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April 30, 1887.

THE SOLICITORS' JOURNAL.

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Elborne v. Goode, ubi suprà; Green v. Gascoyne, 1865, 13 W. R. THE INCIDENCE OF ADMINISTRATION COSTS. 371), the administration costs are payable pro ratâ out of the I.

shares of residue taken by the legatees and the shares which have In the administration of an estate out of court questions frequently failed. The same rule appears to apply where a share of residue arise as to the persons by whom the costs, or certain of the costs, fails owing to a revocation of the bequest by the testator (Cressshould be borne; and experience shews that the rules which have well v. Cheslyn, as stated from the registrar's book, 1 Swanst., at been laid down on this subject are not always followed. We p; 571, note (d.); see also the judgment in Eyre v. Marsden, think it may be useful to our readers if we collect such of the ubi suprà; but see contrà, Skrymsher v. Northcote, 1818, í decisions on the costs of administration actions as bear upon the Swanst. 566, 572). subject mentioned at the head of this article, and attempt to

(4) The administration costs falling on the residuary personal formulate from them some general principles' for guidance in estate include :administrations out of court.

(a.). The costs of construing the will. This is so, although they The rules which have been laid down are professedly based upon are only the costs of construing the will as respects one particular the principle that the costs of administration must be defrayed gift (Jessel, M.R., in Re Reeve's Trusts, 1877, 4 Ch. D. 841, 844; in such a manner as not to defeat the intentions of the testator Boulton v Beard, 1853, 3 De G. M. & G. 608). Hence the costs (Eyre v. Marsden, 1839, 4 My. & Cr., at p. 243). The first rule of ascertaining the construction of a gift of a pecuniary legacy is, therefore, that

(Re Reeve's Trusts, ubi suprd), or of a share of the residue which (1) The testator's express directions as to the fund out of which is settled by the will (Boulton v. Beard, 1853, 3 De G. M. & G. administration costs are to be paid must be observed. Hence, real or 08, 612), fall, not on the legacy or settled share as to which leasehold property which a testator has charged with payment of only the question of construction arose exclusively, but on the his “ testamentary expenses," in exoneration of his personal estate, whole of the residue. must bear the whole costs of administration (Morrell v. Fisher, (6) The costs of ascertaining the persons entitled under the 1851, 4 De. G. & Sm. 422 ; Harloe v. Harloe, 1875, 23 W. R. will. “The principle,” said Jessel, M.R., in Re Reeve's 789, 20 Eq. 471). So also the expenses of administration will fall Trusts (ubi suprd),"" is, that there is no residue until the on any particular fund out of which a testator has directed that entire costs of administration are paid. Now, what are the

testamentary “executorship" expenses are to be paid entire costs of administration ?' Surely they include the (Sharp v. Lush, 1879, 27 W. R. 528, 10 Ch. D. 468).

ascertaining, not only of the specific and pecuniary legatees, (2) Where the testator has given no such directions, administra- but of the residuary legatees also.

You cannot administer an tion costs are primarily payable out of the residue of his personal estate—that is, divide it properly-until you have found out all estate. It has been pointed out that it is not strictly correct to say the parties who are entitled. Therefore, it appears to me on that the administration costs are paid out of the residue of the per- principle that the whole of the costs of ascertaining who those sonal estate ; they are supposed to be paid out of the personal estate persons are are properly payable out of the estate which remains before any distribution of it takes place (Shuttleworth v. Howarth, after paying the debts, funeral and testamentary expenses, and 1841, Cr. & Ph., at p. 232). But as the residue (which is defined legacies; and that there is really no residue to be divided until as being what remains after payment of the testator's funeral and you have paid all those costs.' Where, therefore, there is a gift testamentary expenses, debts, legacies, and the costs of adminis- of residue to be divided among certain persons and classes of persons, tration of the estate, including all costs and charges occasioned by the costs of proving the pedigrees of the various persons entitled the will: Elborne v. Goode, 1844, 14 Sim.'165, 178 ; Ripley v. to share in the residue are payable out of the whole residue Moysey, 1836, 1 Keen, 578 ; Trethewy v. Helyar, 1876, 4 Ch. D. before it is divided (Re Reeve's Trusts, ubi suprd). And it 53, 56; Re Reeve's Trusts, 1877, 4 Ch. D., at p. 844) is less is altogether immaterial that some of the classes turn out to than it would otherwise be by the amount of the payments for be much more numerous than others, so as to make the administration costs, those payments do in fact substantially and expense of establishing the claims of the individuals composing practically come out of the residue.

them very much greater. An extreme instance of this occurred in (3) There are no degrees of liability among different portions Shuttleworth v. Howarth (ubi supra). One of the classes among of the residue of the testator's personal estate. Whether the which the testator's residuary estate was to be divided in certain proresidue be wholly given or wholly undisposed of, or partly portions consisted of two individuals ; the others of 213, 119, 32, siduary, legatee or more, or one person next of kin or more, the costs of all the persons who established their claims were not to the thing that is taken is of the same quality, and the parts be paid exclusively out of the portions attributable to their classes which constitute the whole only come into existence after satisfac- respectively, but out of the residuary fund before any apportiontion of the general costs of administration ; in other words, the ment of it took place ; the result being that the two persons takers of the shares, where shares are taken, are liable to the composing one of the classes paid a share of the expense of costs in proportion to their shares (Elborne v. Goode, ubi establishing the title of the 474 other persons interested in the suprà). Vice-Chancellor Malins, indeed, expressed an opinion residue. in Gowan v. Broughton (1874, 19 Eq. 77) that a lapsed share of residuary personal estat

The same rule, of course, applies to the costs of ascertaining should exonerate the other shares and the kinship of next of kin taking the share of a deceased be the primary fund for payment of administration costs. The beneficiary' under a gift of residue which is construed to be a gift around for his opinion appears to have been that, having pre- to several persons on their next of kin. In this case the decision Lapsed share of residuary real estate should exonerate the other of the deceased beneficiary were to be considered as much the

hares, the learned judge considered that it would be very testator's legatees cas” the other beneficiaries who had survived inconvenient if there should be one rule as to real, and another as (Doody v. Üiggins, 1852, 9 Hare App. xxxii.). This principle to personal estate.” His observations, however, wero mere dicta, would not seem to be applicable to the costs of ascertaining the and they have been dissented from by Jessel, M.R., in Trethewy v next of kin of the testator who becomes entitled to lapsed shares Helyar (1876, 4 Ch. D. 53); by Bacon, V.c., in Fenton v. Wills of a residue. The precise question does not appear to have been

determined in any reported case until Re 7ech. D. 382). The rule appears to be that where a share of the Giles (1886, 34 W. R. 712). In that case Kay, J., held residue becomes undisposed of, whether by hapse (Ackroydov. | (though, as will be seen, with some hesitation) that the costs book, in 4 My. & Cr., at p. 245; Roberts v. Walker, 1 Russ. & are costs of administration. Soithson, 1 Bro. C. C. 503, as explained, on reference to registrar's Of ascertaining the next of kin in the case last mentioned

The only question,” he said, “is M. 752; Cresswell . Cheslyn, 2 Eden, 123, as explained in whether these costs are costs of administration. On the

No authority has been cited then operation of the Mortmain "Act" (9 Tohelo sayo369" (Attorneys to me to show that 11® lapsed share ought to bear the Acel uret, 2 Cox, 364); or owing to the operation of the thelluszontion of the general residue. If, in an administration action, it had Act (39 & 40' Geo. 3, "co "98.9 TEyre por Tarsden, ubi supra; appeared that some shares of the residue had lapsed, it youļd have

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been a matter of course to direct an inquiry as to who were the ception in the case of dormant claims. Registration of Title to next of kin of the testator, and, so far as I know, there is no case Land (C. F. Brickdale, November, 1886), at p. 46, advocates the in which it had been held that the cost of an inquiry of that kind enforcement of the rule without any exception whatever. The ought to be borne by the lapsed share instead of by the general question was raised in the House of Lords last Monday evening on residue. On the other hand, I think it would have been treated the second reading of the Bill. The Bill (clause 16) provides that as a matter of course to order those costs, as well as the other" where a person satisfies the High Court that he has been deprived costs of the action, to be paid out of the general residue. And the of registered land by forgery, or fraud, or error of the board or its reason of that is well expressed in the case of Eyre v. Marsden (ubi officers, the court may, according as the court may think equitable, suprà)—viz., that there can be no residue until the costs of the either order compensation to that person, or that the land shall be administration have been paid. The trustees would have a right to restored to that person, and that the person losing the land shall ascertain at the expense of the general residue, who were the persons receive compensation.” It was pointed out that this clause laid entitled either in the case of lapse or under the will, and the costs down no principle to guide the court, and that it would be better of ascertaining that are costs which ought to be paid, in the first to lay down some principle, to be followed in ordinary cases, subinstance, out of tbe general fund before you can arrive at the ject to exception, perhaps, on special cause shewn. Lords Herschell residue at all. Of course it is easy to put, as I put in the argu- and Bramwell advocated the rule above stated. Lord Selborne was for ment, cases where that would seem to be very hard. A case may favouring purchasers, if possible, as against volunteers : but in be imagined where the residue is divisible into twelve shares, and making this suggestion the noble and learned lord appears to have one of the shares lapses. Are the persons entitled to the other overlooked the consideration that owners of family estates—the eleven shares to wait until a very difficult inquiry as to the next very persons most obviously entitled to restoration of the land in of kin entitled to the twelfth share is worked out? But then, I specie-are nearly all volunteers, a consideration fatal to the think the answer to that is simple. They need not wait. It is adoption of the rule he proposed. easy enough for the trustees to ascertain approximately the Of course, there are objections to any rule that can be proposed. amount of the shares, and to set apart a fund to answer and pay The present law, which leaves a purchaser with no greater profor the cost of ascertaining the next of kin; or, if any difficalty tection than his own vigilance and the vendor's covenant for title, should arise, then the trustees can come to the court at once, and is hardly so perfect as to justify very severe criticism of a law ask the court to ascertain the fund for them or to tell them what where the only possible question will be whether he is to have the they ought to pay over, or if they ought to pay over anything, and land or full damages paid by the Government. thus act by the direction and under the sanction of the court.” Leaving the substantial question to be decided as may be thought

best, let us turn to one or two incidental matters that claim atten. tion in regard to the subject of this section.

The first is that procedure by application to the High Court, THE LAND TRANSFER BILL.

wherever restoration is sought, appears to be needlessly cumbrous. IV.

It must be remembered that if some such rule as that above sugIV.—THE INSURANCE FUND (continued).

gested is laid down, the inquiry needed to be made will be of the

simplest possible kind. Therefore, subject to an appeal to the 2. Will it be a tax ? (continued):—We would call attention to a court, it would seem well to make the Board the tribunal in the fact (mentioned in our last week's issue, but) which seems to have first instance, especially as they will have before them all the been overlooked by some who have been studying the Bill, that no material documents, and probably all the material facts, at no contribution to the fund will be payable on registrations with expense in the great majority of instances. With regard to the possessory title only. So that the extra expense that will be frequency of appeals, it is the Australian experience that the incurred on next sales will consist of the correspondence with the decisions of the registrar are usually acquiesced in (1881: Return registry, the furnishing of such information as the rules may on Australian Registration, p. 148). require, and the payment of the office fees (if any) prescribed. The second matter is that the expression registered land in the

It must further be observed that the insurance charge on subse- portion of the clause above quoted introduces at least a doubt as quent registered dealings (which, by the way, is to be paid equally, to whether or no, in cases where land is wrongly placed on the whether the first registration was with possessory, qualified, or register in the first instance with absolute or qualified title, the absolute title) is only levied where such dealings are for value. rightful owner of the unregistered estate will be entitled to apply So that (subject to a possible doubt as to whether or not a marriage for restoration, or whether he will be confined to his compensation settlement, or a charge of jointure, or portions, is a dealing for under Clause 15 (1) and Schedule I. (A) (1)—where, by the bye, value) as long as, and in so far as, changes of ownership only take the use of the word "land" alone lends colour to the doubt now place by way of Settlement, Will, or Succession on Death, no in- expressed. Such is the rule, it may be observed, under the surance money will be payable on registering such changes. To Torrens acts; and it is possible that it may be intended to repeat it owners of large estates these considerations are clearly of great in the Bill. 'The reasons for making such an exception (if it be importance, because, if, as at first sight appears possible, on every intended) are not obvious. It would create much reasonable un. re-settlement or succession on death (the necessary and permanent easiness, and it would oblige the registrar to be far more particular private expenses of which will probably be but little diminished in registering absolute and qualified titles, and in confirming titles from what they are now) there were to be added an insurance and boundaries, than he otherwise need be. charge amounting, in large estates, to some hundreds of pounds, besides the correspondence with the registry and office fees, the not laid down in the Bill. It is not clear, for instance, whether it

The third matter is that the exact procedure under clause 16 is obvious drawbacks of the new system might well appear greater will be necessary for the purposes of the section that the owner than its possible advantages. We have reason to believe that a shall have been actually deprived of his land before the court can certain amount of misapprehension on the above points has arisen exercise its authority. owing to the provisions of Schedule I. having been rather insuf- threatened owner might bring the matter on for decision would

Some procedure whereby a merely ficiently studied. 3. How will it be available ?—One very substantial question action for recovery of land to claim the benefit of this jurisdiction

probably be useful, and also definite power for the defendant in an arises under this head. When a mistake is detected, who is to in the same action. The costs of the application to the court under have the land, and who is to have the money? What we believe this clause (16), being definitely occasioned by the error of the to be the true rule has (curious to state) only now at last Board, it would seem that, if reasonably incurred, they ought also emerged into notice or eren into existence the original rule to be paid out of the fund. This is also not quite clear from the proposed by the Commissioners of 1857 being its exact opposite, Bill as it stands. thus stated by a marginal note on page 32 of the Statement on the no the Board will have power to admit and satisfy such claims for

A fourth point is that it is nowhere exactly stated whether or Land Laws (Incorporated Law Society, January, 1886) om Ang compensation as may appear just without putting the claimants.ch be dispossessed.” Land Transfer Bar Committee, February, 1886), provides the fund, also empowers the rules to provide to and at p. 56, recommends the same thing, inserting; Hebrever, as $€2: Parattere necessary or proper for giving effect " to the section and

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the scheme in Schedule I. It is unprofitable, therefore, to go into the insurance fund may be conjecturally estimated somewhat as much detail on these points until the rules appear.

follows:4. The possible uses of the fund in facilitating the despatch of The general experience of private purchasers is well known to business.—Enough has already been said to shew that the omission be perfectly satisfactory in point of serurity; therefore, it appears of the compensation fund was a grave one from the point of view that, if the board can exercise an ordinary purchaser's vigilance, of abstract justice. It was, however, no doubt, defended by the the mistakes made in the bulk will be more than covered by the consideration that the registrar would always proceed cautiously, proposed insurance charge (supplemented as it is by the provisions of Bo that no injuries would result to innocent persons. And, in Schedule I. (c.) and (g.)). Thus the expenses and delays of procuring truth, in this respect (as probably only in this respect), the ex an absolute title might possibly be reduced to little more than those perience of the Acts has entirely justified the expectations of their incurred by ordinary purchasers on sales. But this is not all that framers. What appears to have been forgotten was that in ordinary can be done. A good deal of the trouble incurred by ordinary business people do not proceed cautiously; they proceed indolently, purchasers is directed, not to the satisfaction of their own doubts, confidingly, eagerly, recklessly; they prefer risk to trouble, sus- but to the accumulation of evidence that may satisfy possible picion, restraint, delay. A system that proposes to conduct future purchasers from themselves, or is due to that extra degree ordinary business without ever running a risk will never fulfil the of caution that is natural wherever dealings are entered into singly requirements of the case.

or in small numbers. But the board will have no need to perpetuate In order to understand the influence which the insurance fund evidence if once really satisfied; for it will never have to "shew seems designed to exercise on the despatch of business in the its title" again, and also, by reason of the large extent of its office, it will be necessary to observe the procedure hitherto operations, diminishing the relative importance of a possible failure adopted somewhat closely.

here and there, the board will be able (should it be authorized to (i.) First registration with absolute title.Under Lord West- do so) to proceed with rather more boldness than any private bury's Act nothing but a “marketable” title was to be approved purchaser can in overlooking remote possibilities of error, And, by the registrar. Now, assuming (as equity does) that a market- lastly, those who have perused the titles of a large area well know able title is absolutely safe (which it is not, but no matter), this that, as the process goes on, a sort of general bird's-eye view is was fair enough; but what a work did it entail! In the appendix obtained, which renders incidental doubts less frequent. to the report of 1870 (p. 78) are the particulars of twenty-five All these considerations put together may possibly have created cases furnished by the registrar himself as affording "à fair a belief that, with the insurance fund at their backs, the board average illustration

of the time occupied in first registrations. will be able to sanction the registration of an absolute title in The

average time will be found to be about two years and three ordinary cases on as easy terms as ordinary purchasers proceed months apiece; one comes within nine days of five years ; only upon on sales. We do not desire to express any opinion as to four are under a year.

The shortest

on the record is whether the belief is well founded, but it should prove to be so,
also given—four months twenty-seven days. Some may wonder vendors and purchasers will be likely enough before long to acquire
how the time was wiled away in the office; the following occur a habit of applying for absolute titles on sales instead of being
rence may serve to explain. One of the former owners of an content with the necessary possessory registration required by law,
estate to be registered was one John Harrison, of Reigate, even though the latter be now capable of “confirmation after
farmer, who bought in 1830, and died in 1850. Proof was further formalities and the lapse of five years.
required that a judgment against one John Harrison, of New-
castle-on-Tyne, beerseller, and another judgment against one
George Harrison, of Cockermouth, ironmonger, did not affect the
estate (1870 appendix, p. 56). Nor can we suggest that, under

CORRESPONDENCE.
the system subsisting, these precautions were unsuitable.
It will be remembered that, under Lord Cairns' Act of 1875

THE LAND TRANSFER BILL,
(section 17, sub-section 3) power is given to the registrar to

| To the Editor of the Solicitors' Journal." approve of, and register as indefeasible, any title which, though Sir,- I beg to enclose copy of a letter I have addressed, and by this

open to objection,” yet, in his opinion, “ will not be disturbed.” post sent, to the secretary of the Incorporated Law Society on the of this the Bar Committee say: "The convenience of this enact- subject of this Bill. As you will see, the point to which I have ment in facilitating the registration of titles is obvious, but this directed his attention is of the utmost importance to solicitors.

R. R. LINTHORNE. convenience is manifestly gained by giving power to an official to confiscate dormant rights without compensation if he thinks them

2, Portland-street, Southampton, April 25.

The following is the letter referred to:not likely to be prosecuted with effect.” And later, “If such

“ 25th April, 1887. provisions are administered with prudence and discretion, they “Dear Sir,—Observing in a recent issue of the SOLICITORS' leave the procedure practically unaltered. Some reduction may be JOURNAL that a copy of the Lord Chancellor's Land Transfer Bill effected in the necessary expenses, but the practical effect for this has been sent to your society for criticism and suggestion, I beg to purpose of a mere reduction is inconsiderable" (Land Transfer, draw your attention to one matter which, in my humble opinion, is cienti. The provision has (as would hardly be doubted) been pra- Clauses of the most comprehensive character should, I think, be sugdently administered, with the result that "first registration under gested by the society, and receive its most strenuous support, for Lord Cairns' Act, as under Lord Westbury's (though in a less degree), Pegistration of land, and all dealings with registered land, should be continues to be both a longer and a more expensive business transacted in person or by solicitor and by no other agent. of the question for a vendor to try to register preparatory to a find auctioneers and estate agents”, (who draw the public by their fale, and renders it most unlikely that a purchaser, who has only advertisements to find purchasers and mortgagees) transacting all just finished grumbling at the length of his solicitor's bill, wil the business connected with the Land Registry, to the exclusion of the put his name down as an applicant for a double doctor if the same profession and the disadvantage of the public, and who, no doubt, acid draught that he has just swallowed with so bad a grace ; and and there will be nothing, as the law now stands, to prevent their

will charge for their services as much as, if not more than, solicitors; if it is not to the interest of an intending vendor, or to the taste doing so, as the only protection solicitors now have as regards the of hat recent purchaser to register his title, it is difficult to see at conveyancing branch of their business is under the 60th section of what juncture of affairs it will be either useful or pleasant to the Stamp Act, 1870, which is, practically, limited to instruments Now, unless the framers of the present Bill have entirely

“ If, therefore, in the inception of land registration, land 'agents' entre toate titles (which is certainly possible, Hichage he supposed the premiu have no cance of complained but should it not be arome, and one likhey expect the insurance trunda top ostiralide at man be sa pogled it should after wards be found necessary for the profesbied ho take official procedure on first registrations that will bring absolute of Pested interests requiring compensation, &c. chasers on actual sales. The extent of the possible influence of development of the · agent system.

“I enclose you cutting from a local paper shewing the fur:her

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under seal.

“Trusting the society will, in the interests of solicitors, deem this The Court (Lord Esher, M.R., Fry and LOPES, L.JJ.) allowed the of sufficient importance to give it their favourable consideration, appeal. They said that the utmost effect of the decisions on the rating “I am, dear sir,

of railways was that it was not wrong to rate a portion of a homogeneous “ Yours truly,

railway worked by one company and as one line from terminus to terminus “R. R. LINTHORNE.

on the mileage principle. But it was only because no other principle "E. W. Williamson, Esq., Secretary Incorporated Law Society:

was applicable in such a case, and it was at best but a rough method of

In this case it was clear that the individuality of the

assessing the rate. “P.S. - I have by this post sent a copy of this letter to the editor junction company had been preserved, and the agreement, which had now of the SOLICITORS' JOURNAL.

R. R. L.”

the force of an Act of Parliament, contemplated the possibility of the [The cuttings from the local paper enclosed are a notice for whole undertaking being demised by the three companies, with the con. claims against the estate of a deceased person signed by a firm of sent of the junction company, to a tenant. A tenant was therefore auctioneers as “agents to the executors," and an advertisement by possible, and the proper method of arriving at the assessment was to conthe same auctioneers describing themselves as “ valuers, house, estate, sider what such a tenant would give for the line. The arbitrator had found, farm, and insurance agents, arbitrators, fire assessors, mortgage on perfectly admissible evidence, that such a tenant would give an amount brokers, &c," and stating that “mortgages at 43 per cent. on good which justified this assessment. --Counsel, Sir R. E. Webster, A.G., McInleasehold and freehold property can always be arranged.”]

tyre, Q.C., and Cyril Dodd; Sir E. Clarke, S.G., Meadows White, Q.C., and Tyrrell Paine. SOLICITORS, Pilley & Wright, for Ruston, Clarke, & Ruston, Brentford ; Paine, Son, f Pollock.

REG. v. JUDGE OF THE CHELMSFORD COUNTY COURT AND CONCERNING SIGNATURES.

CLARKE-C. A. No. 1, 27th April. [To the Editor of the Solicitors' Journal.]

PROHIBITION—JUDGMENT Debt-INTEREST UPON-COUNTY COURT JUDGSir, In commenting on my letter to the Times you think I have MENT-1 & 2 Vict. c. 110, s. 17-COUNTY COURTS ACT, 1846 (9 & 10 stated my experience too strongly. I feel I have not stated it strongly Vict. c. 95) ss. 94, 109, 110. enough. I affirm that no man or woman can undesignedly sign his or This case raised the question whether county court judgments carry her name in identically the same characters ; they must be similar, but interest under section 17 of 1 & 2 Vict. c. 110. Clarke recovered judgment cannot be the same. Nullum simile est idem. Lord Coke was aware in 1880 against one Cotton for £26 in the Chelmsford County Court. of and recognized the distinction. The impossibility of identity rests Cotton died in 1886, the judgment remaining unsatisfied, and then the upon a physical fact.

The human body is not a piece of mechanism £26 was paid into court. Clarke thereupon applied for leave to add like a watch or steam-engine. It is an organism, fearfully and Cotton's administratrix as defendant for the purpose of reviving the wonderfully made, which is kept in perpetual motion froin the judgment, and for leave to issue execution upon the judgment for £6 in moment of the first inspiration to the last expiration, from the first Cotton's administratrix thereupon applied for a prohibition on the ground

respect of interest. The county court judge granted the application. moment of independent life to the last, be the interval what it may, to the last syllable of recorded time. When a man or woman signs c. 110 and did not carry interest, and the judge had no jurisdiction to

that county court judgments were not within section 17 of 1 & 2 Vict. his or her name the act is a completed act; when the attempt to sign make the order. That section enacts that" every judgment debt shall again is made an interval of time must have elapsed, during which carry interest at the rate of four pounds per centum per annum from the the organism has undergone a change, necessarily-not dependent on time of entering up the judgment until the same shall be satisfied, and volition--a change which makes identity physically impossible, but such interest may be levied under a writ of execution on such judgment.” pecessarily, in the absence of volition to the contrary, produces simi- The Divisional Court (Mathew and Cave, JJ.) refused the prohibition: larity. Physicists have calculated that in seven years these changes Lord Esnek, M.R., said that before the passing of 1 & 2 Vict.col.10, in the organism, silent and imperceptible, produce a new body.

I am not desirous of indulging in the luxury of a theory. Try judgment debts did not carry interest, and the writ of fi.fa. addressed to yourself to write your own name twice or oftener, and see for your- / debt.

the sheriff gave him no authority to levy for interest on the judgment self whether your signatures are identical. A few days ago I signed execute the writ of fi. fa. for more than was contained in the judg;

1 & 2 Vict. c. 110, s. 17, was passed to enable the sheriff to my name forty times consecutively to tickets for admission to the ment-namely, for interest upon the judgment debt. That section did Botanical Gardens, of which society I am a fellow. I could not not make any new judgment, but it followed from it that the writ of find two signatures exactly alike. Yesterday I signed a cheque pay- f. fa. was altered and made to include interest on the judgment debt. able to order, and added my signature at the back. The two signa- Afterwards the present county courts were established by 9 & 10 Vict. c. 95. tures were not, on examination, identical. W. T. S. DANIEL. That statute authorized county court judges to make very peculiar orders, 51, Parade, Leamington, April 26.

very unlike judgments at common law. Section 94 provided that when a judge should have made an order for the payment of money, execution by a writ of fi. fa. might issue for the amount and costs of the execution. Nothing was said about interest. If it had been intended to include interest it would have been mentioned. So also sections 109 and 110

provided that the execution should be superseded on payment of the CASES OF THE WEEK.

debt and costs. Again, nothing was said about interest. That shewed

that the Legislature, having full knowledge of the provisions of section 17 NORTH AND SOUTH-WESTERN JUNCTION RAILWAY CO. V.

of 1 & 2 Vict. c. 110, must have intended that the provisions of section 17 BRENTFORD UNION ASSESSMENT COMMITTEE-C. A. No. i, haerkingt ?: 305,TE. & B. 805) it was held that an action would not

should not apply. There was also authority on the point. In Berkeley Vi 21st April. Poor RATB-Assessment of JUNCTION Line of RAILWAY Owned By One ment was essentially different from an ordinary judgment. The Legislae COMPANY AND LEASED IN PERPETUITY TO OTHERS.

ture had invented new rights and given new remedies, and those were the The North and South-Western Junction Railway Co. were the only remedies. County court orders or judgments were not within sec. owners of a line, of about five miles in length, which connected the tion 17, and did not carry interest, being governed solely by the County railways of the Great Western, Midland, London and South-Western, and Court Acts. Fry and Lopes, L.JJ., concurred.-Counsel, R. V. Williams ; London and North-Western Railway Companies, with the last of which Richmond. SOLICITORS, Sandilands ; Peace & Co. the North Londos. Railway Co. was in connection. By an agreement made in 1871 the junction company undertook to lease their line in per

SCHNEIDER v. BOND-C. A. No. 2, 26th April. petuity to the Midland, London and North-Western, and North London Railway Companies at an annual rent of £9,502. This agrcement was

COVENANT IN RESTRAINT OF TRADE-CONSTRUCTION-INJUNCTION. confirmed by and incorporated in a private Act of Parliament. Some three The question in this case was as to the construction of a covenant in miles of the railway lay within the parish of Acton, and were in the restraint of trade which the defendant had entered into upon the dissolu, Brentford Union district. The junction company having been rated for this portion of their line at £3,125 gross estimated rental and £2,500 rateable had for some years carried on business as a ship and boat builder, and in

tion of a partnership between himself and the plaintiff. The defendant value, appealed to quarter sessions, whence the appeal was referred by 1882 the plaintiff was admitted into partnership with him for a termof of assessment were to take the railway as being an integral part of the rail- and all things incident thereto. In July, 1883, the partnership was dist for the opinion of the Divisional Court. He found that if the proper principle should be that of a ship and boat builder and engineer in all its branchise ciple of mileage, the present assessment was too high, if, however, he were assigned all his share and interest in the business to the plaintiff, and inferred from the evidence of phe profits of the junction company prior to engaged or concerned directly or indirectly in the business of a shipated 1871, the increased traffic since then, and the amount of rent paid by the

boat builder and engineer on the River Thames, or within fifty miles The Divisional Court Day and Wills, TJ.) were coin opinion that the shipe at Limehouse and West India Dock in a business which aind three companies, and not the junction company, were lizble to be arated, cluded the making of masts and Spars, ships" fittings and gear borto railway systems of those companies, and must be rianter borditegny of the ania wengines to the minimith brought the action to restrain the defendente Assesment Committee appealed from this decision, and

from carrying on this business, which the plaintiff alleged to be a breach

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M. Abrahams, Son, & Co.; Langton $ Son; Nurse, Hewitt, f Farman.
887.
April 30, 1887.
THE SOLICITORS JOURNAL.

427
wed the
he rating

of the defendant's covenant. Kay, J., granted an injunction, being of s. 153, was made by the liquidator of the company for payment by the logeneous

opinion that the defendant, in making all things requisite for shipbuilding, directors of some £2,100 in respect of payments, made by their terminas though not actually putting the things together, was infringing the spirit authority, pending winding-up, petition.

The company principle and meaning of the covenant.

registered on the 30th of July, 1884, and on the 23rd of July, nethod of

The Court of APPEAL (COTTON, L.J., Sir J. HANNEN, and LINDLEY, 1885, a winding-up petition was presented by a shareholder on, ity of the

L.J.) beld that the making and sale of masts and spars and other articles amongst other grounds, that of not having commenced business. The had DOT

used by shipbuilders in the building and repair of ships was a distinct payments in question were made upon or immediately after the presentabusiness from that of a ship and boat builder; and they varied the order tion of the petition, and a number of new shares were issued about by directing that the injunction was not to prevent the defendant from the same time. In October, Mathew, J., dismissed the petition with carrying on the business of making and selling ers, masts, blocks, and costs. In February, 1886, the Court of Appeal, having admitted

other articles used in shipbuilding; but they ordered him to pay the costs further evidence, made a winding-up order. The respondents to had found,

of the appeal.- COUNSEL, Marten, Q.C., and Simmonds; Hemming, Q.C., the present application submitted that section 153 conferred no and Maidlow. SOLICITORS, J. W. Marsh; Dawes & Son.

jurisdiction upon the fact of receiving from directors moneys paid in

respect of transactions between the presentation of the petition and Re SWANSTON (AN INFANT)-0.A. No. 2, 27th April. the winding-up order, but that the effect of the section was merely to INFANT—ADVANCEMENT-JURISDICTION OF COURT TO CHARGE RBAL Estate. make such transactions void, and to leave the liquidator to recover the In this case a question arose as to the power of the court to charge real that the application could not be made under section 165, as that section

money from the persons to whom it was paid, and they also submitted estate of an infant for the purpose of raising a sum required for his ad- only rendered directors liable for misfeasance and the like. vancement in life, there being no power to do so contained in the will by CHITTY, J., said that the application was not made under any parwhich the estate was given to him. Under the will of his father the ticular section, and that the effect of the two sections, when read together,

infant was entitled to a vested interest in real estate, subject to an was to render the directors primâ facie liable as a collective body, although 169 & 1

annuity to his mother for her life. He wished to learn farming, and to go the individual responsibility was a matter for future ascertainment. The
to Virginia for that purpose, and it was desired that he should be directors must be taken as knowing section 153 of the Act, and as having
apprenticed to a farmer there. His guardians applied to the court for made the payments with the knowledge that they would be disallowed
authority to raise by a mortgage of the infant's real estate a sum of £200 | unless the court ordered otherwise. It was certainly a bold thing to make
to provide for the fee which would have to be paid to the farmer and for such payments. He directed an account to be taken of the moneys which
the infant's outfit and passage-money, Chitty, J., felt a difficulty in had come into the hands or under the contro! of the directors or any of
granting the application by reason of what was said by Cotton and Lopes, them, and of the disbursements made by them or any of them, after the
L.JJ., in Cadman v. Cadman (33 Ch. D. 397, 30 SOLICITORS' JOURNAL, 687), date of the winding up.-Counsel, Romer, Q.O., and Medd;, Decimus
where they threw some doubt upon the accuracy of the decision of James Sturges; Rawson. SOLICITORS, S. Hughes & Son ; Harries, Wilkinson, f
and Mellish, L.JJ., in Re Howarth (8 Ch. 415), and he refused it.

In
Re Howarth it was held that the court had power to charge the real estate

Raikes ; Desborough $ Son.
of an infant with the cost of his past maintenance which had been pro.
vided by his mother, on the ground that, if the mother were to sue the

Re THE DISTRICT BANK OF LONDON-North, J., 23rd April.
infant for necessaries supplied to him, a judgment might be obtained by COMPANY-WINDING-UP Petition—WITHDRAWAL BY PETITIONER—Costs.
which his inheritance would be bound, and that the order asked for came
substantially to the same thing. In the present case Re Howarth was

The question in this case was whether, on the withdrawal of a windingrelied on, and it was urged that judgment could be obtained at law in an

up petition, the petitioner ought to be ordered to pay the costs of persong action for money advanced for the purpose of supplying an infant with appearing. The petition was presented by a shareholder in the company. necessaries.

And reference was made to Co. Litt., 172a, where it is said, At the time when it was presented it was anticipated that resolutions for "an infant may bind himself to pay for his necessary meat, drink,

a voluntary winding up would be proposed, and the petition contained apparel, necessary physic, and such other necessaries, and likewise for the following statements : -"Your petitioner has been informed and his good teaching or instruction, whereby he may profit himself after believes that the directors are about to call a meeting with a view to pass. wards.” The appellant's counsel asked the court, at any rate, to expressing resolutions for the voluntary liquidation of the company, but that in opinion that, if the money required should be advanced and applied there is great reason to fear that, in consequence of certain internal disin the way suggested, a charge on the real estate for the amount might sensions which exist among the members of the company, it is quite

possible that the board will fail to carry such resolutions by the requisite The Court of APPEAL (Sir J. Hannen and LINDLEY, L.J.) affirmed the majority ; notwithstanding that, as your petitioner is informed and decision. Sir J. Hannex thought that the court was not in a position to believes, the greater part of the members are agreed that the company make the order asked, which would no doubt be a very reasonable thing ought to be wound up either voluntarily or by the court. Your petitioner to do if there was power to do it. It might be that if the money had been

has presented this petition in the interest and for the protection of the aktually advanced and applied in providing the infant with necessaries, holders of the greater part of the shares in the company, and at their the order could be made, but, having regard to what had been said, that request, and in the event of resolutions for a voluntary liquidation being might not be the opinion of the court before which the application might carried, but only in that event, your petitioner will be willing, subject to come. In his lordship’s opinion Re Howarth was a decision binding on

the permission of this honourable court, to withdraw this petition.” the court. LINDLEY, L.J., was satisfied that the order asked for could not tical opinion. In his opinion the decision in Re Howarth was right? There in order to see whether the resolutions would be confirmed at a second becamade, and he thought that the court ought not to express a hypothe winding up had been passed, and the petition was ordered to stand over the win charged was for past maintenance of the infant.as the present meeting of the shareholders. At the second meeting the resolutions were SOLICITORS, Warrens. Sose was not like that, and might never be like it.—Counsel, E. Bray. confirmed, and when the petition came on again for hearing the

petitioner's counsel stated that he wished to withdraw the petition, and

asked that it might be dismissed without costs. The company did not opDE ANGLO-MONTANA MINING CO. (LIM.)—Ohitty, J., 22nd April. pose this, but counsel who appeared for some shareholders who had taken PRACTICE —COMPANY-WINDING UP-Cross-EXAMINATION OF Witnesses copies of the petition asked that the petitioner might be ordered to pay PROCEEDINGS BEFORE EXAMINER-LEAVE TO ATTEND.

their costs, or that a supervision order might be made. The statements in In this case, a petition having been presented by a shareholder to wind informed when they took copies of the petition that, if a voluntary windup the company, and the petitioner having moved for the cross-examina- ing up should be resolved on, and they should appear on the hearing of tion before the examiner of deponents on both sides, an application was the petition, the petitioner would lobject to their having any costs.

NORTH, J., ordered the petition to be dismissed without costs. He did motion, for leave to attend the proceedings before the examiner at their not understand that there was any absolute rule that, when a petitioner behalf of the company that the litigation was between competent parties, that would generally the done, but it must depend on the circumstances of ferencany in respect of alleged misrepresentations in its prospectus, the in-stop to dilatory proceedings with regard to the proposed voluntary windlesence was that they desired, for the purposes of such proceedings, to make ing up. a Resolutions for a voluntary winding up having been now passed, policif any information they could get by attending proceedings in the it would be fair, under the circumstances, to allow the petitioner to CHITTY, J., declined to accede to the applicants' request, saying that

withdraw the petition without ordering him to pay any costs. There was they were not served with notice of the motion, and also, that it was

no reason why a supervision order should be made to enable the share

holders who appeared to obtain their costs.-Counsel, Abraham ; Willisopen to them to obtain any information as to the result of the crossexamination from the petitioner's solicitor. He made an order in the Rubinstein.

Bund; Eve. SOLICITORS, Farrer, Ouvry, $ Co.; Wright of Wright; J. S. terms of the notice of the motion, upon the petitioner's undertaking to

Re ADAM EYTON (LIM.)-North, J., 23rd April.
horne, 2,0., Seward Brice, Q.co.mand Emden; Eustace Smith. Solicitors, COMPANY-WINDING-Up Petition—Costs - Second Petition Filed with

NOTICE OF FIRST.
R. NEATH HARBOUR SMELTING AND ROLLING WORKS (LIM.)

In this case there were two petitions for the winding up of the com-
-Chitty, J., 20th April.

pany. The second petition was prepared without any notice of the first, COMPARY~WINDING UP-CONTRACTS PENDING Petition—LIABILrry of Decorating to the present practice, informed by the officer of the court that In this case an application, stated to be under the Companies Act, 1862, secth petition, and when the petitions came on for hearing - Sounsel for

ict. c. idreked judges

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