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216 Recent Decisions: V. C. Wood; Court of Queen's Bench; Court of Exchequer.
described as a company, and that an order had been made to that effect.
Baily and Roxburgh now applied to amend the order.
The Vice-Chancellor (after consulting Mr. Registrar Colville) said that it would be better to make an order de novo-costs of the estate.
Gough v. Davies. July 11, 1856.
CROWN.-COSTS OF UNSUCCESSFUL CLAIM TO PRO
PERTY OF PARDONED CONVICT.
The Crown was held not entitled to costs on an unsuccessful claim to the personal property of a convict, who had been pardoned by the governor of a penal colouy.
In this case (reported ante, p. 119) the Crown had claimed certain personal estate under a will, to which a convict, who had received a pardon from the Governor of New South Wales, was entitled. The claim having been disallowed, a question now arose, on further directions, as to the costs of the Crown.
Wickens for the Attorney-General; Cairns and Cox for the convict; Chandless, Willcock, Torriano, Sheffield, Shee, Southgate, and F. A. Williams for other parties.
The Vice-Chancellor said it was true that the Attorney-General had been brought here, and could not disclaim, but that when he knew the convict had been pardoned, he should have foreborne to press the argument. He, however, raised the question and failed, and must be treated like any other unsuccessful claimant, and could not have his costs of appearance.
Sudbury v. Brown. July 11, 1856. WILL-CONSTRUCTION-" JEWELLERY "-GOLD AND SILVER COINS.
Held, that gold and silver coins found by the executors in a bag locked up in the testator's strong box did not pass to the legatee under the bequest by such testator of all his household furniture, plate, linen, china, pictures, and " "jewellery."
A TESTATOR by his will bequeathed to a legatee all his household furniture, plate, linen, china, pictures, and jewellery. It appeared that after his death his executors found certain gold and silver coins in a bag locked up in his strong box, and the question was now raised whether they passed as "jewellery." Batten for the executors; W. D. Lewis for the legatee.
The Vice-Chancellor said that if the coins had been exhibited in a case or under a frame, they might have passed as "furniture," but here they could not be considered as "jewellery."
Court of Queen's Bench.
Edwards v. Wakefield. June 10, 1856. COMMON LAW PROCEDURE ACT, 1854.—INTERROGA
TORIES.-TITLE TO SUE IN TROVER.
Leave was refused to the defendant in an action of trover by the assignees of a bankrupt, to deliver interrogatories under the 17 & 18 Vict. c. 125, s. 51, for the purpose of discovering what case they intended to set up as entitling them to recover, and also whether they claimed on the ground of a delivery to the defendant by the bankrupt after an act, and what act, of bankruptcy, and when the same was committed.
This was a rule nisi for leave to the defendant in this action of trover by the assignees of the bankrupt to recover certain bills and goods, to deliver interrogatories under the 17 & 18 Vict. c. 125, s. 51,* for the purpose of discovering what case they intended to set up as entitling them to recover, and also whether they claimed to recover on the ground of a delivery to the defendant by the bankrupt after an act, and what act, of bankruptcy, and when the same was committed.
Aspland shewed cause against the rule, wnich was supported by J. Brown and Terrell, citing Flitcroft v. Fletcher, 25 Law J., N. S., Exch. 94.
The Court (after taking time to consider) said that the motion was not authorised by the section, which only applied where the parties could be called as witnesses, and was not intended to enable a defendant to ask a plaintiff how he proposed to ground his case, and by what evidence he meant to support his claim. Besides, the discovery under the section was limited to cases where a discovery would be given in equity, which clearly would not be compelled in the present case. The rule would, therefore, be discharged.
Court of Exchequer.
Hill v. Cowdry. June 17, 1856.
SALE-BREACH OF COVENANT NOT TO INCUMBER-DECLARATION OF INSOLVENCY.
Held, on demurrer to the declaration, that a covenant in a bill of sale, that the defendant would do no act whereby the furniture and other effects assigned might be charged, incumbered, or in any way prejudicially affected, is breached by his filing a declaration of insolvency, which by the 12 & 13 Vict. c. 106, s. 70, is an act of bankruptcy, inasmuch as the furniture, &c. passed to the assignees as being in his possession as reputed
THIS was a demurrer to the declaration in an action to recover damages for the breach of a covenant in a bill of sale that the defendant had not done nor would do or cause to be done any act, deed, matter, or thing whereby the furniture and other effects assigned by the bill of sale might or could be charged, incumbered, or in any way prejudicially affected. It appeared that the defendant subsequently, and while the goods were in his possession, filed a declaration of insolvency, which by the 12 & 13 Vict. c. 106, s. 70, is an act of bankruptcy.
Petersdorff for the defendant in support of the demurrer; Hayes, S. L. contrâ.
The Court said, the effect of the defendant's filing the declaration was that the goods passed to his assignees as having been in his possession as reputed owner, and that therefore the assignment was prejudicially affected. The plaintiff was accordingly entitled to judgment.
courts, by order of the Court or a judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either 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 and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or, in case of a body corporate, any of the officers of such body corporate, within ten days, to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way."
*Which enacts that "in all causes, in any of the superior
The Legal Observer,
SATURDAY, JULY 26, 1856.
PROROGATION OF PARLIAMENT.
Ir appears that before these pages can be submitted to our readers, or within a few hours thereof, the Houses of Parliament will be prorogued; and, as we shall next week have occasion to review the whole labours of the Session, we shall now advert only to the prominent measures which have been under discussion since last week.
Some Bills, in addition to those included in our previous list, have received the Royal assent. The most important of these is the Joint Stock Companies Act, of which we give an analysis in subsequent pages, with part of the act itself. Notwithstanding the clamour against this bill, we rejoice that it has passed, both for the sake of the profession and the public.
The Police Counties and Boroughs Bill has also passed the three estates of the realm; and we trust the objections to the measure have been satisfactorily removed.
To these may be added, the Advowsons Bill; the Repeal of the Obsolete Statutes Bill; the Grand Juries Bill; and the Turnpike Trusts Bill.
Several bills relating to Scotland have also been passed, namely, the Mercantile Law Bill; the Small Debts Imprisonment Bill; Procedure before Justices; and the Court of Exchequer. In regard to Ireland, another Incumbered Estates Act has also passed.
The bills which have passed the Lords and Commons, and are waiting for, or have just received, the royal assent, are as follow:
Leases and Sales of Settled Estates. We trust that this useful amendment of the law is now safe from all further difficulty. Intestates Personal Estates.
Joint Stock Banks.
Evidence in Foreign Suits.
The Married Women's Reversionary Interest Bill.
Dissenters Marriage and Registration.
We have not yet seen the final alterations made in the County Court Acts Amendment Bill. We fear that whilst, on the one hand, the county court practice has not been suffichief has been done to the jurisdiction and ciently improved; on the other, further mispractice of the superior courts, without any corresponding benefit to the suitors. If the superior court be ousted of its jurisdiction under £20, where the debtor resides at a distance from the creditor, great injustice will be done. How can a wholesale merchant or manufacturer, who gives credit to persons in all parts of the kingdom, enforce payment, if he must sue the debtor in his own district? Rather than incur the expense and inconvenience of sending his witnesses to various country towns, to the interruption of his other affairs, and the risk of losing the very inadequate costs allowed against the defendant, he will abandon his claim. The supporters of the county courts, denying all resort to the supreme courts, where, in undefended actions, the costs are less than in the local courts, have overshot the mark, and will find in another session that they must retrace their steps.
We presume that as the amount of costs to be allowed is placed in the hands of the judges of the county courts, with the Lord Chanin order to induce the practitioners, particucellor's sanction, they will frame a liberal scale bunals; but, as already stated, it is impossible larly in the country, to resort to those trito bring down the costs in undefended actions lower than the amount allowed in the common law courts, unless they refuse nearly all professional remuneration. The consolidated
Stamp Duties on Articles of Clerkship and fund, however, is to bear the weight of the
Corrupt Practices Prevention.
General Board of Health.
There are also a few other bills, the fate of which (at the time we write) appears to be uncertain. These are,
VOL. LII. No. 1,481.
judges' salaries, and, consequently, the fees may be considerably reduced.
The measures which have been actually withdrawn or negatived during the past week
The Ecclesiastical Courts Bill.
The Divorce and Matrimonial Causes Bill.
New Statutes effecting Alterations in the Law.
The Drainage Act Amendment Bill. The Trust Property Criminal Appropriation Bill. This latter measure has been postponed on account of an important difficulty suggested as applicable to suits in Chancery in which trustees are called to account, and who might shelter themselves by declining to answer questions which would tend to their criminal conviction.
Though not formally withdrawn, we presume the following bills will unavoidably stand over till another session :
Procedure and Evidence.
Medical Qualification and Registration.
The Lord Chancellor made an explanatory statement on Monday last of the progress made by the Statute Law Commissioners, to which we shall direct attention in an early number. Several bills for the consolidation of statutes on various important branches of the law have already been prepared, and will be printed for consideration before the next session. Amongst these the most important to the practitioner seems to be the complete consolidation of the stamp laws. If this can be achieved next session, a great public and professional benefit will be conferred.
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
JOINT STOCK COMPANIES. 19 & 20 Vict. c. 47. ANALYSIS OF THE ACT.
1. Short title of act.
2. Act not to apply to banking and insurance companies.
I. CONSTITUTION AND INCORPORATION OF COMPANIES AND ASSOCIATIONS.
3. Company formed by memorandum of association and registration.
4. Penalty on partnerships exceeding a certain number.
5. Matters required to be prescribed by memorandum of association.
6. Prohibition against identity of names in registered companies.
7. Form of memorandum of association.
8. Shares to be taken by subscribers of memorandum of association.
9. Special regulations may be prescribed by articles of association.
10. Form and effect of articles of association. 11. Stamp on memorandum of association and articles of association, and use of printed copies. 12. Registration of memorandum of association and articles of association.
13. Effect of registration.
14. Directors to be liable for debts if dividend be
New Statutes effecting Alterations in the Law.
appointed by the Board of Trade (New York Statutes, Part I., chap. xviii., title 2, s. 176). 49. Power of inspectors.
50. Result of examination, how dealt with. 51. Power of company to appoint inspectors. 52. Report of inspectors to be evidence.
53. Services of notices on company (8 Vict. c. 16, ss. 138, 139).
54. Rule as to notices by letter.
55. Authentication of notices of company (8 Vict. c. 16, s. 139).
56. Recovery of penalties.
57. Application of penalties.
Alteration of Forms.
58. Board of Trade may alter forms in schedule.
59. Application of Part III. of act.
60. Definition of "the Court."
61. Liability of present shareholders in respect of debts (7 & 8 Vict. 110, s. 66).
62. Liability of former shareholders in a company other than a limited company with respect to debts (7 & 8 Vict. c. 110, s. 66).
63. Liability of former shareholders in a limited company with respect to debts.
64. Commencement of winding-up of company defined.
65. Definition of "contributory," and legal character of his liability.
66. Rights of contributories between themselves (7 & 8 Vict. c. 110, s. 67; 18 & 19 Vict. c. 133, s. 8).
Winding-up by Court.
67. Circumstances under which company may be wound-up by court (11 & 12 Vict. c. 45, s. 5).
68. Company when deemed unable to pay its debts. 69. Application for winding-up to be by petition (11 & 12 Vict. c. 45, s. 5).
70. Course to be pursued by court on petition of a creditor (11 & 12 Vict. c. 45, ss. 11 and 12). 71. Order for winding-up company on creditor's petition.
72. Course to be pursued by court on petition of contributory.
73. Effect of the order for winding-up company (11 & 12 Vict. c. 45, s. 19).
74. Power of Court of Chancery to remit winding-up to Court of Bankruptcy
75. Collection and application of assets.
76. Fraudulent preference.
77. Power of court to summon persons suspected of having property of company.
78. Examination of parties by court.
79. Penalty on falsification of books (12 & 13 Vict.
c. 106, s. 252).
80. Attachments, sequestrations, and executions within three months of petition to be void. 81. Books, &c., of company to be evidence. 82. Power of court to make calls (11 & 12 Vict. c. 45, s. 83, and 12 & 13 Vict. c. 108, s. 28). 83. Payment of money into the bank (11 & 12 Vict. c. 45, s. 70).
84. Power of court to grant injunction or interdict. 85. Power of court to stay proceedings.
86. Power of court to adjust rights of contributories. 87. Power of court to order costs.
88. Appointment of official liquidators (8 Vict. c. 45, ss. 20-26).
89. Style and duties of official liquidators. 90. Powers of official liquidators (11 & 12 Vict. c. 45, s. 55; 12 & 15 Vict. c. 108, s. 30; 12 & 13 Vict. c. 108, s. 8.
91. Appointment of solicitor to official liquidators (11 & 12 Vict. c. 45, s. 33; 12 & 13 Vict. c. 108, s. 11).
92. Remuneration of official liquidators (12 & 13 Vict. c. 108, s. 6). Dissolution of company.
94. Registrar to make minute of dissolution of com
95. Power of Lord Chancellor of Great Britain to make rules (12 & 13 Vict. c. 108, s. 37).
96. Power of Lord Chancellor of Ireland to make rules (12 & 13 Vict. c. 108, s. 37).
97. Power of Court of Session in Scotland to make rules.
98. Power of Vice-Warden of Stannaries to make rules; Court of Stannaries; service of process; appeal in cases of winding-up. 99. Power of Commissioners of Bankruptcy to make rules.
100. Rules with respect to fees.
101. Special commissioners for receiving evidence (12 & 13 Vict. c. 108, s. 20).
Voluntary Winding-up of Company. 102. Circumstances under which company may be wound-up voluntarily.
103. Notice of resolution to wind-up voluntarily.
IV. REGISTRATION OFFICE. 106. Constitution of registration office (7 & 8 Vict. c. 110, ss. 19, 21).
V. REPEAL OF FORMER ACTS, AND TEMPORARY
107. Repeal of 7 & 8 Vict. c. 110, 10 & 11 Vict. c. 78, and 18 & 19 Vict. c. 133.
108. Provisions of 11 Vict. c. 45, 12 & 13 Vict.
c. 108, 7 & 8 Vict. c. 111, and 8 & 9 Vict. c. 98, not to apply to companies registered under this act.
109. Saving clause as to repeal.
New Statutes effecting Alterations in the Law.
110. Registration of existing companies.
112. Authentication of statements of existing com-
113. Certificate of registration of existing companies. 114. Power of company to change name.
115. Certificate to be evidence of compliance with
116. Saving rights of creditors.
CONTENTS OF SCHEDULE.
Form A.-Memorandum of association.
Forfeiture of shares.
Increase of capital.
Votes of shareholders.
Powers of directors.
Form of balance sheet.
Form C.-Memorandum of association, with articles
of association annexed.
Table D.-Table of fees.
Whereas it is expedient that the law relating to the incorporation and regulation of joint stock companies and other associations should be consolidated and amended: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. This act may be cited for all purposes as "The Joint Stock Companies Act, 1856."
2. This act shall not apply to persons associated together for the purpose of banking or insurance. PART I.-CONSTITUTION AND INCORPORATION OF COMPANIES AND ASSOCIATIONS. Registry.
3. Seven or more persons, associated for any law
ful purpose, may, by subscribing their names to a memorandum of association, and otherwise complying with the requisitions of this act in respect of registration, form themselves into an incorporated company, with or without limited liability.
4. Not more than twenty persons shall, after the third day of November, one thousand eight hundred and fifty-six, carry on in partnership any trade or business having gain for its object, unless they are registered as a company under this act, or are authorised so to carry on business by some private act of Parliament or by royal charter or letters patent, or are engaged in working mines within and subject to the jurisdiction of the stannaries; and if any persons carry on business in partnership contrary to this provision, every person so acting shall be severally liable for the payment of the whole debts of the partnership, and may be sued for the same without the joinder in the action or suit of any other members of the partnership.
5. The memorandum of association shall contain the following things: (that is to say)
i. The name of the proposed company;
iii. The objects for which the proposed company
iv. The liability of the shareholders, whether it is to be limited or unlimited;
v. The amount of the nominal capital of the proposed company;
vi. The number of shares into which such capital is to be divided, and the amount of each share; subject to the following restriction: That in the case of a company formed with limited liability, and hereinafter called a limited company, the word "limited" shall be the last word in the name of the company. 6. No company shall be registered under a name identical with that by which a subsisting company already registered, or so nearly resembling the same as to be calculated to deceive; and if any company, through inadvertence or otherwise, is registered by a name identical with that by which a subsisting company is registered, or so nearly resembling the same as to be calculated to deceive, such first-mentioned company may, with the sanction of the registrar, change its name, and upon such change being made the registrar shall enter the new name on the register in the place of the former name, but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings instituted or to be instituted by or against the company, and any legal proceedings may be continued or commenced against the company by its new name that might have been continued or commenced against the company by its former name.
7. The memorandum of association shall be in the form marked A in the schedule hereto, or as near thereto as circumstances admit, and it shall, when registered, bind the company and the shareholders therein to the same extent as if each shareholder had subscribed his name and affixed his seal thereto or otherwise duly executed the same, and there were in such memorandum contained, on the part of himself, his heirs, executors, and administrators, a covenant to conform to all the regulations of such memorandum, subject to the provisions of this act.
8. Every subscriber of the memorandum of association shall take one share at the least in the