such matters as might be discovered by inspection with C. A. fact that the memorandum created an obligation dehors the will, which could not be enforced as part of the will, was not at all inconsistent with the right asserted by the Court, on the principle above referred to, to intervene to prevent an unrighteous insistence upon a primâ facie legal right. The Court did not wait to give effect to an equity which displaced the Statute of Frauds until after the rights of the parties had been disposed of on the footing of the statute. So it seemed to his Lordship to be wholly consistent with the admission, that nothing dehors the will could be treated as part of the will, May 12. that the Court should intervene to prevent a legatee from committing a fraud, by insisting on his rights under the will to the prejudice of his cestui que trust. Why should the Court renounce its jurisdiction over the legatee to compel him to perform his trust because he was engaged in assisting at the distribution of assets under the will? He was not emancipated from its jurisdiction because he was engaged in that process, and the Court would not, his Lordship hoped, be deterred from exercising this collateral jurisdiction by the fear that in so doing it might indirectly give effect to the wellascertained intention of the testator, not expressed on the face of the will, but not inconsistent with it. In re MADDOCK. LLEWELYN v. WASHINGTON. Administration of assets-Order of administration-Insufficiency of general personalty-Trust of specific part of residue created by memorandum dehors the will. Appeal against the decision of Kekewich J., [1901] W. N. 118; [1901] 2 Ch. 372. A testatrix by her will, made in January, 1897, appointed Susan Washington and two other persons her trustees and executors, and she devised her real estate and bequeathed the residue of her personal estate to Susan Washington absolutely. By a memorandum in writing, signed by her a few days after the execution of her will, and attested by Susan Washington only, the testatrix created a trust of a specified part of her residuary personalty in favour of other persons. Susan Washington admitted that this trust was binding upon her. The testatrix died in December, 1898. Her residuary personal estate (other than the part affected by the trust) was insufficient for the payment of her debts, and the question arose whether the deficiency was payable out of the specific property affected by the memorandum and the real estate rateably, or how otherwise. Kekewich J. held that though the trust created by the memorandum was of a specific fund, yet as it was not a specific bequest, but arose dehors the will, the cestuis que trust were not entitled to have the trust property exonerated for their benefit. The whole of the personalty bequeathed to Susan Washington must for this purpose be treated as residue, and the debts were primarily payable out of it. The cestuis que trust under the memorandum appealed. Renshaw, K.C., and Vaughan Hawkins, for the appellants. STIRLING and COZENS-HARDY L.JJ. read judgments to the same effect. Solicitors: Ridsdale & Son, for Heaton & Son, Burslem Hicklin, Washington & Pasmore. C. A. W. L. C. May 13. In re AN ARBITRATION BETWEEN THE BWLLFA AND MERTHYR Lands Clauses Acts-Compensation—Arbitration-Preventing the Appeal from the decision of a Divisional Court (Ridley and Phillimore JJ.), reported [1901] 2 K. B. 798. On a case stated by an arbitrator in a reference for assessing compensation under the Lands Clauses Acts and the Waterworks Clauses Act, 1847, the Divisional Court held that, in assessing the compensation payable to the owner of coal mines for being prevented from working coal lying under the reservoir of a waterworks company, the arbitrator was entitled to take THE COURT (Collins M.R., and Stirling and Cozens-Hardy into consideration a rise in the value of coal, which took place L.JJ.) allowed the appeal. COLLINS M.R. said that the principle on which the Court in such cases reached the conscience of a legatee and compelled the performance of his trust was nowhere more clearly stated in recent times than by Lord Cairns in Jones v. Badley, (1868) L. R. 3 Ch. 362, at p. 363. It was not denied that, had the memorandum been added as a codicil to the will, it would have had the effect asserted by the appellants. The unappropriated residue of the personalty would have been applied first in paying the debts, and then the specific legatee under the codicil and Miss Washington, as specific devisee of the realty, would have contributed pro ratâ to the balance of the deficiency. On what ground, then, must the Court hold its hand, and refrain from insisting on equity being done? The after the company's notice to treat and before the award. The waterworks company appealed. B. Francis Williams, K.C., and Trevor Lewis, for the appellants. Abel Thomas, K.C., and W. D. Benson for the respondents. THE COURT (Vaughan Williams, Romer, and Mathew L.JJ.) allowed the appeal, and reversed the decision of the Divisional Court, holding that the arbitrator was only entitled to consider facts which were in actual existence at the time of the notice to treat. Solicitors for appellants: Bell, Brodrick & Gray, for C. & W. Kenshole, Aberdare. Solicitors for respondents: Wrentmore & Son, for Frank James & Sons, Cardiff. A. P. P. K. C. A. May 14. RIVER RODEN COMPANY, LIMITED v. URBAN DISTRICT Compulsory powers-Taking lands-Sufficiency of valuation of Renshaw, K.C., and F. Thompson, for the plaintiff. Stewart-Smith, K.C., and Norman Craig, for the defendant. KEKEWICH J. said that according to the view expressed by defendant would be clearly entitled to get off specific performLord Langdale in Malins v. Freeman, (1837) 2 Keen, 25, the ance; but the law had been stated somewhat differently in modern cases, and especially in Tamplin v. James, (1880) 15 Ch. D. 215, and Goddard v. Jeffreys, (1881) 30 W. R. 269. Appeal by the plaintiffs from a decision of Kekewich J., His Lordship also relied upon the summing-up of the law connoted ante, p. 86. P. O. Lawrence, K.C., and P. B. Abraham, for the plaintiffs. THE COURT (Collins M.R., and Stirling and Cozens-Hardy H. B. H. tained in Fry on Specific Performance, § 765. In this case the H. B. H. bigh Court of Justice. May 8. Vendor and purchaser-Specific performance-Mistake-Sale by The sale was attended by the defendant, a builder of Surbiton, who had come to London on purpose to bid for the Ashtead property. The defendant was somewhat deaf. A large notice stating the order of sale was affixed to the auctioneer's rostrum, and smaller notices to the same effect were distributed about the room. The auctioneer on entering the rostrum began by stating the order of sale, and then proceeded to offer for sale the Hampstead property, which was ultimately knocked down to the defendant for 4500l. The auctioneer then sent his clerk to the defendant for his name and address and proceeded with the sale of the Ashtead property. The defendant told the clerk that there was some mistake, and that he (the defendant) had bought the Ashtead property. After the Ashtead property had been offered for sale the defendant saw the auctioneer, who told him that he had in fact bought the Hampstead property, and that he must abide by his bargain. The auctioneer then requested the defendant to sign the contract, and upon the defendant's refusal to do so signed it on his behalf. The defendant repudiated his liability on the ground of mistake. The substantial question was whether the defendant could be compelled to specifically perform his contract, or Bankruptcy-Property of bankrupt-Money paid to creditor by bankrupt's solicitors-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 44. On the 24th of January, 1901, a bank, who were creditors of the debtor for 1000., presented a bankruptcy petition against him grounded on an act of bankruptcy committed by him the previous December. Negotiations ensued between Messrs. Beyfus & Beyfus, the solicitors of the debtor, and Mr. Salaman, the solicitor of the bank, with a view to obtain the dismissal of the petition. Messrs. Beyfus & Beyfus stated that the debtor's relatives were very wealthy, but that the debtor himself had no money, and offered 3001. on account of the debt on condition that the petition was dismissed, adding, "We shall have to find the money." Mr. Salaman accepted this offer, believing that the 3007. so to be provided was not the debtor's money. Accordingly, on the 15th of February, 1901, Messrs. Beyfus & Beyfus handed their cheque for 3001. to Mr. Salaman, and the petition was dismissed. As a matter of fact, the debtor had on the 14th of February executed a charge on his property in favour of Messrs. Beyfus & Beyfus to secure 3001. stated to be then advanced to him by them, and it was this sum which Messrs. Beyfus & Beyfus had paid direct by their cheque to Mr. Salaman. Shortly afterwards the debtor was adjudicated bankrupt on an act of bankruptcy committed on the 6th of March, 1901, and the trustee in bankruptcy now claimed that the bank should refund the 3001. as part of the property of the bankrupt received by them with notice of an available act o bankruptcy. Reed, K.C., and Carrington, for the trustee, relied on In re Snyder, (1891) 8 Morr. 127. Muir Mackenzie and J. G. Joseph, for the bank, argued, contra, that In re Snyder was questioned in In re Rogers, (1891) 8 Morr. 243, 248, and that the 3007. never became part of the general WRIGHT J. held that the application of the trustee failed. The 3001, never came into the hands of the debtor, and clearly was never intended to come into his hands. Messrs. Beyfus & Beyfus would never have consented to its being applied in any way except for the express purpose for which it was advanced. Under the circumstances, the money never became part of the general assets of the debtor. Solicitors: King, Wigg & Co.; Salaman, Fort & Co. Farwell J. H. L. F. May 8. In re DICKINSON'S TRUSTS. According to the present practice the appointment of a properly qualified unmarried woman to be a trustee by the Court is not limited to cases in which no other trustee can be found. This was a summons for the appointment of new trustees of four legacies of 1500l. each, given by the will of William Dickinson, who died in 1842, to each of his four daughters for life, with remainder to her children as she should appoint, with remainder to her children living at her death in equal shares, the issue of any children then dead leaving issue taking the share their parents would have taken if living. The testator's daughters were all dead, and had made wills as to which questions were raised whether the powers of appointment were exercised. The summons was taken out by two grand-daughters of the testator, who were unquestionably entitled to shares in the legacies, and they and the persons who supported the application were in any event entitled to much the greater part of the legacies. The proposed new trustees were Mr. Stickney, a land agent, and Miss Taylor, an unmarried woman of middle age, who was described as a teacher and lady's companion. There was evidence that Miss Taylor was a very capable woman and well used to business. The application was opposed by G. W. Dickinson, a beneficiary who was only entitled to a very small share of the legacies. He proposed the appointment of two men, who had consented to act and were admittedly unobjectionable persons. Wheeler, for the summons. Rashleigh, for the beneficiaries supporting the application. Adams, for G. W. Dickinson. The Court will not appoint a woman trustee, even when unmarried, unless another person willing to take the office cannot be found: Brook v. Brook, (1839) 1 Beav. 531; In re Peake's Settled Estates, [1894] 3 Ch. 520. FARWELL J., said that the position of women had been considerably altered since Brook v. Brook was decided; he had frequently appointed unmarried women trustees in chambers. In this case he had looked at the affidavits, and was satisfied that Miss Taylor was perfectly capable of acting in the trust. The interest of the opponent was not sufficient to give him any right to override the wishes of the applicants, and the appointment must be made as asked by the summons. Solicitors: Steavenson & Couldwell, for Iveson & West, Hull; Arthur Pearce; Woodhouse & Davidson. J. R. B. May 14. Farwell J. Company-Reduction of capital-Losses to be borne in proportion to capital paid up on shares-Shares of same class with different amounts paid-Deferred shares. This was a petition to sanction a reduction of capital by cancelling lost capital. The capital of the company was 1,000,000., divided into 2000 deferred shares of 11. each, and 99,800 ordinary shares of 107. each. 37,712 of the ordinary shares had been issued; of these 1123 were issued to vendors as paid up to the extent of 51. per share. 21. per share had been paid on the rest of the ordinary shares. The deferred shares were all issued to subscribers of the memorandum of association as fully paid. The articles of association provided, that if the corporation should be wound up and the surplus assets should be insufficient to repay the paid-up capital, such surplus assets should be distributed so that as nearly as might be the losses should be borne by the members in proportion to the capital paid up, or which ought to have been paid up, on the shares held by them respectively at the commencement of the winding-up. The profits were directed to be applied first in paying a dividend of 10 per cent. on the ordinary shares; half the surplus was to belong to the founders' shares; the other half, after payment of such extra remuneration to the directors as might be determined by general meeting, was to belong to the holders of ordinary shares. The reduction proposed was to write off lost capital by reducing all the ordinary shares, issued and unissued, to 87. 10%, with 37. 10s. paid upon the ordinary shares, upon which 5. had been credited as paid, and 10s. paid upon the ordinary shares, upon which 21. had been paid. The founders' shares were left unaffected. Upjohn, K.C., and W. A. G. Woods, for the petition. Jenkins, K.C., and Martelli (for shareholders opposing), contended that all the shares, including the founders' shares, ought to be reduced in proportion to the amounts paid up, therefore the scheme could not be sanctioned. and FARWELL J. said that the general rule when the Court has to consider a reduction of capital is to see that the loss is divided between different classes of shares in accordance with the rules which would prevail in case of the winding-up of the company. That was laid down in Bannatyne v. Direct Spanish Telegraph Company, (1886) 34 Ch. D. 287. the In this case the articles specially provided that in a windingup losses must be borne in proportion to the amount of capital paid up. As regarded the deferred shares, as a reduction in their nominal amount would make no difference in the dividends and the proportionate reduction would only amount to 1s. per share, he did not think the objection was fatal proposed reduction; but, as between the ordinary shares with 57. paid and those with 21. paid, the difference was important, and he was bound to withhold his sanction to the reduction. The petition was, therefore, dismissed with costs. Solicitors: Greenwood & Greenwood; R. Chapman. J. R. B. NOTICE TO SOLICITORS. MORTGAGE. POOR LAW. Settlement-Capacity of deserted wife to acquire a settlement — With the view of insuring the greatest possible accuracy and Portion-Priority-Mortgage by direction of Court to raise two out of three portions charged on real estate. rapidity in the various publications connected with the LAW REPORTS, the Council will be obliged, if the Solicitors to whom application is made by any Reporter acting for the Council will as soon as possible after application furnish the necessary Papers, together with any information in their power as to the names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. REVENUE. Entailed estate-Money he'd in trust to purchase lands, to be entailed-Settlement estate duty-Finance Act, 1894 (57 & 58 Vict. c. 30), s. 23, sub-ss. 14, 15, 16 Income tax . Company-Interest from foreign investmentsReceipt in the United Kingdom-Income Tax Act, 1842 (5 & 6 Vict. c. 35), s. 100, Sched. D, Fourth Case PAGE 108 106 106 106 SETTLED LAND ACT. PAGE C. A. 107 Farwell J. 109 Buckley J. 110 Joyce J. 110 106 106 Capital money—Investment-Tenant for life-Right to direct 110 110 SOLICITOR. . H. L. Kekewich J. GLASGOW, RESPS. . H. L. 106 WILL. INDEX OF SUBJECT-MATTER. ADMINISTRATION. C. A. 107 Gift of residue to members of a class living at period of distribution-Settlement of "the share" of one of the class on her and her children—Death before period of distribution—Construction of will PAGK 109 109 106 107 COURT OF APPEAL. RECORD OF BUSINESS. COURT I. FRIDAY, May 16. 107 THURSDAY, May 29. Morris v. Darcy Lever Coal Company, Limited, and The Northern COURT II. TUESDAY, May 27. Brooks & Co. v. Lycett. Appeal from Joyce J. Dismissed. In re McMurdo. Penfield v. McMurdo. Appeal from Swinfen Eady J. Part heard. WEDNESDAY, May 28. In re McMurdo. Penfield v. McMurdo. Appeal from Swinfen Eady J. In re Sidebottom. Beeley v. Waterhouse. Appeal from Buckley J Cur, adv. vult. Richards v. De Winton. wich J. Part heard. Richards v. De Winton. Richards v. Evans. Appeal from Keke within the meaning of the Finance Act, and was not liable as such to settlement estate duty. Agents for appellant: Solicitors for Inland Revenue for Scotland and England. Agents for respondents: Martin & Leslie, for Blair & Cadell, G. J. W. W.S., Edinburgh. May 15. PARISH COUNCIL OF RUTHERGLEN, APPS.; PARISH COUNCIL OF Poor law-Settlement -Capacity of deserted wife to acquire a A. Graham Murray, L.A., A. Orr Deas (both of the Scottish. Bar), and W. Craig Henderson, for the appellants. T. Shaw, K.C., Avon Clyde, K.C., and R. B. Pearson (all of the Scottish Bar), for the respondents. THE HOUSE (Earl of Halsbury L.C., and Lords Macnaghten, Shand, Davey, Brampton, Robertson, and Lindley) reversed the decision of the majority of seven judges of the Court of Ses-ion, (1901) 3 F. 705, holding that a wife when deserted by her husband has no capacity to acquire a parochial settlement. Agents for appellants: Burchells & Co., for Montgomerie & Flemings, Glasgow, and H. B. & F. J. Dewar, W.S., Edinburgh. THURSDAY, May 29. Agents for respondents: Grahames, Currey & Spens, for R. P. Richards v. Evans. Appeal from Keke. Lamond & Turner, Glasgow, and Charles George, S.S.C., burgh. wich J. Stands over. Le Mesurier v. Le Mesurier. Appeal from Kekewich J. Dismissed. Edin G. J. W. May 16. GRESHAM LIFE ASSURANCE SOCIETY, APPS.; BISHOP, RESP. Revenue-Income tax-Company-Interest from foreign investments-Receipt in the United Kingdom- Income Tax Act, 1812 (5 & 6 Vict. c. 35), s. 100, Sched. D, Fourth Case. Sir E. Clarke, K.C., and Haldane, K.C. (Stewart-Smith with them), for appellants. Sir R. Finlay, A.-G., and Rowlatt (Sir E. Carson, S.-G., and Danckwerts with them), for respondent. THE HOUSE (Earl of Halsbury L.C., and Lords Macnaghten, Shand, Brampton, and Lindley), after consideration, reversed the decision of the Court of Appeal, [1901] 1 K. B. 153, holding that the interest on foreign securities paid abroad is not liable to income tax, unless it is received in the United Kingdom in specie or in a remittance payable in the United Kingdom. of Solicitors: Devonshire, Monkland, Davies & Sanders; Solicitor J. M. M. May 16. COOPER & CRANE, APPS.; WRIGHT, RESP. Employer and Workman-Compensation-Undertakers—-Sub-contractor-Liability of sub-contractor to indemnify undertakers— Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), ss. 1, 4, 7. THE HOUSE (Earl of Halsbury L.C., and Lords Macnaghten, Shand, Brampton, Robertson, and Lindley) affirmed the decision of the First Division of the Court of Session (as the Court of Exchequer in Scotland), (1901) 3 F. 440, holding that money The appellants undertook the building of a house, and made vested in trustees for the purpose of purchasing lands in a sub-contract with the respondent that he should do the Scotland or England, to be entailed, was not " entailed estate" slating. A labourer employed by the respondent to convey |