Page images
PDF

RAILWAY RATES AND FARES, i.

Therk Beems to be little doubt that the question of railway rates and fares is rapidly gaining an interest in proportion to its importance. The Parliamentary Committee which is now sitting is entering upon no new inquiry (for the subject was extensively dealc with by the Royal Commission of 1865, and the Joint Select •Committee of 1872), but the evidence which has been adduced by Professor Hunter* goes so specifically to the grievances of the agricultural classes, that the cry that "something must be done" will inevitably be raised. And it is material to observe that the Lord Carlingford ■who has just been appointed Lord Privy Seal is the same person who, as Mr. Chichester Fortescue, carried the Regulation of Railways Act, 1873, through the House of Commons. A Bill, if Bill there is to be, would be aptly introduced in the House of Lords.

The law of the subject is peculiar and difficult, and is mainly contained in a body of " special Acts" which are practically inaccessible. It is, indeed, provided by the -concluding sections alike of the Companies Clauses, the Lands Clauses, and the Railways Clauses Consolidation Acts, that every railway company must keep a copy of its special Act at its principal office of business, and also •deposit for public inspection a copy with the clerk of the peace of each county through which the railway passes; but the Acts of each large company may be numbered by scores, and its rates by millions, and, without the assistance of a good library, it is hopeless to get at accurate information.

We propose to consider (1) the Standing Orders of Parliament which regulate the toll clauses; (2) the toll clauses of two or three of the more important companies; and (3) the remarkable section of the Railways ■Clauses Act which controls the operation of the toll clauses of the special Acts.

The Standing Orders have, we believe, differed little .since 1845, and we believe it also to be correct to say that it is only in rare cases that they have been dispensed with in favour of particular companies. Standing Order No. 119 provides that "the Committee on -every railway bill shall fix the tolls, and Bhall determine the maximum rates of charge for the conveyance of passengers, with a due amount of luggage, and of animals and ' goods on the railways." Standing Order No. 90 (peculiar to the House of Lords) provides that "no Bill by or under which the maximum rates authorized for the conveyance of passengers, goods, or animals shall be read a second time until a report thereon from the Board of Trade has been laid upon the table of the House." Lastly, Standing Order No. 132 {which hag been in force ever since 1845) provides that every railway bill shall contain a clause to the effect that "" nothing herein contained" shall exempt the railway authorized ..." from any future revision and alteration, under the authority of Parliament, of the maximum rates and fares authorized by this Act." These Standing ■Orders form, no doubt, a strong weapon against the railway companies for any member inclined to use them, but their extreme generality has probably rendered them harmless in practice. No staudard is prescribed for fixing the maximum rates; it is not said whether they are to be regulated by tli6 cost of the line, or the value of money, or by an average of maxima or actual fares prevailing on lines already constructed. The classification, which forms so conspicuous a feature in the special Act when passed, is entirely ignored. Therefore a committeo would naturally lean to a high maximum,

* " Instance* am not wan tine," states the professor in a recent pamphlet on the subject, "in which foreign produce and cattle are conveyed by Eoglisb. railways more cheaply than home produce and cattle. There is reason to believe that, evon •part from auch favouritism, tome railway companies habitually make excessive charges, and such charges are submitted to by farmers and others in ignorance of their rights."

and as a matter of fact, as was stated by Mr. Laing in bis report of the Statistics of British and Foreign Railways in 1814, " the parliamentary maximum is always so high as to exceed the limit which self-interest alone would dictate, and has never had any practical operation." (See introduction to Bigg's Special Railway Acts, published in 1845.)

Passing to the special Acts themselves, we find the scheme of the toll clauses of the Loudon, Brighton, and' South CoaBt Railway Company to be as follows t1-*'

It is first enacted that the company may demand1 and take " for the use of their railways, and for the supply of carriages, for every person 2d. per mile, and it conveyed in a carriage of the company an additional sum of |d, per mile." A further section allows the company to charge for the use of engines any sum not exceeding Id. per mile for each passenger. The aggregate is 3 Jci., but it is plain that the sections are not worth the paper they are written on, being enacted on the long-exploded theory that the public would be able to use railways as highways, with their own engines and oarriages, or at all events with engines and carriages not provided by the company owning the line. The section of practical importance, therefore, is the maximum rate clause, which provides that " the maximum rates of charge to be made by the company for the conveyance of passengers, including the tolls for the use of the railway and for locomotive power, and every other expense incidental to such conveyance (except Government duty), shall not exceed " for every first-class passenger by an express train 2id. per mile, for every second-class passenger by an express train 2d. per mile, for every first-class passenger by an ordinary train 2d. per mile, for every second-class passenger by an ordinary train 1 jd. per mile, and for every third-class passenger Id. per mile. [These charges, we may observe, were increased by one farthing apiece per mile by the London and Brighton Railway Act, 1868 (31 & 32 Vict, c exxxiv.), s. 26.]

Turning to the Groat Eastern Railway Act, 1S62 (25 & 26 Vict. c. cexxiii.), wo find very different toll clauses. By section 224 of that Act the toll for the use of the railway is 2d. per mile, as upon the Brighton line, but that the toll for the use of a carriage of the company is Id. per mile [instead of jd.], and the toll for use of engines ia jd. per mile [instead of Id.]. Moreover, the maximum rate clause makes no distinction between express and ordinary train?, but fixes for first class 3d., for second class 2d , and for third class 1 jd. per mile.

The South-Eastern Company has very peculiar toll clauses indeed [in operatiou upon a certain portion of its line only]. They are to be found in 6 Will. 4, o. 75, and authorize the charge of a maximum fare of 3id. per mile for each passenger, irrespective of class, and moreover, in the case of animals and goods, allow "such additional sum as the company think proper for use of engines, and such additional sum as shall be reasonable for the use of carriages. (See Hodges ou Railways, 6th ed., p. 468, where a table of the maximum charges applicable to some half dozen companies may be found.)

The following dates have been fixed for the Spring Assies :—Western Circuit (Mr. Justice Manisty).—Worcester, Tuesday, April 26; Taunton, Tuesday, May 3; Exeter, Monday, May 9; YVinchester, Tuesday, May 17. SoathEastern Circuit (Mr. Justice Hawkins).—Reading (which is on the Oxfor'l Circuit), will form part of the South-Eistern Circuit for those assizes, and Mr. Justice Hawkins will open the commission there on Monday, the 25th inst., and will proceed with the trial of prisoners the same morning. Northern Circuit (Mr. Justice Williams and Mr. Justice Mathew).—Carlisle, Tuesday, April 26 j Manchester, Friday, April 29 ; Liverpool, Saturday, May 7. North-Eastern Circuit (Mr. Justice Stephen and Mr. Justice Kay).— Newcastle, Tuesday, April 26; Durham, Friday, April 29; Leeds, Tuesday, May 3. Civil actions will be tried at Manchester, Liverpool, and Leeds, but prisoners only at the other places. Mr. Justice Kay will not join the North-Eastern Circuit until Leeds is reached.

CORRESPONDENCE.

THE INCORPORATED LAW SOCIETY. '" [To the Editor of the Solicitors' Journal.] Sir,—Over 150 solicitors have now signed the requisition to the Council of the Incorporated Law Society to convene a meeting " for the purpose of considering the present position of legal procedure, the impending changes in our. profession, and other incidental matters, which to the meeting may appear urgent and important," and • yet I am informed that the council will not meet to consider it before Friday, the 29th inst.—that is to. say, when we are all busy again. No advantage is taken of the vacation, when we all might attend without inconvenience. Edmund Kimbrr,

22, Queen-otreet, E.C.

THE INCORPORATED LAW SOCIETY AND
THE "LAW LIST."

[To the Editor of the Solicitors' Journal.]
Sir,—I am desired by the Council of the Incorporated
Law Society to ask you to be so good as to insert, in
your next issue, the accompanying copy of a letter which
I have, by their direction, sent to Mr. John Nicholls.

E. W. Williamson.
Incorporated Law Society, Chancery-lane, April 13.

[The following is the letter referred to :—
(Copy.)

Incorporated Law Society, Chancory-lane, W.C.,
April 13, 1881.

Dear Sir,—I beg to acknowledge the receipt of your letter of the 5 th inst.

I am desired by the council to inform you that in putting an end to the arrangement which, as mentioned in a previous letter, they had found not to work satisfactorily, they had in view the publication of as accurate a list as possible of the members of this society, and the proposed issue of the Calendar afforded an excellent opportunity for carrying into effect that which could not conveniently have been obtained in any other way.

The council have caused inquiry to be made with reference to the list of errors enclosed in your letter, and they have investigated «ach one of the instances referred to by you. It has been found that in more than fourfifths of them, the entries now in the Calendar are correctly made from the personal instructions of the members themselves. The result, moreover, of the comparison you have made seems to the council to establish the statement made in my letter to you of the 30th ult. as to numerous errors in the Law List, which statement you are quite at liberty to test if you think proper to do so.

I may mention that in some of the cases you refer to as errors, the gentlemen named are not members of the society, and that your list is largely made up of items referring to purely metropolitan districts.

Tou will, of course, understand that the council were not in a position to use any portion of the Law List in framing the Calendar. They took the only proper steps that were open to them—namely, of making personal application to all the members the society.—I am, dear Sir, yours faithfully,

(Signed) E. W. Williamson, Secretary.

J. Nicholls, Esq., 73, Gresham-street, E.C]

CASES OF THE WEEK.

Proof In BankruptcyJudgment DebtPower OfCourt Of Bankruptcy To Oo Behind Judgment.—In a case of Ex parte Banner, before the Court of Appeal on the 7th inst., a question arose as to the power of the Court of Bankruptcy, upon a proof being tendered on a judgment debt, to go behind the judgment, and inquire into the consideration for the alleged debt. An action had been brought against the liquidating debtors for £1,042. When it came on for trial, the debtors, under the advice of their counsel, consented to a judge's order staying the proceedings, on the terms of their paying the defendant £400 and the taxed costs of the action. A few days afterwards the defendants filed a liquidation petition, and the plaintiff sought to prove in the liquidation for £510, the amount of the £400 and tbe costs. Upon the evidence, the court held that tbe action bad been brought by the plaintiff, knowing that be had no legal right to tbe sum which he claimed, simply for the purpose of extortion, he believing that the defendants would not venture to submit to a cross-examination, because they would then have had to admit that they had been parties to a gross fiaud. Under these circumstances tbe court (james, Brett, and Cotton, L J J.), reversing the decision of Bacon, C. J., held that tbe oourt could go behind the judgment and inquire into the consideration, and that it would be a violation of justice to allow the proof to be made in competition with the bond fide creditors of the debtors.—Solicitors, Robinson d- Cameron; Lay ton <k Jaquee.

Proof In Bankruptcy Guaranteed Debt Past Payment By Surety.—In a case of Ex parte The National Provincial Bank of England, the Court of Appeal (James, Brett, and Cotton, L.JJ.), on the 7th inst., reversed tbe decision of Bacon, C.J. (ante, p. 279). The debtor and a. surety had given to the bankers of the former a joint and several bond for £1,000, to secure the balance which might,, from time to time, he due from the debtor to the hank.. The bond contained a clause limiting the total liability of the surety to £500, and a proviso that, in case the debtor should become bankrupt, any dividends received by the bank from his estate should not, so far as concerned the surety, go in discharge of his liability, but that the bank should, notwithstanding, be entitled to recover on tbe bond against the surety to the full extent of £500, or so mnch thereof as should, together with the dividends, amount to twenty shillings in tbe pound on tbe debt for which tbe bond should be a security. Tbe debtor some time afterwards filed a liquidation petition, and the bank proved in the liquidation for £2,494, the whole balanoe due from him to them. Afterwards tbe surety paid them £500, and the bond was given up to him. The trustee allowed him to prove in tbe liquidation for £500, and then gave notice to tbe bank that he rejected their proof to the extent of £500. Bacon, C.J., held that the trustee was right in thns reducing the proof, on the ground that the creditor had realized a security. TheCourt of Appeal (james, Brett, and Cotton, L.JJ.) held that the effect of the proviso was to assign to the hank the surety's right to prove for what he had paid, and that tbe proof of the bank ought to stand for the full amount. Tbe right of the bank could not be affected by the trustee's having admitted the proof of tbe surety behind their back. And the court were of opinion that, independently of the proviso* the result would have been tbe same, the bond being in effect a security for the ultimate balance due to the hank, and the surety being a snrety for the whole debt, though his liability was limited to £500.—Solicitors, Wilde, Berger, $ Co.; Jones, Blaxland, $ Co.

On Tuesday evening, the members of the Sontb-Eastern Circuit entertained Mr. Justice Watkin Williams and Mr. Justice Matbew at dinner in the Inner Temple-hall (the use of which was specially granted for the purpose) in order to celebrate their recent elevation to the bench. Mr. Montague Chambers, Q.C., occupied the chair, and among those present were Lord Justice Bramwell, Mr. Baron Pollock, and Mr. Justice Denman.

Vendor And Purchaser—Contract For Sale Of House Destruction Of House By Fire Between Date Of Con

TRACT AND COMPLETION OF PURCHASE—RlOHT TO PROCEEDS

Of Fire Insurance Policy Effected By Vendor— M Geo. 3, c 78.—In a case of Rayner v. Prtston, before the Conrt of Appeal, on the 8th inst., the question arose whether after a contract has been entered into for the sale of a house, but before tbe completion of the purchase, the house is destroyed or damaged by fire, the purchaser is entitled to the money which tbe vendor has recovered in respect of tbe loss from an insurance company with whom he had effected a policy before the contract for sale was entered into, the contract for sale having contained no reference to the policy. The action was brought by the purchaser against the vendors of a house, which had been damaged by fire between the date of the contract for sale and the time fixed for completion, claiming to recover the moneys which the defendants had received under a policy of insurance on the house, effected before the contract, but not referred to in it, or to have the moneys expended in reinstating the house. The policy contained a condition that assignees of the property (with certain exceptions, not including a purchaser) should not be entitled to the benefit of the insurance. Jessel, M.R., considering himself bound bv authority, held (28 Vf. R. 808, L. E. 14 Ch. D. 297, 24 Solicitors' Journal, 485) that the purchasers were not entitled to the policy money, and this decision was affirmed by the Court of Appeal (james, Brett, and Cotton, L.JJ.), though their lordships were divided in opinion. Cotton, LJ., was of opinion that (independently of the condition in the policy) the contract for sile would pass all things belonging to the vendors appurtenant to, or necessarily connected with, the use and enjoyment of the property mentioned in the contract, but not collateral contracts. And, in his opinion, independently of the Act of Geo. 3, the policy of insurance was a collateral contract. It was not a contract limiting or affecting the interest of the vendors in the property sold, or affecting their right to enforce the contract for sale. If there had been no insurance, and the house had beon burnt, the contract for sale would have been enforced. The policy wis not even a contract iu the event of a fire to repair the building', but a contract in that event to pay the vendors a sum of money which, if received by them, they might apply in any way they thought fit. In his lordship's opinion the contract of insurance would not pass without apt words by a contract for sale of the thing insured. But it was said that the vendor was, between the time of the contract being made and its completion, a trustee of the property for the purchaser, and that as, but for the fact of the legal ownership of the property insured being vested in him, he could not have recovered on the policy, be must he considered a trustee of the money so recovered. But an unpaid vendor was a trustee in a qualified sense only. He was a trustee only because a court of equity would give effect to his contract by transferring the property sold to the purchaser, and he was a trustee only iu respect of the property contracted to be sold, of which the policy was not a part. The money was received by virtue of the contract of insurance, and though the fact that the insured had parted with all interest in the property insured would be an answer to the claim against the company, on the ground that the contract of insurance was one of indemnity only, that was very different from the proposition that the money was received by reason of his legal interest in the property. As to the statute of Geo. 3, his lordship was of opinion that it did not, of itself, so connect the money with the property sold as to entitle the plaintiffs successfully to contend that, under the contract, they were entitled to the money. He would give no opinion whether the plaintiffs, as purchasers, who were liable to the vendors for the full amount of the purchase-money, even though the buildiog was burnt, were persons who could (possibly to the prejudice of the insurance company) insist that the money should be applied in re-building. Ever, if they were so entitled, the Act only gave a right to insist on the money being so applied, and their claim to have that done was the foundation of, and essential to, the existence of their right His lord>hip was of opinion that there was no decision in favour of the plaintiffs, while against them there was the direct decision of ViceChancellor Kindersley in Poole v. Adams (12 AV. R. 683), which was supported to some extent by the judgment of Lord Eldon ia'Paine v. MelUr (6 Ves. 349), though that decision was not directly in point. Brett, L.J., agreed with Cotton, L.J. James, L.J., differed. He was of opinion that the pla'ntiflV contention was founded, not only on the natural equity which commended itself to the general sense of the lay world not instructed in legal principles, but also on the artificial equity which is admioistered in our system of jurisprudence. He was of opinion that the relation between the parties was truly and strictly that of trustee and cestui que trust. He agreed that it was not accurate to call the relation between the vendor and the purchaser of an estate, while the contract for sale was t'» fieri, that of trus'ee and Cestui que trust, because it was then uncertain whether the contract would or would not he performed, and the character

in which the parties stood to one another remained in suspense as long as the contract was in fieri. But, when the contract was performed by actual conveyance, or performed in everything but the mere formal act of sealing the engrossed deeds, then the completion related baok to the contract, and it was thereby ascertained that the relation was, throughout, that of trustee and cestui que truri. It was ascertained that, while the legal estate Was in the vendor, the beneficial or equitable interest was wholly in the purchaser. That was, in his lordship's opinion, the correct definition of a trust estate. And, that being the relation between the parties, his lordship held it to be an nniversal rule of equity that any right which was vested in a trustee, any benefit which accrued to a trustee, from whatever source or under whatever oircumstances, by reason of his legal ownership of the property, that right and that benefit he took as trustee for the beneficial owner. If the policy of insurance were a collateral contract, such as ths policy of insurance which a oreditor effects on the life of his debtor, the case would be wholly different. But a policy of fire insuranoe was not, in his lordship's opinion, a collateral contract. It was not a wagering contract, a contract that, if a fire happeued, a certain sum of money should be paid to the insured. It was in terms and in effect a contract that, if the property was injured, the insurance company would make good the actual damage sustained by the property. That damage, and that damage only, gave the right and was the measure of the right, and it seened to him impossible to say that it was not by reason of the legal ownership, and in respect solely of the injury done to that legal ownership, that the right to recover from the insurance company accrued to the insured. No doubt, it was a mere accident that there was a policy, and the purchaser could not have complained if there had been none. But this was so in other cases in which equitable rights had arisen. A surety was entitled to contribution from a co-surety, or to the benefit of securities taken by the creditor from the principal debtor, though he was ignorant when he agreed to become surety that there was another surety, or that the creditor had obtained any security. His lordship thought it unnecessary to refer to the Act of Geo. 3. But he thought that the Act showed that a policy of insurance was considered by the Legislature to be for the benefit of all the persons interested in the property, and he thought that a purchaser having an equitable interest under a contraot for sale was a person who h*d an interest in the house within the meaning of the Act. But he preferred to rest his decision on the fact that the relation between the vendor and purchaser became, and was in law, as from the date of the contract, and up to the completion of it, that of trustee and cestui que trust, and that the trustee received the insurance money by reason of, and as, the actual amount of the damage done to the trust property.—Solicitors, Venn $ Son; Ton d; Co.

CompanyWinding Up DirectorsMisfeasanceCompanies Act, 1862, s. 165.—In a case of lure The British Seamless Paper Box Company, before the Court of Appeal on the 5th inst., the question arose whether directors of a company in liquidation were liable to pay to the liquidator, under section 165 of the Act, the nominal value of some shares, which had been given to them as fully paid up by the vendors to the company of the patent to work which the company was formed. The company was formed in March, 1875, and consisted originally of only eight members, who had each signed the memorandum of association for one share. Seven of these persons were directors, and the eighth was the secretary. The nominal value of each share was £100. Iu April, 1875, the directors allotted 320 shares as fully paid up to the venders, in payment of the purch<ise-money of the patent, and at the same time the vendors (who were three of the directors) transferred thirty-five of the 320 shares to another director, and fifteen of the 320 shares to each of two other directors, in each case for a nominal consideration. All the then eight members of the company were aware of this transaction. No new members were admitted until January, 1876, when some shares were allotted to four or five other persons. Afterwards the company was ordered to be wound up, and the liquidator, alleging that the directors to whom the vendors bad given the fully paid-up shares had been guilty oi a misfeasance, sought to make them pay the full nominal value of those shares. Jesse!, M.B., held that the directors were sot liable, and his decision was affirmed by the Court of Appeal (james, Brett, and Cotton, L.J J.). Jambs, L.J., said that the question was one of honesty or dishonesty. He agreed with the Master of the Bolls in thinking that when the transaction took place the then members of the company intended to remain the sole members. There could be no fraud on the existing members of the company, for they all concurred in what was done, and no fraud on the future members, for it was not then intended to admit any. The case differed from The Society of Practical Knowledge v. Abbott 12 Bear. 559), in which it was always intended to admit new shareholders. If the new shareholders bad any cause of complaint, they might bring actions against the directors on the ground of concealment or misrepresentation, but the liquidator, as representing the company, had no ground of complaint.—Solicitors, Ramtden 4s Aiittie; Benltam 4s Tindcil; Butcher.

Practice—Notice Op Tbial By JuryTrial Before Judge—Action For Trespass—Rules Of Court, 1875, Orb. 36, R. 26.—In a case of Mitchell v. Chapman, before the Master of the Rolls on the 8th inst., a motion was made under ord. 36, r. 26, that, notwithstanding the notice of trial before a judge and jury given by the defendant, the action might be tried before the judge bimself. The action was for a declaration that a certain estate, the property of the plaintiffs, extended close up to the hedge on the western side thereof, and that the defendants were not entitled to any land on the eastern side of suoh hedge, or to out any ditoh in, or otherwise interfere with the land, also for an injunotion, damages, and general relief. The defendants alleged that the hedge belonged to them, and also claimed a strip of land, forty inohes wide, along tbe eastern side of the hedge. The defendants also alleged that the fenoe nnd the customary distance of forty inches formed part of a parcel of land allotted to them under an award in 1761. Jessel, M.R., said it was not lor him to say whether the case would be better tried before a judge or a judge and jury, as the Legislature had given either party a right to try before a jury unless good cause to the contrary were shown. That right was absolute except in that class of cases which, previously to the Judicature Act, without any consent tbey would have been tried without a jury. Now, as to some cases whioh the Court cf Chancery used to entertain, injunctions were frequently granted, but the aotion itself and the question of right was really tried at law, and equity only interfered to proteot tbe subject-matter until the right was determined. In that class of cases he considered there should be a stronger case to induce the judge to take away the right to a jury than where the action was an old chauoery suit pure and simple. In the present case the action was one of trespass, not a obancery suit purely, and there would be a confliot as to sots of ownership in relation to the hedge claimed by the plaintiffs. Another question was whether the defendants were entitled under the award, and also as to the nature of the Custom of the country as to the land adjoining tbe hedge. In his opinion, unless a jury conld not try those issues, they really could try nothing at all. Moreover, it was ■aid all the witnesses resided at Leeds; and, in fact, he had no doubt it was a case that ought to be tried before a judge and jury. He should therefore direct the trial to take place at the ensuing Leeds Assizes, and, as it was to be so tried, and as there was no question of equity involved, he thought the subsequent proceedings should also take place in the division in which tbe action was tried, and he Bbould therefore also direct a transfer of tbe action to the Queens Bench Division.—Solicitors, Singleton 4s Tatterthall; Gtare 4s Son.

SettlementExecutory TrustProperty Settled On Married Woman And ChildrenPower Of AppointMent.—In a case of Ellin v. Snowdon, also before the Master of the Rolls on the 8th inst., a question was raised aa to tbe proper form of settlement to be exeouted where property was given by will to be settled upon a married woman and her children and issue. The case had been previously before the court, and by tbe decree a power of appointment was given to tbe married womau amongst her j

children and issue. It was now argued, on a motion to vary minutes, that the power of appointment Bbould not be inserted. No case could be produoed where the exact point bad arisen and been adjudicated upon. Jessel, II.P.., was of opinion that, on the particular words of the will whioh directed the property to be settled upon the married woman and her children and issue, with powers of maintenance and advancement, that tbe actual devolution was determined, and, therefore, that the power of appointment should be exoluded. — Solicitors, Walker 4s MetcburnWalker; Lambert, Fetch, 4s Shakespear.

PracticeInspection Of DocumentsNecesutt Of Solicitor Being PresentRules Of Court, 1875, Ord. 31, B. 14—In a esse of Oldrieve v. Knowlet, before the Master of the Rolls on the 9th inst., a question was raised whether plaintiffs could refuse to allow a defendant to inspect documents in the plaintiffs' possession unless the defendant was accompanied by his solicitor throughout the whole inspection. The reason why the inspection was refused except in the above mode was became the defendant in question had been previously convicted of forgery. It was argued for the plaintiff that, under the old practice, the inspection was not allowed except to the solicitor or when he was present. Jessel, M.U., was of opinion that the defendant was entitled to the inspection, on his giving reasonable notice to the plaintiff, without hia solicitor being required to he present, as, if the plaintiffs had any feu as to the preservation of tbeir documents, they could have any number of policemen or clerks presan t they liked. The costs of the summons by the defendant for the inspection would be his " in any event."—Solicitors, A. Lewie; tot t}Co.

Parties To ActionSpecific PerformanceContract For SaleTrubtee Fob Vendor.—A demurrer wasargoed before Hall, V.C., on the 7th inst., in an action of The Halifax Joint Stock Banking Company {Limited) v. The Soioerby Bridge Town Hall Company and others. The demurrer had been entered to the statement of claim of the plaintiffs by one of the defendants, J. R. Atkinson, under the following circumstances:—The plaintiffs were a company incorporated under the Companies Acts, 1862 and 1867, while the defendants were an association (formed under a deed, for the object of founding and keeping np a museum and mechanics' institute) and the trustees of the association. The deed of association provided that the trustees should stand seised and possessed of the lands, &c, of the association, subject to the entire control of a committee, and that they should execute all such conveyances, &c, as the committee should direct. The association having acquired certain copyhold lands, which had been duly surrendered to the tiustees, built a public hall upon a portion thereof. After some years the plaintiff company made an offer to the association for the purchase of the hall, which was accepted by the committee, and a deposit of ten per cent, npon the purchase-money waspaid. The shareholders of the association approved the contract by a resolution duly passed and confirmed, and a surrender to the plaintiffs was prepared and approved by the solicitors of the association. This surrender was executed by all but one of the trustees of the assooiation, bat that one, being the defendant Atkinson, refused to execute. The action was thereupon commenced by the plaintiffs, claiming specific performance of the contract for sale, and that the defendant Atkinson might be ordered to execute a proper conveyance. The statement of claim, to which Atkinson demurred, stated as above, and that the plaintiffs were willing to complete their purchase. Tbe grounds of the lemurrer were that the claim disclosed no privity of contract between the plaintiffs and the defendant Atkinson, nor any ground of action against him. Hall, V.C., allowed the demurrer with costs, observing that it was the rule to exclude from actions for specific performance all collateral questions a""1 all persons who were not parties to the contract. Tbere was an obligation thrown upon the vendors to procure the concurrence of the parties to tbe conveyance, but the fact of a trustee having the legal estate, and being bound to convey at the direction of tbe vendors, did not make him otherwise than a stranger to the contract. The observations of Lord Cottenbam in Parker v. Small (3 My. * Cr. 70) applied, and the rule could only be altered by the Court of Appeal-— Solicitors, Layton <f Jaques, for Waletn <fc Dickons, Bradford; Learoyd $ Co., for J. W. Longbottom, Halifax.

Building Society Incoepobation Irregularity Poweb Of Court To Dkclaee Cebtificate Of IncorporaTion VoidBuilding Societies Act, 1874 (37 & 38 Vict. c. 42), 8S. 7, 9, 12.—In a case of Olover r. Giles, before Fry, J., on the 5th inst., the question arose whether the court hail power to declare tbat the certificate of incorporation of a building society, under the Building Societies Act of 1874, was of no effect, on the ground that the proceedings by meaus of which it had been obtained had been irregularly conducted. The action was hronghtbysomeof the members of a building society, on behalf of themselves and others who were altogether a minority of the members, against the trusters and other officers of the society. The society was originally formed in 1865, and was inrolled under the Act 6 ft 7 Will. 4, c. 32. In 1879 a general meeting of the society, specially called for the purpose, was held, at which it was resolved that the society be incorporated under the Act of 1874. In pursuance of this resolution, the certificate of incorporation was obtained from the Registrar of Building Societies. Section 9 of the Act of 1874 provides that " every society now subsisting or hereinafter established shall, upon receiving a certificate of incorporation under this Act, become a body corporate by its registered name, having perpetual succession, until terminated or dissolved in manner herein provided, and a common seal." By section 12 "a certificate of incorporation under this Act shall not be granted to an existing society, except upon application to the registrar made by authority of a general meeting of the society specially called for the purpose, and the registrar may require of the person making the application a statutory declaration tbat such authority Whs duly given." The plaintiffs alleged that the meeting, at whiob it was resolved tbat the society shall be incorporated under the Act of 1874, had been irregularly convened, no proper notice having been given of it in pursuance of the society's rules, and many of the members having, in fact, had no notice of the meeting. And the plaintiffs asked a declaration that the certificate of incorporation waa of no effect, and that it onght to be delivered up to be cancelled, and that, notwithstanding the certificate, the society was a subsisting society under the provisions of the Act 4 4 5 Will. 4, c. 40. Fry, J., said tbat before the registrar granted the certificate it was his duty to inquire whether tbe application for it was made by the authority of a general meeting of the society duly given. Tbe Act provided tha^, upon the certificate being given, the society should become a body corporate. Even if there bad been an irregularity, in his lordship's view he had no power to declare the incorporation void. Incorporation was a prerogative of the Crown, and, though, in this case the ncorporation took place under the provisions of the statute, it wss none tbe less a matter of royal prerogative. And incorporation might be put an end to by the well-known method of procedure by quo warranto, but it was a new thing to his lordship tbat some of tbe individual corporatoss should come to the court as against others, and ask to have the corporation dissolved, on the ground that it bad been obtained by fraud or irregularity. Another fatal objection was that the relief was asked in the absence of tbe corporation itself which it was sought to dissolve. — Solicitors, Brook <fc Chapman; Woodiridgc <fc Sons.

MortgagePower Of SaleValiditt Of ExerciseNotice To Be Given To "Mortgagor, His Executors, Administrator", Oe Assigns" Notice Give* To MortGAGOR But Not To Second Mobtoaoee.—In a case of Hool» v. Smith, before Fry, J., on the 6th inst, a question aro?e as to the validity of a sale under a power of sale in a mortgage, noon wbioh, strange to say, there did not appear to be any authority. A first mortgage contained a power of tale, and it was proved that the power was not to be exercised unless notice cf the intention to sell had been served on the mortgagor, "his executors, administrators, or assigns." The mortgagor made a second mortgage of the property, and the second mortgagee gave notice of his mortgage to the first mortgagee. After this, the first mortgagee sold the property under his power, and before doing so he gave notice to the mortgagor, but be did not give any notice to the second mortgagee. The second mortgagee brought the action against ttie first, claiming damages, on the ground that notice ought to have been given to him as an "assign" of tbe mortgagor before the power was exercised, and that tbe property bad been sold at an undervalue. Fry, J., said tbat the object of the provision

as to notice wag that the person who was substantially interested in the equity of redemption should have the opportunity of paying off the first mortgagee, and no one was more interested in the equity of redemption than the second mortgagee. And his lordship held that the effect of the second mortgage was to subrogate the second mortgagee to the rights of the mortgagor in respect of notice. It was unnecessary to decide whether the mortgagor was also entitled to notice. An inquiry as to damages was directed.-" Solicitors, C. Butcher; Church § Co.

CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrar Pepys, acting as Chief Judge.) March 22.—Ex parte West, Re Salisbury, the younger. A solicitor is not entitled to the costs of a petition for liquidation where the presentation of such petition is unnecessary.

The court has a discretion under rule 292 with reference to solicitors' costs.

This was an application on behalf of Mr. Albert West, solicitor for R. B. Salisbury, junr., for an order that the costs of the applicant in and about the presentation of the petition for liquidation presented by Salisbury, dated the 20th of July, 1880, might be taxed and paid by the trustees out of the estate of the bankrupt.

The case of the applicant was that up to tbe 13th of August, 1880, he acted as solicitor for R. B. Salisbury, junr., in various matters, and amongst others he prepared, and on the 20th of July filed on his behalf, and at his request, a petition for the liquidation of his affairs by arrangement or composition with his creditors. Under the proceedings thus instituted he applied for the appointment of a receiver of the estate and effects of the debtor, and also obtained an order restraining thirty-eight creditors from proceeding further with their actions, or upon their judgments and executions.

Tbe first meeting of creditors under the liquidation petition was not held, it being ascertained that the creditors desired bankruptcy, and there appearing several other obstacles to the carrying of the proceedings through, and on the 13th of August the debtor was adjudicated bankrupt oa the petition of Messrs. Bradley & Currier, filed on the 6th. of February, 1880.

The applicant applied to the taxing master to tax bis costs of the liquidation petition, but he desired the directions of the court thereon.

In answer to the application Mr. Kidson, one of the trustees, made an affidavit in which he stated that the petition of Messrs. Bradley & Currier came on to be heard on the 20th of February, 1880, the 19th of March, and the 9th, lGtb, and 30th of April. On the latter day it was adjourned sine die, but on tbe 15th of July an application was made for a day to be appointed for the bearing of the petition, and the registrar fixed the 30th of July, on which day, and on the 13th of August, it again came on to be heard.

On the 14th of March, 18S0, Messrs. Pocbin presented a petition against the bankrupt, and after one adjournment sine die, the 30th of July was appointed for the hearing.

On the 5th of April, 1830, Martin Shepherd & Co. (Limited), presented a petition against the bankrupt, and after one adjournment tine die, tbe 30th of July was appointed for tbe bearing.

On tbe 13th of April, 18S0, Oeorge Gibbens presented a petition against the bankrupt, whiob came on to be heard on several occasions, but on the 2nd of July was adjonrned sine die.

A petition for adjudication was also presented against the bankrupt by Messrs. Raffety, Thornton, & Co., which come on to be heard on several oooasions, inoluding the 2nd and 30th of July, and on tbe 13th of August last.

The act of bankruptcy alleged in eaob of the petitions was non-oomplianoe with the terms of a debtor's summons served by tbe petitioning creditor. No receiver was ever appointed nnder either of the petitions. Tbe applicant, according to Mr. Kidson s statement, aoted as the bankrupt's solicitor in the matter of all tbe petitions, and waa from time to time folly cognizant of the position thereof, and of the state of the bankrupt's affairs, and on tbe 20th of July he was aware tbat three bankruptcy petitions were being actively proseouted against tbe bankrupt. The appointment of a receiver under the liquidation petition

« PreviousContinue »