Joseph Hood (liquidator of Ogdens, Limited) this cheque for the amount specified,

being my share of the second and final bonus distribution of the company." The customers did not intend by signing this receipt to waive any right they might have against the defendants. It having been

decided that the sale by the defendants of their business did not get rid of their liability under the contract :-Held, that the acceptance of the above cheque was not an accord and satisfaction of the customer's claim against the defendants. Nathan v. Ogdens, 94 L. T. 126; 22 T. L. R. 57C. A.

ACCOUNT DUTY.

Gifts made within Twelve Months of Death of Donor.]-Gifts made within twelve months of the donor's death, although made without any reservation of interest to the donor, are liable to account stamp duty under the Customs and Inland Revenue Acts, 1881 and 1889. A.G. v. Booth, 63 L. J., Q. B. 356; 10 R. 175.

account

Incidence of Duty.]-The stamp duty imposed by s. 38, sub-s. 2 (a), of the Customs and Inland Revenue Act, 1881, and s. 11, sub-s. 1, of the Customs and Inland Revenue Act, 1889, on an immediate gift made within twelve months before the death of the deceased, must be paid by the donee, and not out of the estate of the deceased. Foster, In re, Thomas v. Foster, 66 L. J., Ch. 220; [1897] 1 Ch. 484; 76 L. T. 228; 45 W. R. 333.

Release of Mortgage Debt-Gift of Personalty Covenant to pay Mortgagee Annuity Benefit reserved to Donor.]During the six months prior to a decree for foreclosure becoming absolute, the son of the mortgagee purchased the equity of redemption from the mortgagors, and by the same deed the mortgagee released the mortgage debt in consideration of a covenant by the son to pay him an annuity :-Held, first, that the release of the debt was a gift, and not a sale; secondly, that it was gift of personalty, and not of realty; and, thirdly, that the enjoyment by the donee was not "to the entire exclusion of any benefit to the donor by contract or otherwise within s. 11 of the Customs and Inland Revenue

Act, 1889 and that, consequently, on the death of the mortgagee, account duty was payable by the son on the amount of the debt released. A.G. v. Worrall, 64 L. J., Q. B. 141: [1895] 1 Q. B. 99; 14 R. 1; 71 L. T. 807; 43 W. R. 118; 59 J. P. 467C. A.

Policy of Assurance-Gratuitous Assignment-Subsequent Payment of Premiums by Assignee.]-The gratuitous assignee of a policy of assurance who subsequently to the date of assignment pays the premiums on the policy is not liable to pay account duty on the policy moneys. Lord Advocate v.

Fleming or Robertson, 66 L. J., P. C. 41; [1897] A. C. 145; 76 L. T. 125; 45 W. R. 674; 61 J.P. 692-H. L. (Sc.)

In 1883 a father assigned two policies of assurance on his life to his daughter. He had himself paid the premiums to the date of the assignment, but from that date until his death in 1890 the premiums were paid by the daughter :-Held, that the policy moneys were not liable to account duty, as it was not money received under a policy of assurance wholly or partially kept up for the benefit of a donee within s. 11, sub-s. 1, of the Customs and Inland Revenue Act, 1889. Ib.

| Articles-Annuity out of Gross Profits.] Where in a partnership deed it is provided that on the death of one of the partners, the executors of such partner shall sell his share to the surviving partner subject to an annuity payable out of the gross profits to the widow, such annuity is part of the deceased partner's personal estate within s. 38, sub-s. 2 (c), of the Customs and Inland Revenue Act, 1881, and s. 11 of the Customs and Inland Revenue Act, 1889, and consequently account duty is payable on it. A.G. v. Wendt, 65 L. J., Q. B. 54; 15 R. 528; 73 L. T. 255; 43 W. R. 701.

an

Purchase of Stocks by Husband and Wife in their Joint Names in Equal Shares for Benefit of Survivor Transfer "voluntarily" made. ]-Purchase of stocks by a husband and wife in their joint names, even where each of the parties contributes equally out of their separate moneys, under arrangement that such stock shall, on the death of either, belong to the survivor absolutely, is a transfer of property voluntarily " made within s. 38, sub-s. 2 (b), of the Customs and Inland Revenue Act, 1881, and s. 11, sub-s. 1, of the Customs and Inland Revenue Act, 1889, and the duty imposed by these sections is payable by the survivor on the deceased's share. A.G. V. Ellis,

64 L. J., Q. B. 813; [1895] 2 Q. B. 466; 15 R. 584; 73 L. T. 190, 350; 44 W. R. 13; 59 J. P. 774.

Settlement on Widow's Second MarriageTrusts in Favour of Children of former Marriage" Voluntary Disposition" or Settlement-" Volunteer."]-An immediate gift by a widow, in a settlement on her second marriage, to or in trust for children of her first marriage, is a voluntary disposition" and chargeable with account duty,

under s. 38, sub-s. 2 (a), of the Customs and Inland Revenue Act, 1881. A widow's children by her first marriage, in whose favour she settles personal property, reserving a life interest, by a settlement made upon her second marriage, are "" volunteers within the meaning of s. 11. sub-s. 1 (c), of the Customs and Inland Revenue Act, 1891, amending s. 38, sub-s. 2 (c), of the Customs and Inland Revenue Act, 1881, and are chargeable with duty. Newstead v. Searles (1 Atk. 265) and Clayton v. Wilton (Earl) (6 M. & S. 67, n. p. 787: 18 R. R. 307) as explained in Mackie v.

settlement if a life interest is reserved to the settlor. The Customs and Inland Revenue Act, 1889, s. 11, enacts that the above section is hereby amended as follows: the description of property marked (c) shall be construed as if the expression voluntary settlement included any trust in favour of a volunteer and whether

46

such deed or other instrument was made for valuable consideration or not as between the settlor and any other person." Upon demurrer to an information for stamp duty alleged to be due, under s. 38 of the Customs and Inland Revenue Act, 1881, in respect of personal property to which certain persons became entitled in 1885, under a settlement :-Held, that the provisions of s. 11 of the Act of 1889 were retrospective, and that the construction provided by that section must be applied to the description of the property sought to be taxed, and this although the property passed to the beneficiaries, and the proceedings to recover the duty were taken, before the second Act came into force. A.G. V. Theobald, 24 Q. B. D. 557; 62 L. T. 768; 38 W. R. 527. Post-nuptial Settlement-Sale to take place upon Request - Conversion.]— Freehold hereditaments were, by a postnuptial settlement, vested in trustees upon trust at the request in writing of the settlor and his wife or the survivor, and after the Ideath of the survivor, at their discretion to sell the same. The settlor died without having made any request, and no sale had in fact taken place-Held, (i) that the words the request in writing of the settlor," &c., did not prevent immediate conversion, but that they merely gave a discretion as to the time and circumstances of the sale, and did not indicate that the sale should not take place ultimately; (ii) that land equitably converted must be treated as money for all, including fiscal, purposes; and (iii) that s. 38, sub-s. 2 (c), of 44 Vict. c. 12 applies to land equitably converted. De Lancey's Succession, In re (L. R. 5 Ex. 102), treated as overruled. A.G. v. Dodd, 63 L. J., Q. B. 319; [1894] 2 Q. B. 150; 10 R. 177; 70 L. T. 660; 42 W. R. 524; 58 J. P. 526.

"at

Property "passing under "-Instrument not taking Effect as a Will.] By a marriage settlement in 1843 H. F. (then H. H.) transferred to trustees £1,056 three per cent. consolidated bank annuities, to pay the income to her for life, and after her death to J. F., the intended husband, and after the determination of both life estates for the benefit of the children of the marriage; and failing these trusts, upon trust for such person or persons as the said H. F. might,

notwithstanding coverture, appoint. In 1848 H. F. executed a deed appointing the trust funds after her own and her husband's death to E. C. J. F., the husband, died in 1879, and H. F. in 1888 :-Held, that under the Customs and Inland Revenue Act, 1881, s. 38, sub-s. (c), as amended by the Customs and Inland Revenue Act, 1889, s. 11, the duties mentioned in s. 38, sub-s. (c), were payable on the death of H. F. in respect of the personal property which passed, by virtue of the two deeds in question, to E. C. A.G. v. Chapman, 60 L. J., Q. B. 602; [1891] 2 Q. B. 526; 65 L. T. 119; 40

W. R. 79.

The expression "passing under in s. 38, sub-s. (c), was comprehensive, and might fairly be used in respect not only of dispositions effected by the words of the instrument creating them, but of those effected by the subsequent execution of a power created by the instrument in question. Ib.

Property, the right to direct the application of which is created by deed A., but the specific direction of which is effected by deed B., passes under (not by) deed A. Ib.

Reservation of Life Interest - Accounts.] By deed dated July 12, 1883, the settlor, in pursuance of a power given by articles of partnership, appointed and transferred to his sons his shares in the partnership business, as from October 1, 1883, or as from the settlor's death, which should first happen, provided that such appointments were conditional upon the execution by the sons before October 1, 1883, of a deed covenanting to pay to the settlor, from October 1, 1883, during his life interest at 4 per cent. per annum on the value of the shares appointed as aforesaid, and to pay, out of the profits, certain annuities to other persons. The sons executed this lastmentioned deed on July 12, 1883. The settlor died on July 19, 1883-Held, that the transfer of the shares was a voluntary settlement within the meaning of the Customs and Inland Revenue Act, 1881 (44 & 45 Vict. c. 12), s. 38, sub-s. 2, and that by it an interest for life in the property transferred was reserved to the settlor, and therefore duty was payable under that section on the amount of the shares 80 transferred. Crossman v. R., 56 L. J., Q. B. 241; 18 Q. B. D. 256; 55 L. T. 848; 35 W. R. 303. By a voluntary settlement the settlor assigned to trustees a sum of money, with interest, upon certain trusts, and subject to certain powers, provisoes, agreements and declarations, and it was declared that the trustees should apply the income for the benefit of the settlor and his wife, and children, or, at their discretion, for the benefit of one or more of such persons to the exclusion of the others, and, after the settlor's death the money was to be held subject to trusts in favour of his widow and children :Held, that, notwithstanding the power conferred upon the trustees of depriving the settlor of the benefit of the settled property at their discretion, an interest in such property for life was reserved to the settlor,

within the meaning of s. 38, sub-s. 2 (c), of the Customs and Inland Revenue Act, 1881, and therefore on his death duty was payable. A.G. v. Heywood, 56 L. J., Q. B. 572; 19 Q. B. D. 326; 57 L. T. 271; 35 W. R. 772. in A deed of partnership made 1877 between G. and several other persons provided that it should be lawful for him by deed or will to dispose of his shares in the business to (amongst others) any of his sons of the name of G. The deed also provided that no person should be entitled to enjoy any shares or interest in the business until the senior partners should by writing declare that he was duly qualified. G. died in 1889, and by his will, made in pursuance of the power contained in the deed, bequeathed to his eldest son all his share and interest in the goodwill and assets of the partnership. G.'s son obtained the shares, and executed a fresh deed of partnership with the surviving partners :-Held, that the shares passed to the son under the deed of 1877, which was voluntary settlement," and which " served" a life interest in them to G., and that therefore stamp duty was payable in respect of them under the provisions of s. 38 of the Customs and Inland Revenue Act, 1881, and s. 11 of the Customs and Inland Revenue Act, 1889. A.G. v. Gosling, 61 L. J., Q. B. 429; [1892] 1 Q. B. 545; 66 L. T. 284; 40 W. R. 366; 56 J. P. 358

a

re

Incidence of Duty-Appointee of Specific Sums and of Residue.]-Under a voluntary settlement, and the will of the settlor executing a special power of appointment thereby reserved in favour of the settlor's children, trustees were directed after the death of the settlor (to whom a life interest was reserved) to raise certain specific sums of money out of the trust funds in trust for certain of the settlor's children, and, subject thereto, to hold the entire trust funds in trust for another of his children. The question was raised whether the account stamp duty imposed by the Customs and Inland Revenue Act, 1881, s. 38, sub-s. 2 (c), and the additional estate duty imposed by the Customs and Inland Revenue Act, 1889, s. 6, on the death of the settlor, ought to be borne by the residue of the trust funds after providing for the specific sums appointed, or whether they ought to be borne rateably by the appointees of the specific sums and the appointee of the residue according to the amounts of their respective interests :Held, that, in the absence of any direction in the trust instrument, the duties ought to be borne by the appointees of the specific sums and the appointee of the residue rateably. Croft, In re, Deane v. Croft, 61 L. J., Ch. 190; [1892] 1 Ch. 652; 66 L. T. 157; 40 W. R. 425.

The stamp duty payable under s. 27 of the Customs and Inland Revenue Act, 1881; and the estate duty payable under s. 5 of the Customs and Inland Revenue Act, 1889, are not payable in part out of the property specifically given, but must be borne entirely by the general residuary personal estate, un

VOL. I.

less the general residuary personal estate is not sufficient. Croft, In re (61 L. J., Ch. 190; [1892] 1 Ch. 652), discussed. Bourne, In re, Martin v. Martin, 62 L. J., Ch. 69; [1893] 1 Ch. 188; 3 R. 52; 67 L. T. 586; 41 W. R. 70.

Successive Appointments under Power in Voluntary Settlement.]—Where successive appointments have been made under a power in a voluntary settlement, the account duty payable under the Customs and Inland Revenue Act, 1881, s. 38, sub-s. 2 (c), in respect of the life interest reserved to the settlor, and the costs of an action to carry out the trusts of the settlement must be borne by the several appointees rateably according to their shares. Croft, In re, Deane v. Croft (61 L. J., Ch. 190; [1892] 1 Ch. 652), followed. Shaw, In re, Tuckett v. Shaw, 64 L. J., Ch. 283; [1895] 1 Ch. 343; 13 R. 185; 71 L. T. 873; 43 W. R. 315.

The Account Duty was repealed by the Finance Act, 1894. See now DEATH DUTIESESTATE DUTY.

Negligence-Retainer to Check BooksDuty to Verify Bank and Cash Balances.]— Where an accountant is retained to check books of account, and where there is no arrangement that he need not verify the correctness of the cash and bank balances stated in the books, he commits a breach of duty if he checks the books without such verification and without informing his clients of the omission. Fox & Son v. Morrish, Grant & Co., 35 T. L. R. 126.

Chartered Accountants-Institute-Use of Name.]-See INJUNCTION.

(A) ACCOUNTS.

A decree for an account cannot be made against an executor who is not a party to the suit. A decree so made was discharged, but with leave to amend. Latch v. Latch, 44 L. J., Ch. 445; L. R. 10 Ch. 464; 23 W. R. 686.

Application for, by Accounting Party.]— Ord. II. r. 5, and Ord. XIV. are not confined to cases where the account claimed is an account to be rendered by the defendant, but they apply to cases where the plaintiff will himself be the accounting party-e.g. where a personal representative seeks to have the

usual administration accounts taken. Molony v. Molony, 21 L. R., Ir. 91.

No Jurisdiction to Order whole Matter to be tried in Chambers.]-The plaintiff, an equitable mortgagee, brought an action for foreclosure or sale against several other mortgagees, insisting that under the circumstances she was entitled to priority over the defendants. The alleged priority of the plaintiff to the defendants depended on questions of notice and fraud. On the application of the plaintiff, Kay, J., on summons under Ord. XXXIII. r. 2, made an order directing an inquiry what were the respective priorities of the incumbrances of the plaintiff and the respective defendants, and an account of what was due to the incumbrancers respectively. One of the defendants appealed :-Held, on appeal, that this order must be discharged, for that Ord. XXXIII. r. 2, was not intended to authorize the sending the whole of the questions in a cause to be tried in chambers, but only to authorize the court to direct, before trial, accounts and inquiries which would otherwise have been directed at the trial. Garnham v. Skipper, 29 Ch. D. 566; 52 L. T. 239-C. A. Useful only if Case established at Trial.]— A mortgagee of shares of the proceeds of the residuary real and personal estate of testator who died in 1872, brought an action in 1884 for the administration of the estate, alleging misapplication by one of the trustees of moneys raised by mortgage of parts of the real estate, and advanced to the same trustee of parts of the testator's estate on equitable mortgage. The plaintiff applied, under Ord. XV. r. 1, for the common accounts and inquiries in an administration suit, and also for inquiries as to mortgages of the real estate, and as to advances to the trustee :— Held, that only common accounts and inquiries could be directed on an application under the rule, and not accounts and inquiries, the right to which depended on the plaintiff establishing a case for them at the hearing, and that the special inquiries therefore could not be directed. Gyhon, In re, Allen v. Taylor, 54 L. J., Ch. 945; 29 Ch. D. 834; 53 L. T. 539; 33 W. R. 620-C. A.

a

Held, further, that Ord. XV. r. 1, must be read in connection with Ord. LV. r. 10, which makes it not obligatory on the court to order a general administration, and that the ViceChancellor was right in refusing the common accounts and inquiries in a case where, having regard to the period elapsed since the testator's death, it was uncertain whether a

1. Jurisdiction.

general administration order would be found at the hearing to be desirable, and where if the plaintiff at the hearing established a case of breach of trust, accounts and inquiries would have to be directed, going over in part the same ground as the common accounts and inquiries. Ib.

Right to Stay Proceedings-Insufficiency of Assets.]-Order made staying until further order, with liberty to apply, the of accounts and inquiries prosecution directed by a judgment in the nature of a foreclosure judgment (unless the defendants would give security for the costs of the proceedings), on the ground that it was shown to be highly probable that the amount due to the plaintiffs would greatly exceed the value of the property, and that the costs of further proceedings would be thrown away. Exchange and Hop Warehouses v. Land Financiers' Association, 56 L. J., Ch. 4; 34 Ch. D. 195; 55. L. T. 611; 35 W. R. 120.

Foreclosure Action Judgment.] A plaintiff in a foreclosure action, where there is no preliminary question to be tried, may obtain by summons in chambers, under Rules of Supreme Court, 1883, Ord. XV.

rr. 1 and 2, an order for an account and is to say, the usual foreclosure-that foreclosure judgment. Smith v. Davies or Davies v. Smith, 54 L. J., Ch 278; 28 Ch. D. 650; 52 L. T. 19; 33 W. R. 211. But see Blake v. Harvey, 29 Ch. D. 827.

See further, MORTGAGE.

See now R. S. C. 1883, Ord. LV. r. 5a.

Redemption Action-Preliminary Account -Form of Order.]-A general redemption decree will not be made upon a

summons

for preliminary accounts under Ord. XV. r. 1. Where, therefore, a writ had been issued in an action against mortgagees in possession, but no other pleadings had been delivered, and minutes of judgment were drawn up upon a summons under Ord. XV. r. 1, directing the necessary accounts, and further directing that the defendants' costs should be taxed, and the amount of such costs, as well as the certified amount found due upon the accounts, paid by the plaintiff to the defendants within six months, and in default that the action should be dismissed-Held, that the order must be for accounts only, and that the further directions, which made the order equivalent to a decree, must be struck out. Clover v. Wilts and Western Benefit Building Society, 53 L. J., Ch. 622; 50 L. T. 382; 32 W. R. 895.

Reference of Matters of Account.]-See ARBITRATION.