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NOTES OF RECENT DECISIONS NOT
A meeting of solicitors and articled clerks was held at the Town Hall, Cardiff, on Tuesday evening, the 10th inst., with the object of forming a Law Students' Debating Society. Councillor George David occupied the chair, and, speaking of the advantages which would accrue by the formation of such a society, thought it would be a means by which students could obtain an excellent insight into the principles of law. Councillor Lewis Morgan and Mr. Lloyd Meyrick also spoke of the utility of such an organisation. It was resolved to elect officers, the following being appointed: Committee, Messrs. J. B. Stephens, G. Robertson, J. H. Morgan, H. C. Gunn, E. Peacock, T. J. Shackell, and C. S. Goodfellow; treasurer, Mr. W. J. Board; and secretary, Mr. R. A. Wheatley. The committee were empowered to draw up rules and submit them to the next meeting.
A recent case in the Supreme Court of New York-Miller v. Donovan, involved an attempt to entrap a person into liability for the publication of a libellous letter by inducing bim to permit others to read it. It was shown that the person defamed had heard of the existence of such letter, and sent agents to obtain sight of it. This they accomplished by concealing their relations to him and pretending that he had treated them badly. The court charged the jury that, if the plaintiff invited and procured the publication of the letter for the purpose of making it the foundation of an action, it would be most unjust that the procurer of the alleged wrongful act should be permitted to profit by it unless there had been a previous publication of the letter by the defendant. This, although undoubtedly correct, and in harmony with the general doctrine as to the effect of instigation to crime as a defence to its prosecution, seems to be a novel point in the law of libel.–Central Law Journal.
It may excite surprise to find in an English court of justice the judge, the counsel, and the witness all talking French together, says the Westminster Gazette, but when you have an interpreter who says * connaisé” for “connu,” and translates “action” by “action,” what else can be done? The scene referred to took place in the Commercial Court yesterday. A French witness was explaining the French law of crossed cheques. In French law, said he, there is no such thing as a crossed cheqne. Mr. Forbes Lankester was the first to throw himself into the breach. Speaking in most Parisian tones, he produced a French judgment, which blamed a plaintiff for not having crossed à cheque.
Expliquez-moi ra. En France," persisted the eminent advocate,“ il n'y a pas de cheques barrées." Hélas !” interposed Mr. Justice Collins, ** pourquoi le mentionner ?” This let loose the floodgates. Finally Sir Robert Reid rose, and, with the assent of the court, summed up the situation. It seemed that the French judge had been referring to English law, and had failed to understand it.
In the City of London Court, on the 17th inst., before Mr. Commissioner Kerr, an action was brought by Mr. Edgar J. Crane, Regina-road, Tollington Park, N., against the Tyne Steam Shipping Company Limited, 60, Fenchurch-street, E.C., to recover damages for breach of contract. --- Mr. Piesse, plaintiff's solicitor, said that the case was of some public importance. In August last Mr. Crane saw an advertisement published by the defendants of their sailings of steamers from London to Newcastle and back, the return ticket being available for three months. The plaintiff took a ticket and went to Newcastle on the 22nd Aug. Upon his return on the 5th Sept, the plaintiff went on one of the defendants' steamers, which, after going for a few hours, suddenly stopped and returned to Newcastle. That was owing to a breakdown in the machinery. The plaintiff was told that the steamer would not be able to start for some days, and, as he was bound to return to London as soon as possible, he stayed in Newcastle the night, and went home by train in the morning. He now asked the defendants to pay damages for their breach of contract in the shape of recompensing him for the trouble he was put to.--Mr. Balloch, defendants' counsel, said the case was of considerable importance to them. His defence was that there was no warranty that the vessel was seaworthy, and tbat there was a latent defect in her. One of the conditions upon which the plaintiff was carried was that the company would not be responsible for detention caused by bad weather, &c., and that, he urged, excused them from liability in that action.-Mr. Commissioner Kerr did not think the defendants could exempt themselves from liability under the circumstances. If it were so, the owners of vessels would be sending unseaworthy ships to sea every day, and just pocket the money paid for the tickets without carrying the passengers more than a mile or so. Suppose defendants agreed to take a number of passengers to South Africa, and when off the Isle of Wight the vessel broke down and all the people had to come back. Surely they would be entitled to have their money back.
Mr. Balloch said they returned the amount of the plair tiff's ticket. He paid 18s. for the return ticket. As the single ticket would Cost 12s., they gave the plaintiff 6s.---Mr. Commissioner Kerr said he should find for the plaintiff £1 1s. 6d., the amount paid by him, and as the defendants regarded the question as important, he would give leave to appeal, and the costs would be upon the higher scale.
HOUSE OF LORDS. Company - Private Company - One-Man Company -- Winding-up
Indemnity. The appellant, a trader, who was solvent, turned his business into a limited company. The nominal capital was £40,000 in £1 shares. The memorandum of association was subscribed by the appellant and six members of his family for one share each. Twenty thousand shares were afterwards allotted to the appellant, but no other shares were ever issued. Debentures forming a floating security on the capital were issued to the appellant in part payment of the amount for which the business was sold to the company. The appellant continued to manage the business as managing director, and after a short time an order was made for a compulsory winding.up. Held, that the arrangement was within the spirit of the Companies Acts, and that the appellant could not be made liable to indemnify the company against the claims of creditors. Judgment of the Court of Appeal (72 L. T. Rep. 755; (1895) 2 Ch. 323) reversed.
[Salomon v. Salomon and Co. Limited. H. of L. Nov. 16.-Counsel : Cohen, Q.C., Buckley, Q.C., McCall, Q.C., Muir Mackenzie ; Farwell, Q.C., Theobald. Solicitors : R. Raphael ; S. M. and J. B.
Benson.] Revenue-Income Tax-Deductions — Payment to retiring Manager
Capital Expenditure.—The appellant company acquired, under the provisions of an Act of Parliament, the entire business of the Q. Insurance Company. One of the articles of agreement between the comparies, which was embodied in the Act of Parliament, provided that the appellant company should take the manager of the Q. Company into their service at an agreed salary, and if they afterwards dispensed with his services should commute his salary for a lump sum upon a basis agreed upon. In pursuance of this agreement the appellant company, shortly after the amalgamation, paid the manager a sum of money in commutation of his salary. Held, that this payment was part of the consideration for the purchase of the business of the Q. Company, and was a capital expenditure, which the appellant company were not entitled to deduct in making their returns of profits and gains for income tax. Judgment of the court below (73 L. T. Rep. 524; (1896) 1 Q. B. 41) affirmed.
[Royal Insurance Company v. Watson. H. of L. Nov. 12.-Counsel : J. Walton, Q.C., Horsfall, and Maxwell; Sir R. Finlay, Q.C. (S.-G.) and Danckwerts. Solicitors : G. L. P. Eyre and Co., for Garnett, Tarbet,
and Co., Liverpool; F. C. Gore, Solicitor of Inland Revenue.] Revenue-Will-Probate-Foreign Mortgage.--A testator died domiciled
in England, and by his will left to his wife one-fourth of his residuary estate. Part of the estate consisted of money invested on mortgage in New Zealand. Before the estate had been fully administered, and the mortgages realised and the ultimate residue ascertained, the wife died. Held, that the right of the wife's executors to due administration of the husband's estate was an English asset, and therefore that probate duty was payable on one-fourth of the value of the New Zealand mortgages. Judgment of the court below (74 L. T. Rep. 91; (1896) 1 Q. B. 354) affirmed.
(Lord Sudeley v. Attorney-General. H. of L. Nov. 13.---Counsel : Channell, Q.C., Farwell, Q.C., and Bremner ; Sir R. Webster, Q.C. (A.-G.), Sir R. Finlay, Q.C. (S.-G.), and Vaughan Hawkins. Solicitors : J. A.
Bertram; F. C. Gore, Solicitor of Inland Revenue.] Ship-Admiralty Law-- Law of Scotland-Maritime Lien.--Admiralty
law is the same in England and Scotland, and a maritime lien in cases of damage by collision, &c., obtains in Scotland. The Bold Buccleuch (7 Moo. P.C. 267) approved. The ship D. was moored to a quay, and the E. was moored outside her by ropes passing over the D. A gale sprang up, and the master of the D., to secure the safety of his own vessel, cut the mooring ropes of the E., which drifted on shore and was damaged. The owner of the E. subsequently obtained judgment against the owner of the D. The D. was afterwards sold by order of the court. Held, that, under the circumstances, the owner of the E. had no maritime lien over the D. as against a mortgagee. Judgment of the Court of Session in Scotland (22 Ct. Sess. Cas. 4th series, 607) aflirmed.
[Currie v. McKnight. H. of L. Nov. 16.-Counsel: J. Walton, Q.C., Thomson (of the Scotch Bar); The Lord Advocate (Graham Murray, Q.C.), Sir W. Phillimore. Solicitors : T. Cooper and Co., for Morton, Smart, and Macdonald, Edinburgh, and J. E. Wilson, Glasgow ; Grahames, Currey, and Spens, for Webster, Will, and Ritchie, Edin. burgh.]
COURT OF APPEAL. Bankruptcy-Petition-Receiving Order—No Assets– Debtor an Indis.
charged Bankrupt-Discretion of Court-Bankruptcy Act 1883 (46 8. 47 Vict. c. 52), 88. 5, 7, sub-sect. 3.--Appeal against a receiving order made by the registrar in bankruptcy. The petitioning creditor had recovered judgment against the debtor in May 1893 and a bankruptcy petition was presented. In 1882, by a deed of settlement, certain property was vested in trustees upon trust to pay the annual income to the debtor for life, with a proviso for forfeiture in the event of the debtor's bankruptcy, the trustees having power in their discretion to make him an allowance in respect thereof. In May 1892 the debtor was adjudicated bankrupt, and had not obtained his discharge. The petitioning creditor had proved in that bankruptcy in respect of another debt. The debtor now made an athidavit that he had no assets. The following authorities were referred to: Re Murrieta
TEYPLE RESTAURANT.--This establishment, situate in Tudor-street, adjoining King's Bench Walk (four minutes from the High Courts of Justice), has been entirely rebuilt and enlarged. The Temple Restaurant is now replete with every convenience and comfort which experience and capital can command. Table d'Hôte daily, consisting of soups, entrées, joints, vegetables, &c., at 23. each. No charge for attendance. Dinners à la Carte quickly served. Choice wines, spirits, and malt liquors. Chops, steaks, tea, and coffee. The Legal Profession is respectfully informed that Breakfasts, Dinners, and Teas are supplied in chambers if desired. Menus and tariffs forwarded daily for selection upon application.-[Adv..]
(3 Manson Bank. Rep. 35), Re Leonard ; Ex parte Leonard (74 L. T.
[Re Betts; Ex parte Betts. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Nov. 6.—Counsel : for the debtor, S. G. Lushington ; for the petitioning creditor, Muir Mackenzie. Solicitors : J. Laidman,
Hicks, Arnold, and Mozley.] Contract Personal Service-Agreement by Defendant to act exclusively for plaintiff's Absence of negative Covenant Breach-Injunction —By an agreement dated the 16th of June, 1894, and made between H. and the M. Association, H. was appointed supervisor of the M. Association for the purpose of procuring, effecting, and completing satisfactory applications for membership, and for the purpose of appointing competent and acceptable agents in any unoccupied territory in the British Isles, and H. agreed to "act exclusively for ” the M. Association in so far as to tender to it all life insurance risks obtained by him or under his control; to thoroughly and efficiently occupy the territory specified in the agreement and to faithfully discharge all the duties of bis appointment as such supervisor ; to devote his time and best energies to the service of the M. Association; and to guard its interests and encourage members in the payment of tbeir premium calls. And upon the condition that the terms and provisions of the agreement were complied with by H. the contract was to continue in force for five years from the date thereof unless H. failed to obtain a volume of business satisfactory to the president or executive committee at the bome office of the M. Association in New York. On the 20th of Jane 1896 H. entered into an agreement with the N. Company whereby he was appointed agency director of the Company for the kingdom of · Great Britain and Ireland for the purpose of canvassing for applications for assurance on the lives of individuals to the Company and of organising agencies for the Company in Great Britain and Ireland. The M. Association thereupon commenced an action in the Queen's Bench Division against H. and the N. Company for an injunction to restrain the employment of H. by the N. Company during the continuance of the agreement of the 16th of June 1894 and for damages for breach of the agreement. Subsequently the M. Association took out a summons for an interlocutory injunction. The master refused the application and his refusal was affirmed by Pollock B. sitting at chambers. The plaintiffs appealed. For the defendant H. it was contended on the authority of The Whitwood Chemical Company v. Hardmar, (64 L. T. Rep. 716; (1891) 2 Ch 416) that the plaintiffs were not entitled to an injunction. The N. Company disclaimed any intention to retain the services of the defendant H. if satisfied that his contract with the plaintiffs was subsisting as to which there was a conflict of evidence. Held, that it was not necessary that the contract should contain a covenant negative in its terms if it was possible to extract from the contract a negative covenant sufficiently clear as to define exactly the limits of the injunction claimed; but that there was so much vagueness as to the negative term to be imparted that the case fell properly within the principle of The Whitwood Chemical Company v. Hardman (ubi sup). Held, therefore that the appeal must be dismissed with costs. Decision of Pollock B. affirmed.
[The Mutual Reserve Fund Life Association v. The New York Life Insurance Company. Ct. of App. No. 2. Lindley and Smith, L.JJ. Nov. 10.-Counsel : for the appellants, Lawson Walton, Q.C., F. M. Abrahams, and Mallinson ; for the respondents, Bigham Q.C., and Muir Mackenzie, Robson, Q.C., and Bremner. Solicitors : for the appellants, Michael Abrahams, Sons, and Co.; for the respondents, Brook, Freeman, Batley, agents for Wright. Becket, and Co., Liverpool ;
Ashurst, Morris, Crisp, and Co. Insurance- Marine-Policy on Freight-Exception of Claims" consequent on Loss of Time”.-Delay by Perils of Sea-Frustration of Adventure.
– This action was brought upon a policy of insurance for £1500, by which freight under a charter-party was insured against total loss or general average only. The policy contained the following clause:
Warranted free from any claim consequent on loss of time, whether arising from perils of the sea or otherwise.” The vessel was chartered to convey troops and cargo from Lisbon to South Africa. The cargo was loaded at Lisbon, and the vessel sailed for South Africa. On the day after she sailed bır main shaft was broken by perils of the sea, and she was towed back to Lisbon. The delay necessary for repairing the damage so as to enable the vessel to proceed on the voyage was such as frustrated the objects of the adventure. The cargo discharged, and the charter-party was properly cancelled, and the plaintiff's thereby totally lost the freight. The defendants contended that the case came withi the above-quoted exception, and that they were therefore not liable under the policy. The action was tried as a commercial cause by Collins, J., and the learned judge gave judgment for the plaintiffs (75 L. T. Rep. 155). The defendants appealed. Held
(reversing the judgment of Collins, J.), that the claim was a
“ claim consequent on loss of time” arising from perils of the sea within the meaning of the exception, and that the defendants were not liable under the policy.
[Bensaude and others v. The Thames and Mersey Marine Insurance Company. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Nov. 17.—Counsel : for the appellants, Joseph Walton, Q.C. and T. E. Scrutton; for the respondents, Bigham, Q.C., Bucknill, Q.C., and Leck. Solicitors : for the appellants, Waltons, Johnson, Bubb, and Whatton ;
for the respondents, Lowless and Co.] Lessor and Lessee — Licence to assign-Fine or Sum of Money in the
Nature of a Fine--Conveyancing and Law of Property Act 1892 (55 g 56 Vict. c. 13), s. 3.—The lessors of a building lease containing a covenant by the lessee not to assign without the licence of the lessors are entitled to demand as a condition of granting such licence that the lessee shall deposit a sum of money as security for the due performance of covenants in the lease with reference to the buildings, as the language of sect. 3 of the Conveyancing and Law of Property Act 1892. providing “ that no fine or sum of money in the nature of a fine sball be payable for or in respect of such licence” points to an absolute payment of money to the person demanding it as a condition of granting such licence, and not to a sum of money deposited which the lessee will receive back if the covenants are performed. Decision of Stirling, J. affirmed.
[Re Cosh's Contract. Ct. of App. : Lord Russell, C.J., Lindley and. Smith, LJJ. Nov. 13.—Counsel: Warrington, Q.C. and Dibdin ; Buckley, QC. and John Henderson. Solicitors : A. A. Timbrell ;
Baylis and Pearce.]
Drains into old Server-New Drains into new Sewer-Erpenses--
[The Vestry of St. Martin-in-the-Fields v. Ward. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Nov. 14.—Counsel : for the vestry, Macmorran, Q.C. and Beven ; for the defendant, Channell, Q.C. and R. Cunningham Glen. Solicitors: Fladgate and Co.; Angeil,.
Imbert-Terry, and Page.]
Order for Medical Examination-Nonpayment of Pension--Mandamus
medical examination by R. at or near Warwick. On the 10th Oct. a resolution was passed that the payment of the arrears should not be withheld by reason of K.'s having failed to attend for examination. On the 16th Jan. 1893 a further resolution was passed, that K. should submit himself for the examination of R. at or near Warwick before the 25th March, and, failing that, his pension to be cancelled. In obedience to this, K. came to Warwick, and was, on the 3rd March 1893, examined by R. On the 17th April the committee declared themselves satisfied, on the evidence of R., of K.'s incapacity to serve, and that his quarter's pension to the 25th March should be paid. It was, however, also resolved that he should be required to present himself in Warwick betwcen 1 and 3 p.m. on the 12th June for examination by two medical practitioners, failing which his pension would be cancelled. K. did not present himself, but a certificate by a Lisbon doctor that K. could not attend, on account of ill-health, was sent to the committee. The committee, on the 17th July 1893, resolved that, as K. had not attended, his pension shonld be cancelled. On the 9th Oct. a resolution was passed, that K. be dismissed from the force. In December K. applied for a mandamus to the committee to take the necessary steps for the payment of the pension. The Court, however, refused to make any order. On the 16th April 1894 the order of the 17th July 1893 was rescinded, on the committee being advised that it was of doubtful Falidity. The arrears of pension from the 13th June 1893 to the 24th June 1894 were accordingly paid on the 12th July 1894. The committee resolved that K. was to attend at Warwick on the 31st Aug., between 12 and 3 p.m., for the purpose of being examined by two medical men; failing that, his name was to be struck off the list of pe
Subsequently a letter was sent on behalf of K., stating at he had not the means to make the journey even if he were fit, and a report was sent from the Lisbon doctor, dated the 29th Sept., saying that K. was not in a fit state to perform any duty. Since the 24th June no payment of pension had been made. An application for a mandamus to the committee to pay the arrears of the pension was made by the trustee of the deed of assignment. The Divisional Court (Cave and Wills, JJ.) decided (dissentiente Wills, J.) that the rule nisi ought to be discharged. On appeal: Held (reversing the decision of the Divisional Court), that the order for the examination of K. was not really for the purpose of examining him as to the state of his health, and was consequently made without jurisdiction; that K., therefore, was not bound to obey it; and tbat his pension having been forfeited for such disobedience, the mandamus should go, that being the only remedy K. had whereby to obtain continued payment of his pension, of which he had been illegally deprived. But held, that the introduction into the order of a time and place did not vitiate it, as the committee had jurisdiction to name the time and place in order to give effect to the order for examination.
Reg. v. Lord Leigh. Ct. of App. No. 2: Lindley and Smith, L.JJ. Nov. 3, 5, and 14. - Counsel : for the appellant, Dickens, Q.C. and Jtherley Jones ; for the respondents, Channell, Q.C. and Darlington. Solicitors : for the appellant, Casson Perrott-Smith ; for the respon.
dents, Field, Roscoe, and Co., agents for Field, Leamington.] Poor Law-Guardians—Limitation of Time for Payment of Debts
('osts in the High Court-Poor Law (Payment of Debts) Act 1859 (22 & 23 Vict. c. 49), 8. 1.-In June 1892 the Manchester, Sheffield, and Lincolnshire Railway Company appealed to quarter sessions against a rate made by the guardians of the Doncaster Union, the assessment committee being the respondents. A special case was stated for the opinion of the High Court, and there was an appeal to the Court of Appeal. In the Court of Appeal judgment was given for the railway company with costs on the 17th July 1893, and that judgment was affirmed by the House of Lords. On the 9th Dec. 1895 the costs of the railway company in the Court of Appeal were taxed by a taxing master of the High Court, and were allowed at £105. The railway company then brought this action against the guardians of the Doncaster Union claiming a mandmaus to the guardians to make a rate and pay the above sum of £105. The Poor Law (Payment of Debts) Act 1859, by sect. 1, provides that: “With respect to any debt, claim, or demand, which may, after the passing of this Act, be lawfully incurred by or become due from the guardians of any union or parish
such debt, claim, or demand shall be paid within the half-year in which the same sball have been incurred or become due, or within three months after the expiration of such half-year, but not otherwise provided the Poor Law Board, by their order, may, if they see fit, extend the time within which such payment shall be made for a period not exceeding twelve months after the date of such debt, claim, or demand.” At the trial before Day, J., without a jury, the learned judge beld, upon the authority of Guardians of West Ham v. Church wardens, ge., of St. Matthew, Bethnal Green (72 L. T. Rep. 347; (1895) 1 Q. B. 662), in the Court of Appeal, that the claim of the plaintiffs was barred by sect. 1 of the Act of 1859, and he gave judgment for the defendants. The above decision of the Court of Appeal was subsequently reversed in the House of Lords (1896) A. C. 477). The defendants appealed. Held (reversing the judgment of Day, J.), that the period of limitation prescribed by sect. 1 of the Poor Law (Payment of Debts) Act 1859 did Dot begin to run until the costs payable by the guardians under the order of the Court of Appeal had been taxed.
Manchester, Sheffield, and Lincolnshire Railway Company v. The Guardians of the Doncaster Union. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Nov. 4 and 5.-Counsel : for the appellants, C. A. Russell and J. W. Mansfield ; for the respondents, Macmorran, Q.C. and W. A. Meek. Solicitors :- for the appellants, C'unliffes and Darenport, for Lingard Monk, Manchester ; for the respondents, lan Sandau and Co., for F. E. Nicholson, Doncaster.]
Practice-Receiver-Disputed Title-Ejectment Action-Defendant in Pos
session as Heir-at-law-Jurisdiction - Discretion-Judicature Act 1873 (36 8. 37 Vict. c. 66), 8. 25, sub-sect. 8.-A motion was made by the plain. tiffs in an ejectment action to recover possession of certain properties, for the appointment of a receiver, until the trial of the action, of the rents and profits of the properties, of which the defendant was in possession as heir-at-law of the former owner. By the writ in the action the plaintiffs claimed to recover possession of the properties mentioned in the notice of motion. The plaintiffs had brought another action against the defendant in respect of other properties in the same county, held, as they alleged, under the same title as those of which the defendant was in possession, and they had obtained judgment in their favour as to part of the lands claimed. An appeal was, however, pending in the House of Lords. The defendant had charged part of his property, and had given a bill of sale over his furniture and effects. It was decided by Kekewich, J. (ante, p. 37) that, since the passing of sect. 25, sub-sect. 8, of the Judicature Act 1873, the court had jurisdiction to appoint a receiver in the case of a disputed title to real property, at the instance of the plaintiff, although the defendant was in possession, as the case of Berry v. Keen (51 L. J. 912, Ch.) had decided that sect. 25 had overruled Talbot v. Hope-Scott (32 L. T. Rep. 392 ; 27 L. J. 273, Ch.); that it was a matter for the judicial discretion of the court; and that, as it was desirable to keep matters in medio pending the litigation, and also having regard to the impecuniosity of the defendant, the order for the appointment of a receiver would be made. The defendant appealed. Held (affirming the decision of Kekewich, J.), that, under sect. 25, subsect. 8, of the Judicature Act 1873, the court had jurisdiction, where just and convenient, to appoint a receiver in such a case as the present; but held (reversing the decision of Kekewich, J.), that the circumstances
the case did not justify the appointment of the receiver, and that therefore the order for the appointment must be discharged, and the appeal allowed with costs.
Foxwell v. Van Grutten. Ct. of App. No. 2.: Lord Russell, C.J., Lindley and Smith, L.JJ. Nov. 18.--Counsel : for the appellant, Haldane, Q.C., Warrington, Q.C., and Boome; for the respondents, Renshaw, Q.C. and Romer. Solicitors : for the appellant, Collyer-Bristow, Russell, Hill, and Co.; for the respondents, Robbins,
Billing, and Co., agents for James Clarke, Preston.] Railway — Traffic - Through Rates Through Booking Reasonable
Facilities-Railway and Canal Traffic Act 1854 (17 8: 18 Vict. c. 31), s. 2 — Railway and Canal Traffic Act 1888 (51 8. 52 Vict. c. 25), 8. 25, sub-8. 5. - The Didcot, Newbury, and Southampton Railway Co. made an application to the Railway and Canal Commission Court against the London and South-Western Railway Company and the Great Western Railway Company, asking for an order allowing through rates and a through route from Southampton to Paddington. Upon the hearing of this application, Sir F. Peel gave judgment upon the facts and merits in favour of the applicants, while Lord Cobham gave judgment in favour of the respondents. Collins, J. gave judgment to the effect that he considered himself bound by the previous decisions of the court, and that it was clear law that through booking, as distinguished from through rates is for all practical purpose a matter of right, as held by Mr. Commissioner Miller, in The Great Western Railway Company v. The Severn and Wye Railway Company (5 Railway and Canal Traffic Cases, 156 193); that this case was, therefore very little more than an application for through booking, and a very slight prima facie case would entitle the applicants to the order asked for. Collins, J. therefore agreed with Sir F. Peel, and an order was made in favour of the applicants. The London and South-Western Railway Company appealed upon the point of law decided by Collins, J. In the Court of Appeal the Master of the Rolls stated that, as they were informed by Collins, J., that he entirely agreed with Sir F. Peel upon the facts and merits of the case, the appeal must fail. The Court of Appeal, however, expressed their opinion upon the question of law. Lord Esher, M.R. and Rigby, L.J. held that a through booking could not be ordered, as a reasonable facility under sect. 2 of the Railway and Canal Traffic Act 1854, apart from a through rate and the matters which must be considered before a through rate is ordered. Lopes, L.J. held that a through booking can be ordered, as a reasonable facility under sect. 2 of the Act of 1854, apart from a through rate.
[The Didcot, Newbury, and Southampton Railway Company v. The London and South-Western Railuay Company and The Great Western Railway Company. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Nov. 7, 8, and 9.-Counsel: for the appellants, Cripps, Q.C. and Ernest Moon ; for the respondents, Littler, Q.C., Balfour Browne, Q.C., and Acurorth. Solicitors : for the appellante, Bircham and Co.; for the respondents Lake and Lake.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Administration — Colonial Assets — Colonial Duties — Pecuniary and
residuary Legatees-Costs of Realisation.-A testator domiciled in England, whose assets consisted of considerable personalty in England, and also of realty, leaseholds, and personalty in Australia, by his will, after beqnvathing pecuniary legacies of considerable amount, gave his residuary real and personal estate upon trust for his five children in equal shares, the share of each child being settled upon him or her for life with remainder to his or her children, with power for his trustees to manage and cultivate his real and leasehold estates until sold. Held, that the duties due to the Government of South Australia were not, like the duties due to the Government of this country, payable out of the share of each child, but were part of the costs of realisation, and were
therefore payable out of the testator's general assets before distribu. tion.
[Re Maurice ; Brown v. Maurice. Ch. Div.: North, J. Nov. 11.Counsel : Stewart Smith ; Younger; Arthur Powell and C. F. Mitchell. Solicitors : Palmer and Bull, for Deake and Lee, Lewes ; Thorowgood, Tabor, and Hardcastle, for Cooper and Co., Newcastle ; Thomas Durant ;
Blyth, Dutton, Hartley, and Blyth.] Administration-Creditor-Liberty to sign final Judgment—Judgment
Creditor-Priority-Rules of Court 1883, Order XLI., rr. 3 and 4-Snow's Ann. Pr. 1897, pp. 1229, 1241.- This was an application in the administration of a testator's estate to vary the chief clerk's certificate by finding that a certain creditor was entitled to rank pari pas8u with, and not in priority to, the other creditors of the testator. The creditor had in 1892 obtained an order in the Queen's Bench Division under Order XIV., R. S. C., for liberty to sign final judgment against the testator for the amount of his debt: but no actual judgment had ever been entered in pursuance of the order. The chief clerk found that the creditor was entitled to the priority of a judgment creditor. Held, that an order giving liberty to sign judgment is not equivalent to actual judgment for the purpose of giving priority; and the certificate of the chief clerk must be varied as asked by the summons.
[Re Gurney ; Clifford v. Gurney. Ch. Div.: Kekewich, J. Nov. 11. -Counsel : Micklem ; Dunham. Solicitors : C. P. Pritchard ; PearceJones.] Company – Debenture - Floating Security-Protection of Security
Receiver - Manager. A company by its debentures charged with payment of principal and interest its undertaking and all its property, real and personal, present and future, including uncalled capital. The charge created by the debentures was to be a floating security. The principal moneys became payable if default had been made for six months in payments of interest, or in the event of a winding-up order, being made, or a valid resolution to wind-up the company being passed. This was an action brought by a debenture-holder on behalf of himself and all other debenture-bolders, to realise his security, and he now moved for the appointment of a receiver and manager to protect his security. No default had been made in payment of interest, nor had an order been made, or a resolution passed to wind-up the company, but a petition had been presented, and a provisional liquidator appointed. Held, that, notwithstanding the debentures had not matured, the court had jurisdiction to appoint a receiver and manager for the protection of the security.
[Re Victoria Steamboats Limited ; Smith v. Wilkinson. Ch. Div.: Kekewich, J. Oct. 30.–Counsel : Renshaw, Q.C. and C. E. E. Jenkins; Stokes ; Sheldon ; Waggett; Upjohn. Solicitors : Hicks, Davis, and Hunt; Hill, Son, and Rickards; Keene, Marsland, Bryden, and Besant ;
Norman Herbert Smith; Arnold Williams and Co.] Company--Shareholder — Misrepresentation-Rectification-Payment
Adoption of Contract - Delay.--This was a motion by the plaintiff, a widow, to have the register of shareholders of the Dunlop-Truffault Cycle and Tube Manufacturing Company Limited rectified by removing her name therefrom as the holder of 500 shares of £1 each and for the return of £250 paid by her to the company in respect of those shares. On the 18th May 1896 the plaintiff, seeing a prospectus of the company, filled up and sent to the company a form of application for 500 shares, accompanied by a cheque for £62 10s., being 2s. 6d. per share required by the prospectus to be paid on application. She stated that the reason she applied for shares was seeing on the prospectus the name of “ Charles Dunlop, Esq., managing director of Dunlop and Co. Limited, Whitfield-street, London, E.C.," with a notification that he would join the board after allotment and completion of the purchase by the company, the company being stated to be formed for the purpose of acquiring from Charles Dunlop and Jules Truffault the right to work a cycle invention of the latter. There was in the prospectus a marginal note in red, saying that the company was “self-contained and in no way connected with Dunlop Pneumatic Tyre Company Limited.” On the 22nd May the plaintiff saw in the Times the report of a case decided by Chitty, J., in which an injunction was granted restraining the present company from using the name Dunlop, it appearing that Charles Dunlop was merely a printer, having no connection whatever with cycles. On the 23rd May the plaintiff wrote to the company, stating that she had been misled, and claiming the return of the £62 10s. On the 27th May the plaintiff sent the company a further cheque for £62 10s., money payable on allotment. On the 28th May the secretary of the company wrote that the plaintiff's letter of the 23rd would be laid before the board. On the 20th June the plaintiff sent the company a further cheque for £125, being 5s. per share required by the prospectus to be paid wlthin one month after allotment. On the 13th July the plaintiff served the company with the present notice of motion. Held, that the plaintiff was entitled to rescind the contract on the ground that she was deceived by the use of the name Dunlop in the prospectus ; but that, by her delay and the payment of the second sum of £62 10s. and the sum of £125, the plaintiff bad acted in a manner inconsistent with repudiation of the contract, and the motion must be dismissed with costs.
[Re The Dunlop-Truffault Cycle and Tube Manufacturing Company Limited; Shearman's case. Ch. Div. : Kekewich, J. Nov. 10.Counsel : Renshaw, Q.C. and E. 8. Ford; Bramwell Daris, Q.C. and
G. F. Hart. Solicitors : A. Donaldson ; Williams and Neville.] Money to be invested in Land--Settlement-Tenant for Life and Remain
derman--Permanent Improvements and Repairs.-T., who died in 1895, devised and bequeathed all his residuary real and personal estate to trustees, upon trust to settle the real estate on Lady L. for life, without impeachment of wasie, with remainder to her second son in tail male,
with remainders over, and to lay out the personal estate in the purchase of lands, to be settled in the same manner as his residuary real estate. The mansion-house had been much neglected in the testator's lifetime, and the beams on which the roof rested had become so decayed from dry rot that the roof was unsafe. This was an application by the tenant for life that the trustees might be authorised to expend in permanent repairs to the roof part of the funds in their hands subject to the trust for investment in land. The estimated cost of the repairs was £926. It was not intended to let the mansion-house, and it was admitted that the repairs did not come within the terms of the Settled Land Acts, but the application was made under the general jurisdiction of the court. Held, that the court had no jurisdiction to direct the application of the moneys subject to the trust for investment in land in the repairs proposed. Re De Teissier's Settled Estates (68 L. T. Rep. 275 ; (1893) 1 Ch. 153) followed.
[Re Lord de Tabley; Leighton v. Leighton. Ch. Div.: North, J. Nov. 14.-Counsel : Swinfen Eady, Q.C. and Butcher ; Methold. Solici
tors : Chester and Co., agents for Marston and Sons, Ladlow.] Practice--Order of Irish Court--Enforcing in England-Enrolment
Attachment in England—41 Geo. 3, c. 90, 8. 6.-On the 7th May 1896 an order was made, on further consideration, in the Chancery Division of the High Court in Ireland, that the defendant J. S. N. should indorse and' lodge in court two bankers' deposit receipts. The defendant had not appeared, and notice of the application was served on him by filing. The defendant did not obey the order, and on the 10th Aug. 1896 an order was obtained from the Lord Chancellor of England for the enrol. ment in England of the Irish order, and it was actually enrolled on the 28th Aug. This was a motion for leave to issue a writ of attachment against the defendant J. S. N. for disobedience to the order, under 41 Geo. 3, c. 90. Held, on the authority Aitcheson v. Pine (W. N. 1873, p. 3) and Pennefather v. Fust (W. N. 1866, pp. 102, 126), that the order might be made ; but, on the defendant appearing in person, and stating that the Irish order had been made without notice to him, the motion was ordered to stand over for a fortnight to give him an opportunity to apply in Ireland for rescission of the order.
[Newell v. Newell. Ch. Div.: North, J. Counsel: Peterson. Solicitors : C. Howard Austin, agent for Hayes and Sons, Dublin.] Public Health-Drain-Nuisance -- Expenses-Apportionment--Dispute
- Posted Letter--Prepaid- Public Health Act 1875 (38 d 39 Vict. c. 55), 88. 41, 94, 257, 267— Public Health Amendment Act 1890 (53 f 54 Vict. c. 59), s. 19.—This was a summons taken out by an urban sanitary authority for an order : (1) A declaration that the plaintiffs were entitled to a charge under the 257th section of the Public Health Act 1875 on certain land and premises of which the defendant was owner in respect of the sum of £40 178. 2d., being the apportioned amount payable by the defendant in respect of expenses incurred by the plaintiffs under sect. 41 of the said Act, and the 19th section of the Public Health Acts Amendment Act 1890, and otherwise, and also interest on such sum at 5 per cent. per annum from the 31st Oct. 1895, the date of the service of the demand ; (2) a sale to enforce the said charge. On the 26th Oct. 1894 the defendant made a written application to the plaintiffs, complaining that a nuisance existed from the drainage of the houses in a certain street. On the 20th Dec. 1894 the plaintiffs caused notice in writing to be given to the owners or occupiers of premises in the street, including the defendant, requiring the nuisance to be abated, and to do the necessary works for the purpose within seven days from the service of the notice. The owners or occupiers, including the defendant, having made default in complying with the said notice within the time specified, the plaintiffs caused the necessary works to be executed. On the 4th July 1895 the surveyor of the plaintiffs served notice of the apportionment upon the defendant ; and on the 31st Oct. 1895 notice was sent to the defendant demanding the amount. The defendant swore that on the 5th July 1895 he sent a notice disputing the amount found by the surveyor to be due from him ; he said that the notice inclosed in a letter was addressed to the chairman of the plaintiffs at their offices, and he put it into the post himself. The plaintiffs denied having received the notice of dispute of the 5th July 1895. The work done by the plaintiffs was to take up an old drain and relay it to a regalar fall, to ventilate it, provide inspection chambers, and connect it with the public sewer. Held, that the notice of dispute was not good, as there was no evidence that the letter in which it was sent was “prepaid ” in accordance with sect. 267 of the Public Health Act 1875; that the plaintiffs were acting wlthin their powers, and there must be a declaration that the plaintiffs were entitled to a charge on the land and premises in respect of the sum of £40 178. 2d. and interest and costs, and an order for sale, if necessary. [Walthamstowe Urban District Council v. Henwood.
Ch. Div. : Kekewich, J. Nov. 10 and 12.-- Counsel: E. J. Naldrett; Fleetwood Pritchard. Solicitors : E. G. Houghton; H. H. Wells.)
QUEEN'S BENCH DIVISION. Hackney Carriage-Railway Station---Refusal by Cab.driver to drive
into---" Place” within limits of Act--London Hackney Carriage Act 1853, s. 17 (2).-Application for a rule for a mandamus to Mr. Cortis Bennett, metropolitan police magistrate, commanding him to state a case for the opinion of the court. One Miss Kynaston engaged Joseph Kippins, a licensed cab-driver, and asked him to drive to Euston Station. The cab.driver drove the passenger from Chalk Farm to the gate of Euston Station, but refused to drive into the station or to enter the station, although one of the servants of the railway company told him at the time that he was at liberty to go into the station. Subsequently a summons was taken out against the cab-driver under sect. 17 (2) of the London Hackney Carriage Act 1853 (16 & 17 Vict.c. 33), charging the
defendant for that he in a certain thoroughfare within the metropolitan police district, refused to drive the passenger to a certain place within the limits of the London Hackney Carriage Act 1853. The learned magis. trate convicted the cab-driver and fined him 40s. and costs, and refused to state a case. The present application was to compel the magistrate to state a case as to whether the railway station was a "place" within the meaning of the section. Sect. 17 (2) of the Act provides : " Every driver of a hackney carriage who shall refuse to drive such carriage to any place within the limits of this Act, not exceeding six miles, to which he shall be required to drive any person hiring or intending to hire such carriage," shall be liable to a penalty not exceeding 408., when the offence is committed within the limits of the Act. In support of the application it was contended that the conviction was wrong, as a railway station was not a "place" within the meaning of the section, as the public had no right to go there, and cabs could not ply for hire there : Skinner v. Usher (26 L. T. Rep. 430; L. Rep. 7 Q. B. 423); Case v. Storey (20 L. T. Rep. 618; L. Rep. 4 Ex. 319). Held (on the anthority of Clarke v. Stanford, 24 L. T. Rep. 389; L. Rep. 6 Q. B. 357), that the railway station was a place” within the meaning of the section, as although it was private property, it was a place to which the public bad a right to go, and that the driver was properly convicted. Application refused.
[Ex parte kippins. Q.B. Div.: Grantham and Wright, JJ. Nov. 10. -Counsel: Roskill. Solicitors : Pattinson and Brewer.] Local Government-Drain or Sewer-Drain draining Block of Houses
belonging to same Owner-Erpenses of Repairing-Hastings Improvement Act 1885, 8. 148-Public Health Act 1875, 8. 41.-Rule for a mandamus to the Corporation of Hastings commanding them to maintain, and from time to time repair, a certain sewer at the rear of the twenty-nine houses and pnemises known as Nos. 97 to 153 (odd numbers), Athelstanroad, in the borough of Hastings, and the rule was obtained at the instance of Mr. W. B. Young, who was the owner (within the meaning of the Public Health Acts) of the houses in question. The applicant for the rule, Mr. Young, is the owner of this block of twenty-nine houses, which were built in 1880 by a builder who had submitted his plans to the urban sanitary authority, and the sanitary authority had approved of the same with one qualification. Those plans showed one single drain running at the rear of the block of the twenty-nine houses with communication or exit into a public sewer in the street at the end of the block. The authority suggested that, instead of their being only one communication with the public sewer, each one of the houses should communicate with the sewer from the drain behind the houses. The houses, however, were built as originally proposed with only one communication with the sewer, so that there was then the one drain at the rear of the houses druining each of the houses and discharging the sewage into the sewer at the end of the block, and these houses all belonged to the same owner. It was alleged that this drain was in a defective state, and that in consequence some wells at the rear of the houses from which the houses were supplied with water, were contaminated with sewage from the drain. A correspondence took place between the applicant and the corporation as to the repairing of the drain, and the applicant called on the corporation to execute the necessary repairs ; but the corporation declined to execute any of the works necessary to repair the drain on the ground that it was not a public sewer repairable by the corporation, but was a single private drain which should be kept in repair by the applicant, as owner of the twenty-nine houses. The question now was, whether it was repairable by the corporation or by the owner of the houses. Sect. 148 of the Hastings Improvement Act 1885 (48 & 49 Vict. c. cxovi), provides, “In cases where two or more houses are connected with a single private drain which conveys their drainage into a public sewer the corporation shall have all the powers conferred by sect. 41 of the public Health Act 1875 ; " and sect. 41 of the Act of 1875 provides that “on the written application of any person to a local authority stating that any drain, &c., is a nuisance or injurious to health (but not otherwise),” then the local authority may take steps to abate the nuisance and recover the expenses from the
The following cases were referred to : (Mayor of Eastbourne v. Bradford, 74 L. T. Rep. 762 ; (1896) 2 Q. B. 205 ; Self v. Hore Com. missioners, 72 L. T. Rep. 234 ; (1895) 1 Q. B. 685: Hill v. Hair. 72 L. T. Rep. 629; (1895) 1 Q. B. 906; and sect. 19 of the Public Health Act 1890). Held, that as the corporation had not commenced proceedings under sect. 41 of the Act of 1875 they remained to the full extent liable for the repair of the drain as a sewer under sect. 15. Rule absolute. Quære, as to whether the proper remedy in such a case is by mandamıls.
[Reg. v. The Mayor of Hastings. Q. B. Div. : Grantham and Wright, JJ. Nov. 6.--Counsel; Bosanquet, Q.C., Boxall, and A. H. Trevor ; Macmorran, Q.C. and $. G. Lushington. Solicitors : Lydall and Sons, for B. F. Meadows, Hastings; C. II. W. Osborn, for Young, Son, and
Coles, Hastings.] Parliament- Franchise-old Lodger Claim-Omission of Declaration
Mistake-Jurisdiction of Revising Barrister to correct Mistake.-Case stated by the revising barrister for the Borough of the Tower Hamlets. James Avery and James Beavers, and eighty-six other persons, had been placed by the overseers on the old lodger list. It was proved that James Avery and James Beavers were old lodgers, and were on the register then in force as lodgers in respect of the same qualifi. cations as were stated in their claims, that they desired to be entered on the list in respect of the same lodgings, and that they accordingly sent notices of their claims to the overseers on the 25th July 1896, and the overseers accepted such claims and inserted their names on the old lodger list. These claims were made on printed forms supplied to them by one of the local political
agents, and contained a declaration that the claimant had, during the twelve months immediately preceding the 15th July in this year, occupied as sole tenant, and resided in the lodgings. Such claim was duly signed, dated, and attested, but the declaration that the claimant was on the register of electors for the Parliamentary borongh in respect of the same lodgings, and desired to have his name inserted on the old lodger list, which is to be found at the end of Form H. No. 2 in the Registration Order 1895, was omitted from the claim. It was proved that the political agent applied for forms for lodger claims, and that the forms supplied to him were forms for new lodgers, from which the declaration above referred to is omitted; and the local agent supplied the forms so sent to him to the claimants without noticing the omission of the declaration, and under the impression that they were correct forms for old lodger claims. At the sitting of the court the appellant objected to the claims, on the ground that they were bad as old lodger claims by reason of the omission of the declaration aforesaid, and were bad as new lodger claims by reason of their having been delivered te the overseers before the 31st July 1896. The revising barrister overruled these objections, and was of opinion that, if the claims were to be treated as old lodger claims, he had power to amend them by inserting the final declaration, as he was satisfied that the claimants were on the register in respect of the same lodgings as they claimed for, and that they were desirous of having their names inserted on the old lodger list, and that, in his opinion, the omission of the declaration was caused solely by a mistake of the political agents, and he accordingly treated the claims as so amended. He also held that, if he had not power so to amend, the claims would be good as new lodger claims, although such claims had been sent in before the last day of July. He therefore held that the claimants were entitled to be on the lodger list. For the appellant it was now contended that the declaration and attestation were an essential part of the claim, and that the revising barrister had no power to amend by inserting the declaration : (Smith v. Chandler 60 L. T. Rep. 327; 22 Q. B. Div. 208; Jones v. Kent 60 L. T. Rep. 320; 22 Q. B. Div. 204). Held, that the omission of the declaration was a mistake which the revising barrister had jurisdiction to correct.
[Francis (app.) v. Metcalfe (resp.). Q. B. Div.: Hawkins, Cave, and Wright, JJ. Nov. 14.-Counsel : Day; Raven. Solicitors : Lewis and Lewis ; Gasquet and Metcalfe.]
IN BANKRUPTCY. Bankruptcy Protected Transaction --- Judgment Creditor - Charging
Order on Debtor's Interest in a Partnership Property-Election by other Partners to redeem --- Order for the other Partners to pay into Court the Amount of the Charging Order -- Act of Bank. ruptcy prior to Charging Order -- Title of Trustee in Bankruptcy to the Funds in Court Partnership Act 1890 (53 & 54 Vict. c. 39), 8. 23—Bankruptcy Act 1883 (46 d. 47 Vict. c. 52), 8. 49.—This was a summons by the plaintiff for an order for the payment out to him of a sum of money paid into court under the following circumstances : On the 20th April 1896 the plaintiff obtained a judgment for £125 and costs against William Southwood, and on the 27th April he obtained a charging order for £147 8s. 6d. on his interest in a partnership property. The otber members of the partnership elected, under sect. 23, sub-sect. 4, of the Partnership Act of 1890, to redeem the interest charged, and on the 2nd June an order was made that they should pay into court the amount for which the charging order was issued. This order was without prejudice to the rights of the official receiver, who was to have notice of any application for the payment of the money out of court. William Southwood had committed an act of bankruptcy on the 17th April 1896. Held, that the order ought not to be made, as the execution had not been completed, and that the judgment debtor's interest in the partnership property was vested in the trustee in bankruptcy prior to the charging order, which was not a transaction protected by sect. 49 of the Bankruptcy Act 1883.
[Wild v. Southwood. Q. B. Div. in Bank. : Williams, J. Nov. 17.-Counsel: Terrell ; Hansell. Solicitors : Wild and Wild ; Field, Roscoe,
and Co.] Bankruptcy-Solicitor's Lien on Property Recovered-Charging Order
Jurisdiction of Bankruptcy Judge to make--Of Registrar--Solicitors Act 1860 (23 d. 24 l'ict. c. 127), 8. 28.--This was a reference by consent from Mr. Registrar Linklater for the opinion of the judge, on the question whether the registrar in bankruptcy has jurisdiction to make a charging order in favour of a solicitor under sect. 28 of the Solicitors Act of 1860. Held, that the judge sitting in bankruptcy bas jurisdiction under the above Act to make the order, and that the matter being one which can be properly determined in chambers, the jurisdiction can and should be exercised by the registrar.
[Wood ; Ex parte Fanshaw. Q. B. Div. in Bank.: Williams, J. Nov. 10.--Counsel: Hansell and Muir Mackenzie. Solicitors : H. H. Fanshaw; Ralph, Raphael, and Co.]
WARNING TO INTENDING HOUSE PURCHASERS AND LESSEES.---Before purchasing or renting a house have the sanitary arrangements thoroughly examined by an expert from the Sanitary Engineering Co. (Carter Bros.), 65, Victoria-street, Westminster. Fee, for a London House, 2 guineas ; Country by arrangement. (Established 1875.)--[Advt.]
HAYNES'S STUDENT'S GUIDE TO THE LAW OF BANKRUPTCY.--Based upon the Bankruptcy Act 1883, and in the form of Question and Answer. Price 2s. 60.-HORACE Cox, Law Times Office, Windsor House, Bream’s-buildings, E.C.-[Apvt.]