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rendered his judgment, dealing equally emphatically with the point, of peculiar interest.

Taxation of School Buildings.

THE surprise expressed by us (see 135 L. T. Jour. 234) that rule 2 in sched. B to the House Tax Act 1808 (48 Geo. 3, c. 55) should be held to cover school and class rooms was well warranted. it now appears. For the House of Lords have recently reversed the decision to that effect of the Court of Appeal in the test case of Governing Body of Westminster School v. Reith (noted 137 L. T. Jour p. 588). Among our comments on that decision, we observed that it was difficult to believe from the language of the rule that school buildings used by all the scholars attending a school were ever in the contemplation of the Legislature, when the Act was being passed, as constituting "offices belonging to and occupied with any dwelling-house." It must, as we then remarked, have needed an extremely diligent scrutiny of the provisions of the rule-quickened, no doubt, by the necessity for finding fresh fields for taxation-to discover that the same might possibly be considered as available. The words of the rule would certainly put any but the astutest of readers off the scent. But with the exception of Lord Parmoor, the learned Lords were as in our view was only to be anticipated-unanimously of opinion that the school and class rooms in question were not "offices" within the meaning of the rule, having regard to the context in which that word occurs therein. Further, their Lordships did not consider that the rooms came within the phrase "belonging to and occupied with any dwelling-house." As to the first portion of the decision of the House of Lords, had it not been for the decision of the Court of Appeal in Browne v. Furtado (88 L. T. Rep. 309; (1908) 1 K. B. 723), it seems scarcely probable that the Court of Appeal in Reith's case (ubi sup.) would have held as they did. But it was not open to the Court of Appeal, after the decision in Browne v. Furtado (ubi sup.), to go into that point. It was already disposed of. They were bound by the anterior decision. Being held to be offices it was easy to go a step further and to decide that the rooms complied with the statutory requirement and belonged to and were occupied with the school. Capable, however, as was Browne v. Furtado (ubi sup.) of being reviewed by the House of Lords, the expected for once in a way has happened, and the decision in that case is now overruled. No specific reference to school buildings being contained in the rule, wide as are its terms, it is simple to comprehend why, during the whole of the past century, no attempt-other than the unsucessful one in Clifton College v. Tompson (74 L. T. Rep. 168; (1896) 1 Q. B. 432)-was ever made to bring such buildings within the rule. Fiscal exigencies may perhaps necessitate an enlargement of those terms, having regard to the present decision of the House of Lords.


Partnership Deeds.

PERHAPS few deeds are more difficult to prepare than articles of partnership. In approaching the subject it is necessary to bear well in mind that the interest of a partner in the capital of the firm may be, and often is, different from his interest in the profits and goodwill. A partner's share of capital may be much larger than his share of profits, and he may cease to have any interest in the goodwill on death or retirement. The first difficulty which confronts the draftsman is the capital. It is scarcely necessary to say that the capital of a partnership is the amount contributed by its members for the purpose of carrying on the business. The capital is not therefore the same as its property, nor is it necessarily the amount due to a partner from the firm, for the latter may owe him money, for advances or otherwise, in addition to his capital. As pointed out by Lord Lindley in his great work on partnership, the capital of a firm should always be expressed in money. When a new business is being commenced as distinguished from the continuation of an old one, no difficulty arises, as each partner would contribute so much money as his share of the capital. But the matter is not so simple when a new partner or partners is or are being intro

duced into an old business. In that case the existing capital will probably be represented by freehold or leasehold hereditaments, stock-in-trade, and book debts. The fact that the latter must often-particularly in a trading concern-form a large item of capital is sometimes lost sight of. In West end trades of a certain class, the book debts are often of long standing, and only a proportion of them can be treated as profit. The rest, representing the cost of producing the article sold, or as may be, is capital. With regard to profits there is no difficulty in defining the shares of the partners, but on the death or retirement of a partner, when his share accrues to the other partners, it is necessary to provide in what shares or proportions it is to accrue. It generally is in proportion to their respective shares in the profits. With regard to goodwill on death or retirement of a partner, sometimes it has to be paid for by the surviving or continuing partners at so many years purchase, or at a valuation. In other cases no allowance is made for it. The foregoing observations are somewhat trite, but they call attention to points which are not infrequently overlooked. In articles of partnership between solicitors, it is frequently stipulated that upon the disolution of the partnership by effluxion of time all deeds, drafts, and papers relating to the business of the firm shall (unless the client to whom the same belong objects) be delivered to the partner who has usually attended to the business of such client, but it is suggested that a fairer plan would be to stipulate that (unless the client objec ed) the deeds, drafts, and papers should be distributed between the partners in such manner as to secure to each partner a share of the goodwill proportionate to his share of the profits; and, in case of dispute, the question to be determined by arbitration under the clause for that purpose contained in the partnership articles.

“Under" and "by Virtue of."

PERHAPS few expressions are of more frequent occurrence in legal documents than those at the head of this article; and they not infrequently give rise to questions of some difficulty. For instance, if a testator bequeaths a legacy to A. for life, and after his death to such persons as A. shall by deed or will appoint, and A. appoints the fund to B., does B. take under or by virtue of the will, or of the appointment, or of both? Again, suppose that a testator leaves a share of his residuary estate to B., and another share to C., and C. sells and assigns his share to B., who mortgages all his share and interest under or by virtue of the will to D., does such mortgage include C.'s share? The authorities turning on the point do not seem to be very precise. No doubt the question depends somewhat on the construction of the whole of the instruments, and on all the circumstances of the case. In Attorney-General v. Chapman (65 L. T. Rep. 119; (1891) 2 Q. B. 532), which was a revenue case, the facts were very shortly as follows: By a marriage settlement H. transferred certain personal property to trustees upon trust to pay the income to herself for life, and after her death, in certain events, upon trust for such person or persons as she might, not withstanding coverture, appoint. In the events which happened, such power of appointment became operative, and H. by deed exercised the power of appointment in favour of a niece. H. died in 1888. Held, that the property appointed to the niece was property "passing under " the marriage settlement. Mr. Justice Wills in the course of his judgment said: "The expression passed under 'is not a phrase of art in the same strict sense in which 'devise,' 'grant,' 'estate in fee,' 'remainder,' and a host of others having exact and uniform technical significations would be properly so termed. It is a phrase of a comprehensive nature, and we think it may fairly be used in respect not only of dispositions which are effective by the words of the instrument creating them, but of those which are effected by the subsequent execution of a power created by the instrument in question. A deed of appointment would do nothing of itself, and only owes its vitality to the instrument creating it. It is surely under such circumstances no stretch of language to say that property the right to direct the application of which is created by deed A, but the specific direction of which is affected by deed B, passes under (not by) deed A.” On the other hand, in Attorney-General v. Earl of Selborne (85 L. T. Rep. 714; (1902)

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1 K. B), also a revenue case, where by a settlement made by a
father an estate was conveyed to such uses as the father and son
should by deed jointly appoint, and in default of appointment to
the use of the father for life, with remainder to the son in fee
simple, in case he should survive his father, with a gift over in
certain events, and by a subsequent deed the father and son
jointly appointed the estate to the son in fee. Held, by the
Court of Appeal, that the son took the estate by a new title by
the deed of appointment. In the course of his judgment
Lord Justice Stirling said "As a general rule, there can be no
question that the exercise of a power of appointment divests the
estates limited in default of appointment and creates new
estates." And in Sweetapple v. Horlock (41 L. T. Rep. 272;
11 Ch. Div. 745) Jessel, M.R. held, notwithstanding some
conflict of authority, that the appointee took a new estate,
although the interest under the appointment did not differ from
that which was conferred on him in default of appointment. The
point recently came before Mr. Justice Joyce in Re Marquis of
Bath's Settlement; Thynne v. Stewart (111 L. T. Rep. 153).
There a testator, who had a power of appointing portions
contained in his
marriage settlement, appointed
sum of £20,000 80 raisable by portions to his three
daughters in equal shares, and, after bequeathing various
legacies free of legacy and estate duties, by clause 8 he bequeathed
certain moneys and securities to trustees upon trust thereout to
pay his funeral and testamentary expenses, "including estate
duty on everything passing under this my will." Held, that the
daughters took "by virtue of" the will, and that their shares
passed under the will, and that the estate duty payable upon the
portions fund was payable out of the property disposed of by
clause 8 of the will. Having regard to the foregoing decisions
in dealing with property derived under a succession of instru-
ments-whether by way of appointment or otherwise-it is very
desirable to refer to each of such instruments.

Foreclosure-Courts (Emergency Powers) Act 1914.

IT may be well to remind practitioners that by reason of sect. 1 (1) (b) of 4 & 5 Geo. 5, c. 78, a mortgagee cannot foreclose or realise his security (except by way of sale by a mortgagee in possession) without leave of the court, who, if of opinion that time should be given to the debtor on the ground that he is unable immediately to pay by reason of circumstances attributable directly or indirectly to the war, may stay execution, or defer the operation of the mortgagee's remedies as aforesaid for such time and subject to such conditions as the court thinks fit: (see sect. 1 (2). Whether such leave ought to be obtained before the mortgagee issues his writ or originating summons for foreclosure, or only before obtaining any order thereon, was not clear; but it has now been decided by Mr. Justice Warrington, that no application is necessary previous to issuing the writ: (see Re Farnol, Eades, Irvine, and Co. Limited; Boyd Carpenter v. The Company, 138 L. T. Jour. 11). The mode of application to the court under sect. 1 (1) (b) is by originating summons.




Shipping-St-amships Crossing-Collision-Admission of fresh
Evidence after Trial displacing Inference drawn by Judge as to
Place of Collision-Information admittedly establishing
Inaccuracies in Chart-Jurisdiction of final Tribunal to review
findings of Fact in Light of fresh Evidence.

Appeal and cross appeal against orders of the Court of Appeal on appeal by both parties from a decree of Sir Samuel Evans, P. in actions, which were tried together, brought respectively by the Oceanic Steam Navigation Company, the owners of the Olympic, against Commander W. F. Blunt, the captain of H M.S. Hawke, in respect of damage suffered by the Olympic due to a collision on the 20th Sept. 1911 in the Solent between that vessel and His Majesty's cruiser Hawke, and by the Commissioners for Executing the Office of Lord High

Admiral of the United Kingdom against the owners of the Olympic in respect of damage suffered by the Hawke. The President found that the collision was solely due to the navigation of the pilot compulsorily in charge of the Olympic. Both parties appealed to the Court of Appeal. The Court of Appeal subsequently gave leave to the owners of the liner to call evidence before an examiner as to the finding of the forefoot of the cruiser and other wreckage, with a view of showing that the collision did not take place at the spot fixed upon by the President; and, further, it was agreed by the parties that the Admiralty charts inaccurately marked the posi tion of the buoys, on the position of which the President had based his calculations as to the relative course the vessels were steaming. The Court of Appeal dismissed the appeal and crossappeal.

Held, after consideration, that although in an ordinary case findings of fact would not be reviewed by this House, yet, the Court of Appeal having considered the fresh evidence, their Lordships thought it necessary to examine it closely and to permit the interpretation placed on it by the Court of Appeal to be challenged by counsel. In their opinion, however, the decision arrived at by the court below was the right one, and the appeals would therefore be dismissed.

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Bankruptcy- Married Woman carrying on Trade or Business-
Final Judgment in Action for Tort-Trade Debt-Bankruptcy
Notice-Bankruptcy and Deeds of Arrangement Act 1913 (3 & 4
Geo. 5, c. 34), s. 12. sub-ss. 1, 2.

The debtor was a married woman who was carrying on in
her own name and on her own behalf the business of a carter
and contractor. By reason of the negligence of a servant of
the debtor then employed by her in connection with her
business of a carter and contractor, the husband and father of
the judgment creditors suffered personal injuries which
resulted in his death. The servant having thus rendered
the debtor liable in an action for tort, the judgment
creditors on the 3rd July 1914 obtained final judgment
against the debtor under the Fatal Accidents Act 1846.
That final judgment was made the foundation of a bankruptcy
notice against the debtor, which was issued on the 7th July
1914. A motion was made to set aside the bankruptcy notice
on the ground that at the date of the issue thereof the debtor
was not carrying on a trade or business. On the 28th Sept. 1914
it was decided by Mr Registrar Hood that though the debt in
respect of which the final judgment was ob ained could not
properly be called a trade debt, it was an obligation incurred in
the course of the conduct of the business of the debtor; and
that it came therefore within sect. 12 of the Bankruptcy and
Deeds of Arrangement Act 1913. The motion was accordingly
dismissed with costs. The debtor appealed.

Held, that the debt was in connection with an obligation arising out of the business which the debtor was carrying on. Appeal dismissed.

[Re Allen; Ex parte Shaw. Ct. of App.: Lord Cozens.
Hardy, M.R., Kennedy and Swinfen Eady, L JJ. Nov. 6.-
Counsel: G. R Blanco White; Lincoln Reed. Solicitors:
T. Blanco White; Adler and Perowne]
Common-Town Moor-Herbage Rights of Freemen - Fair "-
Roundabouts and Shows-Damage to Herbage-Authority of
Corporation to let-Consent of Freemen.

A corporation were the owners of the soil of the Town Moor.
The freemen and resident widows of freemen of the town had
the right of depasturing two milch cows each on the moor.
The freemen and resident widows of freemen were represented
by a committee of stewards and wardens. Without the
consent of that committee, the corporation gave a licence to
the defendants (who were showmen) to bring roundabouts and
other contrivances for amusement on to a specified part of the
moor at a period known as the temperance festival. Thereupon
the committee brought an action against the defendants for
an injunction to restrain them from bringing their roundabouts
&c., on to the moor. The question was whether the corporation,
on the construction of the Town Moor Act 1774 and the
Newcastle-upon-Tyne Improvement Act 1870, had authority to
give this licence without the consent of the committee.
It was decided by Neville, J. (111 L. T. Rep. 370) that, by virtue
of the Act of 1774, fairs and horse races might be held on the
moor; that by sect. 8 of the Act of 1870, with the consent of
the committee, other shows, &c., might be held; but that the
temperance festival was not a fair; and that the corporation
had no authority to give to the defendants the licence without

the consent of the committee. His Lordship decided, therefore, that the committee were entitled to the injunction claimed by them, the defendants being in the position of trespassers, and that the claim for damages was well founded. The defendants appealed.

Held, that the injunction had been rightly granted; and that the evidence amply justified the award of damages. Appeal dismissed.

[Walker v. Murphy. Ct. of App.: Lord Cozens-Hardy, M.R., Kennedy and Swinfen Eady, LJJ. Oct. 19, 20, and Nov. 6.Counsel: Peterson, K.C. and Dighton Pollock; Upjohn, K.C., Jenkins, K.C. and Stuart Moore. Solicitors: Col yer-Bristow, Curtis, Booth, Birks, and Langley, agents for A. M. Oliver, Newcastle upon-Tyne; J. H. Pitchforth, agent for Arnott, Swan, and Walker, Newcastle-upon-Tyne.]

Estoppel-Creation of, by Recital in Deed-Applicability of Doctrine to Easement-Joinder of additional Defendant under Misapprehension of Law.

Appeal by the plaintiff from the judgment of the Divisional Court (Bray and Lush, JJ.), reported 109 L. T. Rep. 976. On the 7th May 1897 W. sold a plot of land, on which was situated a cottage, to his wife, and, by the deed effecting the sale, granted to her, her heirs, and assigns a right of way over an adjoining plot of land belonging to him. By a deed dated the 8th May 1897 Mrs. W. mortgaged the cottage, and on the 25th May 1907 W. sold the adjoining plot of land to the plaintiff, and, with a view to extinguishing the right of way. Mrs. W. joined in the deed of conveyance. The deed contained a recital to the effect that under and by virtue of the deed of conveyance to her of the 7th May 1897 she was entitled to the right of way for herself, her heirs, and assigns, and that it had been agreed for her to join in the deed of conveyance to the plaintiff for the purpose of releasing the hereditament thereby conveyed from such right of way. The mortgagees were not parties to the deed, and the mortgage was not recited or referred to in it. Mrs. W. died on the 10th Dec. 1907, and W. died on the 18th Nov. 1909, the second defendant, R., being the executor of both. After the death of W. and his wife, the mortgagees were paid off and the mortgaged premises reconveyed to R. by a deed of the 14th March 1910. By a further deed of the 25th March 1910 R. conveyed the cottage to the defendants Mr. and Mrs. M., and by the same deed granted to them the same right of way over the plaintiff's land which had been released by Mrs. W., the release not being mentioned in the deed and none of the defendants having notice of it The defendants Mr. and Mrs. M. claimed to have and use the right of way. The plaintiff obstructed the user, and, the defendants having removed the obstruction, the plaintiff brought an action of trespass against M. and his wife and joined R. as a party, claiming as against him damages for breach of covenant for title or for quiet enjoyment of it should it be held that the defendants M. were entitled to the right of way.

Held, that the plaintiff had by the deed of the 25th March 1907 acquired a release of the right of way. Held (Pickford, L.J. dissenting, that the words of the recital in the said deed were sufficiently precise to estop R from asserting that the right of way was not extinguished. Appeal allowed.

[Poulton v. Moore and others. Ct. of App.: Buckley, Phillimore, and Pickford, L.JJ. Oct. 29 and 30.-Counsel: Cozens: Hardy, K.C. and W. A. Greene; Morton, K.C. and S. L. Porter. Solicitors: Willis and Willis, for A. Lionel Lane, Gloucester; C. T. Courtney Lewis, for Langley, Smith, and Son, Gloucester.] Local Government-Sewer Authority-Defective Gully-Negligence -Metropolis Management Act 1855 (18 & 19 Viet c. 120, ss. 68, 69, 96-Metropolis Management Battersea and Westminster) Act 1887 (50 & 51 Vict. c. 17), s. 4-London Government Act 1899 (62 & 63 Vict. c. 14), s. 4.

Defendants' appeal from a decision of Horridge, J. (sitting with a jury on further consideration, reported 110 L. T. Rep. 385; (1914) 2 K. B. 89. By an Act of 1955 the W. D. B. W. were constituted the road and sewer authority for a district which included the L.-road, and in 1883 they constructed a gully with a grating in connection with a sewer in that road. The construction of the gully was negligently executed and remained defective. By a statute of 1887 it was enacted that the parish of St. M, B., should cease to be united with the parishes mentioned in sched. B. of the Act of 1855 as forming part of the W. district, and that the Act of 1855 should be read as if the parish had been named in Part 2. sched. A, of the Act, and that the vestry of the parish should become a body corporate. The vestry and the parish of St. M., B., thereby became the sewer and highway authority of the L.-road. By the Local Government Act 1899, s. 4, the vestry of the parish of St. M., B., became the defendant corporation. Whilst riding a bicycle along the L-road the plaintiff was injured owing to the defective condi. tion of the gully, and brought an action for damages

against the defendants as highway and sewer authorities. Horridge, J. held that sect. 4 of the statute of 1887, did not transfer to the vestry of the parish of St. M., B., any existing liability of the W. D. B. W. as highway authority in respect of the defective gully, and therefore no liability in connection with it was transferred to the defendants by sect. 4 of the London Government Act 1899, but that the defendants were liable as sewer authority for not repairing the defect in the gully.

The Court of Appeal ordered a new trial, on the ground that the trial of the action had been unsatisfactory.

[Papworth v. Mayor, &c., of Battersea. Ct. of App.: Buckley, Phillimore, and Pickford, L.JJ. Oct. 30, Nov. 3, 4, and 5.-Counsel: Campbell, K. C. and Warren; Fitch. Solicitors: P. Caudwell; W. W. Young, Son, and Ward.]

Moratorium-Postponement of Payments Act 1914 (4 & 5 Geo. 5, c. 5) -Proclamation of the 3rd Sept. 1914-Moratorium not applicable to Contracts made after the 4th Aug. 1914.

Defendants' appeal from a decision of Scrutton, J., at chambers. The plaintiff, by a specially endorsed writ, claimed money due from the defendants under contracts made at a date subsequent to the 4th Aug. 1914. By the Postponement of Payments Act 1914 His Majesty had power by proclamation to authorise the postponement of any payment in pursuance of certain contracts .. subject to such conditions as might be specified in the proclamation. By clause 2 of the proclamation of the 3rd Sept. it was provided that the proclamation of the 6th Aug. 1914 as extended by the proclamation of the 12th Aug. should apply to paymen's which became due and payable on and after the 4th Sept., and before the 4th Oct. "whether they become so due and payable by virtue of the said proclamation or otherwise "). It was contended for the defendants that the terms of clause 2 of the proclamation of the 3rd Sept. extended the moratorium to contracts made after the 4th Aug.

Held, that there was nothing in the proclamation of the 3rd Sept. to alter the class of contracts payment in respect of which was to be affected by the moratorium, and that therefore the moratorium was not extended so as to apply to contracts made after the 4th Aug. Decision of Scrutton, J.


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[Softlaw v. Morgan and another. Ct. of App.: Buckley, Phillimore, and Pickford, L.JJ. Nov. 9.-Counsel: for the defendants, S. Lynch; for the plaintiff, E. W. Han sell. Solicitors: R. N. Appleyard; C. R. Woolley.] Railway Company - Negligence Unsafe Premises· Duty to Persons using Station. Appeal by the defendants from a decision of the Divisional Court, reported 110 L. T. Rep 306. An action was brought by the plaintiff against the defendants to recover damages for negligence in the following circumstances: The plaintiff had teen in the habit of either going himself or sending his man with a cart to the defendants' railway station for the purpose of dispatching and receiving goods, both the pla ntiff and his man being well acquainted with the station. The yard where the goods office was situated had on its boundary a sloping bank, at the bottom of which was an open culvert. On the occasion in question the plaintiff's driver drove his horse and cart up to the door of the office and got out, leaving the horse and cart unattended and hitching the reins over a lamp at the back of the cart. He went into the office, and, after remaining there for some minutes, came out again, when he found that the horse on be ng left alone had backed the cart, from some unexplained reason, until the wheels had gone over the bank, with the result that the horse was dragged backwards with the cart into the culvert, sustaining injuries which necessitated its being killed. The Divisional Court held that the duty of a ra lway company to persons using its premises was not confined to taking reasonable care to prevent damage to them from unusual danger or of warning them of the unusual danger, but it was at least a duty to take reasonable care that their premises were reasonably safe for persons using them in the ordinary and customary manner and with reasonable care. The court differed upon the question whether there was any evidence of the breach by the defendants of their duty as defined above. The defendants appealed.

Held, that there was no evidence of any breach on the part of the railway company of any duty which they owed to the plaintiff. Appeal allowed.

[Norman v Great Western Railway Company. Ct. of App.: Buckley, Phillimore, and Pickford, L.JJ. Nov. 5 and 6.-Counsel for the appellants, chiller, K.C. and Clive Lawrence; for the respondent, Sanderson, K.C. and H. Morris. Solicitors: for the appellante, L. B. Page; for the respondent. Smith, Rundell, and Dods, agents for Morgan, Bruce, and Nicholas. Pontypridd.]

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Banking Account-Fun's paid into generul Account-Drawings
for private Purposes-Subsequent Payments in and Drawings-
Bankruptcy-Charge on Bank Balance-Rule in Clayton's Case.
This was an action brought by the plaintiff company against
the defendant, who is the trustee under an administration order
in bankruptcy of one W., in which they claimed to have a
charge on the credit balance at W.'s binkers at the time of his
death. The facts were these: The plaintiff company sold its
business to W. under an agreement for sale whereby W. was
to get in the book debts of the business then owing, and on or
before a certain date to pay over to the plaintiff company all
the moneys received by him on account of the book debts up
to an amount equal to the gross amount of the debts owing
on a particular date, and thereafter all the debts then out-
standing were to belong to the purchaser. The gross amount
of book debts to be paid to the plaintiff company under the
agreement was about £600. W. got this in and paid
£455 18s 11d., part thereof, into his private general account
at his bankers. In the course of the next two days
he had drawn out all moneys standing to his credit
on his account, except a sum of £25 18s., and had applied it
all to his own purposes, and had not paid the plaintiff company
as agreed. He subsequently operated on this account, paying
in and drawing out moneys of his own, and at his death there
was a credit balance of £358 5s. 5d. thereon This was the
balance on which the plaintiff company claimed a charge.
Counsel for the plaintiff company said the rule in Clayton's
case did not apply to such a case as this. All the moneys paid
in at whatever time to this account should be clothed with the
trust to pay the plaintiff company the £455 188. 11d which
belonged to them. He relied on Re Hallett's Estate; Knatch-
bull v. Hallett (42 L. T. Rep 421; 13 Ch. Div. 696).

Held, (1) that the trust moneys in this case could not be
traced into the common fund standing to W.'s credit at his
death to an extent of more than £25 18s., as, with the excep-
tion of that sum, all the trust moneys had been drawn out by
W. and applied to his own purposes; (2) that, the account
being a private general account, it was not possible to attribute
to W. by the mere payment in by him thereto and subsequent
partial drawing for his own purposes that he intended to clothe
those moneys which remained with a trust in favour of the
plaintiff company; (3) that the rule in Re Hallett's Estate (ubi
sup.) could not be extended to cover such a case as this;
and 4) that the plaintiff company were only entitled to the
£25 188.

[James Roscoe (Bolton) Limited v. Winder. Ch. Div.:
Sargant, J. Oct 27.-Counsel: Martelli, K.C. and E. W.
Hansell; Cyril Atkinson, K.C. and Frank S. Foley. Solicitors;
Woodcock, Ryland, and Parker, for Russell and Russell, Bolton:
D. H. Pettitt, for F. W. Brockbank, Bolton.]
Company-Subscriber to Memorandum-Mistake as to Number of
Shares-Winding-up-List of Contributories-Application to


S. B. agreed to sell his business to a company in consideration of 2500 shares, but subsequently agreed to take 2000 shares. In signing the memorandum and articles he observed that the number of shares opposite his name was 2500 instead of 2000. He was told that this was a mere formality and that he would not be liable upon them. He was in fact entered on the company's register as holding 2000 shares, and the extra 500 shares were not allotted to him, nor were they entered in the return to the Registrar of Joint Stock Companies. Upon the winding-up of the company the liquidator entered S. B. upon the list of contributories as the holder of 500 unpaid shares. S. B. now applie to the court to vary the list by excluding his name. Held, that by signing the memorandum S. B. had made himself liable for the full amount, and that the court could not rectify the list.

[Re N. H. E. Company Limited. Ch. Div.: Neville, J. Nov. 6-Counsel: A. L. Morris; Bovill. Solicitors: Harris, Chetham, and Cohen; W. H. Bellamy.]

Liability of Receiver in Debenture holder's Action for Rent of
Premises of which he is in Poss ssion-ludgment in Action by
Landlord for Recovery of Possession against his Tenant-No
Assignment to the Company-Judgment suspended upon Terms
which are not complied with.

Premises were cemised by an underlease of the 13th Nov. 1912 to E, who took the lease as trustee for a company. There was no assignment of the lease to the company. On the 7th July 1913 the company gave to the plaintiff an equitable charge for £2000 and issued to him debentures. A debentureholder's action was commenced, and on the 17th Sept. S. was appointed receiver and manager and entered into possession of the premises. On the 21st Nov. a writ was issued by the landlord against E. to recover possession, and on the 20th Jan. 1914 judgment was given in default of defence. On the

7th Feb., upon E.'s application, it was ordered that if the receiver paid a year's rent, mesne profits to date, and costs before the 25th March judgment for possession should be set aside. Nothing was paid under this order, and upon the 24th March the receiver gave up possession. The landlord now applied in the debenture-holder's action that the receiver should pay the rent due to the 25th March out of funds in his hands as receiver and manager, or, in case of deficiency, personally. It was contended on behalf of the landlord that, at all events from the date of the writ, the receiver was in possession as a trespasser and must pay rent or account for mesne profits, and that therefore the case did not fall within the principle of Hand v. Blow (85 L. T. Rep. 156; (1901) 2 Ch. 724).

Held, that the landlord, having obtained judgment against E., could not recover against the receiver, and that in any event the operation of the judgment was suspended by the subsequent order of the 7th Feb. 1914 until the 25th March, and that the case was covered by Hand v. Blow (ubi sup) and Re J. W. Abbott and Co. (48 W. N. C. (1913) 284), and the application was dismissed with costs.

[Re Westminster Motor car Garage Limited; Boyers v. The Company. Ch. Div.: Eve, J. Nov. 10.-Counsel: Jessel, K.C. and Northcote; Clayton, K.C. and Gavin Simonds. Solicitcre: Bircham and Co.; W. G. A. Edwards.]

Liquidation of Building Society-Class of Shareholders paid by Liquidator in full under Decision of Court of First Instance affirmed by Court of Appeal-Decisions of Courts below reversed by House of Lords-Right of Liquidator to recover Money overpaid.

Summons by the liquidator of the Birkbeck Permanent Building Society (the official receiver) asking that certain "B" shareholders in the society who had been paid 20s. in the pound in the liquidation might be ordered to repay 4s. in the pound, by which amount they had been overpaid. The facts were as follows: The society had carried on a banking business which by both the court of first instance and the Court of Appeal had been held to be ultra vires, with the consequence that the shareholders of the society obtained priority over the depositors in the banking business Subsequently a scheme of arrangement had been entered into between the "A" shareholders and the depositors, which scheme was sanctioned by both the court of first instan e and the Court of Appeal, but the "B" shareholders were not parties to the scheme After the decision of the Court of Appeal, the liquidator paid the "B" shareholders in full. The depositors afterwards appealed to the House of Lords as against the "B" shareholders. The House of Lords reversed the decisions of the two courts below and held that the shareholders and depositors must rank pari assu in the liquidation. The liquidator now sought to recover the balance by which the "B" shareholders had been overpaid as money paid under a mistake.

Held, that the court ought to order the money overpaid to be returned.

[Re Birkbeck Permanent Building Society. Ch. Div.:
Ne ille, J. Nov. 3.-Counsel: Cecil Turner; Warwick Draper ;
JF. W. Galbraith. Solicitors: Freshfields; Foord and Son
Rubinstein, Nash, and Co.]

Mortgaged Property, Sale of-Covenant by Purchaser to indemnify
Vendors against Nonpayment of Mortgage Debt and Interest-
Benefit of Covenant not assignable.

By a mortgage dated the 20th March 1900 property was
mortgaged to the plaintiff to secure £300 and interest at 10 per
cent., and the mortgagor covenanted to pay principal and
interest. The mortgaged premises were subsequently charged
with two further sums of £100 at like interest. The mort-
gagor died on the 13th March 1904 insolvent, and by convey-
ance of the 29th Sept. 1904 his executors conveyed the
mortgaged premises, with other mortgaged property, to the
defendant, who covenanted to pay to the respective mortgagees
the principal and interest due on the respective mortgages
as and when the same should be lawfully demanded, and to
keep the vendors and the estate and effects of the mortgagor
indemnified against the nonpayment of the principal and
interest due under the respective mortgages. The defendant
entered into possession of the mortgaged premises and paid
the interest on the mortgage down to Sept. 1913. He subse-
quently gave notice to the plaintiff that he declined to make any
further payment. By indenture dated the 30th Dec. 1913 the
executors of the mortgagor assigned to the plaintiff, who had
applied for payment of the principal and interest, the full
benefit of the covenant for indemnity contained in the deed of
the 29th Sept. 1904, and the full benefit of all rights of action
of the executors against the defendant for payment of such
principal and interest. The plaintiff alone sued the defen-
dant for the principal and interest due.

Held, that the covenant to indemnify was a personal covenant of which the benefit could not be assigned, and that the plain iff alone could not maintain the a tion.

[Rendall v. Morphew. Ch. Div.: Eve, J. Nov. 4.-Counsel : Clayton, K.C. and C. Lyttelton Chubb; Maugham, K.C. and R. Leigh Ramsbotham. Solicitors: King and Jackson; Turner and McCandlish.]

Practice-Foreclosure-Foreclosure absolute-Order by Judge in Person-Courts (Emergency Powers) Act 1914 (4 & 5 Geo. 5, c. 78, s. 1 (1) (b).

On a foreclosure action coming on for hearing before Warrington, J. His Lordship in giving the ordinary judgment for foreclosure nisi, after referring to his decision in Re Farnol, Eades, Irvine, and Co. Limited (LAW TIMES, Nov. 7, 1914), and an objection that there had been no previous application to the court under the Courts (Emergency Powers) Act 1914, said that he had discussed the application of the Act to foreclosure procedings with other judges of the Chancery Division of the High Court, and that, in cases coming before Sargant, J. or himself, a judgment for foreclosure would have the following words added at the end, "but no order for foreclosure absolute shall be made so long as the Courts Emergency Powers) Act 1914 is in force, except by the judge in person.'

[Behagg v. Palmer. Ch. Div. Warrington, J. Nov. 9.Counsel: Edward Ford; Ashton Cross. Solicitors: W. P. Neul. Guillaume and Sons.]

Workmen's Compensation-Employer insured against ClaimsInsolvency of Employer-Insolvency of Insurance CompanyRight of Workman to prove for Compensation in Winding up of Employer Company-Right of Workman to prove for Compensation in Winding up of Insurance Company-Workmen's Compensation Act 1906, s. 5 (1) (2) (3) (5).

Motion to discharge an order of the Registrar of Companies (Winding-up). The facts were as follows: A workman in the employment of a company had been injured, and under an agreement duly registered in the County Court had been receiving compensation at the rate of £1 a week. The employer company was insured against such claim with an insurance company. The employer company went into liquidation, and shortly afterwards the insurance company also went into liquidation. The workman proved for the capitalised value of his compensation in the liquidation of the employer company, but the liquidator disallowed the claim on the ground that the workman's redress was, under sect. 5 of the Workmen's Compensation Act 1906, confined to recovering the compensation from the insurance company. The registrar varied this order by allowing the workman to prove as an ordinary creditor for his compensation in the winding up of the insurance company and for any balance thereof still remaining unsatisfied in the winding-up of the employer company, but the registrar held that any preferential payment up to £100 in the winding-up of the employer company was expressly excluded by the terms of sect. 5 (5) The workman moved to discharge this order, and the employer company gave cross-notice of appeal that it might be declared that the workman had no right of proof at all against them.

Held, that the workman's right of proof against the employer was impliedly taken away by sect. 5 (1) and (2) of the Act and consequently the workman's appeal must be dismissed and the decision of the registrar reversed, and the company succeeded on their cross-appeal.

[Re Pethick, Dix, and Co. Limited. Ch. Div.: Neville, J. Nov. 3.-Counsel: Herbert Barclay and H. Fenton; W. M. Hunt. Solicitors: J. Scott Duckers; Jaques and Co., for Watson, Son, and Smith, Bradford.]


Bill of Sale-Husband and Wife-Grant by Husband-Joinder of Wife as Party-Wife having no Interest in Goods-Validity of Bill of Sale-Bills of Sale Act (1878) Amendment Act 1882 (45 & 46 Vict. c. 43), s. 9.

Appeal from the decision of His Honour Judge Stanger sitting at the Birkenhead County Court. The plaintiffs recovered judgment in an action in the County Court against one L., who was the grantor of a bill of sale to J. and H. Upon the plaintiffs levying execution on the goods of the judgment debtor, the grantees of the bill of sale claimed the goods thereunder. Upon the trial of an interpleader issue it was contended on behalf of the judgment creditors that the bill of sale was void under sect. 9 of the Bills of Sale Act 1882 as not being made in accordance with the form annexed to the schedule of the Act by reason of the fact that the wife of L., who had no interest in the goods, was made a party to the bill and executed it with the object that in the future she might not be able to say that the goods belonged to her. A further objection was taken that the affidavit accompanying the bill of sale did not

set out the residence and occupation of the wife. The learned judge held that the bill of sale was valid.

Held, that the decision of the learned judge was right; that the joining of the wife as a party to the bill of sale was mere surplusage and did not give the bill of sale a legal consequence or effect either greater or smaller than would attach to it if drawn in the form sanctioned by the Act. Held, also, that, the wife not being a person making or giving the bill of sale within sect. 102) of the Act of 1878, nor a grantor thereof within sect 10 of the Bills of Sale Act 1882, there was need for her name to be inserted in the affidavit.

[Brandon Hill Limited v. Lane and another; Jones and others, Claimants K. B. Div.: Horridge and Rowlatt, JJ. Nov. 3. -Counsel: H. Simmons; Compston, K.C. and W. Procter. Solicitors: H. Moore; Harling, Fisher, and Houghton, Liverpool.]

Solicitor and Client-Bill of Costs against Client-Statute of Limitations-Acknowledgment of Indebtedness by ClientFailure of Solicitor to disclose Effect of Advantage to Solicitor-Invalidity of Acknowledgment.

Appeal from the decision of a learned official referee. The plaintiff was the widow and executrix of one L., who died on the 29th May 1912, and the defendant was a solicitor who had acted for L. for many years before his death, and who was employed by the plaintiff to wind-up the estate of the deceased. Bills of costs were owing by L. to the defendant at the time of his death, covering a period from June 1889 to May 1912, but none of the bills of costs had ever been delivered to L. during his lifetime. In July 19 2 and Jan. 1913 the plaintiff gave acknowledgments to the defendant of the indebtedness of the estate to him in respect of certain of the items appearing in the bills of costs, and in Oct. 1912 paid a sum on account of such indebtedness. On none of these occasions did the defendant point out to the plaintiff that a considerable portion of the debt due was statute-barred or inform her as to the effect of giving acknowledgments in respect of such debts or of making a payment upon account, nor did he insist upon her taking independent advice in regard to these transactions. The plaintiff subsequently brought an action against the defendant in which she claimed an account of all dealings and transactions by him with her late husband. In the course of such proceedings the plaintiff contended that the defendant was barred from recovering all those items in his bill of costs prior to April 1907. The learned official referee held that the acknowledgments given by the plaintiff were sufficient to take the items to which they referred out of the operation of the Statute of Limitations, and gave judgment for the defendant for a portion of the amount claimed by him. The plaintiff appealed.

Held, that the defendant in obtaining from the plaintiff acknowledgments which would defeat the operation of the Statute of Limitations in regard to the statute-barred debts was securing an advantage to himself as the result of the fiduciary relation in which he stood to the plaintiff, and that the acknowledgments consequently could not stand, the result being that the items in the account to which they related must remain statute-barred.

[Lloyd v. Coote and Ball. K. B. Div.: Horridge and Rowlatt, JJ. Nov. 3 and 4. Counsel: Parfitt, K.C. and Ricardo; Rawlinson, K.C. and Moresby. Solicitors: Churchman, Perkins, and Co.; Mills and Morley.]


Husband summoned for aggravated Assault-Offences against the Person Act 1861 (24 & 25 Vict. c. 100), ss. 42, 43-Conviction -Second Summons for Separation Order-Summary Jurisdiction (Married Women) Act 1895 (58 & 59 Vict. č. 39)-No Appeal against Conviction to Divorce Divisional Court.

Appeal by W. B. from an order of the Bicester justices which adjudged him to have unlawfully assaulted his wife, A. C. B., on the 19th July 1914, contrary to sect. 43 of the Offences against the Person Act 1861, and by which a fine of £10, with costs, or two months' imprisonment, was inflicted. Immediately upon this conviction the wife's solicitor applied for a summons under the Summary Jurisdiction (Married Women) Act 1895 for an order of separation. This was issued and served at once upon the husband. Having heard the wife's evidence as to the means of both parties, the justices granted the order. The husband appealed, the grounds set forth being (1) that the respondent husband) was not guilty of the said offence; (2) that the said conviction was against the weight of the evidence; (3) that the said conviction was bad in law; and (4) that the said justices in making the said order exceeded their jurisdiction, and the said order was invalid. For the husband it was contended that the justices had no jurisdiction to convict him of an aggravated assault; that the

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