페이지 이미지
PDF

or was legally in his trustee but held by him as trustee for, defendants to move to enter it for themselves on the ground inter Gray.

alia, that a contract under seal was necessary to charge the C. Russell, Q.C., and W. Il. Butler, for Megrath.

guardians, they being a corporation. Herschell, Q.C., and Gully, for Gray.

A rule nisi had been obtained accordingly, against which THE COURT (Lord Coleridge, C.J., Keating, Brett, and Den- Warton and Poulter, shewed cause. man, JJ.) held that the general enactments in ss. 49 and 50 of Dicon supported the rule. the Bankruptcy Act, 1819, apply to the discharges under ss. 125 | THE COURT (Coleridge, C.J., Keating and Danman, JJ.) held and 126 and the rules and forms applicable to them; that the that the appointment of the plaintiff came within the general word “ bankrupt" in ss. 49 and 50 is to be read as applicable to rule by which a corporation can only contract under seal, and any debtor obtaining an order of discharge under the statute; therefore made the rule absolute. that an order of discharge, whether in pure bankruptcy, or under Rule absolute. a liquidation by arrangement under s. 125, or under a composi Attorneys for plaintiff: Holmes & Poulter. tion under s. 126, releases only the debtor in whose favour it is Attorney for defendants: Howard. given, and leaves his solvent co-debtor liable to be sued separately by a joint creditor who has been a party to the release of the insolvent debtor; and, consequently, that the discharge of H. did not release Megrath, but left him liable to a separate suit by

Ex.

DICKESON v. HILLIARD AND ANOTHER. Jan. 20. Gray; and, further, that whether the right of action was legally | Defamation-Privilege-Parliamentary Election-- Election Agent in Gray, or whether it was legally in his trustee to hold in trust

of each Candidate- Interest or Duty. for him, Gray might maintain his set-off in the action by Megrath. Judgment was therefore given for the defendant in The libel in question arose out of proceedings at the last Dover the first action, on the plea of set-off ; and that a nonsuit should election, at which Mr. Forbes and Mr. Barnett were the candibe entered in the second action.*

dates. The plaintiff was one of the chairmen of a district comJudgment accordingly.

mittee formed to promote the return of Mr. Forbes. The Attorneys for Megrath; J. & R. Gole.

defendant Hilliard was chairman of Mr. Barnett's committee, Attorneys for Gray: Torr & Co.

and the defendant Hare was his election agent. The election

took place on the 22nd of September, 1873, and resulted in the * This was upon the assumption, said to be erroneous, that the claim in the return of Mr. Barnett. In the course of that day the defendant second action was identical in amount with the claim in the first action. Hare made a communication to a Mr. Hall, the election agent of

Mr. Forbes' committee, to the effect that two prominent members of Mr. Forbes' committee had been offering money to voters to

poll for Mr. Forbes. The following day Hall and Hare met, and the C.P. NEILD v. BATTY.

Jan. 17. plaintiff's name was then mentioned by Hare as that of one of the Corrupt Practices (Municipal Elections) Act, 1872-Req. Gen. for persons implicated. Mr. Hall stated that if the allegations made as

the execution of, No. VII.- Delivery of List of Voters objected to. to the plaintiff were properly proved to be true he would recomIn this case the list of votes objected to on a petition under

mend such a course to be adopted as would render a prosecution the Corrupt Practices Municipal Elections Act, not having been

inexpedient, and the defendant Hare promised to furnish the delivered in the time specified by Rule 7 of the General Rules

necessary evidence and said an apology must be made. under the Act, application was made to the Court under the

On the 29th of September a certificate, signed by both defenlatter part of such rule, for leave to give evidence against the

dants, and a form of proposed apology, was forwarded to Mr. votes upon the heads of objection mentioned in the said list,

Hall, enclosed in a letter signed by the defendant Hare. Tho which was tendered too late, and to deliver such list nunc pro

certificate, which was the subject-matter of the action, was as

follows: _" Dover Election, 1873. We certify that we have distunc, Herschell, Q.C., shewed cause against the application.

covered that Mr. Dickeson (the plaintiff) and Mr. Robinson (who Ambrose supported the rule.

was plaintiff in a similar action) have been personally guilty THE COURT (Coleridge, C.J., Keating and Denman, JJ.) re

of offering 11. 10s. to a voter for his vote, and 11. 10s. for every fused the application on the ground that the latter part of the

vote he could procure for Mr. Forbes. The elector referred to rule only applied to amendment of a list delivered in time, and

has been personally examined by one of us, and evidence, which gave no jurisdiction to extend the time for delivering a list.

he is prepared to give on oath, is clear and distinct. Dated the Rule discharged.

21th of September, 1873. William Edward Hilliard, chairman. Attorneys for petitioner : Dangerfield & Son,

Evan Hare, Mr. Barnett's agent." The apology proposed conAttorneys for respondent: Cooke & Talbot.

tained an undertaking “in consideration of Mr. Barnett's committee consenting not to prosecute us," to take no part in poli

tics for two years. There was no foundation for the imputation C. P.

Jan. 17.

of bribery, and the plaintiff refused to sign the apology forwarded

to Mr. Hall, and brought this action. AUSTIN v. GUARDIANS OF BETHNAL GREEN. Corporation

The cause was tried before Kelly, C. B, at the London Contract not under Seal - Board of Guardians

Sittings after Michaelmas Term, 1873, when it was contended Hiring of Clerk to the Master of a Workhouse.

that the defamatory document was privileged. The learned Action for wrongful dismissal brought by the clerk to the judge ruled that it was not, and a verdict was found for the master of a workhouse against the board of guardians.

plaintiff for 2251. It appeared at the trial which took place before Denman, J., Giffard, Q.C., and E. Clarke, for the defendants, Hilliard and at the Guildhall sittings after last Trinity Term, that the Hare respectively, moved for a new trial on the ground of misguardians had elected the plaintiff to a situation as such clerk direction, and contended that the rule laid down in Harrison v. as aforesaid. One question between the parties was whether Bush (5 É. & B. 344) was applicable, and that the document was such election had been absolute or conditional upon the subse- published on a privileged occasion. quent production of a satisfactory testimonial from plaintiff's THE COURT refused the rule, holding that the certificate was former employers, but it appeared that no contract under seal not privileged. had ever been executed by defendants in respect of the employ-l Rule refused. ment of the plaintiff.

Attorneys for plaintiff: Bower & Cotton, The verdict was for the plaintiff, leave being reserved to the Attorney for defendant: Evan Hare.

TABLE OF CASES.

PAGE

PAGE THOMSON v. FLINN (County Court Appeal-Jurisdiction-Dismissal

of Plaint—30 & 31 Vict. c. 142, 8. 9) . . V.-C. M. 18 TURTON v. BARBER (PrivilegeBill of Costs-Facts ante litem

motam) . . . . . . . . V.-C. H. 21 Wilson v. NORTHAMPTON AND BANBURY JUNCTION RAILWAY Com

PANY (Specific Performance-Contract to execute Works

Damages) . . . . . . . V.-C. B. 20 WILSON V. O'LEARY (Administration Legacy Duty - CosisResidue)

. . . . . . . V.-C. B. 21

24

23

mant

22

Common Law. FITZGERALD) v. FITZGERALD (Dissolution of Marriage Decree "

NisiVariation--23 & 24 Vict. c. 144, s. 7-29 Vict. c. 32,

8. 3) . . . . . . . . P. & M. FREETH AND ANOTHER v. Bure (Contract for Goods to be delivered

at different TimesEffect of Refusal to pay for the Part

delivered) . . . . . . . . C.P. HARDINO, App.; HEADINGTON, RESP. (Ilighway-Turnpike-Eva

sion of Toll3 Geo. 4, c. 126, s. 41) . . . .Q. B. MARTIN V. SMITH (Landlord and TenantTenancy under Foid

Demise) . . . . . . . . . Ex. MAUDE AND OTHERS, Pets. ; LOWLEY, RESP. (Municipal Election

-- Corrupt Practices (Municipal Elections) Act, 1872Par

ticulars - Reg. Gen. Mich. Term, 1872, No. 7) . .C.P. MORANT, IN THE GOODs or (Will-Renunciation of Executor

Retractation -20 & 21 Vict. c. 77, s. 79) . P. & M. MUSGRAVE v. INCLOSURE COMMISSIONERS FOR ENGLAND AND WALES

(Inclosure Act (8 & 9 Vict. c. 118), 88. 27, 33, 34, 48, 56, 75, 76, 77Provisional Order-Right of Lord to Common oj

Pasture-Claims unobjected to). . . . .Q. B. PEIRCE v. Cory (Statute of Frauds, 8. 17--Sale of GoodsMemo

randum in Writing) . . . . . .Q. B. REG. v. LONDON AND North WESTERN RAILWAY COMPANY. Rc

KEMPSTON RATE (Poor-rate-Rating of Branch Railway Railway leased in perpetuity, but other Companies willing to take it on same Terms) . . . . . .Q. B.

24

Equity.
ATTORNEY-GENERAL AND COMMISSIONERS FOR THE REDUCTION OF

THE NATIONAL DEBT v. Ray (Annuities granted by Commis-
sioners for the Reduction of the National Debt-Misrepresenta-

tions-Contract set aside). . . . , V.-C. H. 21 BEDWAS AND LANTWIT COAL COMPANY, In re (Winding-up Peti

tion-Practice as to hearing when not opposed-Company

appearing and consenting). . . . . V.-C. M. 17 BUMPUS . BUMPCs (WillLegaciesWhether specific, general, or demonstrative). . . . . . , V.-C. B. 19

CR 19 Cappos v. CAPRON (Apportionment Act, 1870- Rents of a devised

Estate . . . . . . . . V.-C. M. 17 Driver v. DRIVER (WillImperfect Gift-Want of Object-In

testacy) . . . . . . . . V.-C. B. 20 Fisker e. FISHER (Railway CompanyTaking of Land - Payment ints CourtTransfer to Credit of SuitCosts of Payment out)

M. R. 15 FORSTER 1. ABRAHAM (Trust for Sale-Appointment of Tenant

for Life as new Trustee-Title-Specific Performance) M. R. 16 GREAVES 0. SMITH ( Tenant for Life and Remainderman-Gift to

Terant for Life of Rents, dividends, interests, and annual
proceeds" of Real and Personal EstateTrading Business-
Discretionary Power of Sale in Trustees--Right to Income in

Specie) . . . . . . . . V.-C. B. 18 HEREFORD AND SOUTH WALES WAGGON AND ENGINEERING COM

PANY, In Te (Pructice-Winding-up Petition) . V.-C. B. 20 HOETOX . HALL (Chief Rent--Land not in Settlement ordered to

gold to pay Arrears Cupit v. Jackson (13 Price, 721)

followed) . . . . . . . V.-C. H. 22 JACTES 6. RYLANCE (Defaulting Trustee-Beneficial Interest in

Right of deceased Child) . . . . . M. R. 16 KEIGHTLEY, Ex parte. In re HOYLAKE RAILWAY COMPANY

(Shares cancelled after Allotment- Acquiescence. V.-C. M. 18 LAND 2. LAND (Practice-AdministrationIntestate's Estate

Carrying on Business) . . . . . M. R. 16 LITTLEDALE, Ex parte. In re HOYLAKE Railway COMPANY

(Transfer of SharesCalls unpaid- Acquiescence) V.-C. M. 17 MSIWELL v. SOMERTON (Copyright Injunction) , V.-C. B. 19 MEDI . ALLES (Equitable Mortgage-Trade FixturesBills of

Sals Act (17 & 18 Vict. c. 36). . . . . M. R. 16 NORES . GANDY (County Court Appeal-Administration Suit

Restraining Creditor's ActionInjunction before Decree and

Ez parte . . . . . . . . V.-C. M. 18 PALMEB 7. JONES (Executor of Executor-Default by original

Executor-Costs) . . . . . . M. R. 17 TATE, Ex parte. In re KeywORTH (Secured Creditor-Action on

Bill of Exchange-Leave to defend given on depositing Money
in Court-Reference to Arbitration-Bankruptcy of Defendant
before Award-Rights of Trustee as to Money deposited-
Bankruptcy Ad, 1869, 88. 12, 16 (sub-8. 5)- Bills of Exchange

Act, 1855, 8. 2) . . . . . . Bukoy. 22 No. 3.-1874.

24

24

23

23

During the sittings of the Courts THE WEEKLY NOTEs will be published on Saturday, and will generally comprise Notes of the Decisions up to and including those of the previous Wednesday. All cases of permanent interest noted herein will be reported in full in THE LAW REPORTS.

Equity.

M. R.
FISHER v. FISHER.

Jan. 17. Railway Company-Taking of Land-- Payment into Court

Transfer to Credit of Suit-Costs of Payment out. This was a suit to administer the estate of a testator, who devised certain real estate upon trust for his widow for life, with remainder to his children.

Part of the estate was taken by the London and Brighton Railway Company for the purposes of their Act, and the purchase-money paid into Court to the usual account ex parte the company.

In 1866 an order was made directing the fund to be trans- from selling or removing the fixtures or fittings in or about the ferred to the credit of the cause, to an account which was not said house. entitled ex parte the company.

| The defendant, W. Allen, being entitled to the house and to The tenant for life had recently died, and a petition was now certain fixtures and fittings upon the premises for the residue of presented asking for the division of various funds standing to a term, applied to the plaintiffs for an advance of 8001., which the credit of the cause. The Brighton Company were made was made to him on the security of the said house upon the respondents, and the petition asked that they might pay so much terms of a deed-poll of the 11th of August, 1869, whereby Allen of the costs as related to the payment out of the fund which had agreed to execute a legal mortgage when required, and the lease been paid in by them.

was at the same time deposited with the plaintiffs. Morshead, for the petitioners. .

By an indenture of the 7th of December, 1873, the defendant Cookson, for respondents in the same interest.

Allen mortgaged by way of demise the premises comprised in Kekewich, for the company.

the lease to the plaintiffs for the residue of the term. THE MASTER OF THE ROLLS said that a slip had probably been Neither the equitable deposit, nor the mortgage, were remade, but the result was that he had no jurisdiction to make gistered under the Bills of Sale Act. the company pay the costs asked for; and he therefore dismissed Allen subsequently executed two registered bills of sale to the the petition, so far as the company was concerned, with costs. other defendants of the fixtures and fittings of the said house, some

Solicitors: R. B. Horman Fisher; Fisher & Fisher ; Rose, Nor- of which had been placed there before the date of the deed-poll, ton, & Brewer.

and some subsequently, and the plaintiffs filed their bill alleging that such fixtures formed part of their security, and praying an

injunction to restrain the defendants from removing them. M. R. FURSTER V. ABRAHAM.

Jan. 21.

Fischer, Q.C., and Freeling, for the plaintiffs. Trust for Sale - Appointment of Tenant for Life as new Trustee- Ward, for the defendants, contended that the fixtures did not * Title-Specific Performance.

pass to the plaintiffs, as the mortgage required registration under Demurrer.

the Bills of Sale Act. Testator, by his will, devised his real estate to the use of his THE MASTER OF THE Rolls held that the case was governed four trustees, therein named, upon trust to pay the rents to his by Ex parte Daglish (Law Rep. 8 Ch. 1072); that the fixtures wife during her life, and after her decease to pay the same to did not belong to the plaintiffs, and that the bill must be dishis only son, the plaintiff, for his life, and after his decease upon missed with costs. certain trusts for the plaintiff's issue, and upon other trusts; Solicitors : Hunter, Gwatkin, Hunter, & Clark; T. Angell. and it was thereby declared that in the discretion and of the proper authority of the trustees or trustee for the time being of the said will, all or any part of the hereditaments thereby devised might be sold. And the testator gave the residue of his per- M. R.

LAND v. Land.

Jan. 24. sonal estate to the same trustees upon trust to invest and pay | Practice- Administration-Intestate's Estate - Carrying on the interest to the testator's wife for her life, and after her

Business. decease upon the trusts therein mentioned. The will contained

This was a suit for the administration of the estate of an the usual power in the event of any of the trustees dying or intestat

108. Or intestate who had carried on the business of a house decorator. declining to act in the trust, for the surviving or continuing 17

It was proposed to take a decree containing an inquiry whether trustee or trustees, with the consent of the person for the time it

it would be for the benefit of the parties beneficially entitled being entitled to the rents and profits of the estate, to appoint a

(some of whom were infants) that the business of the intestate new trustee or new trustees to act jointly with the surviving or

Yiving or should be carried on. continuing trustees, with the same powers as if he or they had

Villiers, for the plaintiffs. been originally appointed a trustee of the will.

W. C. Renshaw, for the defendants. One of the four original trustees died, and the three survivors

THE MASTER OF THE Rolls held that the Court had no disclaimed the trusts of the will, and by a deed, purporting to

authority to carry on the business of an intestate in whose estate be in exercise of the power in the will, they appointed the tes. Linfants we tator's widow and the plaintiff to be new trustees.

infants were interested, and refused to order the inquiry.

Solicitor : Terry.
The widow died, and the plaintiff had contracted for a sale of
part of the land devised, but the purchaser objected to complete
on the ground that the appointment of the plaintiff, who was
tenant for life, as trustee was not a proper exercise of the power.

M. R.
JAQUBS v. RYLANCE.

Jan. 24. The plaintiff filed his bill for specific performance, and the Defuulting Trustee-Beneficial Interest in Right of deceased Child. defendant raised his objection by way of demurrer.

This was a suit to administer the estate of Mary Anne Elkes, Fry, Q.C., and Beale, for the defendant, in support of the who, by her will, dated the 30th of July, 1849, appointed her demurerr.

husband Edward Elkes executor, and bequeathed certain proSouthgate, Q.C., and Bagshawe, for the plaintiff, were not perty, over which she had a power of disposition, upon trusts called on.

for the benefit of her children. She left five children, one of THE MASTER OF THE ROLLS held that the appointment of the whom had died, leaving Edward Elkes bis sole next of kin, and tenant for life as trustee for sale was valid ; that the objection a sum of 1121. had been carried over to the separate account of to the title failed ; and that the demurrer must be overruled, with this deceased child. costs.

Edward Elkes had become insolvent, and a much larger som Solicitors: Beale, Marigold, & Beale, agents for M. J. Beale, than 1121. was due from him to the estate. Birmingham; Pearce & Son, agents for Wilkinson & Gillespie, An application was now made by the surviving children for Walsall.

| payment of the 1121. to them.

Ince, for the applicants. M. R.

Dauney, for the assignee in insolvency of Edward Elkes, Meux v. ALLEN.

1. 22. admitted that Edward Elkes could not have claimed anything Equitable Mortgage-Trade Fixtures-- Bills of Sale Act (17 & 18 in bis own right under the will, but contended that he was enVict. c. 36).

titled to claim this derivative interest in right of his child. The plaintiffs in this suit were brewers, who were mortgagees Holmes, for a mortgagee under Edward Elkes. of a public-house, and the bill was filed to restrain the defendants THE MASTER OF THE ROLLS held that Edward Elkes must be treated as having paid himself out of the funds he had received Rawlins, for the trustees. and had not accounted for, and ordered payment of the fund tol THE VICE-CHANCELLOR said there was no difference in printhe applicants.

ciple between the terms of this devise and an absolute devise, Solicitors: Edwards, Layton, & Jaques; A. S. Twyford; Massey, therefore the question was the simple one, whether in all cases Taylor, & Hales.

where a testator seised in fee devised a particular estate and died between the half-yearly or quarterly days for payment of his

rents, there should be an apportionment of those rents between M. R. PALMER V. JONES.

Jan. 26. his own personal estate and his devisee. His opinion was that Executor of Executor_Default by original Executor-Costs.

the Act of 1870 applied to a case of this nature, and he was con

firmed in this view by the case of Roseingrave v. Burke (7 Ir. This was a suit to administer the estate of Mary Palmer, who

| Rep. Eq. 186). It had been contended that the Act did not died in 1863, having appointed Walter James Palmer her executor. He died in 1864, and the defendants were his executors. the Act did not specify that, and it was material to observe that

ner ex apply to instruments executed before the passing of the Act, but An administration decree was made in the suit. The estate by the old Act an apportionment was directed under any instruof Walter James Palmer proved insolvent, and the accounts ment that should be executed after the passing of the Act, or directed by the decree were not prosecuted as against it; but being a will should come into operation after the passing of the they were prosecuted as against the defendants personally, who | Acto It

s personally, who Act. It was therefore highly improbable that the Legislature had received some part of Mary Palmer's estate. The defendants should have intended the recent Act, which was expressed in had duly accounted for, and were ready to pay into Court, all very general terms. to have the limited operation contended for. moneys for which they were so liable, and the cause now In this case, although the will was made before the Act, it was coming on for further consideration, the question arose as to

ratified and confirmed by the codicil executed after the passing whether the defendants were entitled to costs.

of the Act. He should therefore make a declaration that there Southgate, Q.C., and W. W. Karslake, for the plaintiff, con- should be an apportionment of the rents, and such portion as tended that the defendants, being representatives of a defaulting accrued before the death of the testator belonged to his general executor, were not entitled to costs.

personal estate. Fry, Q.C., and Bevir, for the defendants, contended that the

Solicitors for all parties: Clark, Son, & Rawlins. defendants, having answered everything for which they were liable, ought to have costs. THE MASTER OF THE ROLLs said that the defendants were

V.-C. M

Jan. 23. clearly entitled to the costs of taking the accounts against themselves. As to the general costs of the suit, the defendants

In re BEDWAS AND LANTWIT COAL COMPANY. were parties in two capacities, first as representatives of Walter Winding-up Petition-Practice as to hearing when not opposedJames Palmer, and secondly as being themselves the present |

Company appearing and consenting. legal personal representatives of the testatrix, and having re- Ince, who appeared for the petitioner on this petition, which ceived part of the estate. In the first capacity they would not was by & creditor to wind up a colliery company, asked that be entitled to costs, in the second they would; and in the the Vice-Chancellor would consider whether it was not desirable absence of any precedent on the subject, His Honour directed to modify the rule by which winding-up petitions are always that the defendants should be paid half the amount of costs they taken as opposed. The present petition was, in fact, quite unwould have been entitled to if they had been made parties in the opposed, but in consequence of the rule and the over-crowded second capacity alone.

state of the business of the Court, was standing over from Solicitors: Bridges, Heywood, & Co.; Westall, Roberts, & Co. week to week.

It was suggested that the Vice-Chancellor Bacon acted on the principle of allowing winding-up petitions to be called, and then

if the company appeared and consented, to make the order, but V.-C. M. CAPRON v, CAPRON.

Jan. 21.

if the company either did not appear, or opposed, not to allow Apportionment Act, 1870Rents of a devised Estate. the petition to be taken as unopposed. Special case.

THE VICE-CHANCELLOR said he was very glad to hear of the George Capron by his will, dated the 2nd of April, 1866, I practice

practice adopted in the Vice-Chancellor Bacon's Court, and in

open! directed certain annuities to be paid quarterly, and charged them

future when a petition was called on, and the company appeared upon his estate in the county of Northampton, of which he was

and consented and no one opposed he would make the order. seised in fee. He then devised the same estate to trustees to be

Solicitors : Clarke, Woodcock, & Ryland. settled upon his eldest son for life, with remainder to his children in strict settlement. By a codicil to his will, dated July 1, 1871, the testator made

LWAY COMPANY. certain alterations in his will, and subject thereto ho ratified and

Ex parte LITTLEDALE. confirmed the will. He died on the 24th of April, 1872, and the rents of such portions of the estate as wero let upon lease were

Transfer of Shares-Calls unpaid-Acquiescence. . payable half-yearly--at Lady Day and Michaelmas. The ques. This was an adjourned summons upon the application of Mr. tion for the opinion of the Court was whether the rents were to Littledale to be removed from the list of contributories under be apportioned under the Apportionment Act of 1870 (33 & 34 the winding-up of the Hoylake Railway Company, a company Vict. c. 35).

registered under the Companies Act, 1862. Cotton, Q.C., and 0. A. Saunders, for the personal representa- In 1866, Mr. Littledale was chairman of the company and the tives of the testator, referred to the 2nd section of the Act, which holder of 100 shares. At that period Mr. Piercy was the conenacts" that from and after the passing of this Act, all rents, tractor for the line, and Mr. Littledale having expressed himself annuities, dividends, and other periodical payments in the nature as dissatisfied with Mr. Piercy's proceedings, a proposal was of income, whether reserved or made payable under an instru- made to Mr. Littledale by Mr. Piercy that tho former should ment in writing or otherwise, shall like interest on money lent retire from the board, and by way of relieving Mr. Littledalo be considered as accruing from day to day, and shall be appor- from any liability, Mr. Piercy proposed to take a transfer to tionable in respect of time accordingly," and contended that the himself of Mr. Littledale's shares, upon which there was a call rents of this devised estate must be apportioned.

then due of 21. per share, and to transfer to him in lieu thereof Everitt, and Kekewich, for the devieeer.

an equal number of paid-up shares which had been given to

him as part payment in respect of the contract for the construc- 1 At the hearing the defendant took the preliminary objection tion of the line. This proposal was carried out on the 8th of that the value was more than 5001., and produced evidence in August, 1866, and the transaction was recorded in the minutes support of this view, which the judge considered sufficient, of the board at a meeting on the 24th of August, 1866; Mr. whereupon he dismissed the plaint. Piercy being debited with the amount due upon the shares so The plaintiff contended that the suit ought to have been transtransferred. No further application was made to Mr. Littledale ferred to the Court of Chancery under s. 9 of the County Courts in respect of his shares until the company was wound up in Equitable Jurisdiction Act (28 & 29 Vict. c. 99). 1872, when he was placed on the list of contributories by the Cotton, Q.C., and T. L. Wilkinson, for the appellant, relied on official liquidator in respect of his original shares.

Birks y. Silverwood (Law Rep. 14 Eq. 101). Higgins, Q.C., and Bardswell, for Mr. Littledale, contended Glasse, Q.C., and Cozens-Hardy, for the respondent, contended that the directors had power to accept surrender of or to cancel that under s. 9 of the County Courts Acts Amendment Act, shares not fully paid upon any terms they pleased, it was 1867 (30 & 31 Vict. c. 142) (which accidentally had not been therefore within their power to sanction the transfer of these referred to in Birks v. Silverwood) the judge could do nothing shares to Mr. Littledale, and after acquiescence ever since 1866 but dismiss the plaint. the transaction could not be set aside.

THE VICE-CHANCELLOR held that the last-mentioned section Jackson, Q.C., and Westlake, for the official liquidator, con-only applied to cases where it appeared on the face of the plaint tended that the company had no power whatever to sanction the that the Court had no jurisdiction, and that where a suit was in transfer of shares while a call was due upon them, and no period progress when the want of jurisdiction was discovered, the of acquiescence could render the transaction valid.

proper order was to transfer the proceedings. The appeal was THE VICE-CHANCELLOR said it was no doubt illegal to register allowed. a transfer of shares while a call was unpaid upon them; but in Solicitors: J. E. Hepburn & Son; A. Gillespie. this case the money due upon the shares was debited to Mr. Piercy to whom the company were indebted, and the transaction was approved of by the board of directors in 1866, and had been acquiesced in ever since. He considered that money's V.-C. M.

NOKES v. GANDY.

Jan. 26. worth had been paid for the shares, and he should, therefore, re LCounty Court Appeal-Administration Suit-Restraining Crefuse to upset the arrangement, and Mr. Littledale's name must ditor's Action-Injunction before Decree and ex parte. be removed from the list as to any unpaid shares. Solicitors : Chester, Urquhart, & Co.; Ashurst, Morris, & Co.

County Court appeal.

William Gandy the younger died on the 4th of August, 1873, being at the time indebted to Thomas Richardson in the sum of

751. 9s. 9d. V.-C. M. In re HOYLAKE RAILWAY COMPANY.

Alfred Darby took possession of William Gandy junior's
COMPANY. Jan. 24.
Ex parte KEIGHTLEY.

estate as executor de son tort, and Thomas Richardson brought

an action against him as such executor in the Court of ExShares cancelled after Allotment - Acquiescence.

chequer for his debt. Letters of administration to William This was also an adjourned summons under the winding-up Gandy junior were then granted to William Gandy senior. of the Hoylake Railway Company upon an application by Mr. On the 22nd of October, 1873, Albert Nokes, another creditor Keightley that his name should be removed from the list of con- of William Gandy junior, filed an administration plaint against tributories in respect of 150 shares.

William Gandy senior and Alfred Darby in the county court of The question arising as to fifty of these shares was settled by Chelmsford. the last case of Ex parte Littledale, and as to fifty further shares, By rule 8 of the first of the County Court Orders no decree in the application for which had been withdrawn before allotment, au equitable suit can be made till one month after plaint filed. no question was now raised, but the remaining fifty shares were Before decree, on the application of the plaintiff, an order was allotted to Mr. Keightley on behalf of a gentleman named Mid-made ex parte restraining Thomas Richardson from continuing dleton, and the deposit money was paid upon them; but upon & his action. The latter moved in the county court to discharge subsequent application to the board by Mr. Keightley, alleging the order, but the judge refused to dissolve the injunction. that the shares were allotted by mistake to him instead of to Thomas Richardson appealed. Mr. Middleton; the board on the 3rd of November, 1864, | Glasse, Q.C., and Nalder, in support of the appeal. ordered the shares to be cancelled, and the deposit returned to Cotton, Q.C., and Begg, for the respondents. Mr. Keightley.

THE VICE-CHANCELLOR held that the power of the county The official liquidator now contended that the board had no courts in administration suits did not go beyond that of the power to cancel shares after allotment and deposit paid.

Court of Chancery, and an action by a creditor could not be Glasse, Q.C., and Speed, for Keightley.

restrained in an administration suit before decree, or on an ex Jackson, Q.C., and Westlake, for the official liquidator.

parte application. The appeal was therefore allowed with costs. THE VICE-CHANCELLOR said as this was a bonâ fide transaction Solicitors: Woodard; Duffield & Bruty. in which the directors considered that a mistake had been made in the allotment, and as no person could be injured by the transaction, he should not after an acquiescence of eight years interfere to set it aside, but should direct Mr. Keightley's name to be V.-C. B.

Greaves v. SMITH.

Jan. 21. removed from the list in respect of all the shares.

Tenant for Life and Remainderman-Gift to Tenant for Life of Solicitors : Cunliffe & Beaumont; Ashurst, Morris, & Co.

Rents, dividends, interests, and annual proceeds" of Real and Personal Estate - Trading Business-Discretionary Power of Sale in Trustees-Right to Income in Specie.

Richard Greaves, who died on the 29th of April, 1870, by his V.-C. M. THOMSON v. FLINN.

Jan. 26.

will, dated the 22nd of March, 1870, gave the residue of his real County Court Appeal Jurisdiction-Dismissal of Plaint-30 & 31

and personal estate upon trust that his trustees should "receive Vict. c. 142, s. 9.

the rents, dividends, interest and annual proceeds thereof, and County Court appeal.

pay the same” to his wife Catherine for her life, and after her This was a plaint for partition. The plaintiff alleged that the death should “in such manner in every respect as they or he value of the property was under 5001.

should in their or his uncontrolled discretion think proper” sell

« 이전계속 »