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and as a matter of fact, as was stated by Mr. Laing in RAILWAY RATES AND FARES. his report of the Statistics of British and Foreign Rail
ways in 1844, “ the parliamentary maximum is always 1.
80 high as to exceed the limit which self-interest alone THERE seems to be little doubt that the question of rail
would dictate, and has never had any practical operaway rates and fares is rapidly gaining an interest in tion." (See introduction to Bigg's Special Railway Acts, proportion to its importance. The Parliamentary Com.
published in 1845.) mittee which is now sitting is entering upon no new
Passing to the special Acts themselves, we find the inquiry (for the subject was extensively dealt with by scheme of the toll clauses of the London, Brighton, and the Royal Commission of 1865, and the Joint Select South Coast Railway Company to be as follows: 4. Committee of 1872), but the evidence which has been ad It is first enacted that the company may demand and duced by Professor Hunter* goes 80 specifically to the take " for the use of their railways, and for the supply grievances of the agricultural classes, that the cry that
of carriages, for every person 2d. per mile, and it con" something must be done" will inevitably be raised.
veyed in a carriage of the company an additional sum of And it is material to observe that the Lord Carlingford
id, per mile." A further section allows the company who has just been appointed Lord Privy Seal is the
to charge for the use of engines any gum not exceeding same person who, as Mr. Chichester Fortescue, carried
1d. per mile for each passenger. The aggregate is 3}d., the Regulation of Railways Act, 1873, through the
but it is plain that the sections are not worth the paper House of Commons. A Bill, if Bill there is to be,
they are written on, being enacted on the long-exploded would be aptly introduced in the House of Lords.
theory that the public would be able to use railways as The law of the subject is peculiar and difficult, and is highways, with their own engines and carriages, or at mainly contained in a body of “special Acts” which are
all events with engines and carriages not provided by practically inaccessible. It is, indeed, provided by the
the company owning the line. The section of practical concluding sections alike of the Companies Clauses, the importance, therefore, is the maximum rate clause, which Lands Clauses, and the Railways Clauses Consolidation provides that “the maximum rates of charge to be made Acts, that every railway company must keep a copy of its
by the company for the conveyance of passengers, inspecial Act at its principal office of business, and also cluding the tolls for the use of the railway and for deposit for public inspection a copy with the clerk of
locomotive power, and every other expense incidental the peace of each county through which the railway to such conveyance (except Government duty), shall passes; but the Acts of euch large company may be not exceed “for every first-class passenger by an express numbered by scores, and its rates by millions, and, with
train 2 d. per mile, for every second-class passenger by an but the assistance of a good library, it is hopeless to get express train 2d. per mile, for every first-class passenger at accurate information.
by an ordinary train 2d. per mile, for every second-class We propose to consider (1) the Standing Orders of
passenger by an ordinary train 1 d. per mile, and for every Parliament which regulate the toll clauses ; (2) the toll third-class passenger 18. per mile. [These charges, we clauses of two or three of the more important com may observe, were increased by one farthing apiece per panies; and (3) the remarkable section of the Railways
mile by the London and Brighton Railway Act, 1868 (31 Clauses Act which controls the operation of the toll & 32 Vict. c. cxxxiv.), s. 26.] clauses of the special Acts.
Turning to the Great Eastern Railway Act, 1862 (25 The Standing Orders have, we believe, differed little 1 & 26 Vict. c. ccxxiii.), we find very different toll clauses. since 1845, and we believe it also to be correct to say By section 224 of that Act the toll for the use of the that it is only in rare cases that they have been dis railway is 2d. per mile, as upon the Brighton line, but pensed with in favour of particular companies. Stand that the toll for the use of a carriage of the company is ing Order No. 119 provides that “the Committee on
1d. per mile [instead of d.], and the toll for use of every railway bill shall fix the tolls, and shall determine engines is d. per mile (instead of ld.). Moreover, the the maximum rates of charge for the conveyance of maximum rate clause makes no distinction between passengers, with a due amount of luggage, and of
express and ordinary trains, but fixes for first class 38., animals and goods on the railways.” Standing Order
for second class 2d, and for third class 1 d. per mile. No. 90 (peculiar to the House of Lords) provides that The South-Eastern Company has very peculiar toll “no Bill by or under which the maximum rates autho clauses indeed (in operation upon a certain portion of its rized for the conveyance of passengers, goods, or ani line only). They are to be found in 6 Will, 4, c. 75, mals shall be read a second time until a report thereon and authorize the charge of a maximum fare of 3 d. per from the Board of Trade has been laid upon the table of
mile for each passenger, irrespective of class, and more. the House.” Lastly, Standing Order No. 132 (which over, in the case of animals and goods, allow “such has been in force ever since 1845) provides that every additional sum as the company think proper for use of railway bill shall contain & clause to the effect that engines, and such additional sum as shall be reasonable * nothing herein contained" shall exempt the railway
for the use of carriages. (See Hodges on Railways, 6th authorized ...“from any future revision and alteration,
| ed., p. 468, where a table of the maximum charges under the authority of Parliament, of the maximum
| applicable to some balf dozen companies may be found.) 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 The following dates have been fixed for the Spring Asthem, but their extreme generality has probably rendered sizes :- Western Circuit (Mr. Justice Manisty).-Worcester, them harmless in practice. No standard is prescribed Tuesday, April 26 ; Taunton, Tuesday, May 3; Exeter, for fixing the maximum rates; it is not said whether they Monday, May 9; Winchester, Tuesday, May 17. Southare to be regulated by the cost of the line, or the value
Eastern Circuit (Mr. Justice Hawkins). --Reading (which is of money, or by an average of maxima or actual fares
on the Oxfor: Circuit), will form part of the South-Eastern prevailing on lines already constructed. The classifi
Circuit for these assizes, and Mr. Justice Hawkins will open cation, which forms so conspicuous a feature in the
the commission there on Monday, the 25th inst., and will
proceed with the trial of prisoners the same morning. special Act when paesed, is entirely ignored. Therefore
Northern Circuit (Mr. Justice Williams and Mr. Justice a committee would naturally lean to a high maximum,
Mathew).-Carlisle, Tuesday, April 26 ; Manchester, Fri
day, April 29; Liverpool, Saturday, May 7. North-Eastern " Iastances are not wanting,” states the professor in a re
Circuit (Mr. Justice Stephen and Mr. Justice Kay).cent pamphlet on the subject, “ in which foreign produce and
Newcastle, Tuesday, April 26, Durham, Friday, April 29; cattle are conveyed by English railways more cheaply than home produce and cattle. There is reason to believe that, even
Leeds, Tuesday, May 3. Civil actions will be tried at Manapart from such favouritism, come railway companies habitually
chester, Liverpool, and Leeds, but prisoners only at the other make excessive charges, and such charges are submitted to by
places, Mr. Justice Kay will not join the North-Eastern Cirfarmers and others in ignorance of their rights."
cuit until Leeds is reached.
CASES OF THE WEEK.
- THE INCORPORATED LAW SOCIETY.
PROOF IN BANKRUPTCY-JUDGMENT DEBT-POWER OF
COURT OF BANKRUPTCY TO GO BEHIND JUDGMENT. - In a " [To the Editor of the Solicitors' Journal.]
case of Ex parte Banner, before the Court of Appeal on the Sir,-Over 150 solicitors have now signed the requisi- | 7th inst., a question arose as to the power of the Court of tion to the Council of the Incorporated Law Society to Bankruptcy, upon a proof being tendered on a judgment debt, convene a meeting " for the purpose of considering the to go behind the judgment, and inquire into the conpresent position of legal procedure, the impending sideration for the alleged debt. An action had been brought changes in our profession, and other incidental matters,
against the liquidating debtors for £1,042. When it came on which to the meeting may appear urgent and import
for trial, the debtors, under the advice of their counsel, conant," and yet I am informed that the council will not
sented to a judge's order staying the proceedings, on the
terms of their paying the defendant £400 and the taxed meet to consider it before Friday, the 29th inst.—that is
costs of the action. A few days afterwards the defendants to say, when we are all busy again. No advantage is
fled a liquidation petition, and the plaintiff sought to prove taken of the vacation, when we all might attend without
on, when we all might attend without in the liquidation for $510, the amount of the £400 and the inconvenience.
EDMUND KIMBER. costs. Upon the evidence, the court held that the action bad 22, Queen-street, E.C.
been brought by the plaintiff, knowing that he had no legal
right to the sum which he claimed, simply for the purpose THE INCORPORATED LAW SOCIETY AND of extortion, he believing that the defendants would not THE “LAW LIST.”
venture to submit to a cross-examination, because they would
then have had to admit that they had been parties to & [To the Editor of the Solicitors' Journal.]
gross fraud. Under these circumstances the court (JAMES, Sir, I am desired by the Council of the Incorporated BRETT, and COTTON, L.JJ.), reversing the decision of Bacon, Law Society to ask you to be so good as to insert, in O.J., held that the court could go bebiod the judgment and your next issue, the accompanying copy of a letter which
inquire into the consideration, and that it would be a violaI have, by their direction, sent to Mr. John Nicholls.
tion of justice to allow the proof to be made in competition E. W. WILLIAMSON.
with the bona fide creditors of the debtors.-SOLICITORS, Incorporated Law Society, Chancery-lane, April 13.
Robinson & Cameron ; Layton & Jaques. [The following is the letter referred to :(Copy.)
PROOF IN BANKRUPTCY — GUARANTEED DEBT - PART Incorporated Law Society, Chancory-lane, W.C.,
PAYMENT BY SURBTY.-In a case of Ex parte The National April 13, 1881.
Provincial Bank of England, the Court of Appeal (James, Dear Sir, I beg to acknowledge the receipt of your
Brett, and Cotton, L.JJ.), on the 7th inst., reversed the letter of the 5th inst.
decision of Bacon, C.J. (ante, p. 279). The debtor and a I am desired by the council to inform you that in
surety had given to the bankers of the former a joint and
several bond for $1,000, to secure the balance which might, putting an end to the arrangement which, as mentioned from time to time, be due from the debtor to the bank.. in a previous letter, they had found not to work The bond contained a clause limitiog the total liability of satisfactorily, they had in view the publication of as the surety to £500, and a proviso that, in case the debtor accurate a list as possible of the members of this society, should become bankrupt, any dividends received by the and the proposed issue of the Calendar afforded an bank from his estate should not, so far as concerned the excellent opportunity for carrying into effect that which surety, go in discbarge of his liability, but that the bank could not conveniently have been obtained in any other
should, notwithstanding, be entitled to recover on the bond way.
against the surety to the full extent of £500, or so much The council have caused inquiry to be made with
ibereof as should, together with the dividends, amount to reference to the list of errors enclosed in your letter, and
twenty shillings in the pound on the debt for which the bood
shonlă be a security. The debtor some time afterwards filed they have investigated each one of the instances referred a liquidation petition, and the bank proved in the liquidato by you. It has been found that in more than four- tion for £2,494, the whole balance due from him to them.. fifths of them, the entries now in the Calendar are Afterwards the surety paid them £500, and the bond was correctly made from the personal instructions of the given up to bim. The trustee allowed him to prove in the members themselves. The result, moreover, of the com. | liquidation for £500, and then gave notice to the bank that parison you have made seems to the council to establish | he rejected their proof to the extent of £500. Bacon, C.Joy. the statement made in my letter to you of the 30th ult. J held that the trustee was right in thus reducing the proof, on as to numerous errors in the Law List, which statement, the ground that the creditor bad realized a security. The you are quite at liberty to test if you think proper to do | Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.) held 60.
that the effect of the proviso was to assign to the bank the I may mention that in some of the cases you refer to
surety's right to prove for what he bad paid, and that the As errors, the gentlemen named are not members of the
proof of the bank ought to stand for the full amount. The
right of the bank could not be affected by the trustee's having society, and that your list is largely made up of items admitted the proof of the surety behind their back. And the referring to purely metropolitan districts.
court were of opinion that, independently of the proviso, You will, of course, understand that the council were the result would have been the same, the bond being in effect not in a position to use any portion of the Law List in a security for the ultimate balance due to the bank, and the framing the Calendar. They took the only proper steps burety being a surety for the whole debt, though his liability that were open to them-namely, of making personal
was limited to £500.-SOLICITORS, Wilde, Berger, & Co.; application to all the members the society.-I am, dear Jones, Blazland, fCo. Sir, yours faithfully,
(Signed) E. W. WILLIAMSON, Secretary. VENDOR AND PURCHASER-CONTRACT FOR SALE OF HOUSE J. Nicholls, Esq., 73, Gresham-street, E.C.]
- DESTRUCTION OF HOUSE BY FIRE BETWEEN DATE OF CON. TRACT AND COMPLETION OF PURCHASE–Right to PROCEEDS
OF FIRE INSURANCE POLICY EFFECTED BY VENDOR-14 On Tuesday evening, the mombers of the South-Eastern GEO. 3, c. 78.-In a case of Rayner V. Preston, before the Circuit entertained Mr. Justice Watkin Williams and Mr. | Court of Appeal, on the 8th inst., the question as Justice Mathew at dinner in the Inner Temple-ball (the use whether after a contract has been entered into forn of which was specially granted for the purpose) in order to sale of a house, but before the completion of the purchases celebrate their recent elevation to the bench. Mr. Montague Chambers, Q.C., occupied the chair, and among those present elevation to the bench. Mr. Montague | the house is destroyed or damaged by fire, the purchaser "
entitled to the money which the vendor bas recovered in rewere Lord Justice Bramwell, Mr. Baron Pollock, and Mr. spect of the loss from an insurance company with whom be Justice Denman.
I had effected a policy before the contract for sale was entered
into, the contract for sale having contained no reference to in which the parties stood to one another remained in the policy. The action was brought by the purchaser suspense as long as the contract was in fieri. But, when the against the vendors of a house, wbich had been damaged contract was performed by actual conveyance, or performed by fire between the date of the contract for sale and the time in everything but the mere formal act of sealing the engrossed fixed for completion, claiming to recover the money, which deeds, then the completion related back to the contract, the defendants had received under a policy of insurance on and it was thereby ascertained that the relation was, the house, effected before the contract, but not referred to in tbroughout, that of trustee and cestui que trust. It was it, or to bave the moneys expended in reinstating the house. | ascertained that, while the legal estate was in the vendor, The policy contained a condition that assignees of the prop. the beneficial or equitable interest was wholly in the pur. erty (with certain exceptions, not including a purchaser) chaser. That was, in his lordship's opinion, the correct should not be entitled to the benefit of i he insurance. Jessel, definition of a trust estate. And, that being the relation beM.R., considering himself bound by authority, held (28 tween the parties, his lordship held it to be an universal W. R. 808, L. R. 14 Ch. D. 297, 24 SOLICITORS' JOURNAL, rule of equity that any right which was vested in a trustee, 485) that the purchasers were not entitled to the policy any benefit which accrued to a trustee, from whatever source money, and this decision was affirmed by the Court of Appeal or under whatever circumstances, by reason of his legal (JAMES, Brett, and Cotton, L.JJ.), though their lordships ownership of the property, that right and that benefit he were divided in opinion, COTTON, LJ., was of opinion took as trustee for the beneficial owner. If the policy of that (independently of the condition in the policy) | insurance were a collateral contract, such as the policy of the contract for sale would pass all things belong. insurance which a oreditor effects on the life of his debtor, ing to the vendors appuriedant to, or necessarily con the case would be wholly different. But a policy of fire nected with, the use and enjoyment of the property mentioned insurance was not, in his lordship's opinion,' a collateral in the contract, but not collateral contracts. And, in his contract. It was not a wagering contract, a contract that, opinion, independently of the Act of Geo. 3, the policy of | if a fire happened, a certain sum of money sbould be paid to insurance was a collateral contract. It was not a contract the insured. It was in terms and in effect a contract that, limiting or affecting the interest of the vendors in the prop- if the property was injured, the insurance company would erty sold, or affecting their right to enforce the contract make good the actual damage sustained by the property. for sale. If there had been no insurance, and the That damage, and that damige only, gave the right and house bad been burnt, the contract for sale would was the measure of the right, and it seemed to him im. have been enforced. The policy was not even a contract in possible to say that it was not by reason of the legal ownerthe event of a fire to repair the buildings, but a contract in ship, and in respect solely of the injury done to that legal that event to pay the vendors a sum of money which, if ownership, that the right to recover from the insurance received by then, they might apply in any way they thought company accrued to the insured. No doubt, it was a mere fit. In his lordship's opinion the contract of insurance accident that there was a policy, and the purchaser could would not pass without apt words by a contract for sale not have complained if there had been done. But this was of the thing insured. But it was said that the vendor was, so in other cases in which equitable rights had arisen. A between the time of the contract being made and its com- sarety was entitled to contribution from a co-surety, pletion, a trustee of the property for the purcbaser, and that or to the benefit of securities taken by the credias, but for the fact of the legal ownership of the property tor from the principal debtor, though he was ignoinsured being vested in him, he could not have recovered on rant when he agreed to become surety that there the policy, he must be considered a trustee of the money so was another surety, or that the creditor had obtained recovered. But an unpaid vendor was a trustee in a quali. | any security. His lordship thought it unnecessary to refer fied sense only. He was a trustee only because a court of to the Act of Geo. 3. Bui lie thought that the Act showed equity would give effect to his contract by transferring the that a policy of insurance was considered by the Legislature property sold to the purchaser, and he was a trustee only in to be for the benefit of all the persons interested in the respect of the property contracted to be sold, of which the property, and he thought that a purchaser having an policy was not a part. The money was received by virtue of equitable interest under a contract for sale was a person who The contract of insurance, and though the fact that the in had an interest in the house within the meaning of sured had parted with all interest in the property insured the Act. But he preferred to rest bis decision on the fact would be an auswer to the cluim against the company, on that the relution between the vendor and purchaser became, the ground that the contract of insurance was one of ia. and was in law, as from the date of the contract, and up to demnity only, that was very different from the proposition the completion of it, that of trustee and cestui que trust, that the money was received by reason of his legal interest and that the trustee received the insurance money by reason in the properts. As to the statute of Geo. 3, his lordship was of, and as, the actual amount of the damage done to the trust of opinion that it did not, of itself, so connect the money with property. --SOLICITORS, Venn & Son; Torr & Co. 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, COMPANY-WINDING UP - DIRECTORS-MISFRASANCEas purchasers, who were liable to the vendors for the full COMPANIES Act, 1862, s. 165.-In a case of In re The British amount of the purchase-money, even though the buildiog Seamless Paper Box Company, before the Court of Appeal was burnt, were persons who could (possibly to the prejudice on the 5th inst., the question arose whether directors of a of the insurance company) insist that the money should be company in liquidation were liable to pay to the liquidator, applied in re-building. Even if they were so entitled, the Act under section 165 of the Act, the nominal value of some only gave a right to insist on the money being so applied, shares, which had been given to them as fully paid up by and their claim to have that done was the foundation of, and the vendors to the company of the patent to work which essential to, the existence of their right. His lordship was the company was formed. I'he company was formed of opinion that there was no decision in favour of the plain in March, 1875, and consisted originally of only eight tiffs, while against them there was the direct decision of Vice. members, who had each signed the memorandum of Chancellor Kindersley in Poole v. Adams (12 W. R. 683), Association for one share. Seven of these persons were which was supported to some extent by the judgment of directors, and the eighth was the secretary. The nominal Lord Eldon in Paine v. Meller (6 Ves. 349), though that de- value of each share was £100. In April, 1875, the directors cision was not directly in point. Brett, L.J., agreed with allotted 320 shares as fully paid up to the vendors, in pay. Cotton, L.J. JAMES, L.J., differed. He was of opinionment of the purchase-money of the patent, and at the same that the plaintiffs' contention was founded, not only on the time the vendors (who were three of the directors) transnatural equity which commended itself to the general sense ferred thirty-five of the 320 shares to another director, and of the lay world not instructed in legal priociples, but also fifteen of the 320 shares to each of two other directors, ia on the artificial equity which is administered in our system of each case for a nominal consideration. All the then eight jurisprudence. He was of opinion that the relation between members of the company were aware of this transaction, the parties was truly and strictly that of trustee and cestui
| No new meabers were admitted until January, 1876, que trust. He agreed that it was not accurate to call the re when some shares were allotted to four or five other perso08. lation between the vendor and the purchaser of an estate, Afterwards the company was ordered to be wound up, and while the contract for sale was in fieri, that of trus:ee and the liquidator, alleging that the directors to whom the cestui que Irust, because it was then uncertain whether the
vendors bad given the fully paid-up shares had been guilty contract would or would not be performed, and the character
of a misseasance, sought to make them pay the full nominal value of those shares. Jessel, M.R., held that the direc children and issue. It was now argned, on a motion to tors were not liable, and his decision was affirmed by the vary minutes, that the power of appointment should not Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.). JAMES, be inserted. No caso could be produced where the exact L.J., said that the question was one of honesty or dishonesty. point had arison and been adjudicated upon. JESSEL, M.R., He agreed with the Master of the Rollo in thinking that was of opinion that, on the partioular words of the will when the transaction took place the then members of tbe which directed the property to be settled opon the married company intended to remain the sole members. There could woman and her children and issue, with powers of main. be no fraud on the existing members of the company, for they tenance and advancement, that the aotual devolution was all concurred in wbat was done, and no sraad on the future determined, and, therefore, that the power of appointment members, for it was not then intended to admit any. The should be exoloded. - SOLICITORS, Walker d. Mecburn. Case differed from The Society of Practical Knowledge v. Walker ; Lambert, Petch, & Shakespear. Abbott (2 Beav. 559), in which it was always intended to admit new shareholders. If the new shareholders bad any PRACTICE-INSPECTION OF DOCUMENTS–NECESSITY OF cause of complaint, they might bring actions against the SOLICITOR BEING PRESENT-RULES OF COURT, 1875, directors on the ground of concealment or misrepresentation, ORD. 31, R. 14.-- In a case of Oldrieve v. Knowles, before but the liquidator, as representing the company, had no the Master of the Rolls on the 9th inst., a question was ground of complaint.-SOLICITORS, Ramsden & Anstie ; raised whether plaintiffs could refuse to allow a defendant Benham a Tindell ; Butcher.
to inspect documents in the plaintiffs' possession unless the defendant was accompanied by his solicitor through.
out the whole inspection. The reason why the inspection PRACTICE-NOTICE OF TRIAL BY JURY-TRIAL BEFORE was refused except in the above mode was because the de JUDGE-ACTION FOR TRESPASS-RULES OF Court, 1875, fendant in question had been previously convicted of forgery. ORD. 36, R. 26.-In a case of Mitchell v. Chapman, ( It was argued for the plaintiff that, under the old practice, before the Master of the Rolls on the 8th insón, a motion the inspection was not allowed except to the solicitor was made under ord. 36, r. 26, tbat, potwithstanding or when he was present. JESSEL, M.R., was of opinion the notice of trial before a judge and jury given by the that the defendant was entitled to the inspection, on his defendant, the action migbt be tried before the judge giviog reasonable notice to the plaintiff, without his solicitor himself. The aotion was for a declaration that a certain being required to be present, as, if the plaintiffs had any fear estate, the property of the plaintiffe, extended close up to as to the preservation of their documents, they could bare the bedge on the western side thereof, and that the defend. any number of policemen or clerks present they liked. The ants were not entitled to any land on the eastern side of costs of the summons by the defendant for the inspection snob bedge, or to out any ditob id, or otherwise interfere would be his “ in any event."--SOLICITORS, A. Levis; Fox with the land, also for an injapotion, damages, and general & Co, relief. The defendants alleged that the hedge belonged to them, and also claimed a strip of land, forty inobes wide,
PARTIES TO ACTION-SPECIFIC PERFORMANCE-CONTRACT along the eastern side of the bedge. The defendants also
FOR SALE—TRUSTEE FOR VENDOR.-A demurrer was argued alleged that the fence and the oustomary distance of forty
before Hall, V.C., on the 7th inst., in an action of The Halifax incbes formed part of a parcel of land allotted to them
Joint Stock Banking Company Limited) v. The Sowerby ander an award in 1761. JESSEL, M.R., said it was not
Bridge Town Hall Company and others. The demurrer had for him to say whether the case would be better tried
been entered to the statement of claim of the plaintiffs by before a judge or a judge and jury, as the Legislature bad
one of the defendants, J. R. Atkinson, under the following given either party & right to try before a jury unless good
circumstances :- The plaintiffs were a company incorporated cause to the contrary were shown. That right was
i right was under the Companies Acts, 1862 and 1867, while the defendabsolute except in that class of cases whicb, previously to
ants were an association (formed under a deed, for the object the Judicatore Act, without any consent they would have
of founding and keeping up a museum and mechanics' been tried without a jury. Now, as to some cases wbiob institute) and the trustees of the association. The deed of the Court of Chancery used to entertain, injunctions were association provided that the trustees should stand seised and frequently granted, but the action iteelf and the question possessed of the lands, &c., of the association, subject to the of rigbt was really tried at law, and equity only interfered entire control of a committee, and that they should execute to protect tbe subject-watter until the right was deter. all such conveyances, &c., as the committee should direct. mined. In that class of cases he considered there should The association having acquired certain copyhold lands, be a stronger case to induce the judge to take away the which had been duly surrendered to the trustees, built & right to a jury than where the action was an old chancery public hall upon a portion thereof. After come years the soit pare and simple. In the present case the action plaintiff company made an offer to the association for the was one of trespass, not a obancery soit purely, purchase of the hall, which was accepted by the committee, and there would be a conflict as to acts of ownership and a deposit of ten per cent. upon the purchase-money was in relation to the hedge claimed by the plaintiffe. paid. Tbe shareholders of the association approved the con. Apother question was whether tbe defendants were en tract by a resolution duly passed and confirmed, and a titled under the award, and also as to the nature of the surrender to the plaintiffs was prepared and approved by the onstom of the country as to the land adjoining the hedge. solicitors of the association. This surrender was executed by In bis opinion, unless a jury conld not try those inadeg, | all but one of the trustees of the association, but that one, they really could try nothing at all. Moreover, it was being the defendant Atkinson, refused to execute. The said all the witnesses resided at Leeds; and, in fact, he | action was thereupon commenced by the plaintiffs, claiming had no doubt it was a case that ongbt to be tried before a specific performance of the contract for sale, and that the judge and jury. He sbould therefore direct the trial to defendant Atkinson might be ordered to execute a proper take place at the ensuing Leeds Assizes, and, as it was to conveyance. The statement of claim, to which Atkinson de. be so tried, and as there was no question of equity in.
murred, stated as above, and that the plaintiffs were willing volved, be thooght the subsequent proceedings should also
to complete their purchase. The grounds of the lemurrer take place in the division in which the action was tried | were that the claim disclosed no privity of contract between and he sbonld therefore also direct a transfer of the action | the plaintiffs and the defendant Atkinson, nor any ground of to the Queens Bench Division.-SOLICITORS. Singleton & action against him. HALL, V.C., allowed the demurrer with Tattershall; Geare & Son.
costs, observing that it was the rule to exclude from actions for specific performance all collateral questions and all per
sons who were not parties to the contract. There was an SETTLEMENT-EXECUTORY TRUST-PROPERTY SETTLED ON obligation tbrown upon the vendors to procure the conMARRIED WOMAN AND CHILDREN-POWER OF APPOINT currence of the parties to the conveyance, but the fact of VENT.-In a case of Ellis v. Snoudon, also before the trustee having the legal estate, and being bound to convey at Master of the Rolls on the 8th jost., a question was raised the direction of the vendors, did not make bim otherwise as to the proper form of settlement to be executed wbere than a stranger to the contract. The observations of Lord property was given by will to be settled opon a warried Cottenham in Parker v. Small (3 My. & Cr. 70) applied, and woman and her cbildren and ineve. The case had been the rule could only be altered by the Court of Appeal.previously before the court, and by the decree a power of SOLICITORS, Layton g Jaques, for Watson & Dickons, Bradappointment was given to tbe married woman amongst ber ford; Learoyd & Co., for J. W. Longbottom, Halifa..
BUILDING SOCIETY - INCORPORATION - IRREGOLARITY as to notice was that the person who was substantially inPOWER OF COURT TO DECLARE CERTIFICATE OF INCORPORA terested in the equity of redemption should have the opporTION VOID-BUILDING SOCIETIES ACT, 1874 (37 & 38 VICT. tunity of paying off the first mortgagee, and no one was C. 42), ss. 7, 9, 12.-In a case of Glover v. Giles, before Fry, more ioterested in the equity of redemption than the second J., on the 5th inst., the question arose whetber the court mortgagee. And his lordship held that the effect of the had power to declare that the certificate of incorporation of a second mortgage was to subrogate the second mortgages building society, under the Building Societies Act of 1874, to the rights of the mortgagor in respect of notice. It was was of no effect, on the ground that the proceedings by unnecessary to decide whether the mortgagor was also means of which it had been obtained had been irregularly entitled to notice. An inquiry as to damages was directed. conducted. The action was brought by some of the members SOLICITORS, C. Butcher; Church ý Co. of a building society, on bebalf of themselves and others who were altogether a minority of the members, against the trustees and other officers of the society. The society was originally formed in 1865, and was inrolled under the
CASES BEFORE THE BANKRUPTCY Act 6 & 7 Will. 4, c. 32. In 1879 a general meeting of the
REGISTRARS. society, specially called for the purpose, was held, at which it (Before Mr. REGISTRAR PEPYS, acting as Chief Judge.) was resolved that the society be incorporated under the Act of March 22.-Ex parte West, Re Salisbury, the younger. 1874. In pursuance of this resolution, the certificate of
A solicitor is not entitled to the costs of a petition for liqui. incorporation was obtained from the Registrar of Building dation where the presentation of such potition is unnecessary. Societies. Section 9 of the Act of 1874 provides that every
| The court has a discretion under role 292 with reference to society now subsisting or hereinafter established shall, upon solicitors' costs. receiving a certificate of incorporation under this Act, This was an application on behalf of Mr. Albert West, become a body corporate by its registered name, having
solicitor for R. B. Salisbury, junr., for an order that the perpetual succession, until terminated or dissolved in manner
costs of the applicant in and about the presentation of the herein provided, and a common seal.” By section 12
| petition for liquidation presented by Salisbury, dated the " a certificate of incorporation under this Act sball not be
20th of July, 1880, might be taxed and paid by the trustees granted to an existing society, except upon application to out of the estate of the bankrupt. ibe registrar made by Authority of a general meeting of the The case of the applicant was that up to tbe 13th of society specially called for the purpose, and the registrar may August, 1880, he acted as solicitor for R. B. Salisbury, require of the person making the application & _statutory juor., in various matters, and amongst others he prepared, declaration that such authority was duly given." The plain.
and on the 20th of July filed on bis behalf, and at his retiffs alleged that the meeting, at whicb it was resolved that
quest, a petition for the liquidation of his affairs by the society shall be incorporated under the Act of 1874, bad
arrangement or composition with his creditors. Under the been irregularly convened, do proper notice having been
proceedings thus instituted he applied for the appointment given of it in pursuance of the society's rules, and many of
of a receiver of the estate and effects of the debtor, and the members baving, in fact, had no notice of the meeting. also obtained an order restraining thirty-eight creditors from And tbe plaintiffs asked a declaration that the certificate of
proceeding further with their actions, or upon their judgincorporation was of no effect, and that it ought to be
ments and executions. delivered up to be cancelled, and that, notwithstanding the certificate, the society was a subsisting society under the
Tbe first meeting of creditors under the liquidation provisions of the Act 4 & 5 Will. 4, c. 40. Fry, J., said
petition was not held, it being ascertained that the creditors
desired bankruptcy, and there appearing several other obthat before the registrar granted the cartificate it was his
stacles to the carrying of the proceedings through, and on duty to inquire whether the application for it was made by
the 13th of August the debtor was adjudicated bankrupt os the authority of a general meeting of the society duly given,
the petition of Messrs. Bradley & Carrier, filed on the 6th The Act provided that, upon the certificate being given, of February, 1880. the society should become a body corporate. Even if there The applicant applied to the taxing master to tax tis bad been an irregularity, in his lordebip's view he had no
costs of the liquidation petition, but he desired the direc. power to declare the incorporation void. Incorporation was
tions of the court thereon. a prerogative of the Crown, and, though, in this case the
In answer to the application Mr. Kidson, one of the trus. ncorporation took place under tbe provisions of the statute,
tees, made an affidavit in which he stated that the petition it was done the less a matter of royal prerogative. And
of Messrs. Bradley & Currier came on to be heard on the incurporation might be put an end to by che well-known
20th of February, 1880, the 19th of March, and the 9th, method of procedure by quo warranto, but it was a new
16th, and 30th of April. On the latter day it was ad. thing to his lordship that some of the individual corporatoss
journed sine die, but on the 15th of July an application was should come to ibe court as against others, and ask to
made for a day to be appointed for the hearing of the peti. have the corporation dissolved, on the ground that it had
tion, and the registrar fixed the 30th of July, on which day, been obtained by fraud or irregularity. Another fatal
and on the 13th of August, it again caine on to be beard. objection was that the relief was asked in the absence of the On the 14th of Marcb, 1880, Messrs. Pocbin presented a corporation itself which it was sought to dissolve. —
petition against the bankrupt, and after one adjournment SOLICITORS, Brook & Chapman; Woodbridge & Sons.
sine die, the 30th of July was appointed for the hearing.
On the 5th of April, 1880, Martin Shepherd & Co. MORTGAGE-POWER OF SALE—VALIDITY OF EXERCISE-1
(Limited), presented a petition agaioat the bankrupt, and NOTICE TO BE GIVEN TO “ MORTGAGOR, HIS EXECUTORS,
after one adjournment sine die, the 30th of Jaly was apADMINISTRATORS, OR ASSIGNS "--NOTICE GIVES TO MORT
pointed for the bearing GAGOR BUT NOT TO SECOND MORTGAGEE.-In & case of
On tbe 13th of April, 1880, George Gibbens presented Hoole v. Smith, before Fry, J., on the 6th inst., a question
| a petition against the bankropt, which came on to be arose as to the validity of a sale under a power of sale in a
Leard on several oocasions, but on the 2nd of July was mortgage, upon which, strange to say, thero did not appear
adjoorded sine die. to be any authority. A first mortgage contained a power of! A petition for adjudication was also presented against sale, and it was proved that the power was not to be exer- |
ito Se ezer: | the bankrupt by Messrs. Raffety, Thornton, & Co., which cised unless notice of the intention to sell had been served | come on to be heard on several oocasions, including the on the mortgagor, “his executors, administrators, or 18
2nd and 30th of July, and on the 13th of August last. signs." The mortgagor made a second mortgage of the
The act of bankraptoy alleged in each of the petitions property, and the second mortgagee gave notice of his mort. was non-compliance with the terms of a debtor's sommons gage to the first mortgagee, Alter this, the first mortgages served by tbe petitioning creditor. No receiver was over sold the property under his power, and' before doing 80 he appointed under either of the petitions. The applicant, gave notice to the mortgagor, but he did not give any according to Mr. Kidson's statement, acted as the bank. notice to the second mortgagee. The second mortgagee | rupt's solicitor in the matter of all the petitions, and was brought the action against the first, claiming damages, on from time to time fully cognizant of the position thereof, the ground that notice ought to have been given to bim as and of the state of the bankrupt's affairs, and on the 20th an * assign" of the mortgagor before the power was of July he was aware that three bankruptcy petitions exercised, and that the property bad been sold at an were being actively prosecuted against the bankrapt. The undervalue. FRY, J., said that the object of the provision appointment of a receiver ander the liquidation petition