The Law Reports, Chancery Appeal Cases

1, 445, 448
1, 4, 5.

See INFANT TRANSFEREE.
Ward of Court-Marriage after twenty-one
See WARD OF COURT.

31 INTEREST ON DEBTS IN WINDING-UP—contd.
tors, not having been communicated to the depo-
sitors, was inoperative; and that the liquidators
had no power to make the bank liable for an in-
creased rate of interest -Interest was also claimed:
upon bank notes and drafts current at the time of
the stoppage:-Held, that the claim made to the
liquidator was a sufficient presentation and demand
and interest at 5 per cent. was allowed from the
for payment, according to the law of merchants,
date of the claim.-The 26th rule of the General
Order of November, 1862, is ultrà vires.—Order of
Malins, V.C., varied. In re EAST OF ENGLAND
BANKING COMPANY

[345

INFANT TRANSFEREE-Company-Confirma-
tion, when presumed.] L. transferred fifty shares
in a company into the name of H., an infant, not
known by him to be such, who was also the trans-
feree of a large number of other shares in the
same company. H. was registered as the holder.
H. attained twenty-one more than five months
before the winding-up order, and in the interval

Proof-Debts carrying Interest.] In
the case of an insolvent company which is being
wound up, creditors whose debts carry interest
are entitled to dividends only upon what was due
for principal and interest at the winding-up, and
it is only in the event of there being a surplus
that they can have any claim for subsequent
interest, in which case the dividends will be
treated as applicable, first, in payment of interest,
and then in reduction of principal. In re HUMBER
IRONWORKS AND SHIPBUILDING COMPANY. WAR-
RANT FINANCE COMPANY'S CASE
643
INTERPLEADER-Affidavit of no collusion 347
See AFFIDAVIT OF NO COLLUSION.

transferred some of the other shares.
He was
settled on the list of contributories for the re-
maining shares, and did not at first raise the
defence of his having been an infant, but four
months afterwards took out a summons to have
his name taken off the list on that ground. The
official liquidator then applied to have the name
of L. placed on the list instead of that of H., in
respect of the fifty shares:-Held (affirming the
decision of the Master of the Rolls), that H. must
be held to have affirmed the transaction after he
came of age, and that the application must be re-
fused. A transfer to an infant is not void but only INTERROGATORIES-Distinction between inter-
voidable.-Mann's Case (Law Rep. 3 Ch. 459, n.)
explained. In re BLAKELY ORDNANCE COMPANY.
LUMSDEN'S CASE
31
INJUNCTION-Breaking up streets to lay gas-
pipes -
71
See BREAKING UP STREETS TO LAY GAS-

PIPES.

Noise-Crowds
See NOISE.

388

Nuisance by public body-Reference to ex-
pert
146

See NUISANCE BY PUBLIC BODY.

See INTERROGATORIES BY DEFENDANT.
Patent suit
See INTERROGATORIES BY DEFENDANT.
INTERROGATORIES BY DEFENDANT - Patent
Suit-Exceptions-Practice.] In answering inter-
rogatories filed by a Defendant for the examination
of the Plaintiff, the general rule applies that he
who is bound to answer must answer fully-In-
terrogatories for the examination of a Plaintiff are
on a different footing from those for the examina-
tion of a Defendant in this respect, that a l'laintiff
is not entitled to discovery of the Defendant's
case, but a Defendant may ask any questions
tending to destroy the Plaintiff's claim.-In de-
termining whether a question is one of fact, and,
therefore, to be answered, it makes no difference
that it is asked with reference to a written docu-
ment.-A Defendant in a suit for infringement of
a patent, in order to prove that there was no
novelty in the Plaintiff's patent, interrogated the
INSTALMENTS-Mortgage to building society Plaintiff as to the inventions described in the

See INTEREST ON DEBTS IN WINDING-
UP. 1, 2.
INTEREST ON DEBTS IN WINDING-UP-Stop-
page of Bank-Promissory Notes-Demand for
Payment-26th Rule of General Order of November,
1862.] In the voluntary winding up of a joint
stock banking company, the creditors on deposit
claimed interest at 41 per cent., being an increase
on the previous rate, by virtue of a resolution
passed by the directors shortly before the stoppage
of the bank, but not communicated to the deposi-
tors, and of a subsequent letter from the liquidator
to the effect that the increased rate would be
allowed:-Held, that the resolution of the direc-

specifications of previous patents, and asked him.
to shew in what respect they differed from his.
The Plaintiff declined to answer these interro-
gatories on the ground that the questions were
not questions of fact, and that they related to the
Plaintiff's case; the Defendant excepted to the
answer, and the exceptions were allowed. — A
Plaintiff in a patent suit was required by inter-
rogatories to set out a correspondence between
himself and a third party, and also to state the
particulars of the infringement of his patent on
which he relied. He refused to answer these
questions on the ground that the Defendant might
obtain an order in Chambers to inspect the cor-
respondence; and that he had sufficiently set out
the particulars of the infringement in his bill.-
Held, that these answers were sufficient.-Ques--

JUDGMENT CREDITOR- Equitable Debt-Gar-
nishee Clauses of Common Law Procedure Act,
1854-17 & 18 Vict. c. 125, ss. 60-66.] A judg-
ment creditor cannot obtain a charge in Equity
on an equitable debt by analogy to an attachment
of a legal debt under the garnishee clauses of the
Common Law Procedure Act, 1854.-A judgment
debtor was entitled under a will to one-fourth of
the profits of a business which was managed by
trustees, subject to a condition of forfeiture if he
alienated or charged his share. A sum of money
arising from the business was standing at the
bankers in the names of the trustees. The judg-
ment creditor filed a bill to establish a charge
against the money at the bankers representing
the judgment debtor's share of past profits, by
analogy to an attachment under the garnishee
clauses of the Common Law Procedure Act:-Held
(affirming the decision of the Master of the Rolls),
that the bill could not be sustained.-Semble, if
such a bill could be sustained, the filing of the
bill would be the process analogous to the gar-
nishee order, and the charge would affect the
fund in the hands of the trustees from the date of
the bill. HORSLEY v. COX
92
JURISDICTION-Administration of creditors' deed
See TRUSTS OF CREDITORS' DEED. [356
Appeal - Patent Law Amendment Act-
Order of Master of the Rolls
784
See REGISTER OF PROPRIETORS OF PA-

TENTS.

County Court Bankruptcy Amount of
648

debts

See COUNTY COURT JURISDICTION.
Lunacy Chancery-Person of unsound
mind-
167, 782
See PERSON OF UNSOUND MIND. 1, 2.
Ward of Court-Marriage after twenty-one
See WARD OF COURT.
[345
JURY-Lunacy-Withdrawal of demand for 653

See WITHDRAWAL OF DEMAND FOR JURY.
JUST ALLOWANCES-Mortgagor and Mortgagee
-Account.] A mortgage deed provided that it
should be a security not only for the principal
sums advanced, and interest, but also for the
costs of preparing the deed, and for all costs
which might be incurred by the mortgagee in
selling the property, or in any actions or suits!
relating to it. The mortgagor filed a bill to
redeem, and a decree was made directing an ac-

JUST ALLOWANCES-continued.
count of what was due to the Defendant for prin-
cipal and interest under the mortgage deed, and
an account of sale-moneys, rents, and profits re-
ceived by the Defendant. In taking the accounts
the Defendant carried in a claim for costs incurred
in legal proceedings relating to the property,
which the Chief Clerk refused to entertain, and
the Defendant then appealed from the decree :—
Held, by Selwyn, L.J., that the decree was right,
for that all costs properly incurred in the actions
might be claimed under it as "just allowances":
-Held, by Giffard, L.J., that the costs might be
claimed under the decree as principal moneys due
under the deed.-Decree of Stuart, V.C., affirmed.
BLACKFORD v. DAVIS

304

769, n.

768

See LACHES OF CONTRIBUTORY.
Contributory-Misrepresentation in prospec-

tus

497

See MISREPRESENTATION IN PROSPECTUS.
Creditors' deed-Delay in impeaching 690
See EXECUTION, LEAVE TO ISSUE.
LACHES OF COMPANY-Contributory-Transfer
of Shares- Non-registration.] B. purchased
shares, and left them for registration. The di-
rector whose turn it was to attend and inspect
the transfers neglected his duty, and did not in-
spect B.'s transfer, which was, accordingly, not
registered. The company was shortly afterwards
wound up :-Held, that B. was not a contributory.
In re JOINT STOCK DISCOUNT COMPANY. HILL'S
CASE
769, n.
LACHES OF CONTRIBUTORY-Company-Con-
tributory-Transfer of Shares-Non-registration-
Transferee dead without Representative.] F., a
registered holder of shares in a limited company,
transferred them to S., but the transfer was not
registered, through the default of the company.
An order was made to wind up the company in
March, 1866, and in June F. appeared in person
at Chambers on a summons to place him on the
list of contributories, but no order was made on
In June, 1867, S. died, and had
no legal personal representative. In May, 1869,
F. received notice from the official liquidator that
his name was placed on the list of contribu-
tories. He then applied to have it removed:-
Held (reversing the order of the Master of the
Rolls), that there was no laches on the part of
F., and that his name must be removed from the
list of contributories:-Held, also, that the fact
that the transferee had no legal personal repre-
sentative, and that, consequently, there was no
person who could be put on the list in F.'s place,

the summons.

was not material. In re JOINT STOCK DISCOUNT
COMPANY. FIFE'S CASE
768

LEVEL CROSSING-Railways Clauses Act, 1845,
88. 16, 46, 53, 56—Public Convenience-Attorney.
General.] If a railway crosses a highway without
diverting it, a bridge must be made for the high-
way over or under the railway, according to sect.
46 of the Railways Clauses Act, 1815, but the
highway may be diverted, under sects. 16, 53,
and 56, to a place where there is a level crossing,
if the road so diverted will be more convenient
than a bridge. Decree of the Master of the Rolls
affirmed. ATTORNEY-GENERAL v. ELY, HADDEN-
HAM AND SUTTON RAILWAY COMPANY
194
LEX FORI-Indian Registration Acts

741

LIMITATIONS, STATUTE OF-Mercantile Law
Amendment Act, s. 10
735

MARSHALLING - Securities- Bankruptcy-Cre-
ditors' Deed-Pledge of Bills of Lading by Con-
signees.] A firm in Ceylon employed a firm in
England as their agents and factors, the course
of business being that the Ceylon firm consigned
cargoes to the English firm for sale on their ac-
count, and drew bills on the English firm against
the consignments. Consignments of coffee having
been made in this manner, and bills accepted by
the English firm against them, the English firm
pledged the coffee, together with certain securi-
ties of their own, with T., their broker, to secure
a large debt due from them to him. The English
firm became insolvent and executed a creditors'
deed under the Bankruptcy Act, 1861, and then
T. sold the coffee (which produced more than suf-
ficient to cover the bills drawn against it) and
enough of the other securities to satisfy his debt:
-Held, that the Ceylon firm were entitled, as
against the English firm in liquidation, to have
the remaining securities in T.'s hands marshalled,
and to have a lien thereon for the balance due
to them upon the coffee transaction. Ex parte
ALSTON. In re HOLLAND
168

2. 9 Geo. 2, c. 36-Charity-Royal So-
ciety-Direction to pay Charitable Legacies out
of Pure Personalty.] A testator, after giving
several legacies, gave a legacy of £4000 to the
Royal Society, £4000 to the Royal Geographical
Society, and three other sums of £4000 to three
other institutions, directed that all his charitable
legacies should be paid out of his pure personalty,
and bequeathed the residue of his property to the
Plaintiffs, his executors, for their own use. The
object of the Royal Society is "for improving
natural knowledge," that of the Royal Geographi-
cal Society "the improvement and diffusion of
geographical knowledge." The testator left pure
personalty very much less than the amount of
charitable legacies, a larger sum of mixed per-

See MERCANTILE LAW AMENDMENT ACT.
LLOYD'S BONDS-Penalties-Illegality 7 & 8
Vict. c. 85, 8. 19-Costs.] The holders of instru-
ments under the seal of a railway company given
with the knowledge of the shareholders, and
acknowledging sums of money to be due from the
company (called Lloyd's bonds) have, notwith-
standing 7 & 8 Vict. c. 85, s. 19, which imposes
penalties on a company for giving loan-notes or
securities, a valid claim against the assets of the
company for those sums of money so far as the
company had the benefit of the sums of money in
respect of which the instruments were given.-sonalty, and a small real estate in Madeira:-
Where a penalty is imposed by an Act of Parlia
ment upon any transaction, the transaction will
be illegal, though it is not expressly prohibited
by the Act.-When an order is varied on appeal,
the costs of the appeal will not be allowed to the
Appellant merely because his is a representative
case.-Order of Malins, V.C., affirmed with a
variation. In re CORK AND YOUGHAL RAILWAY
COMPANY

748

LUNACY-Costs of mortgagor-Lunatic mortga
629
gee

Held (affirming the decision of Stuart, V.C.), that
the Royal Society and the Royal Geographical
Society were charitable institutions within the
meaning of 9 Geo. 2, c. 36:-Held (varying the
decision of the Vice-Chancellor), that the debts,
funeral and testamentary expenses, and costs of
suit, ought not to be thrown upon the mixed per-
sonalty in exoneration of the pure personalty, but
ought to be apportioned rateably between the
two funds. That the charities should then be
paid out of the residue of the pure personalty so
far as it would extend, and claim for the residue
against the rest of the estate, such claim abating
in the proportion which the mixed personalty
bore to the proceeds of sale of the Madeira estate.
BEAUMONT v. OLIVEIRA
MEASURE OF DAMAGES-Proof in winding-up
--Contract delayed by winding-up 112
See CONTINUING DAMAGES.
MERCANTILE LAW AMENDMENT ACT (19 &
20 Vict. c. 97), 8. 10-Statute of Limitations-Re-
trospective Enactment-Practice-Hearing Creditor
on Appeal.] The 10th section of the Mercantile
Law Amendment Act (19 & 20 Vict. c. 97), is re-
trospective; and therefore, even where the cause
of action has accrued before the statute was passed,
no person is entitled to any time within which to
commence an action beyond the time fixed by the

3 S

309

MISCONDUCT OF DIRECTORS-Company-Mis-
representations Repayment of Dividends
Losses.] Though directors by misrepresenting
the state of a company cause larger dividends to
be paid than ought to have been paid, the share-
holders as a body cannot make the directors
liable to repay those dividends.-The deed of set-
tlement of a banking company provided, that
when one-fourth of the capital was lost, the direc-
tors should call a meeting, and the company should
be dissolved. Considerably more than one-fourth
of the capital was lost, and a meeting was called,
at which the shareholders resolved to continue
the bank. Further losses were made, but no
such meeting was called again:-Held, that as
the shareholders knew that the bank was going
on after more than one-fourth of the capital was
lost, the directors were not liable for continuing
the bank. The directors of a banking company
are not liable to the company for including in
their accounts as good, debts which were, in fact,
bad, unless they can be fixed with knowledge of
the fact.-Where the directors had misrepresented
the state of the company, each shareholder might
have his remedy against them at law; but the
whole body of shareholders could not maintain a
suit in equity to recover the money which they
had lost from the directors.-A bill seeking to
make the directors liable for misrepresenting the
value of the assets of a company, alleged that
they had included amongst the assets as good a
sum advanced by them to a director who had died
insolvent and without having repaid the sum;
and the bill prayed that the Defendants might
be declared liable for allowing directors and others
to overdraw their accounts:-Held, that on such
a bill, the directors could not be made liable for
the sum so advanced and lost, on the ground that
it had been improperly advanced.-Decree of the
Master of the Rolls reversed. TURQUAND v. MAR-

SHALL -

376

2. Company-Winding-up-Order to re-
pay Dividend-Companies Act, 1862, ss. 101, 165
What amounts to an Improper and Delusive
Dividend "Profits in Hand." The Court has
summary power, under the 101st and 165th sec-
tions of the Companies Act, 1862, to order a con-
tributory or director to repay a dividend declared
and paid under a delusive and fraudulent balance
sheet.-In re Royal Hotel Company of Great Yar-
mouth (Law Rep. 4 Eq. 244) disapproved of.-
But the balance sheet of a company engaged in a
hazardous trade will not be considered delusive
and fraudulent merely because an estimated value
was put upon assets of the company which were
then in jeopardy and were subsequently lost,
or because the company was obliged to borrow
money to pay the dividend, provided the facts
fairly appeared on the balance sheet and the
balance fairly represented profits.-A company

MISCONDUCT OF DIRECTORS—continued.
was formed under the Companies Act, 1862, for
running the blockade during the civil war in
America. The articles provided that dividends
should not be paid except out of profits, and that
the directors should declare a dividend as often as
the profits in hand were sufficient to pay £5 per
cent. on the capital, subject to the resolutions of
a general meeting. In 1864, a dividend was de-
clared and sanctioned at a general meeting, and
subsequently paid, upon a balance sheet in which
a debt due from the Confederate government, and
cotton in the Confederate States, and also ships
engaged in running the blockade, were estimated
at the full nominal value. All these assets were
lost, and the company was wound up:-Held, that
as the estimate was made bona fide, and the facts
appeared truly in the balance sheet, the balance
sheet was not delusive, and the dividend must
be considered to have been made out of profits,
although the company had actually to borrow the
money to pay it.-The order of Malins, V.C.,
affirmed, but on different grounds. In re MER-
CANTILE TRADING COMPANY. STRINGER'S CASE.
[475
3.

duct-Deed kept back-Capital Lost-Liabilities
Speculative Purchase-Imprudent Con-
-Damages at Law.] A company was formed for
the purpose of buying the business of a firm of
bill brokers, and by the memorandum of associa-
tion the directors were empowered to buy it upon
such terms and under such stipulations as to
guarantee or otherwise as might be agreed upon.
The prospectus referred to the memorandum of
association and to a certain deed of covenant.
By that deed the business was assigned to the
company, and all accounts, except such as the
directors should require to be reserved and ex-
cepted, were to be carried on by the company,
and the partners in the business guaranteed that
all debts due to the firm and taken over by the
company were good. By a second deed of the
same date, not mentioned or disclosed to the
shareholders, assets of the firm to the nominal
value of £4,213,896 were reserved and excepted,
and provisions were made for guaranteeing pay-
ment by the partners of the balance which, after
a certain period and under certain arrangements,
should not be got in on this account. The com-
pany carried on business for some time, and then
stopped payment.-A bill was filed by the com-
pany against the living directors and the execu-
tors of a deceased director stating these facts, and
that the company had lost £1,500,000 by taking
the liabilities of the business, and by the in-
sufficiency of the guarantee, and charged that
the directors had been guilty of a breach of duty
in buying the business without obtaining the
sanction of a general meeting, and in not taking
mortgages on the property of the partners in order
to secure the guarantee, but no fraud was charged
against the directors:-Held, on demurrer by the
executors of the deceased director, that as re-
garded any loss beyond the money placed in the
directors' hands, the remedy, if any, was at law,
by an action of negligence, which would not sur-
vive against executors; and that, as regarded
the money placed in the hands of the directors,
the bill did not shew more than imprudence;
and, having regard to the absence of mala fides,

MISCONDUCT OF DIRECTORS-continued.

and to the powers of the directors, did not make
a case of breach of trust against the deceased
director:-That the purchase, however unwise,
being within the powers given to the directors,
they were not bound to call a meeting of share-
holders:-That it was within the powers of the
directors to have a second deed, and that what-
ever remedy an individual shareholder might
have against the directors as having been misled
by the keeping back of the second deed, there
could be no relief on that account in this suit:-
That the directors had a discretion, and were not
liable for neglect in not taking mortgages on the
property of the directors.-Demurrer allowed, re-
versing order of Malins, V.C. OVEREND, GURNEY,

& Co. v. GURNEY

701

MISREPRESENTATION-Directors of company
Repayment of dividends

pany

See MISCONDUCT OF DIRECTORS.
Prospectus of company

---

376

497

See MISREPRESENTATION IN PROSPECTUS.
Vendor and purchaser-Extent of acreage
See SUB-CONTRACT.
[101
MISREPRESENTATION IN PROSPECTUS-Com-
Winding-up Contributory Laches.]
Eleven shareholders of a company repudiated
their shares, and refused to pay the calls thereon,
on the ground that they had been induced to
become shareholders by fraudulent misrepre-
sentations in the prospectus of the company.
One of the eleven, acting in conjunction with the
other ten, filed a bill to be relieved from his
shares; and it was agreed between the solicitors
of the company and the ten that they should not
be prejudiced by their not taking proceedings
pending the suit. A decree was made in favour

of the Plaintiff in the suit, and was affirmed on
appeal. Pending the appeal, and while the
names of the ten remained on the register of
shareholders, the company was ordered to be
wound up-Held, in the case of one of the ten,
that he was not liable as a contributory of the
company. The order of the Master of the Rolls

497

574

See MORTGAGE TO TRUSTEE,
MORTGAGE OF SHIP-Entry of Discharge.
Merchant Shipping Act, 17 & 18 Vict. c. 104, 8. 68.]
The owner of a ship mortgaged her to G. for
£1200, and the mortgage was on the same day
transferred to B., and the mortgage and transfer
were registered. In October, 1863, G. paid B.
£1200, and B. signed a receipt indorsed on the
mortgage that the £1200 was received “in dis-
charge of the within-written security." The usual
entry of discharge was made in the registry.
After a year B. re-transferred to G. this mort-
gage, and the registrar wrote in the margin of
the register that the receipt had been made by
mistake, a re-transfer only being intended. G.
then transferred the mortgage to the Appellants
by way of security, which transfer was registered,
paid off, but no re-transfer executed, and the
and in March, 1865, the moneys advanced were
mortgage remained in the Appellants' hands.
In May, 1865, the owner of the ship mortgaged
her to G. by a deed registered on the following
day, and this mortgage was transferred to the
Plaintiff in November, 1865; but the transfer
was not registered till July, 1866. In the mean-
time, in March, 1866, an agreement which never
was registered was entered into between G. and
the Appellants that G.'s original mortgage should
be a security for the balance due from G. to the
Master of the Rolls) that the Plaintiff's security
Appellants-Held (affirming the decision of the
had priority over that of the Appellants:-Held,
that G.'s first mortgage was discharged by the
entry of discharge, and could not be revived by
the memorandum that the receipt had been given
by mistake, and that the new bargain between
G. and the Appellants in March, 1866, not being
registered, was of no effect against the Plaintiff.
BELL v. BLYTH

affirmed. In re ESTATES INVESTMENT COMPANY.
PAWLE'S CASE
"MONEY "-Will-Construction Proceeds of
Policy.] Testator gave to his wife "any money MORTGAGE TO TRUSTEE-Sale or Foreclosure
that he might die possessed of, or which might-Leave to bid-Practice-Varying Minutes.] By
be due and owing to him at the time of his de-
a deed of trust, property was conveyed to the
cease":-Held (reversing the decision of Stuart, sons of the settlor upon certain trusts for the
V.C.), that the moneys receivable under a policy benefit of the children and grandchildren of
of assurance on his own life to which the testator the settlor. The trustees had power to sell, and
was entitled, passed under the above bequest. extensive powers of management, and provisions
PETTY v. WILLSON
were made that any trustee advancing money to the
MORTGAGE - Building society-Discount on settlor, or paying off any part of a certain mortgage
future instalments
207 debt, should be entitled to a charge by way of
See BUILDING SOCIETY.
mortgage on the estate. One of the trustees ad-
630 vanced considerable sums to the settlor, and paid
off part of the mortgage debt :-Held, on the con-
struction of the deed, that the trustee was not
entitled to have such a mortgage on the estate as
would empower him to foreclose, and was en-
titled only to a sale :-Semble, that a trustee who
is also mortgagee will not be allowed to foreclose.

304

See JUST ALLOWANCES.
Married woman's estate-Fraud-Priority
See FRAUD OF MARRIED WOMAN. 1. [35

- Payment to person not authorized by mort--Decree of Giffard, V.C., varied.-If any of the

gagee

See PAYMENT OF MORTGAGE Debt.

288 cestuis que trust object, a trustee of an estate,
though also a mortgagee, will not be allowed to

3S2

« Eelmine Jätka »

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