« EelmineJätka »
the Attorney-General, and the rule on its construction did not apply to him. Appeals allowed.
[Rex v. Amendt; Rex v. Taylor. Ct. of App.: Lord Reading, C.J., Swinfen Eady, L.J., and Bray, J. March 5.-Counsel: for the Crown, Sir John Simon (A.-G.), Sir Stanley Buckmaster (S.-G), and F. F. Daldy; for the respondent Amendt, Ryde, K.C. and C. E. Jones; for the respondent Taylor, Ryde, K.C. and Curtis Bennett. Solicitors: Solicitor for Customs and Excise; Edward Moore.]
Highway Extraordinary Traffic-Repair-Highways and Locomotives (Amendment) Act 1878 (41 & 42 Vict. c. 77), s. 23-Locomotives Act 1898 (61 & 62 Vict. c. 29), s. 12.
Plaintiffs' appeal from a decision of Lush, J. The defendant owned a stone quarry adjoining a main road, and from June 1912 to May 1913 stone from the quarry was drawn along the road in trucks by traction engines of the defendant. The defendant sent along the road a little more than half the entire traffic of the road. The road was adapted to traction traffic, and had been used for it for several years. The stone carried from the quarry over the road had increased from about 7000 tons in 1909 to about 17,000 tons in 1912. Other persons, including the plaintiffs, the local authority, conveyed stone over the road in a similar manner. The plaintiffs brought an action under sect 23 of the Highways and Locomotives (Amendment) Act 1878, as amended by sect. 12 of the Locomotives Act 1898, to recover £1233, the sum certified by the plaintiffs' surveyor as being the amount of extraordinary expenses incurred in repairing the road, which they alleged was damaged by the extraordinary traffic sent over it by the defendant. Lush, J. held that the defendant's traffic was not extraordinary. The plaintiffs appealed. Counsel for the defendant were not called upon to argue.
Held, that the question was a mere question of fact, on which the court was not disposed to differ from the finding of Lush, J. The numerous authorities cited on behalf of the appellants were only illustrations of the findings of different judges in different circumstances, and were of little assistance. There had been here no extraordinary user by the defendant as contrasted with the ordinary user of the road as a whole by all who used it within the expressions used by Bowen, L.J. in Hill v. Thomas (69 L. T. Rep. 555; (1893) 2 Q. B. 342). Appeal dismissed.
[Ledbury Rural District Council v. Lady Henry Somerset. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 8, 9, and 10.-Counsel: for the plaintiffs, A. Powell, K.C. and H. G. Farrant; for the defendant, Charles, K.C. and J. G. Hurst. Solicitors: Williamson, Hill, and Co., for Russell and Co.. Ledbury; Joynson-Hicks and Co., for C. E. Lilley, Ledbury.]
Inclosure-Award by Commissioners-Title to Lands allotted— Evidence of Title-Ancient Encroachment-Claim for Recovery of Possession of the Land-Inclosure Act 1845 (8 & 9 Vict. c. 118), ss. 49, 50, 52, 105.
Appeal by the defendant against an order of the King's Bench Division reversing a decision of the learned County Court judge. The plaintiff gave a cross-notice asking that judgment be entered for the plaintiff. By his particulars of claim the plaintiff claimed and demanded possession of a piece or parcel of land containing three acres situate on the northwest side and against the turnpike or main road on the southwest side at or near Stoborough in the parish of Arne, in the county of Dorset, which said piece or parcel of land was allotted to the Rev. Samuel Richard Capel, then rector of Wareham, by the Inclosure Commissioners for England and Wales by a certain award dated the 10th May 1866. The allotment was made in respect of the rector's right of cutting and carrying away turves and furze from Stoborough Heath. The defendant did not admit the plaintiff's title to the land mentioned in the particulars of claim, and said that the defendant and his predecessors in title had been in possession of the said land for the period of sixty years last past and upwards. He also relied on the defence that the claim was barred by a Statute of Limitations. The County Court judge having given judgment for the defendant on the 16th Feb. 1914, the plaintiff appealed on the ground that, having regard to sects 49, 50, and 105 of the Inclosure Act 1845, the learned judge was wrong in law (1) in holding that the Inclosure Commissioners had not power to adjudicate in respect of and determine the title to the land, and (2) in holding that the title to the land in question was not in fact determined by the Stoborough Heath Inclosure Award dated the 7th May 1866 in the particulars of claim mentioned. The Divisional Court (Ridley and Bray, JJ.) ordered a new trial on the question whether it was an ancient encroachment or not. The defendant appealed and the plaintiff gave cross-notice of appeal.
Held, that the question as to encroachment was for the Inclosure Commissioners, and that, as the defendant had failed to prove that he was in peace ful possession of the land in question for twenty years prior to the date of the award, he could not claim as an ancient encroacher. Judgment must be entered for the plaintiff.
[Blackett v. Ridout Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 5-Counsel for the appellant, Beachcroft; for the respondent, Foa. Solicitors: for the appellant, Peacock and Goddard, agents for Trevanion, Curtis, and Ridley, Poole; for the respondent, Robinson and Bradley, agents for E. S. Clark, Wareham.]
A first mortgage of land belonging to a company was created, and on the security thereof the plaintiff advanced money to the company. But the first mortgage was not registered as required by sect. 93 of the Companies (Consolidation) Act 1908 under a misapprehension as to the necessity of registration of such a mortgage of land under that section. A debenture subsequent in date to the mortgage was issued to a director of the company and duly registered under sect. 93 of the Act. The director at the time of taking such debenture had notice of the mortgage and that it ought to have been registered. The question was whether the first mortgage was entitled to take priority over the debenture and also to take priority over an assignee of the debenture with notice of the mortgage. The distinction suggested by Lord Eldon in Davis v. Earl of Strathmore (16 Ves. 419, at p. 428) as to when the equitable doctrine that a person who registered a mortgage with notice of a prior unregistered mortgage should not be allowed to obtain a priority could be applied was referred to. It was decided by Astbury, J. (137 L. T. Jour. 590) that, the policy of registration provided for by sect. 93 of the Companies (Consolidation) Act 1908 being of the same character as that under the Middlesex Registry Acts and 18 & 19 Vict. c. 15, the decisions under those two Acts of Ford v. White (16 Beav. 120) and Greaves v. Tofield (43 L. T. Rep. 100; 14 Ch. Div. 563) should be followed rather than that of Edwards v. Edwards (34 L. T. Rep. 472; 2 Ch. Div. 291) under the Bills of Sale Acts. That being so his Lordship decided that the first mortgage given to the plaintiff was entitled to priority over the subsequent registered debenture, the holder of which had notice at the time he took such debenture that the mortgage had not been registered, and knew at that time that it was necessary that it should be registered, and was also entitled to priority over the assignee of such debenture.
Held, that the plaintiff's unregistered first mortgage was void as against the subsequent registered debenture, having regard to the provisions of sect. 93 of the Act of 1908; that notice was not material in the case of a creditor; and that it was not fraud to take advantage of legal rights the existence of which might be assumed to be known to the parties interested. Principle established in Edwards v. Edwards (ubi sup.) as to the non-application of the old equitable doctrine of Le Neve v. Le Neve (3 Atk 646) to modern Acts of Parliament approved. Greaves v. Tofield (ubi sup.) distingui hed. Appeal allowed.
[Re Monolithic Building Company Limited; Tacon v. The Company. Ct. of App.: Lord Cozens-Hardy, M.R., Phillimore, L.J., and Joyce, J. Feb. 25 and 26.-Counsel: J. W. Manning; Hon. Frank Russell, K.C. and Lyttelton Chubb. Solicitors: C. B. Cottam; Farrar, Porter, and Co., agents for Bertram R. Yorke, Eye, Suffolk.]
Rating-Waterworks-Purchase of Land-Special AdaptabilityAdded Value to be attributed to Land-Public Body-Method of Borrowing-Practice of taking Percentage.
Appeal by the Metropolitan Water Board from a decision of the Divisional Court (Avory, Rowlatt, and Shearman, JJ.) on a case stated by quarter sessions. The Metropolitan Water Board were the owners and occupiers of certain large reservoirs and other hereditaments situated in the parish of Waltonupon-Thames. By sect. 2 of the Metropolis Water Act 1902 they were established as a corporate body for the purpose (inter alia) of acquiring the undertakings of certain metropolitan water companies. One of these was the Southwark and Vauxhall Water Company, which had, under statutory powers conferred upon them, the right to take certain quantities of water by means of an intake from the river Thames. By sect. 4 of the Southwark and Vauxhall Water Act 1898 the said company were authorised to make and maintain a pumping station and an aqueduct, conduit, or line of pipes in the said parish of Walton-upon-Thames. In 1899 the Southwark Company acquired the land on which were situated the said
pumping station and line of pipes. By sect. 66 of the Metropolitan Water Board (New Works) Act 1911 the powers of the Metropolitan Water Board (as successors in title of the Southwark Company) for the construction and completion of the pumping station and aqueduct were revived and continued, and the said pumping station and aqueduct were duly constructed by the water board in 1911 and were opened and commenced to be used in June of that year. By a supplemental valuation list, confirmed by the assessment committee of the Chertsey Union on the 27th June 1911, the said hereditaments were assessed at £18,000 gross estimated rental and £12,000 rateable value. The water board objected, and ultimately the assessment in respect of the said hereditaments and a dwelling-house erected on the said land in 1912 was fixed at £15,810 gross estimated rental and £10,550 rateable value. The water board appealed to quarter sessions on the ground of being over-rated. The quarter sessions allowed the appeal and reduced the gross value to £11,677 and the rateable value to £7785. They found that the undertaking should be dealt with under the ordinary rules of 5 per cent. for buildings and 4 per cent. for land, and that there was nothing to be added to the assessment in respect of the adaptability of the property in question. The Chertsey Union appealed and the Divisional Court held, following New River Company v. Hertford Union (87 L. T. Rep. 360; (1902) 2 K. B. 597), that it was necessary to take into account the additional value of the land by reason of its special fitness for the purpose for which it was used, and that the case should go back to the quarter sessions for them only to determine what added value, if any, should be attributed to the adaptability of this land for the purpose for which it had been acquired. On appeal the Court of Appeal affirmed the decision of the Divisional Court. Appeal dismissed.
[Chertsey Union Assessment Committee v. Metropolitan Water Board. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 5, 6, and 8.-Counsel for the appellants, Balfour Browne, K.C., Freeman, K.C. and Abady; for the respondents, Page, K.C., Mackenzie, K.C, and Conacher. Solicitors: for the appellants, Walter Moon; for the respondents, Percy H. Webb, agent for Paine, Brettell, and Porter, Chertsey.]
Revenue-Increment Value Duty-Unworked Minerals-Form 4— Value of Minerals-No Estimate returned on Form-Need of Notice irregular — Waiver Substituted separate Return Capital Value-Finance (1909-10) Act 1910 (10 Edw. 7, c. 8), s. 2 (3), s. 23 (1) (2) (4, s. 26.
In 1906 trustees demised a farm to P. for a term, but the mines and minerals were excepted thereout. These were not comprised in any mining lease or being worked. On the 12th Sept. 1910 the trustees' solicitors received a notice, dated the 10th Sept. 1910, requiring the trustees to make a return in the form provided in respect of the farm, and to deliver the return within thirty days from the date of the notice to the appointed officer. The notice stated that the necessary particulars were to be furnished separately as respected each piece of land which was under separate occupation, and that, for the purposes of the valuation, minerals were to be treated as having no value unless the proprietor in his return specified the nature of the minerals and his estimate of their capital value. The notice was accompanied by Form 4 and instructions for making the return, which contained statements similar to those in the notice. The trustees made their return on Form 4, stating, among other things, that the land was let to P.; but in part 2, headed "Additional particulars which may be given if desired," they left the space for the nature and capital value of the minerals blank. The provisional valuation of the official valuer was for the original gross value of £3400, and for the original assessable site value £2610. In Dec. 1910 the trustees sold the farm for £5500, and subsequently conveyed it. Upon appeal these values were slightly raised. The trustees claimed to amend their return by inserting a value for the minerals as on the 30th April 1909, or to deliver a separate return in respect of them, and to have substituted site value; and upon these things being refused, they brought an action against the Attorney-General for a declaration that Form 4 was unauthorised and void; that they were not bound by their return, or not bound by it so far as related to the minerals, and were not bound by the provisional valuation; that they were at liberty to make a separate return in respect of the minerals, and to apply for a substituted site value for them. It was decided by Warrington, J. (111 L. T. Rep. 978) that although the notice was irregular, yet that the trustees had waived the irregularity and were bound by the return that they had made; that Form 4 applied to the minerals as well as to the land, and, as no estimate of the value of the minerals had been given, they must under the Finance (1909-10) Act 1910 be treated as of no value; that the trustees were not entitled to make a fresh return as to the minerals, or to amend their return for the purpose of having a substituted capital value, as,
the minerals having no value there was no value for which a capital value could be substituted. The trustees appealed.
Held, that the trustees were entitled to have a separate provisional valuation of unworked minerals; and that Form 4 was not in the proper form. Appeal allowed.
[Foran v. Attorney-General. Ct. of App.: Lord CozensHardy, M.R., Phillimore, L.J., and Joyce, J. Feb. 17, 18, and March 5-Counsel: Cave, K.C., William Allen, and Pretty ; Sir Stanley Buckmaster (S-G.) and Sheldon. Solicitors: Roy and Cartwright; Solicitor of Inland Revenue.] Revenue-Estate Duty-Settled real Estate-Trust for SalePower-Hereditaments-Appointment in Trust for Sale-Conversion-Reconversion "passing to the Executor as such Finance Act 1894 (57 & 58 Vict. c. 30), s. 9 (1).
By an indenture dated the 28th Nov. 1881 freehold hereditaments were granted by M. O'G. upon trust (with consent) for sale and to stand possessed of the proceeds upon the trusts of an indenture of even date by which trusts were declared for such purposes and in such manner as M. O'G. should by deed or will appoint. By her will dated the 25th Oct. 1999 M. O’G. appointed that the trustees of the settlements of 1881 should stand possessed of the hereditaments, property, money, and securities of whatsoever nature, subject to the trusts of the settlements, upon trust to convey, transfer, and pay the same to her trustees, and the testatrix gave and appointed the same and her other estates upon trust for sale, conversion, and investment, and, subject to an annuity charged upon the hereditaments, upon trust to pay to or permit her husband, F. O'G, during his life to receive the rents and income, and after his death the trust estates were to be held in trust in two moieties as in the will mentioned. The residue was given, subject to testamentary expenses, debts, and legacies, to F. O'G. There was a power of postponement of sale of real estate, which sale was not to be made without his consent. F. O'G. was appointed executor. M. O'G. died on the 12th Jan. 1910. The question arose whether estate duty upon the appointed estates was properly payable out of those estates or out of residuary personalty. For the husband Re Hadley; Johnson v. Hadley (100 L. T. Rep. 54, 56; (1909) 1 Ch. 20) was relied on; for those interested in remainder Re Lord Grimthorpe Beckett v. Lord Grimthorpe (99 L. T. Rep. 679; (1908) 2 Ch. 675) was distinguished. It was decided by Eve, J. (ante, p. 12) that as the testatrix could have exercised her power by appointing the estate to herself as land, which, in that event, could not have vested in her executors as such, the estate duty was properly payable out of the real estate in exoneration of residue. On appeal :
Held, that the estate duty was payable out of the residue, the case being governed by the decision of the Court of Appeal in Re Hadley; Johnson v. Hadley (ubi sup). Re Lord Grimthorpe; Beckett v. Lord Grimthorpe (ubi sup.) distinguished. Appeal allowed.
[Re O'Grady; O'Grady v. Wilmot. Ct. of App. : Cozens-Hardy, M.R., Phillimore, L.J., and Joyce, J. Feb. 25. -Counsel: Clayton, K.C. and C. E. Bovill; Maugham, K.C. and A. J. Spencer (for F. H. L. Errington). Solicitors: Gibson and Weldon, agents for F. W. Romney and Co., Malvern, Darley, Cumberland, and Co.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Company - Winding-up Purchase of Business-Guarantee by Vendor of Profits-Keturn of Part of Purchase Money-Claims by Liquidator and by Sharehviders individually.
A limited company, R., formed in 1913, bought of another company a business. By the contract for sale the seiling company guaranteed that the net profits of the R. Company in respect of the business should not be less than 10 per cent. on the capital of the shares subscribed by the public of an intended issue, and they undertook to pay out of the purchase moneys a sum equal to that percentage into a bank in the joint names of themselves and of trustees for the R. Company to secure the performance of the guarantee, and subject thereto to be for themselves. In June 1914 the sum of £384 6s., being the amount of the percentage, was paid into a bank as aforesaid. In Feb 1914 the R. Company was ordered to be wound-up. It had never paid any dividend or made any profits. Its liquidator claimed the sum deposited as part of the general assets of the company divisible among the creditors. The shareholders, or some of them, claimed it as payable to them individually.
Held, that there was under the contract no liability on the selling company to make the deposit except out of the purchase moneys; that the money deposited was and never ceased to be moneys of the R. Company; that the claim of the shareholders was an attempt to get back part of the capital of the company and that the claim of the liquidator must be allowe 1.
[Re Menell et Cie Limited; Regent-street Fur Company Limited v. Diamant. Ch. Div.: Warrington, J. Feb. 25.
Counsel J. E. Harman; E. M. Winterbotham; W. Higgins; Oddy. Solicitors: Walls, Stallard, and Newton; Hayward and Ram; W. T. Nick.]
Legacy-Construction of Will-Powers given to Trustees in Case of Dispute-Ouster of Jurisdiction of Court-Description of Persons entitled as Legatees-Admissibility of extrinsic Evidence.
R. bequeathed £1000 to an association for the prevention of consumption, and directed that in case of dispute all questions should be referred to the decision of his trustees, whose decision should be binding upon all the parties interested. The associa tion had a branch at L., where the testator resided, and in which, as appeared by extrinsic evidence, he was specially interested. The name of the association was not accurately stated in the will, and the branch claimed the legacy as against the parent association in London,
Held, that it was incompetent for the testator to give legal rights and then direct that those rights should be decided by other persons, as that would be to deprive such persons of their right to resort to the ordinary tribunals of the country, and the direction was therefore unlawful and inoperative. Held, further, that the parent association, and not the branch at L., were entitled to the legacy.
[William Raven; Spencer v. National Association for the Prevention of Consumption. Ch. Div.: Warrington, J. Counsel: Tomlin, K.C. and J. W. Manning; Hughes, K.C. and A Adams; Ward Coldridge, K.C. and MacSwinney. Solicitors: Hasties; Surr, Gribble, and Co.]
Will-Construction-Gift by A to personal Representatives of B. -"As Part of her personal Estate "-Insufficient Estate of B.Taker of personal Estate of B. predeceases A.-Will not Deed -Legal personal Representative of Taker gets Nothing-Estate of B. relieved to that Extent.
Summons to determine certain questions which arose in relation to the bequest of £1000 by L. E. B. to her sister C. F. D. L. E. B. by her will gave, among other legacies, "to my sister K. D. [i.e., C. F. D.] the sum of £500 to be paid to her as soon as may be after my death and also the sum of £1000, but should she die in my lifetime I direct that the said legacy of £1000 shall be paid to her personal representatives as part of her personal estate." C. F. D. bequeathed a sum of money in trust to pay the income thereof to her sister the defendant S. D. during her life and after her decease in trust for her nephew C H. M. absolutely. C. H. M. had died on the 6th July 1913, and the defendant L. S. M. is his legal personal representative. C. F. D.'s estate was wholly insufficient to pay her legacies, and the question accordingly arose as to how this £1000 coming to her estate should be applied. Was a portion of it to go to the legal personal representative of C. H. M. or to the residuary legatee of C. F. D.? The material dates were as follows: Will of C. F. D., the 18th July 1901; will of L. E. B., the 16th March 1911; death of C. F. D., the 21st May 1911; death of C. H. M., the legatee in reversion under the will of C. F. D., the 6th July 1913; death of L. E. B., the 9th Feb. 1914. It was contended that under L. E B.'s will an additional fund was created for the purpose of being applied for the benefit of the various beneficiaries under C. F. D.'s will, including C. H. M., as if that additional fund had formed part of the estate of C. F. D. If the gift by L E. B. had been by deed, the title of C. H. M. would have been complete. The instrument being a will however, is subject to the incidents cf a testamentary gift and liable to be altered or revoked by any fresh testamentary dispositions on the part of L. E. B, and also liable to the risk of failure or lapse in the event of the death of the legatee between the date of the will and the death of the testatrix. There were many cases referred to, including Lord Advocate v. Bogie (70 L. T. Rep. 533; (1894) A. C. 83) and Long v. Atkinson (17 Beav. 471). Cur. adv. vult.
Held, on the authority of Re Richardson (1915) 1 Ch. 353), that the legal personal representative of C. H. M. did not take any interest in any part of the legacy of £1000 which might be appropriated towards satisfaction of the legacy of £800 settled upon S. D. for life with remainder to C. H. M. absolutely, but that D.'s estate was relieved from providing more than an interest for life in the £800 in favour of S. D., although it did not necessarily follow that the residuary legatee of C. F. D. took, for she could not take anything till all the pecuniary legacies under the will of C. F. D. had been paid.
[Re Dashwood; Re Bosanquet; Unwin and another v. Petre and others. Ch. Div.: Sargant, J. March 5 and 9.-Counsel: Attwater; Andrewes-Uthwatt; Austen-Cartmell; Gurdon; Bryan Ferrer. Solicitors: Blount, Lynch, and Petre; Frere and Co.; Nicholl, Manisty, and Co.] Will-Construction-Gift of Annuity-Gift over-Arrears of Annuity payable out of Corpus-Continuing Charge on Income. Summons to determine whether an annuity given to testator's widow was charged on corpus of the residuary
estate or was a continuing charge on the income thereof after the death of the widow. The will gave certain small annuities and then there was a trust for sale of residue and a gift "upon trust in the first place with and out of the annual income thereof, including the profits which shall accrue to my estate from any partnership business in which I shall be engaged at the time of my decease and which my trustees or trustee shall continue to carry on under the discretionary power in that behalf hereinafter contained and which profits are hereinafter directed to be considered annual income for the purposes of this my will. to pay to my said wife during such time as she shall continue my widow a clear annual sum of £1500, or in case the clear rentals derived from my said freehold warehouses and leasehold wharf shall together with interest calculated at the rate of £2 per cent. per annum on the cash value of the corpus or capital of the remainder of my general residuary estate, including the capital in my partnership business or businesses, amount to more than £1500, then upon trust to pay to my said wife during such time as she shall continue my widow a clear annual sum equal to the amount of the said rentals together with interest calculated as aforesaid, but not exceeding an annual sum of £2000, and subject the eto upon trust out of the surplus annual income of my general residuary estate, but so far only as such surplus annual income will from time to time extend or permit, to pay to her my said wife during her widowhood (in addition to the annual sum for the time being payable to her as aforesaid) a further annual sum of £100 in respect of each of my children who shall for the time being be under the age of twenty-three years." And after this payment had been satisfied there was a further provision as to the surplus. The will continued: "My said general residuary estate and all moneys and property directed to fall into and form part thereof and the said surplus income and the accumulations thereof shall be divided or considered as divided into so many equal shares as the number of my sons and daughters who either shall be living at my death and shall, whether within my lifetime or after my decease, attain the age of twenty-three or marry under that age." The will contained among other provisions a declaration by the testator that the widow was to be paid in full, a provision that accumulations were only to be made "subject to such payments hereout as aforesaid, and a declaration that no portion of corpus or capital is to be made over to the testator's children or issue so as to prejudice or affect the due payment of the annual sums bequeathed by the will.
Held, that the widow's annuity formed a continuing charge
[Re Rose; Rose v. Rose. Ch. Div.: Sargant, J. Feb. 16, 17, and March 4-Counsel: Luxmoore; Martelli, K.C. and J. M. Gover; Mark Romer, K.C. and Israel; Grant, K.C. and Dighton Pollock; Brabant. Solicitors: Arthur Benjamin and Cohen; Elvy, Robb, and Welch; Routh, Stacey, and Castle; Capron and Co.]
Will-Two Tenants for Life-Half Income of whole Fund to eachSubject thereto to Children at Twenty-one-Death of one Tenant for Life-One Child attains Twenty-one-Period of Distribution -Class not closed.
A testator by his will gave the net residue of his real and personal estate upon trust to pay one equal half of the annual income to J. during his life and the remaining equal half to E. during his life and, subject to the trusts aforesaid, then as to capital and income for the children of J. and E at twenty one or marriage in equal shares per capita, with the to pay power whole or any part of the income to which any infant might be entitled or contingently entitled for the maintenance of such infant, and directed that the accumulations of surplus income not so applied should follow the destination of the capital, with a power of advancement to the extent of one half the capital of the vested or contingent share of any such infant. J. and E. survived the testator, and each of them had two infant children living at his death. J. died in 1899, leaving a widow and two infant children, and after his death one half of the income of the trust fund was paid to E. and one half of the remaining half to the widow of J. for the maintenance of her infant children, the remaining quarter being accumulated. In 1912 the son of J. attained the age of twenty-one, the other three children being infants, and E. a man of over sixty years old at the date of this summons. Under these circumstances the trustees of the will took out an originating summons to have it determined whether the son of J., who had attained twenty-one, was entitled to be paid his share of the capital of the trust funds, or whether the whole of the trust funds ought to remain invested during the life of E. and become divisible on his death.
Held, that the children who had attained twenty-one were not entitled to call for the capital of their shares, as the rule in Andrews v. Partington (3 Bro. C. C. 401) was not applicable;
it could not be applicable to the whole fund as the period of distribution as to the whole had not arrived, and, if it were made applicable to one half the fund on the ground that as to that the period of distribution as settled in Andrews v. Partington (ubi sup.) had arrived, the effect would be, if another child were born, that as to one half these children would take in certain shares and as to another half in different shares, which would plainly be contrary to the testator's intention.
[Re Faux; Taylor v. Faux. Ch. Div.: Astbury, J. March 5. -Counsel: J. R. Brooke; J. Austen-Cartmell; Dighton Pollock; Owen Thompson; H. E. Wright Solicitors: S. W. Johnson and Son, for Fisher, Jesson, and Co., Ashby-de-la-Zouch.]
KING'S BENCH DIVISION.
Inland Revenue-Male Servant-Driver of Motor car used for Business Purposes-“ Coachman "- Revenue Act 1869 (32 & 33 Vict. c. 14), s. 19 (3)-Motor Car Act 1903 (3 Edw. 7, c. 36), s. 13.
Case stated by the metropolitan magistrate sitting at North London Police-court. An information was laid on behalf of the appellants, who have the duty of collecting local taxation licences in L ndon payable under the Revenue Act 1869, against the respondent for employing a male servant without having a proper licence as required by the Revenue Act 1869 and the Motor Car Act 1903. The magistrate dismissed the information. The Revenue Act 1869, s. 18, provides that for every male servant a duty of 15s. is payable, and by sect. 19 (3) a "male servant' means and includes any male servant employed either wholly or partially in any of the following capacities (amongst which is "coachman"). By sect. 5 of the Customs and Inland Revenue Act 1876, this definition excludes a servant who, being bona fide employed in other capacities, is occasionally or partially employed in the capacities above specified; and by sect. 13 of the Motor Car Act 1903, the above definition of "male servant" includes " a person employed to drive a motor-car." On the day in question a motor-car was being driven by a manservant. The car belonged to a firm of upholsterers, of which the respondent was a member, and had been purchased by the respondent on behalf of the firm in 1913. It was then fitted with seats for six persons, but four of these were removed, leaving only the driver's seat and one beside him. The part behind the front seats was altered so that upholterers' samples could be carried therein; and the car was acquired and used by the firm and the respondent solely for the purpose of calling on customers with samples in the way of trade. On some business journeys the respondent accompanied the driver, and the driver gave him instructions in driving. The magistrate was of opinion that the driver was not employed for domestic purposes or for purposes of pleasure, but was employed for purposes of trade only, and, in view of the decisions in London County Council v. Allen (107 L. T. Rep. 853; (1913) 1 K B. 9) and Wolfenden v. Mason (110 L. T. Rep. 31), he held that the driver was not a "male servant" within the definition in sect. 19 (3) of the Act of 1869, as extended by sect. 13 of the Act of 1903, and he dismissed the information. Cur. adv. vult.
Held, that the test which the magistrate had applied, whether the servant was employed for purposes of trade or pleasure, was wrong, and that the true test was whether the servant did or did not render menial services to his employer and came within the class known as menial. Case remitted to the magistrate to apply the proper test.
[London County Council v. Perry. K. B. Div.: Darling, Bankes, Avory, Lush, and Atkin, JJ. March 3.-Counsel: Bodkin; Harold Murphy. Solicitors: E. Tanner; Treasury Solicitor.]
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KINGDON V. PETERS AND HAMLIN.
Sale of Dutch Sugar-Prohibition of Export of Sugar by Dutch Government-Effect of War on Contract.
IN the Exeter County Court, on the 8th Feb., His Honour Judge Lush-Wilson, K.C., delivered the following judgment:
L. D. Thomas (Sparkes, Pope, and Thomas) for the plaintiff. H. C. S. Dumas (instructed by Roberts and Andrew) for the defendants.
His HONOUR.-This is an action to recover the sum of £14 38. d. for an alleged breach of contract to deliver fifteen cases of sugar known as "W.S.R" cubes during Aug. 1914, being the difference between the contract price and the cost of buying against the defendants in this country. It was proved that on the 24th March 1914 the defendants signed a contract sale note to the plaintiff of seventy-five cases W.S.R. cubes at 16s. 3d. for April-Aug. 1914, delivery Plymouth, and that at the plaintiff's request the port of delivery of Bristol was afterwards substituted for Plymouth. The contract contained the following printed condition: "If from any cause beyond our control we are unable to deliver all or part of the above, we are not to be held responsible for any loss sustained thereby." This document was signed at the foot by the plaintiff below certain printed and written words confirming the contract and substituting "Bristol for "Pymouth" as before stated. It was proved that for many years previously the plaintiff had made purchases of goods, including one purchase of sugar, from the defendants. and that, subsequent to the contracts being made, invoices on all occasions were sent by the defendants to the plaintiff containing the printed words above the invoice as follows: "Sugars are sold upon the terms contained in the printed conditions of the London Wholesale Sugar Dealers' Association." One of such conditions was as follows: "13. In case of war all orders for sugars sold for forward delivery shall be cancelled, as to any sugars not actually delivered, which at any time the sellers shall notify in writing to the buyers that they are in consequence of the war unable to deliver." The plaintiff swore that he never noticed or read the printed words on the top of the invoice The sugar in question is a particular brand or description of sugar refined in a particular refinery in Holland and shipped to this country. This was known to the plaintiff. In reply to a letter of the plaintiff of the 13th Aug. 1914 asking the defendants to forward the fifteen cases er contract for August, the defendants wrote to the plaintiff on the 19th Aug. 1914 that the refiners informed the defendants that it was impossible to ship under their contract with the defendants the goods in question, as all contracts are cancelled by the war. It was further proved that the Dutch Government had prohibited and stopped such proposed August shipment to the defendants. It was proved that it was possible to buy the same description of sugar in the town where the plaintiff lived, and that the plaintiff had in fact purchased such sugar at an enhanced price The plaintiff admitted that at the time of the contract he knew that contracts for monthly deliveries at a port are usually met by vendors' contracts with shippers. It appears to me that the question whether the plaintiff can recover in this action depends upon two points: (1) Whether the sugar in question was bought subject to the conditions of the London Wholesale Sugar Dealers' Association; and (2), if not, whether the defendants are excused from delivery under the contract by reason of the printed condition in the contract. The first question appears to me to be one of fact: Was the condition printed on the invoices fairly and sufficiently brought to the attention of the buyer so as to form part of the contract? I
am unable to say that it was. It was sent to the buyer subsequent to the contract being entered into. There were no words in the contract incorporating or referring to such condition, and I am unable to find that the plaintiff either did read such words or ought as a reasonable business man to have looked for them. I must admit that I have felt considerable difficulty as regards the second question. I am satisfied on the evidence that the plaintiff knew that the class of sugar purchased could only be originally obtained from the Dutch refinery, and also that the defendants purchased from such refinery to fulfil contracts. I find that he knew that his monthly deliveries would be made to Bristol by steamers from Holland discharging there. I have arrived at the conclusion that the plaintiff, having regard to his knowledge of the defendants' course of business, ought to have read the printed condition in the contract as absolving the defendants from liability under the contract if the defendants from any cause beyond their control were unable to get delivery at Bristol of a consignment by sea from Holland so as to enable them to satisfy their contract to deliver to the plaintiff in August. I would add that I have read the decision of Ashmore and Son v. Cox and Co. (1899) 1 Q. B. 436) and would point out that the facts in this case are entirely different from those in the present case. There there was a firm contract to ship by sailer or sailers, and the condition applied only to the non-arrival from loss of vessel or other unavoidable cause, and the vendor was prevented from shipping by the war. It was held, therefore, that the condition did not cover the breach of contract. I give judgment for the defendants.
IN the Leicester County Court, on the 28th Jan. and the 25th Feb., before His Honour Judge Moore Cann, an application for compensation was made by a workman against the insurers of a co-operative society (in liquidation) for injury resulting from an accident arising out of and in the course of his employment. Charles Clark, of Anstey, was the applicant, the Anstey Co-operative Society Limited were the employers, and the Ocean Accident and Guarantee Corporation Limited, of Moorgate-street, London, were the respondents.
M. T. Hincks (Leicester) for the applicant.
On the 31st Jan. 1914 applicant was twisting a dough trough, when it caught a loose brick in the floor and rebounded against his right hand, causing serious injury to the ligaments of the wrist. The other facts and the arguments sufficiently appear from the judgment.
His HONOUR.-Charles Clark was employed as a foreman baker by the Anstey Co-operative Society Limited, a society registered under the Industrial and Provident Societies Act 1893. It is admitted that whilst so employed-namely, on the 31st Jan. 1914 -Clark met with an accident which arose out of and in the course of his employment and caused an injury to his right wrist. It is also admitted that as against the Anstey Co-operative Society Clark had by reason of the accident a valid claim under the Workmen's Compensation Act 1906 for compensation during incapacity arising from the accident, and, for the purpose of assessing the amount of any such compensation, his weekly wages are agreed at 32s. Clark has been paid 16s. a week compensation down to the 6th Aug. 1914 and 108. a we k from that date until the 24th Dec. 1914, but he has subsequently received no compensation, and he accepted the reduced payments of 10s. a week under protest. The Anstey Co-operative Society had entered into a contract with the present respondents whereby the co-operative society was entitled to be indemnified by the respondents in respect of any liability to Clark under the Workmen's Compensation Act 1906. On the 31st July 1914 the co-operative society passed a resolution for voluntary winding up, and it has been wound-up, a first and final dividend of 8s. 4d. in the pound being paid to creditors on the 23rd Dec. 1914. No claim was made by Clark in the winding-up. The payments to Clark were mostly made by the respondents. Clark now claims that he is still totally incapacitated by the accident and that, under sect. 5,
sub-sect. 1, of the Workmen's Compensati n Act, he is entitled to receive from the respondents 163. a week compensation as from the 6th Aug. 1914, giving credit for the weekly sums which have been paid since that date. He contends that the Anstey Co-operative Society within the meaning of the sub-section made a composition or arrangement with its creditors or, alternatively, was a company which was wound-up within the meaning of the section. It was not contended that the co-operative society was "bankrupt within the meaning of the sub-section. On behalf of the respondents it is contended that the claim must fail on two grounds: First, because the co-operative society, though admittedly "employers" within the meaning of the subsection, did not "make a composition or arrangement with their creditors," and were not a "company " within the meaning of the section. Secondly, because Clark ceased to be totally incapacitated by the 6th Aug. 1914, and ceased to be even partially incapacitated by the 24th Dec. 1914, the date to which 103. a week has been paid. The object of sect. 5, sub-sect. 1, is to protect the workman in case of the insolvency of his employer, but, unless the wording of the Act admits of the construction claimed by Clark, I have, of course, no power to apply it to his case. The word " employer as defined by the Act (see sect. 13) includes any body of persons corporate or unincorporate, and in sect: 2, sub-sect. 4, provision is made for the service of notice of an accident when the employer is a body of persons corporate or unincorporate. If, therefore, sub-sect. 1 of sect. 5 is not applicable to such a case as the present, it would appear that a large number of cases have been omitted from the operation of the sub-section, and its object-as I conceive it-must fail to a substantial extent. The sub-section deals with the cases of insolvent but insured employers, and it divides them into two classes-namely: First, those employers whose assets are dealt with and distributed amongst their creditors according to the provisions of the general Act or Acts relating to bankruptcy, including the provisions relating to compositions and schemes of arrangement. Secondly, companies whose assets are dealt with and distributed according to the provisions for winding-up contained in the Companies Acts. In my opinion the Anstey Co-operative Society did not fall within the first class. It was registered under the Industrial and Provident Societies Act 1893, and was (see sect. 21) a body corporate with perpetual succession and a common seal and with limited liability: (see sect. 5). It might (see sect. 54) by special resolution and observing certain formalities convert itself into a company under the Companies Acts or might amalgamate with or transfer its engagements to any such company and (see sect. 58) it might be dissolved by order to wind it up, or (as the event was) by a resolution for winding-up made as directed in regard to companies by the Companies Acts, the provisions of which are to apply to such order or resolution. The Anstey Co operative Society, therefore, was wound-up under circumstances in which the provisions of the Companies Acts relative to winding-up applied. It was, however, contended that the word "company as used in sect. 5, sub-sect. 1, of the Workmen's Compensation Act does not include such a body as the Anstey Co-operative Society, and that the word company " in the sub-section means only a company registered under the Companies Acts. support of their contention the respondents cited the case of Great Northern Railway Company v. Coal Co-operative Society (73 L T. Rep. 443; (1896) Ï Ch. 187), where Vaughan Williams, L.J. held that debentures issued by a society registered under the Industrial and Provident Societies Act were void as not complying with the requirements of the Bills of Sale Act 1882, and he decided that such a society was not a "mortgage, loan, or other incorporated company within the meaning of sect. 17 of the Bills of Sale Act. In the course of his judgment (see p. 194) the Lord Justice said that "the word ' company has come to have a very well recognised meaning-there are various legal companies, but this industrial society does not come within the connotation of that word in any of its accepted legal meanings." Where general statements are found in a judgment relating to a particular clause or section of an Act, I am reluctant to apply them as of course to an altogether different matter. Further, it would appear that, although the Lord Justice was for the purpose of his decision considering the case of Standard Manufacturing Company Limited (64 L. T. Rep. 487; (1891) 1 Ch. 627), he did not deal with the remark of Lord Halsbury in that case (see p. 634) that it seemed possible to construe words any mortgage, loan, or other incorporated company as meaning any society which has power to borrow on mortgage." Further, the case of Great Northern Railway Company v. Coal Co-operative Society was discussed by Phillimore, L.J. in Clark v. Balm, Hill, and Co. (1908) 1 K. B. 667), and I think it doubtful whether it was altogether approved. The following authorities appear to me to show that, where the context admits, the word " company" will be read in a wide sense and not as confined to companies under the Companies Acts. In his book on the law of companies, Lindley, L.J. says that