in which
This was an ex parte application for an order that a special case stated
on an appeal from quarter sessions might be entered at the Crown Office. that duty was superseded by that of watching the demeanour of the The case had been stated by the Recorder of Sheffield after the hearing witnesses, it was then his duty to have a note taken for him. Under the of an appeal brought by the Sheffield Waterworks Co. against circumstances of the present case he overruled the objection.—Counsel, certain poor rates which had been made upon them by the overseers of Pearson, Q.C., and Normandy ; Hastings, Q.O. Solicitors, R. J. Gooch; the poor for the townships of Sheffield, Brightside-Bierlow, and AtterR. Metcalfe.
cliffe-cum-Darnall. By the valuation list, upon which the rates appealed
against were made, the appellants were assessed at the total sum of HUBBUCK v. HELMS-Stirling, J., 14th February.
£10,360, rateable value. The recorder allowed the appeal with respect COMPANY-DEBENTURES-FLOATING SecuritY-ASSIGNMENT BY THE Com.
to the rates laid for the townships of Sheffield and Brightside-Bierlow,
and reduced them, and dismissed the appeal with respect to the rate laid PANY OF ITS UNDERTAKING AND Assets--PRIORITY.
for the township of Attercliffe-cum-Darnall. The effect of the recorder's This was a motion for an injunction to restrain the defendant from decision was that the total rateable value was reduced to £6,520. The selling or parting with certain business premises, effects, and good case set forth the contentions of the appellants and the respondents on will which had been assigned to him for value by the Polychromatic five points, which had been raised, and the decision of the recorder on Simultaneous Printing Co. (Limited), by an indenture dated the 17th of each of them. The Court was then asked to give its opinion whether
If November, 1886. The property assigned by that deed comprised, in fact, the recorder was right in holding as he did on the five points. the whole of the undertaking and assets of the company. The plaintiff the court should be of opinion that the
several decisions were was a debenture-holder of the company.
Each debenture contained a right, then the order of quarter sessions was to be affirmed. The case charge by the company upon their undertaking of the principal money then proceeded, in five paragraphs, to deal with the five decisions, and interest thereby secured pari passu with the other debentures secured stating in respect of each of them that, if the court shall be of opinion or to be secured by that issue. The defendant had notice of these deben that the recorder was wrong, the gross estimated rentals and the net tures when he executed the deed of the 17th of November, 1886. Shortly rateable values of the appellants' property in the three townships were to after the execution of that deed the company was ordered to be wound be reduced by such and such sums.
The Crown Office refused to enter up. By the writ in the action the plaintiff claimed a declaration that the the case for appeal, on the ground that the alternative form in which it alleged sale was invalid as against the debenture-holders.
was stated was objectionable, and that the only proper way of framing STIRLING, J., said that the case was not precisely covered by authority. the case was, after saying that, if the court should be of opinion that the Debentures of the kind in question constituted a floating security on the several decisions were right, the order of quarter sessions was to be holders any right to interfere with any dealing by the company with its opinion that the several decisions above-mentioned were wrong, then the interest fell into arrear, or the company came to be wound up, or (as his tion, that the case was drawn in the most convenient way, and that it was lordship thought) ceased to be a going concern, the debenture-holders not open to the objections stated by the Court of Queen's Bench in were entitled to have the then assets of the company realized and a London and North-Western Railway Co. v. Sulton Coldfield (22 W. R. 324, 9 receiver appointed. The deed of the 17th of November, 1886, was not Q. B. 153), as the recorder had not asked questions for the purpose of executed in the ordinary course of the business of the company, for it con- ! dealing with the court's answers, but, on the contrary, the case had left
the quarter sessions for good. Further, if the Crown Office were right in paid until six months after it becomes due. I think it is a matter of their contention as to what was the only proper form, the result would be grace that the landlord has allowed the tenant to pay the rent at a later that, if the appellants were right on any of the points on which the period than that at which he was legally entitled to demand it and to recorder decided against them, the assessment of £6,620 would be quashed distrain for it. I do not think you can imply from any such course of and the assessment of £10,360 would revive. Or, in other words, if they dealing an agreement which would have the effect of altering the terms won their appeal, they would be in a worse position than if they lost it. of the deed. I think there would be nothing to preclude the landlord
Tue Court (Lord COLERIDGE, C.J., and Grove, J.) refused the appli- from distraining for the half-year's rent which became due on the 11th of cation. It had been held that inferior courts could not ask this court November, 1886. I do not think the effect of the proviso is to take away questions simply. Whether this were convenient or not, it had been the from the landlord the common law right which he would otherwise have practice from the time of Lord Ellenborough, and had become inveterate. had to distrain for the rent which became due on the 11th of November, That the court ought not to entertain this case was clear from the language 1886. Judgment will therefore be for the defendant.-Counsel, Strachan. of Blackburn, J., in the Sutton Coldfield case :-"This court has not in Solicitor, Gibsons, Hexham; Dees Thompson, Newcastle. ger eral any jurisdiction to review the decision of the court of quarter sessions on any matter in which that court had jurisdiction. Nor will it There were two misprints of names of cases cited in the report of take any notice of a case reserved by the sessions on the trial of an indict Re Lea, Lea v. Cooke (ante, p. 254). For Welch v. Cohen (16 Ves. 206) ment: R. v. Salop (13 East, 95). But there is an exception from that read Waldo v. Caley, and for Fird v. The Earl of Suffolk (2 Ny. & K. 59) general rule in cases where the court of quarter sessions on appeal makes read Horde v. The Earl of Suffolk. an order either confirming or reversing the decision appealed against, subject to the opinion of this court on some point of lan reserved on a case stated by the sessions. This court will then, on a certiorari bringing up the order of sessions, take cognizance of the facts stated in the case, and quash or confirm the order of sessions according to their view on the points of law submitted to them by the sessions." Here the court had no
LAW STUDENTS' SOCIETIES. jurisdiction to alter the rate; they could only either confirm it or quash it.-Counsel, Ogle. SOLICITOR, H. A. Maude, for B. P. Broomhead,
Law Students' DEBATING SOCIETY.-Feb. 8-Chairman, Mr. Wilmot E. Sheffield.
Elmslie.—The motion for debate was, “That the case of Vilmont v.
Wheeler opened in the affirmative, being supported by Messrs. W. FAIRLAMB AND OTHERS v. BEAUMONT-Hexham County Court, Woolcombe, J. Gray, and W. Aysom. After Mr. Wheeler had replied,
Mackenzie and Hawtin, and opposed by Messrs. C. S. Magee, W. Y. 11th February
the chairman gummed up and put the motion to the society, when there AGRICULTURAL HOLDINGS Act, 1883, s. 44-DISTRESS FOR MORE THAN ONE voted for the affirmative 5, and for the negative 11. The motion was YEAR's RexT.
thereupon declared to be lost. There were 33 members present. The question in this case was as to the construction of section 44 of the
Feb. 15 -- Chairman, Mr. Ernest Todd. — The motion upon the Agricultural Holdings (England) Act, 1883. The facts were admitted. paper for discussion was, “Is it desirable to place further restric. The plaintiff took the farm of Coalpits from the defendant as yearly tions on the formation of limited companies, and ought not all tenant from the 13th of May, 1874, at the yearly rent of £230, subse
(real or assumed) to be compulsorily registered ?" Mr. quently reduced to £180 103. By the agreement of tenancy, which was
F. K. Munton (of the firm of Munton & Morris) opened the debate in under seal, it was provided that the rent should be paid by two equal the affirmative. Mr. John Indermaur opposed. The following gentlemen payments on the 11th of November and the 13th of May, and the first spoke in the affirmative :-Messrs. T. H. Richmond, Levis Biden, and W. payment was to be made on the 11th of November, 1874 By the Wallis; and in the negative: - Messrs. T. H. Bower and D. Stewart ordinary course of dealing between the plaintiff and defendant, the Smith. After Mr. Munton had replied, the chairman put the motion to payment of the rent was allowed to be deferred until after the expiration the society in two parts, when the first part was carried by a majority of of a half-year after it became due by the agreement under seal; there. 12. votes, and the second part lost by a majority of 8 votes. There were fore the plaintiff did not make his first payment of rent until after the thirty-five members present. 13th of May, 1875. This course continued down to November, 1886. On LIVERPOOL Law Students' AssoCIATION.- Feb. 7-Chairman, Mr. J. H. the 11th of November, 1886, the plaintiff having got a further half-year Kenion. The following was the subject for discussion :--"In the year into arrear, there was due, according to the terms of the deed, three half-years' rent-namely, that due on the 11th of November, 1885, 13th ordinary form, and contained the usual covenant by the mortgagor to
1860 A. mortgaged a freehold house to X. The mortgage deed was in the of May, 1886, and the lith of November, 1886. On the 28th of December, repay the principal and interest. A. continued to pay the interest regui: 1886, the defendant distrained for, and was paid, £270 58., the amount of larly up to 1865. In that year he assigned his equity of redemption to these three half-years' rents. The plaintiff brought this action to recover his son B. No interest was ever paid or acknowledgment given by B. to £90 53.-half-year's rent improperly distrained for on the ground that the mortgagee, but A.. the father, continued to pay the interest up to the the defendant could not make a distress for rent due more than a year date of his death in 1886. In 1887 the mortgagee brings a foreclosure before making the distress, and that if, under the proviso to the 44th section, the defendant could, by reason of the ordinary course of dealing 3 & 4 Will. 4, c. 27; 7 Will. 4 & 1 Vict. c. 28 ; 37 & 38 Vict. c. 57). Ja
action against B., and B. sets up as a defence the Statutes of Limitation between the plaintiff and defendant, include in his distress the rent due by the deed on the 11th of November, 1885, he could not include that in the affirmative, and Mr. Dobell in the negative. Messrs. Bromfield,
the mortgagee entitled to succeed in his action?" Mr. Bagshaw opened due by the deed on the 11th of November, 1886, because the ordinary Thornely, Brotherton, Wright, Lloyd, Forshaw, and Inglis supported the ment of such rent to be deferred until after the expiration of a half-year having replied, the chairman summed up, and, on the question being put after the 11th of November, 1886, and, therefore, it must, as provided by to the meeting, it was carried in the affirmative by a majority of 14. There section 44, be deemed to become due at such deferred period - namely, were 42 members present. the 13th of May, 1887, and not at the 11th of November, 1886, and, therefore, in any case, under the circumstances, the defendant could not Preston Law Debating Society.-Feb. 4-Chairman, Mr. J. W. Higson, distrain for more than one year's rent.
solicitor.–Four legal queries were discussed. A debate then took place Judge Holl, in giving judgment, said : -The intention of the Legis- on the following case : "A., an agent of the C. Life Assurance Co calls lature may have been that the landlord should not recover more than a year's rent. But I think the effect of the section, under the circum- no insurable interest in his father's life, but A. tells B. that he may law. stances of the present case, is such that there is nothing to prevent the fully effect the insurance. Subsequently, and before his father's death, 44th section does not say that the landlord cannot recover, by distress, the company. Can B. recover the premiums he has paid upon the more than one year's rent; it only says he cannot make a distress for policy ?: Drummond v. Decy (1 Esp. 152), Smith v. Bickmore (4 Taunt: 477) It is admitted that there has been a custom that the rent should not be affirmative, and was supported by Messrs. s. Simpson and C. T. Taylor: paid until a half-year after the rent became due under the terms of the Messrs. J. J. Rawsthorne, J. Cookson, and A. Bush opposed. The chairdeed, and the rent which was thus due on the 11th of November, 1885, man briefly summed up and put the question to the jury, when they does not, for the purposes of the section—that is to say, for the purposes returned a verdict in the affirmative by a majority of 1. of the limitation arising under that section-become due until the 13th of May, 1886 ; and, in the same way, the rent which became due on the Feb. 11-Chairman, Mr. W. T. Smith, solicitor.-A discussion took place 13th of May, 1886, did not become due, for the purposes of the limitation arising under the section, until the 11th of November, 1886. Therefore of the profession is desirable." Messrs. R. Parkinson and G. Cartwright
on the following motion : -"That the amalgamation of the two branches there is no dispute with regard to these two half-year's rents which the supported the motion ; Messrs. J. Bell, W. Breakell, and A. W. Ladyman landlord was entitled to distrain for, it being rent fhiches undiets the opposed the motion. The chairman summed up the arguments add uced terms of the proviso, became due within twelve months before the making
on each side and put the question to the jury, when the motion was lost of the distress. The whole point turned upon whether or not there is by a majority of 3. which became due under the terms of the deed on the 11th of November, a discussion on the decision in res parte Stanford, Re Barber, by moving
United Law Students' Society.-Feb. 14–Mr. Eustace Smith opened 1886. Mr. Strachan contends that, by the custom of the parties, the rent not having been actually paid until six months after the time when it
"That the decision of the full Court of Appeal in this case was wrong;
Mr. Batchelor opposed. The opener was supported by Messrs. Moyle for it until after the time it is customary to pay it. I do not think the landlord is so precluded because of the custom that the rent is not to be summed up. The motion was carried by two votes.
After Mr. Smith had replied,' the chairman shortly