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Superior Courts : V. C. Wood.- Queen's Bench.-Common Pleas. 365 Bice-Chancellor mood.

March 1.-Crabbe v. Moxsy-Inquiries diPatterson y. Murphy. Feb. 25, 1853.

rected on bill to set aside voluntary settle

ment.
DECLARATION OF TRUST.-WHERE SIGNED
BY SETTLOR, AND RETAINED IN HER

Court of Queen's Bench.
POSSESSION.
A testatrix had signed a memorandum drawn

Regina v. Waghorn. Jan. 19; Feb. 5, 1853. by her son-in-law on lending him 4001., CONVICTION FOR OBTAINING FALSE CERwhereby he was to pay the interest on 2001. TIFICATE UNDER 1 W. 4, c. 60, JURISto her for life, and at her death it was to DICTION OF TOWN AND COUNTY JUSbe considered as sunk, and he was to invest TICES. 101. per quarter in consols, in the names of| Held (dissentiente Coleridge, J.), that the himself, his wife, and two grandchildren, jnstices for the town in which a defendant, until the whole should amount to 2001., who was applying for a licence for his which was to be paid to the two grandchil. beer-house, had committed the offence dren, on the younger attaining 21: Held, against the 1 W. 4, c. 60, and the 3 8 4 that this constituted a valid declaration of Vict. c. 61, s. 6, of procuring a forged trust in favour of such grandchildren, al certificate as to the amount at which his though it was retained by the testatrix in house was rated to the poor, had jurisdicher possession.

tion to convict, and not the county magisIr appeared, that upon the testatrix, Mrs.

trates, and a conviction by such county maSheratt, lending the plaintiff, who was her son

gistrates was accordingly quashed. in-law, a sum of 4001., a memorandum was This was a conviction by the justices of drawn up, dated in April, 1847, and signed by Kent, under the 1 W. 4, c. 60, and the 3 & 4. herself, that the plaintiff should pay the inter- Vict. c. 61, s. 6, against the defendant, who est on 2001. to her for life, and that at her was applying for a licence of his beer-house, for death it should be considered as sunk, and he having procured a forged certificate as to the should invest 101. per quarter in consols, in amount at which his house was rated to the the names of himself, his wife, and two grand- poor. A rule had been obtained to quash the children of the testatrix, until the whole should conviction on the ground that the conviction amount to 2001., and that it should be paid to should have been before the magistrates of the two grandchildren on the younger attain- Maidstone, where the defendant resided, and ing 21. The testatrix had afterwards requested within whose jurisdiction the offence was comthe plaintiff by a second memorandum to mitted, and not of the division in which the to make the quarterly payments to herself in- house was situate. stead of investing the same, and he had ac- Archbold, for the justices, showed cause cordingly paid her 601. before her death. The against the rule, which was supported by Master had reported that the plaintiff owed Horn. 1401, to the estate, this petition was presented

Cur. ad. vult. by the two grandchildren for a declaration, The Court (dissentiente Coleridge, J.) held, that the memorandum signed by the testatrix that the town, and not the county magistrates, was a valid declaration of trust in their favour. had jurisdiction to convict, and the rule was

Terrell in support, cited M Fadden v. Jen- accordingly made absolute to quash the conkyns, 1 Phill. 153; i Hare, 458.

viction. Cracknall for the plaintiff; Smith for the other parties.

Court of Common Pleas. The Vice-Chancellor said, as the memoran

Cheaveley v. Fuller. Jan. 24, 1853. dum had been drawn up by the trustee himself, he had had notice thereof, and it was signed

COUNTY COURTS EXTENSION ACT.-STAMP. by the author of the trusts, and it was not an

-EVIDENCE.-NONSUIT. bjection that it remained in her possession,

The Judge of a County Court overruled an ind it therefore constituted a good declaration

objection as to the inadmissibility of cerof trust.

tain letters forming the contract for breach Feb. 23.Baron du Perat v. Levanier-In of which the plaint was entered, without a erim injunction granted.

stamp. The Court being of opinion a - 23. — Johnson v. Shrewsbury and Bir- | stamp was required, an appeal under the singham Railway Company—Exparte injunc

13 8. 14 Vict. c. 61, s. 14, directed a non

suit to be entered. - 24.- Perfect v. Shepard—Injunction re- This was an appeal from the Chelmsford used, on undertaking to keep account. County Court. It appeared that on the trial

- 25.-Johnson y. Marshall - Securities of the plaint, which was brought to recover for pr wife's separate property, in which her a breach of contract, an objection had been usband had parted with his interest, to be overruled that certain letters which formed the rought into Court, on claim of equity to a contract were inadmissible without a stamp, ettlement.

and the plaintiff accordingly obtained a ver- 26.-Best v, Drake-Injunction refused. dict. - 26.-Dale v. Hamilton-Judgment on Honyman, in support, referred to the 13 & urther directions as to sale of land.

14 Vict. c. 61, s. 14, which enacts that “ the

ion.

366

Superior Courts : Common Pleas.- Analytical Digest of Cases. said Court of Appeal may either order a new may think proper, and such orders shall be trial on such terms as it thinks fit, or may order final.” judgment to be entered for either party, as the The Court said, that as the letters were incase may be, and may make such order with admissible without a stamp, a nonsuit must be respect to the costs of such appeal as the Court | entered.

ANALYTICAL DIGEST OF CASES,

REPORTED IN ALL THE COURTS.

RAILWAY CASES.

direction was erroneous ; for, that the subscrip

tion contract, which must be read by itself, ALLOTTEE.

and without reference to the previous parol 1. Scheme proving abortide.-E.cecution of contract arising upon the letters of application subscription contract. -An allottee of shares in and allotment, -authorised the directors to a railway company, provisionally registered,- raise a capital not exceeding 700,000l., but did the prospectus of which stated that its capital not require them absolutely to raise that sum was to consist of 700,0001., in 35,000 shares, before they could take any steps to carry the of 201. each,-paid a deposit of 21. 2s. per undertaking into effect; and that, by executing share, and signed the subscription contract, the deed, the plaintiff authorised the directors which stated that a capita] not exceeding to do all that was consistent with its provisions, 700,0001, should be raised, and gave the pro- and, amongst other things, to apply the devisional directors authority to carry on the un-posits in furtherance of the scheme. Watts v. dertaking, and to apply to parliament for the Salter, 10 C. B. 477. necessary powers, and out of the moneys which 2. Recovery of deposit. — Abandonment of should come to their hands by way of deposit scheme. Preliminary expenses. Evidence. or payment of calls or otherwise, to pay all Resolution of committee of management.--ACcosts, &c., and generally to apply such moneys quiescence on abandonment of scheme.-In July, towards the fulfilment of any engagements 1845, a railway company was provisionally rewhich they might enter into, and in or towards gistered, and a prospectus issued, headedthe soliciting, &c., a bill or bills in parliament, “ Capital, 2,500,0001., in 100,000 shares, of 251. and in obtaining the necessary acts for further each.” On the 6th October, 1845, the plaining the scheme.

tiff applied for 200 shares by letter, in which The total number of shares taken up by the he said, “ I agree to accept the same or any allottees, and upon which the required deposit portion thereof, subject to the provisions had been paid, was 18,969 only, representing a of the subscribers' agreement, and I further capital of 379,3801. This number not being agree to execute the same and any other agreesufficient to comply with the standing orders ment or deeds, and to pay the deposit when reof parliament, the provisional directors, in quired.” On the 11th of October, a letter of order to make up the requisite amount, pro allotment of 100 shares was sent to the plaincured a number of persons (of whom the de- tiff, containing notice to pay the deposit on or fendant was one) to execute the subscription before the 20th October, and adding-“I beg contract, purporting, contrary to the fact, to also to inform you, that scrip for the shares become subscribers for shares to the number will be delivered to you in exchange for this of 5,230, representing a capital of 104,6001., letter and receipt, upon your executing the and to have paid the deposit thereon. Of this / parliamentary contract and subscribers' agreefact the plaintiff was ignorant.

ment, which lies here for signature until furThe directors, after incurring considerable ther notice, and afterwards at such other places expense, failed to comply with the standing as will be hereafter notified.” The plaintiff, orders of parliament, and consequently no bill who resided at Exeter, paid the deposit on the was brought in, and the scheme was ultimately | 20th October, and on the 3rd December the abandoned.

subscribers agreement was sent to Exeter, and At the trial, the Lord Chief Justice told the the plaintiff had an opportunity of executing it, jury, that the plaintiff having subscribed for but did not. It did not appear, however, that shares, and executed a subscription contract, he was called upon to execute it, nor that any in an association which was represented to have notice was given to him that the deed was at a capital of 700,000l. in 35,000 shares, upon Exeter. The subscribers' agreement, which which a deposit of 21. 2s. each was to be paid, bore date the 15th of October, authorised the and 18,969 shares only having been bona fide directors to take such measures and incur such taken up,--the project to which the plaintiff preliminary expenses as they might think ad.. subscribed must be considered as determined, I visable, to increase or diminish the capital or and consequently that the committee were not the company, to extend the railway, or, if they authorised to go to parliament at the plaintiff's should think fit, to abandon the undertaking: expense; and that, under the circumstances, It also specially authorised them to apply the the execution of the subscription contract by deposits in payment of the expenses, and the the plaintiff had no material effect upon the deposits were so applied, but the undertaking plaintiff's right to recover:

was abandoned in consequence of the allottees Held, upon a bill of exceptions, that this not furnishing sufficient funds to carry it on,

Analytical Digest of Cases : Railway Cases.

367 and without any fraud or misconduct on the ment. Mackenzie v. Sligo and Shannon Railpart of the managing committee. On the way Company, 9 C. B. 250. winding up of the concern, a committee of inquiry had been appointed, and the defendant, ! BANKRUPT SHAREHOLDER. one of the managing committee, handed to Acceptance of shares by assignees.--Claim them a minute book, containing an entry made for calls not barred by certificate.—The deby the secretary of the company in the course fendant, a railway shareholder, became bankof his duty, of a certain resolution proposed by rupt on the 8th February, 1848. On the 18th the defendant at a meeting of the committee of of the same month a call was made, and three management. In an action by the plaintiff to other calls were subsequently made. On the recover back his deposit as upon a failure of 24th of April, 1848, the defendant obtained his consideration, the learned Judge ruled, that certificate. The scrip was handed over to the this evidence was evidence against the defend- assignees, and some correspondence took place ant, and he told the jury that, if they thought between the trade assignees and the official as. the project had been abandoned as abortive at signee, in the course of which the former sent the time the action was commenced, they the latter a statement of the bankrupt's proshould find for the plaintiff. On a bill of ex-perty, comprising in it the probable value of ceptions to this ruling,--Held,

| the shares in question, and containing an estiIst, that the learned Judge was right in ad- mate of the amount forthcoming to work the mitting the resolution in evidence.

fiat and pay dividends. The trade assignee 2ndly, that the direction of the learned subsequently wrote to the official assignee, Jadge was correct, since the plaintiff's claim suggesting the propriety of selling the shares. was founded on the failure of the project, and The shares, however, continued in the posseshis want of consent or acquiescence in the ap- sion of the assignees : Held, plication of the money, and there was no evi- ist, that there was no evidence of an acceptdence of consent or acquiescence besides ance of the shares by the assignees. the letters and the subscribers' agreement; 2ndly, that the property in the shares conand, the latter document not being in existence tinued in the bankrupt, the claim not being at the time of the plaintiff's application for barred by his certificate, inasmuch as it was shares, he was, by his letter of the 6th October, not provable as a debt due in futuro under the subjected only to the terms of such an agree- 31st section of the 6 Geo. 4, c. 16, or as a debt ment as the directors might properly call on due on a contingency, within the meaning of him to execute, and that the agreement in the 56th section of that Act. South Staffordquestion was not of that description, inasmuch shire Railway Company v. Burnside, 5 Exch. R. as it purported to give the directors larger 129. powers than the 7 & 8 Vict. c. 110, s. 23, authorised them to assume; and also purported

Cases cited in the judgment; Exparte Barker, 6

Ves., jun. 114 ; Ex parte Marshall, 1 Mont. & to enable them to expend the deposits in the

A. 124, 128, 156 ; In re Willis, 4 Exch. R. exercise of such excessive powers. Ashpitel v.

530. Sercombe, 5 Exch. R. 147.

CALLS. ATTACHMENT. For non-payment of instalment under award, 1. When made in point of time.--Transfer where doubt exists.-An action against a rail. of share. — Under the Companies' Clauses way company was referred to arbitration. The Act, 8 & 9 Vict. c. 16, s. 22, a call of money arbitrator made his award on the 28th of on shares is made, in point of time, when the April, 1849, directing the company to pay to resolution to call is passed, not when notice of the plaintiff a certain eum, by four instalments, the call is given to the shareholder. on the 12th of June and 26th November, 1849, Therefore, by section 16, a shareholder canand on the 26th of February and 26th of May, not legally transfer his share after the passing 1850. On the 4th of May, 1849, the Vice of such resolution, without paying the call, Chancellor made an absolute order for the dis though he has executed a deed of transfer be. solution and winding up of the company, under fore notice of the call was served upon him. the 11 & 12 Vict. c. 45, and an official manager Regina v. Londonderry and Coleraine Railway was duly appointed. On the 1st of August, Company, 13 Q. B. 998. 1849, the 12 & 13 Vict. c. 108, passed, declar.. | 2. Payment by vendor before registration.ing that the former Act should not apply to S. sold railway shares, of which B., after imrailway companies. Under these circum- mediate sales and without any privity with B., stances, the Court resused to make an order became purchaser; and S. transferred them to upon the company (upon a service and de- B. by deed. S., at the time of the sale by him, mand upon the secretary and one of the di- was registered owner, and so remained, B. not rectors), to pay the instalments which had be- having registered. After the purchase by B., come payable on the 12th of June and 26th of a call was made upon S., which S. was obliged November, 1849, considering the matter to be to pay, under Stat. 8 & 9 Vict. c. 16, s. 15. too doubtful to be disposed of on a summary Held, that for such payment S. could not application.

maintain an action against B, as for money Quære, whether an attachment, or an order, paid to his use. Sayles v. Blane, 14 Q. B. can be obtained on non-payment of an instal. 205.

368

Analytical Digest of Cases : Railway Cases. 3. Registered shareholder. - Legality of fancy, at the time of the transfer to him of the agreement.--Debt for calls on railway shares : shares. Plea, that defendant was not shareholder: Is- Quære, whether the word “contract " being sue thereon. A special verdict found that, by so construed, the plea was an answer to the agreement of 21st July, 1847, between the di- action. Birkenhead, Lancashire, and Cheshire rectors of the railway company and defendant, Junction Railway Company v. Pilcher, 5 Exch. he agreed to take all the unappropriated shares R. 24. in the company, being 4,935, and to pay 46. 5. A declaration for calls, stated that the per share on the 15th August then next, and, meanwhile, to deposit securities to the amount ||

| defendant, at the time of the making of the of 20,0001.; and the company agreed that,

calls thereinafter mentioned, was and still is “ 80 soon as 151. per share shall have been paid

the holder of divers shares, to wit, &c., in the on the 4,935 shares, and that the company is

company called, &c., and before the commencein a position legally to do so, they shall de

ment of the suit was and still is indebted to the liver” to defendant mortgage debentures of

company in a large sum, to wit, &c., in respect

of two calls upon the said shares, theretofore the company payable three years after date, and bearing five per cent. interest, for 24,6751.,

duly made by the said company, each of the said being at the rate of 5l. per sbare. At a meet

calls being, &c.; whereby and by reason of ing of the shareholders, on the 10th August,

the said sum of, &c., being wholly unpaid to the 1847, convened for the purpose, the agreement

said company, an action hath accrued to the was confirmed by the shareholders, and the

said company by virtue of the special Acts of shares were registered to defendant with his

Parliament, viz., the Companies' Acts, (incorconsent. The call, on which the action was

porating the Companies' Clauses' Consolidation brought, was made in December, 1847.

Act, 8 & 9 Vict. c. 16): Held, on special de Held, that the production of the register

murrer, that the declaration was good, and that made a prima facie case that defendant was

se it sufficiently complied with the form given by a shareholder, which case was not rebutted by

| the 8 & 9 Vict. c. 16, s. 26. East Lancashire anything in the other evidence; that, even if

Railway Company v. Croxton, 5 Exch. R. the stipulation to deliver mortgage debentures

287. in consideration of the shares taken were il. Case cited in the judgment: Midland Great legal, this would be no defence, as the action

Western Railway Company of Ireland v. was not on the agreement, and the agreement

Evans, 4 Exch, R. 649. had been, in part, executed by the transfer of the shares, which transfer took effect in pre-l...

6. Payable by instalments. — A call made senti. But

payable by instalments, under the 8 Vict, c. 16, That the stipulation to deliver such deben- as good; but

is good; but an action of debt will not lie for tures, as soon as the company should be in a

the recovery of an instalment, before the stime position legally to do so, was not illegal. West".

for the payment of all the instalments has arCornwall Railway Company y. Mowait. 150. B. rived. Ambergate, Nottingham, and Boston, 521.

and Eastern Junction Railway Company v.

Coulthard, 5 Exch. R. 459. 4. Infancy at time of purchase of shares. And see Companies' Clauses' Consolidation, Contract," meaning of.-To a declaration for 2. railway calls, the defendant pleaded, that, at

COMMITTEE. the time when he first became the holder of the shares, and at the time of his making the con

dctions against several persons on a joint tracts, by force of which the debts, causes of

| liability.- Staying proceedings after payment action, and liabilities in the declaration men

by one.-Costs.-B. brought separate actions tioned, accrued to the plaintiff, and were in-again

against M. and H., two members of the comcurred by the defendant, and at the time of his mittee of mangement of a railway company, for making and entering into the contracts, by

a debt from the company for which M. and H. force of which, the plaintiffs claim to be en

were jointly liable, though different evidence titled by law to make the call upon the defend

was requisite to prove the liability of each. B. ant, as in the declaration alleged, the defendant

obtained a verdict against H.; M, had a verwas an infant within the age of 21 years.

dict in his favour, but a rule for a new trial Replication, that the defendant, at the time

was in this case granted, after which M. paid when he first became the holder of the shares,

the whole debt and the costs of the action and at the time of his making the contracts in

against himself, which payment included a the plea mentioned, was of the full age of 21

farther sum than that to which H. was liable. years. It appeared at the trial, that the de

| Held, that a Judge's order, staying proceedfendant was the purchaser of the shares inge

inlings in the action of B. against H., before question whilst he was an infant, and that judgment had been signed, without payment after he was of full age, a call was made : Held,

Held of costs, was properly made. Bailey v. Haines, that the term “contract,” meant the contract

15 Q. B. 533; Baxter v. Bracebridge, ib. by which the defendant became a shareholder, Cases cited in the judgment: Newton v. Blunt, and not the obligation to pay the calls, under SC. B. 675; Turner v. Davies, note (1), 2 she 8 & 9 Vict, c. 16, s. 21; and, consequently,

Wms. Saund. 148, a., 6th ed. the plea was proved by evidence of his in

[To be continued.]

O

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, MARCH 12, 1853..

Bill.

REGISTRATION OF ASSURANCES in which the whole matter was discussed BILL.

and in some sense exhausted. Lord Campbell does not endeavour to meet any

of the arguments stated in Sir Edward DEBATE ON THE SECOND READING.

Sugden's pamphlet, but it pleases him to Lord CAMPBELL imported into the think its publication a topic for not over debate upon the second reading of the refined ridicule. The pamphlet contains Lord Chancellor's Bill for the Registration no “ clap-traps," and does not find favour of Assurances, a tone and spirit somewhat in the sight of the Chief Justice. foreign to the atmosphere of the House of Lord St Leonards, having adverted to the Lords, and altogether unsuited to the gra- fact, certainly most remarkable, if not convity and importance of the subject under clusive, that the solicitors of Great Britain, discussion. In this respect, the learned although assured that the operation of the Lord Chief Justice's speech contrasts measure would increase the amount of their strikingly with the speeches of the pecuniary remuneration in every future Lord Chancellor and Lord Brougham, both transaction connected with land, were neof whom spoke forcibly in favour of the vertheless unanimous in disapproving of it,

was met by Lord Campbell with the candid The only opposition to the second read- suggestion, that the solicitors, though "a ing came from Lord St. Leonards, who ad- most respectable body of men,” were infludressed the House of Lords, for the first enced on this occasion by an esprit de corps time, upon a subject on which he was emi- and by considerations of professional advannently qualified to form a judgment, and to tage at variance with their generally pawhich he had given as much attention and triotic views; and then some forgotten consideration, possibly, as any man now work of the author of Sylva is referred to, living. Lord St. Leonard's speech was a apropos des bottes, because he speaks of calm appeal to the understandings of those " the lawyers and attorneys who sat in he addressed, which we have good reason Parliament, as locusts who sought for to believe has been very imperfectly re- means by which suits and frauds might be ported in the daily newspapers. It con- brought about.” The singular good taste lained no personal allusion. No sinister exhibited in this instance by the Lord notive was imputed to those who held Chief Justice was crowned by what he, fapinions adverse to the speaker, but argu- cetiously termed, “an historical fact,” in nent after argument was unfolded with the which the late lamented Sir Robert Peel is arnestness, sincerity, and confidence of a represented in a new character--insulting nind familiar with the question and enter- and disparaging the House of Peers. We aining no doubt as to the accuracy of its copy from the newspaper report the anecwn conclusions. The answer of the Chief dote so complimentary to the Ilereditary ustice was a lengthened sneer, mingled Branch of the Legislature :-“I once,'' ith ironical professions of deference and said Lord Campbell, “had the honour of ispect. Sir Edward Sugden, when he sitting on a committee on copyhold tenure ad no seat in Parliament, devoted a por- with the late Sir Robert Peel, where that on of his leisure to the publication of a distinguished man had shown himself a imphlet upon the question of registration, zealous reformer, as he was in every branch VoL xlv. No. 1,305.

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