Order discharged. Solicitors for the appellant: Chinery & Aldridge. BANKRUPTCY. Nov. 21. Ex parte BIRMINGHAM GASLIGHT AND COKE COMPANY. while he was director, or from receiving any other remuneration not be considered to have remained in the possession, order, or than such as was bestowed upon him by the resolution of a disposition of the debtor with the consent and permission of the general meeting. The authority given to the directors by a true owner. general meeting of 1846 (on which defendant relied) could not be held to authorize prospectively the course taken by the directors in 1851. Further than this, there was no trace of any statement made by the defendant, or knowledge possessed by the directors, of the sums which defendant had received, and without which knowledge they could not discharge the duty they took upon themselves even if it had been-as it was not-duly conferred upon them by the general meeting. Inasmuch, too, as the vote of the directors was not recorded in the books or communicated to the company, there was no ground for holding the company bound by acquiescence. Even if convinced of the reasonableness of the charges the Court had no power to sanction them. It was no more competent to directors, trustees of the funds of the company, to bestow those funds upon any one without the knowledge and sanction of the proprietors than it would be for them to apply those funds for their own personal benefit. With respect to other items, the defendant, being the managing director of the company, by whom his services were purchased upon the terms prescribed by himself, was not entitled to make a profit in his character of solicitor in respect of any business transacted by him for the company. The plaintiff company's surcharge in respect of the several items must therefore be allowed. Solicitors: Bell & Steward; W. E. Duncan. Bankruptcy Act, 1869, s. 95, sub-s. 3, ss. 125, 126-Distinctio between Liquidation by Arrangement and Composition wit Creditors. This was an appeal from an order made by the Registrar of the County Court of Warwickshire held at Birmingham, dated the 20th of September, 1870, and directing the company to de liver up certain goods which had been seized by them unders statutory power of distress. Under their special Act, the Br mingham Gas Act, 1855, and the Lands Clauses Consolidati distress sums the amount of which was undisputed, and whis Act incorporated therewith, the company had power to levyty should be due to them for supplies of gas, &c. The responde was indebted to the company for gas supplied, and the company under their statutory power, on the 29th of July, 1870, obtained a warrant of distress, and seized the goods in question. On the same day, but after the seizure, the respondent filed in th County Court of Warwickshire a petition for liquidation arrangement in Form 106, and obtained from the registrar an injunction restraining the sale of the goods. The proceedings under the petition took the form of a com position, and at the first meeting of creditors a resolution (duly pound was passed by the requisite majority. The appellan confirmed and registered) to accept a composition of 5s. in the appeared as creditors in the statement furnished by the debtor, but declined to accept the composition and restore the goods The respondent accordingly applied for and obtained the ord appealed from. De Gex, Q.C., and Finlay Knight, for the appellants. The facts were as follows:-The appellant was the holder of two bills of sale as security for sums advanced to the bankrupt. creditors in the two cases, of liquidation by arrangement under THE CHIEF JUDGE held that the rights of the debtor and his The bills of sale were dated respectively the 20th of July, 1870, and contained an engagement by the debtor to pay the debt on different. That until it has been decided by the creditors which s. 125, and composition with creditors under s. 126, are whol the 8th of August, 1870, and a power for the grantees to take of these forms of proceedings shall be adopted it is right that a forcible possession on or before the 8th of August, and to sell the property comprised in the securities at any time after that date. injunction restraining any creditor's process against the debtor's On the evening of the 8th of August, and again early on the morn-make it improper to appoint a trustee has been passed, sub-ss person or estate be granted, but when such a resolution as would ing of the 9th, the appellant sent his agents to the house of the and 7 of s. 125 are inapplicable, and the property of the debtor is debtor to take possession of the goods. They knocked at the not taken from him nor vested in a trustee, and there is no doors repeatedly, and spoke with a person in the house, and demanded admission, but were refused, and, after having done all power to deprive secured creditors of their securities. Order appealed from discharged with costs. in their power short of using actual force, left without having Solicitors: Burton, Yates, & Hart; Deere & Bourne, effected an entry, and without having made any personal demand upon the debtor, who was absent, and (as it was alleged) purposely absent, from home at the time of both applications. Shortly afterwards they returned with men and tools, intending to break open the doors, but found them open and the debtor in possession, and were informed by him that a petition for liquidation by arrangement of his affairs had been filed, and that therefore the holder of the bills of sale was no longer entitled to possession. The petition had been filed after the second attempt to obtain possession. A trustee under the liquidation was appointed, and upon his application the order appealed from was made. Bagley, and T. Wheeler, for the appellant. Reed and Tidswell, for the respondent, the trustee. THE CHIEF JUDGE held that it was not necessary for the appellant to have taken forcible possession by breaking into the house, and that what he had done was sufficient to take the case out of the provisions of s. 15, sub-s. 5; and that the goods could Q. B. Common Law. JONES v. HARBER. Nov. 21. Bankrupt-Assignment of all his Property Fraudulent Preferente -Pressure-Relation back. The bankrupt, a trader, had under pressure assigned all his property to the defendant, a creditor. There was no such fraad as would have made the assignment void against creditors bankruptcy had not ensued; nor any intention to prefer the creditor to others under a bankruptcy then in contemplation, as to amount to a fraudulent preference, but the assignment must necessarily have prevented the trader from paying any others of his creditors, and the defendant must have known it would have that effect. Soon after, the trader became bankrupt on his own petition. At the trial, in an action by the assignee of the bankrupt, a verdict was entered for the defendant, leave being reserved to enter it for the plaintiff. A rule having been obtained, Davison, Q.C., and Leofric Temple, shewed cause. Holker, Q.C., and R. G. Williams, supported the rule. On this record error was brought, the case being, in effect, an appeal from the decision of the Court of Queen's Bench ordering the postea to be delivered to the defendant (Law Rep. 5 Q. B. 53). June 18. Mellish, Q.C., for the plaintiff. Raymond, for the defendant. THE COURT now delivered judgment, in accordance with the judgment of the Queen's Bench, that, on the whole record, the defendant, shewing a good defence, was entitled to judgment. Attorneys for plaintiff: Harper, Broad, & Manby. Attorneys for defendant: Palmer, Palmer, & Bull. THE COURT held that the transaction was an act of bankruptcy, Attorneys for plaintiff: Chester & Urquhart. County Court-Action against High Bailiff-Adjoining District19 & 20 Vict. c. 108, s. 21. An action was brought in the County Court of Staffordshire holden at Oldbury, against the defendant, the high bailiff of the County Court of Warwickshire, holden at Birmingham, to recover damages for not executing a warrant against the goods of one Peters, against whom the plaintiff had obtained judgment in the Birmingham County Court. The Oldbury County Court district is an adjoining district to the Birmingham County Court district, and a portion of Warwickshire lies within the district of a county court the judge of which is not the judge of the Birmingham County Court. Section 21 of 19 & 20 Vict. c. 108, enacts: "If an action be brought against an officer of a county court the summons may issue in the district of which he is an officer, or in any adjoining district the judge of which is not the judge of a court of which the defendant is an officer." The question was, whether the action could be brought in the County Court of Staffordshire, holden at Oldbury, or ought to have been brought in an adjoining district in the county of Warwick, not within the jurisdiction of the Birmingham County Court. G. Francis, for the plaintiff. The defendant did not appear. Nov. 22. NICHOLLS, APP; BULWER, RESP. Registration of Voters-Description of Qualification—Freehold Rent-charge. At a court for the revision of the list of voters for the Southern Division of Essex, the respondent objected to the name of the appellant being retained on the list of persons claiming to vote in respect of property situate in the parish of West Ham. The entries in the third and fourth columns of the list were as follows: voters in respect of the qualification described in the list, he proIn proof of the appellant's right to be inserted in the list of duced and proved a deed of conveyance to himself in fee simple of a plot of land, with four houses erected thereon, in the parish of West Ham, and stated that he had since the conveyance to the land on lease, for a long term of years, at a yearly rent of 167. him, and more than six months before the last day of July, let The four houses built on the land were proved to be now known by the description appearing in the fourth column of the list. It THE COURT held that the action was rightly brought in the was admitted, on the part of the claimant, that he had not a County Court of Oldbury. Attorneys for plaintiff: Few & Cole. him to escape. Pleas: 1. Not guilty. 2. That B. produced to defendant's officer a certificate of the registration of a deed between B. and his creditors within the meaning of s. 198 of the Bankruptcy Act, 1861, whereupon de:endant's officer discharged B. Issue joined, and demurrer to second plea, and replication that plaintiff's cause of action against B., in respect of which judgment was recovered, accrued after the making and registration of the deed, and plaintiff was not one of the creditors bound by the deed. Issue joined on the replication and demurrer. Judgment on demurrers for plaintiff. Verdict for plaintiff on not guilty, with an entry of 237. 2s. damages. Verdict on the replication for the defendant, and general judgment for the defendant. "rent-charge," strictly so called; but it was contended that the description in the list sufficiently described the qualification proved, and the omission of any owner's name in the fourth column was relied on to shew that the claim was not a claim in respect of a rent-charge, strictly so called; and the revising barrister was asked to amend, by striking out all the words in the third column except "freehold houses." The revising barrister thought that, as the_description in the third column of the list was a particular description, in legal language, of a specific freehold interest in the land in question, such as would, if he had possessed it, have given the claimant a vote, he was bound as matter of law to construe the description as a description of that freehold interest, and of no other. He further found that the description in the list would not be commonly understood to mean that the claimant had that freehold interest in the houses which he really had; and for that reason he thought that the description given in the third column of the list could not be considered to be, within the meaning of s. 101 of 6 Vict. c. 18, an inaccurate description, in the sense either of a clumsy or of a popular description of the nature of the claimant's real qualification. And he further held that the proviso in s. 40 precluded any amendment under that section, inasmuch as it would be changing the description of the qualification, and not "more clearly and accurately defining it." THE COURT (Bovill, C.J., Keating and Brett, JJ., Willes, J., dissenting), held the revising barrister had come to a right conclusion. E. Clarke, for the appellant. H. Shield, for the respondent. Attorneys for appellant: Houghton & Wragg. Attorneys for respondent: Wyatt & Hoskins. C. P. Nov. 25. STEVENS, PET.; TILLETT, RESP. Parliament-Election Petition-Effect of the Judge's Report. This was a rule to set aside an order of Byles, J., striking out two clauses from an election petition which charged that the respondent had been guilty of bribery and treating at a former election. It appeared that Tillett was a candidate at the previous election, and being unsuccessful presented a petition against Stacey, who was one of the members who had been returned, in which he claimed the seat. Stacey made recriminatory charges of bribery and treating, and at the trial of the petition before Martin, B., several cases of alleged bribery by Tillett and his agents were gone into, but not proved. Tillett having abandoned his claim to the seat, the judge certified that Stacey was not duly elected, and reported to the Speaker, amongst other things, that he believed that Tillett had not been guilty of bribery or treating, but that the election, on his part, had been pure. A commission having been subsequently sent down to investigate the proceedings at the election, certain acts of Tillett were discovered believed to be of a corrupt nature, and Tillett having been elected at the new election held for the city, this petition against his return was presented, and it was proposed to raise, by the 5th and 6th clauses, the question whether he was ineligible on account of his conduct at the former election. On an application at chambers Byles, J., made an order to strike out the clauses, on the ground that the question of bribery by Tillett at the last election had already been decided, and could not be reopened. Manisty, Q.C., and Rodwell, Q.C., for the respondent, shewed cause against the rule. O'Malley, Q.C., Sir J. Karslake, Q.C., and Griffits, for the petitioner, in support of the rule. THE COURT held the report of the judge was not conclusive, and that though the particular acts of bribery already gone into could not be reopened, the petitioner was not precluded from going into any other acts of bribery or treating, at any rate if discovered subsequently to the last proceedings. Attorneys for petitioner: Whites, Renard, & Floyd. SMITH V. LONDON AND SOUTH WESTERN RAILWAY COMPANY. Railway Company-Negligence-Improper Munner of keeping the Banks-Remoteness of Damage. Appeal from a decision of the Court of Common Pleas discharging a rule to enter a nonsuit. The action was for negligence on the part of the defendants, by which some furniture of the plaintiff's, in a cottage near the defendants' railway was burnt. It was proved that the defendants had cut the grass and hedges along their line, and allowed it to remain for a fortnight along the side of their line. The weather had for some weeks been unusually dry, and fires in the neighbourhood had been frequent. A fire was seen to break out by the side of the company's line shortly after a train had passed, and spread through the hedge to a stubble field, and thence to the cottage, which was about 200 yards off, across a high road. A verdict was entered for the plaintiff, with leave to the defendants to move to enter a nonsuit. A rule pursuant to the leave was granted and discharged, and this appeal brought. Kingdon, Q.C., and Murch, for the defendants. Cole, Q.C., and Bere, Q.C., for the plaintiff. THE COURT held that there was evidence that the fire was caused or increased by the dried cuttings being improperly left along the line, and that the negligence being proved, it was no answer to the plaintiff's action that the defendants could not reasonably have expected that their negligence would have caused an injury to property situated so far from the line as that of the plaintiff, and they confirmed the judgment of the Court below. Attorneys for plaintiff: Sole, Turner, & Turner. Ex. Ch. from Ex. SOUTHAMPTON STEAM COLLIERY COMPANY v. CLARKE. Charterparty Full and complete Cargo - Freight -"Baltic" printed Rates-Cargo of" Oats or other lawful Merchandise." Appeal from a decision of the Court of Exchequer discharging a rule to enter a verdict for the plaintiffs. The defendant by a charterparty undertook to load at Archangel a "full and complete cargo of oats or other lawful merchandise," and the plaintiffs, the shipowners, to deliver the same on being paid freight as follows:-4s. 6. sterling per 320 lbs. weight delivered for oats, and if any other cargo be shipped in full and fair proportion thereto according to the London Baltic printed rates." The defendant put on board at Archangel a full and complete cargo of flax, tow, and codilla, being three of the articles mentioned in the Baltic printed rates, and paid to the plaintiffs the freight earned by the goods thus shipped according to a scale derived from the tables which constitute the Baltic rates. The plaintiffs in this action claimed in addition the differ ence between this amount and the larger amount which would have been earned by a full and complete cargo of oats. The Court of Exchequer held that flax, tow, and codilla being lawful merchandise within the meaning of the charterparty, the defendant had fulfilled his contract by loading a full and complete cargo of those articles, and therefore was not, on the true construction of the charterparty, liable for the additional freight claimed by the plaintiffs as upon a full cargo of oats. From this decision the plaintiffs appealed. Dec. 2.-THE COURT affirmed the judgment. Manisty, Q.C. (Cohen with him), for the appealing plaintiffs P. & M. PATTERSON v. PATTERSON AND GRAHAM. Nov. 23. Matrimonial Suit-Decree Absolute-Costs-Proctor's Lien. This was a suit for dissolution of marriage by reason of adul tery. A decree nisi in favour of the petitioner was made in February 1870. The petitioner in person moved that the decree be made absolute. Inderwick, for Mr. W. G. Jennings, applied to the Court to defer making such decree until the petitioner had paid Mr. Jennings (his proctor) his taxed costs. The Common Law Courts will not assist a party to get the results of a judgment against the rights of his attorney. THE JUDGE ORDINARY held that there was no analogy between a money demand and a remedy of the character of a decree absolute. He was bound by the statute to make a decree abse lute unless cause were shewn to the contrary under 23 & 24 Vict. c. 144. If he were to suspend the decree until the costs were paid it might be suspended indefinitely. Decree absolute. Proctor: W. G. Jennings. VINING, Ex parte. In re IMPERIAL LAND COMPANY OF MARSEILLES (Reconstruction of Company-Purchase of Shares by Liquidator from dissentient Shareholders-Companies Act, 1862, 8. 161) WESTERN ASSURANCE SOCIETY, Ex parte. In re ALBERT LIFE ASSURANCE COMPANY (Joint Stock Companies-Amalgamation -Transfer of Assets - Covenant to indemnify — Failure of Indemnity-Assets handed over but not assigned-Re-assurance Policies-Vendor's Lien-Principal and Surety) V.-C. B. 262 Equity. ALLEN, Ex parte. Ex parle PAGE. In re MIDDLETON (Bankruptcy M. R. 256 V.-C. M. 260 JOYCE v. RAWLINS. PILCHER v. RAWLINS (Fraud-Purchase for FRASER (MARY, IN THE Goods or (Married Woman's Will- SCHIBSBY v. WESTENHOLZ (Action-Foreign Judgment—Judgment SWAN, THE (Jurisdiction-County Courts Admiralty Jurisdiction Q. B. 264 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. L. C. PACKARD, Ex parte. In re SOMBRERO PHOSPHATE COMPANY (Com- Action at Law-Injunction-Stock-jobber-Transfer of SharesInfant. Mr. Dent held shares in a joint stock company which he agreed, through his broker, to sell to the plaintiff Nickalls, a dealer on the Stock Exchange. Nickalls in due time gave the name of George Eaton as the transferee, and the shares were transferred to him. The company was afterwards wound up, and as it appeared that George Eaton was an infant, Dent was placed on the list as contributory in respect of these shares, and had paid 13001. for calls on them. Dent commenced an action against Nickalls to recover the 1300l., and Nickalls then filed the bill in this suit against Dent and Thomas Eaton, the father of George Eaton, alleging that Thomas Eaton was the real purchaser of the shares and liable for any loss, and praying that the action might be restrained, and that the questions might be decided in the suit. The Vice-Chancellor Stuart granted the injunction, and Dent appealed. E. K. Karslake, Q.C., and Marten, for the appellant. THE LORD CHANCELLOR thought that Dent ought not to be deprived of the opportunity of establishing his claim and of recovering, if he could, against Nickalls, merely because another person might also be liable to pay the money, and might be the person who ultimately would have to pay. The injunction must be dissolved. Solicitors: Thomas & Hollams; Morley & Shirreff. No. 34.-1870. Dec. 13. Kay, Q.C., and Locock Webb, for the petitioners. the suits were after this undertaking, in fact, the suits of the L. C. Anderson, Q.C., Fry, Q.C., and Waller, for the appellant. Roxburgh, Q.C., W. W. Cooper, A. E. Miller, and Simmonds, for other parties. Dec. 12. In re IMPERIAL LAND COMPANY OF MARSEILLES. Ex parte VINING. Reconstruction of Company-Purchase of Shares by Liquidator from dissentient Shareholders-Companies Act, 1862, s. 161. This was an appeal from an order of Vice-Chancellor Malins (ante, p. 205), by which he removed the name of Mr. J. Vining from the list of contributories of the above company, in respect of 200 shares which had been purchased from him by the liquidators under the 161st section of the Companies Act, 1862. Subsequently to the purchase an order had been made continuing the winding-up under the supervision of the Court, and additional liquidators had been appointed. The liquidators now appealed from the decision of the Vice-Chancellor. THE LORD CHANCELLOR said that the question was whether Glasse, Q.C., and Higgins, appeared for the appellants. THE LORDS JUSTICES were of opinion that the 161st section was marriage. Son. JOYCE v. RAWLINS. Dec. 5. Following Trust Funds. which had been lent to one Rawlins on a mortgage of certain real These were two suits for the recovery of certain trust funds, estate; the mortgage being made to the trustees of certain settlements and disclosing the fact that the mortgage-money was held by the mortgagees upon trust. Some years afterwards Rawlins made a second mortgage of part of the same property to two persons named Stockwell and Dec. 14. Lamb, concealing the first mortgage from them. The fraud was not discovered for some time, and it appeared that before making the mortgage to Stockwell and Lamb, Rawlings had induced the surviving trustee of the first mortgage to execute a reconveyance to him. This reconveyance was not disclosed to Stockwell and Lamb until after the discovery of the frand, and was not stamped until the hearing of the cause. The question was, whether the plaintiffs, the trustees, could claim priority over Stockwell and Lamb, who had thus acquired the legal estate, and had no actual notice of the plaintiffs' title at the time when they advanced their money. In 1866, J. T. Fielden filed a bill against the Northern Railway f Buenos Ayres Company, and in 1867, B. W. Jones became his olicitor in the suit. J. T. Fielden becoming alarmed or dissatisfied as to the suit, Jones, on the 23rd of September, 1867, gave him a letter undertaking to hold him harmless as to costs. The suits proceeded until March 1869, when Fielden died. His administrator informed the defendants in the suit of the indemnity given by Jones, and the defendants thereupon presented a petition stating that the suits were frivolous and vexatious, and praying that the administrator might revive within fourteen days, and in default, that the bills be dismissed, and that in default of revivor the costs of the defendants might be taxed and be paid by Jones. The Vice-Chancellor James made an order that the administrator should revive within fourteen days, and in default the bills be dismissed without costs, and dismissed the petition as against Jones, without costs. The petitioners appealed from so much of the order as dismissed the petition against Jones. Southgate, Q.C., Bristowe, Q.C., and Kingdon, for the plaintiffs. Jessel, Q.C., and Wickens, and Sir R. Baggallay, Q.C., and Ferrers, for persons claiming to be purchasers for value without notice. Hinde Palmer, Q.C., Roxburgh, Q.C., Herbert Smith, Drewry, II. C. Ward, W. Pearson, and Swan, for other defendants. THE MASTER OF THE ROLLS held that the case was governed by Carter v. Carter (3 K. & J. 617), and that the plaintiffs were entitled to priority. Solicitors: S. W. Johnson; Johnson & Weatheralls; Prideaux ; Gedye. |