« EelmineJätka »
and Spens, for Hope, Todd, and Kirk, Edinburgh, and Hugh Reid Buchanan, Glasgow; Walker, Martineau, and Co., for Morton, Smart, Macdonald. and Prosser Edinburgh, and Craig and Henderson, Glasgow.]
COURT OF APPEAL. Annuity-Charge on Easements and Chattels-Deed of Grant-Construction-Whether real or personal Estate-No Rentcharge created -Special Act-Statutory Undertaking-By an indenture dated the 14th Aug. 1827, R. B., who appeared to have been tenant for life of one eighth share in certain realty and personalty constituting the old waterworks at C., established pursuant to a special Act of Parliament, joined with the owners of the other seven shares in conveying such waterworks to the waterworks company of that city. The indenture contained a recital to the effect that the consideration for the grant had been agreed at the annual sum of £500 to be payable for ever by quarterly payments to be secured as therein mentioned and to be divided between the grantore, their respective executors, administrators, and assigns, according to their shares and interests in the waterworks. The indenture further contained provisions for enforcing payment of the £500 per annum by entry on the property constituting the undertaking for the time being of the company, with power to carry on such undertaking. It was clear that the property granted consisted mainly of easements, or rights in the nature of easements, and of personal chattels; but it was not clear that it comprised any corporeal, as opposed to incorporeal, hereditaments, though there were words sufficient to pass such corporeal hereditaments (if any) as formed part of the old waterworks at C. A summons was taken out by a trustee and executor of the testator R. B. for the determination of the question whether the annual sum payable by the waterworks company was real or personal estate. It was decided by Parker, J. (103 L. T. Rep. 427) that the indenture according to its true construction was intended to create and, so far as it operated at all, did in fact create an annuity charged on the statutory undertaking of the company, and was not intended to create and did not create a rentcharge arising out of such corporeal hereditaments (if any) as were comprised therein, and such an annuity was personalty, and not realty descendible to the heir. On appeal, the authority of Ramsay v. Thornton (16 Sim. 575) was relied upon Held, that the judgment of Parker, J. and the grounds upon which he based his decision were perfectly right; that there was no ground whatever for saying that the indenture created a perpetual fee farm rent or rentcharge; and that there was no foundation for the argument that the annual sum anything else but personal property of the testator R. B. and it did not form part of his real estate. Appeal dismissed.
[Re Baxter's Trusts; Malling v. Addison. Ct. ot App.: CozensHardy, M.R., Buckley and Kennedy, L.JJ. May 2-Counsel: for the appellant, Romer, K.C. and Maugham; for the respondents, Martelli, K.C. and P. 8. Stokes. Solicitors: for the appellant, Busk, Mellor, and Norris, agents for Brown, Dobee, and Rogers, Chester; for the respondents, Maples, Teesdale, and Co., agents for Wright and Son, Sunderland] Bailment Furniture deposited with Warehouseman-Claim to Furniture by Person other than Bailor-Magistrate's Order for delivery up of Goods to Claimant-Liability of Bailee to true Owner-Metropolitan Police Act 1839 (2 & 3 Vict. c. 71), 8. 40.-Appeal by the plaintiff from a decision of the Divisional Court (Darling, Phillimore, and Bucknill, JJ), reported 103 L. T. Rep. 839. The plaintiff deposited with the defendant, who was a warehouseman, a quantity of furniture, and, on making the deposit, she left with him the address at which she was to be found. Some time later the plaintiff's husband, from whom she was separated, came to the defendant's premises and demanded the goods. The defendant's manager declined to part with the goods without the plaintiff's authority, and gave him the address at which she was living. Subsequently the plaintiff's husband stated that he had been to the address given, and that his wife was not known there. He again demanded the goods, but was told that they would not be given up except under a magistrate's order. The plaintiff's husband thereupon applied to a magistrate under 2 & 3 Viot. c. 71, s. 40, for an order for the delivery up of the goods, and a summons was issued against the defendant. At the time when the summons was issued a representative of the defendant was in court and informed the magistrate that the reason why the goods were not delivered up was because they were warehoused in the plaintiff's name, and they could not give them up without her authority. When the summons was heard the plai tiff's husband swore that his wife was not known at the address to which he had gone, that the goods were his and that their value was about £10, and the magistrate made an order for delivery on payment of the defendant's charges. A representative from the defendant's firm was present in the police-court at the hearing of the summons, but was asked no question in relation to the matter and volunteered no information concerning the plaintiff. An action was subsequently brought by the latter against the defendant for the return of the goods or their value. The County Court judge directed the jury that an order properly obtained under 2 & 3 Viet e 71, s. 40, would protect the defendant, but that he would be liable for the loss of the goods if he by his negligence allowed the order to be made without giving notice to the plaintiff, whose address he knew, or asking the magis trate to summon the plaintiff before him so that she might be heard. The jury found that the order had been obtained owing to the negligence of the defendant, and the County Court judge thereupon
gave judgment for the plaintiff. The Divisional Court held, on appeal, that the decision of the County Court judge was wrong, on the ground that there was no duty on the part of the defendant to do more than bring to the notice of the magistrate that there was another claimant to the goods, and that, this having been done, the defendant was under no liability to the plaintiff in respect of them. The plaintiff appealed. Held, that there was a duty on the part of the defendant (the bailee) to give notice to the plaintiff (the bailor) before the summons was heard that a claim was made against her goods, the custody of which had been accepted by the bailee. Held, further, that the bailee could not rely on the magistrate's order for his protection unless he could show that he was acting under compulsion, and that he was estopped by his conduct from relying on that order. Appeal allowed.
[Ransom v. Platt. Ct. of App.: Vaughan Williams, Fletcher Moulton, and Farwell, L.JJ. April 26 and 27.-Counsel: for the appellant, C. A. Russell, K.C. and W. R. Warren; for the respondent, Leslie Scott. K.C. and Heber Hart. Solicitors: for the appell nt, Oswald Hanson and Smith; for the respondent, L. W.. Taylor.]
Market Statutory Market-Market Rights-Disturbance-Rival Market -Warehouse-"Shop"-Sale in own Shop-28 Geo. 2, c. 123, 8. 430 Geo. 2, c. 31, s. 10. By certain statutes a market was established in the borough of S., and carried on as from 1756 on lands purchased pursuant to the statutes. By an Act 28 Geo. 2, c. 123, s. 4, it was provided that it should not be lawful for any. persons to hold any other market in the borough. By an Act 30 Geo. 2, c. 31, e. 10, it was provided that if any victualler, fruiterer, or other person should sell any fruits, herbs, or other provisions in any private house, warehouse, street, stall, or other place within 1000 yards of the market," but only in his own shop' or in the public market place, every such person being thereof convicted should be liable to a fire. F. recently took some premises in the immediate vicinity of the market and there sold wholesale not only his own goods of a nature identical with those sold in the market, but those of other persons on commission. The premises were in the nature of a warehouse and counting-housewith four floors on which goods were stored and also exposed for sale by samples, and a fifth floor was reserved for residential purposes. Held, that F. was not carrying on a rival market within the probibition of sect. 4 of the Act 28 Geo. 2, c. 123, and that his premises were a shop within the meaning of sect. 10 of the Act 30 Geo. 2, c. 31. Decision of Neville, J. (ante, p. 290; 104 L. T. Rep. 16) affirmed.
[Haynes v. Ford. Ct. of App.: Cozens-Hardy, M.R., Buckley and Kennedy, L.JJ. April 25-Counsel: Astbury, K.C., Macmorran, K.C., and Bischoff; Buckmaster, K.C., Peterson, K.Č., and Sargant. Solicitors: Simpson, Palmer, and Winder; C. J. Parker.] Real Estate-Conversion-Order by Court for Sale-Part of real Estate unsold-Order operating as absolute-Conversion of unsold real Estate into Personally. By his will, dated in Sept. 1872, a testator who died in Oct. 1872, after directing payment of his debts, &c., and declaring that his personal estate not specifically bequeathed should be the primary fund for payment thereof, and after appointing executors and trustees of his will and making certain bequests, devised and bequeathed to his trustees all his freehold estate in B. and all the residue of his real and personal estate upon trust to sell certain real estate in the counties of M and S. and to convert and get in his personal estate not specifically bequeathed and out of the proceeds to pay all his debte, &c. (other than the mortgage debt on the B Estate), and as to the B. Estate the testator directed his trustees out of the rents thereof after payment of interest on the mortgage to pay to each of his four children an annuity of £200 for ten years after his death and to accumulate any surplus rents, and, subject to the payment of the mortgage debt on his B. Estate, the testator directed his trutees to stand possessed of that estate and the accumulations of income thereon, after providing for payment of the annuities, in trust for his four children in equal shares as tenants in common, but so that the shares of his children should not be conveyed until the expiration of the term of ten years; and the testator declared that if from any cause the net income of that estate should be insufficient after payment of the mortgage debt and interest to pay the four annuities, the annuity to his daughter M. should not abate, but the annuities to his three other children should abate pro rata. In Nov. 1873 a decree was made for the administration of the testator's real and persona estate. The period of ten years fixed by the testator in his will expired in Oct. 1882. By an order dated in Feb. 1883 it was ordered that the B. Estate should be sold with the approbation of the judge, and that the proceeds of such sale should be paid into court. In pursuance of that order the B. Estate was put up for sale by auction in twelve lots, and six thereof were sold. The testator's daughter M. having died, her one-fourth share in the rents and profits of the testator's estate remaining unsold was claimed by S, a person who claimed through the heir-at-law of M., from whom he had purchased the property. Held, affirming the decision of Warrington, J., that the order of Feb. 1883 operated as an absolute conversion of the unsold real estate of the testator into personalty as from the date of that order, and that therefore the claim of S. to be entitled to receive the one-fourth share of the testator's daughter M. in the rents and profits of the testator's real estate remaining unsold was not maintainable. Appeal dismissed.
[Fauntleroy v. Beebe. Ct. of App.: Cozens-Hardy, M.R., Buckley and Kennedy, L.JJ. April 28.-Counsel: for the appellant, Henry
Terrell, K.C. and W. H. Gover; for the respondents, Cave, K C. and H. E. Wright. Solicitors: for the appellant, Henry Gover and Son; for the respondents, Edmund Ward Oliver and Son.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Company-Winding-up—Debenture-Floating Charge within three Months of Winding-up-Solvency of Company-Companies (Consolida tion) Act 1908 (8 Edw. 7, c. 69), s. 212.-On the 15th Nov. 1909 a limited company, carrying on a licensed restaurant business, issued to W. E. M. and J. H. two first mortgage debentures for £3800 and £2250 re-pectively. As to the fret, £3000 was paid over to the company at the time. The second was issued wholly to secure a previous debt owing by the company. The debentures were similar in form, and constituted a floating charge upon the undertaking or property of the company for the amounts stated, together with interest thereon at 5 per cent. On the 4th Jan. 1910 a petition was presented for the compulsory winding-up of the company, and an order made for that purpose on the 6th April 1910. On the 6th Jan. 1910 a receiver and manager was appointed on behalf of the debenture-holders. On the 3rd Jan. 1910 a debenture-holders' action was commenced to enforce the charge on the ground that the security was in jeopardy, the company being insolvent. The liquidator alleged that the debentures were invalid by virtue of the Companies (Consolidation) Act 1908 (8 Edw. 7 c. 69), e. 212, which provide that "a floating charge I created within three months of the commencement of the winding-up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except to the amount of any cash paid to the company at the time of or subsequently to the creation of and in consideration for the charge, together with interest
5 per cent. per annum." The balance-sheet drawn up at the time the debentures were created showed that the company's assets on capital account then exceeded its liabilities. On the other hand, these assets were difficult to realise, and the company could not in fact then satisfy its trade creditors. Held, that upon either construction the company was insolvent and the debentures invalid except to the amount of £3000, cash paid at the time. Held, also, that under sect. 212 (ubi sup) a floating charge created within three months of the winding up is invalid unless the company's business was actually solvent at the time, apart from the value of the fixed assets.
[Hodson v. Blanchards (London) Limited. Ch. Div.: Neville, J. May 3.-Counsel: Jenkins, K.C. and C. J. Matthew; Peterson, K.C. and Stamp. Solicitors: Giddins, Cohen, and Dunn.] censing-Compensation-Business and Premises bequeathed to different Persons-Licensing Act 1904 (4 Edw. 7. c. 23), s. 2-Ry his will dated the 24th June 1886 W. S. who died on the 22nd March 1887 appointed his wife M. A S. his executrix and after her death his two sons W. S. and G. J. S. executors, and devised after his wife's death the copyhold premises, known as the S. and G. to W. S, and as to the residue including the trade and business of a retailer of beer, the testator bequeathed the same after his widow's death to bis song W. S and G. J. S. in equal parts. G. J. S. died in estate on the 5th Nov. 1888 and the plaintiff was his widow and legal representative. W. S. junior, son of W. S., died on the 29th June 1897, and the infant defendant G. P. S. was his son, and his guardian had been admitted tenant of the copyholds. The lease of the S. and G., by the tenant for life, M. A. S., under the Settled Land Acts was, at the hearing vested in a firm of brewers, the widow having let the premises for twenty-one years from the 29th Sept. 1897 at the yearly rent of £40. M A. S. died on the 11th Dec. 1906 having by her will appointed the defendant M. A. C. her sole execu rix. The licensing justices refused renewal of the licence of the S. and G. beerhouse, and on the 29th Oct. 1910, the compensation committee awarded £2500, of which £1482 was in respect of the copy hold interest apportioned to the infant defendant G. P. S., £270 to the licensee, and £748 to the brewers, the lessees. The plaintiff by her originating summons claimed that the compensation und was a portion of the residuary estate of W. S. For the customary heir it was said that the £1482 awarded to the copyholder did not include the goodwill or reversionary interest in the goodwill. Held, that in 1910 the estate of G. J. S. bad no continuing interest in the business or the premises. Since 1897 the business had not been the business of the testator's estate, but the business of the lessees or their tenants. The plaintiff had therefore no right to participate in the compensation fund.
[Re Spurge; Calver v. Collett Ch. Div.: Eve, J. May 3.Counsel: Howard Wright; Mulligan; Montague Shearman, jun. Solicitors: Pattinson and Brewer; Charles Robinson and Co.; J. M. Haslip.]
Patent-Expiration-Application to prolong-Insufficient Remunera tion-Separate Claims for distinct Inventions-Power of the Court to prolong certain Claims and reject others—Patents and Designs Act 1907, 8. 18.-The patent of an important system of wireless telegraphy was granted in 1897, but, owing to difficulties in working the system, the patentee was unable to profit by his invention. He applied for a prolongation of the patent, the application being divided into a number of claiming clauses, each dealing with different parts of the invention, or different modes of applying the general principle of the discovery to the instru ments used. In opposition to the application, by the ComptrollerGeneral of Patente, it was contended that the patent must be treated as a whole, and that as several of the claiming clauses related to appliances which were common to other systems of wireless telegraphy the extension could not be granted. Held, that
certain of the claiming clauses related to distinct inventions by the patentee, and that for these clauses an extension for seven years should be granted.
Re Lodge's Patent. Ch. Div.: Parker, J April 4, 5, and 28Counsel: Walter, K.C. and J. Hunter Gray, the Solicitor-General and C. H. Surgant. Solicitors: Farrar, Porter, and Co.; Solicitor to the Board of Trade.]
actice-Sequestration-Indian Civil Service Annuity-Assignability-(Indian) Pensions Act (No. XXIII. of) 1871, ss. 11, 12-East India Annuity Funds Act 1874 (37 Vict. c. 12). —The defendant entered the Madras Civil Service in 1877, and in the same year he executed a deed of covenant made between himself and the Secretary of State for India in Council by which (in effect) he agreed to subscribe to, and to conform to the rules of, the Madras Civil Service Annuity Fund. This was a fund originally established by Madras Civil Servants, and maintained by their own contributions and by a subvention from the East India Company, continued by the Government of India. It was vested in trustees until 1871, when the subscribers in general meeting agreed to transfer it to the Secretary of State; and this arrangement was confirmed by the East India Annuity Funds Act 1874. The defendant became entitled to his annuity on his retirement in 1903. In 1907 he assigned it to trustees as security for the payment of an allowance to his wife; and the assignment was recognised (as assignments of these annuities have always been recognised) by the India Office. In 1910 the plaintiff obtained a judgment against the defendant which he sought to enforce by a writ of sequestration; and this was a summons in the same action to decide (in effect) whether the annuity was assignable and liable to sequestration. The defen. dant raised the point that the (Indian) Pensions Act 1871 rendered it inalienable. By sect. 11 of that Act: "No pension granted or continued by Government on political considerations, or on account of past services or present infirmities, or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment, or sequestration by process of any court in British India, at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such court"; and by sect. 12: "All assignments, agreements, orders, sales, and securities of every kind made by the person entitled to any p nsion, pay or allowance mentioned in sect 11, in respect of any money not payable at or before the making thereof, on account of any such pension, pay, or allowance, or for giving or assigning any future interest therein, are null and void." Held, that the defendant's annuity was not a "pension granted or continued by Government" within sec. 11 of the Indian Act, and was therefore assignable and liable to sequestration, the question of how far the court would give effect to that Bection in a relevant case being left undecided.
[Knill v. Dumergue. Ch. Div.: Joyce, J. Feb. 22, 23, April 25 and 26.- Counsel: Younger, K.C. and Beebee; Hughes, K.C. and Whitmore Richards; E Beaumont. Solicitors: Billing, Thompson, and Co., for Fairfax Spofforth, Bristol; Valpy, Peckham, and Chaplin; Edward Downes.]
Trade Union Funds-Levy for political Purposes-Meaning of "voluntary Levy"-Levy for Election of Labour Members on Local Public Bodies-Boards of Guardians.-A registered trade union raised "voluntary levies" from its members, for the purpose of electing or support ng Labour representatives in Parliament or on local publio bodies. On behalf of one of the members it was contended that the levies were in fact not voluntary. Any member wishing to avoid payment had to object in a manner dictated by the trade union, and under certain arbitrary conditions, and his so objecting had the effect of making him a marked man in the society. In the event of his not paying and not objecting in the prescribed form, he was debited with the amount of the levy, as against the benefits which he was entitled to receive from the trade union. It was further contended that although the judgment of the House of Lords in Amalgamated Society of Railway Servants v. Osborne (101 L. T. Rep. 787; (1910) A. C. 87) was confined to levies for Parliamentary representation purposes, the principle applied, with equal force, to collections for the representation of labour upon public bodies of all descriptions. Held, that the mode of collection made it, in effect, a compulsory levy, and that the principle of Amalgamated Society of Railway Servants v. Osborne (sup.) must be extended to make such levies illegal in the case of elections for municipal and local government authorities, boards of guardians being expressly excluded.
[Wilson v. Amalgamated Society of Engineers and others. Ch. Div.: Parker, J. April 27.-Counsel: Spencer Bower, K C. and Stuart Bevin; Buckmaster, K.C., Ellis Griffith, K. C., and H. C. Davenport. Solicitors: C. T. Wilkinson; Mills, Lockyer, and Mills.] Trustee-Investment-Moneys arising under Settled Land Acts-"Stocks or Securities of any British Colony or Dependency "-Power to invest in Stocks of Provinces of Canada.-By the 'will of Sir S. M. M.-W., Bart, dated the 1st Aug. 1896, who died on the 31st Dec. 1897, and which will had been duly proved, he gave a power to his trustees that capital mon ys arising under the Settled Land Acts might be invested in, amongst others, the following investments as well as investments for the time being authorised by any general public Act-that was to say, "the stock or securities (not payable to bearer) of the Government of India for the time being or of any British colony or dependency," or in the purchase of debenture stock of any railway, dock, gas, water, or other company incorporated by Act of Parliament or of the Legislature of India" or of such other dependency or colony as aforesaid." The question arose on an originating
summons taken out by the trustees for the purposes of the Settled Land Acts 1882 to 1890 of the settlement created by the testator's will whether they were justified or authorised under the clause in the testator's will in investing capital moneys arising under the Settled Land Acts from the testator's settled estates upon Government Stocks of divers Provinces of Canada in the Dominion of Canadaviz., in Province of (1) Nova Scotia, Three and a Half per Cent. Stook (redeemable in 1954); (2) Ontario Three and a Half per Cent. Stock (redeemable in 1946); (3) Quebec Three per Cent. Inscribed Stock (redeemable in 1937); (4) Manitoba Four per Cent. Stock; (5) Saskatchewan Four per Cent. Registered Stock; and (6) British Columbia Three per Cent. Inscribed Stock. The Interpretation Act . 1889, (52 & 53 Vict. c. 63), s. 18 (3) and Colonial Stock Act 1900 (63 & 64 Vict. c. 62), s. 2, were referred to. Held, that Provinces of the Dominion of Canada were not colonies within the meaning f the investment clause in the testator's will.
Re Sir S. M. Maryon-Wilson's Will and Re the Settled Land Acts 1882 to 1890. Ch. Div.: Eve, J. May 3.-Counsel: W. M. Cann ; 8. Leeke. Solicitors: May, How, and Chilver.] Will-Construction-Charity-Bequest for Benefice-Augmentation Fund -Condition-Not "held in Plurality "-Benefice united with two others-Condition not operative.-The Rev. T. B. M., who died on the 8th Jan. 1910, made his will, dated the 28th March 1908, and, after appointing executors and trustees, of whom the plaintiff was the sole survivor, bequeathed £1000 to the Ecclesiastical Commissioners “as an augmentation fund for the benefice of the rectory of K., Isle of Wight, upon condition that the said benefice or rectory never be held in plurality by any neighbouring clergyman.' The testator was for many years the rector of K., but resigned his incumbency in Aug. 1909. At the date of the testator's death the rectory of K. was a separate benefice; formal steps for its union with the rectory of M. and the vicarage of S., which were in the same patronage with the rectory of K, had, however, been commenced in Oct 1909. In Jan. 1910 the incumbent of M.-cum-S. was appointed curate-in-charge of K, and afterwards incumbent of those three benefices, united by an Order in Council of the 28th Nov 1910. The testator knew that steps were being taken for Suniting K. with M. and S. On a summons asking whether the condition in the will was operative to determine the trusts of the £1000 charitable legacy, it was said that the identity of K. parish had been extinguished; that, even if the three parishes were not now held technically in plurality, the expression used in the testator's will ought in the circumstances to be read in a wider sense; and Lord Elcho v. Andrews (102 L. T. Rep. 403, per CozensHardy, M.R., at p. 406; (1910) 1 Ch. 706, 711) and 1 & 2 Vict. c. 106, s. 16, were cited. Held, that nothing had happened merging the identity and individuality of the benefice of K. in another benefice, there was one united parish or benefice, and not two or more benefices, and no holding in plurality in the sense in which the testator used the expression. The condition of defeasance was not operative, and the Ecclesiastical Commissioners took the bequest as an augmentation fund for the united benefices.
[Re Macnamara; Hewitt v. Jeans. Ch. Div.: Eve, J. May 2. -Counsel: Maw; Ashworth James; Dighton Pollock; Sargant.Solicitors: Clarkson and Co., agents for Damant and Sons, Cowes, Isle of Wight; Markby, Stewart, and Co.; Milles, Jennings, White. and Foster; Treasury Solicitor.].
Agreement in Restraint of Trade-Covenant not to carry on or be concerned in carrying on a Business-Acting as Servant-Question of Liability.-Appeal by the plaintiffs from the decision of His Honour Judge Woodfall, sitting at the Westminster County Court. The plaintiffs, a firm of chimney sweepers, brought an action against the defendant, who had previously been in their employment, claiming damages and an injunction for the breach of a covenant entered into by him under an agreement with the plaintiffs dated the 3rd Nov. 1900. By the agreement in question the defendant undertook that he would give the whole of his time and services o the plaintiff company, and that he would not undertake any work or orders of any kind except for the company and in their name and on their behalf nor carry on or be concerned in carrying on the business of a chimney sweep either by himself or in conjunction with any other person or persons now or at any time within a radius of three miles of a specified point except for the company. On the 26th March 1910 the defendant left the plaintiffs' service and subsequently entered the employment of another chimney sweep within the prohibited area as a journeyman. It was contended on behalf of the defendant that the words of the covenant entered into by him were intended to prevent him from acting as a principal within the prohibited area and were not infringed by bis acting as a servant to a man carrying on the business of a chimney. sweep. The learned judge gave judgment for the defendant. Held, that the decision of the learned judge was right.
[Ramoneur Company Limited v. Brixley. K. B. Div.: Bray and Lord Coleridge, JJ. April 28-Counsel: J. B. Matthews; Liversedge. Solicitors: Hutchison and Cuff; Tipp-tts]
mpany-Action by--Company unable to pry Costs of Defendant if unsuccessful-Security for Costs-Remission of Case to County Court -Companies (Consolidation) Act 1908 (8 Edw. 7), 8. 278-County Courts Act 1888 (51 & 52 Vict. c. 43), 8. 66.-Appeal from the decision of His Honour Judge Kelly, sitting at the Pontypool County Court. The plaintiffs, a limited company, brought an action in the High Court against the defendant to recover damages for conversion of goods. The defendant, having reason to believe that the plaintiffs would be unable to pay his costs if he were
successful, applied under sect. 66 of the County Courts Act 1888 that the plaintiffs should be ordered to give full security for costs, and that in default of their doing so the case should be remitted to the County Court. The plaintiffs having failed to give security, the case was remitted for trial in the County Court. Sect. 66 of the Act further provides that, this having been done, "the action and all proceedings therein shall be tried and taken in such court as if the action had originally been commenced therein." The case having been remitted, an application was made to the learned judge of the County Court that the plaintiffs should be ordered to give security for costs under sect. 278 of the Companies (Consolidation) Act 1908. That section provides that "Where a limited company is plaintiff
in any action
[Plasycoed Collieries Company Limited v. Partridge, Jones, and Co. Limited. K. B. Div.: Bray and Lord Coleridge, JJ. Counsel: J. B. Matthews; Lincoln Reid. Solicitors: Indermaur and Brown, for Roberts, Newport; Colborne and Co., Newport.] Criminal Law-Found on Premises for unlawful Purpose-5 Geo. 4, c. 83, s. 4.-Case stated on an information preferred by the respondent against the appellants under 5 Geo. 4, c. 83, s. 4, for that they, on the 11th Dec. 1910, unlawfully were found on certain premises, the South-Western Hotel, for an unlawful purpose. Upon the hearing of the information the following facts were proved: (1) On Sunday, the 11th Dec. 1910, about 9 p.m., the appellant M. went to the office in the South-Western Hotel, which adjoins the Docks station and the docks at Southampton. He was with a traveller named E. E. asked the cashier for à room. The appellant M. then said to the cashier, "I may want a room, I am not sure," at the same time saying that his name was G., which was false. There were quite twenty people, mostly boat passengers, standing in or about the office at that time waiting to book rooms. E., the appellant M., and the appellant D. then went into the bar together. The appellant D. engaged a room, giving his name as J., which was false, and the appellant M. afterwards engaged a room for himself. One of the rooms so engaged as aforesaid was paid for, but the other was not. A chambermaid went to the room so engaged by E. on four occasions, and on each occasion there found E and the two appellants, and supplied them altogether with four drinks each. At 11 45 she saw E. in his room and alone. The appellants did not sleep at the South-Western Hotel on that night notwithstanding their having engaged the rooms as aforesaid. On the contrary, at 1 o'clock a.m the same night, the appelants engaged a room at an hotel near the Southampton West Station, a distance of nearly two miles from the South-Western Hotel, and there had three or four drinks which the appellant D. paid for, changing for that purpose a £5 note. The appellants requested to be and were in fact called at 5 30 a.m., stating that they wished to go to America by an early boat. They then went to bed and subsequently left the hotel last mentioned about 6 a.m. on the 12th Dec. The appellants did not go to America, but to Bournemouth, and later in the same day Detective C. proceeded to Bournemouth, where he found them in custody. The superintendent of police at Bournemouth handed to the detective two 100 dollar bills, a £5 Bank of England note, and 150 dollars in American gold, which property had been found by him on the appellant D. The detective charged the appellants with stealing two 100-dollar bills and other money the property of E. at the South-Western Hotel on the 11th Dec. The appellant D. asked the detective if E. had left Southampton, and, on the detective telling him he could not say, D. said, "If he has not left and I can see him, I will try and come to some arrangement with him, and if you can square it for me I will give you £10." D. did not say that E. had paid him the money for a debt. Another chamber
maid at the South-Western Hotel found dice on the floor in the
[Moran and another (apps.) v. Jones (resp.). K. B. Div.: Lord
Sheriff's Fees-Writ of fi fa.- Execution withdrawn pursuant to Order of Court-Liability of Execution Creditors for Sheriff's Fees-Sheriffs Act 1887, s. 2, sub ss. 2, 3-Order of Judges made thereunder.-Appeal from the decision of His Honour Judge Thomas, sitting at the Liverpool County Court. On the 10th May 1910 certain execution creditors delivered a writ of fi fa. to the sheriff to be executed upon the goods of a limited company who were the
The sheriff's officers seized on the 11th May at 2 p.m., but at 10 am. there had been a resolution to wind-up the company voluntarily. On the 19th May a summons was issued by the company and its voluntary liquidator asking for an order that the execution creditors should be restrained from attempting to sell the goods and effects of the company which had been seized. On the 21st May Hamilton, J. made an order restraining the sale or removal of the goods until after the hearing of a summons returnable on the 26th May. On the 30th May Bucknill, J. continued the injunction in the terms of the summons, and on the 3th June be amended his order by directing the sheriff to withdraw, and accordingly the sheriff at the request of the execution creditors did withdraw. The sheriff was not served with the summons or made a party to the order, and it appeared that prior to his with. drawal the sheriff had been expressly directed by the execution creditors to remain in possession. After the sheriff had withdrawn he applied to the execution creditors for the payment of his fees, and, upon their repudiating liability, he brought an action against them in the County Court. The learned judge decided in favour of the sheriff as to part of his claim, and against this decision both parties appealed, the sheriff contending that the execution creditors were liable for the whole of his fees, and the execution creditors by a cross-appeal contending that they were liable for no part of them. The question turned upon the meaning and effect of the order as to fees made by the judges under the Sheriffs Act 1887. That order provides (inter alia) that where the fees cannot be levied because the execution is withdrawn satisfied, or "stopped," they are to be paid by the person issuing the execution or the person at whose instance the sale is stopped, as the case may be." The sheriff contended that this order did not alter the previously existing law as to the person liable for the sheriff's fees, and that accordingly the execution creditors were liable for such fees. The execution creditors contended that the order altered the previously existing law, and not only prescribed the amounts the sheriff was entitled to charge, but defined the persons from whom alone he was entitled to demand them, and they further contended that under the order the only persons liable for the sheriff's fees were the voluntary liquid tor and the company. Held, that the order did not alter the existing law as to the liability for the sheriff's fees, and that the sheriff either completes his execution or withdraws, except in the one case where the official receiver or trustee in bankruptcy stop a sale, and that accordingly in the circumstances of this case the execution creditors were liable.
[Montague v. Davies, Benachi, and Co. K. B. Div.: Phillimore, and Bankes. JJ. March 29, 30, and April 12-Counsel: Holman Gregory, K.C. and Hanbury Aggs; Greer, K C. and A. T. Miller. Solicitors; Bell, Brodrick, and Gray, for R. W. Shoesmith, Halifax; Burn and Berridge, for Josiah Dean and Son, Liverpool.] Friendly Society-Action in County Court to recover Benefit-Jurisdiction of County Court Judge-Friendly Societies Act 1896 (58 & 60 Vict. c. 25), 8. 68 (6).-Appeal from the decision of His Honour Judge Steavenson, sitting at the Cockermouth and Workington County Court. An action was brought by the plaintiff, the widow of a member of a friendly society, against the defendant, who was the statutory officer of the society, to recover a benefit to which she claimed to be entitled under the rules. Rule 20 of the society's rules of 1908 provided that disputes between members or persons claiming through or on account of a member and the society should be decided by arbitration, and prescribed certain formalities to be observed. It further provided that each dispute should be decided by three arbitrators, the first elected by the claimant, the second by the society, and the third to be a County Court judge or other person agreed on by the parties, who should act as umpire. The Friendly Societies Act 1896, s. 68 (6), provides that: "Where the rules [of a friendly society] contain no direction as to disputes, or where no decision is made on a dispute within forty days after the application to the society. . . for a reference under its rules, the member or person aggrieved may apply either to the County Court or to a court of summary juri-diction and the court to which application is so made may hear and determine the matter in dispute." On the 11th March 1910 the plaintiff applied for benefit under the rules. On the 2nd April the society passed a resolution refusing the plaintiff's application as being contrary to rule. On the 18th April the plaintiff made an application for arbitration under the rules. This was assented to by the society, but the parties were unable to agree as to an umpire, and, after the expiration of forty days, the plaintiff in Jan. 1911 commenced proceedings in the County Court by virtue of sect. 68 (6) of the Friendly Societies Act 1896. Before such proceedings were taken, but after the plaintiff's right to take them had vested, new rules had been made by the society regulating di-putes between members and those claiming under them and the society with the requirements of which the plaintiff had not complied. It was contended before the learned judge that, the plaintiff not having complied with these regulations, he had no jurisdiction to entertain the action. To this contention he gave effect and declined to hear the case. Held, that the learned judge was wrong, and that the alteration in the rules could not affect the right of the plaintiff, which had become vested, to go to the County Court, and that the learned judge accordingly had jurisdiction to try the case.
[Ritson v. Dobs m. K. B. Div.: Pickford and Lush, JJ. May 1.— Counsel: Ellis Hill; Lowenthal. Solicitors: Raule, Johnstone, and Co., for Paisley, Falcon, Skerry, and Highet, Workington; Stanley Evans and Co., for Dix and Harle, Newcastle.]
Local Government - Rural District Council-Parochial Elector-Threa of Litigation-Counsel's Opinions-Right to inspect-Local Government Act 1894 (56 & 57 Vict. c. 73), s. 58, sub-s. 5.-Rule on behalf of one H. calling on the respondent rural district council to show cause why a mandamu, should not issue to compel them to permit H. to inspect and take copies of and extracts from all cases for the opinions of counsel and all opinions of counsel, with documents and plans accompanying, and all minutes of the meetings of the council and committees held between the 2nd Feb. and the 31st Dec. 1910, belonging to or under the control of the council, with reference to the repair of and the liability to repair a road known as W.-lane, in the parish of Lingfield, pursuant to the Local Government Act 1894, s. 58, sub-s. 5, and the rule was obtained on the ground that inspection was refused contrary to the statute. It appeared upon affidavit that the applicant H. was a landowner and a parochial elector in the district of the respondent council. In that district there was a certain highway which the applicant found it convenient to use. It had fallen into a bad state of repair and he requested the council to repair it. The council refused to do anything in the matter, and the applicant then threatened them with legal proceedings to compel them to repair the road in accordance with what he alleged was their duty. There was some doubt as to whether the road was or was not one for which the council were legally responsible, and they accordingly took counsel's opinion as to their liability. The applicant having discovered that they had taken counsel's opinion, then asked the council to show him the opinion of counsel so taken, but they refused to disclose it, alleging that the document was a confidential document obtained by them in view of their probable litigation with him. Thereupon the applicant obtained the above rule for a mandamus, and claimed a right to inspect the opinion under sect. 58, sub-sect. 5, of the Local Government Act 1894. That sub-section provides that: "Every parochial elector of a parish in a rural district may, at all reasonable times, without payment, inspect and take copies of and extracts from all books, accounts, and documents belonging to or under the control of the district council of the district.' The applicant claimed the inspection under that sub-section as being a parochial elector of the parish. The respondent council assented to the inspection of their minutes, but they refused to give the cases for opinion of counsel and the documents other than their minutes. Two main points were taken on behalf of the council in showing cause against the rule. It was first contended that the words booke, accounts, and documents" in the sub-section did not include such documents as those referred to in the rule, but were confined to books, accounts, and documents which would be brought before the auditor for purposes of audit under the earlier sections of the Act. Secondly, it was contended that these cases for the opinion of counsel and other documents were called into existence in consequence of a claim and threat of legal proceedings by the applicant to compel the council to repair the road alleged by him to be a public highway, and that the sub-section did not give the applicant the right to inspect such documents. For the applicant it was contended that the sub section was not so limited, and that as a parochial elector the applicant had a right to the inspection. Cur. adv. vult. Held, that the words "all books, accounts, and documents" would include cases submitted to counsel and counsel's opinions thereon, and that ratepayers as such would have a right to inspect such documents, but that as the applicant did not desire to inspect the documents as a ratepayer, but as a litigant and with a view of obtaining evidence in support of his claim, the writ ought not to be granted, and the rule was discharged upon that ground.
[Rex v. Godstone Rural District Council. K. B. Div.: Lord Alverstone, C.J., Bray and Bankes, JJ. May 1.-Counsel: Macmorran, KC. and W. Mackenzie; Danckwerts, K.C. and Hansell. Solicitors: Turner and Evans, for E. A. Head, East Grinstead; Hasties.]
Negligence-Cattle on Highway-Open Gate-No Evidence as to by whom opened-Prima facie Evidence of Negligence-Burden of Proof. Appeal from the decision of His Honour Judge Tindal Atkinson, sitting at the Romford County Court. The plaintiff, a domestic servant, was riding on a bicycle at 10.30 p.m along a highway adjoining a field in which the defendant kept 100 cows. The field in question communicated by a gate with the high way, and at the time when the plaintiff was passing the gate was open, and she saw some cows coming through it. A little further along were other cows which had come from the field, some of which threw the plaintiff down and injured her. At the trial no evidence was given as to by whom the gate had been opened. The learned judge held that in the circumstances the fact that the defendant's gate was open and that his cows had strayed on to the rod through the open gate and had caused the accident to the plaintiff afforded evidence of negligence, and that it was for the defendant to displace this evidence by showing that the gate was not left open by reason of any negligence on his part or on that of his servants. Upon the evidence he held that the defendant had not displaced this prima facie case, and gave judgment for the plaintiff for £75. The defendant appealed. The court (Pillimore and Horridge, JJ.) differed. Held, by Horridge, J., that the fact that the defendant's gate was open at 10.30 p.m. and that his cows strayed on to the highway, afforded some evidence of negligence on the part of the defendant, and that, this not having been displaced by the defendant's witnesses, the decision of the learned judge was right. Held, per Phillimore, J., that the learned judge was wrong in holding
that the fact that the defendant's gate was open imposed the burden upon him of showing that it was not so open owing to his negligence or that of his servants, and that the onus was on the plaintiff to prove that such was the case. The court having disagreed, the appeal was accordingly dismissed.
[Ellis v. Banyard. K. B. Div.: Phillimore and Horridge, JJ April 7 and 27.-Counsel: C. E. Jones; E. B. Charles. Solicitors: R. H. Bentley, for Albert H. Symons, Romford; Griffith and Gardiner.]
Public Health-Unsound Meat-Public Health Act 1875 (38 & 39 Vict. c 55), 88. 116, 117-Public Health Acts Amendment Act 1890 (53 & 54 Vict. c. 59), 8. 28.-Case stated on an information preferred by the respondent against the appellant under sect. 117 of the Public Health Act 1875 charging that one piece of veal-to wit, fillet-sold for the food of man on the 8th Oct. 1910 in the district of Long Eaton was on the 10th Oct. 1910 lawfully seized by the respondent, the inspector of nuisances for the district, it then appearing to the respondent to be unsound and unwholesome and unfit for the food of man, and that the piece of veal-to wit, illet-was afterwards on the 10th Oct 1910 in due course of law adjudged by one of His Majesty's justices of the peace for the county of Derby to be unsound and unfit for the food of man and condemned by him and ordered by him to be destroyed or to be disposed of as to prevent it from being used for the food of man, and that she the appellant unlawfully was the person to whom the meat belonged at the time the meat was 80 sold. Upon the hearing of the information the following facts were proved or admitted: -About 8 p.m. on Saturday, the 8th Oct. 1910, one S. K., a married woman, residing at Long Eaton, purchased from the appellant, at her shop at 25, S.-road, Long Eaton, a piece of veal weighing 3lb. or thereabouts for the sum of 23. On Sunday, the 9th Oct., S. K. began to cook the piece of veal for dinner, and, while she was so cooking, came to the conclusion that the piece of veal was not in proper condition. Thereupon S. K. took the partly cooked piece of veal to the medical officer of health, Dr. A. B. C., who formed the opinion that it was unfit for food. Dr. C. sent for the respondent, who is inspector of nuisances for the Long Eaton Urban District Council. On his arrival at 3.30 p.m. on the same day the respondent inspected the piece of veal and, being of opinion that it was unsound and unfit for food, thereupon seized it and carried it away. On Monday, the 10th Oct. 1910, the piece of veal was condemned by one of His Majesty's justices of the peace for the county of Derby and by him ordered to be destroyed and it was in fact accordingly destroyed. The piece of veal was in fact unsound and unfit for the food of man at the time of its sale to the said S. K. and the seizure thereof by the respondent. The justices were of opinion that the above facts constituted an offence by the appellant under sect. 117 of the Public Health Act 1875 as amended by sect. 28 of the Pub ic Health Acts Amendment Act 1890, and therefore they convicted the appellant. Held. that the conviction was right.
[Salt (app.) v. Tomlinson (resp). K. B. Div.: Lord Alverstone, C.J., Pickford and Lush, JJ. April 26-Counsel: H. A. McCurdie; Disturnal. Solicitors: Hamlins, Grammer, and Hamline, for B W. Moore, D rby; J. H. Lee and Watts, for E. Williams, Long Eaton.] Railways-Carriage of Goods-Rates-False Account of Goods with Intent to avoid Payment of Tolls—Misdescription of Goods in Consignment Note-Offence- Railways Clauses Consolidation Act 1845 (8 & 9 Vict. c 20), s. 99.-Case stated by justices for the county of Warwick. At the petty sessions at Aston Manor an information was preferred by the respondent, who was an official of the Midland Railway Company and was acting on their behalf, agai st the appellants, under sects. 98 and 99 of the Railways Clauses Conso. lidation Act 1845, charging that the appellants on the 15th Sept1910, then being the owners of certain goods-to wit, an electric stator in two parts-then being about to travel upon the Midland Railway, unlawfully and wilfully did give a false account of such goods by falsely describing the same as "two cases bearers," with intent thereby to avoid payment of certain tolls payable in respect thereof. The appellants were found guilty by the justices and ordered to pay to the Midland Railway Company the sum of £20 of penalty and £10 108. costs. The facts proved were as follows: The appellants carried on business in a large way near Birmingham as manu'acturers of electrical machinery and fittings, and in Sept. 1910 were under a contract with a firm at Bedford to supply for the use of the corporation certain electrical machinery and (inter alia) a single phase alternator generator. On the 15th Sept. 1910 the appellants consigned from their works per the Midland Railway Company, við L. Station, Birmingham. to Bedford a portion of the goods forming the subject of the contract, which consignment consisted of the stator forming part of the singlephase alternator. The stator consisted of a large ring-like casting about 7ft. in diameter bearing or carrying upon it iron laminations and metal cores with their windings of wire. The stator at the time it was consigned was complete, but was divided into two parts and packed in two cases weighing together about 8 tons 15cwt. The two parts only required to be bolted together to make the stator complete. At the time the stator was so consigned a consignment note was handed by the appellants to the railway company describing the goods as being two cases bearers," and that the goods were sent at "owners' risk," the senders paying the carriage. According to the classification of rates made in pursuance of the Midland Railway Company Rates and Charges Order 1891, "bear ra" were chargeable in class C, while electrical machinery or a generator in parts were chargeable at a higher rate under class 2. At the time
of the consignment there was published in the rate book of the company kept at the L. Station the following rates between Birmingham and Bedford: (1) An exceptional rate of 93. 2d., which was a station to station rate at owner's risk and applicable to "bearers" in class C in lots of not less than 4 tons; and (2) a rate of 22s. 9d., which was a C and D rate at company's risk and applicable to machinery and generators in parts under class 2. There was no rate published in the rate book or in force payable in respect of consignments at owner's risk between Birmingham and Bedford of electrical machinery or generators in parts. The goods were in fact consigned 66 as two cases bearers "at owners'
and were so accepted, and the rate of 9s. 2d. per ton was charged upon them as if the description were correct. Sect. 99 of the Railways Clauses Consolidation Act 1845 imposes a penalty upon the owner of goods if he gives a false account of the goods with the intent to avoid payment of any to la payable in respect thereof. The justices found that there was a false account given in order to avoid payment of the tolls, and that there was evidence in law of an offence within the section, and they held that the appellant was guilty of the offence charged. Held, that the view taken by the justices was right, and that there was evidence upon which they could come to the conclusion that an offence under sect. 99 had been committed.
[General Electric Company Limited (apps.) v. Evans (resp.). K. B. Div. Lord Alverstone. C.J., Pickford and Lush, JJ. April 27.Counsel: Disturnal; Sir Alfred Cripps, K.C. and Macassey. Solicitors: H. G. Kenyon, for T. W. Robinson, Birmingham; Beale and Co]
ating-Provisional List-Appeal to Quarter Sessions-Jurisdiction.Case stated by quarter sessions on an appeal against a general rate for the metropolitan borough of S made on or about the 1st April 1910 and based on a provisional valuation list dated March 1910. The appellants are occupiers and owners of certain tramways in the borough of S. The tramways a peared in a provisional valuation list dated the 7th April 1909 as finally approved by the assessment committee of the metropolitan borough. of S. at gross value £9200, rateable value £5000. In the aforementioned provisional list dated March 1910 the tramways were inserted at gross value £10,200, rateable value £6000. The appellants contended and said that they were prepared to prove that between April 1909 and April 1910 there had been no alteration in the tramways or the tramways connected therewith save the construction of a new curve in the borough for the purpose of relieving congestion of traffic and the opening of the lines outside the borough in M.-street, Hackney, which had been reconstructed for electric traction. The appellants stated and tendered evidence to prove that these alterations had not resulted in any increase of the earnings of the tramways, and that there had not been before the overseers or assessment committee of the borough. any evidence of any increase in the value of the tramways within the meaning of sect. 47 of the Valuation (Metropolis) Act 1869 or at all, and contended that the respondents had no power to insert the tramways in any provisional list in March 1910 at the sum of £6000 rateable value or at any other figure, and that the list was (so far as it related to the tramways) null and void, and that the rate appealed against was bad and ought to be quashed. The respondents, by way of preliminary objection, contended: (1) That by sect. 45 of the Valuation (Metropolis) Act 1869 the valuation list for the time being in force must be deemed to have been duly made and was conclusive evidence of the gross and rateable value of the several hereditaments included therein for all or any of the purposes of that section, and that by sect. 47. sub-sect. 10, of the Act a provisional list during the time that it is in force must be deemed to form part of the valuation list for the time being in force, and that every rate and tax in respect of which the valuation list is conclusive whion are respectively made and charged as provided in that scheme must be levied accordingly, and that therefore the afore-mentioned provisional list dated March 1910 was conclusive evidence of the gross and rateable values of the several hereditaments included therein for the purpose of levying the rate appealed against; (2) that the appellants' appeal was in substance and effect an appeal against the afore-mentioned provisional list of March 1910; (3) that no appeal to quarter sessions lay against any provisional list on the authority of the decision in Fulham Union v. Wells (59 L. T. Rep. 103; 20 Q. B. Div. 749); (4) that the appellants' remedy, if they contended that they were over-assessed, was to obtain repayment of the amounts overpaid under sect. 47 (10), of the Valuation (Metropolis) Act 1869; and (5) that the London Quarter Sessions in the circumstances had no jurisdiction to hear the appeal. The Court of Quarter S ssions were of opinion that in the circumstances they had no jurisdiction to hear the appeal. Held (dismissing the appeal), that the Court of Quarter Sessions was right.
[London County Council (apps.) v. Shoreditch Borough Council (respa ). K. B. Div. Lord Alverstone, CJ., Pickford and Lush, JJ. April 25.-Counsel: Ryde, K.C.; C. A. Russell, K.C. and Courthope-Munroe. Solicitors: E. Tanner; H. Mansfield Robinson,]
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