Page images
PDF
EPUB
[ocr errors]

CASES OF THE WEEK.

the work performed by the chancery taxing masters; but from the answer to that question, I am able to extract another proof of the 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."

As there are eight masters and appointments can be given in a month, it follows that there is at all times eight months' work for another master to perform. If we deduct the legal holidays, we shall find that the legal year is a little over nine months in duration; and, therefore, there is, beyond all shadow of doubt, work enough for another master; and, if this is so, the non-appointment of one must of necessity cause delay to suitors and their solicitors. I want everyone to understand that I mean unavoidable delay, not delay for which the masters are responsible. I mean delay which could, and, I submit, ought, to be prevented by the appointment I am advocating. The following facts and figures will, I hope, convince everyone that the appointment, if made, would be a boon to suitors and a source of increased profit to the revenue : The total fees earned by the seven Chancery TaxingMasters, from 1870-1 to 1877-8, was Ditto by eight masters, from 1878-9, when Mr. Davidson was appointed, to 1884-5, was The average fees earned by the seven masters for the period aforesaid was per annum.

[ocr errors]
[ocr errors]

£242,656

.

£246,156

Ditto by each of the seven per annum was
Ditto by the eight masters, from 1878-9 to 1884-5,

£30,332 £4,333

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

£35,156 £4,395

The numbers of orders of reference for taxation to the eight masters for the last-mentioned period was Average to each of the eight per annum

36,560 5,222

The average number per eight masters per annum was. The average number made by, or attributed to each of, the eight masters per annum

The number of certificates and allocaturs made for the like period was

32,313 4,616

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

577

The number of cases in which no certificates or allocaturs was made for the same seven years was 4,247 Average per annum 606 The last two averages are, to my mind, most important; they represent the work which the additional master would have to perform. I have shewn the average number of certificates made in each 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 represent a full year's work.

The taxing masters make a great profit for the country,

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

BANKING CO. v. CURE—C. A. No. 2, 16th February.

R. S. C., 1883, LVIII, 15-APPEAL-SECURITY FOR COSTS-COSTS OF APPEAL ALREADY INCURRED.

This was an original motion that an appellant might be ordered to give security for the costs of an appeal. The appeal was from an interlocutory order. The notice of appeal was served on the 8th of February, and the notice of motion for security was served on the 10th of February. Both the appeal and the motion were on the paper for to-day, the motion standing first. There was evidence of the insolvency of the appellant, and also that he had repeatedly changed his solicitors, and that another person, who was a man of means and well able to pay the costs, was really instructing the appellant's solicitors. This allegation was not contradicted. In opposition to the motion it was urged that, as the appeal was actually in the 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 Indian, Kingston, and Sandhurst Mining Co. (22 Ch. D. 83) and Pooley's Trustee v. Whetham (33 Ch. D. 76, 30 SOLICITORS' JOURNAL, 548), were cited as authorities to that effect.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) held that security must be given. COTTON, L.J., said that, as a general rule, the court would not order security to be given for the costs of an appeal when the appeal was in the paper for hearing on the same day as the motion for security. It would be unreasonable to order security to be given after all the costs had been incurred if the respondent had had an opportunity of applying for security before. But in the present case the notice of motion for security had been given as soon as possible; there had been no delay, as there had been in Re Indian, &c., Co. And there was this additional circumstance, that the appellant was not the person who was really prosecuting the appeal; it was really being prosecuted by another person who was a man of substance. Taking this circumstance into consideration and also the fact that there had been no delay in apply. ing for security, the order ought to be made. The ordinary rule must not be used to do injustice. LINDLEY, L.J., concurred. LOPES, L.J., added that the absence of delay distinguished the case from Pooley's Trustee ▼. Whetham.-COUNSEL, Manby; B. Eyre; Decimus Sturges. SOLICITORS, W. & J. Flower & Nussey; Jaques & Co.; Vincent & Vincent.

RUST. THE VICTORIA GRAVING DOCK CO.-C. A. No. 2, 15th February.

DAMAGES-BUILDING LAND-FLOOD-INJURY TO REVERSION-DIMINUTION IN

SELLING VALUE.

owner, who had let land on building leases, to recover damages from the defendants on account of a diminution in the selling value of his rever

In this case there was a question as to the right of the plaintiff, a land

sion by reason of the flooding of the land through the default of the defendants. Chitty, J., held that the damage done by the flood was not of a merely temporary nature, and that damages could properly be given in respect of the depreciation in the value of the ground-rents.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) reversed the decision, holding that, it being shewn that there was no permanent injury to the houses which would affect the value of the reversion when it fell into possession, and there being no recognized trade or business of selling ground-rents, the plaintiff was not entitled to any damages in respect of the decrease in the selling value of the reversion.-COUNSEL, Jeune; Ince, Q.C., and Ashton Cross. SOLICITORS, Gedge, Kirby, & Co.; Watson, Son, & Room.

CONTRACT.

The salary of a taxing master is £1,500 a year; and the salaries BEDDINGTON v. ATLEE-Chitty, J., 8th and 9th February. of his two clerks can never exceed £1,000 a year. The total expense EASEMENT-LIGHT-JOINT OWNERSHIP CONVEYANCE WITHOUT NOTICE CF 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 masters' yearly earnings is £35,165, as shewn above, shewing an annual profit of over £14,000 !

[blocks in formation]

In this case it appeared that the owner of two plots of land, on one of which some recently built houses stood and the other of which was vacant, contracted to sell the vacant plot to the defendant; but did not in such adjacent houses, and before actual conveyance to the defendant sold and contract reserve any rights as to the passage of light to the windows of the conveyed to the plaintiff the other plot and houses thereon together with all lights, &c., belonging thereto, but subject, as to one of the houses, to a lease thereof for an unexpired term granted by the owner previous to that of the contract to sell the vacant land to the defendant. The lessee was joined as co-plaintiff. It was contended by the plaintiff that his conveyance operated as a conveyance of an easement of light over the defendant's land, inasmuch as, at the date of such conveyance, the grantor was in law the common owner of both plots of land, and that a grantor could not derogate from his own grant, and that as he, the plaintiff, had no notice of the defendant's contract, there was no equity. Russell v. Watts (34 W. R. 277, 10 App. Cas. 590) was referred to.

CHITTY, J., said that inasmuch as at the date of the plaintiff's conveyance the grantor had ceased to be the equitable owner of the vacant plot by having contracted to sell it to the defendant, the grant of the easement of light could not be implied from any unity of ownership, and therefore the maxim that a grantor could not derogate did not apply. The but it was otherwise with the claim of the lessee co-plaintiff, as his lease had case, therefore, in so far as it was that of the freeholder plaintiff failed; been granted during the unity of ownership and previously to the contract entered into with the defendant by the common owner.-COUNSEL, Romer, Q.C., D. L. Alexander, and L. Raphael; Sir Arthur Watson, Q.C., and F. Thompson. SOLICITORS, H. Montagu; Simpson & Cullingford.

Re THE ROYAL LIVER FRIENDLY SOCIETY- Chitty, J., 11th
February.
FRIENDLY SOCIETIES ACT, 1875 (38 & 39 Vict. c. 601, s. 22 (D.) AND s. 30 (10)

-COUNTY COURT JURISDICTION-CERTIORARI.

In this case an action was commenced by members of the above society in the County Court at Liverpool against the committee of management, the secretary, the treasurer, and the trustees of the Royal Liver Friendly Society for an injunction to restrain the defendants from making what were alleged to be unauthorized payments, and for repayment. Amongst the alleged unauthorized payments sought to be restrained were payments of the costs of the syndicate of members appearing on the defendants obtained a rule nisi for a writ of certiorari to issue to transfer recent inquiry before the Hon. E. Lyulph Stanley. On January 31 the 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 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 that the Friendly Societies Act, 1875, gave an exclusive jurisdiction to county courts in questions of disputes between a member and the society, and that the rules of the society incorporated the sections of the Act. The defendants submitted that the sections referred to-namely, section 22, sub-section (d), and section 30, sub-section 10-merely conferred a permissive right on the county court, and did not oust the jurisdiction of the High Court.

CHITTY, J., said that section 30, sub-section 10, was merely permissive, and so was section 22, sub-section (d.), and that the jurisdiction of the High Court was not ousted. It being admitted that if the jurisdiction of the 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; Ralph Neville. SOLICITORS, Gregory, Rowcliffes, & Co.; Brabner & Court, Liverpool.

CALLOW v. YOUNG-Chitty, J., 11th February. PRACTICE-ATTACHMENT OR COMMITTAL-R. S. C., 1883, XLIV., 1, 2. In this case the plaintiff moved for leave to issue a writ of attachment against the defendant for breach of an undertaking, such undertaking 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, and the defendant took the preliminary objection that attachment was not the right remedy and that the plaintiff could not obtain an order for committal on the present notice of motion. In support of the preliminary objection it was argued that there is a distinction between committal and attachment, the latter being the lesser remedy-attachment went to the sheriff, who could, in certain cases, accept bail, whereas committal was a more summary remedy and the party committed had to go to prison at once.

CHITTY, J., said that the former distinction between attachment and committal was that, the writ of attachment issued at the instance of the party aggrieved and at his risk, but notice of committal was necessary. Since the rules under the Judicature Acts this distinction had been abolished, and notice was necessary in both cases. There was formerly a further distinction between committal and attachment, the former being the proper remedy for doing a forbidden act, the latter the proper remedy for neglecting to do an act ordered to be done. Though for most purposes the distinction had been abolished, there were cases in which it would be maintained. The remedy by committal was sometimes more speedy and convenient; for instance, where there was danger of the party in contempt leaving the country. As there was this distinction between the two remedies he should give leave to amend the notice of motion by asking for committal.-COUNSEL, Romer, Q.C., and Oswald; Wright Taylor. SOLICITORS, Herbert F. Oddy; P. M. James.

MONTAGU. LAND CORPORATION OF ENGLAND-Chitty, J., 12th February. R.S C., 1883, XXI., 6; XXVII., 11-MOTION IN DEFAULT OF DEFENCE

DEFENCE SUBSEQUENTLY PUT IN.

In this case, defendants having obtained leave for further time to put in statement of defence, suffered the time to expire, and the plaintiffs moved under ord. 27, r. 11, for judgment on statement of claim in default of defence. The defendants being served with notice of motion delivered their defence, but did not appear at the hearing of the motion.

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, he could not treat it as an absolute nullity. He should give judgment for 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 before the 14th (Monday), together with notice of their being at liberty to, within a week from such service, move the court to discharge the order.— COUNSEL, Romer, Q.C., and D. L. Alexander. SOLICITOR, H. Montagu. HOPE. THE CROYDON AND NORWOOD TRAMWAYS CO.North, J., 11th February.

The plaintiff also claimed a judgment (analogous to the personal judgment against an individual mortgagor for the mortgage debt) against the company for the whole of the debenture debt due to the plaintiff and the other persons on whose behalf he sued, so as to enable them to enforce payment of their debt out of chattels of the company which for judgment upon admissions in the pleadings. were not comprised in the security. The action came on upon a motion

NORTH, J., inserted in the judgment a declaration that the plaintiff and the other holders of debentures of the same issue were entitled to stand as judgment creditors of the company for the amount of principal and interest due on the whole of that issue of debentures. And the order extended the powers of the receiver to all chattels and other property of the comCookson, Q.C., and J. Bradford; Theobald; Barlow. pany which could be taken in execution under the judgment. Liberty was given to the receiver to put the judgment in force. - COUNSEL, SOLICITORS, Walter Webb & Co.; Sutton & Ommanney

Re GRIMMETT'S TRUSTS--North, J., 12th February. PERSON OF UNSOUND MIND NOT SO FOUND-APPLICATION OF PROPERTY FOR MAINTENANCE-JURISDICTION OF CHANCERY DIVISION.

In this case the court was asked by petition, by the trustee and executor of a will, who had in his hands a sum of money representing the interest under the will of a person of unsound mind (not so found by inquisition) to appoint a quasi-guardian of the lunatic and to give direc. tions for the application of the fund for his maintenance. There was no fund in court, and no action had been brought for the administration of the testator's estate.

NORTH, J., held that under such circumstances the court had no jurisdiction to deal with the property of the lunatic. The jurisdiction of the Chancery Division to direct the application of the property of a person of unsound mind for his maintenance existed only when either money belonging to him was in court or there was some action or other proceeding, such as an administration action, which gave the court control over his property. As to this In re Tayler (2 D. F. & J. 125) was directly in point, and such cases as In re Tuer's Will Trusts (32 Ch. D. 39, 30 SOLICITORS' JOURNAL, 384), In re Brandon's Trusts (13 Ch. D. 773), and Vane v. SOLICITOR, H. Tyrrell. Vane (2 Ch. D 124) were distinguishable.-COUNSEL, Chadwick; Emden.

Re THE COMMERCIAL BANK OF SOUTH AUSTRALIA-North, J., 11th February.

COMPANY-WINDING UP-PRIORITY-PAYMENT OF BILL OF EXCHANGE IN FULL-BILL INTRUSTED TO BANKERS FOR COLLECTION.

This was a claim by the holder of a bill of exchange, which he had intrusted to the company (whose head office was in Australia, but who had a branch office in London) for collection in Australia, to be paid in full, in the winding up of the company, out of the assets of the company in England, in priority to the other creditors of the company. The bill was paid in Australia, and the proceeds were remitted with other money to the London office of the company, but before the claimant was paid the company had stopped.

NORTH, J., said that the company were acting as the agents of the claimant in collecting the bill, and that the ordinary relationship of banker and customer did not exist between them. The applicant was justified in claiming priority.-COUNSEL, Cookson, Q.C., and Buckley, Q.C.; C. E. Jenkins. SOLICITORS, A. D. Smith & Eldridge'; Edwin Andrew.

O'KELLY. CALLAGHAN-North, J., 12th February. MORTGAGE-FORECLOSURE-OMISSION TO PROCEED BY SUMMONS-COSTSR. S. C., 1883, LV., 5A. (DECEMBER, 1885).

This was an action (commenced by writ) by a mortgagee for foreclosure. 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 against the mortgagor for the mortgage debt. The defendant did not appear to the writ, and the action was set down as a short cause on motion for judgment in default of appearance. At the hearing the plaintiff's counsel did not ask for the appointment of a receiver.

NORTH, J., said that the plaintiff ought to have proceeded by summons under rule 5a. of order 55 (30 SOLICITORS' JOURNAL, 143), and he should only allow him the costs of a summons. He would not allow rule 5a. to be defeated by the insertion in the writ of a claim for a receiver, when the appointment of a receiver was not really required.-COUNSEL, Dundas Gardiner. SOLICITORS, Slaughter & Colegrave.

Re WILCOCK-North, J., 10th February. SETTLED LAND ACT, 1882, s 38-TRUSTEES OF SETTLEMENT FOR PURPOSES OF THE ACT-APPOINTMENT BY COURT-VACANCY-JURISDICTION TO APPOINT NEW TRUSTEE.

The question in this case was how a vacancy, by resignation, in the number of trustees of a settlement appointed by the court for the purposes of the Settled Land Act, 1882, was to be supplied. Section 38 of the Act provides :-"(1) If at any time there are no trustees of a settlement within the definition in this Act, or when in any other case it is expedient, for purposes of this Act, that new trustees of a settlement be for life, or of any other persons having, under the settlement, an estate or interest in the settled land, in possession, remainder, or otherwise, or, in the case of an infant, of his testamentary or other guardian, or next friend, appoint fit persons to be trustees under the settlement for purposes of this Act. (2) The persons so appointed, and the sur

COMPANY-DEBENTURE-ACTION BY DEBENTURE-HOLDER TO REALIZE SECU appointed, the court may, if it thinks fit, on the application of the tenant

RITY FORM OF JUDGMENT FOR DEBT-RECEIVERSHIP CHATTELS NOT COMPRISED IN SECURITY.

EXTENDED

ΤΟ

This was an action by a debenture-holder, on behalf of himself and the other holders of debentures of the same issue, by the defendant company, to enforce the security for the debentures in the ordinary way.

vivors and survivor of them, while continuing to be trustees or trustee, and, until the appointment of new trustees, the personal representatives or representative for the time being of the last surviving or continuing trustee, shall, for purposes of this Act, become and be the trustees or trustee of the settlement." In the present case the court had, under section 38, appointed two trustees of a settlement. One of those trustees desired to retire, and a summons was taken out asking the court to appoint another trustee in his place. The chief clerk was of opinion that the continuing trustee could appoint a new trustee under the power given by section 31 of the Conveyancing Act, 1881, and that the application was unnecessary. NORTH, J., Would not say that the appointment could not be made under the Conveyancing Act, because he might be invalidating the title to land which depended on appointments so made in other cases. But he was of opinion that the court had power, under section 38, to make the appointment, and he thought it safer to do so.-CoUNSEL, T. Ribton. SOLICITOR, Behrend.

Re SEYTON, SEYTON v.

construction to the other. He did not see how the fact that the benefit for the wife was in the Act expressed to be "for her separate use could aid the one construction rather than the other. The cases which had been decided upon the construction of similar words in wills did not shew that a mere direction that the parent should take for her separate use pointed to a joint tenancy between her and her children. In the case of such a policy, effected by a husband, it was obvious that the children must always be in esse when the proceeds of the policy came into existence on the death of the assured. Another consideration was this, section 10 enabled a married woman to effect a policy upon the life of her husband for her separate use, and, in that case, the separate use would operate to protect the fund if she should marry again. And under the same section a man might effect a policy for the benefit of his wife alone, for her separate use, and in that case also the money would be protected from any future husband she might have. His lordship could see nothing to indicate that the separate use was not to attach to the share 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. SATTERTHWAITE-North, J., 14th Section 10 provided also for the appointment of trustees of the policy

February.

HUSBAND AND WIFE-POLICY FOR BENEFIT OF WIFE AND CHILDrenCONSTRUCTION-JOINT TENANCY OR LIFE ESTATE WITH REMAINDERMARRIED WOMEN'S PROPERTY ACT, 1870, s. 10.

The question in this case was whether the proceeds of a policy of insurance, effected by a husband on his own life, under the Married Women's Property Act, 1870, for the benefit of his wife and children, 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 to the children. Section 10 of the Act provided that "a married woman may effect a policy of insurance upon her own life or the life of her husband for her separate use, and the same, and all benefit thereof, if expressed on the face of it to be so effected, shall enure accordingly, 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 his own life, and expressed upon the face of it to be for the benefit of his wife or of his wife and children, or any of them, shall ensure and be deemed a trust for the benefit of his wife, for her separate use, and of his children, or any of them, according to the interest so expressed, and shall not, so long as any object of the trust remains, be subject to the control 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 trustee thereof may be appointed by the Court of Chancery, and the 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, 1871, a policy for £4,000 on his own life. The policy contained a recital that he was desirous of assuring his life under the provisions of the Act for the benefit of his wife (whose Christian names and surname were stated) and of the children of their marriage, and it provided that under the provisions of the Act "his said wife and the children of their marriage, whom failing, the heirs, executors, administrators, or assigns of the assured, shall be entitled to receive out of the funds of the said institution at the end of six months after the decease of the assured, the sum of £4,000, but which sum shall not be exigible until three months at least after proof shall have been made to the satisfaction of the directors of the said institution that the event has occurred in respect of which the said benefit becomes payable." In July, 1886, North, J., appointed two trustees for the purpose of receiving the policy money from the institution, who had declined to pay it otherwise. There were seven children of the marriage. One of them died in infancy before the date of the policy another was born in 1873 and died in 1874, and a third, who was born in 1869, died unmarried soon after the death of her father. The four surviving children were infants. An originating summons was taken out by the mother, as plaintiff, against the trustees and the infants by their guardian ad litem, as defendants, to determine the respective interests of the parties.

NORTH, J., thought it clear that, on either construction, the children took as joint tenants inter se; that the child who died in 1874 might be disregarded; and that the interest of the child who died after the death of the father survived, either to the mother and the other surviving children, or to the surviving children. On the construction of the policy taken alone, his lordship was of opinion that the mother and children would take as joint tenants. Newill v. Newill (7 Ch. 253) was conclusive authority for that construction, and in Re Adam's Policy (23 Ch. D. 525) 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 opinion (without deciding the point) that the effect of the Act and policy taken together was to constitute a declaration of an executed trust. His 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 that one would look to find what the assured intended, and, as might have been expected, section 10 referred to the policy for the expression of what the benefit intended was. It might be that, if the policy was capable of two constructions, the one within, and the other not within the powers of the Act, the former might be considered by the light of the Act to be the true construction. But beyond that his lordship thought that the policy alone must be looked at, and that its construction was not affected by the language of the Act. But even if the Act and the policy ought to be read together as one declaration of trust, his lordship could not assent to the view that the mother took a life interest in the whole fund, with remainder to the children. Either that mode of provision or a joint tenancy would have been equally within the Act, and if so his lordship did not see how the Act could supply any reasons for preferring the on

money, but that did not necessarily indicate that there was to be a continuing trust. The object was merely to enable the insurance company to obtain a valid discharge for the money, and to relieve them from the obligation of seeing to the execution of the trusts. In the present case, whatever the construction of the policy was, the appointment of trustees was necessary, because the children were infants. His lordship did not think that the Married Women's Property Act of 1882 affected the case. the benefit of his children only, and it was true that the Legislature It did, indeed, provide that a man might effect a policy for had contemplated that the interests of the wife and children might possibly not be concurrent, but that was not the same thing as saying that, under a trust for the benefit of the wife and children, the interests of the wife and children were not to be concurrent. Looking at that the policy operated as a settlement of the money upon the mother, the policy and the Act of 1870 together, his lordship was of opinion joint tenants. The decision of Malins, V.C., in Re Mellor's Policy (7 and those of the children who were living at the death of the father, as Ch. D. 200) was really to the same effect, though it seemed to have been misunderstood, and the report of it was very brief and not very satis factory.-COUNSEL, G. A. Watson; Amedroz. SOLICITORS, Bowman, &

Crawley-Boevey.

Re THE YSTALYFERA GAS CO.-Stirling, J., 27th January.
REGISTER-RECTIFICATION-LIEN-TRUSTEE AND CESTUI QUE TRUST.

upon shares registered in the name of a trustee for a debt due to the
In this case a question arose as to the right of a company to a lien
Ystalyfera Gas Co. gave the company a lien on shares held by a shareholder
company from the cestui que trust. The articles of association of the
for debts due to the company by, or on behalf of, such shareholder,
whether the debts were "those of such shareholder solely or jointly or in
partnership with any other person." In January, 1885, 150 shares in this
company were registered in the name of Joseph Richard Cobb. He was
a trustee of them for another company called "The Ystalyfera Co.,"
which was entirely distinct from the "Ystalyfera Gas Co." In the remark
column of the register it was stated that the Ystalyfera Co. was the
agreed to sell its interest in the shares to J. R. Cobb, and in the December
beneficial owner of the shares. In November, 1885, the Ystalyfera Co.
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
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,
of the name of J. R. Cobb. This was done without his consent or know-
of the register by having the shares placed in his name.
ledge. The present application was by J. R. Cobb for the rectification
behalf of the applicant that J. R. Cobb was the shareholder, for, by
It was argued on
section 30 of the Companies Act, 1862, the gas company was precluded
from recognizing a cestui que trust; and, therefore, that it should have no
lien upon those shares except for a debt due from J. R. Cobb.
shares held by a shareholder for a debt due from that shareholder. It
STIRLING, J., said the articles of association only gave a lien upon the
was plain that Mr. Cobb was the shareholder. He was registered as such,
randum in the register that the Ystalyfera Co. were the beneficial owners
and he was the person who would be liable to pay calls. The memo-
of the shares did not make them the shareholders. There was, therefore,
no lien for a debt due from them. The register must be rectified, and
the gas company must pay the costs.-COUNSEL, Warrington and Ashton
Cross. SOLICITORS, Blyth, Wilkins, & Co.; Richard White.

Re TUCKER, BOUCHIER v. GORDON-Stirling, J., 10th February. WILL-CONSTRUCTION-LIFE INTEREST DURING WIDOWHOOD-CHILDREN LIVING AT DEATH OF TENANT FOR LIFE-CLASS WHEN ASCERTAINABLE. This was an adjourned summons to determine a question which arose upon the will of the late Walter Tucker, as to when the class of children to take in remainder were to be ascertained. The testator, by his will, directed his trustees to invest £8,000, and to pay the income to Mrs. A. M. Bouchier during her life or until she should marry again, and immediately after her decease or second marriage to stand possessed of the said fund upon trust to divide the same equally between the children of Mrs. Bouchier "living at the time of their mother's decease share and share alike." The testator died on the 6th of July, 1874, leaving his widow and six children surviving. One of the children died in 1876, an infant and unmarried. The widow married again in 1886. The five surviving

children, who were all of age, then applied to the trustees to divide the fund. The trustees declined to do so without the sanction of the court, on the ground that the class of children entitled could not be ascertained until the death of the testator's widow.

STIRLING, J., held reluctantly, following Bainbridge v. Cream (16 Beav. 25) and Stanford v. Stanford (35 W. R. 191), that the class must be determined at the death or second marriage of the testator's widow which should first happen; and therefore that the testator's widow having married again the fund was now divisible.-COUNSEL, Robinson, Q.C., and Tanner; Hastings, Q.C., and Tanner: Buckley, Q.C., and E. Ford. SOLICITORS, Finis & Wylie; Mc Arthurs; Mead & Daubeny.

Re RUDDIMAN'S TRUSTS-Stirling, J., 12th February. PETITION-RESPONDENTS OUT OF THE JURISDICTION-SERVICE. The question in this case was whether service of a petition could be directed upon respondents out of the jurisdiction. Seven of the respondents to the petition were resident in Scotland, and leave was asked to serve them with it in Edinburgh and Aberdeen. The petition was for the distribution of a fund in court and payment oat to the persons entitled. Order 11 of the Rules of the Supreme Court, 1883, makes no provision as to the service of a petition out of the jurisdiction. STIRLING, J., held, following a decision of Kay, J., in Colls v. Robins (30 SOLICITORS' JOURNAL, p. 550, W. N., 1886, p. 111), that in the case of a petition simply dealing with the distribution of a fund, the court might direct the petition to be served upon respondents out of the jurisdiction, not with the view of effecting a formal service, but by way of giving them information that the petition was pending.-COUNSEL, Stokes, Mac Swinney, and Ingle Joyce. SOLICITORS, Arnold & Co, Simpson & Co., and Linklater.

Re HILLEARY AND TAYLOR-Stirling, J., 15th February. PARTY AND PARTY COSTS-SHORTHAND NOTES BEFORE THE TAXING MASTER -COSTS OF SHORTHAND NOTES.

In this case it had been referred to the taxing master to tax, as between party and party, certain bills of costs. The taxation was objected to on the following point, among others. His taxing master, having to hear viva voce evidence to determine certain questions arising upon the taxation, informed the parties that he intended to rely upon the shorthand notes of this evidence. The taxing master, in taxing the costs of the taxation, allowed certain costs in respect of the shorthand notes, those upon which costs were disputed, with the exception of certain incidental discussions which could not be severed from the note without great difficulty, related exclusively to evidence. It was objected that the taxing master had no power to allow anything in respect of the shorthand notes.

veyed away the whole of the undertaking and assets of the company. It therefore infringed the rights of the debenture-holders, and they were entitled to have the property preserved until the trial as much as if the company had been ordered to be wound up. The plaintiff would have been entitled to have had a receiver and manager appointed, and à fortiori he was entitled to the less relief which he now asked.-COUNSEL, Hastings, Q.C. and Dauney; Pearson, Q.C., and Elgood; Buckley, Q.C. SOLICITORS, Carter & Bell; Powell & Burt; Freshfield & Williams. INGHAM. WALKER; ELLWOOD, CLAIMANT-Q. B. Div., 11th February.

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 sale as being sound. The purchaser subsequently discovered that it was not sound, and threatened the auctioneer with an action for misrepresentation. The vendor, being unable to get the purchase-money from the auctioneer, commenced this action for money received for his use. The defendant asked for leave to interplead. A master made an interpleader order; but it was set aside by Field, J. The defendant appealed. It was argued on his behalf that the right to an interpleader order was not barred by the fact that the two claims were not co-extensive. The claimant had made an affidavit that he was about to bring an action, which would be either for breach of warranty or for misrepresentation. In either case the responsibility would really lie on the vendor. Therefore it was a matter which ought to be fought out between the vendor and the vendee. Crawshay v. Thornton (2 My. & Cr. 1), Best v. Hayes (1 H. & C. 718, 11 W. R. Dig. Com. Law, 71), Attenborough v. St. Katharine's Dock Co. (26 W. R. 583, 3 C. P. D. 450), and Wright v. Freeman (48 L. J. Q. B. 276, 27 W. R. Dig. 101), were cited.

THE COURT (Lord COLERIDGE, C.J., and POLLOCK, B.) held that the order of Field, J., was right, and dismissed the appeal. Lord COLERIDGE, 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 behalf. The claim of the purchaser against the auctioneer, if there was any such claim, which his lordship did not at present see, was of a different sort-viz., for damages for misrepresentation in the sale of a horse. It was true a jury might assess the damages at the same sum as the vendor claimed. But the identity of the sums could not affect the difference in the nature of the claims. POLLOCK, B., said that the case did not come within order 57, the words of which shewed that the subjectmatter of the two claims must be the same. The rules had been carefully drawn, and after great consideration. And rule 1 (a.) spoke of a person under liability for any debt, money, goods, or chattels. The word damages" had been intentionally left out. In Attenborough v. St. Katharine's Dock Co. there was no difficulty on this point. There the only difficulty was that there might be a claim for damages for detention over and above the demand for the goods. But the main subject-matter of the whole contest was specific goods.-COUNSEL, Lumley Smith, Q C., and Statham; Yarborough Anderson. SOLICITORS, Ridsdale & Son; J. H. Bridgford, for W. H. Boocock, Halifax.

[ocr errors]

STIRLING, J., said that, both by the ordinary practice of the court and under ord. 65, r. 25, of the Rules of the Supreme Court, the taxing mister had power to cause witnesses to be examined before him. Acting in pursuance of the order to tax, he had eventually proceeded to tax the costs of the taxation itself, and, in doing so, had allowed part of the expenses of the shorthand notes. Of course, if he had been taxing costs as between party and party, and the judge at the trial had 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 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 that duty was superseded by that of watching the demeanour of the witnesses, it was then his duty to have a note taken for him. Under the circumstances of the present case he overruled the objection.-COUNSEL, Pearson, Q.C., and Normandy; Hastings, Q.C. SOLICITORS, R. J. Gooch; R. Metcalfe.

-

HUBBUCK v. HELMS-Stirling, J., 14th February. COMPANY-DEBENTURES-FLOATING SECURITY-ASSIGNMENT BY THE COMPANY OF ITS UNDERTAKING AND ASSETS PRIORITY. This was a motion for an injunction to restrain the defendant from selling or parting with certain business premises, effects, and goodwill which had been assigned to him for value by the Polychromatic Simultaneous Printing Co. (Limited), by an indenture dated the 17th of November, 1886. The property assigned by that deed comprised, in fact, the whole of the undertaking and assets of the company. The plaintiff was a debenture-holder of the company. Each debenture contained a charge by the company upon their undertaking of the principal money and interest thereby secured pari passu with the other debentures secured or to be secured by that issue. The defendant had notice of these debentures when he executed the deed of the 17th of November, 1886. Shortly after the execution of that deed the company was ordered to be wound up. By the writ in the action the plaintiff claimed a declaration that the alleged sale was invalid as against the debenture-holders. STIRLING, J., said that the case was not precisely covered by authority. Debentures of the kind in question constituted a floating security on the company's assets for the time being. They did not confer upon the holders any right to interfere with any dealing by the company with its assets in the ordinary course of business. But as soon as the principal or interest fell into arrear, or the company came to be wound up, or (as his lordship thought) ceased to be a going concern, the debenture-holders were entitled to have the then assets of the company realized and a receiver appointed. The deed of the 17th of November, 1886, was not executed in the ordinary course of the business of the company, for it con

FORM OF SPECIAL CASE ON APPEAL FROM QUARTER SESSIONS. 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. The case had been stated by the Recorder of Sheffield after the hearing of an appeal brought by the Sheffield Waterworks Co. against certain poor rates which had been made upon them by the overseers of the poor for the townships of Sheffield, Brightside-Bierlow, and Attercliffe-cum-Darnall. By the valuation list, upon which the rates appealed against were made, the appellants were assessed at the total sum of £10,360, rateable value. The recorder allowed the appeal with respect 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 for the township of Attercliffe-cum-Darnall. The effect of the recorder's decision was that the total rateable value was reduced to £6,520. The case set forth the contentions of the appellants and the respondents on five points, which had been raised, and the decision of the recorder on each of them. The Court was then asked to give its opinion whether the recorder was right in holding as he did on the five points. If the court should be of opinion that the several decisions were right, then the order of quarter sessions was to be affirmed. The case then proceeded, in five paragraphs, to deal with the five decisions, stating in respect of each of them that, if the court shall be of opinion that the recorder was wrong, the gross estimated rentals and the net rateable values of the appellants' property in the three townships were to be reduced by such and such sums. The Crown Office refused to enter the case for appeal, on the ground that the alternative form in which it was stated was objectionable, and that the only proper way of framing the case was, after saying that, if the court should be of opinion that the several decisions were right, the order of quarter sessions was to be affirmed, to end thus:--If, on the contrary, the court should be of opinion that the several decisions above-mentioned were wrong, then the said order is to be quashed." It was argued, in support of the application, that the case was drawn in the most convenient way, and that it was not open to the objections stated by the Court of Queen's Bench in London and North-Western Railway Co. v. Sutton Coldfield (22 W. R. 324, 9 Q. B. 153), as the recorder had not asked questions for the purpose of 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 their contention as to what was the only proper form, the result would be that, if the appellants were right on any of the points on which the recorder decided against them, the assessment of £6,620 would be quashed and the assessment of £10,360 would revive. Or, in other words, if they won their appeal, they would be in a worse position than if they lost it. THE COURT (Lord COLERIDGE, C.J., and GROVE, J.) refused the application. It had been held that inferior courts could not ask this court questions simply. Whether this were convenient or not, it had been the practice from the time of Lord Ellenborough, and had become inveterate. That the court ought not to entertain this case was clear from the language of Blackburn, J., in the Sutton Coldfield case:-"This court has not in general any jurisdiction to review the decision of the court of quarter sessions on any matter in which that court had jurisdiction. Nor will it take any notice of a case reserved by the sessions on the trial of an indictment: R. v. Salop (13 East, 95). But there is an exception from that general rule in cases where the court of quarter sessions on appeal makes an order either confirming or reversing the decision appealed against, subject to the opinion of this court on some point of law 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 jurisdiction to alter the rate; they could only either confirm it or quash it.-COUNSEL, Ogle. SOLICITOR, H. A. Maude, for B. P. Broomhead,

Sheffield.

FAIRLAMB AND OTHERS. BEAUMONT-Hexham County Court,
11th February.
AGRICULTURAL HOLDINGS ACT, 1883, s. 44-DISTRESS FOR MORE THAN ONE
YEAR'S RENT.

The question in this case was as to the construction of section 44 of the Agricultural Holdings (England) Act, 1883. The facts were admitted. The plaintiff took the farm of Coalpits from the defendant as yearly tenant from the 13th of May, 1874, at the yearly rent of £230, subsequently reduced to £180 10s. By the agreement of tenancy, which was under seal, it was provided that the rent should be paid by two equal payments on the 11th of November and the 13th of May, and the first payment was to be made on the 11th of November, 1874 By the ordinary course of dealing between the plaintiff and defendant, the payment of the rent was allowed to be deferred until after the expiration of a half-year after it became due by the agreement under seal; therefore the plaintiff did not make his first payment of rent until after the 13th of May, 1875. This course continued down to November, 1886. On the 11th of November, 1886, the plaintiff having got a further half-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 of May, 1886, and the 11th of November, 1886. On the 28th of December, 1886, the defendant distrained for, and was paid, £270 58., the amount of these three half-years' rents. The plaintiff brought this action to recover £90 53.-half-year's rent improperly distrained for-on the ground that the defendant could not make a distress for rent due more than a year 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 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 due by the deed on the 11th of November, 1886, because the ordinary course of dealing between the plaintiff and defendant allowed the payment of such rent to be deferred until after the expiration of a half-year after the 11th of November, 1886, and, therefore, it must, as provided by section 44, be deemed to become due at such deferred period- namely, 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 distrain for more than one year's rent.

Judge HOLL, in giving judgment, said :-The intention of the Legislature 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 circumstances of the present case, is such that there is nothing to prevent the landlord recovering a year and a half's rent. The main provision of the 44th section does not say that the landlord cannot recover, by distress, more than one year's rent; it only says he cannot make a distress for rent which is due more than one year before the making of the distress. It is admitted that there has been a custom that the rent should not be paid until a half-year after the rent became due under the terms of the deed, and the rent which was thus due on the 11th of November, 1885, does not, for the purposes of the section-that is to say, for the purposes 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 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 there is no dispute with regard to these two half-year's rents which the landlord was entitled to distrain for, it being rent which, under the terms of the proviso, became due within twelve months before the making of the distress. The whole point turned upon whether or not there is anything in the section to preclude the landlord from distraining for rent which became due under the terms of the deed on the 11th of November, 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 becomes due by the terms of the deed, the landlord cannot distrain 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

[ocr errors]

paid until six months after it becomes due. I think it is a matter of grace that the landlord has allowed the tenant to pay the rent at a later period than that at which he was legally entitled to demand it and to distrain for it. I do not think you can imply from any such course of dealing an agreement which would have the effect of altering the terms of the deed. I think there would be nothing to preclude the landlord from distraining for the half-year's rent which became due on the 11th of November, 1886. I do not think the effect of the proviso is to take away from the landlord the common law right which he would otherwise have had to distrain for the rent which became due on the 11th of November, 1886. Judgment will therefore be for the defendant.-COUNSEL, Strachan. SOLICITOR, Gibsons, Hexham; Dees & Thompson, Newcastle.

There were two misprints of names of cases cited in the report of Re LEA, LEA v. COOKE (ante, p. 254). For Welch v. Cohen (16 Ves. 206) read Waldo v. Caley, and for Hird v. The Earl of Suffolk (2 My. & K. 59) read Horde v. The Earl of Suffolk.

LAW STUDENTS' SOCIETIES.

Elmslie.The motion for debate was, "That the case of Filmont v. Bentley (Court of Appeal) was wrongly decided." Mr. J. Cornelius Wheeler opened in the affirmative, being supported by Messrs. W. Mackenzie and Hawtin, and opposed by Messrs. C. S. Magee, W. Y. Woolcombe, J. Gray, and W. Aysom. After Mr. Wheeler had replied, the chairman gummed up and put the motion to the society, when there voted for the affirmative 5, and for the negative 11. The motion was thereupon declared to be lost. There were 33 members present. Feb. 15 Chairman, Mr. Ernest Todd. The motion upon the paper for discussion was, "Is it desirable to place further restrictions on the formation of limited companies, and ought not all "firms" (real or assumed) to be compulsorily registered?" Mr. F. K. Munton (of the firm of Munton & Morris) opened the debate in the affirmative. Mr. John Indermaur opposed. The following gentlemen spoke in the affirmative:-Messrs. T. H. Richmond, Lewis Biden, and W. - Messrs. T. H. Bower and D. Stewart Wallis; and in the negative: Smith. After Mr. Munton had replied, the chairman put the motion to the society in two parts, when the first part was carried by a majority of 12 votes, and the second part lost by a majority of 8 votes. There were thirty-five members present.

LAW STUDENTS' DEBATING SOCIETY.-Feb. 8-Chairman, Mr. Wilmot E.

[ocr errors]

LIVERPOOL LAW STUDENTS' ASSOCIATION.-Feb. 7-Chairman, Mr. J. H. Kenion.-The following was the subject for discussion :-" In the year 1860 A. mortgaged a freehold house to X. The mortgage deed was in the ordinary form, and contained the usual covenant by the mortgagor to repay the principal and interest. A. continued to pay the interest regularly up to 1865. In that year he assigned his equity of redemption to his son B. No interest was ever paid or acknowledgment given by B. to the mortgagee, but A.. the father, continued to pay the interest up to the date of his death in 1886. In 1887 the mortgagee brings a foreclosure action against B., and B. sets up as a defence the Statutes of Limitation (3 & 4 Will. 4, c. 27; 7 Will. 4 & 1 Vict. c. 28; 37 & 38 Vict. c. 57). Is the mortgagee entitled to succeed in his action?" Mr. Bagshaw opened in the affirmative, and Mr. Dobell in the negative. Messrs. Bromfield, Thornely, Brotherton, Wright, Lloyd, Forshaw, and Inglis supported the affirmative, and Messrs. Watts and Whytt the negative. The openers having replied, the chairman summed up, and, on the question being put to the meeting, it was carried in the affirmative by a majority of 14. There were 42 members present.

PRESTON LAW DEBATING SOCIETY.-Feb. 4-Chairman, Mr. J. W. Higson, solicitor.-Four legal queries were discussed. A debate then took place on the following case:--" A., an agent of the C. Life Assurance Co calls upon B. and induces him to insure his father with the company. B. has no insurable interest in his father's life, but A. tells B. that he may lawfully effect the insurance. Subsequently, and before his father's death, B. discovers that the policy is illegal, and gives notice of repudiation to the company. Can B. recover the premiums he has paid upon the policy?: Drummond v. Decy (1 Esp. 152), Smith v. Bickmore (4 Taunt. 477), Taylor v. Bowers (1 Q. B. D. 291). Mr. J. Bell opened the case in the affirmative, and was supported by Messrs. S. Simpson and C. T. Taylor; Messrs. J. J. Rawsthorne, J. Cookson, and A. Bush opposed. The chairman briefly summed up and put the question to the jury, when they returned a verdict in the affirmative by a majority of 1.

Feb. 11-Chairman, Mr. W. T. Smith, solicitor.-A discussion took place of the profession is desirable." on the following motion:- "That the amalgamation of the two branches Messrs. R. Parkinson and G. Cartwright supported the motion; Messrs. J. Bell, W. Breakell, and A. W. Ladyman opposed the motion. The chairman summed up the arguments adduced by a majority of 3. on each side and put the question to the jury, when the motion was lost

UNITED LAW STUDENTS' SOCIETY.-Feb. 14-Mr. Eustace Smith opened a discussion on the decision in Ex parte Stanford, Re Barber, by moving, "That the decision of the full Court of Appeal in this case was wrong. Mr. Batchelor opposed. The opener was supported by Messrs. Moyle and Beckwith; while Messrs. Strickland, Lazarus, and Shere sided with Mr. Batchelor. After Mr. Smith had replied, the chairman shortly summed up. The motion was carried by two votes.

« PreviousContinue »