Page images
PDF
EPUB

own staff, adding that the examination of the chancery scription is about to be played ; a sort of sniggering accounts is seven months in arrear, and that he has been eagerness on the part of the audience, as of persons under the necessity of abandoning some important parts ready promptly to recognize with roars of laughter the of the audit. If there is to be an audit, there can be no first sally of counsel or the first absurdly endearing exquestion that it should be exhaustive, but it is not every pression in the correspondence- all these are signs person who thinks there is any need for an audit. The which, to the practised observer, suggest the nature of checks upon the Paymaster are most efficient ; any small the business which is forthcoming, and that a more than mistakes that are found out by the Audit Office are usually exciting or interesting breach of promise case only discovered months after they have occurred, and may shortly be expected. The immense popularity of as concerns the Paymaster himself, it is notorious that a | the trial scene drawn by the hand of one of our greatest large portion of his time, both official and other, is taken humorists-viz., that in which the immortal Pickwick up with answering letters from the Audit Office which falls a victim in a court of law to the wiles of that had better never have been written.

most dangerous of widows Mrs. Bardell-depends, to a very great extent, upon the nature of the cause of action selected by the author, than whom none better

appreciated the tastes of the British public. THE ACTION FOR BREACH OF Now, if the disappointment of this vulgar curiosity, this PROMISE OF MARRIAGE

base love of scandal, this ignoble craving to be amused at

the expense of other human beings made absurd, and to The concentration of all legislative energy upon Irish chuckle over feelings which were, perhaps, once sincere, affairs has prevented any attention being given to really but have since become a laughing stock, were all that most important matters, legal and otherwise, such as the would result from the abolition of this form of action, law of bankruptcy. Under these circumstances it is we should be the first to cry out for its abolition. But not to be wondered at that various minor matters, upon it seems to us that these accidents, as we may which at one time legislation seemed quite imminent, call them, of the thing, coupled with the fact that have altogether dropped out of sight. Among these is the actions of this kind which are brought are not the proposed abolition of the action for breach of in a very large number of instances of the most meritoripromise of marriage. Some remarks of the Lord Chief ous kind, tend rather to obscure the substance of the Justice on the subject, with which we cordially agree, question from the eyes of many persons, especially those have been recently going the round of the newspapers, of more than ordinary refinement. It is no doubt true, and a very extraordinary action of this kind at the as is alleged by those who would have this form of action Warwick Assizes may possibly, to some extent, recall done away with, that the woman who comes into court the attention of the public to this topic.

to sue for the breach of a promise of marriage is not the There are undoubtedly various difficulties and even most delicate of her sex, and is frequently not without absurdities connected with this class of action. There is | blame herself in the matter. Sometimes it may be susno form of action more popular with the audience in the pected that she has rather entrapped the defendant into assize court of a small couptry town. Everyone knows a hasty promise which it was really better that he that life in a small country town is not too amusing or should not keep. Again, it is no doubt true that wounded diversified, and that, like elderly maiden ladies, small feelings are not in their nature properly the subject of country towns are in consequence much given to | pecuniary compensation. We will admit all this freely; scandal. Consequently, what in the nature of things but we doubt whether those who put forward these can be more delightful to the population of such arguments sufficiently consider the other side of the a place, especially the female portion of it, than question, and what the state of things would be if the law the prospect of seeing two persons, who it is not refused to give any legal validity to a promise of marriage, unlikely are well known to most of the inhabitants. I leaving a man free to make such a promise without subjected to the most painfully ridiculous vicissitude to thereby incurring any responsibility whatever. It is im. which humanity is exposed- viz., that of becoming possible, in our opinion, in considering the working of hostile litigants after a long course of spooning ? What the law, too often to insist on the proposition that the can be more stimulating and enjoyable to the minds of efficacy of the law must be looked for, not in the of a “virtuous, but at the same time inquisitive, local number of cases in which damages are given for public” than the prospect of hearing the most intimate the breach of it, but in the number of cases in private confidences of the persons who have probably which it is not broken. The law, as it appears in been the theme of gossip and curiosity at half the the courts, one is sometimes inclined to think but a poor tea-tables in the town for months, actually and business, largely mixed up with fraud and chicanery, authoritatively revealed ? The abolition of the action very often, at any rate, so doubtful as to make it seem of for breach of promise of marriage would, in little concern to justice which side succeeds. Anyone many small towns, really be almost a death who so regards the law and its workings is confusing the blow to the assizes regarded from the dramatic accidents and the substance. It is true that the actual point of view as a public entertainment. We cases of breach of promise which come into the courts are speaking of the civil side, of course, for in the may not impress one very favourably, but to lay too much Crown Court, no doubt, there will always be sufficiently stress on that is, to our mind, to apply a wrong test. The attractive novelties provided for those whose taste is of question seems to us to be whether the fact that by proå more tragic or melodramatic character. An experienced mising marriage legal liability is incurred does not conperson could almost guess without knowing, uponstantly prevent light and inconsiderate promises of marentering an assize court, whether a breach of promise riage from being made. Law is, or ought to be, both an case was shortly expected to come on, An unusual expression and a factor of human morality. The state preponderance of the fair sex among the audience or of morality at which a country has arrived and the law endeavouring to obtain admission ; probably even one or act and re-act on one another. If the law said, “I give two of the more influential female leaders of society in no legal validity to the promise of marriage," one fears the town, who have, through a friend at court, secured the that possibly this might re-act injuriously on the morality proud privilege of a seat on the bench, bravely adorned of men-might by degrees make them think, more with much garniture of lace and ribbon; a general air especially the rougher and less refined of them, that there on the part of all persons present, not excluding the was little obligation in such a promise if on more mature counsel for the plaintiff-notwithstanding the tone of reflection it appeared undesirable to keep it, and therevirtuous indignation and compassion for betrayed and fore it might be lightly made upon impulse and without Torsaken womanhood wbich they are bound professionally much consideration. It can always be broken if To assume that a really good joke of the most spicy de- need be, would be the thought that would occur.

th

It is customary with the opponents of this sort of action to say that it is much better that it should be SECURED CREDITOR IN ADMIbroken if the man has really changed his mind; but

NISTRATION OF INSOLVENT that answer seems to us to regard too exclusively the cases in which the promise is actually made. ESTATE. It is all very well to say that it is better to break the

The recent cases of In re Hopkins, Williams v. Hopkins promise than keep it in such cases. We say that it is

(29 W. R. 658), and In re Hopkins (29 W. R. 752), are better not to make the promise in such cases, and our

of much importance, as showing the practice under the suggestion is that the existence of the action causes

provisions of section 10 of the Judicature Act, 1875, fewer promises to be made which it is afterwards better

importing the Bankruptcy Rules into the administration to break. There are a great many men of a selfish and

of insolvent estates. The plaintiffs were equitable mort. sentimental order of mind, but without much manly

gagees of part of the estate of an insolvent testator. sense of responsibility and fidelity. This sort of people

They took a judgment in their action on behalf of them. exist among the lower grades of society, where to jilt a

selves and all other the creditors. After the usual woman would not be to incur much social stigma. We are

decree had been made, the chief clerk called upon the afraid it does not always involve much social stigma among the higher circles. We cannot help thinking that if all

mortgagees to put a value on their security, which they legal liability were removed, such persons would more fre

did, valuing it at $1,800, and the chief clerk then

certified that they were unsecured creditors for the quently trifle with the affections and damage the prospects

balance, beyond the amount of such valuation, of the of women than they do at present. Besides, we are dis

mortgage debt. They then applied that the mortgaged posed to think that many very fairly successful marriages come to pass because the promise to marry is binding in

property might be included in the sale of the testator's law. The very highest ideal of marriage ought not, to our

real estate ordered by the decree, and that, in the event

of the proceeds being insufficient to pay their debt and mind, to be regarded as indicating the basis of legislation. The law must regard men and women as they

costs, they might be allowed to prove for the balance

against the testator's estate. The judge ordered all the practically exist in the bulk. It is very easy to say that a man who marries a woman because he will have

testator's estate to be sold, without prejudice to any damages to pay if he does not, is a man whom she is

| question; and upon the sale the mortgaged property better without.

The mortgagees To begin with, the damages are not the

realized £343 less than the valuation. only element that the man will consider. The defendant

then applied by summons that they might prove for in a breach of promise case is made to appear both in a

the balance between the sum actually realized and the ridiculous and odious light. And the feeling of shame

amount of their mortgage debt and costs. Mr. Justice

Fry held that, as the plaintiffs had not excepted to the which, according to some moralists, is the original root of virtue, and at any rate is a feeling other than merely

chief clerk's certificate or attempted to vary it, they sordid, is appealed to. Again, there is no doubt, to our

must be taken to have exercised their right of election, mind, that the same consideration applies in this case as

under section 10 of the Judicature Act, 1875, to treat in the case of marriage, though no doubt in a minor

the mortgaged property as being of the value of £1,800, degree: people to a great extent embrace willingly, and

and could not be released from that election unless in the end are tolerably satisfied with, a thing which is

| under circumstances showing that there had been of binding legal obligation when they would have perhaps

mistake or miscarriage. As no such circumstances changed their mind and rejected it had it been purely

were shown to exist, and no question was raised voluntary. Many married people go on very comfortably

as to the election being made under pressure or by and really to their mutual advantage when they would

mistake, Mr. Justice Fry dismissed the summons.

Subsequently the mortgagees applied that the have separated if the continuance of the union had been purely voluntary. We think it very probable that many

chief clerk's certificate might be varied or altered, sufficiently happy marriages have been brought about by

alleging that“ in putting a value on their security, when the fact that the man could not be sure if he broke it

directed by the chief clerk so to do, they did not exeroff whether he might not be held up to public scorn in

cise any right of election, and had no option; that it was a court of justice. We do not say that this very con

the invariable practice in chambers, in the administration sciously suggests itself to his mind, but the existence of

of an insolvent estate of a person who had died since the the legal obligation is a latent factor preventing fickleness

commencement of the Judicature Act, 1875, to compel and assisting to steadfastness. In the higher circles these

every secured creditor to put a value on his security, and actions are no doubt uncommon. Though we do not say

the chief clerks had in all cases ignored rule 78 of the that bad conduct on the part of men in this respect is

Bankruptcy Rules, 1870, and had regard only to rules not common enough in those circles, we should be

99, 100, and 101; and that the plaintiffs were forced to disposed to think that social opinion in this respect was

value before it was proved that the estate was insolmore potent and effective as a check upon such conduct

vent.” than it would be in the lower middle class.

Now, under the Bankruptcy Rules referred to in the summons the course of procedure is this:-Rule 78 enables the owner of the security to apply by motion for

the realization of the property comprised in his security. On the 15th inst., Mr. Justice Barry passed sentence of Rule 80 provides that, in case the moneys which arise ten years' penal servitude upon Thomas Colclough, the from the sale shall be insufficient to pay and satisfy stamp distributor, ut Dublin, who was found guilty of forging what shall be found due to the owner of the security, and uttering forged stamps.

then he shall be entitled to prove for such deficiency. After finishing the assizes at Croydon, says the Times, Rule 99 provides that a secured creditor, unless he shall Mr. Baron Huddleston was requested to proceed to Bristol, have realized his security, shall, previously to being to take the place of Lord Justice Lush, who was obliged to allowed to prove, state in his proof the particulars of his return to London from illness. It was noticed during the security and the value thereof. These rules, in the opinion assizes, both at Croydon and Bristol, that the judge was

of Mr. Justice Fry, contemplate two successive acts; that suffering great paio. Immediately after his return to London

is to say, the realization of the property is contemplated on Wednesday morning, having finished the cause list at Bristol, a consultation with his doctors was held and the

as taking place, if at all, at an earlier stage; and when operation of lithotrity was advised. It was performed by

the stage of proof has been reached, if the sale has not Sir Henry Thompson, in the presence of Dr. Horace Dobeli,

previously taken place, then the valuation is to be putupon Mr. Buckstone Brown, and Mr. Clover, who administered the property. Applying the rules, as thus interpreted, the ether. The operation was eminently successful; a large to the administration of an insolvent estate, the learned calculus was removed, and Mr. Baron Huddleston is progress judge held that the plaintiffs might, if they had thought fit, ing favourably.

have applied by motion for the realization of their

security at any time before the matter came before the coal were got. It was contended that the rent should chief clerk to ascertain the amount of their debt. That be apportioned, and that the lessor should prove for period, in the opinion of Mr. Justice Fry, corresponds to the proportionate part up to October 7, the commencethe period of proof in bankruptcy. After that period the ment of the winding-up. Mr. Justice Fry thought 99th rule applies, and, if the plaintiff has not then realized that the question before the court was governed by his security, the chief clerk is bound to require him to the principle of In re Lundy Granite Company, EC put a value on it. The learned judge, therefore, held parte Heaven (19 W. R. 609, L. R. 6 Ch. 462), that “ in that in In re Hopkins the chief clerk had acted in strict some cases between the landlord and the company, if accordance with the Bankruptcy Rules.

the company for its own purposes, and with a view to If this case is to be taken as settling the practice, it the realization of the property to better advantage, rewould appear that, as soon as the estate has been mains in possession of the estate, which the lessor is ascertained, or agreed between all parties, to be insolvent, therefore not able to obtain possession of, common sense the mortgagee should apply to have his security and ordinary justice require the court to see that the realized, and that, if he neglects to do this before the landlord receives the full value of the property.” As chief clerk comes to ascertain his debt, he will have the liquidator, after the notice had been given by the either to rest on his security or to put a value on landlord under the proviso in the lease, continued workit. Probably the result will be to render more common ing the mines, Mr. Justice Fry held that this was an in actions for administration by a mortgagee the form election by the liquidator to continue in possession of of judgment given in 2 Seton, 823, 4th ed., under which the property for the purposes of the company, entitling the plaintiff will first realize his security, and, if the lessor to the full rent that is, to the whole half it proves insufficient, will go on to administer the year's rent due on November 3. The ground on which estate as a creditor for the purpose of obtaining pay this decision was put appears to be that the landlord ment of the balance of his debt out of the estate.

having the power, by compelling the working to cease, to render less valuable an asset of the company, the liquidator must be taken to have purchased from the landlord

the right of going on working on the terms of fulfilling RECENT DECISIONS.

the provisions of the lease.

In In Re South Kensington Co.operative Stores, a

company occupied leasehold houses for the purposes of DISTRESS ON GOODS OF COMPANY.

their business, and after the presentation of a petition to (Thomas v. Patent Lionite Company, C.A., 29 W. R. wind up the company, the provisional and official liqui596 ; In re Silkestone and Dodworth Coal and Iron dator continued to carry on the business on the same Company (Limited), Ex parte Perkins, Fry, J., 29 premises. The rent having fallen into arrear, the land. W. R. 484; In re South Kensington Co-operative lord applied to the court for liberty to distrain. It Stores (Limited), Fry, J., 29 W. R. 662.)

appears that the lease contained a proviso for re-entry, In the first mentioned of these cases a landlord dis

but the landlord had not taken any steps to enforce it. trained on the goods of a company after the passing of a

Mr. Justice Fry gave leave to the landlord to distrain only resolution for voluntary winding up, but before the ap

for the rent accruing since the commencement of the pointment of a liquidator. Vice-Chancellor Malins held

winding up-i.e., the date of the presentation of the (29 W. R. 349) that until the liquidator was appointed

à petition-and held that the court would apportion the there was no “effective winding up,” explaining the

rent accruing due before and after that date. provision of section 130, that a voluntary winding up

The result of the two cases last mentioned seems to shall be deemed to commence at the passing of the

be, first of all, to confirm the view of Vice-Chancellor resolution, as meaning “at the passing of something

Hall in In re North Yorkshire Iron Company (26 W. R. which is effective"; hence he thought that there was

367, L. R. 7 Ch. D. 661), that a landlord is entitled to nothing to prevent the distress from being leried. The

be paid in full the rent accruing from day to day after Court of Appeal, without any hesitation, adhered to the

the commencement of the liquidation whenever the plain meaning of the words of section 130, and held that

liquidator has retained possession of the property let, a distress levied by a landlord after the passing of a

either with a view of carrying on the business or of winding-up resolution, whether a liquidator is or is

disposing of it as a going concern. It is also decided not appointed, will be void under section 163, subject

that the period after which the landlord is entitled to to the discretion of the court under sections 185 and

the rent is the presentatiou of the petition for winding 187. With regard to the exercise of this discretion, the

up; and that in ordinary cases the court will apportion Master of the Rolls took occasion to re-state the rule laid

the rent accruing before and after that date. But it down in In re North Yorkshire Iron Company (26 W. R.

appears that where the landlord has shown an intention 367) and other cases, that “the court ought to exercise

to enforce his proviso for re-entry, he may, in some cases, this discretion in favour of a landlord or execution

become entitled to the whole of the rent which becreditor when he cannot prove in the winding up for

comes due in respect of the preceding term of payment his debt; but where he can prove, the discretion ought

on a day after the commencement of the liquidation. not to be exercised. Here the landlords are creditors and can prove. There is, therefore, no ground for exercising this judicial discretion.” In In re Silkstone, &c., Company (Limited), a lease of

CORRESPONDENCE. coal mines to a company contained a power for the lessor, if rent should be in arrear for thirty days, to stop the working and to distrain; and, if no sufficient

ENROLLING DEED IN CHANCERY. distress should be found, or if there should be a breach

[To the Editor of the Solicitors' Journal.] of covenant not capable of being compensated in Sir,-Can any of your readers tell me the effect of money, to enter, and that then the term should cease. enrolling a deed in chancery ? A question has arisen An order for a winding up by the court was made on whether enrolment makes a deed absolutely unimpeachNovember 5, on a petition presented on October 7. able, and I shall be glad to be referred to some authority Rent fell due on November 3, and on December 6, on the point.

A SUBSCRIBER. the rent not being paid, the lessor required the liqui. dator to pay the rent, and stated that, if the rent were not paid, he should apply to the court to restrain the working. The liquidator did not pay the rent, and continued the working, and large quantities of

ground of the application was not any cruelty or misconCASES OF THE WEEK.

duct of the father to the children themselves, but hi cruelty to his wife. CAVE, J., considered this no ground for

depriving the father of his lawful right to the custody of the COMPANY_WINDING UP-ACTION BY DEBENTURE HOLDER children, and made the order absolute, with costs. -SOLI. -Costs.-In a case of In re Province of Brescia Steam

CITORS, Britten & Co.; Farmer. Tramway Company (Limited), before Cave, J., Vacation Judge, on the 17th inst., a petition by creditors was presented for the compulsory winding op of the company, COMPANY - APPLICATION TO RESTRAIN PRESENTAand subsequently actions were commenced by debenture TION OF PETITION — DISPUTED DEBT - BONA FIDES. holders to enforce their securities, and for the usual In the cases of Anglo-Universal Bank v. Tram. accounts in reference thereto. By the direction of the judge ways and General Works Company, and Same 5. motions for the appointment of receivers in the actions Eaton, also before Cave, J., Vacation Judge, on the were directed to come on with the winding-op petition. 17th inst., motions were made to restrain the presentaOne order was eventually made in the petition and in the tion of petitions to wind up the company, on the ground actions, and a volantary winding up, agreed to by the that the same would not be bona fide, as the petitioners' company, was continued under the supervision of the court, debts in each case were disputed. In tbe first case the claim and the liquidators already appointed were continued, and was for calls on 3,000 shares in the defendant company, were also appointed receivers in the actions. A question which sbares had been underwritten by the plaintiff comwas then raised as to whether the costs of the plaintiffs in pany, but wbich liability was denied by the plaintiff comthe two actions abould be costs in the winding up, and pany, on the ground that their agent had no power to enter this was objected to by the company. CAVE, J., held that into the contract. CAVE, J., considered that the defendants the costs of the actions were properly costs in the winding had not made out a prima facie case of liability on the part up, and on these terms all farther proceedings in the

of the plaintiff company, and he made an order restraining actions were stayed.-SOLICITORS, Bellamy, Strong, & Co.; the presentation of a petition until the trial. In the second Munns & Longden ; Taylor.

case, the defendant alleging that he did not threaten or intend to present a petition, Cave, J., also granted an injunction

until the trial.-SOLICITORS, Ashurst, Morris, & Co.; BUBBLE COMPANY – WINDING UP.-In the case of the Burchells ; Terrell. Wheal Elizabeth Company (Limited), also before Cave, J., Vacation Judge, on the 17th inst., a petition was presented for the winding up of the company by a sbareholder, on

HIGH COURT OF JUSTICE. the ground that the same was a fraud and a bubble com. pany. The company did not oppose the application, and

CHANCERY DIVISION--Rolls Court. . CAVE, J., made che usual compulsory order.-SOLICITORS,

July 22.- Ross v. Baker. Beall; J. Davis.

Silas Galsworthy made his will, dated 2nd of September,

1868, and thereby appointed his wife, Mary Galsworthy, and COMPANY-WINDING UP-CONDUCT OF ORDER.- In the George William Rich, executrix and executor, and devised case of another company, called the Silver Valley Mines all his real estate (including chattels real) unto and to the use (Limited), also before Cave, J., on the 17th inst., a compul of the said Mary Galsworthy and George William kich, their sory order was made for the winding up of the company on a beirs, executors, and administrators respectively, upon trust similar ground to that in the last-mentioned case, and certain that the said Mary Galsworthy and George William Ricb, or creditors of the company, who were so by virtue of an order the survivor of them, or the heirs, executors, or administraof Bacon, V.C., directing their names to be removed from törs respectively of such survivor, should sell the same. The the list of shareholders, on the ground ihat their applications | testator died on the 21st of September, 1869. George Wil. for shares had been induced by fraud and misrepresentations liam Rich declined acting in the trusts of the will and in the prospectus, applied to bave the conduct of the wind. I executed a deed poll renouncing the trasts thereof, and the ing-up order. Reliance was placed upon a decision of Bacon, will was duly proved by Mary Galsworthy, the widow of the V.C., in an analogous case of the Great Wheal Polgooth Como testator, who took upon herself the execution of the trusts. pany, where he had taken the conduct of the winding up from | None of the estates of the testator were disposed of during the petitioner, and had given it to the shareholders whose the life of Mary Galswortby, who made her will on the 8th of names had been struck off the list of shareholders. The April, 1870, and thereby devised and bequeathed all estates grounds in the present case, in which this was sought to vested in her upon any trust to Thomas Baker upon the be done, were that the petitioner had only a small interest trusts and subject to the equities affecting the same. Mary in the company as a shareholder, and that the whereabouts Galsworthy died on the 19th of May, 1870, and her will was of the petitioner, whose name and address were given in the duly proved by Thomas Baker. On the 10th of February, petition, could not be ascertained on inquiry at that address. 1880, an action was commenced by some of the beneficiaries DAVE, J., said that he saw no sufficient reason for depart. under the testator's will against Thomas Baker for the ad. ing from the usual course, and taking tbe conduct of the ministration of his real and personal estate. On the 10th of winding up from the petitioner, and, therefore, he Jaly, 1880, the judgment of the court declaring that the made the usual compulsory order, and also the usual order trusts of the will of the testator ought to be performed and as to the costs of persons appearing on the petition. | carried into execution, and directing the usual accounts and SOLICITORS, Beall; J. Daris ; Snell & Greenip.

inquiries, was obtained. On the 8th of March, 1881, an

order was made that the testator's real and leasehold estates COMPANY-LIQUIDATION - SALE BY LIQUIDATOR TO

be sold with the approbation of the judge, and directing the DIRECTORS-SANCTION OF COURT-COMPANIES ACT, 1862,

| purchase-money to go into court. On the 17th of May,

, 1881, the plaintiffs applied that, notwithstanding the order 8. 138.-In the case of Re Yarmouth and Gorleston Tramways,

ays, of the 8th of March, 1881, the plaintiffs might be at liberty also before Cave, J., on the 17th inst., & potion was made by the liquidator of the company for the sanction of the

to proceed to sell out of court the real and leasehold estates court to a proposed sale of the assets to certain directors of

mentioned in the said order by public auction. The applicathe company. Ohjection was made to the motion, and

tion coming before the chief clerk he made the following reliance was placed on upon Aberdeen Railway Company v.

note, “I will not order the sale out of court, because it 13 Blackie (1 Macq. 461). CAVE, J., considered the sale a

| directed by the court, but as all parties wish it, let them sell proper one, and gave his sanction thereto.-SOLICITORS,

and come here for confirmation." The plaintiffs laid the Druce; Jackson & Attlee.

abstract of title to the testator's estate before conveyancing counsel. The estates were both freehold and leasehold.

Counsel advised that, having regard to Cooke v. Crawforo HABEAS CORPUS, INFANTS-CUSTODY-MISCONDUCT OF I (13 Sim. 91), Thomas Baker could not execute the trust.com FATHER.-In a case of Re Webber, also before Cave, J., on

e ou Re Webber, also before Cave, J., on sale contained in the testator's will, and that an application the 17th inst., an application was made to make a rule nisi should be made to the court to appoint new trustees

awe trustees. There for & habeas corpus absolute against the grandfather and was in the testator's will a detective power to appoint grandmother of two infants, both under seven years old, who I trustees. Having regard to Re Jackson (16 W. R. BIS) had possession of the infants and refused to give them up to I was thougbt unsafe for Thomas Baker to appoint new their father. The mother of the infants was dead, and the l of the testator's will under Lord Cranworth's Act (23

[ocr errors]

94

Vict. c. 145, s. 27). The plaintiffs, therefore, moved under | acts injuriously affect the traffic of the other companies the Trustee Act, 1850, and the 15 & 16 Vict. c. 55, for the parties to the agreement, or prejudice the agreement. appointment of a new trustee, and for & vesting order.

R. E. Webster, Q.C., and Roland Williams, appeared for 'Whitehorne, Q.C., and A. I. Leach, for the plaintiffs.

the applicants. Cutler, for Baker.

Pope, Q.C., and Dugdale, for the Great Northern Railway The MASTER OF THE ROLLS held that the case was distin. | Company. guishable from Cooke v. Crawford. The sale was not made

Littler, Q.C., and Worsley, for the Manchester, Sheffield, by the devises of the trust estate, but by the Chancery Divi.) and Lincolnshire Railway Company. sion. The devisee had the legal estate. Cooke v. Crawford

The COMMISSIONERS delivered the following judgment:only decided that the devisee of trust estates could not

The question to be determined is whether an agreement, exercise the trust. The court had exercised the trust. | dated October, 1860, and made between the Great Northern Cooke y. Crawford had nothing to do with the devolution of Company and the Manchester, Sheffield, and Lincoloshire estates. The equitable estate was derived under the order. Company, requires, in our opinion, to be modified in the The title was perfectly good. The order for sale was the public interest. The agreement, which was entered into equitable title.

under the powers given by the Great Northern and Solicitors for the plaintiffs, Nash & Field.

Manchester, Sheffield, and Lincolnshire Railway Companies Solicitors for the defendants, Hillearys & Taylor.

Act, 1858, was one securing mutual facilities for the interchange of traffic, with contingent running powers to each company in the event of the facilities failing to be afforded.

The facilities given, subject to the earnings from the through THE RAILWAY COMMISSION.*

traffic being divided in the proportions fixed by the agreeJuly 9; August 1.-The Corporation and the Chamber of

mont, were the right and privilege of free passage for each Commerce of Huddersfield v. The Great Northern Railway

company's carriages and wagons over the railways of the

other company, to be conveyed by such other company as Company, and The Manchester, Sheffield, and Lincolnshire

fully and freely as it might convey its own carriages and Railway Company.

wagons. The agreement then provided that traffic originatWorking agreement_Revision of by Railway Commissioners

ing upon either company's lines, for which the joint railTbe Regulation of Railways Act, 1873 (36 & 37 Vict. c. 48),

ways might form a convenient route, and which might not 8. 10. A special Act was passed which enabled the G. N. Railway

be otherwise specially consigned or addressed, or be the Company and the M. Railway Company to enter into

subject of agreements, if any, then subsisting with other working agreements, and in pursuance of that Act an agree

companies, should be booked, or invoiced, or conveyed by 'ment was entered into, tbe 14th clause of which was as

that route. It also contained the following article:-(14) follows:-“Neither company shall make any bargain, treaty, “ Neither company shall make any bargain, treaty, agreeagreement, or arrangement with any other company, or do any | ment, or arrangement with any other company, or do any other other Act, directly or indirectly, to affect injuriously the traffic act, directly or indirectly, to affect injuriously the traffic of of the other company, or to prejudice this agreement, without the other company, or to prejudice this agreement, without the consent of such other company.” Upon an application by

the consent of such other company.” It is to this article the Corporation and Chamber of Commerce of Huddersfield to

that exception has been taken by the Corporation and the Railway Commissioners, under section 10 of the Regulation of Railways Act, 1873, to revise the above agreement in the

Chamber of Commerce of Huddersfield, and their contention interests of the public, by declaring the said 14th clause to be

| is that, having regard to the public interests, the article ought invalid or to be modified,

to be disallowed. Held, that such clause acted prejudicially to the interests of | In the view of the Sheffield Company, the agreement the public, because it did not leave the railway companies at prevents either company, without the consent of the other, liberty to accommodate the use of their line to what was from co-operating in the forwarding of traffic covered by the advantageous for traffic, and that the agreement must be agreement by any other route than that indicated by it, modified either by the omission of the article or by the addition Neither company is to do or agree to anything directly or thereto of a proviso to the following effect :-“ Provided that indirectly to affect injuriously the traffic of the other nothing in this agreement shall be used or operate to preventie

company. The traffic protected by these words means either of the companies parties hereto from agreeing to any through rate, or entering into any agreement with any other

probably the traffio of lines already existing and worked by company or companies with reference to the conveyance of

the companies in 1860, and, therefore, might not include traffic by any route hereafter to be opened, or which has been

traffic of railways acquired since 1860; but as to traffic of opened for the first time any time since October 1, 1860, or to railways which either company had in 1860, the other the interchange of running powers in respect of any such route company would seem bound not to divert such traffic from or any part of it.

these railways. Traffic viâ those railways, or either of This was an application to the Railway Commissioners

them, between Manchester or Liverpool and London, or under section 10 of the Regulation of Railways Act, 1873,

| places south of Retford, would be within the article, and by the Corporation and Chamber of Commerce of Hudders.

the article, as above interpreted, means that neither company field, asking the commissioners to revise certain parts of a

is to carry such traffic by a roure wbich would cause the 'working agreement between the Great Northern Railway

interest the other company would have in also carrying it to Company and the Manchester, Sheffield, and Lincolnshire

be injuriously affected. Railway Company, which were alleged to operate prejudi

Now it does not seem to us consistent with the public cially to the town and district of Huddersfield.

interest that any company should have the power, by agreeThe application alleged that the 14th clause of the agree

ment or otberwise, of thus interfering to exclude another ment (which was as follows:-“ Neither company shall make

company from the use of any particular route which may any bargain, treaty, agreement, or arrangement with any

from time to time be opened for the transmission of traffic, other company, or do any other act, directly or indirectly,

and we consider that a stipulation which affords & reasonto affect injuriously the traffic of the other company, or to able ground for such a contention as that advanced, whether prejudice this agreement, without the congent of such other successfully or not, is one which cannot but act to the company'') had operated very prejudicially to the public inte

prejudice of the public interest. So far as such a stipulation rests of the borough of Huddersfield and adjoining districts,

might be looked upon as confined to routes in actual and had been instrumental in debarring the inhabitants of

existence at the time when this agreement was the said borough and districts from railway facilities of great | approved by the Board of Trade, it might possibly be con. importance to their prosperity and well-being. The appli.

sidered as conceded by that authority in consideration of cants asked the commissioners to revise the agreement in the

the other advantages gained by the public through the interests of the public, and that the 14th clause be declared

agreement, and if the operation of the clause were thus coninvalid and void, and that the same be expunged from the

fined we should not think it necessary to interfere with it. agreement, or be so modified as to enable either of the com

In the uncertainty that a route convenient at one time will panies to make such bargains, treaties, agreements, and ar.

always continue to be so, it seems inexpedient that a railrangements with any other company or person, and to do

way company, if occasion should arise, should not be free to such acts as may serve or promote the public interests of the

accommodate the use of its line to what is advantageons for inhabitants of Huddersfield and the adjacent districts,

traffic. The article in question does not leave these companies whether or not any such bargain, treaty, agreement, or such

at liberty so to act, and the term is a long one for which the

restrictions are imposed. During its continuance, so far as * Reported by W. H. MACNAMARA, Esq., Barrister-at-Law. | traffic the subject of the agreement is concerned, the two

« PreviousContinue »