The Oceanic. Waterford Steam Ship Company, Limited v. Oceanic The Posen. Owners of Inchkeith v. Owners of Posen. Appeal from THURSDAY, June 19. House of Lords. June 12. The Posen. Owners of Inchkeith v. Owners of Posen. Appeal from COURT II. THURSDAY, June 12. RENNIE & SON, APFS.; NESS & Co., RESTS. Evidence, Credibility of—Breach of verbal contract—Rise in price of coal. The appellants brought this action against the respondents for damages for breach of contracts for the sale of coal. The chief contract was made verbally for 12,000 tons of coal; the respondents contended no such contract existed. The Statute of Frauds does not apply to Scotland The Lord Ordinary (Lord Stormonth-Darling) on the 3rd of April, 1901, held that the verbal contract was made out; but his decision was re Badische Ani'in und Soda Fabrik v. W. G. Thompson & Co., Limited, versed on the 8th of November, 1901, by the Second Division and Others. Appeal from Buckley J. Dismissed. In re Irvine & Coles' Contract and Vendor and Purchaser Act, 1874. Chaytor v. Trotter. Appeal from Kekewich J. Allowed. of the Court of Session, Scotland. A. Graham Murray, L.A., and J. C. Guy (bɔth of the Scottish Bar), for the appellants. Haldane, K.C., and W. Hunter (of the Scottish Bar), for the respondents. THE HOUSE (Earl of Halsbury L.C., and Lords Macnaghten, Second Division and restored the Lord Ordinary's interlocutor, Shand, Robertson, and Lindley) reversed the decision of the holding that in a question of the credibility of evidence the judge who has seen and heard the witness examined is always the best judge of the credit which ought to be attached to his testimony. Agents for appellants: Keeping & Gloag, for A. C. D. Vert, S.S.C., Edinburgh. Agents for respondents: Grahams, Currey & Spens, for Joha C. Brodie & Sons, W.S., Edinburgh. G. J. W. June 17. FARQUHARSON BROTHERS & Co., A1 PS.; J. KING & Co., RESPS. Sale of stolen goods-Estoppel -Loss to one of two innocent persons through fraud of a third person-Power of disposition of goods given to a clerk. Asquith, K. C., and Danckwerts, K.C. (W. Whately with them), for appellants. Lawson Walton, K.C., and Cababé, for respondents. THE HOUSE (Earl of Halsbury L.C., and Lords Macnaghter, Shand, Robertson, and Lindley) reversed the decision of the Court of Appeal, [1901] 2 K. B. 697, and restored the judgment of Mathew L.J., holding that the appellants were not estopped from claiming the timber as their own, the timber having bee Robinow v. London and Northern Bank, Limited. Appeal from stolen from them by their clerk and sold without authority to Buckley J. Part heard. During the sittings of the Courts THE WEEKLY NOTES will be published on Saturday, and will generally comprise Notes of Decisions up to and including those of the previous Thursday. All cases of permanent interest noted therein will be reported in full in THE LAW REPORTS. the respondents, who got no better title to the timber than the clerk had, and to whom the appellants had made no representations by words or conduct. Solicitors: Ward, Perks & McKay; Anning & Co. J. M. M. steps when the pipe fell upon his foot and inflicted a wound on Supreme Court of Judicature. his toe. He was an out-patient at the hospital until the 17th C. A. COURT OF APPEAL. of September, when erysipelas supervened in the wound, and he died on the 27th of September. The medical evidence was to the effect that the cause of death was blood-poisoning caused by erysipelas; that erysipelas was a very unusual consequence June 3 of a wound of this kind; that the theory was that erysipelas was caused by the introduction of a germ, and would appear in six to ten days at the latest, and that, if erysipelas did not wound must have been re-opened, or erysipelas must have been appear until fifteen days after the wound was inflicted, the due to some later cause. The county court judge held that the applicant was not entitled to compensation on the ground that death was not the result of the accident, i.e., that it was not the natural or probable consequence. FLETCHER v. LONDON UNITED TRAMWAYS, LIMITED. Employer and workman-Workmen's compensation--" Engineering work"-" Railroad". Tramway-Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 7. Appeal from a decision of the county court judge of Brentford upon an application for compensation under the Workmen's Compensation Act, 1897. The applicant was a workman in the employment of the respondents. The respondents had obtained powers under the Light Railways Act, 1896, to construct a light railway along the road from Uxbridge to Hanwell. Subsequently the London Unitel Tramways Act, 1900, was passed, which authorized the respondents to construct a tramway along the road from Hanwell to Acton, forming a continuation of the authorized light railway. The tramway was to be worked by electrical power. The Act incorporated sect. 3 and Parts II. and III. of the Tramways Act, 1870. The applicant was employed by the respondents on the construction of the tramway, and was injured by an accident arising out of and in the course of his employment. In proceedings for the assessment of compensation under the Workmen's Compensation Act, 1897, the county court judge held that the applicant's employment was not on, in, or about a "railway" or "engineering work" within sect. 7 of the Act, and that therefore the Act did not apply; and he dismissed the application. The applicant appealed. Ruegg, K.C., and R. Pike Glasgow, for the employers. THE COURT (Collins M.R., Mathew L.J. and Cozens-Hardy L.J.) held that a tramway, though not a "railway" within the deficition in sect. 7, sub-sect. 2, of the Act, was a "railroad" within the meaning of that word in the definition of "engineering work" in that section, and that therefore the applicant, who was employed on the construction of the tramway, was employed on an engineering work, and the Act applied. therefore allowed the appeal. Solicitors: Walter Turner; Hugh C. Godfray. DUNHAM v. CLARE. They A. M. C. A. June 5. Employer and workman-Workmen's compensation-Death resulting from the injury-Death not the natural or probable consequence-Workmen's Compensation Act, 1897 (60 & 61 Vict. .37), s. 1; Sched. I., clause 1 (a). Appeal from a decision of the county court judge of Walsall upon an application for compensation under the Workmen's Compensation Act, 1897. The applicant was the widow of a workman who had met with an accident arising out of and in the course of his employment. On the 2nd of September, 1901, the decea ed man was The applicant appealed. Ruegg, K.C., and R. J. Lawrence, for the applicant. THE COURT (Collins M.R, Mathew L.J. and Cozens-Hardy L.J.) allowed the appeal. They held that if death in fact resulted from the injury it was immaterial how improbable or unnatural it was that it should so result. The question was whether death resulted in fact from the injury, or whether the chain of causation was broken by a novus actus interveniens, which gave a fresh origin to the after-consequences. To say that death was not the natural or probable consequence, and therefore did not result from the injury, was to apply a wrong standard. The case must, therefore, go back to the county court judge. Solicitors: Rowcliffes, Rawle & Co., for James F. Addison, Walsall; Robinson & Bradley, for C. A. Loxton & Newman, Walsall. C. A. A. M. June 10. McIVER & Co., LIMITED v. TATE STEAMERS, LIMITED. Practice-Costs-Examination of witness before trial—Attendance of country solicitor-Costs as between party and party— Rule 10 of Rules of the Supreme Court, January, 1902. Order LXV., r. 27, reg. 29. Appendix N, No. 147. Appeal by the defendants against an order of Bigham J., refusing to direct a review of taxation. The examination of a witness for the plaintiffs in an action for breach of a charterparty had been taken in town before the trial. The evidence of this witness was very important to the plaintiffs' case. The plaintiffs' solicitor from Liverpool attended on the examination to instruct counsel. The plaintiffs recovered judgment in the action with costs. On taxation of the costs as between party and party, the taxing master allowed twelve guineas costs in respect of the attendance of the country solicitor as aforesaid, being of opinion that rule 10 of Rules of the Supreme Court, January, 1902, gave him a discretion to do so, if he thought that such costs were necessary or proper for the attainment of justice, or for defending the rights of the party, and had not been incurred through over-caution, negligence, or mistake. Bailhache, for the defendants, contended that the master had no discretion to allow anything in respect of the solicitor's attendance at the examination of the witness beyond the amount of two guineus sp.c'fied in Appendix N to Order LXV., The Oceanic. Waterford Steam Ship Company, Limited v. O The Posen. Owners of Inal the Preside The Posen the F The Siar Ар THE WEEKLY NOTES within the meaning of the section. They therefore allowed the Solicitors for the plaintiff: Paterson, Snow, Bloxam & Kinder, Solicitors for the defendants: G. J. Vanderpump & Son, for THE COURT (Mathew LJ. and Cozens-Hardy L.J.) held that appeal. the master had a discretion to make the allowance which he had made under rule 10 of Rules of the Supreme Court, January, 1902; and they therefore dismissed the appeal. Ivastbound & Co., Liverpool. E. L. C. A. June 11. HUGHES . PUMP HOUSE HOTEL COMPANY, LIMITED. C. A. In re SPIRITINE, LIMITED. E. L. June 18. Receiver-Security-Bond of limited company-Ultra vires. Appeal from Farwell J. A receiver had been appointed in a debenture-holder's action, Assignment of chose in action-Absolute assignment (not pur and the receiver had brought in by way of security a bond of strument passing whole right of assignor-Judicature Act, 1873 the Railway Passengers' Assurance Company, Limited, for 1000, porting to be by way of charge only)-Security for debt-In (3637 Vict. c. 66), s. 25, sub-s. 6. the action under Order xxxiv., r. 2. building contract. given to two of the masters, and conditioned to be void if the receiver discharged his duties. The company which gave this 1897 (60 Vict. c. xiv.)), by sect. 2, sub-sect. ii., of which it was preliminary point of law, directed to be raised before the trial of Act of Parliament (the Railway Passengers' Assurance Act, Appeal from the order of Wright J. upon the argument of a guarantee purported to act under the powers of their special to recover a balance alleged to be due to the plaintiff on the addition to the business described in sect. 9 of their Act of The action was brought by a builder against building owners provided that the business of the company was to comprise, in The plaintiff had, before the action was 1892, "the insurance of compensation or indemnity in respect executed au instrument in writing, by which, in of loss or damage occasioned to any person or persons by any consideration of Lloyd's Bank, Limited, continuing a banking act or default of any other person or persons." It was stated account with him, and by way of continuing security to the that in 1899 North J. had refused to accept such a bond as bank for all moneys due or to become due to them from him security for a receiver, and that although similar bonds had on the said account, he assigned to the bank all moneys due been accepted on many occasions, there was a doubt whether or to become due to him from the building owners under they were not ultra vires the company under their Act. brought, the building contract, and he thereby empowered the bank | Farwell J. declined to accept the security, and the plaintiffs on his behalf and in his name to settle and adjust all ac- in the action appealed. J. G. Wood, for the appellant. THE COURT (Vaughan Williams, Romer, and Stirling LJJ.) person paying the same from being concerned to see to the allowed the appeal. They had come to the conclusion that application thereof, and also, if necessary, to sue for, or to take there was no reason why this bond should not be accepted, and such other steps as they might think necessary for enforcing that it did fall within sect. 2 of the Act of 1897. It did not payment of the moneys thereby assigned; and he also thereby appear that the effect of the section was the reason for the undertook at their request and his own cost to do and execute all such further acts, deeds, and things as they might reasonably require for giving full effect to the security thereby created. Notice in writing of this assignment had been only given by the bank to the defendants. The preliminary point directed to be raised was whether the above instrument was an absolute assignment (not purporting to be by way of charge only) of the moneys sued for within the meaning of the Judicature Act, 1873, s. 25, sub-s. 6, and the cause of action had therefore passed from the plaintiff to Lloyd's Bank. Wright J. held that the instrument was not such an assignment, and therefore declined to stay the action. S. T. Evans, K.C., and R. E. L. Vaughan Williams, for the defendants. Lewis M. Richards, for the plaintiff. tion; and the debtor, having been arrested, was charged with having committed an offence under sect. 11, sub-scct. 3, of the Debtors Act, 1869, upon which he was committed for trial. He was ultimately acquitted. Prior to the proceedings the trustee obtained the sanction of the committee of inspection to the prosecution and to the employment of Adams & Adams as his solicitors in the matter. The taxing master having declined to tax the solicitors' bill of costs on the ground that no order to prosecute was obtained under sect. 16 of the Debtors Act, 1869, the trustce now applied for an order that the costs might be taxed and paid out of the estate. Muir Mackenzie, for the application. WRIGHT J. declined to make the order. If the trustee had done his duty and obtained the leave of the Court under sect. 16 of the Debtors Act, 1869, the costs of the prosecution would have been paid out of the public funds. It was very undesirable that a trustee should, without obtaining the leave of the Court under the section, embark on a speculative prosecution. SUTTON v. ENGLISH AND COLONIAL PRODUCE COMPANY. Company-Director- Qualification shares-Holding shares "in his own right." The company was incorporated in 1901. Its articles of association provided (103) that the plaintiff should be one of its first directors; (104) that the qualification of a director should be the holding "in his own right" of 100 shares; (116d) that the office of a director should be vacated if he ceased to hold the qualifying number of shares. On the 25th of April, 1902, the plaintiff, being then the registered owner of 1000 shares, was excluded from the board of directors on the ground that he had become disqualified under the following circumstances: In 1888 he was adjudicated a bankrupt, and he never obtained his discharge. On the 14th of April, 1902, his trustee in bankruptcy gave the company notice to forthwith register him as holder of the 1000 shares, and by a telegram and letter of the 16th of April he modified this by stating that, although he claimed the shares as property vested in him by law, he did not ask for the actual transfer for a few days, but wished to have a list of the shareholders, as he purposed offering the shares to the shareholders. The plaintiff brought an action in which he moved for an injunction to restrain the company and the other directors from excluding him from acting as a director. Hansell and Macklin, for the plaintiff. H. Terrell, K.C., and J. D. Israel, for the defendants. BUCKLEY J. said the effect of what the trustee did was that he claimed the shares as his, but postponed his decision whether he would be registered himself or have some nomince registered as transferee. And, after referring to Pulbrook v. Richmond Consolidated Mining Company, (1878) 9 Ch. D. 610; Bainbridge V. Smith, (1889) 41 Ch. D. 462; Cooper v. Griffin, [1892] 1 Q. B. 740, 750; and Howard v. Sadler, [1893] 1 Q. B. 1, he said that the decision of Jessel M R. in the first-named cise was not right" need not be beneficial owner. What, affirmatively, he must be was answered by Lindley L J. in Bainbridge v. Smith. He must be a person who held shares in such a way that the company could safely deal with him in respect of his shares whatever his interest might be in the shares. Holding in a representative character would not do. Holding as trustee without beneficial ownership would do, but the holder must so hold as that the company could safely deal with him as owner. After the trustee's notices the company could not have safely dealt with the plaintiff in respect of his shares in disregard of the trustee's claim. The plaintiff did not hold the shares in his own right, and had become disqualified, and his claim to an injunction failed. Solicitors: Churchman & Winser; Dyson, Smith & Marchant. F. E. Joyce J. PRYCE JONES v. WILLIAMS. June 13. Vendor and purchaser-Lease-Conditions of sale-Title-Time limited for requisitions — Waiver of objection — Outstanding legal estate in the Crown. In In April, 1884, two leases were granted to a company formed in 1869 called the Van Mining Company. Subsequently, in 1881, this company was wound up for the purpose of being reconstructed, and a new company of the same name was formel. The new company purchased all the assets of the old company including the leases; but there was no formal assignment to the new company, and consequently the legal estate in the leases did not pass to the new company. The old company was dissolved in due course. 1891 the second Van Mining Company was reconstructed, and a third company of the same name was formed, and there was a sale of the assets of the second company to the third company, but again no formal assignment. Then the third company was ordered to be wound up, and a sale under the direction of the Court was ordered in a debenture-holders' action. Accordingly these leases were put up for sale by auction, but were not sold, and they were subsequently purchased by private contract, subject to the conditions of sale so far as applicable. Condition 6 required the purchaser to deliver requisitions within a specified time, and provided that in this respect time was to be deemed of the essence of the contract. The purchaser did not deliver any requisitions within the prescribed time, but he afterwards objected that the vendors had made no title to the leases, inasmuch as the legal estate was outstanding. This was a summons by the vendors in effect asking that the purchaser might be ord red to complete the contract. They contended that the purchaser must be deemed to have accepted the title, since his objection was out of time, and he was in no danger whether the legal estate was vested in the Crown as bona vacantia or reverted to the lessor; and they offered to procure the consent of the lessor to the transfer. R. J. Parker, for the vendors. Dunham, for the purchaser. JOYCE J. was of opinion that the legal estate was outstanding in the Crown. He thought that the purchaser could not insist within the meaning of the section. They therefore allowed the appeal. Solicitors for the plaintiff: Paterson, Snow, Bloxam & Kinder, for Hadley & Dain, Birmingham. A. D. Bateson, for the plaintiffs. THE COURT (Mathew L.J. and Cozens-Hardy L.J.) held that the master had a discretion to make the allowance which he had made under rule 10 of Rules of the Supreme Court, January, 1902; and they therefore dismissed the appeal. Solicitors for the plaintiffs: Charles Russell & Co., for C. A. M. Daniel Evans, Brecon. Lightbound & Co., Liverpool. Solicitors for the defendants: Downing & Bolam, for Bolam & Co., Sunderland. C. A. E. L. June 11. HUGHES v. PUMP HOUSE HOTEL COMPANY, LIMITED. Assignment of chose in action-Absolute assignment (not purporting to be by way of charge only)—Security for debt-Instrument passing whole right of assignor-Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 6. a Appeal from the order of Wright J. upon the argument of preliminary point of law, directed to be raised before the trial of the action under Order XXXIV., r. 2. The action was brought by a builder against building owners to recover a balance alleged to be due to the plaintiff on the building contract. The plaintiff had, before the action was brought, executed an instrument in writing, by which, in consideration of Lloyd's Bank, Limited, continuing a banking account with him, and by way of continuing security to the bank for all moneys due or to become due to them from him on the said account, he assigned to the bank all moneys due or to become due to him from the building owners under the building contract, and he thereby empowered the bank on his behalf and in his name to settle and adjust all accounts in connection with the works, to give effectual receipts for the moneys thereby assigned, which should discharge the person paying the same from being concerned to see to the application thereof, and also, if necessary, to sue for, or to take such other steps as they might think necessary for enforcing payment of the moneys thereby assigned; and he also thereby undertook at their request and his own cost to do and execute all such further acts, deeds, and things as they might reasonably require for giving full effect to the security thereby created. Notice in writing of this assignment had been only given by the bank to the defendants. The preliminary point directed to be raised was whether the above instrument was an absolute assignment (not purporting to be by way of charge only) of the moneys sued for within the meaning of the Judicature Act, 1873, s. 25, sub-s. 6, and the cause of action had therefore passed from the plaintiff to Lloyd's Bank. Wright J. held that the instrument was not such an assignment, and therefore declined to stay the action. S. T. Evans, K.C., and R. E. L. Vaughan Williams, for the defendants. Lewis M. Richards, for the plaintiff. Cur. adv. vult. June 11. THE COURT (Mathew L.J. and Cozens-Hardy L.J.) held that, upon the true construction of the instrument, it passed the whole right and interest of the plaintiff in the moneys payable under the building contract to the bank by way of security, and therefore was an absolute assignment Solicitors for the defendants: G. J. Vanderpump & Son, for C. A. In re SPIRITINE, Limited. OWEN v. SPIRitine, Limited. E. L. June 18. Receiver-Security-Bond of limited company-Ultra vires. Appeal from Farwell J. A receiver had been appointed in a debenture-holder's action, and the receiver had brought in by way of security a bond of the Railway Passengers' Assurance Company, Limited, for 1000, given to two of the masters, and conditioned to be void if the receiver discharged his duties. The company which gave this guarantee purported to act under the powers of their special Act of Parliament (the Railway Passengers' Assurance Act, 1897 (60 Vict. c. xiv.)), by sect. 2, sub-sect. ii., of which it was provided that the business of the company was to comprise, in addition to the business described in sect. 9 of their Act of 1892, "the insurance of compensation or indemnity in respect of loss or damage occasioned to any person or persons by any act or default of any other person or persons." It was stated that in 1899 North J. had refused to accept such a bond as security for a receiver, and that although similar bonds had been accepted on many occasions, there was a doubt whether they were not ultra vires the company under their Act. Farwell J. declined to accept the security, and the plaintiffs in the action appealed. J. G. Wood, for the appellant. THE COURT (Vaughan Williams, Romer, and Stirling LJJ.) allowed the appeal. They had come to the conclusion that there was no reason why this bond should not be accepted, and that it did fall within sect. 2 of the Act of 1897. It did not appear that the effect of the section was the reason for the objection to the bond by North J. Their Lordships did not think there was anything so far as the section was concerned which made the giving of this bond beyond the scope of the authority of the company. Solicitors: Faithfull & Owen. H. C. R. |