« EelmineJätka »
risk that a certain magazine (the principal interest of the business) might fail to be published. The banking account showed a credit of a few shillings only, and the general partner was largely indebted to the firm. Mr. Justice Swinfen Eady has held that under such circumstances, the general partner, moreover, refusing to sign the annual general account whereby drawings in respect of profits would be repayable, the limited partner was entitled to a winding-up order. PATENT cases have been fairly numerous, and some important decisions have been arrived at. Re Fiat Motors Limited's Application (103 L. T. Rep. 453; (1911) 1 Ch. 66) turned on the Patents and Designs Act 1907, s. 25, in regard to revocation on the ground that an article is manufactured mainly outside the United Kingdom. The articles in question here were mainly made abroad, and it was shown that there was a limited manufacture in this country by the patentees or their licensees. It was also shown that infringers of the patents were making an extensive trade by manufacturing in the United Kingdom, and, if this had to be taken into account, it would then be difficult for the applicants to discharge the onus of showing that the patented articles were manufactured mainly outside this country. The comptroller was of opinion that the patentees could rely on the infringing manufacture. Mr. Justice Parker now holds that the comptroller ought not to concern himself with the question whether what has been done abroad has been done with or without the consent of the patentee. So the comptroller need not inquire whether what has been done in England is or is not in derogation of the rights of the patentee, and should not exclude from his computation what has been done in derogation of such rights. The following important dicta should be noted: "Further than this, it seems to me impossible that the Legislature should have contemplated an inquiry so far-reaching as to embrace the rights inter se of the patentee and everybody in the United Kingdom who is manufacturing the article or carrying on the process the subject of his patent. One man may be manufacturing the article or carrying on the process because he believes the patent is invalid; another, because he maintains that on the construction of certain correspondence between himself and the patentee he has a free licence; a third, because he contends that in equity the patent belongs to him; and yet a fourth because he thinks that in an action for infringement he will have a defence under sect. 25 of the Act." The learned judge thought, therefore, such questions do not concern the comptroller at all. The question is left open whether sect. 27 (2) does not render lawful everything done while the patent is revocable, although it would otherwise be an infringement. The learned judge thought this " quite arguable." The same learned judge in Re Green's Application (104 L. T. Rep. 629; (1911) 1 Ch. 574) held that, in considering whether a patent should be revoked under sect. 27 (1) on the ground of manufacture being mainly outside the United Kingdom, the court is not called upon to determine that there was a manufacture of the patented article or a carrying on of the patented process at the precise moment when the petition is lodged. Nor will some temporary cessation of manufacture and a sale of stock in the meantime prevent sub-sect. 1 from coming into effect, but where manufacture and business are permanently stopped the section will not apply merely because the remaining stock is sold after the business has come to an end.
We now pass to the very different class of case which crops up in connection with the equitable doctrines relating to POWERS OF APPOINTMENT. We may cite Cloutte v. Storey (103 L. T. Rep. 617; (1911) 1 Ch. 18). The question before the Court of Appeal was whether certain appointments were in fraud of the power or whether they were valid. The evidence proved that they were made in the interest and for the benefit of a father and mother, and were frauds on the power. It was held that an appointment in fraud of an equitable power, not so acting as to pass the legal estate, is void, and a purchaser for value without notice can only rely on such equitable defences as are open to purchasers without the legal title who are subsequent in time against prior equitable titles. An appointment under a common law power, or a power operating under the Statute of Uses, by which the legal estate has passed, is at most only voidable, and a purchaser for value with the legal estate and without notice is not affected by the fraudulent execution of the power. It was further considered what the effect was of a certain compromise in a Chancery action which affected the settlement. Lord Justice Farwell said that it was not in accordance with principle or authority to construe deeds of compromise as regards certain specified questions so as to deprive any party of any right not then in dispute and not in contemplation by any of the parties to such deed. Therefore persons claiming in default of appointment were not precluded from proceedings to secure the setting aside of a fraudulent appointment by their having executed a deed of compromise concerned with matters not then directly in issue. Re Seabrook; Gray v. Baddeley (103 L. T. Rep. 587; (1911) 1 Ch. 151) turned on sect. 27 of the Wills Act 1837, dealing with general bequests operating as exercises of powers of appointment, unless a contrary intention shall be manifested. In this case a general power of appointment had been given to S. M. S., and the latter, after making certain specific devises, directed that the remainder of her property in houses and lands should be divided among her nephews. She concluded her will by appointing executors, but included in its provisions no residuary gift of personalty. The question was whether such a will operated as the execution of a power of appointment over a one-third share of the proceeds of sale of the estate of the donor of the power. It is very material to note that if the power was not to be deemed to be exercised the personal estate of S. M. S.
was insufficient to pay them; but if exercised then there was a sufficient margin after paying debts and funeral and testamentary expenses and the legacies bequeathed. Mr. Justice Warrington has held that the execution of a will containing no residuary bequest of personalty, but merely the appointment of executors and bequests of general legacies, will, where the donee's estate is thus insufficient, operate as an execution of the power to the extent of the sum necessary to enable both debts and the legacies to be paid by the aid of the property of the donee of the power.
PRINCIPAL AND AGENT cases may next receive our notice. In Kinahan and Co. Limited v. Parry (103 L. T. Rep. 867; (1911) 1 K. B. 459) the defendants were hotel owners, and they appointed a manager. The latter held the licence, and his name was painted over the door. The defendants instructed him to buy his spirits from a certain firm, but, instead of conforming with this order, he ordered them from the plaintiffs. The latter knew nothing of the special instructions given to the defendant, and afforded him credit. At a later date the plaintiffs sued the defendants for the price of the spirits on learning that they were the owners. It was held by the Divisional Court (Justices Pickford and Coleridge) that the plaintiffs could maintain this action as there was no presumption in such a case that a licensee was a mere manager with limited authority and tied. The Court of Appeal has during the past year reversed this decision, and by so doing throws some balance in the scales in which certain decisions of weight have produced an equilibrium. It seems a rather different case to one where the proprietor and not the manager was the licensee. The mere fact that the licensee-manager's name appeared on the door rather threw dust into the eyes, and would not lead persons to suppose that he was not the proprietor or subject to limitations of authority. Bath v. Standard Land Company Limited (104 L. T. Rep. 867; (1911) 1 Ch. 618) was a case where a company empowered the plaintiff to manage certain real estates, and employed one of its directors to act as a solicitor. His profit costs were paid. Another director acted as an estate agent for the company at a salary, another as auctioneer, and there was also a secretary, who, for acting as chartered accountant The Court and keeping the books, obtained a larger salary. of Appeal held that the company on the agreement with the plaintiff could not make any charge in respect of keeping the accounts, and, by a majority, it was held that the directors stood in a fiduciary relation to the company, but not to the plaintiff, and that the profit costs, salary, and commission paid to the directors in their professional capacity could be allowed in taking the accounts between the plaintiff and the company. Lord Justice Fletcher Moulton laid down the rule that where a limited company undertakes the administration of a trust, the directors as individuals are not in the position of ordinary agents, and are liable for matters of personal conduct inconsistent with their full knowledge of the fiduciary character of the duties carried out by them in the company's name.
One most important case on the law relating to PROMISSORY NOTES should be duly noted up. Talbot v. Von Boris and Wife (104 L. T. Rep. 524; (1911) 1 K. B. 854) turned on the construction of the Bills of Exchange Act 1882, s. 30 (2). The female defendant signed certain notes then in action, but she asserted that she did so under duress of her husband. The evidence established this, and the jury found that the notes were signed under this pressure, and the question before the Court of Appeal was whether the plaintiff, the holder of the notes, was under the onus of showing that value was given by him in good faith. The plaintiff was not called at all as a witness, and consequently gave no evidence to rebut the female defendant's allegation that he knew of the pressure brought to bear on her. It was held that the onus of proof with regard to the plaintiff's knowledge of duress rested on the defendant and was not shifted by sect. 30 (2), and therefore the plaintiff succeeded, and the sub-section is not to be applied to any case where the holder who is seeking to enforce a negotiable instrument is the person to whom that instrument was delivered in the first place and in whose possession it still remains.
(To be continued.)
THE question of civil business at the winter assizes came before the Belfast Chamber of Commerce last week, when a resolution was moved requesting one of the committees of that body to take such action as might be necessary "with a view to the restoration of the civil side of the business at the Ulster Winter Assizes." It was pointed out that great inconvenience was caused to the city of Belfast owing to no civil business being disposed of at the winter assizes, and one of the speakers, according to a report in the newspapers, gave the following explanation of why the judges had ceased disposing of civil business at that aesize: "It appeared that when the judges went on circuit they were allowed a fixed sum for expenses. The judge who heard the civil business on the last occasion prior to its suspension was detained some time owing to the amount of business, and was therefore at the expense of extra lodging. He applied to the Treasury for the extra allowance, which was refused. The result was that the judges threatened something like a strike. The Privy Council at their next meeting struck off the hearing of civil bills at the winter assizes.” If this is the correct explanation of the matter, it certainly reflects no credit on those who are concerned,
AN interesting discussion took place at the recent Public Health Congress in Dublin with reference to the duties of municipal bodies as regards the Sale of Food and Drugs Acts, and Mr. M. C. Macinerney. K.C., one of the Divisional Police Justices of Dublin, gave his experiences with reference to the administration of those Acts. It was urged that (in Dublin particularly) greater precautions should be taken than are taken at present with reference to the sale of fish and vegetables-articles which are highly perishable and highly dangerous to health if unsound. Mr. T. W. Russell, Vice-President of the Department of Agriculture, gave some startling instances of the administration of these Acts by magistrates in some of the counties. He said that in County Clare a bench of magistrates had imposed a fine of only one penny upon some persons who had watered milk to the extent of 32 per cent. In Dublin, a butter vendor, who had been persistently selling margarine for Irish creamery batter to a gentleman in County Clare, was found guilty by a jury, and the judge, instead of sending the vendor to gaol, fined him £50. The prisoner put his hand in his pocket and paid the £50 at once. Mr. Russell added that his conviction was that until magistrates, in the interests of the poor, dealt severely with offences of this stamp, these nefarious practices would go on.
THE first prosecution under the Weeds and Agricultural Seeds (Ireland) Act 1909 came before & bench of Tipperary magistrates on the 29th ult. That Act provides that the Department of Agriculture may, with the consent of the council of any county, make an order declaring that throughout the county all plants of any species to which the section applies are noxious weeds for the purposes of the Act. The species of plants to which the section applies are ragwort, charlock, coltsfoot, thistle, and dock. Orders have been made by the department with reference to a considerable number of counties in Ireland. Then sect. 2 provides that where the department are satisfied that there are noxious weeds growing upon any land, they may serve a notice upon the occupier of the land requiring him to cut down and destroy those weeds in the manner and within the time specified in the notice. If the occupier makes default, it is provided that he shall be guilty of an offence under the Act. It was under this section that the prosecution took place, and it was stated that a number of other prosecutions were about to take place for similar offences. It is clear that the department are determined to put the Act into force. The chairman of the magistrates said that the feeling of the court was that as this was the first case under the Act they would only inflict a fine of 10s.
THE Irish Government has had under consideration the question of the committal of children to industrial schools for non-compliance with attendance orders. The matter bas arisen in County Down, and, in answer to a complaint from Mr. MacVeagh, M.P., the Chief Secretary pointed out the view of the law that is taken by the Irish law officers. It appears that a summons was taken out under sect. 4 of the Irish Education Act 1892 in respect of the non-compliance with a certain attendance order. The magistrates refused to commit the children to industrial schools as the case had not been brought before the court for that purpose. The Chief Secretary said that he has been advised that this view of the law is incorrect. A summons under sect. 4 can only be an application for an attendance order or for the imposition of a fine for non-compliance with one; but under sect. 133 (20) of the Children Act 1908 the magistrates may, if they think fit, instead of imposing a fine, send a child to an industrial school. It seems to be for the magistrates of their own motion to substitute the industrial school for the fine, but the Chief Secretary said that before making such an order it appeared to be desirable that the county council should get an opportunity of being heard, and for that purpose the hearing of the summons might be adjourned. Sect. 133 (20) of the Act of 1908 provides as follows: "For the provisions of this Act relating to an enforcement of an attendance order the following pro. vision shall be substituted: A court of summary jurisdiction constituted in accordance with the provisions of the Irish Education Aot 1908 may, if it thinks fit, on complaint of a school attendance committee made under sect. 4 of that Act for the purpose of enforcing an attendance order, order a child to be sent to a certified day industrial school, or, if it appears to the court that there is no such school suitable for the child, to a certified industrial school, either in addition to or without inflicting any fine under that section.""
Two matters of considerable legal interest were discussed last week at a meeting in Dublin of the Association of Chambers of Commerce. The first was the question of the Irish law of bankruptcy, and a resolution was passed to the effect that that law is, from the point of view of the business community, in an unsatisfactory condition. For a long time the Irish Chambers of Commerce have been calling upon the Government to bring the Irish bankruptcy law into consonance with the English bankruptcy law, the last amendment to that law in Ireland having been made by the Act of 1872. It is alleged that the amendment of the latter has been blocked by the Legal Profession, who believe that it is very doubtful if the system obtaining in England is so very much superior to that in Ireland. It appears that a Viceregal Commission of Inquiry was promised, bnt it was delayed in order that the report of the Departmental Committee on the Bankruptcy Laws in England might first be published. That report was published in 1909, but nothing has been done in Ireland since that time. The second matter that was discussed was the amendment of the Workmen's Compensation Act 1906. Some of the suggested amendments were
as follows: That workers attaining the age of fifty should be permitted to contract out of the Act; that serious and wilful misconduct should be a bar to all claims; that when an operation is desirable and medically recommended, weekly payments should cease until it is permitted; that a medical officer should sit with the County Court juage on the demand of either party; that discretion should be given to the judge to require security for costs; that there should be an amendment of the Act in regard to appeals; that in cases of accident on board ship similar notice should be given by the workmen as in ordinary cases; that in the case of lump-sum settlements some arrangement for spreading the payments over the period, to prevent risk of loss or the squandering of the whole amount of the grant, should be made; that the rules should be altered with the object of hastening proceedings for review or the rehearing of awards; that in medical cases listed for review, power should be given to the court registrar to deal with the same assisted by a medical referee; and that there should be some provision against malingering.
COMMENTS ON CASES.
FAR REACHING in its importance is the decision of the Court of Appeal in the recent case of Bath v. Standard Land Company Limited (104 L. T. Rep. 867), but there is one everyday transaction in the building society world to which it has very particular application. When, in consequence of the default of a borrower from such a Eociety, it is constrained to exercise its power as mortgagee to appoint a receiver of the rents of the mortgaged property, it is by no means uncommon to permit cne of the members of the board of directors to act in that capacity. Until the judgment of the Court of Appeal in Ireland in Kavanagh v. Workingman's Benefit Building Society (1896, 1 Ir. Rep. 56), it was generally supposed that the fact that the receiver was an officer of the society did not debar him from charging the usual commission on the gross amount of all money received by him, as his remuneration for 80 acting. But the decision in that case being what it was, considerable doubt has since been entertained as to the propriety of the practice to make that charge in the absence of an express stipulation for it. It has become, therefore, not unusual to insert in the clause in the mortgage deed authorising the appoint. ment of a receiver, or in provisions supplemental to the statutory power, words to the effect that the person appointed to collect and receive the rents of the mortgaged property ehall be entitled to a commission, “ notwithstanding that he may be an officer of the Society." The strong observations of the learned judges who decided Kavanagh's case (ubi sup.) certainly rendered the doubt that arose on this point not without foundation, even though the decision was not binding upon the courts in this country. The feeling, however, was that the tendency would be to adopt what had been laid down by the Irish Court of Appeal-namely, that a receiver who was a director of a mortgagee society could not make a profit for himself in the shape of remuneration for collecting the rents of the mortgaged property. This was considered by the Irish court to be an applica tion of the doctrine of Nicholson v. Tutin (3 K. & J. 159; 3 Jur. N. S. 235). In that case a mortgagor conveyed all his real and personal estate to the mortgagees in trust for creditors. It was held by Vice-Chancellor Page Wood that one of the mortgagees was not entitled to a commission on the rents received by him under an appointment as receiver by himself and his co-trustees. In Kavanagh's case (ubi sup.), Lord Ashbourne thought that the ground for disallowing the commission was because the director might have voted for his own appointment; while Lord Justice Fitzgibbon, with whom Lord Justice Walker substantially agreed, gave as the reason the inconsistency between the director's duty and interest. In Bath's case (ubi sup.), which came before Mr. Justice Neville in the court of first instance, his Lordship observed that the reasoning of the learned judges in the Irish case commended itself to his mind, and accordingly he applied their decision in giving his judgment. To two of the learned judges of the Court of Appeal-the Master of the Rolls and Lord Justice Buckley-on the other hand, the reasoning of the Irish court seemed to be fallacious, and the decision not right in principle. "The conflict between interest and duty," said the Master of the Rolls, only arises where a fiduciary relation exists between the parties." The directors of a building society do not stand in a fiduciary relation to a person who, having borrowed money from it, mortgages his property to secure the advance. Although they stand in a fiduciary relation, and owe a duty to the society, their position is not the same in regard to the mortgagor. For, as appears from Re Wincham Shipbuilding and Boiler and Salt Company; Pocle, Jackson, and Whyte's case (38 L. T. Rep. 659; 9 Ch. Div. 322), the directors are only trustees for the shareholders of a building societyof whom a mortgagor to it would be one-in a qualified sense. Justice Fletcher Moulton in delivering his judgment dissented from the majority on the question whether in Bath's case (ubi sup.) the directors of the company stood in a fiduciary relation to the plaintiff And apparently his Lordship, like Mr. Justice Neville, regarded Kavanagh's case (ubi sup.) as an authority for the opinion which he expressed. So far, however, there is a clear decision of the Court of Appeal that no such relation existed, and an equally clear disapproval of the decision in Kavanagh's case (ubi sup.). The charging of a commission under circumstances similar to those of that case is consequently not now illegal in this country, whatever it may be in Ireland. All the same, the retention, ex abundanti cautela, of words stipulating for the charge may not be inexpedient in the face of such
14. AND WHEREAS by an indenture dated the 189 and made between the said H. X. of the one part and W. J. of the other part the said W. J. was duly appointed by the said H. X. to be trustee of the said will in the place of the said B. T. and M. T. and jointly with the said H. X. and by virtue of the indenture now in recital or otherwise the trust funds and property which were then subject to the trusts of the said will were duly vested in the said H. X. and W. J.
16. AND WHEREAS by an indenture dated the
day of day of
190 and made between the said H. X. of the one part and the said N. N. of the other part the said N. N. was duly appointed by the said H. X. to be trustee of the said will in the place of the said W. J. and jointly with the said H. X. and under and by virtue of the indenture now in recital or otherwise the trust funds and property which were then subject to the trusts of the said will were duly vested in the said H. X. and N. N.
As to the Family of the said X. Junior.
17. AND WHEREAS the eaid X. junior had seven children and no more namely (1) R. X. who died on the day of 190 having had nine children only namely the said parties hereto of the first part and two other children who died in early infancy (2) B. X. who died on th day of 190 having had three children
only namely the said parties hereto of the second part and one child who died in early infancy (3) the said I. J. (4) the said K. L. (5) the said M. N. and (6) the said O. P.
18. AND WHEREAS the said X. junior had one other child namely W. A. (the wife of F. A.) who died on the 18 without having had issue.
As to the Share of the said T. X.
19. AND WHEREAS the said T. X. has had one child only namely F. X.
20. AND WHEREAS an interim order in bankruptcy of the High Court of Justice was made against the said F. X. dated the day of 188 and on the day of 188 he was duly adjudicated a bankrupt and on or about the day of 188 Y. T. was duly appointed trustee of the estate and effects of day of 188 the said the said F. X. and on the appointment was duly certified by the Board of 21. AND WHEREAS under and by virtue of an indenture dated the Rever188 and made between the day of sionary Interest Company Limited of the first part C. R. of the second part Y. T. (the trustee in bankruptoy of the said F. X.) of the third part the said F. X. of the fourth part and the estate trustees of the Life Assurance Society of the fifth part the said annuity of £ bequeathed to the said F. X. during the life Life Assurance of his said father became vested in the Society.
22. AND WHEREAS by an indenture dated the 189 and made between the said Y. T. of the one part and the said Q. R. and S. T. of the other part for the valuable consideration therein mentioned the said Y. T. conveyed all the interest of every kind of the said Y. T. as trustee of the said F. X. whether in possession reversion remainder or expectancy (and whether original or acoruing) of and under the said will of the said X. and in his real and residuary personal estate and the investments for the time being representing the same unto the said Q. R. and 8. T. . 23. AND WHEREAS by an indenture dated the day of 190 and made between the said Q. R. and 8. T. of the one Life Assurance (the estate trustees of the part and Society) of the other part the said Q. R. and S. T. assigned to the estate trastees all the estate and interest of the said Y. T. as trustee of and in the residuary real and in bankruptcy of the said F. X personal estate of the said testator held under the trusts of the said will to which the said Q. R. and 8. T. as assignees of the said Y. T. were entitled in reversion expectant on the death of the said H. X. and contingently on the said F. X. surviving him TO HOLD the same unto the estate trustees by way of mortgage as therein mentioned.
24. AND WHEREAS the trustee or trustees for the time being of the said will have from time to time received notice of the various other charges on and dealings with the share of the said F. X. in the residuary estate of the said testator mentioned in the first column of the first schedule hereto and the said trustees or trustee have given or caused to be given the notices mentioned in the second column of
the said schedule and the short result of such notices or observations thereon are mentioned in the third column of the same schedule.
25. AND WHEREAS the said F. X. died at
26. AND WHEREAS doubts have arisen as to whether the said annuity of £ bequeathed to the said F. X. during the life of his said father continued after the said F. X. and the said N. N. has been advised by counsel that it did so continue during the life of such father.
day of 27. AND WHEREAS by an indenture dated the 19 and made between of the one part and the said Q. R. and 8. T. of the other part in consideration of the sum of £ paid by the said Q. R. and S. T. to the estate trustees the estate trustees assigned and released to the said Q. R. and 8. T. all the estate interest property and premises comprised in and assigned by day of TO HOLD the the said indenture of the same unto the said Q. R.and S. T. discharged from the said indenture of the day of 190 and from all principal moneys and interest thereby secured.
and made between the said H. I. of the one part and L. B. of the other part for the valuable consideration therein mentioned the said H. 1. assigned all the interest of the said J. X. arising under or by virtue of the said will to the said L. B.
32. AND WHEREAS after an intermediate assignment in favour of day of A. T. ultimately by an indenture dated the 190 and made between the said A. T. of the one part and K. T. of the other part all the share and interest of the said J. X. under the said will in reversion expectant on the decease of the said H. X. of and in the residuary estate of the said testator was assigned unto the said K. T. absolutely.
day of 34. AND WHEREAS by an indenture dated the 190 and made between the said K. T. of the one part and L. B. of the other part all the shares and interests whether vested presumptive or contingent and as well original as accruing to which the said J. X. was then or should or might thereafter be entitled under the said will in reversion expectant on the decease of the said H. X. of and in the residuary estate of the said testator and the investments of which the same consisted were assigned by the said K. T. unto the said L. B. by way of mortgage for securing the principal sum of £g and interest but subject to the said indenture of mortgage of the day of
35. AND WHEREAS the trustees or trustee for the time being of the said will from time to time received notice of the various mortgages charges on and dealings with the share of the said J. X. in the residuary estate of the said testator mentioned in the first column of the second schedule hereto and the said trustees or trustee have given or caused to be given the notices mentioned in the second column of the same schedule and the short result of such notices or observations thereon are mentioned in the third column of the same schedule.
day of 190 and from all principal moneys and interest thereby secured. day of AND WHEREAS by an indenture dated the and made between the said L. B. of the one part and the said K. T. paid by the of the other part in consideration of the sum of £ said K. T. to the said L. B. the said L. B. assigned and released to the said K. T. the shares interest property and premises comprised day of in and assigned by the said indenture of the 190 TO HOLD the same unto the said K. T. discharged from the said indenture of the day of 190 and from all principal moneys and interest thereby secured.
39. AND WHEREAS on or about the
189 the said H. X. received a letter of which the following is a copy from one G.: Dear Sir,-Re X.'s estate. I beg to give you notice that T. X., grandson of the testator, has sold to me his interest in this estate.Yours, G.
40. AND WHEREAS the said L. X. referred to in the said letter is the said L. X.
41. AND WHEREAS the said L. X. denies that he sold his interest in the estate of the said testator to the said G. or that he ever had any dealings with him with reference to such interest.
42. AND WHEREAS inquiries have been made both by the said L. X. and the said N. N. for the said G. but at present they have been unable to discover him or his address but the said notice of the day of 189 has not been withdrawn or been proved worthless and until one of those things has been done the said N. N. has refused to distribute the share of the said L. X. except under the direction of the court.
As to the Share of the said H. H. X.
43. AND WHEREAS the said H. H. X. died on the
day of 189 leaving children him surviving (1) the said E. E. (2) the said F. F. (3) the ssid G. G. (4) the said I. I. (5) the Eaid K. K. (6) the said L. L. and (7) the said M. M. who was born on the day of
44. AND WHEREAS the income of the residuary estate of the said testator after payment thereout of the annuities and other current outgoings payable thereout was duly paid to the said H. X. during his life and the apportioned part of such income down to the day of his death has been paid to the persons entitled thereto.
45. AND WHEREAS the dealings of the trustees or trustee for the time being of the said will with the said residuary tund of £ down to the death of the said H. X. appear by part 2 of the said
46. AND WHEREAS at or about the time of the death of the said H. X. the residuary estate of the said testator consisted of the particulars set forth in the left-hand column of Part 3 of the said account amounting to £
47. AND WHEREAS since the death of the said H. X. the said N. N. has out of the said residuary estate paid the sum of £ for the purchase of £ Two and a Half per Cent. Consols to provide for the said annuities of £ each payable to the said T. X. and the Assurance Company (as assigns of the said R. X.) and the said legacy of £y payable on the death of the said T. X. and the said N. N. has out of the said residuary estate also paid a like sum of £ for the purchase of another sum of £ Two and a Half per Cent. Consols to provide for the said annuity of £ payable to the said E. X. junior and the legacies amounting to £ payable on his death and he has also made the other payments appearing in the right-hand column of Part 3 of the said
48. AND WHEREAS part of the said residuary estate consisted of first debentures of £ each of the Company Limited. 49. AND WHEREAS there is no outside market for the said debentures and it would be impracticable to realise the same except at a great sacrifice and the said parties hereto of the first sixteen parts have accordingly agreed to take over of the said debentures
in specie in equal shares the remaining two of such debentures being sold for convenience of division.
50. AND WHEREAS no settlement was made on the marriage of any of the married women parties hereto.
51. AND WHEREAS it is apprehended and the said parties hereto of the first fifteen parts have agreed that the residuary estate of the said testator is divisible in equal sixteenth shares between the said parties hereto of the first fifteen parts and the said T. X. or his assigns.
52. AND WHEREAS the net residuary estate of the said testator after making the payments thereout mentioned in the right-hand column of Part 3 of the said account amounts to the sum of £ in cash and £ of the said debentures of the
respectively acknowledge) and has paid one-half of a like sum of £ to each of them the said parties hereto of the second part and has transferred to them seven of the said debentures (as they do hereby respectively acknowledge) and has paid a like sum of £ to the said party hereto of the third part and has transferred to him seven of the said debentures (as he doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the fourth part and has transferred to her seven of the said debentures (as she doth hereby acknowledge) and bas paid the like sum of £ to the said party hereto of the fifth part and has transferred to her seven of the said debentures (as she doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the sixth part and has transferred to him seven of the said debentures (as he doth hereby acknowledge) and has paid the like sum of £ to the said parties hereto of the seventh part and has transferred to them seven of the said debentures (as they do hereby respectively acknowledge) and has paid a like sum of £ to the said party hereto of the eighth part and bas transferred to him seven of the said debentures (as he doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the ninth part and has transferred to him seven of the said debentures (as he doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the tenth part and has transferred to him seven of the said debentures (as he doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the eleventh part and has transferred to her seven of the said debentures (as she doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the twelfth part and bas transferred to her seven of the said debentures (as she doth hereby acknowledge) and has paid a like sum of £ to the said party hereto of the thirteenth part and has transferred to her seven of the said debentures (as she doth hereby acknowledge) and has paid a like sum of £ to the party hereto of the fourteenth part and has transferred to him seven of the said debentures (as he doth hereby acknowledge) and has subdivided a like sum of £ into seven equal parts of £ each and has paid one of such sums of to each of the said persons parties hereto of the fifteenth part except the said M. M. and has transferred to each of such persons (except the said M. M.) one of the said debentures (as they do hereby respectively acknowledge) and has retained the remaining sum of £ and one of the said debentures upon the trusts applicable to the contingent share of the said M. M. and has retained the remaining sum of £ and the remaining seven of the said debentures in trust for the said T. X. or his assigns as the case may be.
55. AND WHEREAS the said parties hereto of the first fifteen parte being perfectly satisfied with the application disposition retention payment and transfer of the said residuary estate herein before recited to have been made and that such payment and transfer are in full satisfaction of their respective shares and interests in the said residuary estate and the proceeds of the sale calling in and conversion thereof and the income thereof (except as hereinafter provided) have agreed to execute such release and indemnity as are hereinafter contained.
56. AND WHEREAS the name of the said M. M. has been inserted as one of the parties to these presents of the fifteenth part to the intent that he may if he shall think fit execute the same on his attaining his majority but the effect of the execution of these presents by the said adult parties hereto or any of them as binding each such respective parties shall not in any way be prejudiced by the nonexecution of these presents by the said infant or by any other person herein named as a party to these presents.
57. Now THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the premises the said persons parties hereto of the first fifteen parts do and each and every of them doth hereby 1elease and discharge the said N. N. his heirs executors and administra tors and the estate and effects of the said B. T. M. T. W. J. and H. X. respectively deceased from the residuary estate of the said testator and the moneys arising from the sale conversion and getting in of the same or the income thereof and from all actions proceedings accounts claims and demands in respect thereof or for or in respect of any sale investment payment act or thing made done or executed or neglected or omitted by the said N. N. or the said B. T. M. T. W. J. and H. X. or any of them in the administration of the estate of the said testator or the execution of the trusts of the said will or for or in respect of any other thing in anywise relating to the premises. PROVIDED ALWAYS that the release herein before contained shall not extend to the respective sums of £ Two and a Half per Cent. Consols so set apart as aforesaid nor to the said sum of £ and the said one debenture retained by the said N. N. upon the trusts affecting the contingent share of the said M. M. or the income thereof. 58. AND THIS INDENTURE ALSO WITNESSETH that in pursuance of the said agreement and in consideration of the premises the said persons parties hereto of the first fifteen parts do hereby jointly and severally covenant with the said N. N. his heirs executors and administrators that they the said covenanting parties and every of them their and every of their her executors and administrators will at all times hereafter indemnity the said N. N. his heirs executors and administrators and the estates and effects of the said B. T. M. T. W. J. and H. X. respectively deceased from all actions proceedings claims and demands on the part of any person or persons in respect of the said residuary estate Bo distributed and retained respectively by the said N. N. as hereinbefore recited and in particular in respect of the respective shares of
the said F. X. and J. X. or for or in respect of continuing the payment of the said annuity bequeathed to the said F. X. to his assigns or for or in respect of any act or thing whatsoever at any time made done or omitted by the trustees or trustee for the time being of the said will of the said X. or any of them in or about the administra. tion of the estate of the said testator or the execution of the trusts of his said will or codicil whether herein before specifically mentioned or referred to or not and from all costs damages and expenses to be incurred by any such action proceeding claim or demand as aforesaid or otherwise in respect of the premises. IN WITNESS &C.
Master Day will now act as Vacation master up to and including Wednesday, the 11th prox.
The September general session for cases arising on the north and south sides of the Thames will commence on Tuesday, the 12th inst., at the Sessions-house, Newington, at 10.30.
An intermediate session for cases arising in the county of Middlesex, will commence on Saturday, the 23rd inst., at Caxton Hall, Westminster, at ten o'clock.
Mr. Justice A. T. Lawrence completed seven years' service on the Bench last Sunday, having been appointed on the 3rd Sept. 1904. Mr. Albert Tomlinson Wright, of Tyn-y-rhos, Weston Rhyn, Oswestry, Salop, and late of New Brighton, Cheshire, solicitor, of the firm of Mesers. Wright, Beckett, Wright, and Co., solicitors, of Waterstreet, Liverpool, left estate of the gross value of £21,501, of which the net personalty has been sworn at £9498.
Mr. George Edward Cokayne, barrister at law, of Exeter House, Roehampton. and of Dove House Green, Ashbourne, Derbyshire, Clarenceux King of Arms since 1894, formerly Rouge Dragon Pursuivant, afterwards Lancaster Herald and Norroy King of Arms, who died on the 6th Aug., aged eighty-six, left estate of the gross value of £76,436, of which the net personalty has been sworn at £65,497.
Mr. Abraham Greenwood Eastwood, of Stoney Royd, Todmorden, Yorks, solicitor, head of the firm of Messrs. Eastwood and Sutcliffe, for sixty-two years clerk to the Todmorden magistrates, and for over fifty years County Court registrar, who died on the 23rd April last, aged eighty-seven years, left estate of the gross value of £158,733, of which the net personalty has been sworn at £141,054.
The Dublin Gazette announces that His Majesty's letters patent have passed the Great Seal of Ireland appointing the Right Hon. Redmond John Barry to be His Majesty's Chancellor of Ireland. At a meeting of the Privy Council in Dublin Castle on the 5th inst. the Right Hon. Redmond John Barry took and subscribed the oath of allegiance and the official oath on his appointment as Lord Chancellor of Ireland.
The September Sessions for the jurisdiction of the Central Criminal Court were opened on the 5th inst. at the Sessions-house in the Old Bailey. The calendar contained the names of 146 persons under committal for trial, thirty-nine of whom are on bail. Mr. Herbert Austin, the Deputy Clerk of Arraigns, read the new Commissions of Oyer and Terminer and General Gaol Delivery issued by Royal Warrant under the Great Seal under date of the 19th July. These commissions supersede, though they do not vary, the letters patent issued in the previous reign.
A legal debating society has recently been formed, and will be known as the North London Legal Debating Society. The society has been formed with the object of bringing together members and students of the Legal Profession residing in North London for the purpose of discussing legal matters generally, and more especially the decisions of the law courts. The persons eligible for membership are barristers, solicitors, members or students of any of the Inns of Court, solicitors' articled clerks, and clerks who have been articled to solicitors. Meetings of the society will take place at Crouch End every Monday evening, commencing on the 16th prox., at 8.30 p.m. The president is Mr. R. Story Deans, barrister-at-law, and Mr. G. H. Bowen is the vice-president. Full particulars can be obtained from the treasurer. Mr. A. E. Woolnough, 68A, Lincoln's inn-fields, or from the secretary, Mr. H. P, Gisborne, 56, Berkeley-road, Crouch End, N.
A preliminary meeting in connection with the Prison Congress to be held in London in 1915 took place on Wednesday last at the office of the Prison Commission. Whitehall, under the presidency of Sir Evelyn Ruggles-Brise. Professor Henderson, the president of the recent Congress at Washington, Professor Van der Aa, the SecretaryGeneral of the International Prison Commission, Mr. Gibbons. C.B., the Master of Polwarth, the chairmen of the Irish and Scottish Prison Boards respectively. Major Rogers, R.E, and Mr. Basil Thomson, were present. Various points concerning the plan and procedure of the congress were discussed, which will be further considered at 8 formal meeting of the International Prison Commission to be held in the course of next year.
The death is announced of Maitre Carraby, the sixtieth anniversary of whose admission to the Order of Advocates in Paris was marked, as recorded in the LAW TIMES of the 3rd June last, by the bâtonnier of the Order waiting upon him to offer him officially the heartfelt wishes of his colleagues. The venerable lawyer then handed over to the batonnier a sum of 33,000 francs (£1320) in State bonds, the income of which from time to time shall be awarded to the avocat who in the opinion of the council of the Order to be the most deserving among "those brave young fellows, always struggling, upon whom Fortune does not seem to smile." He was born in 1831, and made his name in 1857, when he was an avocat of six years' standing, in the defence of a band of malefactors whose misdeedsrobbery and murder-had extended over a period of thirty-six years. Maitre Carraby was engaged in a number of sensational cases, and his defence of Leroy du Bourg for the murder of his wife was the occasion of Dumas fils' brochure Tue-la! Maitre Carraby had not engaged in actual practice for some years. Of him the Temps says: "Maitre Carraby fut un artiste délicat et un fin lettré; il fut surtout un ami sûr et dévoué."
What we should consider one of the most remarkable claims for a breach of contract ever heard in a court of law has just been decided in the court of the juge de paix at Génaville-les-Baroches (Meurthe et Moselle). The subject in dispute was sacred, yet both the plaintiff (the demanderesse) and the défendeur, a priest, seemed to have looked upon the whole affair from a strictly business standpoint. Madame Fondeur, a local householder, sued the cure of the parish, the Abbé Fabry, for the return of 16fr. 500. (about 133. ld.), representing the fee paid in advance to the cure for the performance of a service funèbre. The demanderesse founded her claim upon the fact that the cure had quitted the altar at the Kyrie Eleison, leaving the mourners in a state of astonishment, and the Mass in suspense In defence it was pleaded that, if he had left the church, it was on account of the unseemly manner in which some of the mournere acted. Moreover, he demanded that Madame Fondeur's claim should be dismissed on the ground that it was not she who had instructed him to perform the service in dispute. The juge de paix gave judgment in favour of the lady for the amount claimed, holding that she had paid for a Mass which had not been celebrated.
The statement, which has been very generally made, that Mr. Redmond Barry has broken the record by becoming Lord Chancellor of Ireland at the early age of five-and-forty is incorrect. In 1789 John FitzGibbon (Earl of Clare) was promoted, like Mr. Barry, from the Irish Attorney-Generalship to the Lord Chancellorship, which he filled till his death in 1802. He was born in 1749, and had not completed his fortieth year when intrusted with the Great Seal of Ireland. In 1885 Mr. John Naish was promoted from the Irish Attorney-Generalship to the Lord Chancellorship. He was born in 1841, and had not completed his forty-fourth year. Lord Ashbourne, on his first appointment to the Irish Chancellorship in 1885, had not completed his forty-seventh year, and is therefore, in respect of the comparatively early age at which he obtained the Irish Great Seal, a good second to Mr. Barry. It is of interest to recall the fact that both Lord Clare and Lord Ashbourne, who became Irish Chancellors at remarkably early ages, were the sons of men bred to the profession of the law. Lord Clare's father practised at the Irish Bar with eminent success, and was a member of the Irish House of Commons. He published Notes of Cases Determined at Westminster, which obtained the warm praises of Lord Chancellor Hardwicke. Lord Ashbourne's father, Mr. William Gibson, was an Irish solicitor of great eminence, who was president of the Irish Incorporated Law Society.
The Irish Lord Chancellor, who is the head of the Irish Judiciary, is the only member of that judiciary whose tenure of office is during the pleasure of the Crown, and not during good behaviour, under the provisions of the Act of Settlement and other statutes, whose provisions have been by subsequent legislation extended to Ireland. His appointment is made by the formal tendering to him of the Great Seal by the Lord-Lieutenant, and can be terminated by his resignation of the Great Seal either voluntarily or on demand by the LordLieutenant, as representing the Sovereign, so to do. The commissions of the Irish judges are, strange to say, perfected, not in the Irish Office, but in the Home Office. The Irish Office in days gone by was subordinate to the Home Office, and the Minister primarily responsible for the carrying on of Governments in Ireland and the maintenance of law and order in that country was the Home Secretary. The Irish Office may now be regarded as a department of State, and the Minister, whose strict designation is Chief Secretary to the Lord-Lieutenant of Ireland, is now chiefly responsible for the administration of that country. The issue of the commissions of members of the Irish Judiciary from the Home Office, where also the patents of Irish peerages are perfected, is a survival of an old system which has in practice been absolutely superseded.