The trustees of the chapel filed a bill to restrain Mr. Bennett from officiating, and the Vice-Chancellor James dismissed the bill, considering that the removal ought to have been conducted according to the principles of justice, and that notice of the charges ought to have been communicated to Mr. Bennett, and also that the notice calling the second meeting was insufficient. The plaintiffs appealed. Fry, Q.C., and Ingle Joyce, for the plaintiffs. Kay, 2.C., and Wickens, for the defendant. THE LORD CHANCELLOR dismissed the appeal, both on the higher ground taken by the Vice-Chancellor, and also because the notice convening the second meeting did not sufficiently state what was to be brought forward. Solicitors: R. & W. B. Smith; Ridsdale & Craddock. Removal Meeting- M. R. DEAN v. BENNETT (Baptist Minister 272 272 V.-C. B. HEINRICH v. SUTTON (Trustees Right to defend by separate Solicitor-Contract empowering others to take Proceedings) V.-C. M. 271 269 JAMES v. ELLIS (Mortgage-Pension from East India Company— 270 272 Baptist Minister-Removal-Meeting-Notice. By the deed of settlement of the Particular Baptist chapel or church at Barnoldswick, in the county of York, it was declared that every minister should be liable to be removed by the decision of the church declared at one meeting and approved at a second meeting, of which notice should be given as therein mentioned. A meeting was summoned on the 18th of October, 1868, "for the purpose of bringing charges against, and considering the dismissal of," Mr. Bennett, the then minister. At that meeting it was resolved that in consequence of certain offences alleged to have been committed by Mr. Bennett his office as pastor should cease forthwith. This resolution was confirmed at a second meeting, the validity of the notice for which was disputed. No. 36.-1870. Will-Charitable Devise-Surplus-Exclusion of Charities. Nathaniel Lord Crewe, Bishop of Durham, by his will, dated the 24th of June, 1720, devised certain real estate, therein stated to be then of the yearly value of 1312. 13s. 5d., or thereabouts, to trustees, and he directed his trustees thereout to make certain payments for certain charitable purposes specified in the will, some of which were for the benefit of Lincoln College, Oxford, the University of Oxford, and the city of Durham; and he directed the surplus to be applied for such charitable purposes as the trustees should think fit, provided always that no part of such surplus should be applied for the increase or augmentation of any of the gifts previously made to or in favour of Lincoln College, the University of Oxford, or the city of Durham, or for any other charities in connection with them. At the death of the testator the surplus amounted to about 2007.; at the present time the net surplus amounts to considerably over 3500%. A scheme being in course of preparation for the administration of the charity, the question was raised whether the sums given to Lincoln College, the University of Oxford, and the city of Durham, by the will of the testator could be augmented. This question was now brought before the Court upon an adjourned summons. Vaughan Hawkins, for the Attorney-General. Jessel, Q.C., and Davey, for Lincoln College. Wickens, for the University of Oxford. Sir R. Baggallay, Q.C., and Winterbotham, for one of the charities named in the will. Kekewich, for the trustees. THE MASTER OF THE ROLLS held that in consequence of the direction contained in the will the sums given to the three charities could not be augmented. Solicitors: Fearon & Co.; Mallam; Rogerson & Ford; Bray, Warren, & Harding. Dec. 20.. V.-C. S. JAMES v. ELLIS. Mortgage-Pension from East India Company-Form of Decree as to Pension in case of Foreclosure. Charles Ellis, one of the three defendants-mortgagors—was. entitled to a pension of 281. granted to him by the East India Company for his life, and payable quarterly, and this was with certain reversionary interests assigned to the plaintiffs-mortgagees-to secure advances to the three defendants, the Ellises, on a joint account. The bill was for an account; for payment of the amount due, or in default for foreclosure; and for an injunction to restrain Charles Ellis from receiving the pension or any accruing payment thereof, and from authorizing any other person except the plaintiffs to receive the same; and for a receiver, or that Charles Ellis might be ordered to do all acts necessary to enable the plaintiffs to receive the same. The defendant Atkinson was a subsequent mortgagee. THE VICE-CHANCELLOR granted the injunction; ordered that the plaintiffs should be at liberty to receive the pension in the stead of Charles Ellis, they undertaking to account for the same, and decreed foreclosure; and in addition ordered that in case the defendant Atkinson should redeem the plaintiffs, and the defendants, the Ellises, should make default in paying unto the defendant Atkinson what should be found due, they should be foreclosed, and that Charles Ellis should thereupon execute an assignment to the defendant Atkinson of the pension, with an absolute and irrevocable power of attorney enabling such defendant to receive the same. Solicitors: Hooke & Street; Evans & Co.; Johnson. V.-C. S. COLMER v. EDE. Dec. 20. Mortgage-Deeds handed to Solicitor of Mortgagee for Special Purpose-Solicitor's Lien for General Costs as against Mortgagor. By an indenture of lease, mines in Wales were demised to a Mr. Phelps for twenty-one years from the 24th of June, 1864, at a rent of 507. in case one-twelfth part of the produce of the minerals should not amount to that sum. In January, 1868, Mr. Phelps mortgaged the mines and all the machinery, plant, carts, waggons, erections, and buildings, and every other thing upon the premises, to the plaintiff for the residue of the term to secure 1617. and 10 per cent. interest. Mr. Phelps was in November, 1868, adjudicated bankrupt, and the defendant Ede was appointed assignee. ■ The deed of 1868 was not registered under the Bills of Sale Act, and Mr. Phelps remained in possession. Mr. Stretton, a solicitor, claimed a lien on the deeds relating to the premises, and which were handed to him for the purposes of the mortgage, in respect of costs incurred while he was acting as the solicitor of Mr. Phelps, and he was, by amendment, made a defendant, but he admitted the plaintiff's right to priority. This was a bill for an account; payment; foreclosure, or sale. Dickinson, Q., and Begg, for the plaintiff. Greene, Q.C., and J. T. Prior, for the defendant Ede:-The deeds were handed to Stretton for a special purpose; that of obtaining money on mortgage from the plaintiff, and he had no right to hold them except for the plaintiff, and therefore he had no right of lien. As the deed of 1868 was not registered as a bill of sale it was, as regarded the chattels, void as against the assignee in bankruptcy, and the decree ought therefore to be limited to the leasehold premises. Wickens, for the defendant Stretton. THE VICE-CHANCELLOR was of opinion that Mr. Stretton had a right to a lien on the deeds, and ordered an account of what costs (if any) were due to him, and of what was due to the plaintif upon his security. Should there be nothing due to Stretton his claim to a lien would be at an end, but if there should be anything due to him and he did not redeem the plaintif he would be foreclosed, and then if the defendant Ede did not redeem he would be foreclosed. There was nothing to justify any particular direction as to what passed by the deed of 1868. If the chattels did not pass, they would not be foreclosed. Solicitors: C. M. Stretton; Vaughan Prance. in trade, and what he should die possessed of, to his wife for life, and directed that at his wife's death all the interest accruing from his property, real and personal, should be divided equally between his seven children for their lives and the survivors, so that the last survivor should become possessed of all such interest. After the death of the survivor the property was to be sold and divided, in manner directed, amongst the children of the tenants for life. In April, 1851, there was a decree made in a suit for administration, and a receiver was appointed. There was standing in the name of the testator at his death a sum of 30381. 16s. 87. East and West India Dock Stock, and it formed part of his residuary estate. Prior to February, 1865, three bonuses of 301. 7s. 9d. each in respect of this stock were declared by resolution of the proprietors at their half-yearly meetings. The evidence showed that there was no provision in the company's Act making such bonuses payable in the nature of a return of capital, but that they formed a portion of the profits of the company. By an order made in the cause on the 8th of February, 1865, a sum of 917. 3s. 34., consisting of the three bonuses, was ordered it accrued due should be divided amongst the surviving tenants to be invested in 37. per cent. annuities, and that the interest as for life, and it was invested accordingly in the purchase of 1007. 9s. annuities. Since the investment, four further bonuses had been declared, amounting to the sum of 1217. 11s. The tenants for life were advised that the order for the investment of the bonuses was a mistake on the part of the gentleman who in 1865 represented them in the matter, and they, into Court) asking that, notwithstanding the order made in in November last, took out a summons (which was adjourned proceeds paid to them. February, 1865, the 100%. 9s. annuities might be sold and the Bagshawe, for the tenants for life. Owen, for the persons entitled in remainder. bonuses were profits, and as it was not shewn that these profits THE VICE-CHANCELLOR said the evidence shewed that the did not accrue after the death of the testator the bonuses belonged to the tenants for life as income, and so much of the order of February, 1865, which ordered the investment would accrued during the life of the testator, then they would have be discharged. If it had been shewn that these profits had formed part of the corpus of his estate. Solicitors: Fewo & Co. LEE . LANCASHIRE AND YORKSHIRE RAILWAY COMPANY. Railway Accident—Compensation-Compromise without sufficient Information—Restraint against setting up Release of Claims. defendants in September, 1855. He was attended by three The plaintiff had met with an accident on the railway of the medical gentlemen, one of whom was the medical officer of the company. With their sanction and approval he applied for and received a sum of 400′, by way of compensation for the injury he the company. It afterwards turned out that the accident had had sustained, and gave a receipt in full for all demands upon had more serious results than were anticipated, and there was evidence to prove that the spinal cord had received a severe shock, the effects of which were likely to be permanent, and that the plaintiff had become subject to fainting fits and violent pains in the neck; and had suffered from deafness and loss of the power of speech for several months. He alleged that he had He had brought an action against the company to recover a sum sustained heavy pecuniary losses in consequence of this illness. of 3000, and the present bill was filed to restrain the defendants from pleading the receipt as a bar to his claim. Numerous affidavits were filed on both sides, and several witnesses were cross-examined in court. From the evidence of the surgeons it appeared that some doubt existed in their minds as Glasse, Q.C., and Methold, for the plaintiff. THE VICE-CHANCELLOR was of opinion that the plaintiff at the time he entered into the compromise with the company was not in a fit condition to treat for himself, and ought to have had the advice of disinterested persons other than medical men. If a man was to be bound by the compromise of a doubtful right, he should be fully informed of all circumstances known by the other parties to the contract, whereas in this case, while the medical men feared that there was an injury to the spine which might result in permanent mischief, Mr. Lee had signed the release in the belief that he would recover in three or four months. The company, therefore, possessed knowledge which ought to have been communicated to the plaintiff, and this was sufficient to induce the Court to interfere. His opinion upon the evidence was, that no fraud had been committed by the plaintiff, but the defendants could set up this case upon the trial at law. He should therefore restrain the company from pleading the release to the action, and they must pay the costs of this suit. Solicitors: Ley & Brocklesby; Clarke & Co. V.-C. M. sufficient to release them from liability. The application must V.-C. M. Dec. 20. THAMES PLATE GLASS COMPANY v. LAND AND SEA TELEGRAPH COMPANY. Suit against Company-Winding-up-Leave to continue Suit. This was an application for leave to continue a suit against a company notwithstanding a winding-up. The suit was by a vendor for specific performance. The bill was filed in June, 1870, and on the 23rd of June an injunction was obtained restraining the defendant company from prosecuting an action at law to recover the deposit. The interrogatories were filed on the 24th of June, 1870. On the 21st of July, 1870, no answer having been put in, a resolution was passed for a voluntary winding-up, and on the 5th of August, 1870, an order was made to continue the winding-up under the supervision of the Court. Cotton, Q,C., and Cracknall, supported the application. Glasse, Q.C., and Kekewich, for the defendant company. THE VICE-CHANCELLOR Considered that, under the circumstances, the balance of convenience was in favour of allowing the Dec. 19. suit to go on till an answer was put in. He therefore gave the plaintiff liberty to enforce an answer, if not filed within a month, but directed that no further proceedings should be taken withSolicitors: Tilleard, Godden, & Holme; Watkins, Baker, & Baylis In re IMPERIAL LAND COMPANY OF MARSEILLES. Contributories These were adjourned summonses on the application of Mr. James Levick and Mr. J. White, that their names might be removed from the list of contributories settled by the liquidators of the Imperial Land Company of Marseilles. Mr. Levick and Mr. White had both been directors of the Credit Foncier and Mobilier of England, who were the promoters of the Imperial Land Company. In January, 1866, when the company was brought out, they had signed the memorandum and articles of association for fifty shares each, in order that the company might be registered, which was done on the 16th of January, 1866. The directors of the company were appointed on the 22nd of February, 1867. Neither Mr. Levick nor Mr. White had otherwise acted as directors, nor had they attended any meeting of the company, nor had they received any allotment of shares, or made any payment in respect of such shares. Levick had received a notice in July, 1869, from the liquidators of their intention to settle him upon the list of contributories in respect of fifty other paid-up shares held by him, to which he made no objection; but no notice had been sent to either of the claimants of the intention to place their names on the list in respect of the shares for which they had subscribed the articles of association. They therefore submitted that they had been improperly placed on the list as regarded such shares. Cotton, Q.C., and Waller, for Levick. Bury, for White. Glasse, Q.C., and Higgins, for the official liquidator. THE VICE-CHANCELLOR said that in all cases where persons signed the memorandum and articles of association they bound themselves to take shares, and it was the duty of the liquidator to place their names upon the list of contributories. It had been said that they had not acted as directors, but they were in fact directors for about five weeks, until the appointment of those who were subsequently nominated, and it was their duty during that time to see that the shares were duly allotted. He did not think that the delay which had occurred in giving these gentlemen notice that they would be treated as contributories was Dec. 22. V.-C. M. Higgins moved on behalf of Mr. Henshaw, one of the defendants to the suit, that an appearance entered to the bill in his name might be withdrawn, on the ground that it was entered without his knowledge or consent, and that the solicitor by whom such appearance was entered might be ordered to pay the costs. The suit was instituted against Mr. Henshaw and two other persons, as trustees of the National Bank, by the cestuis que trust of certain property which had been conveyed to the defendants on behalf of the bank, for the purpose of impeaching the title of the bank, on the ground of a trust of which the bank had notice. The bill was filed in June last, and an appearance was entered for the three trustees by Messrs. W. Tatham & Son, the solicitors of the bank. It was submitted on behalf of Henshaw that he had a right to choose his own solicitor, and was not bound to trust his defence to the solicitors of the bank. Cotton, Q.C., and Marten, for the bank, contended that, although as a general rule a man had a right to the choice of his solicitor, in this case Mr. Henshaw had by contract placed himself in such a position that he was bound to appear by the solicitor appointed by the bank. Mr. Henshaw had been for thirty years a director of this bank, but had now retired from the direction; he had signed the deed of settlement, under which the directors had power to order and direct any legal proceedings to be taken or defended on account of the bank, and to order all necessary parties to bring or defend such proceedings. The bank would indemnify Mr. Henshaw against the costs occasioned by the proceedings, and, acting as a trustee, without any interest in the matter, he had no right to defend a suit brought against the bank in such a way as to prejudice their rights, as he might do, if he were Sir R. Palmer, Q.C., Wickens, and Lemon, for the official liquida- THE VICE-CHANCELLOR said there was no doubt that a man THE VICE-CHANCELLOR said that Mr. Spencer either knew or Dec. 21. Ex parte GRIFFITH. Claim in the same winding-up by Messrs. Rawlinson, Stringer, and Dimond, assignees, in August, 1855, of two policies effected by Major Julius George Griffith on his life for two sums of 15007. and 10007., without profits, and as holders of a third policy, effected by themselves on the same life, for 10007., also without profits, with the Medical society, all on the 2nd of May, 1855. Upwards of four years after the amalgamation with the Albert, the secretary of the united company in February, 1865, wrote asking Mr. Dimond to send in the policies to be indorsed or exDec. 21 changed. Mr. Dimond sent the policies, requesting to receive them back, "as soon as the necessary indorsements should have been made thereon." The secretary then sent certain certificates, to be appended to the policies, and requiring the assignees' signature. By these, they were required to certify that they had agreed to the transfer, and to pay future premiums to the united company. On the assignees' behalf, Mr. Dimond declined to sign the certificates, and the policies were returned to him without any indorsement. Premiums were regularly paid at the office of the Albert. The life had now become uninsurable. Companies-Amalgamation—Novation-Trust Funds. Mr. Spencer did not take a substituted policy in the Albert, He claimed, 1, to be a general creditor of the Medical; 2, to have a charge upon both the Indian and English portions of the fund. Fry, Q.C., and J. D. Bell, for the claimant. ¡ The assignees claimed to be creditors for the 3500, or, at all events, for 32767., the amount of premiums paid. Fry, Q.C., and Caldecott, for the claimants. Wickens, and Lemon, for the official liquidator of the Medical. THE VICE-CHANCELLOR said that the dispute between the parties as to the form of the indorsement could not displace the fact that it was intended in the year 1865 that the policy should be returned to the assignees with an indorsement of some kind; and held that the claimants had lost their rights against the assets of the Medical. Summons dismissed; but costs reserved, pending an inquiry whether, considering what took place in chambers, this was to be regarded as a representative case or not. Solicitors C. J. Dimond; Kendall. to the Bank of Londen (which had never been completely registered), and in 1858 the Bank of London transferred its business and assets to the Albert Company, which took upon itself the liabilities of the former company, and carried on business until it was ordered to be wound up in September, 1869. The premiums upon Carrol's policy were paid by Fleming to the Albert from 1858, and in 1863 a bonus was declared upon the policy, notice of which was sent to Carrol, but was not directly traced to Fleming. In June, 1869, Carrol died, and Fleming applied to the Albert for payment of the policy. The Albert insisted upon making a reduction from the sum assured, by reason of the age of Carrol having been understated, and in the result the policy was not paid before the Albert stopped payment. In December, 1869, Fleming presented a petition for winding up the National and Provincial Society. This petition was heard by Vice-Chancellor Malins, together with another petition for the same purpose by one Kettle, an annuitant. The society was ordered to be wound up on Kettle's petition, but no order Fry, Q.C., and Wickens, in support of the claim. THE VICE-CHANCELLOR held, that the evidence of conduct on the part of Fleming was sufficient to establish the substitution of the Albert in place of the National and Provincial, and his deliberate and conclusive adoption of the Albert as his debtor in respect of the policy. The Manchester and London Life Assurance Company's Case (Law Rep. 5 Ch. 640) was so different in its facts that the present case was not governed by it. The claim must be dismissed. Costs out of the estate. Solicitors: Mackenzie, Trinder, & Co.; Deane & Chubb. END OF THE WEEKLY NOTES FOR 1870. |