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SET-OFF AGAINST CALLS ON SHARES.
The rule in chancery in the winding up of a limited company, established by the decision in Grissell's case (14 W. R. 1015, L. R. 1 Ch. 528), that in such winding up a contributory who is also a creditor of the company is not entitled to set off against calls made on the shares held by him either his debt or any dividend which may, after the date of the call, come to him on his debt, was held in In re Duckworth (15 W. R. 858, L. R. 2 Ch. 578), and Ex parte Strang (L. R. 5 Ch. 492), not to apply to the case where the contributory had become bankrupt. In such case it was held that, the ordinary jurisdiction of the Court of Chancery not extending into bankruptcy, the rules of bankruptcy apply, and that the debt must be set off against the calls, whether the claim be made in the bankruptcy or in the winding up. The reasons for this decision are stated by Lord Cairns in his judgment in In re Duckworth, as follows :—" Where there is no bankruptcy, the Court of Chancery, in winding up a company, has subject to its jurisdiction, the liquidator, the contributori.es, the creditors, and the other shareholders, and the course which the Court of Chancery is to take is pointed out by the Companies Act, 1862. According to the true construction of that Act, the Court of Chancery is precluded from allowing the application of any set-off as between the liquidator and the persons who have to pay calls. That is the positive enactment of a statute made upon due consideration, the expediency of which is obvious; and such has been the decision of the court. In the case of a bankrupt contributory very different considerations apply; the ordinary jurisdiction of the Court of Chancery does not extend into bankruptcy, and in the administration of a bankrupt's estate the Court of Bankruptcy must pursue the directions given by its own statutes. In the [Bankruptcy] Act of 1849 the enactment of the 171st section is that where there are mutual debts between the bankrupt and any other person, one debt or demand may be set off against another. Now, putting out of consideration the Act of 1862, would there not in this case be a setoff under this section? My opinion is that there clearly would." That decision was given upon the 171st section of the Bankruptcy Act, 1849, but it will equally apply to section 39 of the Act of 1869, which gives the right of set-off in cases of mutual dealings, &c, so that the law may be taken to be well settled in this respect, so far, at least, as the facts of the case in In re Duckworth carry it; but there appears to be no decided case which carries the effect of that decision any further.
Until the decisions of Bacon, V.C., in Gill's case (27 W. R. 934, L. R. 12 Ch. D. 755), and of Fry, J., in Ex parte Brown (27 W. R. 869, L. R. 12 Ch. D. 823), it was open to question whether, by virtue of section 10 of the Judicature Act, 1875, the whole effect of the decision in Grissell's case was not now done away with. That section provides that, " in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities proveable, ... as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the . . . assets of any such company, may come in under the . . . winding up of such company and make such claims against the same as they may respectively be entitled to by virtue of this Act." By section 39 of the Bankruptcy Act, 1869, it is provided that, " where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of such account and no more shall be claimed or paid on either side respectively." Is not this section (which, according to the ruling in In re Duckworth, provides a right of set-off against calls in the case of the bankruptcy of the contributory), by virtue
of section 10 of the Judicature Act, 1875, incorporated into the law of the winding up of companies so as to give a right of setoff in all cases, whether the contributory becomes bankrupt or not, thereby practically overriding the implication against such a right of set-off in the case of a limited company contained in section 101 of the Companies Act, 1862, and rendering inapplicable to the present law the rule laid down in Grissell's case? And must not the rule of set-off contained in section 39 of the Bankruptcy Act, 1869, be taken to be one of the rules "as to debts and liabilities proveable ... in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt," and, therefore, within section 10 of the Judicature Act, 1876?
Startling as this argument may appear in its effect, there seems to be great plausibility in it. If the mutual credit clause of the Bankruptcy Act, 1869, is by the section of the Judicature Act made applicable to the winding up of companies at all, it must be so in its entirety, and all decisions thereon must be equally applicable; ergo, the decision in In re Duckworth would hereafter apply in all cases. But Bacon, V.C., and Fry, J., in the cases we have cited have decided that Grissell's case is still law, notwithstanding that section, and we think those decisions would be upheld if the point ever came before the Court of Appeal. The section, it is well understood, was intended specially to alter the old rule in chancery which gave a secured creditor a right to prove for the full amount of his debt, and receive dividends thereon pari passu with the other creditors, and retain his security against any unpaid balance of his debt; the rule in bankruptcy being that a secured creditor must deduct the value of his security from his debt, and only be allowed to prove for the balance, and, so far, the court has not shown any disposition to extend the application of the section any further than the words of the section clearly indicate.
The rule laid down in Grissell's case being then still law, the point has recently arisen whether any limitation can or must be put upon the right of set-off in case of a bankrupt contributory in the following hypothetical case:—A., a contributory of a company in liquidation, was liable for calls made in the winding up of the company amounting to £10,000, and he was also a creditor of the company on another account for a like sum of £10,000. His assets beyond this claim against the company were valued at £5,000, and he owed to creditors, in addition to his liability for calls, £2,000. He was, therefore, unable to pay the amount of the calls, and these being pressed against him, he became bankrupt. In the bankruptcy the right of set-off arose as laid down in In re Duckworth, and consequently the company was not able to make any proof against his estate. All his other creditors were paid the full amounts of their debts, with interest, under the bankruptcy, and after payment of costs there was a surplus of £2,500. In the winding up of the company a dividend of five shillings in the pound only could be paid to the creditors, but if A. had paid the full amount of the calls for which he was liable, ten shillings in the pound could have been paid to the creditors of the company. In that case A. would have received his dividend of ten shillings in the pound on his debt, which would have amounted to a return of £5,000, his other £5,000 being absorbed in making up the dividend of ten shillings in the pound to the other creditors. Had the company any claim to the surplus of £2,500 arising in the bankruptcy, or—the right of setoff having arisen in the bankruptcy—was A. thereby absolutely released from the liability for calls, and so entitled to such surplus undpr section 45 of the Bankruptcy Act, 1869, and rule 137 of the Bankruptcy Rules, 1870?
The logioal conclusion to be deduced from the judgment of Lord Cairns would, at first sight, appear to be that the right of set-off having, under the rules in bankruptcy, once arisen, the claim for calls was thereby absolutely discharged and could not, under any circumstances, be again revived. But it must be borne in mind that the prospect of a surplus arising in the bankruptcy was not, in any way, raised in the case, and the decision was only directed to settling the rights as between the company and the creditors in the bankruptcy, and not as between the company and the bankrupt himself. Still, once having decided that the rules in bankruptcy alone were applicable to the case, it is difficult to see how it could afterwards logically be held that, in any circumstances, those rules should cease to operate and, the other creditors being paid off under the bankruptcy, the surplus assets of the bankrupt should become liable to a claim which had also been discharged by set-off under the same bankruptcy. And, ■were it not for the difficulties which we shall proceed to point out, this would certainly be the opinion at which we should, almost unhesitatingly, arrive.
The first objection to such a conclusion which suggests itself is, that if A. were entitled to such surplus, then he would, by reason of his bankruptcy, gain a sum of money at the expense of the company. To make this proposition more clear, suppose he had not become bankrupt, and out of the £5,000 of assets which he possessed he had paid off all his other creditors, the company would then be entitled to enforce payment 'pro tanto against the remaining £3,000 of assets, thus entirely divesting A. of all his assets. But by getting himself made bankrupt he would deprive the company of that amount for his own benefit. That would clearly be against the policy of the bankrupt laws, which are intended to work justice as between creditors, but not to entirely upset for the benefit of debtors, and to the detriment of creditors or persons claiming against them, express rules and regulations of equity laid down by statute and the courts. Then, to work out the case further, suppose that, in addition to the company, A. had had only one creditor for just sufficient an amount to be able to make him bankrupt, a bankruptcy in such a case, where the liabilities provcable would amount to £50 only, and the assets to £5,000, would appear very like a farce. Still, without bankruptcy A. would be unable to pay his liabilities which would then include the £10,000 for calls, and there is nothing in the Act to prevent a man being made bankrupt in such a case, if he owes sufficient to constitute a petitioning creditor's debt and commits an act of bankruptcy. But the fact that the result of his becoming bankrupt would, if the decision in In re Duckworth were held to apply without limit to all cases of bankrupt contributories, be as we have pointed out, suggests the equity of putting such a limit upon the application of that decision as would prevent such a result from accruing.
Again, if the application of the decision in In re Duckworth is not to have any limit placed upon it, what is there to prevent a person with assets sufficient to enable him to pay all calls upon him, yet procuring himself to be made bankrupt so as to defeat the claim of the company, and obtain the application of the right of set-off in the bankruptcy for his own benefit, thus opening up a method of entirely evading the provisions of the Companies Act, 18G2, and the rule in Q-risselVs case? If the court were of opinion that there was collusion in instituting the proceedings in bankruptcy between the debtor and the petitioning creditor with this object, then possibly it would consider the whole proceeding an abuse of the machinery of the court, and on that ground dismiss the petition. But that case, though an extreme one, is in principle really no more than the one we have been discussing. In either case the result would be a pecuniary benefit to the contributory at the expense of the company, and this would be an anomaly which we think the court would find some means of defeating.
At Hie Doncaster Borough Session;, on Tuesday, the only osse for trial was one in which four boys were indicted for house-breaking. Mr. Shirley profecuted, and Mr. Cordeaux defended. Another member of the bar was also present, but disengaged. Directly tbe jury had retired to consider their verdict, Mr. "Verity, of the firm of Verity & Baddiley, solicitors, rose and requested the recorder (Eiigar Meynell, Esq.) to cancel tbe crder made about a year ago by which exclusive audience was given to the bar in that conrt. It was a great hardship, be said, on him personally that, though a solicitor, he was not allowed to prosecute or defend criminals in his native town. It was also a great hardship on the prisoners that they shouli not have a large choice of oounsel. Only three members of tbe bar, be pointed out, had attended these sefsions, and there wero four prisoners, each of whom bad a right to be separately defended. Mr. CorJcaux, as leader of tho bar present, said that it was unreasonable to expect more than three barristers to come when there was only 000 case, and it was known beforehand who had got ti at. In answer to Mr. Verity's point about each of tho fuur prisoners having the right to be separately defended, the case was not likely to arise; but prisoners should arrange to be defended before the day of trial. Moreover, Mr. Cordeaux blamed the clerk of the peace for not sending circulars round to the barristers utually attending as at ( ther places. Mr. Shirley added that he thought that solicitors h id no right of audience at quarter sessions where the bar attended, and that barristers did not need any order to entitle them to exclusive audience. The recorder, however, differed from this view, saying that, though he should not vary big order at present, he should do so if more members of the bar did not attend.
THE ELECTRIC LIGHTING BILL.
The Electric Lighting Bill, which has now been printed as amended by the Select Committee of the House of Commons to which it was referred, may be fairly expected to become law during the present session. The Select Committee appears to have added some half-dozen clauses of importance to the original twenty clauses of the Bill, which we will now shortly abstract and criticize in its amended form.
The Bill begins by empowering (clause 2) the Board of Trade to license any local authority—i.e., any town council or improvement board or other authority, as defined by the schedule, or any company or person, to supply electricity within any area. The license, which is to be for five years only, renewable, however, at the end of that time " upon such terms and conditions as the Board of Trade may determine," may not be applied for without previous public notice, and it is particularly provided as follows :—
"The license may make auoh regulations as to the limits within which and the conditions under whiob, a supply of eleotrioity is to be compulsory or permissive, and for enforoing the performance by the licensees of their duties in relation to auoh supply, and for tbe revooation of tbe license where the lioenseea fail to perform auoh duties ; and generally may contain such regulations and conditions at the Board of Trade may think expedient."
This clause is repeated with greater particularity by a "clause B.," which will, we presume, be substituted for it, and wbich provides for securing a sufficient supply of electricity, and for limiting the prices to be charged, and it is added that not only may the Board of Trade from time to time make "such regulations as they may think expedient for securing the safety of the public from personal injury, or from fire, or otherwise," but that they may from time to time "amend or repeal any regulations which may be contained" in the license; and further, that the local authority may, "in addition to any regulations which may be made under the preceding provisions of this section for securing the safety of the public, from time to time make, rescind, alter, or repeal bye-laws for further securing such safety." It will be seen that a very close and lasting supervision is to be intrusted to the Board of Trade, and it may perhaps be feared that the ardour of promoters may be too much damped by these clauses until something positive is known of the manner in which the Board of Trade will administer them. A five years' license renewable on "conditions," and revocable "where the undertakers have, in the opinion of the Board of Trade, practically failed to carry the powers granted to them into effect within a reasonable time," is not a very satisfactory guarantee for the expenditure of capital. Clause 8, however, authorizes the Board of Trade to make provisional orders having the same effect as the licenses, but not terminable except by compulsory purchase, as we will mention presently. These provisional orders may be confirmed by special Act of Parliament in like manner as provisional orders of other kinds are confirmed. With regard to the prices to be charged, wc observe that clause 11 provides that, barring undue preference and excess of the limits fixed by the license, the undertakers may "make such charges for the supply of electricity as may be agreed upon." This may give rise to difficulty, as it suggests the possibility of separate bargains with individual consumers, and of frequent changes of price. It should surely be stipulated that prices may not be varied, say, more than once a year, or without a reasonable notice.
A clause, "F,," contains the salutary provision that the undertakers shall not be authorized to place any electric line above ground without the express consent of the local authority, and adds that a court of summary jurisdiction, "where any electric line has been placed above ground, . . . upon complaint made, if they are of opinion that such electric line is, or is likely to become, dangerous to the public safety, may, notwithstanding such consent as aforesaid, make an order directing and authorizing the removal of such electric line by such person and upon such terms as they may think fit." A slight amendment seems needed here. In case the local authority are themselves the licensees, it should be the Board of Trade, not the local authority, whose consent should be required for the above-ground works.
A clause " G." has been inserted for the protection of canals, and clause 14 most elaborately and effectually protects " any telegraph line of the Postmaster-General," but there is no special provision as to waterworks, and a suggestion which we believe at one time found favour with the Select Committee, that the pipes containing electric wires should be specially marked, has not been inserted in the Bill. Considering that a fifth kind of pipe is now to be added to the four kinds—the drain-pipe, the water-pipe, the gas-pipe, and the telegraph-pipe—which already run through our streets, we think this omission is to be regretted. The only special mention of gas is highly significant. It is provided by a clause " O." that in any area where gas undertakers are " under any general or limited obligation to supply gas on demand,"
"The Board of Trade may, upon the application of such gas undertakers, inquire into the circumstances of tbe caee, and if they are satisfied that any specified patt of such area is sufficiently supplied with electric light, and that the supply of gas in such specified part has ceased to be remunerative to the undertakers, and that it is just that suoh gas undertakers should be relieved from the obligation to supply gas upon demand as aforesaid, the Board of Trade may, in their discretion, make an order relieving tbe gas undertakers from such obligation, . . . either wholly or iu part, and upon such terms and conditions as they may think proper."
There is, however, no corresponding provision relieving electricity undertakers in their turn from the obligation to supply electricity in cases where the supply has, by the license (see clause "B." (a)), been made compulsory.
The remaining clause which calls for notice is that which provides for compulsory purchase of an electricity undertaking by a local authority. It is first to be observed that this clause applies only to cases where the undertaking was originally authorized by special Act or provisional order, and has no application to the licensees working under the renewable license of the Board of Trade. The effect of the clause is that within six months after the expiration of a period of fifteen years from the date of the Act authorizing the undertaking, and within six months after the expiration of every subsequent period of five years the local authority may force a sale to them of the undertaking, "upon terms of paying the then value of all lands . . . and plant . . . suitable to and used for the purposes of the undertaking, such value to be, in case of difference, determined by arbitration, . . . without any addition in respect of compulsory purchase or of goodwill or of any profits which may, or might have been, or be, made from the undertaking, or of any similar circumstances." These provisions are plain enough. They are to a certain extent copied from the provisions in pari materid of the Tramways Act, 1870. By section 43 of that Act local authorities may force a sale of tramways "upon terms of paying the value exclusive of any allowance for past or future profits of the undertaking, or any compensation for compulsory sale, or other consideration whatsoever," but the period after the expiration cf which the powers of purchase may be exercised, is fixed at 21 and 7 instead of 15 and 5 years. The exorbitant price, which was calculated as payable upon a proposed compulsory purchase of the metropolitan waterworks which has now fallen into abeyance, will no doubt be urged as an argument for the insertion of these clauses into the Electric Lighting Bill. If promoters choose to set on foot electricity undertakings with such provisions staring them in the face, the Legislature cannot be reproached with unfairness. But we fear that the closeness of this prospective bargain may prove to be an additional means of unduly checking that private commercial enterprize without the aid of which neither railways, tramways, gasworks, or waterworks would have been constructed.
In the current Biennial Report of the Chief Jnstice of the Supreme Court of the Sandwich Islands, says the Albany Law Journal, we find several novel criminal offences noted ; for example, selling eau de cologne as a beverage, fishing with giant powder, playing truant from school, disobedience'to'parents, suppression of offences, Hoomanamana, deserting parents, refusal to leave house.
A movement has been set on foot for commemorating the jubilee year of the United Law Clerks' Society by the presentation of a portrait to Mr. H. G. Ropers, the esteemed honorary secretary. Mr. William May, of 3, Serjeants'inn, has undertaken to act as hon. treasurer, and it is desired that intending subscribers should send their names to him before Saturday, the 8th inst.
IN RE CLEW.
Sir,—I wish to call your attention to the judgments delivered by Grove and Lopes, JJ. in the above case, reported iu last week's Weekly Reporter, p. 704.
No doubt the particular conviction appealed against was bad, because it simply adjudged imprisonment in default of payment, without stating that it appeared to the court that there were no goods whereon to levy the amount.
But the judges go much further than merely quashing the conviction, and say that section 21 of the Summary Jurisdiction Act, 1879, does not apply at all to cases under the Licensing Acts, but refers to other Acts under which persons may be convicted and punished by flue, and, in default of payment of the fine, by imprisonment. But these last are Acts under which no distress warrant could issue at all, and section 21 expressly deals with cases (such as those under the Licensing Acts) where .a distress warrant is authorized, and with no others.
The judges are, therefore, reported to have said that seotion 21 applies solely to Acts to which it oan have no possible application. The judges must be supposed to have meant something by their observations, and I should be very glad if any of your readers oan give any clue to what their real meaning was. The matter is one of considerable importance.
A Justices' Clerk.
[The report of the judgments is, we are assured, correot. We propose hereafter to consider how the crux propounded by our correspondent is to be solved.—Ed. <S. J.]
CASES OF THE WEEK.
Copyright — Infringement—" Book "—Advertisement — Illustrated Catalogue—Copyright Act, 1842 f 5 & 6 Vict. O. 45), s. 2.—Iu a oase of Maple cfc Co. v. The Junior Army and Navy Stores, before the Court of Appeal on the 29th ult., a question arose upon the effect of the Copyright Act of 1842— viz., whether tbe protection given by it extends to a b ok published by a tiader as an advertisement of the goods which ho sells. The Act gives copyright to "every book," and by section 2 "book" is defined as including "every volume, part, or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, ebart, or plan, separately published." In this oase the plaintiffs were cabinet-makers, upholsterers, and general furniture dealers in Tottenham-court-road. They had for some time past issued, by way of advertisement, to their customers and the publio an illustrated catalogue, called their "Illustrated Catalogue of Furniture," containing engravings and plates of the articles of furniture sold by them. They complained that the defendants bad issued a catalogue containing engravings and plates copied from, or which were a colourable imitation of, those in the plaintiffs' catalogue, and they claimed :m injunction to restrain the defendants from printing, publishing, issuing, and distributing any catalogues containing any engravings, plates, or illustrations of furniture copied from, or which were a colourable imitation of, those for the first time published iu the plaintiffs' catalogue. The plaintiffs' engravings had been prepared for them at great expense from sketches taken by artists employed by them, and tbe plaintiffs' catalogue had been duly registered at Stationers' Hall nnder the Act. Hall, V.C., held that this catalogue was a subject of copyright, that it was a book, and, as such, within the Copyright Act. His lordship accordingly granted an injunction. On the appeal it was contended, on behalf of the defendants, that a book which was used merely as an advertisement was not within the Copyright Act, and could not be the subject of copyright, reliance being placed on the decision to this effect ofLordRomilly, M.R., in <7o6ie« v. Woodward(20 W. R. 963, L. R. 14 Eq. 407). Jessel, M.R., said tha', in his opinion, this catalogue was the subject of copyright. The first question was whether it wa9 a " book." It was clearly a "book," and so it came within the very words of the Act. There were such things as " pioture-books," and they were always called books. The court had been pressed with an argument founded on the words of the preamble of tbe Act. But the rule was that the preamble did not override the enacting part of an Act when the latter was quite clear. In the present case his lordship thought the enacting part was quite clear. In the definition of the word " book" an "engraving" was not mentioned, but there was nothing to exclude an engraving when it was in a book. The preamble did not help the defendants at all. It spoke of amending the law of copyright generally, and there was nothing in it to cut down the enacting part to books containing letterpress only, or to exclude books which contained pictures aa well as letterpress, or pictures alone. His lordship could see no reason for cutting down the words of the Act, and especially in order to protect persons like the defendants who were copying other people's pictures, which was not a very honest thing to do. Ae to the decided cases, some of them were rather difficult to understand, and they were not quite oonsistent with each other. His lordship thought that the decision of Lord Romilly in Qobbett v. Woodward was not good law. There was no sound distinction as regarded copyright by reason of the use to which the book was put. You might use yonr book as an advertisement if you liked. A very common form of testimonial on application for an office was a statement that the applicant was the author of such a book. That would not deprive him of copyright in bis book. The purpose for which a book was used could not affeot the copyright of it. The view of Lord Romilly would not bear legal examination. The majority of the authorities was against the notion that the nse of a book as an advertisement would affect tbe copyright. Was there any reason why the court should not adopt the literal meaning of the Act? Was not the reason the other way? What bad the appellants to say for tt emselves? Simply this, that they thought they might copy the plaintiffs' engravings with impunity, and thus appropriate the labours of others without paying for them. They were not person* who were entitled to call on the court to narrow the meaning of an Act of Parliament. It was the duty of the rourt to construe an Act of Parliament in a rational way, and in furtherance of the interests of justice. Lindlbt, L.J., was of the Bame opinion. The plaintiffs' book was an original one, and originality of design, as distinguished from literary merit or skill, was the test in regard to copyright. The plaintiffs' catalogue was a book, and it came within the definition in the Act. There would be no difficulty in the matter but for the deoU sion in Cobbett v. Woodward. If that case could be reconciled with others, and had been followed, his lordship would have been very slow to dissent from it. But it appeared very difficult to reconcile it with other cases of equal authority, such as Rotten v. Arthur (1 H. & M. 603) and Grace v. Newman (23 W. R. 517, L. R. 19 Eq. 623), and his lordship thought it could not be reconciled on any intelligible principle. He thought that a book containing literary matter with illustrations, all put together, was fairly within the Act. And there was Do reason why the court should be astute to discover a loophole by which to protect defendants who bad done that which could not be justified. The appeal must be dismissed, with costs.
In the course of the argument a question arose as to the effect of the case of Bogue v. Houhton (5 De G. & S. 267). It was said that thereport of that case showed that the plaintiff claimed copyright in certain stories, as well as in the illustrations whi.h were published with them. Jessel, M.R., sent for the original record, and said that it appeared from the bill that the plaintiff in that case claimed copyright in nothing but the illustrations.—Solicitors, Zewin $ Co. j Lumley $ Lumley.
Practice—Trial Of Action — Change Op Venue—Discretion Op Court—Appeal—Ord. 36, E. I.-In a esse of Mutch v. Wilson, before the Court of Appeal on the 29th ult., a question arose as to the change of venue in tbe action. The action was brought by a husband and wife, who resided at Leicester, against the proprietors of a colliery in Cumberland, and of a tramway which crosses at a level a public highway leading from Maryport to Workington. On the 17th of November last the wife, who was then staying with an aunt at Maryport, was being driven in a phaeton by her aunt's coachman along this highway, when, on crossing the defendants' tramway, a collision took place between the phaeton and an engine and trucks belonging to the defendants, which were being driven along the tramway, and the wife was seriously injured. Tbe plaintiffs claimed £25,000 damages, on thegronnd that the accident was caused by the negligence of the defendants and their servants. Tbe plaintiffs gave notice of trial at Leicester. The defendants denied the alleged negligence, and alleged contributory negligence on tbe part of tbe coachman. They also alleged that the laying and working of the tramway across the pnblic highway was not unlawful, because the right to lay and work it had been chimed and enjoyed from time immemorial, without interruption by the publio, by the defendants and their predecessors in title. The defendants also alleged that the tramway was justified under a private Act of Parliament. The defendants applied to the court to have the venue changed, and the trial ordered to take place at Carlisle. The application was refused by a master, then by Lopes, J., and again by a divisional court consisting of Grove and Mathew, 3 J. The defendants appealed. Jessel, M.R., said that a change of venue was dependent on the preponderance of convenience—i.e., with a view to the attainment of justice. It was practically a matter within the discretion of the judge to whom the application was made. He most know, partly from the evidence and partly from his own experience, whether there was such a preponderance of convenience in favour of changing the venue aa to justify him in changing it. No doubt an appeal would lie from his decision, but it was certainly the duty of the Court of Appeal to say that suoh an appeal would not be entertained—that is, that it would be dismissed, unless the court was satisfied that there had been a gross miscarriage, a mistake which amounted to a denial of justice. If no such rule were laid down, the court would be encouraging tbe wealthy litigant to wear out his opponent and overlade him with oosts by appealing from every order. His lordship did not say this was so in the present case; indeed, he was satisfied for other reasons that the present appeal was a bona fide one, and that the defendants really wished to have the virtue changed. But it was necessary to adhere to the rule. Indeed, in the present case, his lordship was not persuaded that the order waa wrong; on the contrary, be thought it was right. The defendants said that this was a county action; that the locus in quo was near Carlisle; and that their witnesses, who were numerous, all resided in or about Carlisle. They also i- aid it was essential the jury should have a view of the place. They said again that many of the plaintiffs' witnesses also resided at Carlisle. On the other hand, the female plaintiff resided at Leicester, and was in suoh a state of health owing to this unfortunate accident that she waa unable to go to Carlisle. She was an important witness at the trial for the plaintiffs, perhaps the most important. It waa said that she wonld be called only to excite the sympathies of the jury. His lordship was not sure that she would not be able to testify to many of the material facta. Ought the court to deprive tbe plaintiffs of this important witness P Certainly not. It was said that the trial of the action migbt be postponed to the next spring assizes. His lordship did not think that the defendants bad aright to call for a postponement of the trial. Tbe female plaintiff might die in the meantime, and then her evidence would be lost altogether. A postponement of the trial could not be allowed. If »o, was it conducive to the interests of justice t at the plaiatiflg should be deprived of their most material witness? Clearly
not. Then it was said that a view of the place by the jury was necessary. If it was essential, of course it must be provided for in some way. But, in the first place, if it was desirable, though it could not he obtained legally if the trial was at Leicester, it could no doubt be managed by arrangement between the parties. And, in the next place, in his lordship's opinion, a view was not absolutely necessary. He had had a good deal of experience in trials of actions relating to interference with roads or with light, and he had never found any difficulty in trying them if the parties took care to produce models of a proper size and proper photographs. In this way the positions of physical objects could be ascertained, and therefore a view was not really necessary. Another point was that Leicestershire being what might be described as a grass county, while Cumberland might be called a mining county, the views of a Leicestershire jury about tramways crossing a public road might be very different from those of a Cumberland jury. But the venue could not be changed on any such ground. A postponement of the trial being out of the question, and the hardship of depriving tbe plaintiffs of their most material witness being much greater than any hardship whioh would result to the defendants from the trial taking place at Leicester, the order of the divisional court w is right, and the appeal must be dismissed. Lindlbt, L.J., said that some limit must be imposed on the right of appeal, and the court ought to discourage such appeals unless they were brought on very cogent grounds. The question of changing a venue was a matter of discretion. It was tbe right of the plaintiff to fix the pla'e. of trial, but this right was subject to the control of the court, and if it oould be shown that, on the whole, justice required that the venue should be changed, the court would change it. But after the decisions of a master, a judg», and a divisional court, it was an abuse to appeal, except under very cogent circumstances. In the present case it appeared to his lordship absolutely essential that the female plaintiff should be put in the box at the trial, if she could be got there, and that, to his mind, ooneluded the case. The appeal ought not to have been brought.—Solicitors, Bom-gas, Bitchoff, <t Dodgson; Thomas Wriglit.
Railway Company— Neqliobncb—Damages—Liability To Repair Asd Light Public Highway.—In a case of Lancaster v. The South-Eastern Railway Company, before the-Court of Appeal on the 30th ult., a question aro-e as to the liability of a railway oompany for an injury resulting to a pa«seng-r in consequence of the defective state of a footpath leading to a station of the company, which had been oonstrueted by them 00 land of their own. The plaintiff, on January 2, 1881, took a return tioket from London Bridge to the Greenhithe Station of the oompany. From this station a footpath le<dir£ to a neighbouring village ran along the side of the railway, on land belonging to the company, for a distance of about five hundred yards. This path w«s at one spot interrupted by an artificial cleft, down the sides of which, which were steep chalk banks, the path was carried by wooden steps. In returning it night by this footpath to the station to take the train to London, the plaintiff, n t being able to see the steps from the extreme darkness of the night, mits ■ his footing and was preoipitated from the top to the bottom of tbe steps, thereby sustaining considerable injury. He claimed compensation from the compiny on the ground that, being on the premises of the compauy, by their invitation, for the purpose of travelling by their line, 'tbey were liable for the damage occasioned by their not having placed a light at tbe steps. At the trial, Lord Coleridge, C.J., gave judgment for the defendants. It appeared that the plaintiff had been in the habit of using the footpath on previous visits to Greenhithe, but, until January 2, 1881, always by daylight. On the first oocasion he had asked the station-master tbe nearest way to the village, aud was told that be oould go by the footpath if he liked. Jessel, M.R., said that the company had provided a public highway which was open to the uae of all persons, and when that way was once provided they had nothing more to do with it. He could not understand how this action could have been brought, except on tbe principle that railway companies were fair game on questions of compensation. The footpath in question was clearly a public highway, with no liability on the part'of the oompany to repair or light it. The fact that tbe plaintiff was told more than a year before that it was the nearest way to the place to which he wanted to go was no invitation to him to nse i', and certainly be was not invited to go along it by night in the dark. There was, io point of fact, no invitation, nor anything like an invitation, on the part of the company so as to affect them with any liability. It would be not only contrary to law, but also contrary to reason if the court were to allow the railway company to be mulcted in damages in a case like this. Tbe judfment was perfectly right Lindley, L.J., and Bowbn, L.J., concurred.— Solicitor, W. 3. Herbert.
Contract Op Apprenticeship—Place Of Performance—Removal Of Master—Breach.—In a oase of Eaton r. Western, before the Court of Appeal on the 4 th inst., the question arose whether there had been a breach of a contract of apprenticeship by reason of the removal of the business of the master to a place different from that at whioh it was carried on at the tints when the oontract was entered into. The action was brought by a father and his infant son for damages for breach of the covenants and agreements contained in an indenture of apprenticeship entered into between the plaint n* and the defendants on the 12th of January, 1877. At that time the defendants were carrying on their business of mechanical engineers in Ltrnbeth, in which place, also, tbe infant resided with his father. By the deed the info"' was bound apprentice to the defendants in the ordinary way for six years, and was to serve them and to obey their lawful commands. And tbe f»tner covenanted with the defendants that he wonld, at all times during the trro, provide bis son with suitable board and lodging, washing and clothes, and «u other necessaries, and that the son should fathfully serve the defending »j their apprentice during the term. And, in consideration of this, the dtfendan's contracted with the infant and his father to teach the infant their business in the usual manner, and to pay him certain wages. In 1879 the defendants removed their business to Derby, and required all tbeir apprentices to remove there, offering to pay their railway fare there and to pay them, if they removed, increased wages during the remainder of tbeir terms, or, in the alternative, to have tbeir indentures cancelled, and to make them a present of four weeks' wages. The infant plaintiff, with the consent of his father, refused to go to Derby, and the defendants thereupon refused to continue bim as their appren tice. This action was then brought in the Surrey County Court, and judgment was given for the plaintiffs. On appeal to the Queen's Beech Division this judgment was reversed. The divisional court (Mathew and Cave, JJ.) were of opinion that they were bonnd by the decision of the Qoeen's Bench Division (Grove and Bowen, JJ.) in the recent oase of Royce v. Charlton (30 W. R. 274, L. R. 8 Q. B. D. 1). Iu that case a deed of apprenticeship contained the usual provision that the master should teach the apprentice, but there was no express provision as to the place where the contract was to be performed by the master. The apprentice's mother, with whom he resided, agreed to provide him with board and lodging during the term. And it was held that no stipulation could be implied that the contract of the master was to be performed at the place where the master carried on business and the apprentice and his mother resided at the date of the deed, and that there was no breach by reason of the master removing his business to a distant place. In Eaton v. Western the Court of Appeal (jessel, M.R., Sir James Hannbn, and Luidley, L.J.) disapproved of this decision, and reversed the decision of Mathew and Cave, JJ., which was founded on it. They said that the case was quite different from that of an indoor apprentice in which the master was bound to provide the apprentice with board and lodging. It would not be a reasonable construction to hold that the father was bound to provide the son with board and lodging at any place to which the master might choose to remove bis business. The master's command to the apprentice to remove to Derby was not lawful aod reasonable, and the apprentice was not bound to obey it. The decision of 'the county court was accordingly restored.—SoliciTors, Bordman £ Co.; Western Sons.
Siiebipf's Officer—Negligence—Delivery Of Whit.—In a case of Truninger v. Keene, before the Court of Appeal on the 3rd inst, a question arose as to the liability of a sheriff's officer for negligence iu not obtaining a warrant to levy under a writ of elegit. It appeared that it is a not uncommon practice for the solicitor of a party who has issued a writ of elegit, instead of delivering it in due course at the office of the under-sheriff in order that a warrant to levy may be issued to the sheriff's officer, to deliver the writ to one of the sheriff's offioers in order that he may obtain the warrant, a small fee being paid to him for the purpose. Some advantage is supposed to be derived from thus securing the personal attention of the officer. In the present case a writ of elegit was delivered in this way to a olerk of the defendant, who was a sheriff's officer, in order that a warrant to levy might be obtained. The proenring of the warrant was so much delayed, that, before it was issued, the execution debtor had filed a liquidation petition, and the plaintiff (the execution oreditor) thns lost the priority which he would have obtained if the levy had been made iu time. A he plaintiff claimed damages from the sheriff's officer for negligence in not proouring the warrant in time. At the trial without a jury Mathew, J., ordered judgment to be entered for the defendant, on the ground that it was not proved that the defendant's clerk had any authority from him to receive the writ. An order nisi for a new trial was obtained, on the ground that the judge had refused an application to postpone the trial in order to enable the plaintiff to procure the attendance of a witness whose evidence was alleged to be material. The Court of Appeal (jessel, M.R., and Lindley, L. JO, discharged the rule, on the ground that it is not part of the dnty of a sheriff's officer to receive writs of execution directly from the execution creditor or his solicitor, and that, consequently, the defendant's clerk in reoeiving the writ was not aoting in the ordinary course of the business of a sheriff's officer, and his act could not, therefore, bind his principal in the absence of express authority from him. The evidence did not prove any such authority, and if the absent witness had proved all which it was stated that he could have proved, his evidence would not have amounted to more than this, that it was a oommon praotice for sheriffs' officers to allow their clerks to receive writs from the solicitors of exeoution creditors. There was, therefore, no ground for a new trial.—Solicitors, M, Abrahams $ Co.; Abbott, Jenkins, $ Abbott,
Company—Winding Up—Wishes or Creditors—Companies Act, 1862, 0. 91.—In a case of In re The Ortat Western Coal Consumers' Company, before Fry, J., on the 1st inst., a question arose as to the regard which the court should pay to the wishes of the creditors of a company in reference to the making of a winding-up order. The petition was presented by the first mortgagees of the company's property, who were also the holders of some debentures of the company. The petition was opposed, not only by the company and by some of the shareholders, but also by a large number of the creditors. The amount of the debts due to the opposing creditors was considerably more than double the amount dne to the petitioners and those creditors who supported the petition. Substantially the whole of the company's property was mortgaged, and it did not appear that there was much probability of a surplus. There was evidence that the position of the company was improving, and that, if it was allowed to continue its business, it was probable that it would be able to pay the interest on the mortgages, which had been in arrear for some years, and gradually to extinguish the mortgage debt. Under these circumstances Fry, J., declined to make an immediate windingup order, but directed that the petition should stand over for six months, or until the petitioners should, within the six months, take some proceedings to enforoe their security, the company giving an undertaking, as was given in In re St. Thomas' Dock Company (24 W. R. 544, L, R. 2 Ch. D. 116), not to wind up voluntarily, and not to consent to a winding-up order on the petition of any other creditor, and also to give notice in wilting to the petitioner of
the presentation of any other winding-up petition, and of any proceeding being taken by any other mortgagee or debenture-holder to enforce his security. Fey, J., said that the court ought, no doubt, to have regard to the wishes of the creditors, but it ought not to regard merely the number of the creditors, and the value of the debts due to them, but it should oonsider also the reasons which they gave for their wishes. In the present case the opposing creditors had shown good reasons for their opposition to the making 01 an immediate winding-np order ; they were also more in number and value than the oreditors who supported the petition, and, therefore, the court ought to attend to their wishes, and not make an immediate winding-up order. Another reason for coming to this conclusion was, that the petitioners would not gain anything by a winding-up order. In the winding up, the court would have to administer only the equity of redemption of the mortgaged property, and substantially the whole of the company's property was inoluded.in the mortgage1, and in the security of the debentnre-holders. Therefore no practical benefit would result to the petitioners from a winding-up order.—Solicitors, Clarke, Woodcock, & Rylani; Wilkins, Blyth, # Dalton; Jones, Blaxland, Son.
Limited Company—Fraudulent Prospectus—Rectification Op RegisTer—Laches Op Plaintiff—Companies Act, 1862, s. 35.—In the case of Levy v. United Horse Nail Company (Limited), before Chitty, J., on the 30th ult., a motion was made by the plaintiff for the rectification of the register of shareholders of the company by the removal of the plaintiff's name therefrom in respeot of 500 shares applied for by and allotted to him, and also for the return to him by the company of £250 paid in allotment. The ground of the motion was that the plaintiff was induced to take the shares in consequence of fraudulent representations contained in the prospectus issued by the company. From the evidence produoed by the plaintiff it appeared that on the 2nd of Jane, 1881, he believed, and stated his belief, that the company was not a bond fide ooe, bat the present proceedings were not instituted until March of the present year. Chitty, J., said that the plaintiff had not shown that ha was misled by any representation of the kind he alleged, or, indeed, that there was any fraudulent misrepresentation at all, and that the motion, on these grounds, must be dismissed with oosts. There was also another ground which was a sufficient one for dismissing the motion, and that was the delay of the plaintiff in making his application to the court.—Solicitors, Walter B. Styer; Heritage Si Co.
Petition—Appointment Of New Trustee—Trustee Acts, 1850, 1852 —Conveyancing Act, 1881.—In the case of In re Oakden's Trusts, before Chitty, J., on the 1st inBt., a petition was presented by the tenant for life of trust funds oomprised in the will of a deceased testator for the appointment of a new trustee of the will in substitution for one of the two original trustees who was dead. Chitty, J., said that the proper course was to appoint a new trustee under section 31 of the Conveyancing Act, 1881, without coming to the court. Iu the present instance he would make the order with the view of sparing the parties expense, but similar petitions would, in future, be dismissed with costs.—Solicitors, Aldridge, Thorn, St Morris, for Leech, Smith, & Broughail, Derby; Oeare # Son; Q, F, Hudson, Matthews, Si Co.
Partition Acts—Sale Free Prom Incumbrances—Conveyancing Act, 1881, s. 5.—In the oase of Dickin v. Dickin, before Chitty, J., on the 1st inst., a consent order was sought under the Partition Aots for the sale of hereditaments whioh were Bubjeot to an annuity of £20 in favour of a perBou not made party to the aotion, and it was proposed that the property should be sold nnder the provisions of the Conveyanoing Aot, 1881, s. 5, free from the incumbrance of the annuity. Chitty, J., made the order asked for, with a direotion that out of the purohase-money to be paid into oourt snob, an amonnt as, when invested in Government securities, the oourt should oonsider sufficient to provide for the annuity of £20 and oosts should be set aside and invested as a provision for such annuity, and thereupon that any party should be at liberty to apply for a declaration that the hereditaments were free from the annuity.—Solicitors, Milne, Riddle, £ Mellor, for Withington, Petty, cfc Boutflover, Manchester; C. W. Dommett.
CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrar Murray, acting as Chief Judge.) April 26; May 17; June 28.— Re Currie. A pension of £90 13s. lOd. per year grauted by the Madras Medical Fund to the bankrupt, as the unmarried daughter of a deceased medical officer iu the Indian Army, held to pass to the trustee under the bankruptcy, subject to the provisions of section 90 of the Bankruptcy Act. But the amount to be set apart involves a question of discretion.
This was an application on behalf of Cecilia Cadogan Currie, spinster, a bankrupt, for an order that, notwithstanding the appointment of James Holah as trustee of the estate and effects of the bankrupt, the annual pension of £90 13s. 10d. derived from the Madras Medical Fund, and payable quarterly to the bankrupt during her life, or until her marriage, might be paid to her as the same became due. There was also a cross-application on behalf of the trustee for an order on the Director of Military Funds to pay to the trustee so much of the pension (subjeot to existing charges) as the oourt might think fit, to be applied in such manner as the court might direct.
The bankrupt stated that she was entitled to the pension in question, whioh was derived from the Madras Medical Fund, as the daughter of an Indian medical officer, her father having been a subscriber to the fund daring his life