Oct. 17, 1891.

sustains the defences, assoilzies the defender, and decerus, &c.

"Note.--This is an action at the instance of the inspector of poor of the parish of North Berwick, for recovery of outlays in the maintenance of Michael Buchan, a lunatic, on the ground that Haddington as the parish of the lunatic's birth, is liable for his maintenance.

"The lunatic was born in the parish of Haddington, on 26th August 1867. He was residing with his father at Balgone Barns in the parish of North Berwick, in June 1889, when his father applied for parochial relief for him, and he was admitted to the Haddington District Asylum, where he still is.

"The lunatic has never been able for any work so as to earn anything for his own support. He has been taught to read and write and count a little. He has a certain amount of intelligence. He can tell the hours on a clock, or go a message to a shop. The whole of the five medical witnesses concur in the opinion that he has never been able to earn his own livelihood, and is not now able to do so.

"He has resided in his father's family from his birth till he was removed to the Asylum in June 1889, excepting a period of three months from 25th November 1885, when he was previously in the Asylum.

"Although he had attained the age of twenty-two years when he became chargeable to the parish of North Berwick, his father was still bound to support him. After he attained majority, he did nothing to break the ties that 'united him to the family circle.' He was therefore still a child of the house in the ordinary sense of that expression, a member of the family of which his father was the head, and consequently his settlement still depended on that of his father.'-Fraser v. Robertson, June 5, 1867, 5 Macph. 819, per Lord-Justice-Clerk, 823.

"The only ground on which in this action, the parish of Haddington is sought to be made liable for the maintenance of the lunatic is that Haddington is his own parish of birth. As the Sheriff-Substitute is humbly of opinion that the parish bound to support the lunatic is the parish of his father's settlement, the defender, as representing the parish of Haddington, is assoilzied."

The pursuer appealed to the Court of Session, and argued-This pauper was not a congenital idiot, and not therefore in perpetual pupillarity. His mind had always been weak, no doubt, but he had sufficient intelligence to acquire a settlement of his own. He could apparently have earned a little if he had been set to work under proper supervison. If his father had been dead, the place where he had acquired a residential settlement or his own birth settlement, as the case might be, would have been liable. Here his birth settlement was liable. Continued residence in a father's house did not make a man's settlement necessarily the same as his father's unless he were a congenital idiot. Wealthy men's sons often lived with their fathers and

earned nothing, and yet might be forisfamiliated. This man became forisfamiliated when he attained majority. The case was ruled by the cases of Cassels v. Somerville & Scott, June 24, 1885, 12 R. 1155, and Nixon v. Rowand, December 20, 1887, 15 R. 191.

Argued for Haddington-In Cassels' case the father was dead, and in Nixon's the father had deserted his family. Here the father was still alive, and the pauper, whether capable of acquiring a settlement of his own-which was doubtful-or not, had never in fact been forisfamiliated. The case was ruled, as the Sheriff-Substitute had held, by that of Fraser v. Robertson, June 4, 1867, 5 Macph. 819.

At advising

LORD JUSTICE-CLERK-The Sheriff-Substitute has decided that the pauper whose settlement is in question, and who is now a lunatic, has been during his whole life an idiot or an imbecile, and that he has never been able for any work. That is really the practical import of the evidence. The pauper's history may be shortly sketched thus-He was during the whole of his youth in the state described by the Sheriff-Substitute except during the time when he was suffering from acute lunacy and in an asylum. I think the case of Fraser rules the present, and this pauper was never forisfamiliated but continued part of the family of which his father was the head. I am therefore of opinion that it falls upon the parish of the father's settlement to give support in this case.

LORD RUTHERFURD CLARK-The case of Fraser was not impugned and I think our judgment must be pronounced in accordance with the views of the law therein expressed.

LORD TRAYNER-I am of the opinion as your Lordships.

LORD YOUNG was absent.

The Court adhered.

same

DELANEY v. COLSTON AND OTHERS.

(Ante, vol, xxvi. p. 576.)

Parent and Child-Child Placed Voluntarily in Charitable Institution-Parent's Demand for Return of Child-Custody.

In 1882 a father voluntarily placed his three children, aged respectively four years, two years, and a few months, in the hands of the founder and superintendent of a charitable institution for children, who, after keeping them in one of the homes of the institution for a period of four years, removed them in 1886 without the consent of their father to a property belonging to her in Nova Scotia. In 1884 directors were appointed, but they did not assume the management of the institution until 1887, when the superintendent resigned. In consequence of threatened legal proceedings the superintendent on the advice of the directors brought back the children in the end of 1886, but concealed them from their parent and from the directors themselves. After her resignation in 1887 the superintendent again removed the children abroad.

or

In a petition by the father in June 1889 for recovery of the children, the Court ordained the directors to deliver to the petitioner his children_on before the first sederunt day in October next, and further to report to the Court on 18th July next what steps had been taken to implement this order. In July 1891 the respondents stated by minute that they had unsuccessfully adopted legal proceedings in Nova Scotia, and now proposed to employ a detective. In October following they lodged the detective's report which detailed the efforts he had made without success to trace the children.

The Court held that the directors of the institution had taken all reasonable means to assist the petitioner to recover his children, but allowed the petition to remain in Court in order that either party might move in the matter in the event of any emerging change of cir

cumstances.

In this application by a father to recover the custody of his children, the Court upon 7th June 1889 pronounced the following interlocutor:-"The Lords having resumed consideration of the petition and answers, with proof for the compearing respondents and for the petitioner, and minute for the compearing respondents, ordain the whole parties called as respondents in the petition to deliver to the petitioner his children, James, Annie, and Robina Delaney, named in the petition, and that on or before the first sederunt day in October next; and further appoint the respondent to report to the Court on Thursday the 18th day of July next what steps have been taken in pursuance of this order.

In compliance with this order proceedings were taken by the respondents against Miss Stirling to compel her to give up the custody of the children.

An application was made to the Supreme Court of Nova Scotia, which was on July 23rd 1889 refused on the ground that the respondents had no right to the custody of the children. Shortly thereafter the respondents obtained a mandate from the petitioner authorising a renewed application to be made in his name, which resulted in a writ of habeas corpus being issued against Miss Stirling upon 14th October 1889. After sundry procedure the Supreme Court of Nova Scotia on 10th March 1890 found Miss Stirling guilty of contempt of Court, and on June 19th 1896 a rule nisi was granted for a writ of attachment to issue against Miss Stirling "unless cause to the contrary should be shown to the Supreme Court in banco at Halifax on 2nd July 1890."

The rule nisi was ordered to be made absolute upon 13th August 1890, Miss Stirling being allowed thirty days to restore the children, or to show that it was impossible for her to do so. After various procedure judgment was given against Miss Stirling on 21st February 1891, and the writ of attachment for contempt of court was finally issued. Thereafter Mis Stirling was liberated on bail, and she had an opportunity of answering interrogatories addressed to her by the Master of the Rolls; and on July 18th 1891 the Supreme Court of Nova Scotia found that her answers were satisfactory, that she had purged the contempt, and they accordingly discharged her.

On July 17th 1891 the respondents lodged a minute in the Court of Session stating that their efforts to recover possession of the children had up to that date been unavailing, and that they now proposed to employ detectives. The authority of the Court was interponed to this minute of same date. A detective was accordingly employed, and he lodged a report detailing the efforts he had unsuccessfully made to find the children.

At the discussion on the report, counsel for the respondents argued - That the directors had done everything in their power to recover these children, while the report of the detective showed that it was hopeless to expect to trace them. In these circumstances no further proceedings should be taken upon the interlocutor of 7th June 1889 ordaining the respondents to deliver the children to the petitioner.

Argued for the petitioner-The judgment of the Court in Nova Scotia was wrong, and it should be brought under the review of the Judicial Committee of the Privy Council. If any question was raised as to the competency of such a proceeding, the Court should direct the secretary of the institution to obtain the opinion of Canadian counsel on the matter. Miss Stirling had failed to show that she was ignorant of the whereabouts of the children.

At advising

Delaney v. Colston & Ors. Oct, 20, 1891.

LORD ADAM-This case is before us upon the report of a detective who was employed in compliance with the interlocutor of this Court of 17th July last to try and discover The the whereabouts of these children. report is in itself far from satisfactory, as the reporter, after tracing the children up to a certain stage, has thereafter lost all clue to them. If his conclusion is to be adopted, any further search would appear to be of no practical use.

Another course has been suggested to us by the counsel for the petitioner, namely, that the respondents should be directed to obtain the opinion of Canadian counsel as to the competency in the circumstances of appealing the judg ment of the Court of Nova Scotia to the Judicial Committee of the Privy Court. I do not think that such a course is practicable. We have before us the judgment of the Court in Nova Scotia, and we see from it that the Judges there by two to one found that Miss Stirling had purged the contempt, and they thereupon discharged her. In these circumstances, while this Court is most anxious to assist the petitioner to recover the custody of his children, it does not appear to us that any course has been suggested which would bring about that end. I fear that as matters stand at present this Court can do nothing further to assist the petitioner. It is clear, I think, that the directors have done all in their power, and all that they could reasonably be expected to do, to assist the petitioner, but unfortunately their efforts have not been attended with

success.

I would suggest to your Lordships that this petition ought to be allowed to remain in Court, so that if any change of circumstances occurs either the petitioner or the directors may move in the matter, but that at present no further order should be pronounced in the petition.

The LORD PRESIDENT, LORD M'LAREN, and LORD KINNEAR concurred.

The Court pronounced the following interlocutor:

"The Lords having resumed consideration of the cause, together with the report, No. 69 of process, Sist procedure under the petition hoc statu: Find the respondents liable in penses down to this date," &c.

ex

Friday, December 12, 1890.

OUTER HOUSE.

[Lord Stormonth Darling. ROBERTSON (LIQUIDATOR OF INTERNATIONAL EXHIBITION ASSOCIATION OF ELECTRICAL ENGINEERING AND INVENTIONS, 1890) v. BRITISH LINEN COMPANY. Company-Winding-Up-Company Limited by Guarantee Guarantee Payable only in Event of Winding-Up-Security -Lien-Effect of Security Granted over Guarantee Fund and Letters Prior to Winding-Up.

The memorandum of association of an exhibition association, incorporated under the Companies Acts as a company limited by guarantee, provided that every member of the company should be liable, in the event of the same being wound up during the time that he was a member, to contribute to the assets of the company for the payment of its debts such an amount as might be required, not exceeding £1. It further provided for the constitution of a guarantee fund, the subscribers to which were in the same event to be liable to the extent of their guarantee. The articles of association provided that in the event of a winding-up any loss or deficiency arising should be assessed first upon the subscribers to the guarantee fund, whether members or not, and secondly, upon members in respect of their liability under the clause of the memorandum of association quoted above.

The memorandum of association also provided that one of the objects for which the company was established was "to hypothecate or assign to any corporation or person who shall lend money to the association the guarantee obligations, letters, and relative documents" from members and subscribers to the guarantee fund; and by the articles of association the executive council of the association were empowered to borrow money and to assign and hypothecate the guarantee obligations, letters, and relative documents in security thereof.

The executive council having borrowed a sum of money from a bank, resolved that "in security thereof the council, as empowered under articles of association, hereby hypothecate to the said British Linen Company the letters of guarantee granted by the subscribers to the guarantee fund of said exhibition conform to printed list thereof, and hereby undertake that all necessary proceedings shall be taken at their instance to recover the sums for which the several guarantors are respectively liable under said letters, and to apply the same in reduction of said advances." In conformity with this

minute the whole letters of guarantee were delivered by the officials of the company to the bank, and a circular was sent to each of the guarantors by the bank intimating that the executive council had hypothecated the letters of guarantee to the bank in security of advances, that the letters were in the hands of the bank, and that in the event of there being a call upon the guarantee, it would fall to be paid to the bank.

The company thereafter went into voluntary liquidation, which was placed under the supervision of the Court, and the liquidator called upon the bank to deliver to him the letters of guarantee. The bank having refused, the liquidator presented a note praying the Court to ordain the bank to deliver the letters to him, and to declare that the bank had no valid security or preference over the guarantee fund or the letters of guarantee for repayment of their advances.

Held that the executive council had no power to hypothecate the guarantee fund, as it was a fund not called into existence until the company went into liquidation; that no lien was constituted over the ipsa corpora of the letters by their delivery to the bank; and accordingly that the bank had no valid security over the fund or the letters.

By the memorandum of association of the International Exhibition Association of Electrical Engineering and Inventions 1890, incorporated under the Companies Acts 1862 to 1886, section 3, it was provided"The objects for which the association is established are- . . . (E) To sell, assign, convey, or otherwise dispose of, or deal with the whole property and effects of the association.

(G) To borrow money upon bonds, bills, promissory-notes, or other obligations or securities of the association, or in such other manner as the association shall think fit, and to execute and grant cash-credit or other bonds, and make, accept, indorse, and execute promissory-notes, bills of exchange, or other negotiable instruments, and in particular, to hypothecate or assign to any corporation or person who shall lend money to the association the guarantee obligations, letters, and relative documents from corporations, firms, or persons who shall have agreed, or shall hereafter agree, to become members of the association, or shall have become or shall hereafter become subscribers to the guarantee fund of the said exhibition. . . (H) To do all other lawful matters and things as are incidental or conducive to the attainment of the above objects or any of them." Section 7-"Every member of the association undertakes to contribute to the assets of the association in the event of the same being wound up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the association contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses

of winding-up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required not exceeding one pound, or in case of his liability becoming unlimited, such other amount as may be required, in pursuance of the last preceding paragraph of this memorandum.'

By the articles of association, section 5, it is provided—“Every person, corporation, and company firm shall be deemed to be a member of the association and a subscriber to the guarantee fund thereof who has placed, or given in writing express authority to the Executive Council after mentioned, or the secretary or treasurers of the association, to place his or their name on the list of subscribers to the guarantee fund of the association for a sum of money amounting to one pound or upwards, or shall hereafter give such authority to the Executive Council or the secretary or treasurers of the association." Section 28"The management of the business and the control of the association shall be vested in the Executive Council, who shall have the whole powers and authorities conferred upon them by these articles and by statute, and in addition they may exercise all such powers of the association, and do all such acts and things as are not or shall not be by statute or these articles directed to be done only by the association in general meeting assembled, but subject to such regulations or directions (if any) as may be made or given by any meeting of the association; but no such regulations or directions shall invalidate any prior act of the Executive Council which would have been valid if such regulations and reductions had not been made or given, nor any agreements entered into in connection with the situation of the exhibition, or the site of the buildings, or the application of the surplus funds as provided in the memorandum of association; but all and every one of these agreements shall be held as confirmed and adopted by the association." Section 30-"Without prejudice to the general powers conferred by clause 28 hereof, the Executive Council shall be trusted with and may exercise and perform all or any of the following powers and duties, viz.— . . (4) To regulate and control the custody, management, expenditure, and investment of the moneys and funds of the association. . . . (6) To borrow any sum or sums of money not exceeding in cumulo the amount of the guarantee fund for the purposes of the association, and that either on cash-credit or otherwise, and to assign and hypothecate on security thereof all or any part of the property and effects of the association, and in particular the guarantee obligations, letters, and relative documents from corporations, firms, or persons who shall have agreed or shall hereafter agree to become members of the association, or shall have become or shall hereafter become subscribers to the guarantee fund of the exhibition. (7) To appoint such of their own number and such of the salaried officers of the association as they shall think fit to sign cash-credit bonds

v Brit

12

and other documents of debt and receipts, and also cheques on the bank account of the association. (8) To appoint such officers, agents, assistants, and others as may be considered necessary or desirable for the management of the association, including manager, acting secretary, and acting treasurer, and all other officers and servants, and to pay them such salaries or remuneration as they shall deem reasonable. . . . (11) Generally subject to the provisions of the memorandum of association, to do all things which from time to time may be, or appear to them to be, necessary or expedient for the purposes of the association." Section 37-“In the event of a loss or deficiency arising, the same shall be assessed upon the members who have subscribed to the guarantee fund, and upon the subscribers to the guarantee fund (if any) who shall not have become members of the association, in proportion to the amount of the respective subscriptions to the guarantee fund of such members and other subscribers to the guarantee fund; and when the guarantee fund has been exhausted, then upon the members in respect of their liability under clause 7 of the memorandum of association. The members shall be liable also to the amount of their respective subscriptions to the guarantee fund, or so much thereof as may not have been previously paid up, for any resulting loss arising from subscribers to the guarantee fund, whether members of the association or not, failing to pay their proportional shares of the first mentioned loss or deficiency in whole or in part, but so as that in no case shall the liability of any subscriber to the guarantee fund, whether a member of the association or not, exceed the amount of his subscription to the said fund, together with, in the case of any member, his liability under clause 7 of the memorandum of association. The said subscribers not members (if any) shall also be liable for such resulting loss, but only if and so far as they are liable therefor under the obligation of guarantee or letters of guarantee signed by them. In addition to the guarantee provided by the seventh paragraph of the memorandum of association, and so far as allowed by law without affecting the liability of other members, every member of the association who has directly subscribed or shall directly subscribe to the guarantee fund of the association, or authorised his name to be placed on the list of subscribers thereof, undertakes to contribute to the assets of the association in the event of the same being wound up during the time that he is a member or within one year afterwards, for payment of the debts and liabilities of the association contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses of winding up the same, and for the adjustment of the rights of the contributors amongst themselves, such amount as may be required, not exceeding in any case the amount of his direct or authorised subscription to the guarantee fund, or so much thereof as may not have been previously paid up by him.

The amount of any deficiency, in whatsoever manner such may arise, shall be ascertained and fixed by a statement under the hand of the chairman of the Executive Council for the time being."

In the end of 1889 the Executive of the exhibition applied to the British Linen Company for an overdraft, and it was ultimately agreed that the bank should give advances on condition that the Executive Council should assign and hypothecate to them the said guarantee obligations.

A meeting of the Executive Council was accordingly held on 10th January 1890, at which it was resolved as follows-"The chairman reported that arrangements had been made with the British Linen Company to allow advances to the extent of £25,000 sterling on the account or accounts kept or to be kept with said company for the purposes of said exhibition, and operated on by cheques or orders signed by two members of the finance committee and the treasurer, which arrangement is hereby approved of, and the Council hereby undertake to repay said advances with interest thereon, and in security thereof the Council, as empowered under articles of association, hereby hypothecate to the said British Linen Company the letters of guarantee granted by the subscribers to the guarantee fund of said exhibition conform to printed list thereof, and undertake that all necessary proceedings shall be taken at their instance to recover the sums for which the several guarantors are respectively liable under said letters, and to apply the same in reduction of said advances. The Council further undertake, in security of said advance, to assign to the said British Linen Company, when called upon to do so, the whole pecuniary rights and benefits to which they are entitled under the contracts about to be entered into with Alexander Mackenzie Ross, restaurateur, and Messrs T. & A. Constable, printers, and to pay all sums to be received thereunder in reduction of the said advance. It is understood that nothing in this minute shall be held as inferring a personal obligation or liability on any member of the Council for the said advance. The Council further authorises the secretary to hand a certified excerpt from this minute to the said British Linen Company, and to deliver to said company said letters of guarantee."

In conformity with the said minute the whole letters of guarantee were delivered by the officials of the Executive Council to the British Linen Company, and the circular, of which the following is a copy, was sent to each of the guarantors :"9 Hill Street,

"Edinburgh, 24th October 1890. "SIR,-On behalf of the British Linen Company Bank, we beg to intimate to you that the Executive Council of the International Exhibition Association of Electrical Engineering and Inventions, as empowered by the articles of association, have hypothecated to the said bank in security of advances the letters of guarantee granted by the subscribers to the guarantee fund of said exhibition. From