78 Superior Courts: Lord Chancellor.-V. C. Kindersley.-V. C. Stuart. RECENT DECISIONS IN THE SUPERIOR COURTS. Lord Chancellor. Schroder v. Schroder. Nov. 18, 1854. WILL AND CODICIL. CONSTRUCTION. ELECTION OF HEIR AS ΤΟ AFTER-AC- A testator, by will, dated in 1825, devised all A testatrix gave to T. J. R. the sum of 100%. Bank Stock," when he attained the age of 21 years, and "in case of his death," to her grandson: Held, that gift over took place on the death only of T. J. R. under the age of 21. The testatrix, at her death, had no Bank Stock, but two sums of 2001. Consols.: Held, that the gift was not a specific legacy, and must be made good out of the general assets. THE testatrix, by her will, gave to Thomas James Rose "the sum of 100%. Bank Stock," when he attained the age of 21 years, and "in case of his death," to her grandson, James Rose. It appeared at the death of the testatrix that she had two sums of 2001. Consols., but no Bank Stock, and this special case was now presented for the opinion of the Court. Fooks for the residuary legatees, the plaintiffs. The Vice-Chancellor (without calling on H. Stevens for the defendants) said, that the words "in case of his death" referred to the period previously mentioned, and that therefore the gift over took place on the death only of T. J. Rose under 21. As to the "Bank Stock," it did not seem the testatrix specifically gave that stock, but merely stock, and it must be made good out of the general assets. Vice-Chancellor Stuart. Raby v. Ridehalgh. Nov. 18, 1854. THIS was an appeal from the decision of Vice Chancellor Wood (reported 1 Kay, 578). It appeared that the testator, by his will, dated July 8, 1825, devised all his real estates whatsoever and wheresoever, of or to which he then was, or at the time of his decease should be, seised or entitled, for an estate of freehold and inheritance, or of freehold only, or of or to which any person or persons in trust for him then was or were, or at the time of decease should be, seised or entitled for an estate of freehold and inheritance or of freehold only, or which he then had or should thereafter have power to dispose of or appoint by will, to trustees to the use of his wife for life, if she should so long remain his widow, or otherwise until her second marriage, then as to one moiety to her separate use for life, and after her death to the use of all his children living at the time of his decease as tenants in common. The testator afterwards purchased a freehold estate at Clapham, and which was conveyed to him in Oc tober, 1827, and in the following November he contracted for the purchase of other freehold premises at Stockwell Common, but before they were conveyed he added a codicil to his will, whereby, after reciting the purchase of the estate at Clapham and the contract for the purchase of the freehold at Stockwell, he directed his trustees to complete the purchase out of his personal estate, and to hold the same upon the trusts of the will. The estate at Stockwell was, in the December ensuing, conveyed to the testator to uses to bar dower, and on September 29, 1832, he died, leaving four sons, the youngest of whom attained his ma- THIS bill was filed on behalf of infant cestui jority in September, 1851. The testator's que trustent by their next friend, against their widow married in February, 1835. The Vice- father, the tenant for life, and the trustees, to Chancellor having put the heir to his election, on compel the reimbursement to the trust of certhe ground of the devise of the Stockwell pro- tain moneys which had been lost in conseperty by the codicil being revoked by the subse-qence of being invested on improper and inquent conveyance, this appeal was presented. Rolt and A. Smith in support; Malins and W. H. Terrell, contrà. The Lord Chancellor dismissed the appeal with costs. BREACH OF TRUST BY TRUSTEES AT IN- Where an improper and insufficient_invest- sufficient securities at the instance of the father for the purpose of increasing his income. Walker, Wigram, Bacon, Malins, Elmsley, Prior, Selwyn, H. Humphreys, and Dryden for the several parties. Superior Courts: V. C. Stuart.-Queen's Bench.-Common Pleas. 79 The Vice-Chancellor said, that the money to pay all the tithe commutation rent-charge, had been invested against the wish of the but that by the custom of the county the outtrustees on being urged by the father, and they going tenant was liable to pay the amount bewere entitled to be indemnified by him upon coming due immediately after the tenancy was the trust fund being lost. There would there- determined. fore be a decree for the trust estate to be recouped out of the income of the tenant for life. No costs to the trustees, and the plaintiffs' costs to come out of the fund. Court of Queen's Bench. Regina v. Stokes. Nov. 3, 1854. ADMISSION TO BAIL OF PRISONER CHARG ED WITH MANSLAUGHTER.-ACCIDENT. A rule nisi for a certiorari to bring up the depositions against a poacher charged with manslaughter in order to his admission to bail, was refused, where it appeared he had gone out with a general idea of violence, although he alleged that the deceased met his death by the accidental going off of his gun. THIS was a motion for a rule nisi for a certiorari to bring up the depositions against a prisoner who had been committed to prison on a charge of manslaughter, in order to his admission to bail. It appeared that the prisoner was out poaching with a gun, and bad warned the deceased, who was endeavouring to take the gun from him, that it was loaded, and in his affidavit he alleged in support of this. motion that it had gone off accidentally. Gray in support. The Court said, that as it appeared from a previous conversation between the prisoner and another person that he had gone out with a general idea of violence, the rule must be refused. Griffinhoof v. Danbuz. Nov. 15, 1854. RENT-CHARGE. LIABILITY OF OUTGOING LESSEE ΤΟ PAY FOR CURRENT HALFYEAR. A lessee, whose lease was determined by notice on September 29, left his wheat to be threshed pursuant to a covenant in the lease, and it was seized under a distress for tithe commutation rent-charge becoming due on October 1. It appeared he had not paid rent-charge in respect of the first half-year of his tenancy: Held, that he could not recover under the 6 & 7 Wm. 4, c. 71, damages for such seizure from his lessor. THIS was a rule nisi by leave reserved to enter the verdict for the defendant, who was an outgoing tenant for years, to recover damages from his lessor for allowing his wheat, which had been left on the ground to be threshed, in accordance with a covenant in the lease, to be seized under a distress for tithe commutation rent-charge. The defendant had by notice determined the lease on September 29, 1852, and the rent-charge for the half-year became due on October 1 following. It appeared that by the lease the tenant was bound Edwin James and Hoskins showed cause aginst the rule, which was supported by Bovill. The Court said, that there was no doubt the plaintiff should have paid the rent-charge, and this was shown by his not having paid that for the first half-year of his tenancy. It did not appear on reference to this Act (6 & 7 Wm. 4, c. 71), that the allegation of the defendant's liability was made out, and as this was an action for the neglect of a personal duty, and it was not shown to be imposed on the defendant, he was entitled to a verdict, and the rule would therefore be made absolute. Court of Common Pleas. Bloor v. Houston. Nov. 20, 1854. COUNTY COURTS.-ACTION BY HIGH BAILIFF TO RECOVER COSTS FROM INTERPLEADER CLAIMANT. The high bailiff of a County Court executed a writ of execution, but in consequence of a claim by another person he obtained an interpleader summons under the 9 & 10 Vict. c. 95, s. 118, and paid the proceeds into Court, deducting only his ordinary costs. The interpleader claimant obtained judgment and took the money out of Court: Held, on special case, that the high bailiff could not sue, as for money had and received, the interpleader claimant for the costs of the interpleader proceedings and of the original levy, which, under the 148th rule of practice in the County Courts, he was entitled to deduct. In this special case for the opinion of the Court, it appeared that the plaintiff, who was high bailiff of the Newcastle-under-Lyne County Court, had executed a writ of execution from the Liverpool County Court, but that on another person claiming the goods he had obtained an interpleader summons under the 9 & 10 Vict. c. 95, s. 118, but which was decided in favour of the present defendant. He thereupon paid the whole amount into Court deducting only his ordinary costs, and not the costs of the original levy and of the interpleader order, pursuant to the 148th rule of practice in the County Courts, and the defendant took the amount out of Court. This action was now brought to recover the amount of such costs, as for money had and received. Mills for the plaintiff; Mellish for the defendant. The Court said that the action was brought for costs which the plaintiff had incurred, and not for fees due, which the interpleader claimant was liable to pay, and which he might have deducted from the sum paid into Court. As, however, he had not so done, his right of action for money had and received was gone, and the defendant was entitled to judgment. 80 Court of Exchequer. Superior Courts: Exchequer. leave to exhibit on behalf of the defendant London and North Western Railway Company interrogatories to the plaintiff before pleading v. Sharp. Nov. 7, 1854. ACTION AGAINST ATTORNEY FOR NEGLECT ING TO KEEP AND DELIVER UP CLIENTS' Held, refusing a rule nisi on leave reserved to action. Watson in support. The Court held, that an attorney was bound to keep his client's papers in proper order, and to deliver them up when called on in a reasonable order and condition, and the question whether they had been given up in a reasonable order was for the jury. The plaintiffs were therefore entitled to a verdict, and the rule would be refused. to the declaration, on the ground that he was colluding to enforce payment of the bill with his son, who had signed a deed of composition together with six-sevenths of the defendant's creditors. Aspland showed cause in the first instance, on the ground that the application was pre mature. The Court, without deciding the question as to the construction of the Act, said, that the rule would be refused, as the affidavits did not disclose a case of sufficient urgency to call for the interference of the Court. Although it might be convenient for a defendant to obtain all the facts before he pleaded, it was better that the interrogatories should not be filed before the plea, when the Court could tell what the issues were and determine as to the points on which the party should be examined. The rule would be refused. Hamilton v. Bell and others. Nov. 18, 1854. GOODS IN POSSESSION AND REPUTED OWNERSHIP OF. RIGHT OF BANKRUPT. ASSIGNEES. The plaintiff had at various times purchased and paid for clocks of a clockmaker, and had not removed them as they were to be cleaned, but the shop-tickets were taken off them: Held, that on a bankruptcy such clocks did not pass to the assignees as being in the possession and reputed ownership of the bankrupt. THIS was a motion, pursuant to leave reserved, for a rule nisi to set aside the verdict for the plaintiff, and enter a nonsuit in this action, which was brought against the assig nees of a bankrupt to recover possession of certain clocks which had been purchased by Martin v. Heming. Nov. 16, 1854. the plaintiff at various periods before the peCOMMON LAW PROCEDURE ACT, 1854.-tition of adjudication, but had not been reMOTION UNDER S. 51 TO EXHIBIT IN TERROGATORIES BEFORE PLEA. Quære, whether the Court has power under the 17 & 18 Vict. c. 125, s. 51, to give the defendant leave to exhibit interrogatories to the plaintiff before pleading to the declaration; but a motion for such order was refused where the affidavits did not disclose a case of sufficient urgency to call for the interference of the Court. THIS was an action to recover the amount of a bill of exchange drawn by the plaintiff's son and accepted by the defendant. Quain now appeared in support of a motion under the 17 & 18 Vict. c. 125, s, 51, for moved from the premises as they were to be cleaned, but the shop tickets had been taken off. On the trial, before Martin, B., the plaintiff obtained a verdict, subject to this motion. Which enacts, that "in all causes in any of and examined as a witness upon such matter), the Superior Courts, by order of the Court or interrogatories in writing upon any matter as a Judge, the plaintiff may with the declaration, to which discovery may be sought, and require and the defendant may with the plea, or either such party, or in the case of a body corporate of them by leave of the Court or a Judge, may at any other time deliver to the opposite party, or his attorney (provided such party, if not a body corporate, would be liable to be called any of the officers of any such body corporate, within 10 days to answer the questions in writ ing by affidavit to be sworn and filed in the ordinary way." The Legal Observer, AND SOLICITORS' JOURNAL. -"Still attorneyed at your service."-Shakespeare. SATURDAY, DECEMBER 2, 1854. LIMITED LIABILITY PARTNER SHIPS. Under the proposed amendment of the law, this expense would be saved. The deed of partnership would be prepared by the solicitor, registered at moderate cost, and notified to the public under the provisions of the Act. The question, after all that may be urged against it, is one merely of amount and mode of proceeding, not of principle. It In another part of the present Number will be found a brief analysis of the evidence given before, or transmitted to, the Mercantile Law Commissioners, on the subject of limited liability partnerships; and it will be observed by our readers that various classes of witnesses have given seems to be admitted that if a projected entheir opinions on this important subject. terprise required 100,000l. to conduct and Amongst them we find bankers, merchants, carry it into effect, the capital might be and bill brokers of London and many other raised in shares, and such shares held in great cities and towns; members also of se- unequal proportions by different individuals, veral chambers of commerce, solicitors of and each liable only for the amount he subextensive practice, and scientific men. scribed. Now the extent of capital will, of The witnesses who are in favour of course, depend on the nature of the underlimited liability, of course, accompany their taking. A large capital may be required in opinion with a recommendation that all the management of a business which, by such partnerships should be sufficiently ordinary skill and diligence, is liable to registered, in order that the public may be fully acquainted with the names of every partner, whether his liability be limited or unlimited. If limited, the extent of the limitation must be precisely stated, and each limited partner will, of course, be liable to the creditors of the firm or company for any part of his share of the subscribed capital which may not have been paid up. little risk, and there would be no difficulty in finding a competent number of persons to subscribe for the requisite funds. There may, however, be numerous projects which can be carried into effect for 20,000l. or less, and yet are of so uncertain a nature, or perhaps hazardous a description, that few individuals will embark in them, without the assistance of funds raised from a somewhat numerous body of subscribers or proprietors. Several of the witnesses who support the general principle, would confine its applica- It may be asked, why should these entertion to undertakings of an extensive kind, prises be abandoned, which, if successful, such as railways and mines. The general will benefit both the public and the proprinciple is indeed recognised and adopted jectors, because in the present state of the in numerous societies as well as companies, law each partner in the transaction, though the joint stock or capital of which is held in shares, some of the proprietors holding a few and others many shares. These partnerships, it will be recollected, are constituted and established at great expense by Acts of Parliament and Royal charters. VOL. XLIX. No. 1,395. deriving a small share only of the profits, is liable, in case of loss, to the whole extent of his property? He may legally lend 1,0007. and exact 201. per cent. interest, and take such security as will give him a preference over other creditors, and yet he is pro F 82 Limited Liability Partnerships. hibited from putting the 1,000l. into the missioner Holroyd support the measure, joint-stock of the company and taking a and we are not aware of any opposing Comshare of the net profit, because, if the con- missioner either of the London or Country cern fail and his partners cannot pay their districts. share of the loss, he must make up the Several eminent Counsel have also exdeficiency. pressed a favourable view of the propoThis state of things appears to be really sition. Amongst these are Mr. Swanston, prejudicial to the creditors whom the op- Q. C.; Mr. Lowe, M. P.; Mr. Richards, ponents of the measure seek to protect. It the Speaker's Counsel and Professor of is supposed, that if more capital could be Political Economy in the University of obtained by altering the law, than is now Oxford; Mr. James Stewart, Secretary to forthcoming, there would be an increase of the Copyhold Commission; Mr. Vansittart "reckless trading," and that creditors Neale; and Mr. Ludlow. The Solicitors in favour of the plan are as follow: Mr. Cotterill approves of the alteration, subject, in case of failure of a firm, to the payment of the full amount of the partners' subscription without deducting previous payments. would not take the trouble to ascertain the Mr. Bellenden Ker is also in favour of limits of the several partner's liability, the limitation under certain safeguards and debts would be incurred to a ruinous which he suggests. amount. We hold, however, that the Legislature will have sufficiently discharged its duty, if it provide creditors with the means of easily ascertaining the several amounts of liability of each partner; and if merchants, manufacturers, and traders will give credit without inquiry, they must abide the consequences. If the firm of "Jones Mr. Hollams, of the firm of Marten, Brown, and Company" obtain credit from Thomas, and Hollams, suggests that the an incautious dealer, who imagines that limited capital of each partner should not under this high-sounding firm there are be less than 1,0007., and that there should several rich partners, and it turns out that not be more than 25 partners. the company consists only of Mr. Jones Brown, can he justly complain of the law for the loss he may sustain? Neither can he blame any one but himself, if he gives credit to a company which he supposes to be unlimited, when the register will show him the contrary. Besides, in these limited partnerships, it may be provided that the word "registered or "limited" shall be used in the name or style of the firm, so as to give constant notice to those who deal with it, however incautious or indolent they may be. It may be useful to refer particularly to the opinions of some of the lawyers, as well as bankers and others, who have been examined. We shall select in the first place the Masters in Chancery and Commissioners in Bankruptcy. Mr. Farrer, the late Master in Chancery, suggests that limited responsibility should be adopted only where there are more than six partners holding shares of a certain amount, and the business being subject to periodical inspection. Sir George Rose also gives in his adhesion to the proposed change in the Law of Partnership. It is proper to mention, however, that Mr. Tinney is on the oppo site side. Mr. Commissioner Fane and Mr. Com Mr. Baker, of the firm of Baker, Ruck, and Jennings, also supports the alteration. Mr. Hesp, of Huddersfield, and Mr. Smith, of Sheffield, are also in favour of limited liability. It is right to add, that Mr. Freshfield, the Bank Solicitor, would limit the partnerships in question to undertakings of long duration and requiring a large permanent outlay. The Bank Directors are not agreed: Mr. Cotton and Mr. Latham are against the proposition, and Mr. Norman and Mr. Hankey in its favour. Mr. Hubbard, the Governor, supports it in a modified form, as to loans for trading purposes, and Mr. Weguelin, the Deputy Governor, is favourably inclined. The Chambers of Commerce in various places also hold different opinions on the subject. Lord Overstone and Mr. Prescott the Banker, are against it, except as to companies formed under the authority of the Board of Trade or Parliament. The proposition is also supported by the following men of scientific eminence :-Professor Babbage, of the University of Cambridge; Mr. Leone Levi, Lecturer at King's College, London; and Professor More, of the University of Edinburgh. |