« PreviousContinue »
the Bill seem to be hard upon the present holders of mortgages Lord Justice James's well-known declaration in Saffron Walden
Building Society v. Rayner (28 W. R. 687), that “there is no such thing and no such office "an official solicitor," applies) that
solicitors who are clerks to public bodies should be careful to A CORRESPONDENT draws attention to the fact that vendors of obtain an express retainer on each occasion of the transaction of lands taken for public purposes by public bodies, under Acts incor- business in respect of which they may have to send in a bill of porating the Land Clauses Consolidation Act, appear to be in- costs. cluded among the persons on whom the Land Transfer Bill would impose the duty of being registered as proprietors before selling them; and we would further observe that the damnatory
IT IS STATED that Mr. Justice Kay's decision last week in Tomclause 2, (a), (the effects of which we discussed ante, p. 375), | kinson v. South-Eastern Railway Co., granting an interlocutory would clearly apply to any public body accepting a conveyance, injunction to restrain the company from subscribing £1,000 to the without insisting on such vendor being so registered as a prelimi- Imperial Institute, is to be appealed against. We do not see how nary step. The wording of clause 2 leaves room for the contention, the learned judge could have refused the injunction consistently that the vendor would in such cases be liable to pay the costs of with the principles which have been laid down as to the exercise registration. Also it would seem that in case of a block occurring,
of this jurisdiction. “ In order to entitle the plaintiffs to an owing to press of business, in the Land Transfer Office, the public interlocutory injunction," said Lord Justice Cotron in Preston v. body purchasing would be reduced to the alternative of paying Luck (33 W. R. 317, 27 Ch. D., at p. 506), “it is necessary that purchase-money for a mere contract shorn of all the attributes the court should be satisfied that there is a serious question to be which usually enable people to proceed upon contracts (and which tried at the hearing, and that, on the facts before it, there is a would possibly be ultrà vires also), or of deferring the execution of probability that the plaintiffs are entitled to relief." There can public works until the impediments had been cleared away. be no doubt as to the existence of the first of these requisites in These difficulties could probably be somewhat lessened by suitable the recent case; nor can anyone who considers Lord CRANWORTH'S express provisions inserted in the Bill at some future stage, but the judgment in Hawkes v. Eastern Counties Railway Co. (5 H. L. question also suggests itself-why should not such sales and pur Cas. 331)—where he says that a statutory corporation, created chases be exempted from the operation of the clause altogether? by Act of Parliament for a particular purpose, is limited, as to all its The purposes of the Bill would be sufficiently met by requiring powers, by the purposes of its incorporation as defined in its act.” the public body to register it, and when, it has occasion to sell to doubt that there was at least a probability that the plaintiff in a private person. But to spend time and money in improving the the recent case was entitled to relief. We are disposed, therefore, facilities for selling the sites of newly-constructed public offices, to question the wisdom of an appeal from the recent order. But gasworks, railways, and the like, or even in setting time running the question to be decided at the hearing is one of enormous im. to cure possible defects in title which purchasers of superfluous portance, well deserving to be settled by the highest Court of lands from public bodies are always willing to shut their eyes to, Appeal. How far is a statutory corporation justified in expending would appear both a useless and a wasteful proceeding. The its funds on objects only indirectly conducive to the purposes defined question whether the issue of debentures is “ mortgaging land" in its Act ? Everyone knows that the great railway companies have within this same clause 2 is a further point of interest and import- for years been in the habit of contributing to objects which are ance suggested by the above reflections, and one to which we considered likely either to bring traffic to their lines or to benefit shall probably revert.
their servants, and the tendency of the cases has been to shew that such expenditure as a benevolent employer would be likely
to make (see Hampson v. Price': Patent Candle Co., 24 W. R. IT WOULD SEEM that one of the questions decided by Mr. Justice method of conducting a business” (Taunton v. Royal Insurance
754), and expenditure in pursuance of “the generally received STIRLING on Saturday in Re Jones was not covered by any reported Co., 2 Hem. & M. 135) are justifiable; but we are not aware case ; but the reason for this must surely have been that the ques- that the cases have hitherto gone further than this. tion was treated as being free from doubt. Where a client obtains the common order to tax, he cannot dispute the retainer of the solicitor as to the whole of the bill of costs, because he is bound by the admission of retainer contained in the application; hence, if he
WE LEARN that the Lord Chief Justice the other day took desires to dispute the retainer as to the whole bill, he must obtain occasion to renew his protest against the style of the House of a special order giving him leave to do so (Re Eldridge, 12 Beav. Lords in its judicial capacity as decreed by the Appellate Jurisdic387; Re Thurgood, 19 Beav. 541). But how does this rule apply tion Act, 1876—viz., "Her Majesty the Queen in her Court of to the case of a solicitor obtaining the common order to tax in a
Parliament." This nomenclature was, it appears, adopted by Lord case where his retainer is disputed? The client is in no way CAIRNS " in opposition to the opinions of several of her Majesty's bound by the allegation of retainer in the application, and con- judges." From the historical point of view the accuracy of the sequently is not debarred from objecting to the whole bill on the description may be questioned, but it is clear that, under the Act ground that there has been no retainer. Hew, then, in such a of 1876, the House of Lords in its appellate capacity is not less the case, can the common order be improper ? Mr. Justice STIRLING, in
“Court of Parliament” than it was before that Act, inasmuch as accordance with the practice in the taxing master's offices, held that section 5 does not exclude peers not having the qualification men, in such a case the common order is proper. The other point in the tioned in that section. It is stated in the Annual Practice, 1887 case was one of fact rather than of law, but was of some general (p. 68), that, in Bradlaugh v. Clarke (31 W. R. 677), Lord importance. Put shortly, the question was this :-A solicitor was DENMAN, a peer not so qualified, took part in the hearing, voting appointed clerk to the commissioners of a reservoir at a salary of) with the minority. £15 a year, the resolution appointing him stating that this modest payment was “to be in satisfaction for his services in giving notices for payment of rates in arrear," &c., but was not to include " money out of pocket or law business arising out of the reservoir this session. They have already sent fifty-one Bills to the
Tue House of Lords cannot be accused of legislative inactivity affairs, such as preparing conveyances or securities for money Commons, including such important measures as the two Lunacy borrowed, prosecuting or defending actions." Did this appointment Bills, the Law of Evidence Amendment Bill, the Glebe Lands operate as a retainer of the solicitor (who, during his tenure for over Bill, the Railway and Canal Traffic Bill, the 'Solicitors (Ireland) forty-four years of office as clerk to the commissioners, had been paid Bill, and the Sheriffs (Consolidation) Bill. Fourteen Bills are at several bills of costs in addition to his remuneration as clerk) as present in progress in the House. solicitor to the commissioners ? Mr. Justice STIRLING held that it did not. The solicitor was, he said, “the officer of the commissioners at a yearly salary, with the expectation, no doubt, on both sides that he would be employed to transact such legal business as
At the Exeter Assizes, on the 6th inst., Joseph Edward Curteis, solicitof, retainer." The moral of the decision seems to be (particularly if ing, and was sentenced to five years' penal servitude.
May 14, 1887.
Chancellor Kindersley was well founded in the observation he THE INCIDENCE OF ADMINISTRATION COSTS. made in Randfield v. Randfield (ubi suprà), that 'there was no case III.
in which, there not being a mixed fund by conversion, the court
had determined that there should be an apportionment.'” Shortly We were discussing last week the matters which are not after Mr. Justice Fry's decision, however, the question came included in the costs falling on the residuary personal estate, and before the Court of Appeal in Patching v. Barnett (ubi suprà), we saw that such costs did not include (a) the costs of determin- when Jessel, M.R., laid it down that, “in the administration ing questions arising with regard to, and relating exclusively to, of real and personal estate, the modern rule is that the costs exa legacy or trust fund after it has been “severed from the bulk of clusively occasioned by the administration of the real estate are the estate.” We have now to add that the costs falling on the thrown upon the real estate; and the general costs of suit are residuary personal estate will not include :
borne by the personal estate. But what I will call the increased (6) The extra costs occasioned by_legatees having assigned or costs arising from administering the real estate are, as a rule, incumbered their legacies or shares. In an administration action thrown upon the real estate ; and the court has been in the habit each legatee and his assignee or incumbrancer are entitled to one for several years past of apportioning those costs between each set of costs only (Greedy v. Lavender, 1848, 11 Beav. 417; Re estate at the hearing." Accordingly, when Re Middleton, ThumpBright's Trusts, 1855, 3 W. R. 544; Remnant v. Hood, 1860, 27 son v. Harris was afterwards brought before the Court of Appeal, Beav. 613). “It would be a great hardship and injustice,” said Mr. Justice Fry's decision was reversed, and it was held that the Romilly, M.R., in Greedy v. Lavender (ubi suprà), “to make costs of administration, so far as they had been increased by the those who retain their shares in the funds contribute to the administration of real estate, should be borne by that real estate. expenses of other persons who, for their own convenience, and by The rule must, therefore, now be taken to be settled that, where their mode of dealing with their shares, have occasioned addi- real and personal estate are not devised and bequeathed so as to form tional
expenses.” Accordingly he allowed one set of costs only a mixed fund, the administration costs exclusively relating to the real to each legatee, and then gave the costs which the assignor would estate—e.g., the costs of settling the construction of the devise in have had if he had made no assignment to his assignee. The the will—will fall on such real estate. This appears to be a same rule applies where the legatee has assigned or incumbered a considerable inroad on Lord Thurlow's doctrine that, “wherever a part only of his legacy or share, the assignee or incumbrancer testator has expressed himself so ambiguously as to make it being allowed his costs in full out of the sum allowed for costs necessary to come into this court, his general assets must pay the (Turner v. Gowdon, 1871, 19 W. R. 403). It is not very easy to costs” (Jolliffe v. East, 1789, 3 Bro. C. C., at p. 27; see also see how this rule is to be completely applied in the case of the Wilson v. Brownsmith, 1803, 9 Ves, 180). administration of an estate out of court, but it is conceived that (d) The costs of investment in the purchase of land under a in strictness any extra costs occasioned by ascertaining the title of direction in a will to accumulate and lay out a specified sum of an assignee or incumbrancer ought to come out of the legacy or money in the purchase of land. Such costs are payable out of the share which has been assigned or incumbered.
sum directed to be invested (Gwyther v. Allen, 1842, 1 Hare, 505). (©) The costs exclusively occasioned by the administration of the The reason for this decision seems to have been that the sum real estate of the testator not devised so as to form a mixed fund with specified was the extent of the gift for the purpose of the investthe personalty. Such costs are to be borne by the real estate ex- ment, and that to give the costs of the investment would be to clusively (Patching v. Barnett, 1881, 51 L. J. Ch. 74; Re Middle- enlarge the gift. It is presumed that a similar rule is applicable ton, Thompson v. Harris, 1882, 30 W. R. 293, 19 Ch. D. 552). to a direction to executors to invest a sum of money in the purchase There has been a singular change in the current of decision on of stock in the name of a legatee. this subject. In Ripley v. Moysey (1837, 1 Keen, 578), Lord (6) Where real and personal estate are devised and bequeathed so Langdale, M.R., held that “all costs and charges occasioned by as to form a mixed fund, the administration costs will be apporthe will” should be paid out of the residuary personal estate, tioned between the real and personal estate according to their although some of them were incurred in proceedings affecting the relative values (Walter v. Maunde, 1815, 19 Ves. 423, 429 ; real estate only. In Pickford v. Brown (1856, 2 K. & J. 426, Christian v. Foster, 1846, 2 Phil. 161). In the last-mentioned case 436) there were two suits to obtain the decision of the court upon the question was raised whether, instead of a direction that the costs the construction of a will, one as to the testator's real, and the should be paid out of the realty and personalty according to their other as to his personal, estate. Wood, V.C., directed that the value, there should not be a direction to separate the costs, and costs of both suits should be paid out of the residuary personal to pay so much as bad arisen on account of the real estate estate of the testator. The same rule was adopted by Romilly, out of the realty, and so much as bad arisen on account of M. R., in Stringer v. Harper (1859, 26 Beav. 585), and by Kin- the personal estate out of the personalty, but Lord Cottendersley, V.c., in Randfi eld v. Randfield (1863, í W. R. 847), ham, C., said that the inquiry asked—How much of the though he remarked that if the matter were res integra his costs had been incurred in respect of the real and how much in tendency would be to hold that, inasmuch as the real estate went respect of the pereonal estate ?-would be attended with great one way and the personal estate another, so far as the costs were difficulty, nearly all the proceedings being common to both," and incurred by determining the rights of the real and personal estates, he affirmed the direction of the Master of the Rolls, that the costs primâ facie, those two estates ought to bear some portion of the should be paid rateably out of the realty and personalty according cost.”. There was, therefore, a series of decisions of eminent and to their value. This rule applies where, owing to the dispositions careful judges, extending over a period of between forty and fifty of the will having failed for want of objects to take, the real and years, in favour of the view that the costs falling on the residuary personal estate go in different directions. This state of things personalty should include the costs of administering the real occurred in Christian v. Foster (ubi suprà); and in his judgment estate. On the other side there were only Sanders v. Miller Lord Cottenham deals as follows with the question :(1858, 25 Beav. 154), which seemed to have been decided on the “It must be observed that, although during the lives of the tenants mistaken supposition that the testator had formed a mixed fund of for life the funds were kept separate, they were united and blended Teal and personal estate, and a case of Barnwell v. Iremonger upon the death of the survivor; and, had not the dispositions of costs incurred in relation to the real estate, irrespectively of the realty and personalty would from thenceforth have formed but one personalty-0.9, the costs incurred in selling part of the real fund. The testator directed their union; events which he did not estate—ought to be charged on such real estate. The costs of the contemplate have prevented it. What, in such cases, is the rule but the costs and expenses of the sale were directed to be borne parts of the fund were intended to be given, and in both the gifts
have failed for want of objects. Why, in such a case, is one part It is not surprising that, in this state of the authorities, Fry, J., of the fund only to bear the costs of lítigation common to both”? ielt Re Middleton, Thompson v. Harris (ubi supra), should have Assuming, therefore, that these cases are still law (which there the administration of real and personal estate should be borne by state of things : Tf, owing to the failure of a testator’s dispositions, the residuary personal estate. He said that, in his opinion, or Vice his real and personal estates go in different directions, the costs of
administration of both the real and personal estate will be appor
The new judge required in the Chancery Division, I would most tioned between the persons entitled to each in proportion to their respectfully submit, should be appointed from the equity bar. The relative value. If, on the other hand, a testator's real and personal common law judges at present number fiiteen, the chancery judges
only five. estates go in different directions under the dispositions of his will,
There can be no doubt that economists are startled when it is the costs will fall upon the property in respect of which they have proposed to increase the number of the judges ; but it must be apparent been incurred.
that, although there are so many judges in the Queen's Bench Division, there are so few in the Chancery Division. To get rid of the “Divisional Courts” should be the anxious desire of every
ecoņomist, the more so as these courts are not appellate courts in the REVIEWS.
full sense of the word. Some of the judges might weli be taken from
the Queen's Bench Division to form an Appeal Court No. 3, or be COUNTY COURT FORMS.
added to the present Appeal Courts No. 1 and No. 2. A COUNTY COURTS FORMULIST. By RICHARD AUSTEN DALE, The scheme for amalgamating the offices of chancery taxing Solicitor. William Clowes & Sons (Limited).
masters and registrars with that of the chief clerks of the chancery This is a book which supplies a want rather widely felt, judges I hope will be resisted. I do not believe it would work so and, we are glad to say, supplies it very efficiently. It contains well as the present system, by which there is a division of labour which a singularly complete collection of forms for use in proceed - is beneficial to the suitors, and to destroy which would, I believe, be
the reverse ings in the county courts, whether under their ordinary, equitable, or special statutory jurisdictions, other than admiralty and
If it should be determined to give a staff of chief and other clerks bankruptoy. The forms commence with examples of forms in to Mr. Justice Kekewich, and®“ economy stands in the way, I ordinary proceedings then follow forms relating to the officers of think that might be got over by appointing only two chief clerks and the courts ; to solicitors ; to the control exercised by the High dividing the alphabet by two instead of three; the principal clerks, Court over the county court; and then we come to a most elaborate selected from the chambers of the existing chief clerks, and a suffi
“ first class clerks, might be collection of forms relating to all the proceedings preliminary to, and needed in the course of, and subsequently to, an ordinary action. cient number of second class clerks from those chambers who are Next there are given forms in proceedings in actions and matters of qualified for promotion might be appointed first class clerks to Mr. a special nature ; and, lastly, we have the forms relating to pro- the decline in the number of orders directing administration accounts
Justice Kekewich. This might more easily be done as, by reason of ceedings under the jurisdiction in equity. examined are accurate, and we can speak in high terms of the uotes to be taken in chambers, many of the clerks who were appointed to and directions which are added on the different subjects. They are
take, or who usually did take these acconnts, could easily be spared, concise, practical, and thoughtful, and collect and state with care
and might devote their energies to the work of the chambers of Mr. and intelligence the material decisions on practical points. The work
JAMES RAWLINSON. constitutes an admirable companion to the standard books on county
Upper Holloway, N., May 11. court practice, and may be commended to the notice of practitioners.
CASES OF THE WEEK.
WALBROOK & CO. v. JONES AND LEWIS-C. A. No. 1, 9th May.
PRACTICE APPOINTMENT OF Receiver ON EX PARTE APPLICATION [To the Editor of the Solicitors' Journal.]
R. S. C., 1883, L., 15A. Sir,- I do not observe in the Bill, or in the remarks of the learned This was an appeal from a divisional court (Day and Wills, JJ.). The author of your recent articles upon this subject, any reference to the plaintiffs had recovered judgment against the defendant Lewis for £108, effect of the proposed compulsory registration before selling (see but the sheriff was unable to levy execution. They accordingly applied clause 2 of the Bill) on the taking of land for public purposes under to Manisty, J., at chambers to appoint a receiver of Lewis's salary, but Acts incorporating the Lands Clauses Consolidation Acts.
the application was refused. They then applied, ex parte, to the Divisional This is a matter of some importance to all public bodies, railway Court, who granted the application, and appointed a receiver of the whole companies, &c., engaged in carrying out undertakings of
of Lewis's weekly salary. It appeared that Lewis was a managing clerk public nature; and the proposed legislation should, at any rate, behalf that the order for a receiver ought not to have been made in his
to a firm of solicitors at a salary of £4 per week. It was now urged on his make it clear, by express enactment, what is intended on this absence, and that this was not a proper case for making such an order: point.
The Court (Fry and Lopes, L.JJ.) allowed the appeal. Fry, L.J., said It appears to be clear that all compulsory powers should be pre- that orders of this kind affecting a person's maintenance and livelihood served intact; and the effect of requiring a preliminary registration ought not to be made in the absence of the defendant. The court had no of title, in cases of an agreement to sell to a public body, before a doubt jurisdiction to make an order for a receiver upon an ex parte appli: conveyance could be taken would, to say the least, be to very cation, but that jurisdiction ought to be exercised with the greatest seriously bamper, if not to bring to a dead lock, the existing some caution, and only in cases of emergency. The order was borrowed from delay and loss might be occasioned, without, it is submitted, any what complicated machinery of the Lands Clauses Acts, and great the Chancery practice, and it was there almost unknown to make such an
order on an ex parte application. The mere fact that Lewis had refused to compensating advantage.
assist the sheriff in levying execution on his goods by declining to open Perhaps, sir, in a future number you may kindly favour the pro- his absente. It was the duty of the conrt under ord. 50, r. 15a, to see if sheet of fession with some remarks upon this portion of the subject. Spring-gardens, S.W., May 9.
order would be just or convenient. In this case it would fulfil neither of
F. H. BARTLETT. [See observations under head of “Current Topics.”—ED. S.J.]
those requisites since it gave equitable execution against the whole of Lewis's means of maintenance. It would, therefore, make it impossible for him to continue in his employment, and would thus defeat its own ends
by destroying the very fund it was intended to receive. Lopes, L.J., said THE CHANCERY DIVISION.
he wished entirely to indorse the remarks of Lindley, L.J., in Lucas V.
Harris (35 W. R. 112, 18 Q. B. D. 127), where he said, [To the Editor of the Solicitors' Journal.]
tions for a receiver ought not to be granted even after judgment except in şir,--It is generally admitted that the appointment of an additional maintena, anda eneste nyt lightiy departed from." -COUNSEL, Lewis Edmundo ; judge for the trial of witness causes in the Chancery Division would J. B.' Bankes. SOLICITORS, Maddison ; Mason & Trotter. be of great benefit to the suitors; but we live in days when “economy” is not only talked about: it is to be realized and
Re THE LANCASHIRE COTTON SPINNING CO., Ex parte will be subordinated to the interests of the suitors. There is ample COMPANY-WINDING UP—Distress For Rent-LEAVE OF COURT TATTORN
CONELLY-O. A. No. 2, 5th May. scope for the study of economy in other directions. The abolition of authorities to create more judges bem appellatio rank'; and set at of the matin, en ved ought to be even to the mortgages of our openen
MENT Clause in Mortgage-COMPANIES Act, 1862, ss. 87, 163. liberty other judges for the trial of actions all the year round. The appeails of both divisions; and in teorisequences the chambers would seem contained on erinese behen hoch and company attornea tenanten torder The additional appellate judges would keep down the contrare miles monteringen en de company rated machinery therein to the
company to distrain for rent due to them by virtue of an attornment have more work to do, and the suitore verse would be greatly in der gegen inte dan alaus bent biele 1,595.com November, 1885, marine in creased.
was made to wind up the company, and the official liquidator remained in
ex parte applica
May 14, 1887.
461 possession of the mills with the view of selling them as a going concern. Imperial Institute ; provided that any shareholder who declines to be a He expended money in keeping up the mills and the machinery, but he party to any such donation shall have his proportion returned to him with did not actually work them. The mortgagees acquiesced in this arrange- bis next dividend warrant.” This resolution was carried by a large ment, believing it to be for the benefit of all parties interested. The majority. The plaintiff was not present at the meeting, but after reading mortgagees applied to the court for leave to distrain for a year's rent a report of the proceedings, he wrote to the secretary of the company, on due under the attornment clause on the 31st of December, 1886. North, J., the ilth of March, protesting against the company's funds being applied refused the application.
as was proposed, and threatening legal proceedings. The secretary replied, The Court of APPEAL (COTTON, LINDLEY, and Bowen, L.JJ.) affirmed the pointing out that the directors were accustomed to act in obedience to the decision. COTTON, L.J., said that, in order that such an application orders of their shareholders, and not otherwise, and that, having regard should be granted, sume special circumstances must be shewn justifying to the amount of the plaintiff's holding, his proportion of the subscription the court in depriving the company's creditors of the benefit of section would be about 13d. After further correspondence the plaintiff com163. In his lordship's opinion the landlord was bound to shew, either menced this action, and now moved for an injunction to restrain the that there was some special equity making it unjust that he should not be company from subscribing the £1,000 in the manner proposed. In oppo. allowed to distrain, or that the premises had remained in the occupation sition to the motion, the general manager of the company made an affidavit of the liquidator for the sole benefit of the company. In the present case stating that, in recommending the proprietors to contribute to the funds no special equity in favour of the mortgagees had been proved, and it was of the Institute, the directors desired to further its establishment in the clear from the evidence that the premises had remained in the occupation belief that a great number of visitors would be thereby drawn from the of the liquidator for the joint benefit of the company and the mortgagees. districts served by their railway, and their traffic largely increased; and Moreover, a mortgagee with an attornment clause did not stand in so that, inasmuch as the previous exhibitions at South Kensington had, by favourable a position as an ordinary landlord. LINDLEY and Bowen, L.JJ., the issue of through tickets from their system of railways, increased the concurred. - Counsel, Buckley, Q.O., and Phipson Beale ; Napier Higgins, traffic revenue of the company by many thousand pounds, the directors Q.C., and Chadwyck-Healey. SoliCITORS, field, Roscoe, & Co., for Rio by believed that the establishment of the Institute at South Kensington & Claydon, Oldham ; Gregory, Roucliffes, f Co., for A. & G. W. Fox, Man- would lead to a similar result. Further, that railway companies in general chester.
had been accustomed to contribute to the funds of objects likely to en
courage traffic upon their lines, such as race-meetings and regattas, and also APTHORPE v. APTHORPE-C. A. No. 2, 11th May.
to hospitals and other public institutions which might benefit their serNAVAL OFFICER-ASSIGNABILITY OF PAY--ATTACHMENT FOR Costs.
vants. It was contended, on behalf of the defendant company, that the
proposed subscription, being conducive to the prosperity of the railway, The question in this case was whether the full pay of an officer in the was not ultrà vires, on the authority of the cases of Taunton v. Royal Royal Navy on active service could be attached for the payment of his Insurance Co. (12 W. R. 549, 2 H. & M. 135), where it was held to be wife's costs of a divorce suit. Section 141 of the Act 44 & 45 Vict. c. 58 within the power of insurance companies to pay in their discretion risks expressly makes void any assignment of the deferred pay of any officer in which they were not legally liable to pay: Hampson v. Price's Patent Candle the army, but section 5 of the Act 28 and 29 Vict. c. 73, applies only to Co. (24 W. R. 754), where a payment by the directors of extra wages to assignments of the pay of a "subordinate officer, seaman, or marine in the the company's workmen was allowed ; and Hutton v. West Cork Railware navy," and not to assignments of pay made by commissioned officers. In Co. (31 W. Ř. 542, 827, 23 Ch. D. 654), where a similar gratuity woulă the present case the husband was a surgeon in the navy on active service, have been allowed if the company had still been a going concern. his rank being that of a lieutenant. The wife sought to attach his pay for
KAY, J., said that he had no doubt that it was the duty of the court to the payment of her costs in the suit, which he had been ordered to pay grant the injunction. It was well settled that, if a proposed act were and had not paid. Butt, J., held that the pay could not be attached. outside the powers of a company, any shareholder might ask the court
The Court of APPEAL (COTTON, LINDLEY, and BOWEN, L.JJ.) affirmed to stop it, and the court had no discretion in the matter. In this case, so the decision. COTTON, L.J., said that, assuming that the pay of an officer far as his lordship was informed, the Imperial Institute had no more in the navy was not protected by statute from assignment, he thought connection with the railway company than the exhibition of pictures at that it was protected by the general law. The pay was intended to keep Burlington House, or at the Grosvenor Gallery, or Madame Tussaud's, or the officer in a position to discharge his duties properly. It had been held any other exhibition in London. The only ground suggested for allowing that an officer's half-pay could not be assigned. And if half-pay, which the proposed payment was that the traffic would be thereby increased ; but was intended to keep the officer in a proper position to discharge his duties, this result would follow from any exhibition which people wished to see, when he should be called on to do so, could not be assigned, it followed and, as he understood the law, to apply the funds of a railway company that full pay, which was given to the officer to enable him to discharge towards such an exhibition would clearly be improper. The proposed bis present duties, could not be assigned. And if the pay could not be payment was, therefore, in his opinion ultrà vires. The resolution proassigned, it would be equally wrong to attach it by any order of the court. vided that any shareholder who objected to the donation should have his LINDLEY, L.J., was astonished that the question should have been raised. proportion returned to him ; but a shareholder had a right to say that he If half-pay could not be assigned, it would be a startling thing if full pay did not want his money spent in this way at all, and that he objected to could. Bowen, L.J., said that an assignment or attachment of an officer's the whole of the proposed expenditure. The cases cited were really pay would be contrary to public policy. -Counsel, Bargrave Deane ; Searle. authorities against the company. In Taunton v. Royal Insurance Co. it was SOLICITORS, Langlois & Biden ; Bramall & White.
shewn that risks, for which insurance companies were not legally liable,
had long been considered by managers to be payable at their discretion, CHARLES v. JONES—Kay, J., 7th May.
and were paid in order to impress the public with an idea of their liberMORTGAGE— Power of SALE—INTEREST on Surplus Proceeds of Sale- of vesting such a discretion in directors to the very verge to which it could
ality. He had always considered that this case had carried the doctrine Costs OF INQUIRIES.
go, and that the court merely meant to decide that it would not restrain A mortgagee in possession sold the mortgaged property in 1884 under a one company from doing what others had always done. The other cases power of sale contained in the mortgage. In an action brought against only held that directors who, acting as good masters often did, gave extra him for an account, he admitted that £600, and that only, was due from wages to workmen with whom they were satisfied in order to encourage bim in respect of rents and profits and surplus proceeds of sale, and he them in diligent and faithful service, were not acting beyond their powers. subsequently paid this amount into court. The chief clerk, by his certifi- None of these cases touched the present one, and he should be the last cate, found that, in addition to this, there was due from him a further judge on the bench to extend their meaning: It was important to keep sum of £591 3s. 11d. The question was whether he ought to pay interest incorporated companies within the limits of their powers, and the court on these two sums from the date of the completion of the sale, and had always done so. To argue from the cases cited that any expenditure whether he ought to have his costs of the inquiries.
which would indirectly conduce to the prosperity of a company was intrà
PRACTICE-EVIDENCE DE BENE Esse-FORM OF ORDER R. S. O., 1883,
In this case the proper form of an order for the examination of wit-
nesses de bene esse came under the consideration of the court. The object This case raised the question whether it was ultrà vires of a railway sums of stock which the plaintiff alleged had been transferred out of his proprieto, for the purposes of the Imperial Institute. Wat a meeting of the attested the execution of the transfer being dangerously nu, the plaintiff paroprietors of the defendant railway company, theta on the Sithtire match moved, em parte, that his examination might be taken de bene esse. last, to consider a circular issued by the Executive Council of the Imperial Kay, J., in granting the application, observed that he was surprised to Trstitute, a resolution was passed, bpwhich the directors the duauthorized contained the words : ora and it is ordered that the plaintiff be'at liberty proprietors, as they may be advised, to sumcribe the boumno se pred to the in his opinion these words ought not to be inserted, for at the trial the
witness might be capable of being examined, and it would then be nominally and personally a party; and the court could not make a per. necessary for the plaintiff to show that he was incapable of being examined sonal order for costs against the liquidators where, as here, they were before leave would be given to use the evidence. In other respects the form only sued in the name of the company. The order for costs must thereof order given in Seton on Decrees was correct. His lordship, in reply fore be in the ordinary form against the company only.-COUNSEL, War. to a question whether the order should direct a special examiner, said mington, Q.O., and G. F. Hart; Barber, Q.O., and Townsend. SOLICITORS, that the matter would go to the examiner in rotation.—COUNSEL, Whito M. Abrahams, Son, & Co.; Hurford f Taylor. aker. SOLICITORS, Stephens $ Stephens, for Henry Hand, Macclesfield.
BOLTON v. MILLS-Chitty, J , 6th May.
Re BETTS, Ex parte THE BOARD OF TRADE-C. A. No. 1, 2nd May. This was a motion for foreclosure absolute. It
appeari d that a receiver BANKRUPTCY-Realization of BANKRUPT's Estate—DUTY OF BANKRUPT TO had been appointed in the action, and that the plaintiff had written to the
AID IN REALIZATION-CONTINGENT REVERSIONARY INTEREST-MEDICAL defendants, stating that the receiver had received up to date a sum of some
EXAMINATION-POLICY OF INSURANCE-ORDER OF DISCHARGE-BANK$500, and had expended some £100, and that the plaintiff was willing to
RUPTCY Act, 1883, ss. 24, 28. take such amount, and any further amount which should be received by the receiver, in reduction of a sum of £5,000 found due to the plaintiff by The question in this case was whether it was the duty of a bankrupt, the chief clerk's certificate, and was willing also to allow a deduction to part of whose property consisted of a contingent reversionary interest, to the defendants of a sum of £500 if the residue of the £5,000 should be paid submit to a medical examination to enable the trustee in the bankruptcy at or before the date fixed for foreclosure absolute. It was stated that the to insure his life, and then sell the reversionary interest with the policy. mortgaged property was deficient, and that no answer had been received The bankrupt was entitled to a contingent reversionary interest in the to the plaintiff's letter, and that the plaintiff had served on the defendants event of his surviving his mother, who was aged sixty-nine. The trustee notice of the present motion. It was stated that the plaintiff had adopted had an opportunity of selling this interest for £800 if the bankrupt's life the above-mentioned course as a means of obviating the difficulties arising could be insured, and the trustee called upon the bankrupt to submit for from the decision in Jenner-Fust v. Needham (31 Oh. D. 500).
this purpose to a medical examination. The bankrupt refused. Before CHITTY, J., said that although there was nothing to shew that the the bankruptcy he had tried to raise money upon the reversionary interest defendants had accepted the plaintiff's offer, yet he should make an order for the purpose of carrying on his business, and at that time he subas asked, and the defendants might, if they thought fit, move to discharge mitted to a medical examination for the purpose of insuring his life, and the order. He would make the order more readily because the defendants his life was accepted, but the insurance was not carried out. The bank. had had notice of the motion.-SOLICITORS, Harvey, Oriver, & Capron, for rupt applied for an order of discharge, and the official receiver reported E. C. Newey, Birmingham.
that, to the extent of refusing to submit to a medical examination, the
bankrupt had failed to aid to the utmost of his power in the realization Re MORGAN, OWEN v, MORGAN-North, J., 6th May. of his property as required by sub-section 3 of section 24 of the Bank. R. S. O., 1883, XIX., 27-STRIKING OUT EMBARRASSING PLEADING
ruptcy Act, 1883. Mr. Registrar Giffard, on the authority of Ex parte INCONSISTENT ALTERNATIVE DEFENCES.
Bullock (16 Q. B. D. 698), in which Cave, J., held that a bankrupt could not
be ordered to submit to a medical examination for the purpose of This was a summons by the plaintiffs, under rule 27 of order 19, to insuring his life, declined to take this refusal into account, but susstrike out some of the defences raised by the defendant in his statement pended the bankrupt's discharge for six months on another ground. of defence, on the ground that they tended “to prejudice, embarrass, or The Board of Trade and the trustee appealed. It was contended that delay the fair trial of the action." The action was brought by the the bankrupt had not complied with sub-section 2 of section 24, which administrators of a wife against the executor of her husband, claiming to requires that a debtor shall “ generally do all such acts and things in recover from the husband's estate certain sums of money wbich they relation to his property and the distribution of the proceeds amongst his alleged that he had received on trust for the separate use of the wife. By creditors as may be reasonably required by the official receiver, special his statement of defence the defendant denied that the husband had ever manager, or trustee, or may be prescribed by general rules, or be directed received the moneys in question, and said that, if he had received them, by the court.” he had not received them upon any trust. The defendant also alleged The Court of APPBAL (Lord Esher, M.R., and fry and Lopes, L.JJ. in the alternative that, if the moneys had been received, they had been affirmed the decision, Fry, L.J., dissenting. Lord ESAER, M. R., said repaid to ths wife, or that she had made a gift of them to her husband. that the question was not whether the conduct of the bankrupt was reasonThe defendant also pleaded accord and satisfaction, set off, and the Statute able, but whether it was brought within the Bankruptcy Act, 1883 Section of Limitations and delay. The plaintiffs asked that the defences of re 28 said that “the court shall take into consideration a report of the payment, gift, accord and satisfaction, and set off might be struck out official receiver as to the bankrupt's conduct and affairs, and may grant, as embarrassing and inconsistent.
or refuse, or suspend the order of discharge. In his lordship's opinion, NORTH, J., held that the defendant was not entitled to plead inconsis. "conduct” there referred to, if it did not come within the cases specified tent alternative defences of fact, and that the defence was embarrassing; in section 28, must be something mentioned in section 24. The question, but he gave the defendant leave to amend. -COUNSEL, Cozens- Hardy, Q.8., therefore, was whether the refusal to be medically examined was a refusal and B. Eyre ; Upjohn. Solicitors, Crouch, Spencer, $ Edwards ; Morgan, to do an act within the meaning of section 24. The object of the medical Son, $ Upjohn.
examination was to enable a policy to be effected on the bankrupt's life,
so as to give a greater value to his contingent reversionary interest. The FRASER v. PROVINCE OF BRESCIA STEAM TRAMWAYS Co. policy never would be the bankrupt's property. It would be sold with (LIM.)- Kekewich, J., 2nd May.
the reversionary interest to the purchaser. The act which the bankrupt PRACTICE—Costs—" HIGHER Scale”–R. S. C., 1883, LXV., 9–Per- would be part of the bankrupt's property. The act which he was required
was required to do would relate to the creation of property which never SONAL ORDER ON LIQUIDATOR TO PAY Costs. In this case two questions arose with reference to the costs of the quired for the purpose of adding a new value to his property: Subaction, which had terminated in favour of the plaintiffs. The first ques- section 4 of section 24 made a wilful failure to perform the duties ima scale; the second was whether the liquidators of the defendant company be extremely dangerous to bring within that section any case which was should be ordered personally to pay the costs of the action incurred since not clearly within it. In his lordship’s opinion Ex parte Bullock was rightly their appointment. The action was of a complicated nature, involving decided. Fry, L.J., differed from the rest of the court and from Ex parte the consideration of a number of foreign contracts and judgments ; the subject-matter being a sum of about $4,500.
Bullock. He founded his judgment upon the particular facts of the case. KEKEWICH, J., hoped that some guide would soon be afforded for the versionary interest, and submitted himself for examination.
The bankrupt before the bankruptcy proposed to raise money on the re; application of ord. 65, r. 9. Here there was admittedly no "urgency. The meaniug of “importance” was not plain, it could not be confined to
stated that he had contracted no disease since then, and without any importance in a public point of view, nor could it refer merely to the within sub-section 2 of section 24The act required of him was an act
reason he refused to submit to a medical examination. Was the case value of the property in dispute ; at any rate, the amount at stake in this “ in relation to his property." activu was not enough to enable him to award costs on the higher scale and would realize
The property depended upon his life, a far larger sum
if the contingency upon thought that the comparative simplicity of the case as actually presented reasonably required, for a reasonable man would feel under an obligatie.
The act was oue which could be to the court was the result of special industry and learning and much to do it. And under sub-section 3 the bankrupt was bound to aid to the 1950 time and expense employed in preparing it for trial. He therefore made most of his power in the realization of his property, which must mean so plaintiff's costs on the higher scale, if he thought fit, on the ground of be done in the present case by.a policy being effected. No doubt the bank lordship said he should have had no double but foth the clientum utstienilishi, haping taken so conreasonable a course, would be very properly commited L.J., in Ex parte Angerstein (9 Ch. 479), and a passage in the judgment in
if he persisted in his refusal ; whereas, on the other view, he could detaken to refer to cases where liquidators were actually personally parties Master of the Rolls, cases such as this, where they were merely-suing or defending in the court reserved their judgment, buth on the 6th inst. the court gave dette
Leave was asked to appeal to the House of Lords. On this point the name and on behalf of the company. In the latter case they were in a different position from that of a trustee in bankruptcy, who was always TOR, Solicitor to the Board of Trade.
to appeal. —Counsel, Sir E. Clarke, 8.g., and J. E. Linklater. Solici.