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titled to so much of the proceeds of the sale of constant visits of a physician to a large family, in pure the bonds as remained at the bankers. The Master suance of an arrangement, be an “accidental" of the Rolls said that until the decision in “ regular” use of the house for the purposes of his in Ex parte Dale it had never been suggested that there
"art" ? was any difference in respect of the well-established rules of equity as regards following trust property between an express trustee and any other person standing in a fiduciary position. Mr. Justice Fry, he thought,
THE FORM OF THE NOTICE OF OBJECTION had misapprehended the effect of the decisions on which
UNDER THE PARLIAMENTARY AND MUNI. he relied. They were founded, not on any supposed
CIPAL REGISTRATION ACT, 1878. distinction between a factor or bailee and a trustee A Point of some nicety was determined recently by the properly so-called, but on the notion that in equity Common Pleas Division, sitting to hear registration money could not be earmarked. It was now, however, well appeals, with regard to the form of notices of objection, settled that money could be earmarked, and, therefore, under the Parliamentary and Municipal Registration the foundation of these decisions was gone. And, if Act, 1878. In our humble opinion, and with very great other decisions were in any way inconsistent with the respect for the learned judges who heard the case, their modern authorities in equity, such as Pennell v. Deffell judgment was wrong. It is not, perhaps, of very great: (4 D. M. & G. 372), the latter ought to prevail, especially importance which way the case was decided, so long as since the Judicature Act. Lord Justice Thesiger the point was settled ; but, on the whole, the decision is opportunely pointed out that the only exception to the inconvenient, and we think, if there is to be any more general rule was apparent, not real. In all the cases legislation on the subject, a clause obviating the results where it had been held that money could not be followed, of the decision may as well be inserted in any Bill that although there had been a trust as to the disposition of is brought forward. the particular thing from which it arose, there had been The point turned on the construction of the note to no duty in regard to the money itself, except the Form I. in the schedule of the Parliamentary and Muniordinary duty of a man to pay his debts ; in other words, cipal Registration Act, 1878. That form is the form of the relation of debtor and creditor had been constituted, notice of objection. It gives form No. 1 (parliamentary) and not that of trustee and cestui que trust.
notice of objection to the overseers, and form No. 2 (par. liamentary) notice of objection to the party, and there
is a note to the form, as follows: “If there is more than THE LEARNED MASTER OF THE ROLLS will in course of one list of parliamentary voters, the notice of objection, time have supplied a complete commentary on the in each of the above two cases (Nos. 1 and 2) should ordinary covenant in leases of houses," not to use the specify the list to which the objection refers ; and, if the premises or any part thereof, or permit the same or any list referred to is made out in divisions, the notice of part thereof to be used in the exercise or carrying on of objection should specify the division to which the objecany art, trade, or business, occupation or calling whatso tion refers." The form likewise contains forms Nos. 3. over.” It will be remembered that in Bramwell v. Lacy and 4 (municipal), which relate to burgess-list objections, (27 W. R, 463), his lordship expressed an opinion that and the corresponding note to them says: “If there be carrying on a hospital really maintained by voluntary more than one burgess list, the notice of objection in contributions, although some patients made small pay• each of the above two cases (Nos. 3 and 4) should specify ments according to their means, was carrying on a the list to which the objection refers, and, if the list is “business within a similar covenant-a doctrine from made out in divisions, the notice of objection should which, with great respect, we ventured strongly to specify the division to which the objection refers.”. dissent (23 Solicitors' JOURNAL, 618). He has now In the cases in question, there being several parishes irr given the profession his views as to the meaning of a borough, the notices of objection to the party did not several other words in the covenant. In Viscount specify upon the list for what parish the party objected
Portman v. House Hospitals Association, which was to appeared. They merely specified whether he appeared before his lordship on Monday, the question was on the occupiers' list, or reserved rights' list, or the lodgers' whether the covenant above quoted was broken by the use list, as the case might be. The court held that the of the premises as a hospital for patients who were able notices were sufficient. There was a great deal of forceand willing to pay for their treatment. It is to be in their judgment, but we cannot help thinking that observed that the learned judge does not appear to have they were led in the wrong direction by the current of relied in any way upon his dictum in Bramwell v. Lacy, authority that existed with regard to the meaning of a. and he seems to have carefully avoided noticing the similar note to the form under the former Registration word “business.” But upon the other words of the Acts. Under the law as it existed previously to thecovenant he is reported to have remarked that the words recent Act of 1878, the note to the form of notice only “use or permit to be used,” meant that the house itself required the list to be specified in the notice of obwas not to be used for the purpose of regularly carrying jection given to the overseers. Now the overseers on any“ art,” but that would not apply to the accidental could require no information as to the parish in the user of the house for such purposes. For instance, a body of the notice, because it was addressed to them physician might be called upon to visit a patient at the as the overseers of a particular parish. Accordingly it patient's house; such a user by the patient could not was held that all that was meant was that the notice be said to be a breach of this covenant, such user being should specify whether the occupiers' list or the re.. å mere accident. On the other hand when, it was served rights' list was intended. The word intended to have some thirty or forty patients in one under that state of the law clearly was used as meanhouse, and to call in the physician to attend the ing list for the whole borough, not for the particular patients, he was of opinion that the physician must parish. But now comes the changed state of the law, be said to exercise his "art" there, and therefore it and a specification of the list is required in the notice would be a breach of the covenant. It would be in fact of objection to the party. Our views of the construction a user of the house for the very purpose of the physician must be adapted to the convenience of such party, no exercising there his "art.” He thought, also, that“the longer as formerly to that of the overseers.
Now & user by the defendants would come within the words party may have several qualifications in different parcupation or calling.' It had been argued that those words ishes, and he cannot, unless the parish is specified, tell must be associated with the idea of profit or gain which what the objection is which he has to meet without the defendants did not intend, but in his opinion it was going round to the church doors of the various parishes not necessary that a person should acquire profit or gain to see in which list of persons objected to he is included. to carry on an occupation or calling.'” Query, would The court did not seein to think this much trouble, but
that may depend on the number of parishes. It is, at | On the other hand, it seems to us that the construction any rate, quite as much trouble as the Legislature may given to the note by the court is in plain defiance of the reasonably have intended to spare the party objected actual words they had to construe. It makes nonsense to by the requirements they made as to particulars to of the provision as to the burgess roll, and it entails be given in the notice.
some inconvenience on the party objected to, which he But we do not put this argument in the forefront. was probably intended to be spared. It may be that the arguments used by the court (which we will hereafter refer to) balanced it. The main ground of our view is this: It does not seem to us that the court can have sufficiently considered the
LIABILITIES FOR NEGLIGENCE NOT ARIS. exact words used in the note they had to construe. It
ING OUT OF CONTRACTUAL OBLIGA. will be remembered by our readers that the Act of 1878,
TIONS. section 15, sub-section 2, says that “where the parish is The case of Parry v. Smith (27 W. R. 801, L. R. 4 C. P. D. situate wholly or partly, both in the parliamentary 325), belongs to a class of cases involving great difficulty, borough and in the municipal borough, the list for the and we confess that it seems to us very doubtful whether parish shall be made out three divisions." D sion any satisfactory formula with regard to such cases can at 1 is that which contains the names of those entitled to present be evolved from the decisions. The question both franchises, divisions 2 and 3 contain respectively the that arises really amounts to this, viz., what persons, names of those entitled only to one of them. Read this pro- | under what circumstances apart from obligations of a vision in connection with the words of the note. If there is contractual nature, can bring an action when injured more than one list of parliamentary voters, the list is to by the negligence of others—or, to put it in other words, be specified. So far the words are ambiguous, and towards whom is there a duty, in such cases, to use due perhaps the natural construction would be in accordance care and diligence? The facts of the case of Parry v.. with the view of the court. But if the list referred Smith were as follows :—The defendant, a gas-fitter, to is made out in divisions, then the divisions are to be was employed by the plaintiff's master to repair a gas. specified. Clearly the unit, of which the divisions are meter upon his premises, and, for the purpose of doing the fractional parts, is the parish list. There may be so, took away the meter, and, in lieu of it, made a temparishes without any divisions, consequently the unit, of porary connection by means of a flexible tube between which the divisions are fractional parts, is not the list the inlet pipe and the pipe communicating with the for the whole borough. The term “list,” we should house. The plaintiff having gone, in the ordinary perhave thought, as plainly as language can indicate, is formance of his duty, with a light into the cellar where used as meaning the parish list. This construction is the meter had been, gas which had escaped by reason of largely assisted by the terms of the note to the municipal the insufficiency of the connecting tube exploded and form of objection.
The form says,
“ If there be more injured him. The jury found that the work had been than one burgess list.” Now, there can only be more negligently done, and that the injury to the plaintiff than one burgess list on the supposition that the list of proceeded entirely from such negligence. It was held by each parish is regarded as a separate list, for there is Lopes, J., on further consideration, that the defendant only one sort of qualification for the municipal franchise. was liable. The court allowed the force of this, but ultimately over Various well-known cases will doubtless occur to the ruled this argument, admitting, however, that to do so reader's mind in connection with the above decision, involved that no reasonable construction could be given such as Longmead v. Holliday (6 Exch. 761), Langridge v. to the words “if there be more than one burgess list.”. Levy (2 M. & W.519,4 M. & W. 337), and Winterbottom The argument that appears to have weighed most with
v. Wright (10 M. & W. 109). In Langridge v. Levy and the court was this. It was said that the words apply to Longmead v. Holliday the vendor of an article was sued both the notice to the overseers and that to the party. | by a person other than the vendee in respect of injuries The provision is identical with that under the old law occasioned by the defective and dangerous character of which, it was clear, both by authority and reason, did the article sold. In the former case the vendor was held not contemplate the list for the parish as a separate list. liable, on the ground that he had made a fraudulent reIt would be still absurd, with regard to overseers, to presentation concerning the article (a gun), knowing make the body of the notice specify the parish, and it when he did so that the gun was purchased for the cannot have been intended to alter the old law with use of the person injured, and that the person injured regard to that notice; but then the note refers to both had used the gun on the faith of such representation. forms, and if the law necessitates the specification of the The court say, “ We do not decide whether this action parish as to one it must as to the other. We see a great would have been maintainable if the plaintiff had not deal of force in the argument, but the dimculty seems to known of and acted upon the false representation, nor us, after all, to relate more to the niceties of language than whether the defendant would have been responsible to a the substance of the thing. In substance the notice to person not within the defendant's contemplation at the the overseers necessarily specifies the parish, because it is time of the sale to whom the gun might have been sold addressed to the overseers of the parish, and so far the or handed over; we decide that he is responsible in this provisions of the Act must always be complied with. A case for the consequences of his fraud whilst the instru. loose draftsman wishing to make ona note do service for ment was in the possession of a person to whom his reboth notices might not think that the effect of the words, presentation was either directly or indirectly communi. if construed with the greatest stringency, would be to cated, and for whose use he knew it was purchased." In enforce a specification of the parish in the body of both the case of Longmead v. Holliday, an attempt was made notices, it being in the one case absurd and unnecessary, to render a vendor responsible in damages for breach of or else that only part of the provision would be applic- warranty to a person not the vendee, but a person able to one of the notices. But, looking at the thing whose use of the article was contemplated by the vendor broadly, why should not the meaning be that the pro at the time of the sale. The court refused so to extend vision applies to both notices in the sense that both
the doctrine of Langridge v. Levy. In George v. Skivnotices are intended to give certain information enabling ington (L. R. 5 Ex. 1) the court extended the doctrine the parties to whom the notice is given to identify the of Langridge v. Levy to cases where there is not fraud entry objected to without trouble ? In the case of one on the part of the vendor, but negligence. There a man notice, it is unnecessary to specify the parish in the body bought hair-wash to be used by his wife as the defendant of the notice, as the notice is to the overseers of the knew, and the defendant had been guilty of negliger.co parish. In the other it is necessary. We admit that in compounding the wash, which proved deleterious. The this is a clumsy and inaccurate mode of verbal expression, court held the defendant liable at the suit of husband but there is nothing absurd in the substance of the thing. I and wife jointly. We cannot see very clearly why the
defendant's knowledge that the hair-wash was to be used | According to the general rules that govern a master's by the wife was material, because hair-wash is always liability for the act of his servant, we doubt whether presumably intended to be used by somebody for the it would make any difference whether the negligence hair, and we cannot see if there is a duty to anybody was that of the servant or the master. Willes, J., how beyond the vendee why it should make a difference that ever, goes further, and his observations seem to us to be, the defendant contemplated a particular person. We can. in their general tendency, somewhat antagonistic to not help thinking that the analogy between this case and the decisions in George v. Skivington and Parry v. Langridge v. Levy, which the Court of Exchequer in- Smith. He says, “There would be no end of actions sisted on, is misleading. Surely Langridge v. Levy if we were to hold that a person having once turned on the point that the defendant was to be | done a piece of work carelessly should, independently treated as having made the false representation indirectly of honesty of purpose, be fixed with liability in this way to the plaintiff, at any rate that his false representation by reason of bad materials or insufficient fastening." He was the cause of plaintiff's using the gun. This prin. then instances the case of a man building a house. Five ciple is wholly inapplicable to George v. Skivington. It | or six years afterwards a chimney stack falls down and seems to us doubtful whether, logically, George v. Skiv- | injures a person with whom the builder has no contract, to ington must not turn on the principle that a person is whom he owes no duty, and as against whom he cannot responsible in damages for his negligence to any person have been guilty of any fraud. In giving judgment in whom he knew that his negligence might injure, except | Parry v. Smith, Lopes, J., distinguished the decision in when contributory negligence comes in question. Then, Collis v. Selden on the ground that gas was a highly can it make any difference that the particular person is dangerous agent, and imposed a duty on all persons designated and known to the defendant ? If a man goes meddling with gas fittings to be very careful. This disand buys a bottle of hair-wash, and tells the seller it is tinction he founded on the following remark of Willes, for his wife, his wife can recover; otherwise not, if he does J., in Collis v. Selden:-“The declaration should have not mention whom it is for. Surely that seems absurd.shown that it (the chandelier) was a thing dangerous in But if the principle of George v. skivington is as itself, and likely to do damage, or that it was so hung broad as we suggest, undoubtedly it may lead to some as to be dangerous to persons frequenting the house.” We rather sweeping and startling consequences. To take should have thought the declaration did by necessary the case put in Winterbottom v. Wright, a man negli. intendment what the learned judge said it ought to have gently constructs some article which he sells to another. done. We have great difficulty in apprehending this Can every person who may ultimately be injuriously distinction between things of a dangerous nature and of affected by the defectiveness of the article have an a more dangerous nature. As Bramwell, L.J., said in action for damages against the vendor ? Take the cases some case, the name of which we forget, a brick wall suggested by Byles, J., in arguing Winterbottom v. may, under some circumstances, be as dangerous as a Wright. “For example, every one of the sufferers by tiger. All depends on the surrounding circumstances. such an accident as that which recently happened on the | A chandelier, suspended by a very weak fasteniog, is as Versailles Railway, might have his action against the dangerous as gas, as far as we can see. Perhaps more manufacturer of the defective axle. So, if the chain cable | dangerous, as gas announces the danger by its smell. of an East Indiaman were to break, and the vessel went Again, we are somewhat in doubt as to the soundness of aground, every person affected, either in person or the argument that is derived from the sweeping nature property, by the accident might have an action against of the consequences per se. It does not seem to us that the manufacturer."
because the consequences of a piece of negligence may The case which seems to have been thought nearest to be very sweeping and ruinous that it logically results Parry v. Smith is Collis v. Selden (L, R. 3 O. P. 495), and that there is no duty to use due care towards the persons we must confess we have some difficulty in drawing the who may be injured. distinction that was drawn between them. Collis v. We are, we confess, somewhat puzzled to deduce any Selden is not a very satisfactory cace, in that the definite principle from the decisions on this class of cases. question arose on aemurrer to a declaration, and a There is a class of cases somewhat similar to Parry v. decision under these circumstances is never so satis Smith, but which seem to turn on a somewhat different factory as when it is based upon actual facts. The principle, as, for instance, where the article which does the declaration alleged that the defendant wrongfully, mischief is placed by the defendant in a public highway negligently, and improperly hung & chandelier iu al or other public place. But even here difficulty arises. public-house knowing that the plaintiff and others were | What is a public place for the purposes of this doctrine ? likely to be therein and under the chandelier, and that Would a theatre be a public place for this purpose ? the chandelier, unless properly hung, was likely to fall and If a theatre would, why not a public-house ? In Clark injure them; and that the plaintiff being lawfully in the v. Chambers (3 Q. B. D, 327) the defendant was held public-house, the chandelier fell upon and injured him. liable in respect of injuries occasioned to the plaintiff by It was held that the declaration was bad as it did not a dangerous implement placed by him in a private road disclose any duty by the defendant towards the plaintiff, of which neither plaintiff nor defendant was owner, but for the breach of which an action could be maintained. upon which the defendant lawfully was when injured. This decision was much pressed on the court in Parry v. We cannot distinguish between a private road and a Smith, but it was held to be distinguishable. The private house for this purpose. framer of the declaration seems to have gone on the There are many cases cited in the arguments and general principle that we suggest may be the consequence judgment in Clarke v. Chambers which show the of George v. Skivington, viz., that a person in doing any difficulty that arises in cases where the duty, if any, is act is under a duty to use due care towards any person to the general public, such as Dicon v. Bell (5 M. & S. whom he may reasonably contemplate as likely to be 198), and llott v. Wilks (3 B. & A. 301), the case where injured if he does not. It is very difficult to say what a trespasser was injured by spring guns; but in some of the precise result of Collis v. Selden is, because the those cases the distinction arises between acts which court were not dealing with actual facts proved; but it is í must be contemplated by the doer as necessarily dangerto be noticed that both Bovill, C.J., and Willes, J., con- ous however done, and acts only dangerous through strued the declaration as not necessarily alleging per negligence in the doing, but not necessarily contemplated sonal negligence by the defendant in the hanging of the by the doer as dangerous. This, as it appears to us, may chandelier. They both say that negligence by a servant be a very important distinction in all cases of negligence would satisfy the allegations of the declaration. But not arising from contractual relations. It is obvious that assuming that this was so, we have considerable doubt the moral responsibility of a man who does what he 28 to whether that circumstance was material, and knows to be a dangerous act is very different from that whether in this respect a false issue was not raised. of a man who is negligent, but not knowingly so. This distinction is so obvious as to seem a truism, but many The 10th section of the Act, by its first sub-section, of the cases seem to overlook it. Again, in some of the requires that “the execution of every bill of sale shall cases the danger was necessarily incurred by the party be attested by a solicitor of the Supreme Court, and the injured, not in doing some lawful act, but through the attestation shall state that before the execution of the voluntary use of the article which did the mischief. bill of sale the effect thereof has been explained to the Again, there are the cases which may be called “trap" grantor by the attesting solicitor.” This, no doubt, is cases, in which it was held that the defendant was liable a strong affirmative direction. But the sub-section because there was an invitation, and the negligence of follows immediately on the introductory words of the the defendant constituted a trap for the plaintiff. section, which are, “A bill of sale shall be attested and Again, in some of the cases the defendant was the owner registered under this Act in the following manner,” and of the premises on which the dangerous thing was, in the sub-section is immediately followed by a second subothers he was not; the number of distinctions that may section providing for the registration of "such bill ” — be suggested is very great. It would be impossible to i.e., every bill of sale. It is, therefore, again difficult to discuss these distinctions in detail, but it is undeniable see why the direction as to attestation and registration that our law on the subject of negligence apart from respectively should receive different constructions-why contract is very unsystematic and very difficult to reduce the one should be essential in all cases alike, the other to general principles. We doubt whether it would be only as against particular classes and under particular possible to reduce all the decisions in the kind of ques circumstances. tion we have touched upon to sound general propositions, But, secondly, it is said that the Act exhibits an intention but it is very much to be wished that it could be done. to protect the giver of the bill of sale, and that unless
the construction contended for is put upon the direction as to attestation, this intention is defeated. I
venture, with extreme respect, to submit that the only General Correspondence. colour, if any, for this alleged intention of the Act is to
be found in the first sub-section of the 10th section
already referred to. The Act is entitled, “An Act to THE BILLS OF SALE ACT, 1878.
consolidate and amend the law for preventing frauds [To the Editor of the Solicitors' Journal.] upon creditors by secret bills of sale of personal Sir,-Will you give me space for a few words of chattels"; and, with the exception of this sub-section (if comment on the recent case of Davies v. Goodman, in it is an exception) and of the 20th section, which is in the Common Pleas Division, which is reported in the favour of the grantee of the bill of sale, every section of Times of Saturday last. The point there decided by the Act is in favour of some or all of the creditors of the Coleridge, C.J., and Lindley, J. (by the latter with much grantor, and of no other person. Surely if the Legislahesitation), was simply this, that formal attestation of a
ture had intended to protect the improvident borrower bill of sale, in the manner described in the Bills of Sale from the oppression of the unscrupulous lender, it would Act, 1878, is essential to the validity of the instrument,
not have introduced that protection so modestly not merely as against trustees in bankruptcy or liquida.
in a sub-section of a section expressed to be for another tion, assignees under creditors' deeds and execution purpose of an Act also expressed to have quite different creditors, but as against all the world, including the objects. It would appear that general principles of con. giver of the bill of sale himself. This is surely a novel struction point rather in the opposite direction. Witness doctrine. It is represented as resting on two grounds the construction of the Acts of Elizabeth, which declared the language and the intention of the Act.
all but certain specified leases by ecclesiastical corporaNow, first, with respect to the language. With | tions to be null and void to all intents, constructions, the exception of the 9th section, which deals | and purposes whatsoever, and which, nevertheless, were with certain duplicate bills of sale, there is only held not to apply as against the grantors of the proone section containing an express sentence of avoidance
hibited leases, because they were not within the remedy. viz., the 8th, which declares that “every bill of sale to Lincoln's-inn, Dec. 2.
H. M. R. P. which this Act applies shall be duly attested, and shall be registered under this Act within seven days after the making or giving thereof, and shall set forth the con
UNDERLEASES. sideration for which such bill of sale was given, otherwise ” the bill of sale is to be void as against certain
[To the Editor of the Solicitors' Journal.] specified classes of persons, under certain specified con Sir,-Referring to your remarks at page 81, and to a ditions. It is needless to say that the giver of the bill of conveyancer's letter at page 84, I would suggest the sale is not included in any of the specified classes. There addition, in future, to underleases of some such covenant being, then, no express declaration of avoidance of | as the following by the underlessee-namely, “ That the an unattested bill of sale as against all persons in- landlord, his executors, &c., may from time to time, with differently, is there an implied avoidance ? I have or without workmen or others (after giving days' cited in inverted commas the opening words of the 8th previous notice], enter upon the said premises and do all section. Now, from the Times report, the court seems such acts and things as may be necessary for preventing to have dealt with these words thus: they put a semicolon the commission or repairing the breach of any covenant after the word " attested," and read the sentence down contained in the lease under which the landlord now to and inclusive of that word as mandatory and of holds the said premises, to the intent that the landlord, universal application, and they confine the limited his executors, &c., may thereby be enabled to prevent & avoidance, which forms the principal part of the section, right of absolute re-entry or determination of such lease to the case of omission to duly register. This construction accruing to the superior landlord of the said premises. of the section is supported by reference to the repetition of And that the expenses incurred by the landlord, his the auxiliary verb. Every bill of sale, &c., shall be duly executors, &c., under the last preceding covenant (if attested, and shall be registered. But the court do not occasioned by anything done, permitted, or omitted by seem to have adverted to the fact that the auxiliary the tenant, his executors, &c., contrary to any covenant verb is repeated a third time, “shall set forth the con- | herein contained] shall be recoverable by the landlord, sideration, &c." May it not be suggested that the his executors, &c., by distress or otherwise, as if the reasoning which supports a prolonged pause at the first same had been rent in arrear reserved by these pre. comma, supports equally a similar pause at the second, sents." and that there is the same ground for making registra Now that the subject of Icases is before your readers, tion mandatory and of universal application as for may I be allowed to inquire (1) what is usually undermaking attestation so ?
stood to be the effect of the words “ ordinary wear and tear," often added by lessees' solicitors as an exception of the statute, and it was argued that the court would pro. to the repairing covenant ? and (2) where neither party
some against the barring of a debt by the statute. The covenants to insure, how should the repairing covenant
court (JESSEL, M.R., and JAMES and BAGGALLAY, L.JJ.) be qualified as to fire. &c., and in what events the rent | beld on the evidence that there bad been no payment on should be suspended ? On the latter point the forms in
account of the debt, and that it was barred. And JESSEL, the books do not at all agree, most of them having
M.R., said that there was no presumption either way as to evidently been prepared in the landlord's interest.
the statute. It was the duty of the court, as in any other
case, to ascertain what the facts were, and then to see A SOLICITOR.
whether the statute applied. The court ought to hold an even band, and not to presume either for or against the
statute. cases of the eek.
COMPANY – WINDING UP — DIRECTOR - MISFEASANCE COMPANY_WINDING UP-APPEAL FROM WINDING UP FULLY PAID-UP SHARES GIVEN BY PROMOTER- ESTIMATE OF ORDER AFTER APPOINTMENT OF LIQUIDATOR — Locus VALUE-COMPANIES ACT, 1862, s. 165.—On the 26th ult. STANDI-APPEAL-SECURITY FOR Costs.-In a case of In the Court of Appeal (JESSEL, M.R., and BAGGALLAY and re The Diamond Fuel Company, before the Court of Appeal THEBIGER, L.JJ.) affirmed the decision of Fry, J., in the on the 24th inst., an order had been made to wind up a | case of In re The Diamond Fuel Company (23 SOLICITORS company, and an official liquidator had been appointed. JOURNAL, 780). The liquidator of the company sought to After this an appeal was presented in the name of the com make one of the directors liable, under section 165 of the pany against the winding-up order. The preliminary objec Companies Act, 1862, to contribute to the assets of the tion was raised to the appeal that, after the appointment of company the full nominal value of a number of shares the liquidator, no one but he had any right to use the name which had been transferred to bim for a nominal considof the company or to assume to act on its behalf. The court eration by a promoter of the company, they being shares (JAMES, BAGGALLAY, and THESIGER, L.JJ.) did not decide which were allotted to the promoter, as fully paid up, the point, as they were of opinion on the merits of the case in part payment of the porchase-money of property sold that the order had been rightly made. But they said that ia by bim to the company of the shares 80 transferred to future, if, under such circumstances, an appeal from a wind. the director, some remained standing in his name at the ing-up order is brought in the name of a company, and no commencement of the winding up, others had been transone else is responsible for the costs, they shall always be ferred by bim for value, and the remainder bad been tracsready to entertain an application for security for the costs of ferred for a merely nominal consideration. Before Fry, J., the appeal.
it was urged that tbe director could not be compelled to pay
anything in respect of the shares which he had transferred UNDERTAKING BY COUNSEL NOT TO APPEAL-UNDER
for a dominal consideration, inasmuch as he had made no TAKING NOT EMBODIED IN ORDER-RIGHT TO APPEAL.
profit by them. Fry, J., however, hold tbat these shares In a case of In re The Hull and County Bank, before the
must be treated in the same way as the others, and paid Court of Appeal on the 24th inst., a claim to prove against
for at their par value, because it appeared that when they the estate of a company in liquidation was disallowed by the
were transferred to the director the public were subsoribMaster of the Rolls, and, on the counsel for the claimant
ing for shares at par, and there was nothing to show that undertaking not to appeal, i he counsel for the liquidator said that they would not have taken the shares in question at par it he would not press for costs against the claimant. The claim they had not been given to the director. Upon the appeal was accordingly disallowed without costs, but the undertaking it was not disputed that all the shares must be paid for. not to appeal was not inserted in the order. Under these The only question argued was whether the director ongbt circumstances it was objected that the appeal could not be to be charged with the par value for the whole of them. entertained. The court (JAMES, BAGGALLAY, and THESIGER, By the terms of the agreement between the company and L.JJ.), however, held the appellant was not deprived of his the promoter the certificates of some of the shares which legal right to appeal, but that the respondent would be at were allotted to him as fully paid up were to be retained liberty to object to the order as to costs. And, in the result, by the company for two years. And it was contended the appeal was dismissed with costs, and the appellant was that, if any of the shares given by the promoter to the ordered to pay the costs at the Rolls. JAMES, L.J., said director formed part of those the certificates of which that such arrangements made between solicitors in court were to be thus retained by the company, the director, ought to be carried out bonâ fide.
though the shares were transferred to him by the promoter, would not have had full dominion over them till the
end of the two years, by which time the shares of TRADE NAJE-INJUNCTION-PROVISO LIMITING EFFECT. the company had become worthless. If, therefore, - In the case of Dence v. Mason, before the Court of Appeal the director bad received any of those shares the cere on the 17th inst., Malins, V.C., had awarded a perpetual
tificates of which were to be retained, be ought not to be injunction to restrain the defendant from selling certain charged anything for such shares ; and there ought to be goods in boxes having thereon a label containing the name an inquiry whether any of such shares were included of Brand & Co. (the trade name of the plaintiffs), and from among those which were given to bim. The court, howasing the name of Brand, eitber alone or in combination ever, held tbat the company, by assenting to the transfer with tbat of Mason, in connection with the goods of the shares to the director, had waived the condition manufactured by the plaintiffs. It was urged on which applied as between them and the promoter, and that the appeal that this would prevent the defend consequently the director bad the full dominion over the ant, if he sbonld bappen (as it was suggested there shares, even if they were originally subject to the condi. was a probability of bis doing), to enter into partner tion. The appeal was accordivgly dismissed. abip with a person of the pame of Brand, from using the real name of his partnersbip in connection with goods similar to those of the plaintiffs. The court (JAMES, BAG.
LIQUIDATION-DEBT INCURRED BY FRAUD-PROOF--DIS. GALLAY, and THESIGER, L.JJ.) acceded to this view, and
CHARGE OF DEBTOR-ACTION AGAINST DEBTOR BEFORE added the following proviso to the order :-“Provided
CLOSE OF LIQUIDATION-BANKRUPTCY ACT, 1869, s. 48– always that the injunction is not to restrain the defendant
DEBTORS Act, 1869, s. 15.-In a case of Ex parte Flemming, from using the names Mason & Brand bona fide, if and
before the Court of Appeal on the 27th ult., the question when there shall be a real partnership properly designated
was whether, when a liquidating debtor had obtained from by that name.”
his creditors an order of discharge, but the liquidation had not been closed, a creditor who had proved a debt in the
liquidation, but who alleged that the debt had been incurred STATUTE OF LIMITATIONS-PRESUMPTION.-In a case of
by means of fraud on the part of the debtor, was entitled to In re Rainforth, before the Court of Appeal on the 19th | prosecute an action against the debtor for the full amount a ingt., the question was whether there had been a payment The debt. The question depended upon the construction of on account of a debt, which was otherwise barred by the section 49 of the Bankruptcy Act, 1869, and section 15, Statute of Limitations, such as to prevent the application the Debtors Act, 1869. Section 49 provides that an order