MONDAY, June 2. Bayfisher Steamship Company, Limited v. Mersey Docks and Harbour TUESDAY, June 3. Cross v. Corporation of Leeds. Appeal from Bucknill J. Allowed. Fletcher v. London United Tramway, Limited. Appeal from County St. George v. Lighting Corporation, Limited. During the sittings of the Courts THE WEEKLY NOTES will be publisked on Saturday, and will generally comprise Notes of Decisions up to and Appeal from County including those of the previous Thursday. All cases of permanent interest noted therein will be reported in full in THE LAW REPORTS. Dismissed. Fairey v. Rathe. Appeal from County Court. Waby v. Sheffield Mineral Water Syndicate, Limited. Appeal from Supreme Court of Judicature. County Court. Dismissed. Goodwin v. Scruttons, Limited. Appeal from County Court. Allowed. COURT OF APPEAL. WEDNESDAY, June 4. Redden v. Siddall & Hilton, Limited. Appeal from County Court. Clatworthy v. R & II. Green, Limited. Appeal from County Court. C. A. Dismissed. Burnett v. Drury Lane Theatre, Limited. Appeal from County Court. Newman v. Mayor, &c., of Southampton. Appeal from County Court. Tansill v. Howell. Appeal from County Court. Dismissed. THURSDAY, June 5. May 27, 28. In re McMURDO. E. McMurdo, the testator in this action, died in 1889 insolvent, and on the 25th of July, 1889, an order was made for the Jewell v. Great Western Railway Company. Appeal from County administration of his estate. The present appellant was a Court. Allowed. Needham v. Leeder. Appcal from County Court. Case remitted. Foxe v. Manzell. Appeal from County Court. Dismissed. creditor for 47,000l., as security for which he held (inter alia) shares and debentures in the Delagoa Bay and East African Railway Company. The railway had been se zed by the Portuguese Government, and an arbitration tribunal was appointed in June, 1891. The appellant declined to prove for his debt, Marshall v. F. W. Rudeforth. Appeal from County Court. Part heard. and stated that he preferred to rely upon his securities. On the 15th of December, 1893, the chief clerk filed his certificate, in which the appellant's claim was entered as disallowed. Nothing was done till the award in the arbitration was made in 1900, and resulted in the appellant receiving only 1418. In December, 1900, he took out a summons for leave to prove, and this was dismissed on the 16th of December, 1901. There was no appeal from this decision. On the 14th of January, 1902, the appellant took out a summons to vary the certificate by allowing Sent his claim, and that he might be at liberty to prove for his debt. The summons was dismissed in chambers; the appellant moved to discharge the order, and on the refusal of the motion by Swinfen Eady J. he appealed. Appeal City Estates Company, Limited v. Jaffray. Appeal from Kekewich J. Muir Mackenzie and R. J. Parker, for the appellant. Upjohn, K.C., and Eastwick, for a creditor having the conduct of the proceedings. Jenkins, K.C., and Whinney, for the executrix. THE COURT (Vaughan Williams, Romer, and Stirling L.JJ.) Solicitors for the appellant: Chester & Co., for Fielding & Fernihough, Bolton. Solicitors for the respondents: Rowcliffes, Rawle & Co., for Peace & Ellis, Wigan. allowed the appeal. They said that an extension of time for The Court accordingly gave leave to prove on certain terms notwithstanding the certificate. Solicitors: Hollams, Sons, Coward & Hawksley; Hurford & Employer and workman-Workmen's compensation-Winding-up of employer company-Order for payment of insurance money by insurers-Appeal, Right of-Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 5—County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 120. Appeal from the order of a Divisional Court reversing the order of a county court judge as after-mentioned. The appellant, a workman, having obtained an award of compensation against his employers, a limited company, under the Workmen's Compensation Act, 1897, the company subsequently went into liquidation. An application was thereupon made to a county court judge for an order directing payment by the respondents, the Northern Employers' Mutual Indemnity Company, as insurers in respect of the employers' liability, of a sum, which it was alleged the employers were entitled to receive from them as insurance money, in accordance with sect. 5 of the Workmen's Compensation Act, 1897. The county court judge made an order accordingly. On appeal to a Divisional Court, they reversed his order on the ground that no sum was due from the respondents to the employers as alleged. Ruegg, K.C., and Chester Jones, for the appellant, contended that no appeal lay to the Divisional Court from the order of the -county court judge. RICHARDS v. DE WINTON. E. L. May 29. Common lands-Lands taken for public undertaking-Compensation for commonable rights-Apportionment-Determination of persons interested-Jurisdiction-Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. · 18), s. 104—Inclosure, &c., of Land Act, 1854 (17 & 18 Vict. c. 97), s. 17. Appeal against the decision of Kekewich J., [1901] 2 Ch. 566. The plaintiff claimed to be solely entitled to commonable rights over parts of two commons which had been taken by a district council for the construction of waterworks. Agreements had been entered into between the council and an agent for the commoners of the two commons respectively, by which the council agreed to pay 401. per acre for the extinction of commonable rights over the lands which they required. Meetings of the commoners had been held, under the provisions of the Lands Clauses Consolidation Act, 1845, and committees had been appointed of the commoners respectively. The committees had ratified the agreements. The members of the committees were the defendants to the actions respectively. The defendants had in their hands 3000l., paid by the council for the extinction of commonable rights over the lands taken by them. The plaintiff claimed a declaration that he was entitled to the whole of the 3000l. Kekewich J. held, upon the construction of the above sections, that the committee of commoners, or, in case of difficulty, the Board of Agriculture, were the proper tribunal to determine among what persons and in what shares the compensation should be apportioned, and that the Court had no jurisdiction. The plaintiff appealed. Upjohn, K.C., and R. Rowlands, for the plaintiff. S. T. Evans, K.C., and R. J. Parker, for the defendants. Before the plaintiff's counsel had concluded their argument, the partics came to an agreement to refer it to a person to be named by them to hold an inquiry for the purpose of ascertaining the persons entitled to the fund and the nature of their interests. THE COURT (Vaughan Williams, Romer, and Stirling L.JJ.) thereupon ordered the appeal to stand over generally, with liberty to apply to restore it to the list. Solicitors: Schultz & Son, for Gwilym James, Charles & Davies, Merthyr Tydfil; Sharpe, Parker & Co., for D. T. Jeffreys, Brecon. Haldane, K.C., and F. E. Smith, for the respondents. THE COURT (Collins M.R., Mathew L.J., and Cozens-Hardy C. A. L.J.) held that an appeal lay to the Divisional Court from the order of the county.court judge by virtue of sect. 120 of the County Courts Act, 1888, and that the decision of the Divisional Court was correct. W. L. C. June 2. WIGHTWICK v. POPE AND OTHERS. G. A. Scott, for the defendants, referred to Heckscher v. Crosley, Wright J. [1891] 1 Q. B. 224. Cur, adv. vult. June 2. THE COURT (Collins M.R., Mathev L.J. and CozensHardy L J.) gave judgment to the effect that, after consultation with the other members of the Court, they had come to the conclusion that the rule of practice laid down in Heckscher v. Crosley, [1891] 1 Q. B. 224, ought no longer to be treated as binding, and that the Court would exercise in the case of applications for new trials a discretion with regard to ordering security for costs s'milar to that which they exercise in the case of other appeals: and, that being so, they were of opinion that under the circumstances of the case the application should be granted, and an order made for security for costs to the extent of 257. Application granted. Solicitors for the plaintiff: Nicol, Son & Jones. High Court of Justice. Kekewich J. CHANCERY DIVISION. In re LEGH'S SETTLED ESTATE. E. L. Bankruptcy-Taxation of costs-Solicitors' retainer-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 57, 73—Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 15. In this case Dawes & Sons actel as solicitors for Mr. Nichols, the trustce, under his instructions contained in a minute duly entered in the trustee's minute-book, and signed by the committee of inspection, as follows: "That Messrs. Dawes & Sɔns, of 9, Angel Court, Throgmorton Street, be and they are hereby appointed the solicitors to act for and on behalf of the trustee in all actions, proceedings, and applications, and generally herein on the instructions of the said trustee." Under this retainer and on instructions from the trustee, Dawes & Sons (1) attendel the public examination of the bankrupt by counsel; (2) opposed the bankrupt's discharge by counsel; (3) and brought actions against certain debtors to the estate. Subsequently, on taxation of the solicitors' bill of costs against the trustee, the taxing master disallowed all the charges in relation to the three items above mentioned, on the ground that they were not sanctioned by the retainer, which was too general in its terms. The trustee now applied that the taxing master might be directed to allow the items in question, and deposed that when the retailer was given it was fully considered by him and the committee of inspection, and was intended to embrace and apply to every matter arising in the bankruptcy on which it would be necessary in his discretion to employ a solicitor, parMay 27 ticularly as to bringing actions, if necessary, to collect outstanding accounts. Settled estate-Capital moneys-Rebuilding principal mansionhouse-Dry-rot-Salvage-Settled Land Act, 1890 (53 & 54 Vict. c. 69), s. 13, sub-s. (iv.). T. F. Hobson, for the application. WRIGHT J. confirmed the decision of the taxing master, and dismissed the application. Solicitors: Dawes & Sons. This was an application by the tenant for life of a settled estate that the trustees might be directed to pay out of capital moneys in their hands a sum of 17,1097., which had been expended by the tenant for life in rebuilding and reconstruct-Wright J. ing the principal mansion-house in consequence of dry-rot. It appeared that the dry-rot fungus had spread through the greater part of the house, and nearly the whole of it had to be taken down and rebuilt. No scheme was laid before the trustees, as it was found to be impossible to foresee the extent of the works required. The rental of the estate was 22,1537. J. Mulligan, K.C., and R. J. A. Morrison, for the tenant for life, submitted that the expenses incurred were in the nature of salvage, and that, therefore, the Court under its general jurisdiction had power to allow the entire sum asked for, and not merely the amount of one-half of the annual rental as provided by the Settled Land Act, 1890, s. 13, sub-s. (iv.). They referred to In re Willis. Willis v. Willis, [1902] 1 Ch. 15. L. F. Potts, for the trustees. In re DRUCKER. Ex parte BASden. H. L. F. May 29. Bankruptcy —Examination of witness abroad-Jurisdiction— Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 27, 105, 118. This was an ex parte application by the trustee in bankruptcy for an order under sect. 27 of the Bankruptcy Act, 1883, for the examination of the bankrupt, and his brother and mother, before the special examiner who had been appointed by the Court to take the examination of the mother at Zurich in Switzerland under these circumstances. The bankrupt was a naturalized British subject. He was on the Continent, and had not surrendered for his public examination, and declined to give the trustee any information as to his property and affairs. His mother, who was a foreigner, lodged a proof against his estate for 10,000l., supported by affidavits; but her attendance in England for cross-examination on her KEKEWICH J., being satisfied that the rebuilding of the mansion-house was necessary, sanctioned the repayment to the tenant for life by the trustees of the sum of 11,0767., being one-claim could not be obtained. half of the annual rental, but declined to allow the payment of any further sum by way of salvage. Solicitors: Philpot & Morrell, for Potts, Potts & Gardner, C. ester. C. C. M. D. On the 16th of May, on her application, an order was made for the appointment of a special examiner for the purpose of taking her evidence at Zurich in Switzerland. Thereupon the trustee applied for an order under sect. 27 as above stated. There was evidence that the bankrupt and his brother would most probably be present at the examination of their mother | that the possession of the deeds and the legal estate did not under the order of the 16th of May, and that they could give help him. valuable information as to the bankrupt's property and fortune in Holland if they would tender themselves for examination. Carrington, for the application. Rowden, K.C., and W. H. Cozens-Hardy, for the defendant, argued that the purchaser had taken all reasonable precautions, and that as between two equally innocent parties with equal equities, who had both been defrauded, the possession of the legal estate and the deeds was sufficient to protect him against the plaintiff's claim. BYRNE J. held that the contention of the plaintiff must prevail; there was a subsisting charge in his favour of which the defendant had notice prior to the payment of the purchascmoney; having this notice, it was for the defendant, or his solicitors, to be satisfied that the incumbrance was discharged before parting with the money; they were satisfied with what appeared to be, but was not in fact, sufficient evidence, and his Lordship was unable to say that the fraud practised upon them by the vendor's solicitor, Parr, enabled the defendant to stand in the same position as if he had never had notice of the charge. Solicitors: Watson, Dyer & Rydon; Shepheards & Walters. W. C. D. Farwell J. AERATORS, LIMITED v. TOLLITT. May 31. The question for decision was which of two innocent parties was to suffer by the fraud of a solicitor namel Charles Parr. The facts were shortly as follows: In January, 1897, one Joseph Taylor purchased two leasehold houses, and applied to his solicitor Charles Parr to find him 450'. to complete his purchase. The plaintiff, another client of Parr's, at Parr's Company-Name-Proposed new company-Similarity of name request found the money, and Taylor, on the 15th of January, 1897, signed a memorandum of deposit in favour of the plaintiff for the 4501. so advanced, and charged the houses comprised in the title-deeds deposited by way of equitable mortgage for securing to the plaintiff the repayment of the sum of 450%, with interest at 51. per cent. The title-deeds remained with Parr as the plaintiff's solicitor. In September, 1898, a receiving order in bankruptcy was made against Taylor, which was res inded in January, 1899. In July, 1899, Taylor contracted to sell these two houses to the defendant for 6301., Parr acting as bis solicitor in the matter of this sale. The abstract of title as delivered did not disclose the equitable mortgage of January, 1897, but, on searching the file in bankruptcy to satisfy themselves that the receiving order had been discharged, the purchaser's solicitors discovered the existence of the equitable mortgage in favour of the plaintiff, and they thereupon required it to be discharged, to which Parr replied that he should be prepared to hand over the same with a receipt indorsed on completion. On the 10th of August, 1899, the purchase was completed, and an assignment of the property by the vendor to the defendant, passing the legal estate, was executed, and at the same time the memorandum of deposit, with what purported to be a receipt, signed by the plaintiff, for all moneys due on the security, was handed over to the defendant's solicitor together with the title-deeds relating to the property. As a fact, the signature to the receipt was not that of the plaintiff, who knew nothing at all about the transaction, but was a forgery committed by Parr. Under these circumstances the question now raised was whether the defendant, having the legal estate and possession of the title-deed, was entitled to Buckley J. hold the property free from the 4501. mortgage, or whether the plaintiff as equitable mortgagee could uphold his security. Injunction-Companies Act, 1862 (25 & 26 Vict. c. 89), s. 20. for the purpose of working a certain pa'ent for the instantaThe plaintiff company was incorporated in February, 1900, neous automatic aeration of liquids, and was carrying on a the memorandum and articles of association of a new company, large business. The defendants were the seven signatories to to be called "Automatic Aerator Patents, Limited," and had The plaintiff company hearing of this, at once commenced this lodged the necessary papers for registration at Somerset House. action against the defendants, claiming an injunction to restrain them from registering a company under the title of " Automatic Aerator Patents, Limited," or in any other name so nearly resembling the name of the plaintiff company as to be calculated to deceive. It was admitted that the apparatus and patents of the defendants were different to those of the plaintiffs, but the plaintiffs objected to the use by the defendants of the word "aerator as part of the name of the new company the belief that the business of the new company was identical on the ground that it was calculated to mislead the public into with the plaintiffs' business. Norton, K.C., and T. T. Methold, for the plaintiff, contended that the defendant had purchased with notice of an incum Jenkins, K.C., and J. G. Wood, for the plaintiffs. In re 66 H. L. F. May 28. GROSVENOR" HOUSE PRO: ERTY ACQUISITION AND INVESTMENT BUILDING SOCIETY. The society was registered in 1878, under the Building to her, and in consequence of this order the bishop, acting Societies Act, 1874, and had a nominal capital of 175,000l. in under sect. 1 of the Clergy Discipline Act, 1892, declared the shares, and a paid-up capital of about 82. Prior to 1880 the vicarage to be vacant. The plaintiff disputed the validity of society became indebted to W. Stollard, a shareholder, in the this declaration. By sect. 1, sub-s. 1, of the Clergy Discipline sum of about 311. for rent, and moneys paid on behalf of the Act, 1892, "if either (d) an order for judicial separation is made society. The society did not carry on business after the year against a clergyman in a divorce or matrimonial cause, or (e) a 1880, and in 1895 its registration was cancelled under sect. 6, separation order is made against a clergyman, under the sub-s. 5, of the Building Societies Act, 1894. Stollard petitioned Matrimonial Causes Act, 1878," the bishop is required to for the winding-up of the society, alleging that it had ceased to declare the preferment (if any) held by such clergyman vacant carry on business for some years, that it was insolvent, and as from the date of the order. that its assets, so far as he had been able to ascertain, consisted By sect. 4 of the Matrimonial Causes Act, 1878, "if a husband of the sum of 731. and interest in the hands of its bankers. shall be convicted summarily or otherwise of an aggravated P. Rose-Innes, for the petitioner. assault within the meaning of the statute 24 & 25 Vict. c. 100 BUCKLEY J. said that the object of the petition was to obtain s. 43, upon his wife, the Court or magistrate before whom he payment out, for the benefit of the creditors, of the money in shall be so convicted may . . . . order that the wife shall be no the bank. Sect. 6, sub-sect. 5, of the Act of 1894 said that a longer bound to cohabit with her husband; and such order society whose registry had been cancelled should "absolutely shall have the force and effect in all respects of a decree of cease to enjoy as such the privileges of a society under the judicial separation on the ground of cruelty." Building Societies Acts, but without prejudice to any liability That section was repealed by the Summary Jurisdiction actually incurred by the society, and any such liability may be (Married Women) Act, 1895; but sect. 4 of that Act enables enforced against the society as if the cancelling.... had not a married woman whose husband shall have been convicted of taken place." And sect. 8, sub-sect. 1, said that, "notwithstand- certain assaults upon her of the character therein mentioned, ing anything in the Building Societies Acts, every society or whose husband shall have been guilty of persistent cruelty under those Acts shall be deemed to be a company within the to her, and shall by such cruelty have caused her to live apart meaning of the Companies (Winding-up) Act, 1890." The from him, to apply to a Court of summary jurisdiction for an petition was filed to enforce a liability. In In re Anglo- order under the Act; and sect. 5 empowers the Court to make American Exploration and Development Company, [1898] 1 Ch. an order containing (inter alia) a provision that the applicant 100, Vaughan Williams J. held that where the name of a com- be no longer bound to cohabit with her husband, “(which pany had been struck off the register under the Companies provision while in force shall have the effect in all respects Act, 1880, a creditor's remedy was to petition for a winding-up of a decree of judicial separation on the ground of cruelty).” order. The effect of making a winding-up order against the society would be that the official receiver would be able to get the money from the bank. The winding-up order would therefore be made, but no proceeding under it, beyond obtaining the money from the bank, was to taken without the leave of the Court. Solicitors: H. Roger Sadd. Joyce J. SWEET V. BISHOP OF ELY. F. E. May 16. By sect. 38, sub-sect. 1, of the Interpretation Act, 1889, where any Act repeals and re-enacts with or without modifici tion any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted. J. Pawley Bate, for the patrons. JOYCE J. held (1) that the provision in the Summary Juris diction (Married Women) Act, 1895, which authorized the Ecclesiastical law—Offences by clergymen-Deprivation-Separa-making of a separation order on the ground of persistent tion order by Court of summary jurisdiction-Persistent cruelty - Statute-Construction-Repeal Re-enactment with modification—Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32), s. 1, sub-s. 1 (d), (e) —Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), s. 4-Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), ss. 4, 5-Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 38, sub-s. 1. This was a motion by the plaintiff, the vicar of Cowlings, against the defendants, the bishop of the diocese, the churchwardens of the parish, and the patrons of the living, for an injunction to restrain them from acting upon a declaration made by the bishop on the 7th of March, 1902, that the vicarage was vacant. On the 28th of January, 1902, the Newmarket justices, upon an application by the plaintiff's wife, made a separation order under the Summary Jurisdiction (Married Women) Act, 1895, against the plaintiff upon the ground of his persistent cruelty cruelty, could not be treated as a re-enactment, or part of a re-enactment, with modification of the provision in the Matrimonial Causes Act of 1878, enabling a separation order to be made upon the ground of a conviction for an aggravated assault, so as to require the bishop, for the purposes of the Clergy Discipline Act, 1892, to treat a separation order under the Act of 1895 as if it had been a separation order under the Act of 1878; (2) that a separation order made under the Act of 1895 was not an order for judicial separation in a divorce or matrimonial cause within sect. 1, sub-sect. 1 (d), of the Act of 1892. He therefore held that the declaration was invalid, and granted an injunction. Solicitors: Ruston, Clark & Ruston, for A. II. & A. Ruston, Newmarket; Lee, Bolton & Lee; Cole & Jackson, for Francis, Francis & Collin, Cambridge. H. B. H. |