Page images

named Act, which provides that the bankruptcy of a plaintiff that the property should be sold and the proceeds divided among shall not cause an action to abate " if the trustee shall elect to con- four persons. The leaseholds were in a bad state of repair at tinue such action and to give security for the costs thereof." It was the death of the testator, and the widow kept them up in the held that this section did not apply under the above circum- same state of repair, but declined to do more. Two of the stances, and that the county court judge had no power to make remaindermen applied for an order to compel the tonant for life any order requiring security for costs to be given by the trustee. to maintain the leaseholds in such a state of repair as to satisfy Whether section 94 applies at all to a romitted action, may, the covenants in the lease, so as to avoid a forfeiture. It was perhaps, be questionable ; but, at all events, it can have no held, however, by the Court of Appeal that the tenant for life application where, as in the case under consideration, bank- was under no obligation to perform the covenants of the lease, ruptcy supervenes before the remitting order is made, and the and the relief asked for by the remainderman was refused. The trustee in bankruptcy has already been joined as plaintiff by obligation to perform the covenants was on the trustees, and the order of the High Court, and without requiring any security for tenant for life was exonerated. “She is not bound,” said costs to be given by him.

COTTON, L.J., " to the landlords under the covenants; the trustees are bound, and it is their duty to repair the houses in

accordance with the covenants in the leases out of the corpus of BY VIRTUE of section 1, sub-section 6, of the Companies the estate. There is no rule of law that the tenant for life is (Winding-up) Act, 1890 (53 & 54 Vict. c. 63), every county bound to do these repairs out of rents and profits. She is to thereof all the powers of the High Court.” That is to say, testator intended her only to have the net rents after making court possessing jurisdiction thereunder has for the purposes enjoy these leaseholds in specie, but she is under no covenants

to repair, and there is nothing in the will to show that the it possesses under that enactment all the powers and jurisdiction of the Chancery Division, if the matter was being dealt with provision for the liabilities that arose in the testator's lifetime. there, and all the powers and jurisdiction of the Queen's Bench It cannot be fairly left to the widow to make good the deDivision, if the matter was being dealt with there : per BRETT, ficiencies of the testator." M.R., in Ex parte Reynolds, Re Barnett (33 W. R. 715, 15 There is an obvious distinction between Re Courtier and Re Q. B. D., at p. 188). In the recent case of Re New Par Consols Fowler. In the former case the dilapidations were, as the (Limited) (ante, p. 343) the Court of Appeal held that the above passage just quoted states, due to the default of the testator; in enactment prevents the county court judge, when exercising the latter the state of non-repair seems to have arisen during winding-up jurisdiction, from being treated as an inferior court the possession of the tenant for life; and upon this ground Re subject to prohibition. Consequently, in such a case, even Fowler might have been set aside as inapplicable. If so, the when want of jurisdiction on the part of the county court judge subsequent doubt as to the effect of Re Courtier would not have is complained of, the proper mode of procedure is, not to apply arisen. But the Court of Appeal did not so distinguish Re for a prohibition, but to appeal, which was the course adopted Fowler. In Re Fowler, it was said, there was no question in the previous case of Re Ilkley Hotel Co. (41 W.R. 639; 1893, between the tenant for life and the remainderman. The 1 Q. B. 248).

question was whether trustees who were entitled to receive the rents and profits ought to provide thereout for repairs. “No

question,” said COTTON, L.J., “was decided there between the THE LIABILITY OF THE TENANT FOR LIFE OF

tenant for life and the remaindermon; only that the trusteos,

having the property in their hands, and having the duty to LEASEHOLD PROPERTY.

receive the rents and profits, had also the duty to keep that THE decision of the Court of Appeal in Re Courtier (35 W. R. part of the estate in repair, and having nothing but rents and 85, 34 Ch. D. 136) has resulted in a good deal of uncertainty as profits in their hands, they must apply them for this purpose." to the liability of the tenant for life of leasehold property under But whether the remainderman or the trustees are applying a will to bear the burdens of the lease, and the uncertainty has to the court does not seem to be the most material question. If been shown by the varying views of the effect of the case taken in the trustees can throw the burden of the covenants on the the Chancery Division. The construction given to it by KEKEWICH, tenant for life by performing them out of the rents, this means J., in Re Baring (41 W. R. 87 ; 1893, 1 Ch. 61), was objected that the property is to be preserved for the remainderman at to by STIRLING, J., in Re Ridding (45 W. R. 457 ; 1897, i Ch. the expense of the tenant for life. Re Courtier could have been 876), and now in Re Tomlinson (4. W. R. 299) KEKEWICH, J., without difficulty decided upon the ground that the dilapidations has adhered to his former opinion, and has applied the exonera were not due to the default of the tenant for life. They were tion of the tenant for life to a case where the life interest was the result of the testator's neglect, and therefore could properly accompanied by the legal estate.

be thrown upon

the corpus of the estate. But the terms in which In considering this conflict of judicial opinion it is necessary Re Fowler was distinguished appeared to absolve the tenant for to refer to the earlier case of Re Fowler (29 W.R. 891, 16 Ch. D. life from liability also for non-observance of the covenants 723). There a testator bequeathed leasehold houses to his during the period subsequent to the testator's death. trustees upon trust to receive the rents and profits arising there In Re Baring (supra) KEKEWICH, J., held that such was in fact from, and to pay the same to a specified person for life. The the result of the decision in Re Courtier. A testator bequeathed tenant for life, who was one of the trustees, was allowed to go to his trustees and executors a leasehold house upon trust for into direct receipt of the rents and profits, and the other trustee successive tenants for life, with remainders over, and the trusts alleged that since the testator's death the houses had not been of the residuary personal estate included a direction to pay out properly repaired. He claimed to have provision made out of of the income thereof all the expenses of carrying the trusts of the rents and profits for executing necessary repairs. Fry, J., the will into execution. The question arose whether the rent held that in this claim the trustee was right. It is the duty, he and expenses of repairing the leasehold house ought to be borne said, of trustees of leasehold property to keep it free from the by the tenant for life or by the trustees, and, if by the latter, risk of forfeiture. This is a duty imposed upon them in the out of what part of the testator's estate. KEKEWICH, J., coninterest of the remaindermen, and, since there is no other fund sidered that prima facie the tenant for life ought to keep down applicable, the duty must necessarily be performed by recourse those periodical payments which were necessary for the enjoyto the rents of the property. He held, accordingly, that the ment of the property, but he thought himself debarred from plaintiff trustee had a right to have the covenants in the lease coming to such a conclusion by the decision of the Court of performed out of the rents of the houses, and he appointed a Appeal in Re Courtier. The judgment of Cotton, L.J., he conreceiver of the rents for that purpose.

sidered to be based on the general non-liability of the tenant The practical result of Re Fowler was to throw the burden of for life to do repairs, and not merely on his non-liability to repairs upon the tenant for life, but this result was due to the make good the default of the testator.

Hence he held intervention of the trustee. In Re Courtier (supra) it was the that the liability was in the trusteos only, and was to be remainderman who applied to the court, and he was not equally performed by them, not out of the rents of the leasehold successful. In this case a testator gave leaseholds to trustees property, but out of the income of the residuary estate. In Re upon trust for his wife for life, and after her death upon trust Ridding, on the other hand, STIRLING, J., took the view that in

deciding Re Courtier, the lords justices were looking solely at Corporations Act of 1882 are carefully set out, but no mention is the fact that the dilapidations had accrued in the testator's life- made of the fact that under the Local Government Act of 1888 the time, and he declined to allow it to be any authority for powers of the Treasury are transferred to the Local Government exonerating the tenant for life generally from the burdens second defect we may refer to the case of Davis v. Whitehead, (1894,

As an instance of the incident to the possession of leasehold property. Hence, where 2 Ch. 133) which occupies nearly a third of p. 25, and which is a case a testator had directed that his trustees should pay to a tenant of trust, or specific performance, and has nothing to do with the law for life the income derived from leasehold property, it was held of mortgages, although the subject-matter of the trust or agreement that this entitled the tenant for life to receive only the net happened in that case to be an equity of redempton. One instance income, and that she must bear the exponse of all outgoings of the third defect will also suffice. There is a chapter on marshalling incurred after the testator's death.

of mortgaged assets (chapter 41) which is well indexed, and the index The question has now arisen before KEKEWICH, J., again in includes some other references to marsballing in the book-e.g«, mariRe Tomlinson (supra), and he has confirmed the view of the time securities, but another reference, where a factor has pledged his effect of Re Courtier which he took in Re Baring. The Court of

own goods with those of others (p. 1481), appears to have escaped

the index-maker altogether. Appeal were dealing generally with the liability of the tenant for life in respect of the leasehold property, and they held that he give them only as instances of the difficulty of writing a perfect work

These are very small defects in so large and elaborate a work. We was not bound to do anything at any time to the leaseholds. In Re on these microscopical lines. Subject to these minor criticisms, we Tomlinson there was not, as in the previous casos, a gift to trustees. bave nothing but congratulations to Mr. Robbins and Mr. Maw and Leaseholds were bequeathed directly to a legatee for life and to their staff of assistants upon the learning and enterprize and indt legatoes in remainder. There was, therefore, additional reason which have gone to the reconstruction of this favourite old textfor arguing that the tenant for life, as possessed of the legal

book. estate, was liable to perform the covenants in the lease, and so to preserve the property for the sake of the remaindermen.

BOOKS RECEIVED. KEKEWICH, J., held, however, that the exoneration of the tenant The Law and Practice in Bankruptcy, comprising the Bankruptcy for life extended to this case also, and that the proper fund for Acts, 1883 to 1890, the Bankruptcy Rules and Forms, 1886, 1890, the the performance of the covenants was the estate of the testator Debtors' Acts, 1869, 1878, the Bankruptcy (Discharge and Closure) who was originally liable upon them. If this is correct, it would Act, 1887, the Deed of Arrangement Act, 1887, and the Rules and seem that a tenant for life of leaseholds, unless under the terms Forms thereunder. By the Right Hon. Sir ROLAND L. VAUGHAN of the will he takes them cum onere, can always declino to pay EDWARD WILLIAM HANSELL, M.A., Barrister-at-Law. Stevens &

WILLIAMS, Knt., a Lord Justice of Appeal. Seventh Edition. By the rent and perform the covenants, and look for this to be done Sons (Limited); Sweet & Maxwell (Limited). Price 303, out of the testator's estate. If the estate produces no income except that of the leasehold property, the burden may then be

Ruling Cases. Arranged, Annotated, and Edited by ROBERT thrown back upon the legatee, and this seems to be the explana- CAMPBELL, M.A., Barrister-at-Law, assisted by other members of tion of Re Fowler (supra). But otherwise the legatee for life Editor of the American Reports and the Albany Law Journal, Vol.

With American Notes, 'by IRVING BROWNE, formerly takes the leaseholds free from liability to keep them up. XIV.: Insurance. Interpretation. London: Stevens & Sons (Limi

ted). Price 2ős. net.

Township and Borough, being the Ford Lectures delivered in the REVIEWS.

University of Oxford in the October Term of 1897; together with an

Appendix of Notes relating to the History of the Town of CamMORTGAGES.


Professor of the Laws of England in the University of Cambridge. CATIONS (FOUNDED ON COOTE'S LAW OF MORTGAGES). By LEOPOLD GEORGE GORDON ROBBINS, of Lincolns-inn, Barristerat-Law; assisted by FREDERICK T. Maw, of Lincoln's-inn, Barrister-at-Law. Stevens & Sons; Sweet & Maxwell. The editors of this elaborate treatise deserve great credit for

CASES OF THE WEEK. restoring to the front rank of text-books on the law of mortgages the familiar Coote, which in recent editions had rather fallen below

House of Lords. its old standard. It appears now in another name; and appropri SOUTH AFRICAN TERRITORIES (LIM.) v. WALLINGTON. 18th ately, for the mass of new work is very large. The treatise

March. remains, however, on lines which are now sometimes considered to be

COMPANY-DEBENTURES_PAYMENT BY INSTALMENTS-SPECIFIC PERFORMthe lines of a good old-fashioned text-book. It is a monument of

ANCE-DAMAGES. elaborate and detailed industry in collecting and arranging all cases and statutes affecting, whether nearly or remotely, every branch of M.R., Lopes and Chitty, L.JJ.), reported 45. W. R. 467 ; 1897, 1. Q. B.

This was an appeal from an order of the Court of Appeal (Lord Esher, the subject, rather than a code of principles illustrated by the more

692. The appellant company, wishing to obtain a loan of £75,000, issued important cases. Each style has its advantages, as well as its a prospectus inviting subscriptions. The loan was to be in sums of £50 disadvantages. The advantage of this style is that the practising eecured by first mortgage debentures for that amount, the debentures lawyer will find in detail everything that he can possibly want, if constituting a floating charge on the whole of the properties and assets of only he has the patience to seek it in detail through a mass of other the company, the loan was also to be secured by a trust deed. The money things which he does not want. The disadvantage is a little danger of was to be paid by instalments—viz., 10 per cent. on application, 15 per bewilderment in the search, and a tendency to find no clear line cent. on allotment, and the balance by equal instalments payable two, between the ruling principles and the application of them to divers four, and six months after allotment. The principal was to be repaid on sets of facts. For this reason it is hardly a book to be recom

the 31st of December, 1900, with a bonus on every $50 debenture. The mended to students, but it will be a mine of wealth to their elders who respondent applied for an allotment of sixteen debentures, representing desire to be acquainted with all the possible decisions bearing upon His offer was duly' accepted, and the remittance retained by the com

an advance of £800, and with his application remitted the sum of £80. the application of doctrines to complicated facts. Some idea of the

pany. The respondent having (declined to make any further advance, completeness and elaboration of the work may be gathered from the the present action was brought against him by the company for payment simple fact that the tables of contents, cases, statutes, and rules of a capital sum which they claimed (1) as in specific performance of his cover 220 pages, while no fewer are given to the index.

obligation ; (2) as the balance of the price which he had undertaken to pay There are, of course, some risks of error in a work edited on the for the debentures; and (3) as damages which they had sustained by his lines above mentioned: first, some details of importance will get breach of contract. Wright, J., gave judgment for the company for the overlooked in spite of all industry, and the omission becomes notice- amount of the instalment due, but his decision was reversed by the Court able by way of contrast; secondly, cases will creep in which are of Appeal. The case was argued at the end of November last, when really not relevant although the facts in them involve a reference to judgment was reserved.

THE HOUSE (Earl of HALSBURY, L.C., Lords WATSON, HERSCHELL, mortgages; and thirdly, matters which should appear there will slip out of the index. There are instances in this book of these defects, MACNAGHTEN, and SHAND) dismissed the appeal. but we have found very few. We may perhaps (not in the least in applicant for debentures, on the face of the instrument, contracts to pay

Earl of HalsBURY, L.C., in the course of his judgment, said: The the way of carping) give one instance of each. To take the first something, but the real nature of the whole transaction is an agreement that of omissions : In discussing the power of municipal corpora- by the applicant to lend money at certain interest, and the action in this tions to mortgage their lands, the provisions requiring the approval case was in truth mainly, if not altogether, directed to compel the intend, of the Treasury under the earlier Acts and under the Municipal ing lender to perform his contract to lend, which undoubtedly he had

refused and neglected to do. With respect to the claim for specific per- the said Act the company was empowered to take from the River Thames formance, a long and uniform course of decision bas prevented the and distribute for the purposes of their undertaking not more than one application of any such remedy, and I do not understand that any court million gallons of water per day. By section 30 it was provided that the or any member of any court bas entertained a doubt but that the refueal company should construct works necessary to secure the return to the of the learned judge below to grant a decree for specific performance was river of all waters taken therefrom and used by them immediately after perfectly right. But, of course, in this, like any other contract, one party the use of the same for the purposes of the said. Act. Section 31 proto the contract has a right to complain that the other party bas broken vided that the said company should not at any time supply water to be it, and if he establishes that proposition he is entitled to such damages as used for any purpose other than as a motive force. By section 38 are appropriate to the nature of the contract. In this case, as I have the company were authorized to supply within their district motive said, the contract was to lend money. Referring to the question of power by hydraulic pressure to any person or company, and to erect and damages, the amount of interest to be paid for the loan, and the fact that let for hire and work cranes, machines, and engines for the purpose of £80 was under the contract itself forfeited to the company for the non- supplying such motive power. Section 9 of the London Hydraulic Power performance of the contract in its entirety, render it difficult to see what Act, 1884 (47 & 48 Vict. c. lxxii), imposed a penalty on any person who, substantial damages could have been recovered, and I regret that, under being supplied by the company with water under the powers of the said the circumstances, it should have been thought advisable to appeal to your Act, should use the water so supplied for any other purposes than as a lordships in a case which, upon a review of the facts, does not appear in motive forca. By the London County Council (Subways) Act, 1893 (56 & any view of it to have been worth the expense necessarily involved in such 57 Vict. c. ccii.), it was enacted that it should be lawful for the council an appeal. Your lordships were informed that it took seven minutes to to require a company to lay in or remove into a subway of the council any try, with the result that it has now been to two courts of appeal, and, pipes belonging to the company where the council had a subway in the same but for what I am about to say, might have resulted in a new trial. Upon street. And it was enacted that the expression “ the company" should a careful review, however, of the facts I have come to the conclusion that mean any company, body, or person having any power of opening or it would be impossible to suggest any serious damages in this case, and breaking up a street for laying any pipe or wire. By section 5 of the the tacit admission of the parties by their declining to consider the same Act the council was empowered to make on the company using any question of a new trial upon payment of costs renders it unnecessary for subway a charge for the use thereof according to a scale to be determined, me to do more than to say that in this case justice has been done by the and it was enacted that in the case of any water or gas company having Court of Appeal reversing the decision of the learned judge below. I statutory powers to break up streets, regard should be had only to such think it right, however, to add that if any serious right were involved, or saving (if any) as might result to such company by reason of the pipe being if it was reasonably possible that injustice has been done, I should have laid and accessible in a subway instead of being laid or remaining under felt myself at liberty to give my opinion in favour of a new trial.

a street, and to any other saving resulting to such company by reason of Lord Watson, after stating the facts, continued : The only engage- the subway, and to the cost of management and supervision of the subway ment made by the respondent with the company consisted in a promise and the pipes therein. By section 10 of the same Act power was given to advance money to them on loan; and it is settled in the law of England to the council to make bye-laws fixing the scale of fees and charges to be that such a promise cannot sustain a suit for specific performance. It is paid by any company or person using any subway. Certain bye-laws equally clear, in my opinion, that the obligat of the company to issue were made by tho council containing provisions as to charges. There was mortgage bonds against the loan did not in any way alter or affect the one table of charges in respect of water and gas companies having power character of the transaction or give the company any right to sue as for to break up streets, and another table on a higher scale in respect of comthe price of an article sold by them which they were ready to deliver. panies, bodies, or persons other than water or gas companies having The only remedy open to the company was by action against the respon- power to break up streets. Under the aforesaid provisions the council dent for any loss or damage which they might sustain through his breach required the defendant company to lay their pipes and remove the same of promise. The case was tried before Wright, J., who gave the company into their subways in certain streets and this was accordingly done. A a decree for the price of the debentures which the respondent had agreed question arose between the council and the defendant company as to the to take up. I cannot say that the trial was satisfactory. The proceedings scale of charges applicable to the use by the defendants of such subways. were chiefly occupied by a discussion between the learned judge and the The council contended that the defendants should be charged according respondent's counsel, in the course of which the former indicated the terms of to the second scale. The defendants contended that the scale applicable the order which he meant to pronounce. No evidence of damage was to water and gas companies was the scale to be used for the purpose of tendered by the appellant company. An appeal was taken by the respondent calculating what sum was payable by the company to the council. The upon a notice of motion that the decree of Wright, J., should be reversed or question for the court was, under which scale the council were entitled to varied, and the judgment should be entered for him or a new trial charge the company. The Divisional Court held that the company was allowed. At the hearing of the appeal counsel for the company urged not a water company but a company for supplying motive power, and the first and second of the claims made by them, and did not refer to they accordingly gave judgment for the plaintiffs for £185 58.

The their claim of damages. After the judgment of the Appeal Court was defendants now appealed. delivered, reversing the order appealed from and entering judgment for The Court (A. L. SMITH, CHITTY, and Collins, L.JJ.) dismissed the the respondent, counsel, in the absence of the head of the court, moved two appeal. lords justices to remit the case for trial of the question of damage. Their A. L. Smith, L.J.-This company was established for supplying motive lordehips declined to entertain the application. On the hearing of this power by hydraulic pressure. It is not a water company. It is prohibited appeal, counsel for the company again pressed upon your lordships the from supplying water for other purposes. It does not supply water for desperate arguments which they had addressed to the Court of Appeal, domestic or garden purposes, and has no duty imposed upon it to supply and moved your lordships to send back the case, in order that the com water quâ water. The Companies Act has not the Waterworks Clauses pany might have an opportunity of proving damage. I do not doubt that Act incorporated in it but only certain provisions of it with respect to the it is within the discretion of the House to grant or refuse that motion : breaking up of streets for the purpose of laying pipes, but that does not but I am very clearly of opinion that, in the circumstances of this case, constitute it a water company. Water companies have large liabilities, that discretion ought no to be exercised in favour of the appellants, and this company has not. It is not compelled to supply the motive power. that the order appealed from ought to be affirmed, with costs.

Further, it is not limited, as water companies are, in respect of the pay. The other noble and learned lords concurring, the appeal was dismissed ment of dividends. It is a private enterprize. It must, therefore, pay with costs.- Counsel, Sir R. Reid, Q.C. ; Herbert Smith and Woodcock ; the ordinary charges under the scale relating to companies other than Bray, Q.O., and Gore-Browne. SOLICITORS, F. Voules & Co.; Ranger, water or gas companies. Burton, & Frost.

CHITTY, L.J., delivered judgment to the same effect. (Reported by C. H. GRAFTox, Barrister-at-Law.]

COLLINS, L.J.--I am of the same opinion. I quite agree this is not an ordinary water company, but I have some difficulty as to the meaning of the expression “ water company" in the Subways Act and the bye-laws.

This company equally has a right to break up the streets for the purpose Court of Appeal.

of laying water pipes, and I cannot see why on principle it should come THE LONDON COUNTY COUNCIL V. THE LONDON HYDRAULIC under the higher rate, for I fail to see that its pipes are not water pipes. POWER CO. No, I. 18th March.

But on looking at the Act we find that the Legislature, for some reason of

other, has placed gas and water companies on a better footing than other METROPOLIS - SUBWAYS “Water COMPANY" — COMPANY SUPPLY HY- companies. Appeal dismissed. - Counsel, Cripps, Q.C., and Loehnis; DRAULIC MOTIVE POWER-CHARGES FOR USE OF SUBWAYS-LONDON | Dickens, Q.C., and English Harrison, QC.

SOLICITORS, Beale & Co.; COUNTY COUNCIL (SUBWAYS) Act, 1893 (56 & 57 VICT. C. cc.).

W. A. Blaxland. This was an appeal from the Divisional Court (Wright and Kennedy,

[Reported by E. G. STILLWELL, Barrister-at-Law.! JJ.) upon a special case stated by consent between the parties pursuant to the provisions of ord. 34, r. 1, and the question raised was whether the

SUMPTER v. HEDGES. No. I. 18th March. defendant company was a water company. The plaintiffs in the action sought to recover from the defendants the sum of £185 58. for rates pay

CONTRACT BUILDING -PART PERFORMANCE-CONTRACT ABANDONED able in respect of the use by the defendants of certain subways of the

BUILDER-COMPLETION BY Owner—“QUANTUM MERUIT." plaintiffs. The defendants were incorporated under the Wharves and was an appeal by the plaintiff from a judgment of Bruce, J. The Warehouses Steam Power and Hydraulic Pressure Co.'s Act, 1871 (34 & action was brought on a building contract. By an agreement in writing 35 Vict. c. cxxi.), for applying motive power by hydraulic pressure to dated the 3rd of October, 1896, and made between the plaintiff and the waterside and land cranes used for working machinery, They were defendant, the plaintiff agreed to erect for and on behalf of the defendant authorized to take and use for the purpose of their undertaking water two houses and a stable for a sum of £565, £365 of which was to be paid from the River Thames. Section 2 of the said Act incorporated therein in cash and £200 worth of horses. The work was to be completed by the certain general Acts, including the Companies Olauses Act, 1845, and the 31st of December, 1896. By the 28th of November the plaintiff had comi provisions of the Waterworks Clauses Act, 1847, with respect to the pleted work to the value of £330, and he had received £119 in cash and breaking up of streets for the purpose of laying pipes. By section 25 of two horses valued at £100. The plaintiff at that date being in want of



[ocr errors]

money was unable to continue the work. The defendant immediately took Wright, JJ.), on a special case stated in an action by the Attorneyover the work and finished it. The plaintiff then brought an action, General on the relation of the Newcastle Breweries (Limited) in which claiming damages for breach of contract and £222 as balance due to him was claimed (1) a declaration that any agreement by the defendants to for work and labour and materials. The defendant denied any liability indemnify the chief constable of the borough against costs he might have, and counter-claimed for damages by reason of the plaintiff's breach of or might have had, to bear or pay in connection with licensing appeals contract whereby he, the defendant, had been obliged to complete the from the borough justices to quarter sessions, and any payment of such work himself at an additional cost beyond what he would have had to pay costs by the defendants was ultrå vires and void ; and (2) an injunction to the plaintiff. The learned judge in the court below held that the restraining the defendants from making or acting on any such agreement plaintiff had abandoned the work on the 28th of November, and that he or from making any such payment. At the annual general licensing was in default, and that he was not entitled on a quantum meruit, but only meeting held in August, 1895, the chief constable of the borough of for £34 in respect of looke material left on the ground by him and used Tynemouth raised objections to the renewals of certain public-house by the defendant. The plaintiff now appealed. It was contended on his licences, and the justices refused to renew them. The holders of the behalf that if the case of Lysaght v. Pearson (T. L. R., March 3, 1879) is licences gave notice of appeal to quarter sessions, and on the 10th of good law he ought to succeed, and that that case was on all fours with this October the Watch Coinmittee of the borough refused to authorize the

There the owner had entered into possession, and had prevented chief constable to act as respondent on the appeals, or to indemnify him the builder from completing, and it was held by the Court of Appeal against any costs. On the 15th of October the council resolved that that the latter was entitled to sue on a quantum meruit. The case of the chief constable, who is the respondent in the licensing appeals Appleby v. Myers (L. R. 2 O. P. 651) was also cited.

be authorized to oppose such appeals, and that the council agree THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.) dismissed the to indemnify him against any costs which he may have to bear or pay in appeal, and were of opinion that the plaintiff having no more money and connection with the appeals as such respondent." On the hearing of being unable to continue the work had abandoned the contract. The the appeals the chief constable appeared by counsel and opposed the builder being unable to go on the defendant was bound to take over the appeals, which were dismissed with costs. The costs incurred by the works and complete them himself. There was an entire contract, and the chief constable exceeded the amount allowed on taxation by £132 59. On plaintiff could not divide it and claim on a quantum meruit. There was no the 19th of November, at a meeting of the new Watch Committee, it was evidence here, from the mere fact that the building owner had taken resolved that this sum should be paid. The Divisional Court held that possession, that he had entered into a new contract with the plaintiff. the resolution of the council was not sufficient, and that the sanction of Nor was there any evidence of an implied contract to pay on a quantum the second Watch Committee could not override the resolution of the meruit. Munro v. Butt (8 E. & Bl. 738) shewed the law upon this subject, and former Watch Committee. They therefore gave judgment for the plainLysaght v. Pearson did not affect this case. Appeal dismissed.--Counsel, tiffe. The defendants appealed. Harris, Q.C., Peile, and G. T. Drury; Bray, Q.C., and E. Bray. SOLICI• The Court (A. L. SMITH, CHItty, and COLLINS, L.JJ.), having takon time TORS, Sydney B. Letchford; G. E. Philbrick.

to consider, dismissed the appeal, holding that neither the Municipal [Reported by E. G. STILLWELL, Barrister-at-Law.]

Corporation Act, 1882, ss. 140-143, nor Schedule V., Part II., thereof, nor

the Borough Funds Act, 1872, authorized payment out of the borough Re KENT COALFIELDS SYNDICATE (LIM.) (In Liquidation). No. 1. fund of the costs incurred by the chief constab in opposing at quarter 21st March.

sessions renewals of licences.-COUNSEL, Asquith, Q O., and Macmorran, COMPANY—INSPECTION OF REGISTER--COMPANY IN VOLUNTARY LIQUIDATION Parker, Pritchards, f Barham, for 7. A. Adamson, Tynemouth; Patersons,

Q.C.; J. Lawson Walton, Q.O., and T. W. Chitty. SOLICITORS, Sharpe, -COMPANIES Act, 1862 (25 & 26 Vict. C. 89), s. 32.

Snow, Bloxam, f Kinder, for Ranson, Nelson, f Mesnard, Sunderland. Appeal from an order of Grantham, J., at chambers under section 32 of

[Reported by W. F. BARRY, Barrister-at-Law.] the Companies Act, 1862, directing the Kent Coalfields Syndicate (Limited) (in liquidation) and the liquidator to produce to the applicant for his Re RIPLEY & SON'S TRADE-MARK. No, 2. 18til March. inspection the register of members of the Kent Coalfields Syndicate (Limited). The syndicate was incorporated as a limited company under TRADE-MARK—"INVENTED WORD"—WORD SPELLED DIFFERENTLY FROM, the Companies Act, 1862, and was being wound up voluntarily. Subse BUT SOUNDING SAME AS, COMMON ENGLISH WORD—" PIRLE"-PATENTS, quent to the commencement of the winding up the applicant, who was Designs, AND TRADE-MARKS Act, 1888 (51 & 52 VIct. c. 50), s. 10. neither a creditor nor a contributory, applied to the company for inspec This was an appeal from a decision of Kekewich, J. (reported ante, p. tion of the register, tendering at the time one shilling, but inspection 97), who bed affirmed the refusal of the Comptroller-General of Patents was refused.

The applicant then applied to the judge at chambers for to register the word " Pirle" as a trade-mark for woollen fabrics in Class an order to inspect the register, and Grantham, J., made the order. The 34, under the provisions of the Patents, Designs, and Trade-Marks Acts, company and the liquidator appealed, and contended that section 32, Messrs. Ripley & Son, the applicants for registration, were dyers and which imposed a penalty on the company for not allowing inspection of cloth finishers at Bradford. The original application was to register the the register, did not apply to a company in liquidation, the register in such two words “Pirle” and “Pearl.” The Comptroller-General decided a case being under the control of the liquidator; and that when a com. that "Pearl" could not be registered, because it was not an • invented pany was being voluntarily wound up a contributory alone could get word,” but was in fact commendatory of the goods; and that the word inspection of the register under sections 138 and 156 of the Companies "Pirle” was open to the same objection, being really only an incorrect Act, 1862, and in such a case the only judge who had jurisdiction to

way of spelling Pearl.' The applicants appealed to the court against make an order for inspection was the judge having jurisdiction under the the refusal to register “Pirle." They alleged that “ Pirle” was formed Companies (Winding up) Act, 1890. It was admitted that the company from the word “Ripley,” their own name, by omitting the "y" and had ceased to carry on its business.

transposing the other letters, and contended that “Pirle" was THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.) allowed the “invented word" and was not "geographical" or "descriptive of the appeal.

character or quality of the goods." Kekewich, J., being of opinion that A. L. SMITH, L J., said that, in his opinion, looking at section 32 as a the same considerations applied to the two words " Pearl" and " Pirle," whole, it was obvious that the inspection of the register there referred to affirmed the decision of the Comptroller. The applicants appealed. meant an inspection in the case of a going company alone and not in the

The Court (LINDLEY, M.R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.) case of a company being wound up. If authority were wanted for that proposition it would be found in the judgment of James, V.C.,

dismissed the appeal.

in Re Yorkshire Fibre Co. (18 W. R. 541, L. R. 9 Eq. 650). The learned judge, appeal and grant this application. They were not prepared to lay down

LINDLEY, M.R., said that the court could not see its way to allow the therefore, had no jurisdiction to make the order. CHITTY, L.J., concurred. Section 32 did not, in his opinion, apply to a could not, under the Acts, be put upon the register, another word, of

the entirely new proposition of law that when a wellknown English word company which was being wound up either by the court or under super precisely 'the game sound, and differing only in spelling, could be vision or voluntarily. It occurred in a group of sections which on their

registered. face dealt with companies as going concerns. The section itself contem

RIGBY and VAUGHAN WILLIAMS, L.JJ., concurred.-COUNSEL, Moulton, plated the company as a going concern. The penalty for refusal to allow inspection was imposed on the company and the directors, whereas when Q.C., and A. J;, Walter ; Sir Richard Webster, A.G., and Ingle Joyce. a company was in liquidation the register passed into the custody of the SOLICITORS, Speechly, Mumford, Landon, f Rogers ; Solicitor to the Board of

Trade. liquidator: Re Capital Fire Insurance Association (32 W. R. 260, 24 Ch. D.

(Reported by R. C. MacKenzie, Barrister-at-Law.! 408). The right of inspection given by section 32 was very important to anyone who contemplated dealing with the company when it was a going

Re WEST LONDON PERMANENT BENEFIT BUILDING SOCIETY. In his opinion it was not intended that after windirg up a

No. 2, 21&t March. stranger should have a right to inspect the register.

COLLINS, L.J., concurred.-COUNSEL, F. Evans ; Swinfen Eady, Q.O., and BUILDING SOCIETY — RULES — CONSTRUCTION – PAYMENTS ON Death of J. R. Atkin. SOLICITORS, Lake g Lake; N. Herbert Smith.


This was an appeal of Mrs. Elizabeth Thomson from a decision of ATTORNEY-GENERAL v. MAYOR, &c., OF TYNEMOUTH.

No. 1.

Wright, J. (sitting as an additional judge of the Chancery Division), 11th March.

dated the 10th of November last. The society was established in May. MUNICIPAL CORPORATION—APPLICATION OF BOROUGH FUND-Costs of CHIEF Will. 4, c. 32), for the purpose of carrying on the ordinary operations of

1866, under the provisions of the Building Societies Act, 1836 (6 & 7 CONSTABLE IN OPPOSING RENEWAL OF LICENCE-BOROUGH FUNDS Act, 1872 (35 & 36 Vict, c. 91), s. 2-MUNICIPAL CORPORATIONS Act, 1882

a building society. The society was never incorporated under the (45 & 46 Vict. c. 50), ss. 140-143, 191 ; SCHEDULE V., PART II., CLAUSR Building Societies Act, 1874 (37 & 38 Vict. c. 42). Its shares consisted of Ś (D).

two classes-namely, deposit or unadvanced shares, and anticipated or

advanced shares. In September, 1893, the society was ordered to be Appeal from the judgment of the Divigional Court (Grantham and 'wound up under the Companies Acts as an unregistered company upon &




petition presented by a depositor. In the course of the proceedings a a company promoter, was engaged upon a projected scheme for the petition was presented to obtain the sanction of the court to a scheme of formation of a joint-stock company to purchase and carry on the business arrangement between the creditors and the contributories of the society. of Messrs. Henry Green & Sons, china and glass dealers and gas engineers, The scheme as approved by the court in 1894 provided that the residue and on the 23rd of that month, in consideration of £1,000 then advanced should be divided amongst the unadvanced shareholders. It was not then and paid by the plaintiff to the defendant at his request, the defendant anticipated that there would be any residue, and no question arose as to undertook and agreed with the plaintiff in the terms contained in an the rights and priorities of the members. It afterwards, however, undertaking in writing as follows : “In consideration of your having appeared that, when all claims were discharged, there was a surplus of advanced me one thousand pounds in counection with Henry Green & about £2,800 for division amongst the unadvanced shareholders. An Sons, I hereby undertake to repay the same with one thousand pounds application was accordingly made to Wright, J., who directed that the bonus, of which latter sum seven hundred and fifty pounds is to be in surplus assets should be distributed rateably amongst all the unadvanced cash and two hundred and fifty pounds in cash or shares at my option; shareholders other than those that had compromised and released their such payment of two thousand pounds to be made by me to you after claims. That decision was now appealed from, and the Court of Appeal allotment as and when I receive payment from the company," signed, came to the conclusion that the surplus assets ought to be distributed Martin Fradd. The plaintiff alleged that there was an implied term in according to the legal rights of the shareholders. The decision of this undertaking that the defendant would form the said company and Wright, J., on this point was consequently reversed. The question then that the company should go to allotment, and that the £2,000 should be aroge whether the widows and children of deceased members were entitled paid within a reasonable time, and that such time had elapsed, and that to precedence, and, if so, whether they must claim under a nomination. he, the plaintiff, not having derived any benefit under the undertaking, This question turned upon the construction of the following clauses in the consideration on which he had advanced the £1,000 had wholly failed. the society's rules : * 22. Members withdrawing.–That any member The plaintiff also alleged that the defendant had committed a breach of desirous of withdrawing his or her investments, and having been a the undertaking by not forming the company within a reasonable time. member one year, shall, by giving one month's notice in writing to the From the evidence at the trial it appeared that the defendant endeavoured directors, at any monthly meeting, be entitled to receive back his or her to get the shares in the proposed company underwritten, but was unsucnet monthly subscriptione, with simple interest at the rate of 5 per cent. cessful in doing so and the company was never registered and therefore no per annum, and, in addition thereto, after the second year, such portion allotment of shares was ever made. Wills, J., held that the defendant of the profits as shall be declared by the directors at the date of with was not liable. The plaintiff now appealed, and on his behalf it was drawal. That, if more than one member shall give notice to withdraw at contended that there was an obligation on the part of the defendant to one time, they shall be paid in rotation, according to the priority of register the company, otherwise the undertaking would not come before notice; provided always that the widows and children of deceased the public, and there could therefore be no allotment of shares. The members shall always have the precedence.

"25. Death of risk the plaintiff ran was whether the public would or would not take up members.-That, in case of a member dying, his or her share or shares the shares. The plaintiff further had an equitable claim for money had and and interest shall belong to, or be distributed among, his or her executors received to the use of himself. or administrators, or other the person or persons hereinafter mentioned, The Court (A. L. SMITH, CHITTY, and COLLINS, L.JJ.) dismissed the and such executors or administrators may vote and act in all cases what appeal. soever as fully as the deceased member whom they represent may have A. L. Smith, L.J., after stating the facts of the case, said : It is clear done if living

When, on the death of any member of this there was here a bargaiv by the defendant to pay after allotment. The society, without leaving a will, a sum of money not exceeding £50 shall letter must be construed to mean that the defendant would pay the £1,000 become payable, euch sum shall, in default of letters of administration after allotment if and when he received payment from the company, and being taken out to the deceased member, be paid by the trustees to any the learned judge below was right in co holding. It has been argued person nominated by the deceased in writing deposited with the that there was a contract by the defendant to register the company. I secretary (such person being husband, wife, father, mother, child, brother cannot find any such contract. If, however, the plaintiff could make out or sister, nephew or neice, of such member), and, in case there shall be that there is such a contract, it does not follow that the plaintiff could no such nomination, or the person so nominated shall have died before recover the £1,000, because it does not follow that the company, even if the deceased member, or in case the member shall have revoked such registered, would ever have gone to allotment. The obligation the nomination, then such sum shall be paid to the person who shall appear defendant undertook was to do his best to convert this business into a to the said trustees to be entitled under the Statute of Distributions to living company. He undertook nothing more. The contract implies receive the same, without taking out letters of administration in England that the defendant would take all reasonable steps he could. The evidence or Ireland, and without confirmation in Scotland.

is that he did so by going about amongst persons and endeavouring to LINDLEY, M.R.-Although the rules are extremely obscure, I think I induce them to underwrite this company. I am of opinion that he did see my way to a tolerably plain conclusion on them. The court has to his best to give life to this company and that he has committed no breach deal with the shares of deceased members. It must ascertain who are of contract. This appeal must therefore be dismissed. the persons the society must recognize on the death of members. It Chitty and COLLINS, L JJ., delivered judgments to the same effect. comes to this, that, according to rulo 25 the society must recognize the Appeal dismissed.-COUNSEL, Witt, Q.O., and Corner ; Dickens, Q.C., and executors or administrators of deceased members. If there are neither Boxall. SOLICITORS, Bennett & Co.; A. Puleston. the society must look further and must recognize any person nominated

[Reported by E. G. STILLWELL, Barrister-at-Law.] by the deceased to take the share. If there are neither cxecutors nor administrators, and if the sum of money payable does not exceed £50 and there is no nomination, then the society must recognize the person entitled under the Statute of Distributions to receive the money. What

High Court-Chancery Division. are such persons to take ? Mr. Bramwell Davis has said that they could not take anything without having given notice to withdraw. That was

Re THE STOCKPORT RAGGED, INDUSTRIAL, AND REFORMATORY a startling proposition, and not warranted. There was nothing requir.

SCHOOLS. Stirling, J. 19th March. ing notice of withdrawal to be given. Whether a member gave notice to CHARITY – RAGGED SCHOOL-MORTGAGE or PROPERTY OP-SANCTION OF withdraw or not, on his death he ceased to bo a member. Rule 22 refers CHARITY COMMISSIONERS -16 & 17 VICT. C. 137, ss. 17, 62. to withdrawals. It does not refer to members who are dead. It con. tains a proviso “ that the widows and children of deceased members shall

This was a petition presented by the trustees of this charity uuder the always have the precedence.” I had at first thought that that proviso provisions of Sir S. Romilly's Act (52 Geo. 3, c. 101), asking for the sancmeant widows and children of those members who had given notice of in the trustees. The schools were established in 1866 under a trust deed,

tion of the court to a proposed mortgage of part of the property vested withdrawal, but on consideration I do not think that that is meant. I and they were conveyed to the trustees upon trust to permit them to be come to the conclusion that, whenever there is a competition between persons who have given notice of withdrawal and the widows and chil- used as a ragged, industrial, and reformatory school under a committee dren of deceased members, the widows and children shall always have and apply the proceeds of such sale in erecting and building larger

of management, the trustees having power to sell the original buildings precedence. It does not mean those whom the society is not bound to schools. The situation of the schools having become unsuitable, and the recognize under rule 25. It means those the society has to recognize so that if there is a competition between withdrawing members and widows buildings too small for the purposes of the trust the trustees proposed to and children whom the society are bound to recognize under rule 25, other moneys in hand and a further sum to be raised upon mortgage of

sell the existing schools, and to apply the proceeds of sale, together with they are to have precedence. That appears to me to make the best sensé that is possible of these exceedingly ill-drawn rules.

the new premises, in buying a new site and building larger schools. By RIGBY, L.J., delivered judgment to the like effect.

the Charitable Trusts Act, 1853, s. 17, it is provided that notice of legal VAUGHAN WILLIAMS, L.J., concurred.-Counsel, Bramwell Davis, Q.c., proceedings as to any charity by any person except the Attorney-General and Romer; Macnaghten, Q.C., and Ingpen ; Warringlon, Q.C., and 'w.E. should be given to the Board of the Charity Commissioners, and that the Lloyd ; Buckley, Q.C., and Clausen ; T. B. Napier. SOLICITORS, Grundy, tificate of the Board. By section 62 of the same Act it is enacted that this

courts should not entertain proceedings as to charities except upon the cerIzod, f Grundy ; Collyer-Bristow g Co.; Tansey, Bovlar, & Co.; Taizey f | Act shall not extend to the Universities of Oxford Riddell.

or any institu[Reported by J. I. STIBLING, Barrister-at-Law.]

tion, establishment, or society for religious or other charitable purposes wholly maintained by voluntary contributions.

ProWHEELER v. FRADD. No. 1. 18th March.

vided always that the paid exemption shall not extend to any cathedral, CONTRACT-CONSTRUCTION COMPANY PROMOTER.

collegiate, chapter, or other schools." The Charity Commissioners

claimed that, under section 17 of the Charitable Trusts Act, 1853, their This was an appeal by the plaintiff in the action from a judgment of sanction was required to the presentation of the petition. The trustees of Wills, J. The plaintiff's claim was for £1,000 for money received by the the charity, on the other hand, contended that the effect of the proviso to defendant for the use of the plaintiff ; alternatively for £1,000 for money section 62 was that only schools of a like nature with the schools therein lent by the plaintiff to the defendant. The plaintiff also claimed damages specified fell within that section. for breach of contract. In the month of November, 1896, the defendant, STIRLING, J., referred to Re Clergy Orphan Corporation (1894, 3 Ch. 145

« PreviousContinue »