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whether the promise made during infancy was absolute or conditional, and whether what occurred after the
THE JUDICIAL STATISTICS. plaintiff came of age was a new promise or a ratification QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUEN of the former one. The jury found that the first promise
DIVISIONS. was conditional, and that the second promise was an
The proceedings in the Queen's Bench Division on the entirely new one, and a verdict was found for the Crown side in 1877.78 were as follows:-Mandamus, plaintiff. On an order nisi for a new trial, on the applications on affidavit
, 59 ; mandumus, made absolute, ground of misdirection, Cowhead v. Mullis was relied 35; quo warranto, informations filed, 2; other special upon by the counsel for the defendant, who contended rules nisi granted, 53; other special rules made absothat the only possible consideration for the second lute, 105; applications for habeas corpus, 51; writs of promise was the promise made during infancy, which habeas corpus granted, 50 ; certiorari, writs issued by was absolutely void and incapable of ratification. The court, 28 ; certiorari, writs issued by judge, 11; writs case was heard by Justices Denman and Lopes, who of prohibition, 2; orders of sessions removed into distinguished it from Coxhead v. Mullis, since the jury Queen's Bench, 14. The total amount of fees received had found that there was a fresh promise. They held for business done in the Crown office during the year, that in such a case it is for the jury to say whether exclusive of business done for the public departments, there had been any fresh promise by the defendant after for which no fees were received, was £1,041 4s. 4d., attaining full age, or merely such a ratification of a being less than the amount for 1876-7 by £230 183. 4d. promise made during infancy as would be avoided by
The process, practice, and mode of pleading in the the 2nd section of the Act. In the recent case of three common law divisons at Westminster being Ditcham v. Worrall, the same question came for the similar on the Plea side, the proceedings may be shown third time before the Common Pleas Division. Here together in the appended table. Those under the head. again the defendant's offer of marriage had been made ing" Process issued” are the preliminary and incidental to, and accepted by, the plaintiff while the former was matters in suits transacted in the different offices constill a minor. After he had attained his majority a day nected with the courts ; the “ Matters heard ” come was fixed for the marriage, but it was afterwards post- before the judges sitting in banc. poned for a month on account of the illness of the
Process issued. Q.B. O.P.
Total. plaintiff's mother. A quarrel afterwards took place, and
Writs of summonses the defendant declined to fulfil his promise. At the
16,914 16,573 22,168 55,655 trial before Lord Coleridge it was arranged that the
Appearances entered. 8,707 6,945 10,622 26,274 court should enter judgment for the plaintiff, with £400
7,416 6,884 9,501 23,801 damages, if it should be of opinion that there was
4,599 4,704 6,056 15,359 reasonable evidence of such a fresh promise after the
IIand motions, and on defendant came of age as was not a mere ratification,
995 and would take the case out of the operation of section
Causes referred to 2 of the Infants Relief Act. Ultimately the majority
190 131 231 552 of the court (Justices Denman and Lindley) held that
Matters heard. there was evidence of such a fresh promise, while Lord
Motions for new trials 91 147 215 Coleridge arrived at an opposite conclusion. The 1st
453 Other motions
287 277 188 section of the Act also formed the ground of decision in
752 a recent criminal case. In Reg. v. Wilson (28 W. R.
37 58 Demurrers
9 27 23 307, L. R. 5 Q. B. D. 28), the prisoner had been con
59 victed under section 12 of the Debtors Act, 1869, for The total fees were as follows:- Queen's Bench, having within four months before the presentation of a
£20,603 6s. 6d.; Common Pleas, £14,182 13s. 20.; bankruptcy petition against him left England, and taken Exchequer, £18,579 108. 8d.-total, £53,365 10s. 4d. with him property to the amount of £20 and upwards, The total for the previous year was £51,904 Os. 3d. which ought by law to have been divided among his The number of bills of costs taxed in the divisions, creditors. He was a minor at the date of his adjudica- exclusive of bills taxed under the statute, was 12,072. tion of bankruptcy, and all the debts proved against his Under the Parliamentary Elections Act, 1868, the only estate were trade debts, and not debts for necessaries. proceedings in 1878 were two petitions presented from The court held that, since all his trading contracts were
South Northumberland, and withdrawn by judge's absolutely void under section 1 of the Infants Relief Act, order. The associates of the three divisions furnish, none of his property could be by law divided among
as usual, returns which show that at the end of 1876.7 creditors, and that therefore he had not committed any the number of remanets was 1,128. During the offence under the Debtors Act, and the conviction was
year 1877-8 the number of cases entered for trial at quashed.
Westminster was 2,146, and at Nisi Prius 1,330. At
Nisi Prius there were 822 trials, and at Westminster The Central Law Journal says :-Some anecdotes of an 1,266 defended, and 106 undefended, and at the end of eminent lawyer in a city in one of the Eastern States will the year the number of remanets was 674 at Westbear reprinting, even thongh we are compelled to omit the minster, and 25 at Nisi Prius. The number of actions name of the State court against which they are directed. meantime withdrawn, struck out, &c., was 1,703, and 8 Some years ago the lawyer in question was counsel for a
stood over for further consideration and for judgment. female client, but did not receive a decision in his favour, The number of causes entered for trial at Nisi Prius on although justice and equity would bave warranted it. As each circuit in 1878, and the number of causes tried, he and his client were leaving the court-room, the lady, who
were as follows:was well knorn as the exponent of woman's rights, said to
Entered for Trial.
Tried. him, “That was rank injustice." “Certainly, madam,” he
124 replied. “Mr. -," the lady continued, "when we
111 women get a chance to sit on that bench such injustice will
218 not be possible." With a smile, the lawyer said, “Madam,
128 never expect to see a greater set of old women than are at
145 present on the Supreme Court bench.”
94 ago, while in a street car, he was observed by one of the
52 younger and lesser lights of the bar, who was acquainted City of Bristol.
29 with him, reading a sheep-covered book, and the young North Wales
32 man, catching his eye, said, “Ah, Mr. , reading law ? South Wales
34 I thought you knew the law, and it was for youngsters to study it." Gravely he replied, "I am not reading law ; I In the three divisions there were during the year am reading one of the decisions of the Supreme Court.” | 453 motions for new trials, &c. In 97 cases applica
tion was refused; in 193 a rule nisi was granted; in number of bills taxed was 20,194, their gross amount 77 a rule absolute was made; and in 86 the rule was being £506,625, and the amount struck off on taxation discharged. To the division of her Majesty's Court of £90,569, leaving £416,056 as the net amount allowed. Appeal sitting at Westminster there were 94 appeals from the Queen's Bench, and 52 from the Exchequer.
County COURTS, &c. The total proceedings in the chambers of the judges of The number of plaints entered in 1878 in the whole of the three courts amounted during the year to 214,662 in the county courts was 1,030,749; and there were also number, as against 210,819 in 1877. The state of the 756 cases from the superior courts. With a jury 993 suitors' funds of the three courts was as follows: causes were determined ; and without, 615,497. The Amount on November 1, 1877, £88,199 10g. 9d.; totalamount for which plaints were entered was £3,343,203 ; amount paid in during the year ended October 31, and the amount of debts for which judgment was ob1878, £261,346 3s. 9d.; total to October 31, 1878, tained by plaintiffs upon original hearings £349,545 14s. 6d.; amount paid out during the year, £1,621,686, the costs being £119,620. The total fees on £252,309 28. 2d.; balance on October 31, 1878, on all proceedings amounted to £433,583. The number £97,236 12s, 4d.
of days of sitting for the whole of the circuits was 8,271.
Of the judgments given, 97.1 per cent. were for the plain. PROBATE, DIVORCE, AND ADMIRALTY Division. tiff ; 1.1 per cent. were non-suits; and 1.8 per cent. The Probate proceedings during the year included were for the defendant. The number of equitable probates granted, 11,544; administration,5,675 ; caveats, suits or proceedings was 633, and the amount of subject. 1,105; appearances, 253; parties who had entered matter in dispute or otherwise was £97,953. The numappearances in actions, 339; motions, 390 ; actions, 198;ber of Admiralty suits or proceedings in the county summonses, 1,084; trials by special jury, 14; trials by courts was 305. In the City of London Court the nun. common jury, 17; causes heard by judge only, 68. The ber of plaints issued in proceedings for the recovery of total amount of fees in court and contentious business debt was 21,163; and there were 8 cases from the was £1,902; and the taxed costs were £42,764. The superior courts. The total amount for which plaints value of effects sworn under in the principal registry was
were entered was £121,547; and the number of days of £68,998,655 ; and in the district registries £50,914,890. sitting was 121. The equitable suits or proceedings As to Divorce business there were 687 petitions filed,
numbered 6; and the Admiralty suits 157. In the together with 184 petitions for alimony. The number / Lord Mayor's Court, London, there were 12,518 actions of motions was 1,073; of summonses, 1,472 ; and of entered in 1878, together with 19 ejectments and 5 appren. causes tried 493. One judgment was given by the
tice petitions. The total amount for which actions were Divisional Court, and 493 were given by the court itself. entered was £220,198. The number of foreign attachThere were 5 applications for new trial ; and 4 appeals ments issued was 424, for a total of £165,657. On the to the Divisional Court. The number of petitions dis
equity side of the court there were 5 bills of complaint missed were 63. There were 496 decrees nisi; 292 filed in 1878. The fees on all proceedings amounted to decrees absoluto; 57 decrees for judicial separation ; 10 £6,696. decrees for nullity of marriage; and 1 decree under the
ECCLESIASTICAL COURTS. Legitimacy Declaration Act. In 11 cases there was a The number of suits in the ecclesiastical courts in reversal of decree. The fees received amounted to £5,571. 1878 was 13, ten being in the Arches Court of Canter.
In Admiralty there were 378 actions instituted, 9 bury. Of the whole, 3 were under the Public Worship appeals brought from county courts, and 26 actions Regulation Act, 1874; 4 for granting a faculty ; 1 was transferred to the division, the total amount of claims in for decreeing a monition; and 5 were other suits. In actions instituted being £1,217,113. Of the 9 appeals | 1 case the suit was dismissed ; in 1 abandoned; in one s brought from county courts, in two cases judgment was decree for institution was obtained; in 4 the decree or affirmed, and in 4 varied or reversed. The number of order was affirmed; in 1 the defendant was admonished ; final judgments and decrees in 1878 was 165.
in 1 the defendant was suspended ; in 1 suspension was
relaxed ; and 3 cases were still pending at the end of the COURT OF BANKRUPTCY,
year. There were further $20 suits for faculties. The The cases brought under the provisions of the fees amounted to £1,319. Bankruptcy Act, 1869, in 1878 were :--Bankruptcies, 1,084; liquidations by arrangement, 6,356; and liquida
Court of APPEAL, HOUSE OF LORDS, AND PRITY tions by composition, 4,010; total, 11,450. Of the com
COUNCIL pounding debtors, 1,911, or nearly one-half, paid com In her Majesty's Court of Appeal the total appeals positions not exceeding 2s. 6d. in the pound; while only from final judgments awaiting a hearing at the four in every hundred offered to pay more than half of beginning of the year numbered 127; the number set their debts. The comptroller in his report remarks, down during the year was 346; the number heard “ The state of trade does not affect the number of in- during the year was 242 ; 48 were otherwise disposed of; solvencies under the Bankruptcy Act so much as might and 183 awaited hearing at the end of the year. From perhaps be expected. Bad times, while tending to in- | interlocutory orders there were 19 appeals awaiting crease insolvency, not only directly, by also by affording hearing at the beginning of the year; 226 set down an excuse to many who are not really affected, tend as during the year; 183 heard ; 23 otherwise disposed of; well to decrease it, by checking speculation, speculative and 39 awaiting hearing at the end of the year. Of credit, and trading with insufficient capital, which are original motions, 3 awaited hearing at the beginning of most fertile causes of insolvency. Depression of trade, the year; 61 were set down during the year; 61 were caused by over-production, with fall of exports and of heard during the year; 1 was otherwise disposed of; wholesale prices, would not, for a considerable time at and 2 awaited hearing at the end of the year. From least, have any very marked general effect on the the County Palatine of Lancaster there were 9 appeals; number of insolvents under the Act, the great from the Stannaries Court 6; and from the London majority of whom are from the classes engaged Bankruptcy Court 124. There were also 2 appeals home distribution, chiefly retailers." The
under the European Society Arbitration Aot, 1875. The total liabilities declared in 1878 amounted to nearly court sat 195 days at Lincoln’s-inn, and 133 days at ten millions, against assets estimated at nine millions, Westminster, or 328 days in all; and the Lord Chanbut not likely to realize more than six and a half, of cellor sat 3 days on the Judicial Committee of the Priry which more than a million is claimed by creditors in two Council; on 70 days in the House of Lords to hear apof the large bankruptcies as security against liabilities. The actual loss by bad debts in cases under the Act is
peals; and on 3 days on Committee for Privileges. Before
the Judicial Committee of the Privy Council the number estimated at about £25,000,000 for the year 1878, The of appeals entered was 76; 35 were di smissed for non
prosecution; and 63 were heard and determined. The number of appeals (lodged since April 1, 1870) remaining
Cases af last week. for hearing at the end of 1878 was 123. The cases before the House of Lords were :-From the Court of Chancery STATUTE OF LIMITATIONS-FRAUD-BLEACH OF TRUST (Ireland) 1; from the Court of Session (Scotland) 26 ; -COMPANY--ACCEPTANCE OF BRIBE BY DIRECTOR.-In a from the Court of Appeal (England) 37; and from the case of The Metropolitan Bank v. Heiron, before the Court Court of Appeal (Ireland) 1; making a total of 65. In of Appeal on the 5th inst., the question aroge whether the 1878, 36 judgments were affirmed:1 being affirmed with
plaintiffs' right to sue had been barred by the Statute of variations, 7 reversed, 6 reversed with declaration, direc
Limitations. The action was brought to recover from the tion, or finding, and 3 reversed in part; the total judg
defendant, a former director of the bank, a sam of money ments being 53. The number of effective cases re
which it was alleged that he had received from one Daniels, maining for hearing at the end of the session of 1878
who was indebted to the bank in the amount of £3,000, in was 12. The fees amounted to £1,982.
consideration of the defendant's agreeing to use his influence with the bank to accept a much smaller som in discharge of the debt. It was alleged that the defendant accordingly induced the bank to accept from Daniels £50 in discharge of the debt. It was admitted that this charge
against the defendant was made kaown to the board of General Correspondence.
directors of the bank in 1872, and that they inquired into
it, bat took no proceedings against the defendant. The CALL OF SOLICITORS TO THE BAR.
action was commenced in 1879 by the liquidator in the
voluntary liquidation of the bank, Stephen, J., held that [To the Editor of the Solicitors' Journal.] the plaintiffs right to sue was barred by the statate, and Sir,--Enormous responsibility has of late years been
this decision was affirmed by the Court of Appeal (JAMES, laid upon our shoulders by purely judge-made law.
BRETT, and COTTON, L.JJ.). It was argued that the
plaintiffs were suing in respect of a breach of trust, and Nothing is so easy as to blame a solicitor. He has no
that consequently the statutory bar had no application. right of audience, and, therefore, cannot speak up for
JAMES, L.J., said that the action was really founded on himself. He is a convenient scapegoat for the sins of concealed' fraud.” If a man, who held a fiduciary others. “My instructions are, &c., &c.,” is the excuse ! relation, received money by way of a bribe to betray his when the case is not clearly apprehended; or, when the duty. the injured cestui que trust was entitled in equity to advocate must not be attacked by his opponent, the coup | recover the money from the wrongdoer. But courts of de grace is “No doubt my learned friend is acting upon equity had always followed the Statute of Limitations in instructions when he says, &c., &c.” “ Gentlemen of analogous cases. A cestui que trust was not bound by any the jury, it is not him I blame. It is those who have lapse of time so long as tbe wrong was concealed from instructed him, and wno are responsible for this action.” | him. But if it was known to him he ought to make up his “ This is a solicitor's action," &c., &c. No counsel ever mind whether he would proceed against the wrongdoer, dare attack a solicitor in this way before a judge or å
If he allowed years to elapse after he had full knowledge jury in a county court.
of the wrong, the defendant had a full right to avail himTime was when judges instantly interposed to prevent
self of the lapse of time as a defence. The statute was attacks upon “ officers of the court.” Now the tables
therefore a good defence from the time when the charge are reversed. Witness, for instance, the hundreds of
was made known to the board of directors, which was
more than six years before the action was commenced, appeals from county courts which were either struck
BRETT, L.J., thonght that the only action which could be out or dismissed by the divisional courts simply because
maintained by the bank was an action in equity, founded the county court judges had not made notes--the
on the fraud of the defendant. Neither at law nor in solicitor conducting the case always being held to be at
equity could the money be treated as the money of the fault, because it was presumed without foundation that company until it had been proved to be their money by a he did not ask for notes to be made. It has recently judgment of the court, on the ground that it was received been decided by the Court of Appeal that notes are not | by the defendant in breach of his duty. Till that had been a condition precedent for an appeal, and therefore all done the money must be considered as held by the these decisions of the divisional courts are wrong, and defendant adversely to the company, and therefore the their strictures upon county court judges and solicitors Statute of Limitations applied, and the time ran from the totally unwarranted,
period at which the fraud was made known to the board of It is not " ability and ambition " alone, as Mr. Sykes
directors acting for the company. COTTON, L.J., said appears to assume, which seek for an outlet. It is the
that the argument that time did not run as against a public demand for a good acticle which must inevitably
breach of trust was founded on a misapprehension of the sooner or later compel solicitors to act as advocates in all
expression “breach of taust.” When trust money was in cases in all courts whether the profession like it or not.
the possession of a trustee, and he misappropriated it,
time would not run as against the cestui que trust. But in I have the pleasure of knowing many solicitors whose
the present case the money that it was sought to recover knowledge, experience, and skill are equal to any to be
was in no sense the money of the company unless it could had on the bench or at the bar, and whose patience and
be made so by the jadgment of the court in this very procondescension make their attainments shine all the more
ceeding. The aotion was founded on a breach of duty by brilliantly. Nearly every great provincial town is pos the defendant. The case was very different from one in sessed of such men,
which a cestui que trust was seeking to recover money After all it it not so much a question for us as for the which was his own before any aot had been done by the public, and having addressed many hundreds of meetings trustee. The claim was founded on the act of the trustee in London and different parts of the provinces, I think I making the money the money of the cestui que trust. can say that the public have been for some time unani Time would not ran against him until the discovery of mous upon the question which at last, after years of the fraud, but when the fraud became known to him the urging, the Council of the Incorporated Law Society
person defrauded could not be allowed to stand by with seem to have taken up in sincerity and truth.
knowledge of his rights.-SOLICITORS, Neuman, Hilliard, d: 22, Queen-street, E.C., Aug. 3. EDMUND KIMBER.
Stretton ; Harper, Broad, & Battcock.
PRACTICE-Costs-SETOFF-ADDITIONAL ROLES, 1875, R. 19.-In a case of Barker v. Hemming, before the Court
of Appeal on the 5th inst., the question arose whether Jean Luie, who was convicted of perjury at the trial of there could be a set-off of costs onder rule 19 of the Ad. the Tichborne claimant, and sentenced to seven years' penalditional Rules as to Costs of 1875, which provides that "in servitude, was discharged from Portland Convict Prison last any case in which, under the preceding rule No. 18, Tuesday, having completed his term of imprisonment. į or any other rule of court, or by the order or direction of a court or judge, or otherwise, & party entitled sentations of the vendor as to the value of the business. The to receive costs is liable to pay costs to any other company were also made defendants. The other defendants party, the taxing officer may tax the costs such party is so were directors of the company, and it was alleged that they liable to pay, and may adjust the same by way of deduction formed a majority of the board of directors, and that they or set-off, or may, if he shall think fit, delay the allow- held such a large number of shares that it was impossible for ance of the costs such party is entitled to receive until he the plaintiffs, and the other shareholders who agreed with has paid or tendered the costs he is liable to pay." The them, to take any steps within the company to set aside the action was brought against two defendants, Hemming agreement. Before the action came on for trial, an order and Johnson, upon a bill of exchange, of which Johnson was bad been made to wind up the company. No application was the drawer, and Hemming purported to be the acceptor. made to Hall, V.C., who had the conduct of the winding up, Judgment was allowed by both defendants to go by default, for leave to prosecute the action. When the action came on and execution was issued, under which the sheriff seized for trial before Malins, V.C., an order was made dismissing certain goods in Johnson's house. Hemming applied to it without costs, and the order gave hiberty to the plaintiffs have the judgment set aside as against him, on the ground to apply to Hall, V.C., to have the costs of the action that the writ had never been served on him, and that allowed out of the assets of the company. Malins, V.C., he had never authorized Johnson's solicitor to appear for expressed an opinion that the action had been bond felé him. He alleged that the signature to the ac- | instituted for the benefit of the company, and said that if ceptance which purported to be his was a forgery. it had been worth while going on with it, and anything had The judgment as against him was set aside by been recovered in it, the company would bave got the benefit the Divisional Court, and the plaintiffs then discontinued the of it. He thought, therefore, that the plaintiffs' costs ought action as against him, and he signed judgment for to be paid out of the company's assets. This opinion was his costs of the action, which were taxed at £43. communicated to Hall, V.O., and he ordered the costs in Hemming claimed the goods which the sheriff had question to be paid out of the assets. His order contained seized as his goods, and the sheriff thereupon a recital that it appeared that the action was instituted for took out an interpleader summons which was entitled in the the benefit of the shareholders of the company. The Court action. Under this summons an interpleader issue was of Appeal (JAMES, BRETT and COTTON, L.JJ.) held that the tried and Hemming's claim to the goods was barred, with court had no jurisdiction to order the payment out of the costs to the sheriff and the plaintiffs. The plaintiffs' costs assets. JAMES, L.J., said that in the winding up the court of the interpleader proceedings were taxed at £33. The was simply administering the assets of the company for the plaintiff's claimed to have these costs due to them from purpose of paying the debts of the company. It had no disHemming set off against the £43 costs which were due cretion, as it had in dealing with the property of an infant from them to him. The master allowed the set-off, and his or a lunatic, to do that which it might think right or liberal; decision was affirmed by Lindley, J. His decision, how it could only apply the assets in paying legal or equitable ever was reversed by the Divisional Court (Cockburn, C.J., | demands against the company. The shareholders who and Bowen, J.), who were of opinion (28 W. R. 765) tbat brought the action did so at their own risk, and they had no the interpleader proceedings were distinct from the proceed more right to call on the company to pay the costs than they ings in the action, and that therefore there could be no set had to call on the other shareholders who were their cooff of costs. This decision was affirmed by the Court of plaintiffs to contribute to the costs of the action. Appeal (JAMES, BRETT, and COTTON, L.JJ.). JAMES, L.J., The company had never authorized the action, nor said that the plain meaning of the rule was that the set-off had the court authorized it in the winding up. Leave was to be between "parties" not " persons"-that is, parties ought to have been obtained from Hall, V.C., to prosecute to the same action and the same proceedings. It did not the action if it was intended to make the assets of the apply to two distinct actions. The interpleader proceeding | company responsible for the costs. If the plaintiffs had sucwas really a distinct proceeding which had arisen collaterally ceeded in recovering money from the delinquent directors, out of the original action. It was a mere accident that one and the company had taken the money and thus accepted of the persons who was a party to the interpleader proceed- | the benefit of the action, the court would, no doubt, have ing happened to be also a party to the original action. The found its way to giving the plaintiffs out of the assets, not rule had no application to such a case. BRETT, L.J., said only their costs, but all their proper charges and expenses, that the rule applied to parties to the same action, not to | but the court had no jurisdiction to make A. pay the costs different actions. The question was whether the costs of an action brought by B. BRETT, L.J., said that the were incurred in some action to which the two were parties. action was not brought in the name of the company only In point of law the interpleader proceeding was as perfectly because the defendant directors would not bring it. It was distinct as possible. If the rule did not apply, the taxing brought solely for the benefit of the company, and if it had master could only act according to the two separate judga been successful they would have had all the benefit of it. ments, and could not give one allocatur. Of course the A court of law would certainly not have had jurisdiction to rule did not derogate from the old jurisdiction of the court make those who would have had the benefit of the action, if to make a substantive order directing a set-off of costs, but it had been successful, pay the costs of it when it was unno such order had been made in this case. COTTON, L.J., successful ; but knowing the jurisdiction which the court of said that the rule must be restricted to a plaintiff and de equity had assumed in other cases, his lordship could only fendant in the same action, or to co-defendants, and it express his surprise that it had stopped short of doing that could not apply to a plaintiff in an action who was which seemed to him consistent with justice. COTTON, Ludy liable in respect of some entirely distinct litigation to pay | agreed that there was no jurisdiction to make the order. costs to the person from whom he was entitled to receive The proceeds of the action, had it been successful, would costs in the action. The rule must mean only that there have gone into the coffers of the company, but it did not at should be a set-off between parties to the action, as such all follow that the action was brought for the benefit of the parties, of costs relating to the litigation in the action. The company. Section 98 of the Winding-up Act provided that proceedings in interpleader were not in respect of any matter the assets of the company were to be applied in discharge of which was in litigation in the action, and the rule did not its liabilities. The costs of the winding up must also be apply.--SOLICITORS, Wordsworth, Blake, & Co.; Harper, paid, but these costs were in no sense costs of the winding Broad, & Battcock.
up.-SOLICITORS, Cunliffe, Beaumont, & Davenport ; .
Bohm. COMPANY-WINDING UP-COSTS OF ACTION BY SHAREHOLDERS-PAYMENT OUT OF ASSETS-COMPANIES Act, 1 PRACTICE-DISCOVERY-INSPECTION-DISCOVERY OF TITIE 1862, s. 98.-In a case of In re The Hull Central Drapery -PARCELS OF LEASE-DISPUTE AS TO BOUNDARY.--In a case Company, before the Court of Appeal on the 6th inst., the of The Wityne's Merthyr Company v. Powell's Duffryn Stearr question arose whether, in the liquidation of a company, the Coal Company, before the Court of Appeal on the oth court had jurisdiction to direct the payment out of the assetsof | inst., a question arose as to the right of plaintiffs to 10 the plaintiffs' costs of an action which had been brought by spect the lease under which the defendants beld certain two shareholders of the company (on behalf of themselves and | mining property. The plaintiffs and the defendants were all the other shareholders, except the defendants) against lesgees from different legsors of adjoining properties, under the vendor of some property and a business to the company, ! which they were both working coal. The plaintifis allege and some promoters, to set aside the agreement for purchase, 1 that the defendants had worked beyond their boundary on the ground that it had been induced by the misrepre- and had removed coal belonging to the plaintins, and they
claimed an injunction, &c. The defendants denied that plaintiff of any mortgage which was appointed to him, so they bad worked beyond their bouodary. The plaintiff's long as the mortgage remained in force; but they were not claimed production of the defendants' lease in order that trustees for him of the £1,000. Their obligation was to pay they might see the parcels and the plans contained in it. interest on the £1,000 for five years at six per cent.; to repay The defendants resisted production, on the ground that the the £1,000 to the plaintiff out of their own funds at the end action was an action of trespass, and that the plaiotiff's were of the five years, if it should not be otherwise realized for not entitled to see their documents of title. Hall, V.C., held him ; to place in his hands, as soon as possible after the that the plaintiffs were entitled to production and inspec- receipt of the £1,000, a colonial mortgage for £1,000, which tion of the lease so far as the parcels which, in the recitals was not to be effe oted in his name, and, in case that mortgage or the operative part, were concerned, but that the other should become ineffective before the end of the five years, to parts might be sealed up. The Court of Appeal (JAMES, replace it by another. These obligations were binding on the BRETT, and CotTON, L.JJ.), affirmed this order, JANES, company, whether the colonial mortgagors did or did not L.J., said that the plaintiffs bad no right to see the fulfil their obligations. There was no obligation to keep defendants' title; anything which created a title was pro the plaintiffs' £1,000 apart from the other funds of tected from production, unless there was a common title. the company, or to invest it separately. The relation But if there was anything in a title deed which sbowed a
between the company and the plaintiff was one of fact, such as a boundary, or if there were recitals showing contract, not of trust, and resembled that between a the state of a family, that was no part of the title. In the banker and his customer. And, even if a trust was conpresent case the question was what was the boundary be. stituted, there was nothing to show that the defendants tween the two estates, and the plads contained in the two
were parties to any breach of trust. There was no proof leases, if they agreed, would be conclasive evidence as to
that they ever received any part of the trust money. There the boundary.-SOLICITORS, Williamson, Hill, & Co.; Bell,
was nothing to show that any part of it was applied in pay. Brodrick, d: Gray.
ing the directors' fees. Any clerk in the company's office might as well be made liable, on the ground that his salary had been paid out of the mortgage money.
BRAM COMPANY-DIRECTOR_TRUSTEE.—In a case of Wilson WELL, L.J., said that he felt a difficulty in saying that there V. Lord Bury, in wbich judgment was given by the Court of was not a trust as between the company and the plaintiff, Appeal in Lincoln's-inn on the 6th inst., the question arose but he agreed that, if there was a trust, and there had been whether an action could be maintained by a creditor of a
a breach of it, there was no ground for holding the defendants company against the directors, on the ground, either that the personally responsible to the plaintiff. BAGGALLAY, directors were trustees for him, or that the company was a L.J., was of opinion that the relation of trustee and trastee for him, and the directors had been parties to a cestui que trust was established between the company and the breach of trust, and had derived a benefit from it. The plaintiff, that there had been a breach of trust, and company was formed for the purpose of receiving deposits of that the defendants had been parties to and had aided in the money from persons in England for a fixed term, and in commission of it. He fully recognized, as a general rule, vesting the money on mortgages at high rates of interest in
that an agent employed by a trustee was accountable to his the colonies, they guaranteeing interest at the rate of six per principal only, and could not be made responsible as a con. cent, per annum to the depositor, and also guaranteeing the structive trustee to the cestui que trust; but he thought that repayment of the principal in the event of the mortgage on a distinction might be, and ought to be, drawn between the case which it was invested proving deficient.
of a company necessarily acting by its directors and an indi. derived a profit by means of the difference between the six vidual trustee acting through an agent over whose actions per cent. interest, which they paid to the depositor, and the he could exercise a control. Whether, however, he was right interest wbich was paid by the colonial mortgagor. The or wrong in thinking that such a distinction should be plaintiff intrusted £1,000 to the company for five years for drawn, there could be no question that the general rule investment, and they appropriated to him as security a to which he had referred did not apply when the agent mortgage bond for a larger sum, which they had upon some had derived a personal benefit from the breach of trust, property in Natal, and gave him a guarantee for the principal and, in his lord ship's opinion, it was an important question and the interest at six per cent. In April, 1877, the in the present case whether the defendants had derived any mortgage bond was paid off, and the company's agent in such personal benefit. Upon this question the evidence, Natal remitted the money to the company in London, which was excluded upon the trial, might have an importmixed with other moneys of the company, by means of a bank ant bearing. It was alleged that the excluded evidence post bill. The amount of the bill was received and was paid would show that at the time when the proceeds of the to the company's general account with their bankers in mortgage came under the control of the directors, they must London. The company did not inform the plaintiff that the have been aware of the insolvency of the company; that mortgage had been paid off, but they continued to pay him they, nevertheless, mixed the moneys of the plaintiff and interest on his money until the winding up of the company of other depositors with their own, and that they from time commenced, and he then discovered the fact of the pay- to time retained or paid themselves large sums by way ment off of the mortgage. In the meantime the money had of dividends on heir shares, and also as fees for their services been drawn out of the company's bankers, though it did not as directors ; and that they roust have been aware that the appear by whose cheques or for what purpose. The plaintiff, moneys so retained and paid were derived, not from any being unable to obtain payment of bis £1,000 from the com funds properly belonging to the company, but from moneys pany, brought an action for it against the directors, charging intrusted to them by the depositors. "His lordship thought, them with gross negligence. At the trial the evidence therefore, that the evidence ought to have been admitied, adduced showed that the defendants were the only directors, and that the rule for a new trial should be made absolute.and that the steps in the transaction, including the receipt of Solicitors, Hewitt & Alexander ; White, Borrett, & Co.; the money, were mentioned in the minutes of boord moetings Linklater, Hackwood, &: Co. at which the defendants were present. Cockburn, C.J., upon this evidence, held that there was nothing to fix the defendants with any personal liability. It was then proposed EXPECTANT HEIR_MONEY-LENDING TRANSACTIONSto adduce evidence to show that at the time when the UNCONSCIONABLE BARGAIN.-In a case of Nevill v. Snelling, mortgage was paid off the company was insolvent, but before Denman, J. (sitting for Fry, J.), on the 7th inst., the Cockburn, C.J., rejected this evidence as immaterial. And question arose whether the principle of the cases in which he directed the jury to fiod a verdict for the defendants. the court has set aside unconscionable or catching bargains The Queen's Bench Division refused to grant a rule for a made with expectant heirs, or persons entitled to reversions, new trial. The Court of Appeal granted a rule nisi, and the was applicable to a case wbere loans at exorbitant rates of questions in dispute were argued upon cause being shown interest had been made to a young man, soon after he had against the rule. The court (BAGGALLAY, BRAMWELL, and attained his majority, he being a younger son of a marquis BRETT, L.JJ.) discharged the rule, though B.AGGALLAY, L.J., who was a large landed proprietor, and having no property differed from the conclusion of thə majority. BRETT, L.J., and do expectations, except such as was founded upon the was of opinion that no relation of principal and agent existed position of bis father. The statement of claim alleged that between the plaintiff and the defendants, and that the de the loans “were made by the defendant to the plaintiff withfendants were not, from the mere fact of their being out any hope or expectation on the part of the defendant directors of the company,
trustees for the plaintiff. that the promissory notes (which the plaintiff gave to secure As to the company, they were clearly trustees for the them) would be paid by tho plaintiff
, but on the credit of