« EelmineJätka »
ather's estate. Furthermore, it seemed to the court to be a transaction for the advance and repayment of money, so that it was likewise covered by the first branch of the sub-section. Whether the transaction could have been ripped up on the ground that the interest charged in respect of the sum actually lent was "excessive," or that the transaction was "harsh and unconscionable it became, of course, unnecessary to discuss. Nor was anything said in the judg. ments as to the right of the moneylender to recover, in subsequent proceedings, the sum actually lent to the grantor. But presumably the decision is without prejudice to any such right, for otherwise gross injustice would be inflicted.
REFERRING to the suggestion in The Conveyancer" of last week that a voluntary transfer of stock would only attract a duty of 108. per cent. on the value thereof, a correspondent writes to say that in several cases within his knowledge of voluntary transfers of shares Somerset House have required a certificate from the company's secretary stating the value of the shares transferred, and have stamped the transfer with ad valorem duty at 103. per cent., and have adjudicated the stamp; thus confirming our view.
As the relationships in life become more complicated and artificial, so does it become more difficult to apply the old principles of law or equity to them. Of late years many companies and corporations have been undertaking the position and duties of trustees, and this has given rise to a question of great general importance-viz, whether the directors of a company, who are acting as trustees or agents, stand in a fiduciary relationship to the cestui que trust or principal. There appears to be a considerable conflict both of authority and judicial opinion on the point. In Nicholson v. Tutin (2 Kay and J. 18; 3 Kay and J. 159) the facts were, shortly, as follows: Tutin and Watson were trustees of an assignment for the benefit of creditors, the trusts of which assignment were being administered by the court. In the accounts carried into chambers by the trustees the sum of £450 was charged by Watson as commission for collecting the rents, It appeared that he had been appointed, after the execution of the assignment, as agent of mortgagees, who had no express power to appoint a receiver to receive the rents, and it was held that he could not be allowed the aforesaid commission. Vice-Chancellor Wood in the course of his judgment said: "To maintain a claim to commission Watson must either show that he was appointed agent of the mortgagees prior to the creditors' deed, or that there was a special agreement at the time of his accepting the trust that he should receive a commission. It is proved that he was appointed subsequently to the trust deed. I do not think that it is competent for a trustee to accept such a position unless there had been previously a special contract that he should have compensation, or such a case of necessity as would justify such a claim if made by a mortgagee in possession. But the person to determine whether or not there was such a necessity, or to make such a contract, in this case would be the trustees themselves, of whom Watson was one. He would have to decide concerning the commission to be allowed to himself. The case therefore falls within the principle laid down by this court, namely, that it will not allow a person to put himself in a position where his interest will be inconsistent with his duty." In Kavanagh v. Workingman's Benefit Building Society (App. 1896, 1 Ir. 56) the defendants, who were mortgagees of two houses at C, in the county of Dublin, went into possession as mortgagees, and appointed one of their directors to collect the rents as their agent. The mortgage deed contained a power to appoint a receiver, and it was held by the Court of Appeal in Ireland that the company could not claim any commission paid to the directors. Lord Ashbourne thought the director could 'not claim commission against the mortgagor becs use he might have voted for his own appointment. Lord Justice FitzGibbon thought that the disability arose from inconsistency between duty and interest. Lord Justice Barry thought the director was a part of the corporation." The question came before the Court of Appeal in Engiand in the recent case of Bath v. Standard Land Company Limited (1911) 1 Ch. 618). In that case the plaintiff was a bankrupt in 1893. He owned land in Kent which he believed to be of considerable value beyond his liabilities. The Creditors' Assets Company Limited, of which the defendant company was the successor, was a land company with very wide objects. The articles of association expressly provided that any director might make a profit out of any contract he made with the company provided he did not vote in respect of any contract in which he was 'interested, and the articles of the defendant company contained a similar provision. By an agreement of the 20th April 1893, the Creditors' Assets Company arranged with Mr. Bath, the plaintiff, to manage, develop, and realise his estates on certain terms as to remuneration, and in the course of such management employed one of its directors, who was a solicitor, to act professionally for the estates, and paid his bill of costs which contained profit items. The sompany employed another director, who was an estate agent, to manage at a salary a business connected with the estates, and the company employed another director, who was an auctioneer, to act as auctioneer on all sales of the estates at the usual commission; and gave its secretary, who was a chartered accountant, an additional salary for keeping the books of the estates, which were of a complicated nature. Second Sheet.
It was held by the Court of Appeal (Lord Justice Fletcher Moulton dissenting) that the directors stood in a fiduciary position to the company but not to the plaintiff, and that the profit, costs, salary, and commission paid to the directors in their professional capacity might be allowed in taking the accounts between the plaintiff and the company under the agreement. Cozens-Hardy, M.R. distinguished Nicholson v. Tutin and differed from the decision in Kavanagh v. Workingman's Benefit Building Society, and in the oourse of his judg ment said: "Directors stand in a fiduciary relation to the company, but not to a stranger with whom the company is dealing. It is, of course, true that a company acts through its directors, but that does not involve the proposition that if a breach of trust is committed by a company acting through its board, a beneficiary can maintain any action against the directors in respect of such breach of trust. Of course I except the case where trust property can be followed into the hands of a director or of any stranger with notice. No such point arises here." Lord Justice Buckley in the course of his judgment said: "A trustee may, of course, employ and pay an agent for a purpose proper in the execution of the trusts. The trustee who employs a solicitor or a collector of rents, or an auctioneer, for the purposes of the trusts is of course entitled to be reimbursed his expenses of so doing. The trustee, however, must not render such a service himself and take payment for it himself, because he then puts himself in 8 position in which his duty and his interest conflict. . . The board of directors, of whom Mr. May (the solicitor) was one, made the appointment, but the duty to make a proper appointment as towards Mr. Bath was not in Mr. May, but in the company. A director is not personally liable for the breach of trust or breach of duty of the company towards a person contracting with the company. Mr. May, therefore, in making the appointment (if he did make it) was not acting in a matter in which he personally owed a duty to Mr. Bath. He owed a duty to the corporation whose director he was, but he owed no duty to Mr. Bath." His. Lordship also said: “I cannot follow Lord Justice Barry in saying that the director is a part of the corporation.' There are no parts of a corporation. The corporator is not part of, but is a wholly different person in law from, the corporation of which he is a member. Lord Justice Fletcher Moulton, in the course of a long and learned judgment, differed from the rest of the Court of Appeal. He considered that where a limited company undertakes the administration of a trust the directors 88 individuals are in a different position from an ordinary agent, inasmuch, so far as knowledge and intention are concerned, the company is an abstraction, and that where directors actually perform their part in the management of the company they are both the brains and hands of the company, and they cannot shelter themselves under the plea that the knowledge of the trustee is not their knowledge, and consequently that the directors in the present case could not use their position as de facto administrators of a trust to profit themselves or one another. The following remarks of the learned judge are certainly cogent : "The strength of the position of cestuis que trust hitherto has been that no profit could be made by those administering the trust out of such administration, so that no question of self-interest could divert the trustee from the duty to use his powers solely in the interests of the cestuis que trust. But if such principles are wholly inapplicable to the ipdividuals who in the case of a trustee company are the persons really administering the trusts, that is the directors, and if they can use the powers which are thus in their hands to their own personal advantage without incurring any liability to the cestuia que trust, the old security of the position is gone.' Logically the decision of the majority of the Court of Appeal seems to be right, but there is undoubtedly much force in the observations of Lord Justice Fletcher Moulton before cited.
MISCELLANEOUS PRECEDENTS (continued).
Assignment by Trustees to Beneficiaries of a Charge upon Land. THIS INDENTURE made the
19 BETWEEN A. B.. and C. D. of aforesaid
in the county of
in the county of
land messuages and hereditaments comprised in or conveyed by the said indenture of the day of 1888. And it was thereby provided that after the decease of the said D. J. the trustees for the time being of the indenture now in recital should have full discretion to leave the said sum of £x on the security of the covenant and charge therein before contained for such time as the said trustees or trustee might think proper without being liable for any loss occasioned thereby. And it was thereby agreed and declared that the said trustees or trustee should invest the said sum of £x in manner therein mentioned and should stand possessed thereof and of the investments for the time being representing the same upon trust to pay the interest thereof to the said E. F. during her life for her separate use and from and after her decease should stand possessed of the said sum of £x and the investments representing the same and the interest and income thereof in trust for the said G. H. absolutely if and when she should attain the age of twenty-one years or marry under that age. AND WHEREAS the said D. J. died on the day of AND WHEREAS the said sum of £x with interest thereon from the day of last still remains owing to the said A. B. and C. D. as such trustees as aforesaid on the security of the said covenant and charge contained in the hereinbefore recited indenture of the day of 189. AND WHEREAS the said H. M. died on the day of 19 leaving the said G. H. his only child him surviving. AND WHEREAS the said G. H. attained the age of twenty-one years on the day of 19 AND WHEREAS the said E. F. on the day of intermarried with the said F. F. but no settlement was made upon or has been made since such marriage. AND WHEREAS the said land messuages and hereditaments situate at aforesaid are now vested in E. J. a son of the said D. J. as owner in fee simple thereof subject to the said charge of £x and interest. AND WHEREAS under the circumstances aforesaid the said E. F. and G. H. are between them absolutely entitled to the said sum of £r and interest and the securities for the same and they have requested the said A. B. and C. D. to transfer the same to them in manner hereinafter expressed. NOW THIS INDENTURE WITNESSETH that in pursuance of such request the said A. B. and C. D. as trustees at the request of the said E. F. and G. H. do hereby assign unto them the said E. F. and G. H. ALL that the said principal sum of £x secured by the herein before recited indenture of the day of 189 as aforesaid
and the interest now due and henceforth to become due for the same together with the benefit of the covenant by the said D. J. in the said indenture contained for payment of the said principal sum of £x and interest thereon. And the said charge and the benefit thereof and all other securities for the same principal sum and interest. To HOLD the same unto the said E. F. and G. H. their heirs executors administrators and assigns absolutely discharged from the trusts of the said indenture of the day of IN WITNESS, &c.
In the House of Lords the following cause will be taken on Monday next, at 10.45: Lord Advocate (on behalf of His Majesty) and others v. Walker Trustees.
Interlocutory appeals from the Chancery Division will be in the list for hearing in Appeal Court II. to-day (Saturday).
Appeals under the Workmen's Compensation Act will not be taken during this or next week.
The following will be in the paper of Appeal Court I. for hearing on Monday next, after anything part heard: The Devonshire; The Owners ol the Barge Leslie v. The Owners of the Steamship Devonshire.
Further considerations will be taken by Mr. Justice Warrington on Tuesday, the 18th inst., and not on Tuesday next as previously announced.
The Hon. Mr. Justice Warrington (sitting as an additional judge of the King's Bench Division) will continue the hearing of non-jury cases on the following days, viz: the 11th, 12th, and 13th inst.
Mr. Justice Horridge left London last Saturday for Liverpool, on the Northern Circuit, to join Mr. Justice Lush, and opened the commission on the following day. There is a very slight possibility of these judges returning to London these sittings, as the commission day for Manchester is fixed for Monday, the 17th inst.
Mr. Justice Bray and Mr. Justice Bankes left London last Tuesday for Chester on the North and South Wales Circuit, and opened the commission on the following day. The possibility of these judges returning to London this side of the Long Vacation is very slight.
Mr. Justice Ridley left London on Wednesday last for Nottingham on the Midland Circuit, to join Mr. Justice Pickford, and o pened the commission on the following day. When the business at this town is finished 'Mr. Justice Pickford will return to London and will remain until the Long Vacation, and Mr. Justice Ridley will continue the circuit, going on to Warwick and to Birmingham next Saturday, being joined by Mr. Justice Bucknill.
The July Quarter and General Sessions for cases arising on the north and south sides of the Thames will commence on Tuesday next, the 11th inst., at the Sessions-house, Newington,fat 10.30. The General Sessions appeals will be taken on the following Friday, the 14th inst.,
The July Sessions at the Central Criminal Court will commence on Monday, the 17th inst., at 10.30.
Mr. Justice Bucknill will leave London on Monday next, the 10th inst. for 'Stafford on the Midland Circuit, to join Mr. Justice Lawrance, and will open the commission on the following day When the business at this town is finished Mr. Justice Lawrance will return to town and remain until the end of the present sittings, and Mr. Justice Bucknill will continue the circuit, going on to Birmingham on Saturday, the 15th inst., to join Mr. Justice Ridley, and will open the commission on the following Monday.
The Midsummer Quarter Sessions for cases arising in the county of Middlesex was opened on Saturday last at the Caxton Hall, Westminster, before Mr. Montagu Sharpe (chairman), Mr. Herbert Neild, M.P. (deputy chairman), and other justices. The calendar contains the names of seventeen persons charged with offences.
The first July sitting at the Mayor's Court will commence on Monday next, the 10th inst. at eleven o'clock. The second sitting will commence on Monday, the 24th inst.
Sir Alfred Cripps, K.C., M.P., was on Tuesday last elected chairman of the Canterbury House of Laymen.
Mr. W. S. Commissiong, K.C., is acting as Chief Justice of Grenada during the absence on leave of h's Honour R. S. Johnstone.
His Honour Judge Stanger, K.C., has resigned the Recordership of Nottingham, consequent upon his appointment as County Court judge.
Captain A. Roger, Magistrate of St. Kitt's, having left the island for England on leave until December next, the duties of his office have devolved upon Mr. E. E. Meggs, barrister-at-law.
Mr. G. W. H. Jones, barrister-at-law, has been adopted as prospective Conservative and Unionist candidate for the Haggerston Division of Shoreditch.
Mr. John Edward Sly, who since 1892 was the high bailiff of the City of London Court, and who died in May last, left an estate of the gross value of £7206, with a net personalty of £4493.
The Royal Divorce Commission, presided over by Lord Gorell, have held several meetings during the last month with a view of comparing notes to enable the chairman to draw up the report which the committee hope to issue in November next.
The London Solicitors Golfing Society beat the Bar Golfing Society at Woking on the 1st inst. by 10 points to 6. They won the singles by 6 to 2, and the foursomes, in which each match counted two points, were halved.
The Treasurer and the Masters of the Bench of the Middle Temple will hold an "At Home" in their hallfand gardens on Thursday next, the 13th inst., from 4 30 to seven o'clock. The gardens are now looking their best, this being greatly due to the master of the gardens, Mr. Justice Phillimore, and the head-gardener of the Inn.
A large number of students and visitors from Ceylon attended an "At Home" in the Waldorf Hotel on Wednesday, and presented Mr. F. H. M. Corbet, barrister-at-law, with a gold watch and chain in recognition of his services to Ceylon and his kindness to Ceylon people. The presentation was made by Sir John Bonser, late Chief Justice of Ceylon. Mrs. Corbet was given a gold and pearl pendant. Among those who attended the "At Home were Lord Justice and Lady Vaughan Williams and Sir Francis and Lady Fleming.
The eleventh annual cricket match, Bar v. Barristers' Clerks, will be played on Saturday, the 22nd inst., at Kennington Oval, commencing at 11 a.m., in aid of the charity fund of the Legal Musical Society. The Lord Chief Justice has promised to be present, and he will be supported by many members of both branches of the Profession. Mr. A. M. Latham is again organising the eleven on behalf of the Bar, and Mr. J. T, Gracey, clerk to Mr. A. A. Hudson, K.C.. is getting together the clerks' eleven. Of the matches already played. the Bar have won four, the Clerks two, and the remainder have been drawn. Tickets, 6d. each, may be had of any member of the committee of the society.
An alteration of considerable importance to electors has been made in the system of registering votes in Battersea. For some years past the town clerk, after careful inquiry, has been in the habit of placing on the "occupiers' list" (Div. 1) the names of all who were regarded as coming within the Kent and Fittall decision, and in those cases where absence of "control was proved, these have been allowed by the revising barrister. Now it is announced that, owing to recent legal decisions, all occupiers of rooms (whether furnished or unfurnished) paying rent to a person living in the same house must claim their vote, the town clerk not being able to do this for them. As the qualifying period expires on the 15th inst., the announcement is one of real interest to a large body of electors.
The Burlington Magazine for July is the one hundredth number issued, and the editor and committee of management may justly pride themselves on the work achieved, for the prophecies of the pessimists which preluded its appearance eight years ago have been falsified and the publication become a success. There are two wellproduced coloured illustrations to Mr. Vallance's article on Some Flemish Painted Glass Panels, and a coloured reproduction of a sketch by the late editor, Mr. Holme. There are interesting articles on Three Paintings by Bartolomeo Vivarini, by Tancred Borenius; on A Family of Flemish Painters, by W. H. James Weale; The Arrangement of Druit Collections, by A. M. Hind; the Pelliot Mission to Chinese Turkestan, by Raphael Petrucci; and the usual good reviews and notices.
At the Leeds County Court on the 30th ult. Mr. Burnett, solicitor, expressed sincere regret at the news of the death of Mr. Registrar Cautherley. Mr. Cautherley, he said, had always shown kindness and sympathy to all with whom he was officially brought in contact. At a later stage his Honour Judge Greenhow made a touching reference to the late registrar. They would all agree, he said, that the loss of their time-honoured registrar, Mr. Cautherley, was a great one. His illness had been very rapid, and his death very sudden. Mr. Cautherley had been a registrar of that court for thirty-three years, and by his death, which had come so soon after that of his senior colleague, Mr. Marshall, the old household had been broken up, and the court would not be the same as it had been for many years past. He was sure the officials, the solicitors, and everyone connected with the court would join with him in extending sympathy to Mrs. Cautherley and the family in the bereavement they had sustained. Mr. Arthur Willey, on behalf of the members of the Bar, associated himself with the remarks of the judge. He could say on behalf of his colleagues who attended that court that they had found in Mr. Cautherley a good friend and an able adviser.
The Benchers of Gray's-inn completed the society's celebrations in honour of the Coronation by entertaining on the 1st inst., in the gardens of the Inn, about 1000 children drawn from elementary schools in the neighbourhood. A large marquee had been erected on the north terrace of the gardens, famous as the site of a summer. house erected by Sir Francis Bacon to his friend Jeremy Bettenham "in memoriam viri innocentis, abstinentis et contemplativi." Satur. day's "summer-house" held no one who on that day at least could have claimed any of these epithets save the first, but the proceedings at the tea provided there could scarcely have been matched in London for unaffected happiness. Elsewhere in the gardens there were negro minstrels, clowns, and conjurers, and each school held races with an ample prize list. At the end the children were massed near the Broad Walk while they sang "God Save the King" to the accompaniment of the Foundling Hospital Band. The Treasurer (Mr. Edward Clayton, K.C.) said a few words to the departing guests, each of whom received at the garden gates a "Coronation bag" containing sweets, fruit, and cakes. Among the Benchers present as helpers were Mr. Lewis Coward, K.C., Mr. C. A. Russell, K.C., and Mr. J. R. Atkin, K C., with the Preacher (the Rev. R. J. Fletcher, D.D.). Mrs. Clayton was also indefatigable in ministering to the children's enjoyment.
At Marion, Indiana, on Tuesday President Taft defined anew his policy as regarde arbitration (says the Washington correspondent of the Times). Arbitration, he said, could not be expected to abolish war, but could greatly minimise the chances of war. The war of 1812, the Mexican War, and, possibly, the Spanish War might have been obviated by resort to an Arbitration Court. Treaties of arbitration with the great European Powers were as integral a part of the pacific policy of the United States as were their efforts, by tactful assumption of the role of altruistic "elder brother," to avert from the Union of Latin Republics the dangers of armed unrest. With the efforts of people like Mr. Roosevelt to belittle the proposed Anglo-American Treaty on the score of the inadvisability of omitting the saving clause about matters of national honour, the President evidently has scant patience. When they formulated the Constitution the American people imposed checks upon their own power. "It is not that they do not recognise that when temptation comes to exercise arbitrary power they will not feel like exercising it, but it is that they deliberately imposed those limitations upon their own action with the intention that they shall be effective, however adverse they may be to yield to them when occasion arises for their enforcement; and so, in agreeing to arbitrate questions of national honour, I see no reason why we should not agree to do so and why we may not have moral courage enough, in spite of our impulses to the contrary, to submit such questions to an arbitral tribunal and await its judgment."
At the first annual meeting of the Society of Genealogists of London, held on Thursday, fhe 29th ult., at Prince Henry's Room, 17, Fleet-street, Mr. William Bradbrook, M.R.C.S., in the chair, the following candidates were elected Fellows: Mr. James Berry, B.S., F.R.C.S.; Mr. William Randall Dunn, Mr. Edward McCreery Shea Hill, of New South Wales; Lieutenant W. P. Pakenham-Walsh, R.E.; Mr. Ashmore Russan, Mr. J. Pim Strangman, the Baroness von Roemer, Mr. H. A. Whitcombe, M.B., Ch.B.; the Rev. Evelyn Young, Fraulein Helene Motherby, Mr. G. P. Townend. Mr. Sydney Chesshyre Bristowe, Mr. G. G. Milner-Gibson-Cullum, F.S.A.; the Rev. C. P. Shipton, M.A.; Mrs. William Gerry Slade, Sir Henry Arthur White, C.V.O.; Mr. Bertram W. M. Whitehill, A.C.A.; Mr. Kington Baker, the Rev. Charles Moor, D.D.; Mr. Edgar Powell, Mr. John Peter Smith, J.P.; Mr. T. Stanley Clack, the Rev. H. L. L. Denny, Mr. Joseph Herbert Tritton, Mr. Thomas Walter Hall, Mr. F. Gelderd Somervell, and Mr. Arthur Hearne Tweedy. It was announced that ninety-seven fellows, members, and associates had been elected since the first meeting of the provisional committee in June last year, that incorporation (as a society not for profit) was effected on the 8th May, that the present revenue exceeded £200, that three sub-committees (on parish registers, on the consolidated index, and on family associa tions) were actively at work, that a considerable number of printed books, original documents, MSS., and index slips had been received, and that the society was in negotiation for a room or rooms in which to place them. The president is the Marquess of Tweeddale, K.T.; the vice-presidente, Lord Llangattock and the Marquis de Liveri et de Valdausa. Mr. George Sherwood, 227, Strand, W.C, acts as hon. secretary.
The Roval Commission on Public Records resumed its sitting at Scotland House, Whitehall, on the 30th ult. Mr. Ernest Law, author of a "History of Hampton Court," referred particularly to his researches among the Household accounts, many of which he found in a state of deterioration. Others were bound with little or no attention to order. He was informed at the Record Office twentyfive years ago-and also a few years ago-that they were hindered by want of means. These documents were of great importance. Many of them were practically inaccessible, owing to the wart of means and staff to deal with them. They ought to be properly listed, catalogued, and calendared.-Professor Oman, Chichele Professor of Modern History at Oxford, said he had been informed that there were Secret Service documents which were not included in the lists, and which were inaccessible. It was occasionally maddening to have to wait several days while one's notes were examined to see that they contained no matter which should not be published. There were several gaps in the Corunna Retreat papers. He thoroughly agreed with Mr. Fortescue that Canning deliberately tore up many of the papers. He agreed that the staff at the Record Office was inadequate.-The Hon. J. W. Fortescue, Librarian at Windsor Castle, said that in the Diplomatic correspondence, after about the time of Pitt's death, there were large gaps. He instanced the case of a bound volume of doouments which passed by some means into private ownership, and which eventually came into the library at Windsor and was restored to the Record Office. He thought it was abstracted because of the presence of a valuable print among the documents. A great difficulty to searchers was the distance between the Record Office and the British Museum, in which many collections of documents were kept. He did not see why the records of the courts of law should be mixed up with the records of the departments. Many people who had valuable family documents kept quiet about them because of the succession duties. The Chancellor of the Exchequer taxed a man for having a dietinguished ancestor.-Mr. Julian Corbett, vice-president of the Navy Records Society, said that the condition of some of the naval records was very bad. The main difficulty was to find out what documents there were at the Record Office. He worked there for fifteen years before discovering that the Admiralty Minutes were kept there; they were of enormous value to the historian. Other records relating to the distribution of ships for over 200 years—a most valuable serieshe did not discover until last week.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
COURT OF APPEAL.
Annuity-Sequestration-Indian Civil Service Annuity-Assignability -(Indian) Pensions Act (No. XXIII. of) 1871, 88. 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 b7 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 writ of sequestration. A summons was taken ont in the same action to decide (in effect) whether the annuity was assignable and liable to sequestration. The defendant raised the point that the (Indian) Pensions Act (No. XXIII. of) 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, sholl 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 pension, pay, or allowance mentioned in sect. 11, in respect of any money not pay. able 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." It was decided by Joyce, J. (ante, p. 9) that the defendant's annuity was not a pension granted or continued by Government" within sect. 11 of the Act of 1871, and was therefore assignable and liable to sequestration, the question of how far the court would give effect to that section in a relevant case being left undecided. The defendant appealed. Held, that the annuity was one to which the defendant was
entitled by way of contract, and was not within the meaning of the Act of 1871. Appeal dismissed.
[Knill v. Dumergue. Ct. of App.: Cozens-Hardy, M.R., Farwell, and Kennedy, L.JJ. June 28 and 30.-Counsel: for the appellant, Hughes, K.C. and Whitmore Richards; for the respondents, Younger, K.C. and Beebee; Edward Beaumont. Solicitors: for the appellant, Valpy, Peckham, and Chaplin; for the respondente, Billing, Thomp son, and Co., agents for Fairfax Spofforth, Bristol; Edward Downes.]
HIGH COURT OF JUSTICE-CHANCERY DIVISION. Company-Voluntary Winding-up-Assets_after_ Dissolution-Motion to revive Company-Rights of Crown-Bona Vacantia Companies (Consolidation) Act 1908 (8 Edw. 7. c. 69), ss. 195 (4), 223.A limited company went into voluntary liquidation in Jan. 1910, and a liquidator was duly appointed. The final meeting of the company was held on the 11th Jan. 1911, when the liquidator submitted his accounts to the meeting. These accounts showed that after payment of all liabilities and of a dividend of 4d. in the pound to shareholders, there was a balance of £26 28. 1d. to cover the remaining costs of the winding-up. The arsets having been apparently all realised, the accounts were passed, and on the 24th Jan. notice of the final meeting was filed by the liquidator with the registrar. In accordance with the Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69), s. 195 (4), the company was deemed to be dissolved on the expiration of three months from the 24th Jan., when the return was made to the registrar. Subsequently to the dissolution certain plant and machinery belonging to the company in Cornwall was realised and produced £500 This item did not appear in the account submitted at the final meeting. The liquidator applied by motion dated the 16th June 1911, to declare the dissolution void pursuant to the Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69), e. 223. The case was adjourned at the first bearing, in order that the liquidator might commnnicate with the Crown in view of any claim to the goods as bona vacantia. At the adjourned hearing an order was made that upon the liquidator undertaking, after deducting costs, to distribute the purchase-money among the shareholders and to render accounts, the Crown would make no claim.
[Re Henderson's Nigel Company Limited. Ch. Div.: Neville, J. June 21 and July 4.-Counsel: H. E. Wright; Sargent. Solicitors: Armitage, Chapple, and Macnaghten; Solicitor to the Treasury.] Local Government-Dwelling-house unfit for Human Habitation-Closing Order-Form of Notice-Owner's Right of Appeal-Housing, Town Planning, &c, Act 1909 (9 Edw. 7, c. 44), se. 17, 41.-The Housing, Town Planning, &c., Act 1909 (9 Edw. 7, c. 44), s. 17, sub-ss. 1 and 2, provides that if any dwelling-house appears to the local authority to be in a state so dangerous or injurious to health as to be unfit for human habitation, it shall be their duty to make an order (referred to in the Act as a "closing order ") prohibiting the use of the dwelling house for human habitation, until in the judgment of the local authority it is rendered fit for that purpose; sub-sect. 3 thereof provides, that "notice of a closing order shall be forthwith served on every owner of the dwelling-house in respect of which it is made, and any owner aggrieved by the order may appeal to the Local Government Board by giving notice of appeal to the board within fourteen days after the order is served upon him." The various forms of notice and other documents to be used by the local authority in connection with the Act are prescribed by the Local Government Board: (see sect. 41 of the above Act). The plaintiff was the owner of two freehold dwelling-houses, Nos. 1 and 2, Regent's place, B.-street, in the County of L, which were let to weekly tenants. On the 30th Jan. 1911, acting on the report of their medical officer the defendant corporation served upon the plaintiff notices of closing orders made by them in respect of these two houses. The notices were in the form prescribed by the Local Government Board, but contained no reference to the plaintiff's right of appeal from the order provided by sect. 17, sub-sect. 3 (ubi sup.), and referred to in the note to the prescribed form. Consequently the plaintiff failed to appeal from the order, and on the 3rd April the corporation wrote to the plaintiff: "As you did not appeal against the closing orders, these have become operative." The corporation then served notices of the closing rder upon the tenants, and also gave notice to the plaintiff as to the date when the demolition of the houses in question would be considered. On the 29th May the plaintiff brought an action to restrain the corporation from taking any further steps to enforce the closing orders in respect of the premises, on the ground of the alleged informality in the notice. The matter now came up on motion for an interlocutory injunction. Held, that the note to the form of the closing order prescribed by the Local Government Board should have been appended, so as to apprise the owner of his right of appeal, and that in the absence of such notice the plaintiff was entitled to the injunction.
[Rayner v. The Mayor, &c., of the Borough of Stepney. Ch. Div.: Neville, J. June 23.-Counsel: Danckwerts, K.C. and Earle; C. H. Russell, K.C. and Whinney. Solicitors: E. Betteley and Alfred Turner.]
Local Government—Rates-Raising Money by Rate for Coronation Festivities-Previous Sanction by Local Government Board—50 & 51 Vict. c. 72, 8. 3—Interim Injunction.-Action by the AttorneyGeneral at the relation of certain ratepayers of the defendant council's district to restrain the defendants from making any payment out of the general district ate of a sum of £240, being a tum equivalent to a rate of d. in the pound, or any other sum,
for or towards the celebration of the festivities in connection with the coronation of His Majesty King George V., or otherwise giving effect to a resolution of the 2nd May 1911 passed by the defendants to the effect" that a sum not exceeding d. in the pound be expended out of the rates in carrying out the coronation festivities in this district." The cost of the festivities was about £300. The Local Government Board in pursuance of their statutory authority had on the 18th April made a general order whereby they sanctioned any reasonable expenses in connection with any loyal address to His Majesty on the occasion of the said solemnity or otherwise in connection with any public local celebration of that occasion which may be incurred by any local authorities in England or Wales "so far as such expenses are charged in accounts subject to audit by a district auditor." The order, which W88 issued to all local authorities, stated in a covering letter: It is recognised that in many localities funds for the public celebration of the Coronation will be obtained by subscription, and the issue of the order is not intended in any way to discourage subsoriptions of this character or other private beneficence. The board, indeed, consider that the powers conferred by the order should be used to supplement funds otherwise contributed for public local celebrations rather than to supersede such funds. The board cannot undertake to advise individual authorities or persone as to whether any particular kind of expenditure might be incurred, or as to the amount which might be properly expended by any particular authority." The plaintiffs now moved for an interim injunction, and contended that the order which was made under 50 & 51 Vict. o. 72, s. 3, only gave a previous sanction to payments which the auditor would have disallowed as unauthorised. and did not affect the question of the legality of the payments; they submitted the payment would be illegal and ultra vires, and that the plaintiffs were therefore entitled to an interlocutory order. Counsel referred (inter alia) to Attorney-General v. Corporation of Cardiff (70 L. T. Rep. 591; (1894) 2 Ch. 337) and Attorney General v. Merthyr Tydfil Union (82 L. T, Rep. 662; (1900) 1 Ch. 516). Held, without deciding whether the payment would be legal or not, that the court would not interfere by injunction with the discretion of the Local Government Board (Attorney-General v. Merthyr Tydfil Union (sup.). No order made on the motion.
[Attorney-General v. East Barnet Valley Urban District Council. June 30.-Ch, Div.: Neville, J.-Counsel: MacMorran, K.C. and Sydney Goodman; Jenkins, K.C. and J. M. Stone. Solicitors : Woodroffe and Ashby; Byfield and Son.]
Practice Note-Administration Action-Order without Reservation of Costa -Further Consideration-Liability of Trustee for Costs.-An administration action coming on for further consideration, the question was raised, by way of preliminary objection, whether the trustee, a defendant in the action, could be made liable to pay costs down to judgment, the order for administration having been made without any reservation of costs. Held, that the trustee should have his costs down to judgment, and his Lordship, after consulting three of the Chancery judges, said that the practice might be stated as follows: "In an action against an executor or trustee, where the court, after hearing the facts, makes an order for administration without any reservation of costs, it is not in accordance with the practice to entertain an application on further consideration that the executor or trustee should be ordered to pay costs down to the judgment; but this practice does not extend to a case where the order is made without evidence on both sides, or full discussion, either for the sake of convenience or to save expense, or otherwise in circumstances in which the court has not aufficient knowledge of the facts."
[Re Gardner; Roberts v. Fry. Ch. Div. Eve, J. June 20.-Counsel: Clayton, K.C. and E. W. Lavington; P. O. Lawrence, K.C. and P. F. S. Stokes; Beebee; Whinne?. Solicitors: Jordan and Lavington; Pownall and Co.; Francis and Veneer.] Solicitor-Lien - Property Recovered or Preserved
of Court-Solicitors Act 1860 (23 & 24 Vict. c. 127), s. 28.-The defendants were executors of a testator whose estate had been administered by the court in a creditor's action. One of them became bankrupt and subsequently died, and the other was not in a position to pay any costs. In the course of the proceedings the plaintiff creditor took out a summons for confirmation of an agreement to sell an asset of the testator consisting of a one-third share in the G. Land Company for the sum of £383. The solicitor to the defendants opposed this application, and an order was made in chambers for sale with the approbation of the judge. The defendants had the conduct of the sale, and the property was put up to auction, realising the sum of £400, which was paid into court. The defendants' solicitor now applied to the court, claiming a lien upon this fund to the extent of his costs of sale. The Solicitors Act 1860 (23 & 24 Vict. c. 127), s. 28, provides as follows: "In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge before whom any such suit, matter, or proceeding has been heard or shall be depending, to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made, such attorney or solicitor shall have a charge upon and against and a right to payment out of the property of whatsoever nature, tenure, or kind the same may be which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor for the taxed costs, charges, and expenses of or in reference to such suit, matter, or proceeding. Held that the proceedings here were proceedings in a court of justice,"
and that the fund in question had been "recovered through the instrumentality" of a solicitor within the meaning of the Solicitors Act 1860, B. 28 (ubi sup.); but that the matter was in the discretion of the court, and that the lien would not here be allowed; for the sum of £64 93. 6d. due from the defendants to the estate had already been treated as payment on account of costs allowed to them, and that the court would not direct payment of the same costs out of a fund in court twice over.
[Re Cockrell; Pinkey v. Cockrell. Ch. Div.: Neville, J. June 28. Counsel: Ward Coldridge; Borthwick. Solicitors: Theodore Bell and Co., for Lucas and Wyllys, Great Yarmouth; Gribble, Oddie, Sinclair, and Johnson.]
Vendor and Purchaser-Specific Performance-Default by Purchaser --Forfeiture of Deposit-Rescission of Contract-Form of OrderPractice. On the 18th Oct. 1910 the defendant entered into a contract in writing with the plaintiff to purchase a freehold shop and dwelling-house in the county of London for £570, and paid the sum of £57 as a deposit, as provided by the contract, to the vendor's eolicitors, as stakeholders. The contract contained the ordinary condition that if the defendant failed to complete his purchase on the 11th Nov. 1910 the deposit should be forfeited and the plaintiff should be at liberty to resell the property, &c. The defendant draft accepted the title to the property, and approved the conveyance, but failed to complete the purchase. The vendor subsequently brought this action claiming specific performance. An appearance was entered by the defendant, who, however, did not deliver a defence, and on the 25th Feb. 1911 the plaintiff obtained judgment for specific performance, and certain conse. quential orders and accounts were made and directed. Subsequently the master certified that £544 odd was the amount due from the defendant to the plaintiff in respect of the residue of purchase money and interest and costs, and fixed the 2nd June for completion. Notice of the time and place for completion was duly sent to the defendant, who had attended the proceedings before the master, but he failed to complete, and the plaintiff now moved for an order, (1) That the agreement of the 18th Oct. should be rescinded, and that the deposit should be forfeited; (2) for the costs of the Fotion and motion; (3) that all further proceedings should be stayed except for the carrying out the order on the motion. Counsel for the plaintiff cited Shut leworth v. Clews (101 L T. Rep. 708; (1910) 1 Ch. 176) and Griffiths v. Vezy (94 L T. Rep. 574; (1906) 1 Ch. 796). The plaintiff here did not ask for an order to resell as in the cases cited, but for a declaration that the defendant had abandoned his contract. Counsel submitted that the plaintiff was entitled to retain the deposit and rescind the contract: (Howe v. Smith, 50 L. T. Rep. 573; 27 Ch. Div. 89; Seton, vol. 3, pp. 2285-8; Farrer on Conditions of Sale, pp. 123 5). The defendant did not appeat. The learned judge said that he did not like to make a new form of order or to make the declaration asked for, but the order might be taken in the following form: The defendant having failed to complete the purchase, declare the deposit forfeited and rescind the
[Jones v. Burnell. Ch. Div.: Neville, J. June 16.-Counsel: A. L. Morris. Solicitors: Harris, Chetham, and Cohen.]
OUR LITERARY COLUMN.
THE CONVENTION OF ROYAL BURGHS OF
THE announcement that the council of Girton College, Cambridge,
The present Convention represents the old Court of the Four Burghs of Scotland formed by King David I., circa 1128. The four Royal burghs referred to were Edinburgh, Stirling, Berwick, and Roxburgh, but later, when Berwick and Roxburgh fell into the hands of the English, the Scottish Parliament eubstituted Lanark and Linlithgow
in their stead "sua lang as they are detained and halden by Inglishmen."
The number of burghs represented in the Court of the Four Burghs being considered too limited, it (the Court) in 1405, under powers possessed by it, "decreited that twa or thrie sufficient burgesses of ilk ane of the King's burghe, upon the south side of the water of Spey, hauand sufficient commision compear yearlie to the Convention of the Foure Burghes, to trait, ordaine, and determe upon all things concerning the utilitie of the common weel of all the King's burghe, their liberties and court."
In a charter granted by James II. 1454 the Convention is described as the "Parliament of the Four Burghs," and he crdained it "to do and exercise all and singular which in any way, in the Court of Parliament, according to the laws, statutes, and customs of burghs are treated upon. considered, and finally determined."
This annual Convention was found to be attended with great advantages, and after an experience of eighty-two years, Parliament, by the Act James 3, 1487, o. 17, ordained that yearly in time to come commissioners from all the burghs south and north of the Spey should convene together "To commoun and trete apoun the welfare of merchandes, the gude rewle and statutis for the commoun proffit of burrowis, and to provide for remede apoun the scaith and injuris sustenet within burrowis." In the early part of the thirteenth century, during the reign of King Robert the Bruce, the Convention formed the Third Estate of the Scots Parliament, and it did 8) de facto until the Union with England in 1707, when that Parliament ceased to exist. By the Treaty of Union it is provided that "the rights and privileges of the Convention now are and do remain entire Under this reserafter the Union, notwithstanding of this Treaty." vation the Convention of Royal Burghs as a Third Estate of the realm remains entire, and its general constitution has never been altered by statute.
The committee, by the Statute of 1487, was appointed to meet n Inverkeithing, but eo far as the records show, it never met there. Its records, so far as shown by the Convention itself, open in 1552 and have been continued ever since. Since the middle of the sixteenth century, the Convention proceedings have been conducted with much regularity. Prior to 1552, the Convention met from time to time in such burghs as it might select. Prior to that date it had no special clerk, but always had an agent. The clerk of the burgh in which the Convention met, however, acted as clerk of the Convention, and its minutes were recorded in the town council books of that burgb. In consequence, the prior minutes of the Convention have been either lost or not collected. The records of the Convention of the Royal Burghs of Scotland are an invaluable source of information which has attracted surprisingly little attention." So writes Professor Cunningham, of Cambridge, now Archdeacon of Ely, who frequently refers to These the records in his Growth of English Industry and Commerce. records, some of which are in Latin and are preserved in the town clerk's office in Edinburgh, contain practically the commercial history of Scotland in the Middle Ages, but much is to be found in them which throws light upon the commerce of other places.
The Convention was known as the Convention of Royal Burghs up to 1879, when a short Act of Parliament, 42 & 43 Vict. o. 27, was passed enabling Parliamentary boroughs to join. It may be mentioned that by Royal boroughs is meant a borough called into existence by Royal Charter, and by Parliamentary burgh, one created by Parliament. In 1895 another Act was passed enabling police burghs, that is, such towns as have their boundaries filed under the general Police Acts of Scotland, to become members of the Convention. The burghal population of Scotland is 2,923,351, and of that number 2,914,466 was represented at the 1909 Convention, leaving only 8885 unrepresented. There are 202 burghs on the Convention roll, and the members of the Convention number 409, the preses, or President, of the 1909 Convention being Lord Provost Brown, of Edinburgh. An analysis of the roll shows that there were 166 lord provosts, provosts, and ex-provosts, fifty-nine bailies and ex-bailies, fifty councillore, and 118 town clerks and ex-town clerks.
Edinburgh sends two commissioners and two assessors, the other burghs each a commissioner and an assessor. Only the commissioners vote, but the assessors can move resolutions, and speak on them, but the assessors may vote in the absence of the commissioner.
The qualifications are for commissioner: that he be a merchant, trafficker, or tradesman, or a proprietor of heritage within a burgh; an assessor must be a residenter in any burgh. These representatives are chosen by their town council, or burgh, or police commissioners. The motto of the Convention is "Ibi ealus ubi multa consilia." The record of the work accomplished during the past hundred years shows that the words are not without meaning. The statutory measures obtained through the Convention include, the first Bankruptcy (Mercantile Sequestration) Act for Scotland; the Act authorising the formation of the Forth and Clyde Canal; the Act establishing the board of manufactures for the encouragement of science and art and manufactures in Scotland; the first Act for the erection of lighthouses upon the coasts of Scotland and the creation of the board of northern lights, and the Act renewing that statute. At the date of the first Act 1789 there were only four lighthouses on the Scottish coasts. The Bell rock light was erected through the action of the Convention. The first Act to enable Scottish burghs to establish a general system of police; the Burghs Harbours Act of 1853, the Act to abolish the exclusive privileges of trading in burghs (prior to this statute, 1846, no person could trade in any Royal burgh unless he was a member of one of the trade incorporations within the burgh); and the Secretary of Scotland Act, which created a separate department for the administration cf Scottish affairs must be included in the list.