prayer

of

Note for reference-Shelf. Joint-stock Co.'s Act, s. 83.

YOUNG v. SMITH.-Dec. 9. Recitals-Covenant to settle after-acquired property. Effect of recitals in modifying covenants in a deed. A marriage settlement recited that it was agreed that if any property should "descend or devolve to" the wife, it should be settled upon the trusts of the settlement. The indenture contained a covenant to the same effect as the recital, but entered into by the husband only. The husband died, and subsequently some reversionary personal property of the wife fell into possession:-Held, that it was not subject to the trusts of the settlement.

ge of Mr. and Mrs. Tomlison in 1856, a settlement | sale, he should be compelled to accede to the s executed of a sum of Consols to which the lady was the petition. titled. The income was given to the lady for life, en to the husband until death or bankruptcy, with imate trusts for the children of the marriage. A wer of maintenance was given to the trustees, but ly in the event of the death (not of death or bankptcy) of the husband, after surviving his wife. here was one child of the marriage. Mrs. Tomlison ed in 1860. Mr. Tomlison became bankrupt in May, 364; and there were no funds for the maintenance the infant, who now filed his bill, by his father and ext friend, praying for a declaration that the settleent was not conformable to the agreement entered to previously to the marriage, and that the mainteince clause ought to have been made applicable imediately upon the determination of the interest of r. Tomlison, whether by death or bankruptcy. There had been no written instructions for the set- The facts of this case were as follows:-Mrs. St. ment; and the only instructions received by the John, then Mrs. Nutt, intermarried with Oliver St. licitor who prepared the settlement had been given John in the year 1835. Mrs. St. John was at that the course of a personal interview with Mrs. Tom-time entitled, subject to the life estate of her mother on, at which Mr. Tomlison was not present. The therein, to a share of the personal estate of a Mr. ly evidence in the case was an affidavit by Mr. Young, derived under his will, dated in 1841. A setmlison, and another by the solicitor who prepared tlement, dated the 4th November, 1835, was executed e settlement, that the maintenance clause as con- prior to the marriage of Mr. and Mrs. St. John, in ined in the settlement was contrary to the intention which settlement this reversionary interest of Mrs. St. f the parties. John was not expressly settled. That deed, however, contained the following recital:

L

Baggallay, Q. C., and Finch, for the plaintiff, reerred to Lackerstein v. Lackerstein (6 Jur., N. S., 1111). Humber, for the trustees.

Sir J. ROMILLY, M. R., said that the evidence was, o doubt, slight, but that he would make the order as tayed.

Note for reference-Set. Dec. 500.

And it has been also agreed, upon the treaty for the said intended marriage, that in case any property or effects, either real or personal, of the value of 5007. at one time, shall at any time hereafter during the said coverture descend or devolve to the said Helen Nutt or to the said Oliver St. John in her right, such property and effects shall be settled upon the same or the like trusts as are hereinafter expressed and de

e THE LONDON ARMOURY COMPANY (LIMITED).--clared concerning the said trust funds and premises so

Dec. 9.

agreed to be hereby settled as aforesaid."

The indenture then went on to declare the trusts in Finding-up petition-Paid-up shares-Companies Act, the ordinary manner; and afterwards contained the

1862.

shareholder who has fully paid up his shares is still a “contributory," so as to be entitled to petition for winding up the company.

This was a petition for winding up the above-named
mpany. It appeared that all the shares were fully
aid up. The principal contention was with regard
the advisability of an immediate sale of the pro-
erty of the company, and contained no point of
gal interest. But the question stated below arose
a the course of the argument.

Southgate, Q. C., and Roberts, for the petitioners.
Baggallay, Q. C., and G. Druce, for parties opposing
he petition, referred to the Companies Act, 1862
25 & 26 Vict. c. 89), under which the petition was
resented, and contended, that as the petitioners had
ully paid up their shares, they were not " persons
able to contribute to the assets of the company, in
he event of the same being wound up," according to
he definition of a contributory given in the 74th sec-
ion of the act, and consequenly were not entitled to
present this petition as
"contributories" under the
32nd section.

Sir J. ROMILLY, M. R., said that he could not admit the validity of this argument. Supposing a case where only half the shareholders had paid up, it would be placing those shareholders who had paid up, at the mercy of those who had not. Having regard to the other circumstances of the case, his Honor directed the petition to stand over till the last petition day in Hilary Term, with an intimation, that unless some decided steps were taken in the meantime towards a

following covenant :

"And it is further witnessed that, in pursuance and Oliver St. John doth hereby covenant, that if at any further performance of the said agreement, the said time or times during the said intended coverture, any real or personal estate, of the value of 5007. at any one time, shall descend or devolve to or vest in the said Helen Nutt, or to or in the said Oliver St. John in her right, then and in that case, and as often as the same shall happen, the said Oliver St. John, his heirs, executors, or administrators will make, do, and execute, or cause and procure to be made, done, and executed, all such deeds, assignments, conveyances, and assurances in the law whatsoever which shall be necessary and proper for conveying, assigning, assuring, and confirming the said real and personal estate in such manner as that (regard being had to the nature and quality of the premises respectively) the said real and personal estate may be vested in the said trustees or trustee for the time being of this indenture, upon and for such trusts, intents, and purposes as will best and nearest correspond with the trusts, intents, and purposes hereinbefore declared and contained of and concerning the said trust moneys and premises hereby settled as aforesaid.”

Mr. St. John died in 1844. There was issue of the marriage still living. Mrs. St. John subsequently incumbered her reversionary interest under Mr. Young's will. The tenant for life died in 1862. A suit for the administration of Mr. Young's estate had been instituted; in which suit Mrs. St. John's share had been carried to a separate account. A petition was now presented by Mrs. St. John for payment to the mort

gagees of the amount of their charges out of the fund, | tablished reputation of their firm for more than 15 and payment of the residue to herself. The question years, as hosiers and outfitters. It appeared that the for decision was, whether the property was subject to the covenant in the settlement set out above. Selwyn, Q. C., and Herbert Smith, for the petitioner, contended that the settlement only intended to guard against the marital rights of the husband.

Jessel, Q. C., for the mortgagees, referred to Ramsden v. Smith (2 Drew. 298).

Baggallay, Q. C., and Archibald Smith contended that the fund was subject to the settlement. Though the covenant was that of the husband alone, the agreement was both by the husband and wife. [They cited Butcher v. Butcher (14 Beav. 222); Hammond v. Hammond (19 Beav. 29); and Holles v. Carr (Freem. 3; 3 Swanst. 638). [The Court referred to Moore v. Magrath (Cowp. 9).]

Sir J. ROMILLY, M. R.-It is of great importance to keep distinct the several parts of a deed-the recitals and the operative part. The operative part is officious, and the inoperative part inofficious. The recitals may explain ambiguities, but cannot introduce a covenant. I cannot, by means of the recital, introduce a covenant by the wife to settle after-acquired property where she has not so covenanted. Where the operative part is at variance with the recitals, the settlement should be reformed, and the recitals should be used as evidence. [His Honor read the recital and covenant in the settlement.] I do not know on what principles I can control the operative part for the purpose of restricting it, on which I could not control it for the purpose of extending it.

In Butcher v. Butcher the agreement was contained in the operative part of the deed, and there it would have the effect contended for; but here, I am of opinion that it has not.

In the case in Freeman, the deed would have been wholly inoperative if the Court had not done what they did. It cannot be by mistake, that there should be a covenant on the part of the husband alone in this settlement.

Representations contained on the blinds and brasses of a shop front, calculated to induce the public to believe that the owner is connected in business with a firm of established reputation, will be considered upon the same principles as govern rights in trade-marks. Therefore, where a tradesman, in addition to his own name upon his shop front, placed upon his sun-blind and upon his brass plate the words "From T. & G." (in whose employment he had been), the Court, being of opinion that this was done in such a way as to be likely to mislead, and there being evidence that persons had been actually misled, granted an injunction to restrain such a use of the name of the firm " T. & G."

Motion for decree.-This was a bill by the present partners of the old firm of Thresher & Glenny, in the Strand, praying that the defendant might be restrained from continuing to use, or from exhibiting or using, the words 'Thresher & Glenny,' or the names of the plaintiffs' said firm, in any form, on or about his said shop, in such a way as to deceive the public, or to lead to the belief that his shop was the shop of the plaintiffs, or that the business carried on there was carried on by the plaintiffs, or was in any way connected with the business of the plaintiffs."

The case made out by the plaintiffs shewed an es

defendant had been employed for some three yen
their shop up to April, 1865, and that in May of th
year he set up for himself in a like business : 1
Oxford-street. The defendant's name, Frank P
was printed immediately over his shop window
letters of some size, on a white ground, while won the
sun-blind and the brass plate under the winds
the words "From Thresher & Glenny," the word
being printed diagonally to and in smaller letter
the rest. On the part of the plaintiffs, the sun-tini
brass plate were produced in court, and pho
of the shop front, from which it appeared that wi
the sun-blind was drawn down, the defendants
was not visible except to persons passing imme
under the window. They also proved four ass in
which persons had actually been misled; and, to shew
that the defendant had some misgivings as to the e-
priety of his conduct, a conversation between bin ind
one of the plaintiffs' assistants was given in erikax
The evidence of the defendant consisted of options
by persons who had inspected his shop, to the cat,
that the public were not likely to be misled d
directions, that nothing should be said to pr
to induce them to think that Messrs. Thread Gary
were connected with the business.

E. F. Smith, Q. C., and Dickinson, for the pla
cited Knott v. Morgan (2 Kee. 213); Croft Day
Beav. 84); and Burgess v. Burgess (3 De G., M,
G. 896).

Glasse, Q. C., and Everitt, contra.—To entah plaintiff to an injunction, they must show an ac pecuniary loss. The evidence here shewed espec anxiety not to mislead the public, who must, any rate, exercise ordinary caution in their des ings. The defendant had only done what was a mon and permitted practice among tradesmen. [T cited The Leather-cloth Company x. The American Ist ther-cloth Company (1 Hem, & Mil. 271; S. C., on10 Jur., N. S., 81; H. of L., 9 Law T., N. S., 506)] Smith, Q. C., in reply. Judgment reserved.

July 14.-Sir R. T. KINDERSLEY, V. C.-The grad on which an injunction is asked in this case the representations of the defendant are such as mislead the public into the impression, that his s is the shop of the plaintiffs, or that the business ca ried on there is their business.

to cases of this kind, as they are shortly and d There is no doubt about the principles applica laid down in the case of The Leather Cloth Comp that "the fundamental rule is, that one man has right to put off his goods for sale as the goods of a rival trader; and he cannot, therefore, in the lang of Lord Langdale in the case of Perry v. Tracta allowed to use names, marks, letters, or other ind by which he may induce purchasers to believe the the goods which he is selling are the manufacture another person."

Now, the same rule that applies in the case of nufacturers applies also to tradesmen by retail. It not mean to question but that a man, having be the employment of a firm of reputation, has a on setting up in business for himself, in any which he thinks fit (subject to the restrictions of the rule I have stated), to inform the public that be been in such employment; and in that way he appropriate to himself some of the benefit arising f the reputation of his former employers. This it the more necessary that he should not act in s way as to mislead the public, to the detriment ef former employers.

For the purpose of the plaintiffs' right to relief,

16

atention of the defendant is of no consequence; it is nough if, without any unfair intention, he has done hat which is calculated to mislead; and the question 1 this case is, whether the manner in which he has sed the name of Thresher & Glenny has been such 3 is likely to lead the public to suppose that the buness of this firm is carried on in his shop.

That is a question of fact; and from the evidence roduced, the Court is in a condition to form its own idgment as to the effect of the defendant's acts, in ddition to the evidence of witnesses. [After comaenting on the nature of the evidence on either side, is Honor proceeded:]-Now, it is in vain for witresses to say on the defendant's part, that in their pinion persons could not be misled. When a person oes to try the effect of his own inspection, he knows hat he will find, and is prepared to look for the word from;" but the general public are off their guard then they pass the shop. But, further than this, it is ot the question whether the public generally, or even majority of them, is likely to be misled, but whether he unwary, the heedless, the incautious, portion of he public would be likely to be misled; and I think hat not a very inconsiderable portion of the public ay safely be so described.

But, in contradiction to this evidence of opinion, here is the fact of four distinct instances of persons being misled into the supposition, that the defendant's shop is a shop of Thresher & Glenny; and there cannot be stronger evidence than that, considering the short period which has elapsed since the shop was opened in May.

I am, therefore, bound to come to the conclusion, even assuming that there was no intention on the part of the defendant to do wrong, that what he has done is calculated to mislead the unwary and heedless portion of the public into the impression, that the shop of the defendant is the shop of the plaintiffs. The injunction will, therefore, be granted in the terms prayed by the plaintiffs.

cepted by one of the two acting executors of a deceased shareholder. These parties had for eighteen years been treated by the company as executors. The value of the shares was paid:-Held, that the executor who accepted without consulting his co-executor, could not be considered personally liable in respect of the shares; and as his acts could not be considered binding on his co-executor, he could not be put alone on the list, in his executory capacity, and so bind the estate of the deceased. Under circumstances otherwise similar to those in the preceding case, except that the parties acting as executors joined in accepting the shares-Held, that they must be put on the list as executors.

Adjourned summons.-The object of the present summonses, taken out by the official liquidator, was to put the parties in question on the list of contributories, on the winding up of the Leeds Bank, in respect of certain reserved shares allotted by the bank shortly before their insolvency.

The main facts relative to the allotment of shares are fully reported in Re Leeds Banking Company-Barrett's case (ante, p. 234). By the printed circular of the 22nd June, 1864, the reserved shares were offered to the old shareholders in the proportion of one to every five of their original shares; and it was added, "I shall be obliged if you will, within fourteen days from this date, sign and return me the annexed form, stating whether you are desirous of taking up the shares, and also whether, in the event of any shares remaining, you wish to have any more allotted to you; if so, please say how many. If taken up, the amount must be paid on or before the 1st October next (if paid before that time, interest at 51. per cent. will be allowed), and the shares will then be entitled to one quarter's dividend at the end of the year." Mr. Addinell, who had been a holder of twenty shares since 1832, amongst the other shareholders received this letter, and replied to it, in the terms of the form annexed, on the 4th July, saying, "I agree to take four shares, being my proportion of allotment, and my proportion of shares in addition, if I can have them on the terms stated in your circular." The reply to this letter was the circular of the 18th July, stating that the directors had allotted Mr. Addinell "four additional shares, for which you have applied, in addition to the four shares previously accepted by you, making your number of new shares eight. The amount to be paid to the bank on or before the 1st October next, or the shares will be forfeited," &c., as in the former circular. To this circular no answer was, up to the date of the stoppage of the bank, sent by Mr. Addinell, nor was any payment made by him in respect of any of the shares allotted.

Glasse, Q. C., and Cotton, for the official liquidator. -The contract as to all the shares was complete by the acceptance of the allotment; payment has nothing to do with it. (Per Lord Justice Knight Bruce in Barrett's case, 13 Weekly Rep. 806). "My proportion," in Mr. Addinell's letter of the 4th July, means one in five, or four shares, the proportion fixed by the circular of the 22nd June. At any rate, there is a complete contract as to the first four shares; and this contract as to the second four shares is not avoided by the introduction of the term as to forfeiture, for that is not inconsistent with the terms of the first circular.

Unissued shares of a joint-stock company were offered to the original shareholders by the directors, in the proportion of one to every five original shares. The circular containing the offer requested the shareholder to state whether he would have any additional shares, in case there remained such unallotted. The shares, if taken up, to be paid for by a given day. A printed form of acceptance and application was supplied, to be sent in answer to this circular. A second circular was issued, in answer to applications for shares, stating that 80 many shares had been allotted to the applicant, in addition to those previously accepted; and the terms as to payment were repeated, with the further notice, that the shares would be forfeited, if not paid for at the appointed date. A., in answer to the first circular, agreed to take his proportion of new shares. and his proportion Baily, Q. C., and Wickens, for Addinell.-The fact of shares in addition, if any remained to be allotted. that there was no payment distinguishes this from Four additional shares were thereupon allotted to him, Barrett's case. A mere offer and acceptance is not a making eight in all. A. made no further communica- complete contract; and if there were, the second cirtion to the company, and paid nothing in respect of any cular relates both to the first four and to the four adof the new shares:-Held, that he was liable to contri-ditional shares, and, as to them, introduces a new bute in respect of the first four shares only. term; and the contract thus varied is not accepted Under like circumstances two additional shares were ac- by Addinell (Re Capper, 14 Jur. 1128); therefore, the

Glasse, Q. C., in reply, commented on Capper's case, as reported 1 Sim., N. S., 178.

HIS HONOR deferred judgment till after hearing the other cases.

DOBSON'S CASE.-Nov. 16.

directors can neither enforce the new contract nor fall | step to what is allowed to be a contract; it was an back on the old. (The Oriental Inland Steam Com- actual offer by the company to Addinell of four new pany v. Briggs, 8 Jur., N. S., 201). "My proportion" shares in respect of his original twenty. Coupled with can only mean such number as the directors chose to this is a request that he will inform the directors allot. There could be no contract to accept an inde- whether he desires to have more. The form of the finite number of shares. communication is material; because on it depends the question whether there was a contract betwem Addinell and the company, in respect of the first r, and also in respect of those applied for in answer the request. It is not very material to decide whi I meant by the words "my proportion," in Adalı reply. I think it means "the same number of shoes as you tell me I am entitled to in the first instance that is to say, four. So that the effect of the reply an acceptance of the offer, quoad the four first shares, and an agreement to take four shares more. So far as these letters go, then, there is a valid contract to take the first four shares. But how is it as to the other four? There is no contract constituted them, because there was no offer; all they said was, "Let u know how many you wish to have;" and when they reserve the right of saying whether an applicant shall have as many as he asks for, or a less number, or er any at all, this constitutes no contract as to the shares. Then comes the circular of the 18th, and this relates, substantially, only to the addi new shares, the four first allotted shares being tioned only incidentally, and for the purpose of s that the directors allot four shares in addition to th already accepted.

Here, J. Dobson was the holder of five original shares; he died in 1846, and R. Dobson and J. Thackrah were his now surviving acting executors. The deed of settlement was not executed by any of the executors, nor did the directors ever call upon them, as they might have done, to execute it, and the dividends were paid to R. Dobson (with the exception of a single one paid to Thackrah), and received by him as executor of J. Dobson. The circular of the 22nd June was addressed to "the executors of J. Dobson," but was sent only to R. Dobson, with whom all the dealings of the company were; nor did it appear that Thackrah had any information about the allotment of the reserved shares. R. Dobson's answer to the circular was-"I agree to take one share, being my proportion of the allotment, and twenty shares in addition," &c.

(Signed) R. DOBSON, Executor of Joseph Dobson. At the same time R. Dobson paid the 301. for the one share. One additional share was allotted to R. Dobson by a like circular of the 18th July, for which he paid, taking a receipt "on account of executors,"

&c.

Then comes the phrase, or the shares will be fir feited," in relation to the date at which the sha must be paid for. Now, looking at the corresponding passages in the two circulars, it appears to where it speaks of payment in the first, it refas aly to payment for the first four shares; so also the se Glasse, Q. C., and Cotton, for the official liquidator.cond circular, what is said applies to the f R. Dobson was liable, not as executor, but personally, in respect of the two additional shares. (Spence's case, 17 Beav. 203; Drummond's case, 2 Giff. 189; Liverpool Borough Bank v. Walker, 4 De G. & J. 24; Lucas v. Williams, 3 Giff. 150; 8 Jur., N. S., 207).

Baily, Q. C., and Wickens, for Dobson.-At any rate he could not be liable personally, for the directors have assumed all along to treat him as an executor only; he was not to be liable as executor, on the ground of misrepresentations contained in the report of the directors. (Hitchcock's case, 3 De G. & S. 92; Blakeley's 's case, 3 Mac. & G. 726; Hoare's case, 2 Johns. & H. 229; 8 Jur., N. S., 713).

Glasse, Q. C., in reply, cited Bunn's case (2 De G., F., & J. 275); Chadwick v. Maden (9 Hare, 188); Saxon v. Blake (29 Beav. 438); Sugd. V. & P. 668, 14th ed.; and Wyatt v. Allan (Ib., app., 814). Judgment was also deferred.

FEARNSIDE and DEAN'S CASE.

This was also a case of the surviving executors of the will of E. Fearnside, who died in 1861, a holder of ten original shares. The circulars had been addressed to them as executors, and in that capacity, not having executed nor been called on to execute the deed of settlement, they accepted their testator's proportion of two shares, and paid the 607. in respect of them. They did not ask for any additional shares. The case was argued on the same grounds as the preceding, by the same counsel, for the official liquidator and for the alleged contributories respectively.

Nov. 17.-Sir R. T. KINDERSLEY, V. C.-In Barrett's case I decided, and my decision was, in substance, affirmed by the Lords Justices, that there was a present contract between the parties to take shares; so far as it goes, that applies also to the present case. I look upon the letter of the 22nd June as being the first

tional shares, and not at all to those first allotted Now, in reply to Addinell's agreement to take a tional shares" on the terms stated in the circular d the 22nd June), if the directors had simply allotted him four shares, that might have been a concluded contract. Instead of this, in telling him that the for additional shares have been allotted, they add the clause of forfeiture. Nothing further then takes pla nothing is done by which Addinell accepts the i additional shares upon the terms of forfeiture in the event of non-payment. The result is, that as to the four first shares there is a binding contract, but none as to the four additional shares; and Mr. Addin must, therefore, stand on the list as a contributory in respect of the former shares only.

Now, as to Dobson's case, it stands on a differen footing, and is, as far as the contract goes, like Ber rett's case; for after the allotment was received he pai for the shares. What, however, makes this a new and peculiar case, and one of much difficulty, is his pos tion as executor. By the 18th clause of the deal of settlement, the directors had a right to call up persons in this position to execute the deed; they might either require them to qualify as shareholders, and accept all the liabilities of shareholders, or refuse to pay them the dividends, and so compel them to sell the shares. They did not do this, but allowed m ters to go on for eighteen years, treating these parties throughout in their capacity as executors. These culars were addressed" to the executors of J. Dob son ;" and though the answer is sent by R. Dobson ako, and in the singular number throughout, yet that had been the general course of dealing, and the answe were upon the printed forms. The facts, therefor explain what might otherwise seem strange. It clear that R. Dobson never intended to take these ad