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Cooper Wyld, and De Colyar ; Richmond ; Willis, Q.C., and J. Scott Fox.
MILLS 1. MILLS—Kay, J., 29th November.
POWER-EXECUTION—Special Power over REAL ESTATE-GENERAL DEVISE
- No REFERENCE TO POWER—WILLS ACT, ss. 24–27. 29th and 30th November.
In this case a question was raised as to which it appeared that there Poor RATB-ASSESSMENT OF MANUFACTORIES—Machinery Not Attached, devise operates as an execution of a special power of appointment over real
was no direct authority-viz., whether, since the Wills Act, a general TO THE FREEHOLI).
estate, the testator having, both at the date of his will and at his death, This was an appeal from the decision of the Divisional Court, reported 34 no other real estate to which the general devise could apply. Under the W. R. 531, discharging a rule nisi to quash the order of the Northumberland will and codicil of Thomas Mills, who died in 1865, certain real estate was Quarter Sessions. It appeared from the special case that the appellants had devised to the use of trustees upon trust for his son W. B. Mills for life. been assessed to the poor on a gross estimated rental in respect of the and after his decease upon such trusts as his son should by deed or will land and works occupied by them of £590, the rateable value being set appoint, so only that every such appointment be made in favour of some down at £501. It was admitted before the justices that, in arriving at the
one or more of his children or other issue born in his lifetime, and in rateable value of the premises, certain machinery had been taken into con default upon trust for such children equally. W. B. Mills, by his will sideration as enhancing the value of the premises, and that the whole of dated in November, 1884, after appointing trustees and executors, devised such machinery was the property of the appellants and not of the land and bequeathed all his real and personal estate not thereby ctherwise
There was no intention on the part of the appellants of making disposed of, upon trust for sale and conversion, and to pay his funeral and such machinery part of the soil or hereditaments or permanently annexing testamentary expenses and debts and legacies, and to invest the residue it thereto. The machines were all capable of being, and were in fact and to stand possessed of £7,000, part thereof, upon trust for his wife for from time to time, bought, sold, removed, and renewed as separate and life, and then for his children by her or their issue us she should appoint, aistinct articles without injury to themselves or to the main structure. and in default upon trust for all his children by her, and failing such to Some of the machinery was not physically attached to the premises at all, his son and daughter by a first marriage. And as to £3,500, upon trust but rested upon them by its own weight. In other cases the machinery for that daughter, and the residue to his son. W. B. Mills died in March, was attached by brick seatings or by screws fixed into concrete founda
1886. He had no real estate other than that devised to bim by the will tions but merely for the purpose of being steadied whilst working. The of Thomas Mills, and the question was whether he had exercised the power question for the court was whether, in arriving at the rateable value of of appointment thereby given to him. It was contended, on behalf of the premises, such machinery had been rightly taken into consideration.
the son, that the power was exercised by the general devise of real estate, It was urged for the appellants that it was imposeible to take such on the ground that, before the Wills Act, a gift of real estate, where a machinery into consideration without really rating it, and that the test testator had no real estate of his own, but had a power of appointing real as to what chattels could or could not be rated was whether or not they estate, was sufficient to pass the land subject to the power.
And that were permanently attached to the premises so as to become part of the although the Wills Act, by making a will speak from the death, removed hereditaments.
the reason for this, which was that otherwise there would be nothing else THE COURT (Lord Esher, M. R., and LINDLEY and Lopes, L.JJ), in dismiss. upon which the devise could operate, there was nothing in the Wills Act ing the appeal and upholding the decision of the Divisional Court, said to alter the existing rule ; and that the intention of the Act was to enlarge that the whole of the decisions appeared to be perfectly consistent, and to the operation of devises and bequests. On the other hand it was conexpress the same rule as to rating though in somewhat different words. tended, on behalf of the persons entitled in default of appointment, that They considered that things which were on the premises for the purpose the question of whether a power of appointment had or had not been of making, and which, in fact, made, them fit as premises for the purpose exercised was always one of intention, whether with reference to real or for which they were used, ought to be taken into account in estimating the to personal estate, and that as, since the Wills Act, a general devise rateable value; or, in other words, things which, unless expressly excluded, carried after-acquired real estate, there was no longer any ground for would pass by a demise of the premises between landlord and tenant. inferring from a general devise any more than from a general bequest Physical annexation had never been treated as the test, and they con an intention of exercising a power of appointment. For this purpose sidered that the court of quarter sessions had rightly taken into considera- there must in all cases be a reference either to the power or to the property tion the whole of this machinery as enhancing the rateable value of the subject to the power. premises in question.-COUNSEL, Sir Horace Davey, Q.C., R. T. Reid, Q.C.,
Kay, J., after taking tinie to consider the question, decided that the and Cyril Dodd; Sir R. E. Webster, A.G., W. Graham, and Hans Hamıl. power had not been exercised. His lordship said that it was strange that ton. SOLICITORS, Flux & Leadbitter, for Leadbitter & Harrey, Newcastle-on- the question had not been determined before, but that he could not Tyne; Crossman, Crossman, $ Prichard, for Kidson, McKenzies, f kidson, discover any decision in point. The question was one of intention, and Sunderland.
the intention of a testator could be inferred only from the words of his WILLMOIT". THE LONDON CELLULOID CO. (LIM.) –
will and from the surrounding circumstances known to him at the date of
his will, which the cases shewed the court was at liberty to regard. It C. A No. 2, 26th November.
was noticeable here that the objects of the general devise were, to a great COMPANY-WINDING UP--FRAUDULENT PREFERENCE-COMPanies Act, 1862, extent, outside the terms of the power, and the enlarged operation which 8. 164.
the Wills Act gave to a general devise was also a very important cir.
cumstance to be considered. The testator here had, at the date of his The main question in this case was whether, in the winding up of a will, no other real estate. If he had afterwards acquired any it would company under the Companies Acts, a transaction can be set aside as a
have passed thereby, unless the general devise could have been read as fraudulent preference at the instance, and for the benefit, of a particu; applying exclusively to the property the subject of the power, which, lar class of the creditors of the company, not for the general benefit of all since the Wills Act, seemed impossible. Under the old law the reason for the creditors. Section 164 of the Companies Act, 1862, provides that holding that the power was exercised was that otherwise the words could "any such conveyance,
payment, execution, or other act have no operation, but it could not be said now that a general devise was relating to property as would, if made or done by or against any wholly inoperative if it passed real estate afterwards acquired, although individual trader, be deemed, in the event of his bankruptcy, to have been the testato had, at the date of his will, no other real estate. In his lord. made or done by way of undue or fraudulent preference of the creditors of ship’s opinion anything like a general rule for discovering intention was such trader, shall, if made or done by or against any company, be deemed, objectionable, and the suggestion that the Wills Act was intended to in the event of such company being wound up under this Act, to have enlarge the operation of devises was fallacious, as, the reason for inferring been made or done by way of undue or fraudulent preference of the the intention being removed by the Act, the presumption of such intencreditors of such company, and shall be invalid accordingly," and the tion ceased. The burden of proof was on those who alleged that the presentation of the winding up petition is to be deemed to correspond power had been exercised. On the evidence, his opinion was that the with the act of bankruptcy in the case of an individual trader. testator did not intend to exercise the power.--COUNSEL, Ingle Joyce; B. B. parte Cooper (10 Ch. 510) it was held that the doctrine of fraudulent Rogers ; Cree. SOLICITORS, W. H. Mills; Watson, Newby, Robson; Cree preference could in bankruptcy be asserted only for the benefit of the whole body of the creditors of the bankrupt. In the present case the plaintiff, a debenture-holder of the company, sought on behalf and for JARRET 3. HUNTER.–Kay, J., 22nd and 25th November. the benefit of himself and the other debenture-holders, to set aside a
VENDOR AND PURCHASER-SPECIFIC PERFORMANCE_STATUTE OF FRAUDSpayment of £3,000 made by the company shortly before the commencement of the winding-up order to two of their directors, on account of a
DESCRIPTION OF VENDOR,“ SOLICITOR FOR THE VENDOR"-MISSTATE
ON CONTRACT — VERBAL debt due from the company to them. Bacon, V.C., held (31 Ch. D. 425)
NOTICE TO PURCHASER.
A contract for sale stated that the defendant was the purchaser and had
Lawson was the equitable owner.
was not the vendor. The fourth condition could not be imported into the
e detea:: ken out by Carch med à fourtes
contract, and, even if it could, the conveyance did not show who was the jurisdiction, in an application under section 4 of 27 & 28 Vict. c. 112, to apvendor. Parol evidence was inadmissible, and the knowledge thus point a receiver. The petitioner had, in July, 1886, recovered judgment acquired by the purchaser could not make the contract valid. Action against the debtor for £622 12s. 8d. In August he sued out a writ of elegit. On dismissed, without costs.- COUNSEL, J. Bradford; E. J. Elgood. Solicitors, the 3rd of October the sheriff caused an inquisition to be made, and it was Hickin & Graham for G. $. Lawson, Sunderland; Stocken & Jupp for C. R. found that the debtor was seised in fee of three houses, of which the aggreWalker, Sunderland.
gate yearly rent was £62, and the houses were on the same day delivered in
execution. A petition was thereupon presented for sale of the houses as THE BIRMINGHAM AND DISTRICT LAND CO. v. THE LONDON having been "actually delivered in execution" under section 4 of 27 & 28 AND NORTH-WESTERN RAILWAY CO.—Chitty, J., 20th November.
Vict. c. 112. There was also a prayer in the petition that a receiver R. S. C., 1883, XVI, 48—THIRD PARTY PROCEDURE-Claim of In- might be appointed until the sale, and reliance was placed upon Mason v.
Westoby (34 W. R. 498, 32 Ch. D. 206). The debtor did not appear. It appeared that the plaintiffs were the lessees under a building agreement Decrees, at p. 1140). Bat his lordship held, after consideration, that he
STIRLING, J., made an order for sale (see the form given in Seton on under seal made in 1875, and the covenants of which were to be performed had no jurisdiction to appoint a receiver upon a petition for sale under during a period which would expire in 1885. the defendants for power to take the land comprised in the agreement, the the above-named statute. He therefore refused the application, without plaintiffs entered into a parol agreement with the lessors for extension of prejudice to the right of the petitioner to apply in the action. --COUNSEL,
C. T. Mitchell. SOLICITORS, Simpson, Palmer, & Winder. the period during which the building covenants were to be performed, and negotiations also took place as to alteration of the class of house to be built. In 1883 the defendants purchased from the lessors the land WARD, LOCK, & CO. v. SCOTT—North, J., 26th November. comprised in the agreement. In 1884 the defendants gave the plaintiffs notice to treat, and in 1886 took possession. The plaintiffs alleged that COPYRIGHT – Infringement -- INTERLOCUTORY INJUNCTION — Minute Inthe defendants had notice of the parol agreement, but this the defendants denied, and stated that they had bought subject to the original agreement This was an interlocutory motion for an injunction to restrain the only. The plaintiffs claimed compensation and an injunction. The infringement by the defendant of the plaintiffs' copyright. The plaintiffs defendants took out a summons for leave to serve on the lessors a third. were the owners of the copyright in a number of poems written by Praed. party notice under R. S. C., 1883, XVI., 48. By the affidavit in support The defendant published a selection of Praed's poems which contained of their summons the defendants stated that they were advised that, in the some of those in which the plaintiffs had the copyright. The plaintiffs event of the plaintiffs succeeding in establishing their claim to relief in complained of this, and an arrangement was entered into that the the action on the footing of the alleged parol agreement, they were defendant should discontinue the sale of his selection, and should pay the entitled to be indemnified against such claim by the lessors, either by a plaintiffs a royalty on the copies which he had already sold. This was Teduction of the purchase-money payable to the lessors or otherwise ; and done, and the defendant afterwards re-issued his selection with the the defendants submitted that Ř. s. C., 1883, XVI., 48, when providing omission from it of twenty-one poems which had been previously pointed that the defendant applying should claim to be entitled to contribution out to him as subject to the plaintiffs' copyright. But the selection, as or indemnity against a person not party to the action," did not require re issued, contained eight other poems which were also subject to the that the indemnity should be an indeninity in the strict legal sense, and plaintiffs' copyright. The plaintiffs brought this action to restrain the they relied on Carshore v. North-Eastern Railway Co. (29 Ch. D. 344) as an defendant from selling his selection as re-issued, and they now moved for authority shewing that all that was required was that the defendants an injunction until the trial. Previously to the issue of the writ the should have a substantial case of relief as against third parties for the plaintiffs' solicitor had suggested that the defendant should pay a royalty whole or part of the damages claimed in the action.
the plaintiffs. Having regard to this suggestion and to the comparaCHITTY, J., said that it was not, of course, sufficient for the defendants tively small amount of the matter alleged to be pirated in the defendant's merely to state that they claimed indemnity over, but they must shew a re-issued selection, reasonable case upon which they might succeed upon their claim for in NORTH, J., on the undertaking of the defendant to keep an account, demnity. The court would not, however, go into the claim and decide and to abide by any order which the court might think fit to make as to finally whether it was well founded or not, but if it saw that there was a fair the payment of a royalty to the plaintiffs, declined to grant an interlocu, ground for putting forward the claim as a claim of indemnity, then the tory injunction. - Counsel, Everitt, Q.C., and G. T. Millar ; E. Ford. court should grant the requisite leave, but not otherwise. The construc- SOLICITORS, Ashurst, Morris, & Co.; Heather & Sons. tion put by the applicants on the rule would reduce to silence the condition contained in it that the leave of the court must be obtained. The authorities, however, shewed that the rule used the term indemnity in the
Re GREGSON'S TRUSTS—North, J., 27th November. sense that the defendant applying for leave must shew the court that he Petition FOR APPOINTMENT OF New TRUSTEES-APPOINTMENT OF ADDITIONAL has a claim for indemnity on a contract, either express or implied, or a Trustee WITHOUT ANY VACANCY_Truster Act, 1850, s. 32–CONVEYANCright to an indemnity founded on some rule of equity. A statement that ING ACT, 1881, s. 31 (5). the issue between the defendant and the third party was analogous to that between the plaintiff and defendant was not sufficient. It might have
This was a petition for the appointment of a new trustee of a will in been perhaps proper that all such questions should be tried in one action. addition to two trustees appointed by the will, they being the only But those who framed the rule in the first instance (Rules of 1875, XVII., trustees thereby appointed. On the authority of Re Brackenbury's Trust 17) found that it would lead to embarrassment of the plaintiff, and the (L, R. 10 Eq. 45), rule was, therefore, modified to its present form. He was, satisfied that NORTH, J., held that there was jurisdiction under the Trustee Act to the applicants were not entitled against the lessors to indemnity in the appoint an additional trustee simpliciter, though there was no vacancy in Jegal sense of the word. They had no contract, express or implied, for
the existing number of trustees to be supplied. His lordship also indemnity, nor equitable right to indemnity. He, therefore, held there expressed an opinion that, under sub-section 2 of section 31 of the Conwas no ground for saying that the applicants were entitled to indemnity veyancing Act, 1881, which provides that, "on an appointment of a new as against the lessors when they were seeking to join as third parties, and trustee, the number of trustees may be increased,” an additional trustce refused their application, with costs.- Counsel, Ince, Q.C., and Clare; could not be appointed except when an appointment was being made to Romer, Q C., and Podrooffe.. SOLICITORS, Mason ; Robinson, Preston, $ fill up a vacancy in the existing number of trustees.--Counsel, Farwell. Stow, for Rowlands & Co., Birmingham.
SOLICITORS, Pritchard, Englefield, f Co.
LEIGH v. LEIGH-Stirling, J., 27th November.
“Real SECURITIES "-INVESTMENT ON TERM of 1,000 YEARS TO RAISE LIQUIDATOR-TRUSTEE ACT, 1850, ss. 22, 43.
Portions. In this case it appeared that a former official liquidator of the company could The question in this case was whether a power of investing in “real not be found, and was bankrupt, and that the court had appointed å liqui- securities,” enabled trustees to advance the trust funds upon the dator in his place. A motion was made, under the Trustee Act, 1850, for security of a portions term of 1,000 years. The will of H. B. Leigh, an order to vest in the present liquidator a sum of Consols, part of deceased, empowered his trustees to make certain investments in the assets of the company standing in the name of the original liquidator
“real securities in England or Wales, but not elsewhere."
The as official liquidator of the company.
trustees of the will of H. B. Leigh, deceased, agreed, subject to the CHITTY, J., said the court could make such a vesting order under section approval of the court, as the testator's estate was being administered in an 22 of the Trustee Act, 1850. Such an order could be made either on actior, to advance the sum of £10,300 on the security of a mortgage upon petition or on motion. The better mode of procedure was, how
an estate valued at £80,000. Kay, J., in the administration action, ever, by petition, except in the very simplest cases. As the winding directed an inquiry whether a good title could be made to the heredita. up was not terminated, there could be no claim against the fund on the ments. Mr. Casson, the conveyancing counsel before whom the title was part of the ex- liquidator's trustees in bankruptcy for remuneration for his laid, observed that the mortgagors, who were trustees of a portions term, services. He should, however, in making an order as prayed, direct that were only empowered to mortgage for the term of 1,000 years, and stated the order be not dra'y up within a week, and that notice be served on the that, unless arrangements could be made for the mortgage being in fee trustees in bankruptcy.—Counsel, Hume C. Pinsent. SOLICITORS, Field, (which was not done), the opinion of the judge would have to be taken, Roscoe, & Co.
and referred to the decision in Re Boyd's Settled Estates (14 Ch. D. 626),
The point now came before Stirling, J., to whom the action had been Re EDWARD NIXON—Stirling, J., 20th and 24th November.
transterred. ELEGIT-EXBOUTION CREDITOR-SALE-RECEIVER.
STIRLING, J., refused to allow the investment to be made, as he was This was a petition in which the question arose whether the court had Butcher. SOLICITORS, Gregory, Rowcliffes, & Co.; Lowe f Co.
unable to regard the long term as a “real security.” —COUNSEL, Methold;
OLLEY v. FISHER-North, J., 30th November.
the borough of Leamington, on information preferred by the respondent, RECTIFICATION OF WRITTEN EXECUTORY AGREEMENT
convicted the company. On appeal from that decision, MISTAKE-AD
The Court (STEPHEN and A. L. SMITH, JJ.) held that the provisions MISSION OF PAROL EVIDENCE-SPECIFIC PERFORMANCE OF AGREEMENT AS
of the special Act had not been repealed by the Gasworks Clauses Act of RECTIFIED-STATUTE OF FRAUDS.
1871. A definite provision had been made by the special Act and that
County COURT-Costs on HIGHER SCALE-CERTIFICATE.
accused practically of swearing falsely should not be punished in costs North, J., held that parol evidence was admissible. He said that he while he succeeded on the merits.” The learned judge added that “he did not feel the slightest difficulty in admitting evidence for the purpose intended to certify under 45 & 46 Vict. c. 57, 8.5, as well as under the of shewing that the word “six" in the agreement ought to have been London (City) Small Debts Extension Act, 1852.". written “four,” nor, if he should hold that the agreement ought to be THE COURT (STEPHEN and A. L. SMITH, JJ.) held that the certificate rectifie], the case being one in which the Statute of Frauds was not was insufficient. Stephen, J., said that the statute 45 & 46. Vict. c. pleaded, or could, by reason of the part performance, be pleaded, in 57, s. 5, permitted a certificate for costs on the higher scale to be given going on to give consequential relief on the footing of the agreement as when there was a novel or difficult point of law involved, or when the rectified, on The principle pointed out in Fry on Specific Performance question was of general or public importance. It could not be said that (2nd ed.), par. 799. COUNSEL, Cozens-Hardy, Q.O., and C. Baston Jolliffe ; it was a question of public importance whether a defendant in such an Cookson, Q.C., and Bush, Q.C. SOLicitors, Hepburn, Son, f Cutcliffe ; H. S. action had spoken the truth. Probably the only certificate which could Winnett,
satisfy the court would be one which followed the exact words of the
statute. Whether such a certificate could be upset on affidavit the learned
BRITISH MARINE ASSOCIATION ». MACINNES—Q. B. Div.,
SERVICE OUT OF THE JURISDISTION-DEFENDANT RESIDENT IN SCOTLANDone, with remainder as J. should appoint, with remainders over. Another
UNJUNCTION. part of the property was given on trust for J. for life, with remainder This was an application for leave to serve a writ out of the jurisdiction. to her daughter at twenty-one ; with remainder in trust for E. and M. at The proposed action was one by underwriters against a policy-holder, twenty-one, with benefit of survivorship, with remainders over. Another claiming a declaration that the policy was void on the ground of fraud, part of the property was given on trust for E. and M. in equal shares, and asking for an injunction to restrain the defendant from taking any with benefit of survivorship in case of death under twenty-one, with proceedings on the policy. The defendant resided in Scotland. Day, J., remainders over. Another part of the property was given on trust for M. made an order_giving leave to the plaintiff to serve a writ in Scotland. at twenty-one, with remainder on trust for E. at twenty-one, with Subsequently Field, J., rescinded the order, and set aside the writ issued remainder on the trusts declared of the first part of the property under it. It was argued, on behalf of the plaintiffs, that they were enfor J. and her daughter, with remainder over. The daughter of titled to leave to serve a writ out of the jurisdiction under R. 8. O., 1883, J. was under twenty-one; E. had attained twenty-one, but M. was ord. 11, r. 1, sub-section (f). It was necessary for underwriters to take under twenty-one. The petition asked for the appointment of A. and B. the initiative in cases like this : Lisbon-Berlyn Gold Field Co. v. Heddle, 52 as trustees of the will as to those parts of the property in which J. L. T. N. S. 796, and Tozier v. Hawkins, 15 Q. B. D. 650, were relied on. and her daughter were primarily interested, and for the appointment of The Court dismissed the appeal. HUDDLESTON, B., said the main B. and C. as trustees as to those parts of the property in which E. and M. question was whether this sort of claim came within ord. 11, r. 1, sub. were primarily interested.
section (f). The words of the sub-section might seem to suggest that it NORTH, J., at first felt some doubt whether the trusts could be said to would sometimes apply to such a claim as this. But the cases cited dif. be “distinct,” inasmuch as in certain events the trusts of different parts fered from the present case. There the plaintiffs were threatened with of the property would become identical, but ultimately he made the imminent danger, in one case of having a winding-up petition presented, appuintment asked for.–Counsel, Waggett; F. Bagshawe; G. Miller. in the other the publication of libellous post-cards. But here there was no SOLICITORS, Van Sandau & Co.; Mason Son.
impending danger or threat of damage. It was an action of quia timet,
because at some time an action may be brought. MANISTY, J., said it was clear LEAMINGTON PRIORS GAS CO. v. DAVIS.-Q. B. Div., 26th that this case did not come within sub-section (), which applied where an November.
injunction was sought as to anything to be done within the jurisdiction. GASWORKS— ACCOUNTS-SPECIAL AND GENERAL ACTS.
but what the plaintiff here sought to restrain was something which may be
done without the jurisdiction. It could not be intended that they should The question in this case was as to whether the special Act under which restrain the defendant from bringing an action in England and yet leave the appellant company was formed had been repealed as to the regula- him free to proceed in Scotland. - Counsel, J. G. Barnes ; Hollams. Soli. tions as to keeping the annual statement of account by section 35 of the TORS, Stocken & Jupp; Waltons, Bubb, & Johnson. Gasworks Clauses Act of 1871. By section 3 of the special Act of 1865 the company were bound to make up their accounts to a certain date and FLEMING v. FLEMING AND LEMON-P. D. & A. D., 30th publish them in some newspaper, and also to transmit a copy to the clerk
November. regulations are provided by the Gasworks Clauses Act of 1847, under Divorce-Custody or Children—GUARDIANSHIP or Infants Act, 1886 which undertakers of gasworks have to furnish to any applicant a cops of
(49 & 50 Vict. c. 27), s. 5. their annual statement of account on demand at their office. That Act This was an application by a wife for an order giving her the custody was incorporated in the special Act, save in so far as it was inconsistent of her two daughters, of the respective ages of four and two years. The with it. By section 1 of the Gasworks Clauses Act, 1871, that Act and husband and wife were living apart, and cross-petitions for dissolution of the Gasworks Clauses Act of 1847, are to be construed together, and the the marriage were now pending. The children were in the care of their provisions of the Act of 1871 are to repeal and supersede such of the pro- father's unmarried sister, who was head mistress of a board school at It was contended that the provisions of the Act of 1871, as to furnishing a greater part of the day, leaving the children in the care of her younger 1847, were binding upon the company, and that a neglect of these pro- being now engaged in the management of a public-house in London, vieions had rendered them liable to certain penalties. The justices for ought not to have the custody of the children while the suits were pend
ing: The counsel for the husband relied upon the provisions of section 5 Stubbins (17 Ch. D. 58), shewed that, if a debtor voluntarily made good of the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), which trust money which he had misapplied, the payment could not be set aside authorizes the court on the application of the mother of any infant, as a fraudulent preference. LOPES, L.J., concurred.-Counsel, Horton to make such order as it may think fit regarding the custody of such Smith, Q.C., and Whinney ; Cooper Willis, Q.C., and Yate Lee. SOLICITORS, infant, and the right of access thereto of either parent, having regard to Gregory, Rowcliffes, f Co.; S. F. Taylor. the welfare of the infant and to the conduct of the parties, and to the wishes as well of the mother as of the father." Barnes v. Barnes and
Ex parte CARR, Re CARR-C. A. Nol, 26th November. Beaumont (16 W. R. 283, 1 P. & D. 463) was referred to.
BANKRUPTCY-RECEIVING ORDER-RESCISSION-DISCRETION OF REGISTRARButt, J., said it was clear that the section relied upon had no bearing STAY OF PROCEEDINGS-BANKRUPTCY ACT, 1883, ss. 104, 109. on the case, as it could not affect the discretion of the court in dealing
This was an appeal from two orders made by Mr. Registrar Giffard—the with questions as to custody of children in pending divorce suits. declined to make any order for the removal of the children from their c., and the other refusing an application for a stay of all proceedings
one refusing to discharge a receiving order which had been made against aunt's custody.—Counsel, Witt; Man. SOLICITORS, Hanbury, Hutton, & under the order. The first application was made under section 104 of the Whitting ; R. B. Barrett.
Bankruptcy Act, 1883; the second was made under section 109. Section 104 provides that “every court having jurisdiction in bankruptcy under
this Act may review, rescind, or vary any order made by it in its bank. BANKRUPTCY CASES.
ruptcy jurisdiction"; and by section 109, “The Court may at any time, Ex parte TAYLOR, Re GOLDSMID-C. A. No. 1, 26th November. for sufficient reason, make an order staying the proceedings under a BANKRUPTCY FRAUDULENT PREFERENCE — MOTIVE OF DEBTOR — BANK- bankruptcy petition, either altogether or for a limited time, on such terms RUPTCY Act, 1883, s. 48.
and subject to such conditions as the court may think just." The debtor had
been engaged in building operations. A receiving order was made against In this case a question arose on the construction of section 48 of the
him on the 2nd of November. There had been 167 bankruptcy petitions Bankruptcy Act, 1883, which provides that “Every conveyance or transfer against him, but 152 of them had been dismissed before the 2nd of of property, or charge thereon made, every payment made by November, and three others had been adjourned sine die. Ten were any person unable to pay his debts as they become due from his own money in favour of any creditor with a view of giving such appointed to come on for hearing on the 2nd of November, and two to
come on on the 12th and 19th of November respectively. The debts creditor a preference over the other creditors, shall, if the person making amounted in all to about £150,000. On the 2nd of November eight out
the same is adjudged bankrupt on a bankruptcy petition pre- of the ten petitioning creditors were content to have their petitions dissented within three months after the date of making
missed if all the ten were dismissed, while the other two wished for time. be deemed fraudulent and void as against the trustee in the bankruptcy."
The registrar made a receiving order, refusing to grant an adjournment In the present case the bankrupt was a stockbroker, and he had, in
which was asked for. An appeal from this order was dismissed on the December, 1884, been employed by the trustees of a marriage settlement, 12th of November. Subsequently to this the debts of the ten petitioning one of whom was T., his own solicitor, to sell some securities and rea creditors were satisfied, and on the 15th of November an application was invest the proceeds of sale in other specified securities. The bankrupt made to the registrer to rescind the receiving order, when all the petitioning effected the sale and received the purchase-money, but the re-purchase creditors, except the three whose petitions had been adjourned sine die, was not completed because, as the bankrupt represented, and as was
consented, creditors to the amount of £100,000 consenting to the applicareally the fact, the jobber with whom he had contracted was not able tion. The other creditors had not then had any notice of the application. at once to procure the required stock. On the 26th of March T. had On the 22nd of November the registrar refused to rescind the receiving an interview with the bankrupt, in the course of which he admitted that order, on the ground that the consent of all the creditors ought to have he had misappropriated some securities which had been in his
ands as one of the trustees of a will, and that he had obtained money from his for a stay of all proceedings under the receiving order for two months, in
been obtained, and he also refused a subsequent application by the debtor bankers by means of transfers which he had forged. On learning this T.
order that the consent of the other creditors might be obtained. The contold the bankrupt that he could not trust bis statement as to the reason
sent of creditors to the amount of £136,700 had by this time been for the non-completion of the re-investment of the purchase-money, of obtained. Before the hearing of the present appeal the consent of the securities which he had sold for the trustees of the marriage settle-creditors to the amount of £143,000 out of £150,000 had been obtained to ment, and demanded immediate payment of the purchase-money, the rescission of the receiving order. There only remained creditors to the threatening that, if it was not paid, he would at once issue a summons against the bankrupt before the Lord Mayor. The bankrupt thereupon assets consisted almost entirely of houses, which were mortgaged, the
amount of £7,000, the number of whom exceeded thirty. The debtor's gave T. a cheque for £3,000. On the 28th of March the bankrupt comand on the 21st of April he was adjudicatod a bankrupt on a petition that the registrar was right'in refusing to rescind the receiving order, but mitted an act of bankruptcy by absconding from his place of business, mortgagees being in most cases in possession.
The Court (Lord Esher, M.R., and LINDLEY and Lopes, L.JJ.) held presented on the 8th of April. The trustee in the bankruptcy sought to they granted a partial stay of proceedings under the order. Lord Esher, set aside the payment of the £3,000 as a fraudulent preference, and also
M.K., said that it was not alleged that the receiving order was wrongly on the ground that it was made with notice to T. of a prior act of bank
made. The registrar, when asked to rescind the order, was exercising a ruptcy, that act of bankruptcy being the execution by the bankrupt on the judicial discretion in the matter, and the court ought not to interfere 23rd of March of a mortgage to T. by way of security to him in respect of a. breach of trust which the bankrupt had committed by misappropriating The registrar did not intend to say that unless all the creditors consented
unless it was clear that that discretion had been wrongly exercised. some bonds which had been in his possession as co-trustee with T. of he could not, as a matter of law, in any case rescind the order, but he only another will. The execution of this mortgage was said to be a fraudulent refused, under the circumstances of the present case, to rescind it. His preference, and, therefore, an act of bankruptcy. Cave, J., refused to lordship was of opinion that it was not essential, as an absolute rule set aside the payment of the £3,000 on either ground, and the Court of applicable to every case, that the consent of every creditor must be Appeal (Lord Esher, M.R., and Lindley and Lopes, L.JJ.) affirmed the obtained before a receiving order could be rescinded, but in the circum. decision. It was argued on behalf of the trustee that, under section 48, stances of the present case he thought the registrar was right. It was as interpreted by Ex parte Griffith (23 Ch. D. 69), the court has not now to startling to find creditors to the amount of £143,000 consenting, with inquire into the motives of a debtor who makes a payment which is nothing to rely upon except the promise of the debtor. It was the duty alleged to be a fraudulent preference, but that, if the debtor is insolvent of the court not to accede to every rash wish of creditors. Creditors to and the effect of the payment is to prefer the creditor, the payment is void as a fraudulent preference whatever the debtor's actual motive may application, and the registrar vas right in refusing to rescind the receiving
the extent of £7,000 had not consented, and had had no notice of the have been. Lord Esher, M.R., said that the effect of this argument was to ings under the receiving order would be to give the debtor absolute
order without any notice to them. The effect of staying all the proceedstrike out of section 48 the words," with a view of giving a preference.” It was essential that the payment should be made with the view of
control over his property, when he might mortgage it further. It would, giving a preference—that is, with the intent to give a preference. The however, be hard on the debtor if he had not the opportunity of obtaining court must look at the debtor's mind and try to find out what his intent
the consent of the other creditors, and applying to the registrar again. was, and in order to do that it could not throw over the tests which had
The court would pursue a middle course, and would stay all advertisepreviously to the Act been adopted by great judges. The court must
ments in the Gazette for two months, the result of which would be to stay take into account the fact that the debtor was threatened with some
the first meeting of the creditors. In this way the official receiver would thing which he did not like, in order to see whether he paid the creditor protect the property, and all unnecessary publicity would be avoided.
still be able to exercise his powers for the benefit of the creditors and to to get rid of that thing, or simply to prefer him to the other creditors. Lindley, L.J., said that it would not be right in this case to rescind the The court must take into account his intention to repair the evil he had receiving order, which was made for the benefit of all the creditors, with; done, and, if that was the predominant motive in his mind, the court coulả hardly say that he intended to prefer the creditor. He did it to proceedings it would paralyze the action of the official receiver, and the
out giving notice to the creditors for the £7,000. If the court stayed all satisfy his own conscience. It was impossible to lay down all the matters that should be taken into account. Here the bankrupt, when he paid the
best course was to stay all advertisements for two months, with liberty to £3,000 to T., was in a position of danger, when exposure was imminent.
any party to apply to the registrar. LOPES, L.J., concurred. - COUNSEL, He was threatened with a criminal prosecution. He made the payment, Goluring, Mitchell, & Phillips ; Hurford & Taylor.
Sir Edward Clarke, S.G., and F. Cooper Willis ; Atherley Jones. SOLICITORS, not to prefer T., but to get rid of that exposure and danger with which he was threatened. The payment, therefore, was not a fraudulent prefer.
As to the deed of the 23rd of March the bankrupt, as trustee, had been guilty of gross and fraudulent breaches of trust. The relation between him and T. was not that of debtor and creditor, but that of
On the 25th inst. Mr. Justice Kekewich announced that none of the defaulting trustee and honest co-trustee. Therefore the case, as to this Thev would not necessarily be taken then, but they would not be taken
cases in his new list would be taken before Monday, the 6th of December. deed, was not within section 48 at all. LINDLEY, L.J., said that Ex parte before that date.
dings of the
SUPREME COURT OF JUDICATURE.
ROTA OF REGISTRARS IN ATTENDANCE ON
APPEAL COURT APPEAL COURT
Mr. Justice Mr. Justice for the ensuing year.
OHITTY. Mr. Luigi CANADO, LL.D., has been appointed one of Her Majesty's Mon., Dec. 6 Mr. Pugh Mr. Koe
Mr. Lavie Mr. Carrington Judges for the Island of Malta.
Jackson honour of Knighthood.
Saturday .. 11 Godfrey
Mr. Justice Mr. Justice Mr. Justice
Mr. Leach University College, Oxford. He was called to the bar at Lincoln's-inn Wednesday..
Leach in Michaelmas Term, 1873, and he practises on the South Wales and Thursday
Leach thenshire Sessions. Mr. Lewis is registrar of the diocese of Llandaff, and
Beal official of the Archdeaconry of St. David's.
Mr. Thomas Henry BELCHER, solicitor, of Cardiff and Penarth, has been
WINDING UP NOTICES.
London Gazette. - FRIDAY, Nov. 26.
JOINT STOCK COMPANIES.
LIMITED IN CHANCERY. administer Oaths in the Supreme Court of Judicature.
ABERCORRIS SLATE AND SLAB CO, LIMITED.-Petn for winding up, presented Mr. JAPHETH TICKLE, solicitor, of 4, Grocers' Hall-court, has been elected Nov 20 directed to be heard before Chitty, J., on Dec 4. Carr & Son, Rood a Common Councilman for the Ward of Cheap.
lane, solors for petner Mr. GEORGE ENGLAND, solicitor, of Goole and Howden, has been ap
ALEXANDRA (NEWPORT) DOCKS AND MAINDEE OMNIBUS CO, LIMITED.-By an
order made by North, J., dated Nov 20, it was ordered that the company be
GITTENS, LICKFOLD, & Co, LIMITED.-North, J., has fixed Thursday, Dec 9, at 12,
LIVERPOOL AND ISLE OF MAN STEAMSHIP CO, LIMITED. -- Kay, J., has fixed Dec 7,
at 12, at bis chambers, for the appointment of an official liquidator Oaths in the Supreme Court of Judicature.
NATIONAL TRUST CO, LIMITED.-North, J., has fixed Thursday, Dec 9, at 11, at
his chambers, for the appointment of an official liquidator, PARTNERSHIP DISSOLVED.
PATENT IVORY MANUFACTURING CO, LIMITED.-By an order made by Bacon,
V.C., dated Nov 6, it was ordered that the company be wound up. Solomon,
PRIMROSE PRESS AGENCY CO, LIMITED.-Stirling, J., has fixed Wednesday, Dec
8, at 12, at his chambers, for the appointment of an official liquidator minster, Solicitors and Parliamentary Agents. Nov. 1.
COUNTY PALATINE OF LANCASTER.
UNLIMITED IN CHANCERY.
the registered name of the society is the No. 1 Railway Hotel Benefit Building GENERAL
Society, and not the No. 1 Railway Hotel Benefit Building, Accrington, his
Honour has, by an order dated Nov 8, directed that the said petn should be Mr. Henry Matthews, M.P., was entertained at dinner on Wednesday
amended as to the name of the society, and be advertised again, and that the in the Inner Temple-hall by the members of the Oxford Circuit on his order for winding up should be drawn up at the expiration of seven days after appointment as Home Secretary. Mr. Staveley Hill, Q.C., M.P., presided, such advertisement. Slater & Sons, Manchester, agents for Hall & Co, Acand was supported, among others, by Mr. Baron Huddleston, and Sir
crington, solors for the joint official liquidators and the petner
FRIENDLY SOCIETIES DISSOLVED.
HUSBANDS BOSWORTH INDUSTRIAL AND PROVIDENT SOCIETY, LIMITED, Husbands
Bosworth, Leicester. Nov 22
White Horse Hotel, Congreve st, Birmingham, Nov 24
MUTUAL BENEFIT SOCIETY, Sun Inn, Waterbeach, Cambridge. Nov 24
JOINT STOCK COMPANIES.
London Gazette.-TUESDAY, Nov. 30.
LIMITED IN CHANCERY. Education, for the year ending the 10th of January, 1888:-Jurispru. DIRECT MEAT SUPPLY, LIMITED. Stirling, J., has fixed Dec 8, at 12, at his chamdence, including International Law, Public and Private-Roman Law bers, for the appointment of an official liquidator and Constitutional Law and Legal History-Joint Professors, Frederic NOTTINGHAM MALLEABLE IRON CO, LIMITED.-By an order made by Stirling, J., Harrison, Esq., James Bryce, Esq. ; Joint Examiners, W. A. Hunter,
dated Nov 20, it was ordered that the company be wound up. Stileman & Co,
Southampton st, Bloomsbury sq, agents for Toynbee & Co, Lincoln, solors for
to Oscar Berry, 6, Arthur st, E. Friday, Jan 7, at 12, is appointed for hearing
and adjudicating upon the debts and claims Examiner, R. G. Arbuthnot, Esq.
TRAMWAYS TRUST CO, LIMITED.-Creditors are required, on or before Jan 18, to It is stated that application is intended to be made in the ensuing send their names and addresses, and the particulars of their debts or claims, session of Parliament for an Act to authorize the Commissioners of Works
to Baker Philip Daniels, 57, Moorgate st. Tuesday, Feb 1, at 11, is appointed to acquire, by compulsory purchase or otherwise, certain lands and
for hearing and adjudicating upon the debts and claims
WHEELER HORSE SHOE AND NAIL CO, LIMITED.-Petn for winding up, presented buildings in the parish of St. Clement Danes, and to construct on the site Nov 26, directed to be heard before North, J., on Nov 26. Reep & Co, Queen buildings to be used as offices in connection with the Bankruptcy Court,
st place, Cannon st, solors for petner or such other purposes as may be necessary for the public service, and as
FRIENDLY SOCIETIES DISSOLVED.
CREDITORS UNDER ESTATES IN CHANCERY. south-side of Clement’s-inn passage ; on the north-west in part by the
LAST DAY OF CLAIM. south-east wall of the vestry-hall of the parish of St. Clement Danes, and
London Gazette.-FRIDAY, Nov. 19.
POOLE, HENRY JAMES, Comberton, Cambridgeshire, Farmer. Dec 31. Poole v
London Gazette.-TUESDAY, Nov. 23.
Rhodes, Market Rasen
Savory v Plane,
UNDER 22 & 23 VICT. CAP. 35. improvements, for the traffic on the River Thames.
LAST DAY OF CLAIM. will be entitled to a cumulative preferential dividend of 5 per cent.
The preference shares
London Gazette. -- FRIDAY, Nov. 12. payable out of the profits of the company.
ARNOLD, JAMES, Darlington La Fayette, Wisconsin, U.S.A., Primitive Methodist
Minister. Dec 15. Heaton & Son, Burslem
aterter cenciscal meente