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 pr.secution. 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 transferce. 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 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. In 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 to the root of the title. The purchaser would get a good equit- | In his opinion, the phrase must include all works authorized by able title, and he could no doubt obtain the legal estate from the provisional order, and the binding contrac's entered into the Crown by applying in the proper quarter and paying the by the corporation were a substantial commencement of these requisite fecs. works. The action must be dismissed with costs. Solicitors: Busk, Mellor & Norris, for E. Powell, Newtown; Vallance, Birkbeck & Barnard. H. B. H. Solicitors: Sydney Morse; Lowell, Son & Pitfield. J. R. B. CROWN CASES RESERVED. Swinfen Eady J. June 13, 14. ATTORNEY-GENERAL v. MAYOR, &c., OF BOURNEMOUTH. Tramway-Commencement of works-Cesser of powers-Evidence-Tramways Act, 1870 (33 & 31 Vict. c. 78), s. 18. The Bournemouth Corporation had powers under a provisional order, confirmed by an Act of Parliament which came into operation on the 6th of August, 1900, to construct certain tramways within their borough and to work them by electric power. The order incorporated the Tramways Act, 1870, which provides (sect. 18) that "if within one year from the date of the order, the works are not substantially commenced, the power given by the order to the promoters for executing such works shall cease." The same section also provides "that a notice purporting to be published by the Board of Trade that . . . the work has not been substantially commenced shall be conclusive evidence of such non-commencement." This action was brought on the 8th of March, 1902, by the Attorney-General on the relation of the Poole and District Electric Traction Company, and the company, who claimed a special interest in the matter under their Act, to restrain the corporation from proceeding with the construction of their tramway, on the ground that they had not substantially commerced the work within twelve months from the date of their order. The evidence shewed that the corporation had within the year done no work to the tramway itself, but had adopted a scheme for its construction, obtained powers to borrow a loan for that purpose, completed the purchase of land as a site for a generating station and offices, and entered into binding contracts with responsible firms for the supply of dynamos and plant for the tramways and of electric cars. These contracts provided that the work should be commenced at once. Warmington, K.C., and R. J. Parker, for the plaintiffs. Vernon Smith, K.C., and Church, for the defendants, contended that the only admissible evidence of non-commencement of the work was the notice of the Board of Trade referred to in scct. 18 of the Tramways Act, 1870, and In re Dudley and Kingswinford Tramways Company, (1893) 69 L. T. (N.S.) 711. But in any case work had been substantially commenced. Warmington, K.C., in reply. No authorities seem to have been cited to Kekewich J. in the case cited; it is inconsistent with the practice under similar clauses in other statutes: Reg. v. Thomas, (1870) 22 L. T. 138; Yarmouth v. Ventnor Railway, [1871] W. N. 235. SWINFEN EADY J. said that if it were necessary to decide the point he should follow the decision of Kekewich J. as that of a judge of co-ordinate jurisdiction, without expressing his own opinion; but that the question did not arise, for he was satisfied that there had been a substantial commencement of the works. It would be too narrow a construction to limit the meaning of the works in sect. 18 to works upon the actual tram-line itself. June 14. C. C. R. THE KING v. PLUMMER. Criminal law-Conspiracy-Indictment against two or more fur conspiring together-Plea of "guilty" by one-Acquittal of the others-Conviction and sentence on plea of " guilty" by the one, whether valid--Jurisdiction to allow prisoner to withdraw plea of "guilty" before sentence. Case stated for the opinion of the Court for the Consideration of Crown Cases Reserved by the chairman of the Berkshire Quarter Sessi››ns. Three defendants, Plummer, Fenton, and Wheeler, were jointly indicted at the quarter sessions for conspiring together to obtain by false pretences large sums of money from the Conservators of the River Thames. Plummer pleaded "guilty” to this charge. Fenton and Wheeler pleaded "not guilty," and the jury acquitted them both. Immediately after the verdict of "not guilty" in favour of Fenton and Wheeler had been recorded, Plummer's counsel contended that Plummer could not be convicted and punished on the indictment, and must be acquitted. The chairman overruled that contention, whereupon Plummer's counsel asked for leave to withdraw the plea of " guilty," and to plead "not guilty." The chairman refused to grant leave, being of opinion that he had no power so to do, and then proceeded to pass sentence upon Plummer. The questions for the opinion of the Court were-(1) whether under the above circumstances a conviction could be recorded and judgment passed against Plummer; (2) whether the Court of quarter sessions had jurisdiction to permit him to withdraw his plea and plead "not guilty"; and (3), if the Court of quarter sessions was wrong in giving judgment and passing sentence, what course ought to have been taken. Dickens, K.C. (A. J. David with him), appeared for the defendant Plummer. H. C. Biron and W. Frampton appeared to watch the case for the Thames Conservators, but were not instructed to argue. Cur, adv. vult. June 14. THE COURT (Lord Alverstore C.J., Wright, Bruce Darling and Jelf JJ.) held that the conviction recorded against Plummer was bad and must be quashed, and also that the Court of quarter sessions had power, before sentence, to allow Plummer to withdraw his plea and plead "not guilty." Conviction quashed. Solicitors for defendant: Rookertons, for Brain & Brain Reading. Solicitor for prosecution: The Solicitor of the Thames Con servators. W. A. NOTICE TO SOLICITORS. COURT OF APPEAL. RECORD OF BUSINESS, With the view of insuring the greatest possible accuracy and 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. PAGE 129 K. B. D. 130 . C. A. 128 COURT II. THURSDAY, June 19. Robinow v. London and Northern Bank, Limited. Appeal from FRIDAY, June 20. INDEX OF SUBJECT-MATTER. BANKRUPTCY. Bankruptcy notice-Judgment debt-Stay of execution—Seizure In re Drucker. Ex parte the Trustee. Appeal from Wright J. Part heard. SATURDAY, June 21. Robinow v. London and Northern Bank, Limited. Appeal from Buckley J. Order discharged. Leave to amend given on terme with view to a new trial, MONDAY, June 23. In re Drucker. Ex parte Basden. Appeal from Wright J. missed. 128 In re Jane Owen. Appeal from Master Fischer. Part heard. 129 Dis 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. to him on the evidence that no goods of the debtor were seized. Miller v. Parnell, in his Lordship's opinion, applied only in cases in which there had been a seizure of goods of the judgment debtor, i.e., of goods which the writ directed and authorized the sheriff to seize, and it had no application if the seizure was of the goods of a stranger. In Andrews v. Saunderson, Pollock C.B. pointed out that, on the question whether a second writ could issue without a return to the first, the test was, not whether there had been a substantive levy, but whether anything had been done which rendered the existence of the writ necessary for the justification of the sheriff. It followed that the principle of Bankruptcy Bankruptcy notice Judgment debt-Stay of execution Seizure by Sheriff-Withdrawal―No return to writ-Miller v. Parnell would not make the issue of a second writ of Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 4, sub-s. 1 (g). Appeal against an order of the registrar setting aside a bankruptcy notice. On the 11th of February the judgment creditor issued a fi. fa. upon his judgment, and the sheriff seized goods in a house in which the debtor resided with his wife. On the 14th of February notice was given to the sheriff by solicitors, who were acting for the wife and for the trustees of the debtor's mariage settlement, that the wife claimed as her property some of the goods which had been seized, and that the trustees claimed the remainder. On the 18th of February, at 2.15 p.m, the sheriff, in pursuance of instructions from the judgment creditor's solicitor, withdrew from possession. The sheriff did not make any return to the writ. On this same day, about 3.50 p.m., the judgment creditor issued against the debtor a bankruptcy notice for the whole of the judgment debt. On the debtor's application, the registrar set aside the notice, on the ground that, as the sheriff had made no return, there was nothing to shew whether the debt had been satisfied in whole or in part by the levy. The registrar was of opinion that he was bound by the decision of the Court of Appeal in an unreported case: In re Cochrane (March 9, 1900). The judgment creditor appealed. Herbert Reed, K. C., and Bartley Denniss, for the appellant. THE COURT (Vaughan Williams, Romer, and Stirling L.JJ.) allowed the appeal. VAUGHAN WILLIAMS L.J. (who read the judgment of the Court) said that Miller v. Parnell, (1815) 6 Taunt. 370, was a plain authority for the proposition that, if a judgment creditor caused the sheriff to execute his fi. fa. by seizure, he could not have a writ of ca. sa. till the fi. fa. had been completely executed and returned, even though the execution creditor abandoned the seizure. This case was recognised as good law in Chapman v. Bowlby, (1841) 8 M. & W. 249, and in Andrews v. Saunderson, (1857) 1 H. & N. 725, in which it was unsuccessfully argued that the rule against the issue of a new fi. fa. had no application unless something had been realized under the first execution. It was to be observed that in Peploe v. Galliers, (1820) 4 Moore, 163, it seemed to be assumed that there might be a second writ, if the goods seized under the first had been restored to the judgment debtor. But that case could not be taken to have overruled Miller v. Parnell, which was acted on in Andrews v. Saunderson, and in many other cases since Peploe v. Galliers. And the authority of Miller v. Parnell did not seem to be impaired by the decision of the Court of Appeal in Lee v. Dangar, [1892] 2 Q. B. 337. But, on the facts of the present case, his Lordship thought that Miller v. Parnell had no application. It appeared fi. fa. illegal or irregular in a case in which the seizure had been of goods other than those of the judgment debtor, for neither the writ, nor anything which the sheriff purported to do under it, could justify him if he had seized the goods of a stranger. In his Lordship's judgment, the seizure by the sheriff of the goods of a stranger not only did not make the issue of a first writ, e.g., in another county, wrong, but also did not in any way interfere with the seizure by the sheriff under the existing writ of any goods of the debtor within his bailiwick which consequently fell within the direction in the writ. The seizure of the goods of a stranger might, of course, prevent the issue of a fresh writ, or further proceedings under the existing writ, if the sheriff interpleaded, because in such a case there was either an express stay by the interpleader order, or an implied stay by the pendency of the summons. The result was, that in the present case the judgment creditor had a right to serve the bankruptcy notice, for there was no stay, express or implied, and the sheriff had not realized anything by the seizure or the sale of the debtor's goods for which he was bound to account, or to make a deduction from the judgment debt mentioned in the bankruptcy notice; nor was the sheriff, nor had he ever been, in possession of the goods of the judgment debtor. Solicitors: John Westcott; George Twynam. W. L. C. bigh Court of Justice. Kekewich J. CHANCERY DIVISION. June 11, 18. JARRAH TIMBER AND WOOD PAVING CORPORATION, LIMITED (. SAMUEL. Mortgage-Stock-Clog on equity of redemption-Option to purchase mortgaged stock. The defendant advanced to the plaintiffs the sum of 5000'. on the terms of a letter, whereby they agreed to secure the repayment with interest by the transfer of 30,000l. debenture stock, and the defendant stipulated, first, that a nominee of his should join the plaintiffs' board; secondly, that he should have the option of purchasing the whole or any part of the debenture stock at 40 per cent. at any time within twelve months: and, thirdly, that in the event of the plaintiffs' undertaking being disposed of, he should be entitled to underwrite new capital at a fixed commission. It was also stipulated that the Cur. adv. vult. June 18. KEKEWICH J. said that, in his opinion, the stipulation that the defendant should for twelve months have an option to purchase the mortgaged stock at a certain price was a clog or fetter on the plaintiffs' right to redeem. His Lordship referred to Noakes & Co. v. Rice, [1902] A. C. 24, where Lord Davey (at p. 34) says: "The principle is this-that a mortgage must Lot be converted into something else, and when once you come to the conclusion that a stipulation for the benefit of the mortgagee is part of the mortgage transaction, it is but part of his s.curity, and necessarily comes to an end on payment off of the loan." It was not arguable that the stipulation now in question was not part of the mortgage transaction, and part of the security. It was so expressed on the face of the contract; and of course it was for the benefit of the mortgagee. Therefore, to use Lord Davey's phrase, it necessarily came to an end on payment off of the loan. It was rather an extravagant instance of a clog or fetter of a right to redeem, inasmuch as it interfered with the ownership of the very property which was made the security for the loan. The plaintiffs were therefore entitled to a declaration that the stipulation was void, and that they were entitled to redeem on payment of whatever was due, with consequent relief. Solicitors: H. Percy Becher; Dale, Newman & Hood. the 17th of September, arranged with Ward to extend the date for repayment of the 120%. and interest to the 11th of January following. On the 28th of November a bankruptcy petition was presented against the debtors, on which a receiving order was made on the 9th of January following; adjudication followed, and on the 29th of January the trustee was appointed. On the 11th of January Goss paid Ward (who had notice of the receiving order) the loan on the pledge of the 27th of September, and took delivery of the vehicles, and on the 28th of January he sold all the vehicles. The debtors were prosecuted for fraud and convicted, and were undergoing terms of imprisonment. The trustee now claimed that, by virtue of the doctrine of relation back, the property in the vehicles pledged with Ward had vested in him, and that under the circumstances he was entitled, as against Ward, to delivery of the vehicles or payment of their value less the loans. Carrington and F. Mellor, for the trustee. Muir Mackenzie and G. Lushington, for Ward. WRIGHT J. said it was an important case. It was clear that Ward knew of the act of bankruptcy of the 6th of October, when he was paid off, and that the trustee's title related back to that date, and therefore Ward was not protected by sect. 49 of the Act. It was also clear that Goss was in collusion with the debtors, and was fraudulent in all that he did; but Ward acted in good faith and was no party to any fraud. Although the trustee by relation back took the debtors' interest in the pledged goods from October the 6th, he took subject to the contracts with Ward, who had a right to discharge himself of his liabilities under those contracts when he was paid off on the dates fixed by the memorandums. He had no option. He held the goods on the very terms that he should return them when he was paid off. If he had refused to do so he would have had no answer to an action for damages for trover. If he had not been paid and had kept his securities he could have enforced them against the trustee. Under the circumstances Ward was not liable, but it was not a case for costs. Solicitors: C. Jennings; George Reader & Co. H. L. F. Buckley J. Settlement Agreement to settle after-acquired property-Bequest This was a motion by the trustee in bankruptcy against one Ward claiming the delivery of certain chattels, or payment of the value of them, under these circumstances. In and prior to 1900 the debtors traded as cab proprietors at Rutland Gate. On the 14th In 1878 Mrs. Anderton, a widow domiciled in England, was of September, 1900, they pledged with Ward, who was a dealer engaged to be married to Angelo Favaroni, an officer in the in cabs, a number of vehicles on a memorandum of deposit for Italian Army. On the 28th of March, 1878, they executed in a loan of about 4501. then made to them, to be repaid with Italy a marriage settlement in common English form of 30007. interest on the 26th of October following. On the 27th of belonging to Mrs. Anderton, and the settlement contained a September they made a further pledge of vehicles with Ward covenant that if she then was, or if during the then intended for a loan of 1201., to be repaid with interest on the 11th of coverture she or Mr. Favaroni in her right should at one time November following. On the 26th of October one Goss came to and from one source become entitled to any real or personal Ward with a written authority from the debtor stating that he property of the value of 100%. or upwards, it should be vested in had purchased the vehicles, and he paid off Ward and took the trustee upon the trusts of the settlement. The evidence delivery of the vehicles pledged on the 14th of September. On proved that this settlement was void under Italian law, because this occasion Ward had notice that the debtors had committed it was not executed before a notary public and it altered the an act of bankruptcy on the previous 6th of October. On the 11th of November Goes came again with a written authority order of succession. The marriage took place in Italy, and Mr. and Mrs. Favaroni lived in that country. There were no |