-H;- OJnrnfU Haui ^rljnnl ICibtata Cornell University Library KD 1205.G64 The modern law of personal property / 3 1924 022 162 386 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022162386 THE MODERN LAW OP PEESONAL PROPERTY. THE MODEEN LAW OF PERSONAL PROPERTY. LOUIS ARTHUR ^gQODEVE, B.A., OF THE MIDDLE TEMPLE, BjtBBISIEB-AT-LAW, AUTHOR OF " THE MODEKN LAW OF SEAL PKOPEETT." LONDON : W. MAXWELL & SON, 8, BELL YARD, TEMPLE BAR, Sato gaoHtUas rmh $nUxshzts. MEREDITH, BAY, & LITTLER, MANCHESTER; HODGES, FIGGIS & CO., AND E. PONSONBY, DUBLIN; THACKEB, SPINK & CO., CALCUTTA; CHARLES F. MAXWELL, MELBOURNE & SYDNEY. 1887. LONDON : BRADBUKYj AGKEW, & CO., PRINTERS, WHITEFRIARS. PEEFACE. The present work is intended to be the complement of tlie Modern Law of Eea] Property ; in consequence of the favor- able reception accorded to that work the Author has been induced to undertake this one. The same method has been adopted ; in particular, where it has appeared desirable, statutes have been quoted verhatim, and in like manner expositions of tlie law by Judges and Writers are given in their own words. What is common both to realty and to personalty and has been already treated of in the earlier work has not been repeated in this. The subjects of Bankruptcy and of Bills of Sale have been fully treated ; separate chapters have been deyoted to the Bills of Exchange Act, to the Patents, Designs, and Trade Marks Act, and to the laws of Copyright ; in the seventh, eighth, and twelfth Chapters will be found an outline of the law relating to Companies ; the provisions of the Married Women's Property Act, which has effected so many changes, will be found passim. On reference to the Table of Statutes it will be seen that the greater part of the legislation now affecting personalty VI PEEFAOE. has been during the present reign, and of this again the greater part during the last decade. The Author begs to acknowledge his indebtedness to Mr. T. Geary of the Middle Temple for the carefully prepared Index. L. A. G. Middle Temple, June, 1887. VI 1 CONTENTS. INTRODUCTION. PAGK Personal or Movable Peopeety .1 Choses in possession — ohoses in action ib. Contrasted with real or immovable 2 No heir ib. Domicile of owner 3 No estate i&. Limited or successive interests ib. Trusts— powers — settlements it. Perpetuity 5 Ownership ib. Joint — in common — in severalty ib. Partners 6 Joint chose in action 7 Joint power or trust ib. CHAPTER T. CORPOREAL THINGS— CHOSIS IN POSSESSION. Nattjee or . . 8 I. Tkansfee of ib. a. By delivery ib. Title ib. Market overt ib. Larceny Act 9 Horses 11 Mercantile Law Amendment Act 12 b. By contract 13 Declaration of Trust J. Ylll CONTENTS. Executory — executed or bargain and sale Statute of Frauds, s. 17 . Lord Tenterden's Act, s. 7 . Application of Fixtures — emblements Alternative proofs of contract 1. Acceptance and receipt of part 2. Earnest or part payment 3. Note or memorandum in writing Need not be in one document Contents . . . . Agents — principals . Signature . . . . Statute of Frauds, s. 4 Pleadina the statute .... PAGE 13 14 15 16 a. 18 ib. 19 20 ib. 22 24 25 27 28 II. III. CHAPTER II. — « — CHOSES IN POSSESSION (con«OT«e(«). Evidence oonteadicting, &c., weitten conteaots .... 29 Mercantile customs *■ Eights of unpaid vendoe 31 Stoppage in transitu 32 Documents of title— bills of lading, &c 33 ■Vendoe, in default 35 Warranty 36 Paeties to oonteacts ii. Infants 37 Non compotes mentis 41 Married women 42 Corporations 49 Contracts with two or more jointly 52 Illegal conteacts 53 Contracts by way of gaming 56 Tippling Acts 58 Sales on Sunday 59 CONTENTS. ix CHAPTEE III. CHOSES IN POSSESSION {cmUinued). T ^, TAGE I. MOETGAGES gj BillsofSale Acts, 1878, 1882 a. Bills of Sale Act, 1882 64 Its requirements and effect ib. Seizure of goods and sale 67 Form 68 (Bills of sale absolute) 74 Consideration ij. Priority 76 Entry of satisfaction a, II. Pawn or Pledge ij. Pawnbrokers Act, 1872 78 Factors Acts, 1823 to 1877 79 III. Bailment • tj_ Six sorts 80 Goods found 81 Action for conversion or detention 82 IV. Lien a,. Particular — general 83 Solicitor's lien 84 CHAPTER IV. — ♦ — CHOSES IN POSSESSION {continued). Ships 85 Merchant Shipping Acts, 1854 to 1883 ib. Aliens 86 Eegistration ib. Shares 87 Trusts ib. Transfer of ship or shares 88 Transmission of shares ib. Mortgages 89 Certificates of mortgage or of sale ib. Ee-registration . . . . ib. Transfer of registry 90 Charter-party . . ib. Bill of lading ib. CONTENTS. CHAPTER V. mCOEPOREAL THINGS — CHOSES IN ACTION. PAGE Nature of 92 Alienation of . . . 93 At law ib. In equity 94 Choses in equity ib. Assignments against public policy ib. Pensions 95 Maintenance — champerty ib. Subject to equities 96 Future property — equitable assignment ib. Notice 97 Married Women's Property Act, 1882 ib. Distringas •...;.. 98 Stop order . . 100 Judicature Act, 1873 . . . ib. Conveyancing Act, 1881 . 103 CHAPTER VI. CHOSES IN ACTION {continued). Bills of Exchange and Promissoky Notes, Negotiable .... 105 I. Bills of Exchange i6. Billsof Exchange Act, 1882 107 Rules of common law, law merchant, bankruptcy . . . . ib. Definition of bill of exchange ib. Inland or foreign . . . . • 108 Payee ib. What bills are negotiable 109 When payable • 110 Days of grace Ill Referee in case of need ib. Acceptance ib. Delivery 112 Skeleton bill — inchoate instruments 113 Parties ib. Infants — corporations ij. Signature 115 Estoppel — ratification ^•j_ Bankers Hg Per procuration— agents t'j_ CONTENTS. xi PAGE Consideration 116 Accommodation II7 Holder in due course 118 Negotiation 119 Indorsement iJ. Negotiation of overdue or dishonoured bill 120 Eights of holder 121 Presentment for acceptance iJ. Presentment for payment 122 Notice of dishonour 124 Protest or noting 126 Acceptor 128 Exhibiting and delivering up of bill ib. Liabilities of parties ib. Damages for dishonor 129 Discharge of bill 130 Alteration a. Acceptance for honor 131 Payment for honor 132 Bills in a set ib. Conflict of laws 133 II. Cheques I35 Bills of Exchange Act, 1882 ib. Presentment for payment ib. Revocation of banker's authority 136 Crossed cheques ib. Bankers 137 III. Dividend Wakrants 138 Bills of Exchange Act, 1882 ib. IV. Pkomissokt Notes ib. BiUs of Exchange Act, 1882 ib. Definition 139 Inland or foreign ib. Delivery . . . ib. Joint note 140 Presentment for payment ib. Liability of maker ib. Application of provisions as to bills 1 41 V. I.O.U. 's ib. XU CONTENTS. CHAPTER VII. CHOSES IN ACTION— {continued). PAGE I. Debentures . . 142 Debenture stock 143 Assignability ... ... .... 144 Eegistralion 147 BiUs of Sale Act, 1882 ii. Companies Act, 1862 ib. Companies Clauses Consolidation Act, 1 845. 1 48 II. FOKEIGN BONDS . . . . . ib. Scrip 149 III. County debentuees ib. 36 & 37 Vict c. 35 . . ib. Land mohtoage debentuetss 160 28 & 29 Vict. c. 78 ib. IV. Policies of life assurance ib. . 9 Anne, o. 6, s. 57 151 14 Geo. III. c. 48 ib. 30 & 31 Vict. c. 144 152 Married "Women's Property Act, 1882 153 V. Policies of marine assurance 155 19 Geo. II. c. 37 ib. "Wliat may be insured 157 Bottomry — respondentia ib. Policies, open, valued ii. 28 Geo. III. c. 56 ib. . Assignment of policy 158 31 & 32 Vict. c. 86 ' 159 VI. Policies of fire assurance . 160 14 Geo. III. u. 78 ib. CHAPTER VIII. CHOSES IN AaWS— {continued). Shares in companies .... 162 Letters Patent Act, 1837 ■ . . . ib. Companies Clauses Consolidation Act, 1845 .164 Stock . . 165 Companies Acts, 1862 to 1886 168 Application of Companies Act, 1862 169 Memorandum of Association 170 CONTENTS. Xlll PAGE Liability of members 170 Articles of Association ........ . 1 71 Incorporation of company 172 Shares — transfer ib. Leeman's Act, 1867 ib. Alteration of capital 173 of name ib. Payment of capital — calls ib. Notice of increase of capital, &c. 175 Sliare warrants ib. Trusts , . . .... . . ib. Certificate .... ib. Evidence of membership . ib. Prospectus . . ib. Contracts prior to issue of ib. Winding-up 177 By the Court . ib. Voluntarily 178 Subject to supervision ib. Unregistered companies ib. County Court ib. Building societies 179 Industrial and provident societies ib. CHAPTER IX. CHOSES IN ACTION (continued). I. Patents 180 21 Jac. I. c. 3 ib. 46 & 47 Vict. c. 57 181 Who may apply 182 Application — trae and first inventor ib. Subject-matter 184 Exhibitions ib. Provisional specification 185 Comptroller — Examiner — Law officer 186 Complete specification ib. Applications in respect of same invention . . ' . . . . 187 Amendment of specification 188 Opposition to grant ib. Grant of patent 189 Protection, provisional 190 By complete specification ib. Refusal to grant patent . ib. Loss or destruction of patent ib. XIV CONTENTS. FADE Extent and duration of patent 190 Crown and officers of the Crown 191 Foreign vessels ib. Compulsory licenses 192 Eeyocatiou of patent ib. Assignment 193 Registers ib. Threats of proceedings by patentee 194 Falsely representing articles to be patented 195 II. Designs ib. 46 & 47 Vict. c. 57 196 Design, copyright in — proprietor of iJ. Registration 197 Exhibitions 198 Duration of copyright ib. Registers 199 Piracy — ^false representation 200 III. Tbade Makks 201 46 & 47 Vict. c. 57 202 Registration . . . . ib. Assignment 207 Registers ib. Sheffield Marks 208 V. Inteenational and Colonial Inventions, Designs, and Trade Marks . ib. arrangements for protection of ib. CHAPTER X. CHOSES m ACTION {,continv,ed). Copyright . . 210 Unpublished works ^-j, I. Books 211 8 Anne, c. 19 ib. 15 Geo. III. c. 53 212 5&6 Vict. c. 45 ij. Extent and duration of copyright 213 Representing or performing dramatic pieces or musical composi- tions ........... 214 3 Wm. IV. c. 15 215 45 & 46 Vict. c. 40 j-j_ Registration . . . . • jj_ Piracy 216 Personal property 217 Importation prohibited ib, 39 & 40 Vict. c. 36 ij" CONTENTS. XV II. Lbottjees 5 & 6 Wm. IV^ c. 65 . III. Engeayinos, etchings, prints, lithogkaphs 8 Geo. II. c. 13 7 Geo. III. u. 38 17 Geo. III. 0. 57 15 Vict. c. 12, s. 14 Duration and enforcement of copyright IV. Soulptuke 54 Geo. III. c. 56 Eegistratiou V. Paintings, drawings, photographs 25 & 26 Vic. u. 68 Registration Piracy Personal property .... Assignment .... VI. International and Colonial copyright PAGE 217 ib. 218 ib. ib. ib. ib. 219 ib. ib. 220 ib. ib. 221 ib. 222 ib. CHAPTEE, XI. II. ENFORCEMENT OF DEBTS. Liability of property to debts 224 Modes or enforcing judgments and orders ib. Writ oi fieri facias 225 Writs in aid 226 Veiiditioni exponas ib. Fi. fa. de bmiis ecclesiasticis ib. Sequestrari facias de bon. eccl ib. Attachment of debts— garnishee order 227 Charging order 228 Equitable execution — receiver jj. Writ of sequestration 229 Writ of delivery ib. County Courts ib. Leave to issue execution in certain cases 230 Death of debtor 231 Priority ib. Guaranties — suretyship 232 29 Car. II. c. 3, s. 4 ib. 19 & 20 Vict. 0. 97, s. 3 233 Liability of surety 234 19 & 20 Vict. 0. 97, s. 4 ib. XVI CONTENTS. Discharge 235 Surety— principal— securities 236 Co-sureties jj. Indemnity — contribution ib. 19 & 20 Vict. 0. 97, s. 5 237 Representation of solvency, &o ' . . . ib. 9 Geo. IV. c. 14, s. 6 . 238 CHAPTER XII. ENFORCEMENT OF DEBTS— (comimueti). Bankkuptcy, acts of 239 Married women 240 Partners 241 Petition ij. Official receiver ib. Interim receiver 242 Receiving order ib. First meeting of creditors 243 Composition or arrangement ib. Adjudication ij_ Trustee 244 Committee of inspection ib. Composition or arrangement 245 Discharge of bankrupt .... jj_ Debts provable . . 246 Priority 247 Partners ^j_ Loans by wife 248 Landlord 249 Proof of debts j-j_ Secured creditors . . . ib. Execution creditors 250 Commencement of bankruptcy 251 Property divisible ij,. In bankrupt's reputed ownership 252 17 & 18 Vict. 0. 104, s. 72 255 Voluntary settlements jj_ 13 Eliz. c. 5 .257 Fraudulent preference ... 259 Receiving order against judgment debtor 231 Administration of estate of debtor dying insolvent .... jj. Removal of a trustee become bankrupt 262 CONTENTS. XYH PARE II. COEPOKATIONS — COMPANIES 262 Dissolution of corporation 263 Winding-up of company ib. Petition ib. Contributory 264 Married women 265 Eules of bankruptcy 266 CHAPTER XIII. ■ENFOECEMENT OF DEBTS {continued). I. Interest on debts .... At law By statute 3 & 4 Wm. IV. 0. 42, ss. 28, 29 -. 1 &.2 Vict. c. 110, s. 7 , 45 & 46 Vict. c. 61, s. 57 (1) Eules of Court .... 46 & 47 Vict. c. 52, Sched. II. and s. 40 (5) In winding-up .... II. Statutes of limitation . (a) Simple contract debts 21 Jac. I. i>. 16, s. 3 Mercbants' accounts t 19 & 20 Vict. c. 97, s. 9 . Law — equity . Disabilities 21 Jac. I. c. 16, s. 7 . 19 & 20 Vict. c. 97, s. 10 . 45 & 46 Vict. c. 75, ss. 1 (2), 12 Married women . Debtor beyond seas 4 Anne, c. 16, s. 19 . 19 & 20 Vict. c. 97, s. 12 Executor or administrator Joint debtors .... 19 & 20 Vict. u. 97, s. 11 . Accrual of cause of action . Ignorance —fraud New promise to pay , Acknowledgment — part payment 9 Geo. IV. c. 14, s. 1 . 19 & 20 Vict. c. 97, s. 13 . Appropriation of payments . Retainer by executor or administrator 268 ib. ib. ib. 270 ib. ib. ib. 271 ib. 272 ib. ib. ib. 273 ib. ib. ib. 274 ib. 275 ib. ib- ib. 276 ib. ib. ib. 277 ib. ib. 27S 280 ib. XVIU CONTENTS. PAGE (J) Specialty delpts . . 281 3 & 4 Wm. IV. c. 42, ss. 3—5 *• 25 & 26 Viot. c. 89, ss. 16, 75 *• Pleading or setting up tlie statute *'^- When the statute ceases to run 282 III, Ante-nuptial debts of maeeied women **• CHAPTER XIV. DEVOLUTION OF PKOPERTY ON DEATH OF OWNER. I. Pbksonal ebpkesbntativb 285 Executor — administrator ib. Donatio mortis causd .......... ib. History of wills of personalty ib. Intestacy — administration 286 Statutes of administration 287 13 Edw. I. c. 19 ib. 31 Edw. III. c. 11 288 21 Hen. VIII. c. 5 ib. Probate court ib. 20 & 21 Vict. c. 77 ib. 21 & 22 Vict. c. 95 ib. High Court ib. 36 & 37 Vict. c. 66 289 38 & 39 Vict. i;. 77, =. 18 ib. Power of executor or administrator, whence derived . . . . ib. II. Disposition by will ib. 1 Vict. c. 26 ib. Married Women's Property Act, 1882 291 III. Husband's inteeest in wife's peopeety 292 Paraphernalia • . 294 Reversionary interests ij. 20 & 21 Vict. c. 57 ib. Wife's equity to a settlement 295 Statute of Frauds, s. 25 . . 296 IV. Peobate of will ib. In common form ib. In solemn form ib. Of will of married woman 297 Where no executor H), Married woman executrix 298 Bankrupt executor •••••.,..,, ib. V. EXEOUTOES ib. Appointment of ■ ib. Indemnity and reimbursement 299 22 & 23 Vict, 0. 35, s, 31 a,. CONTENTS!. xix PAGE Surviving executors , , . , 300 Conveyancing Act, 1881 ib. Power before probate 801 Executor de son tort ib. Renunciation . . ib. What passes to the executor £03 Eights of action ib. Payment of debts 304 VI. Leoaoies 305 Legacy to creditor ib. Portions to children ib. Executor's consent 306 Gift to charity ib. General bequest — specific bequest ib. Ademption 307 Abatement 308 Demonstrative ib. Payment ib. Vested — contingent 309 Ebsidub 311 VII. Devastavit. ib. Carrying on business of testator ib. Compounding debts, &c., by executor ib. VIII. Administkatoes 312 Vesting of property in 313 Who entitled to administration . . .314 Grant to creditor 317 Special and limited administrations 318 Administration bond 320 Duties of 322 Statutes of Distribution ib. 22 & 23 Car. II. c. 10 ib. 1 Jac. II. c. 17 ib. IX. Administkation action 324 County Courts 325 Personal liability of executor or administrator 326 Statute of Frauds, s. 4 ib. Real Property Limitation Act, 1874 327 TrusteesRelief Acts, 1847, 1849 ib. Advice by Court 328 X. Duties ib. On affidavit for probate or administration ib. On accounts in respect of donationes mortis causd, &o. . . . . . 32 Customs and Inland Revenue Act, 1881 b Legacy Duty Acts ^ . . . 330 Succession Duty Act 332 Bodies corporate 335 Customs and Inland Revenue Act, 1885 ib. INDEX 337 J 2 TABLE OF CASES CITED. XXX PAGE AcAsoN V. Greenwood . . 45, 284 Adam v. Inhabitants of Bristol . 276 Adam'.s Policy Trusts, In re . . 153 Adam-'s Trust, In re . . . 262 Agra & Mastermau's Bank, In re 96, 144 Airey v. Bower .... 290 Allam, ExparU ... 73, 75 " Alpijie " Trade Mark, /tt re . . 202 Alston I). Trollope .... Anderson, Ex parte. Andrews, Inre , Anglo-Swiss Condensed Milk Co. v. Metcalf Arbenz's Application and Osborne and Co.'s Opposition, In re . 202, 204 Armstrong, In re . — V. Stokes Ashburner v. Macguire Ashby V. White . . Ashton V. Blackshaw Ashworth d. Munn , Att.-Gen. v. Bouwens Ayres, In the Goods of 282 242 243 208 •±0^ £t'± 25 308 272 63 6 148 298 Badisohb Anilin und Soda Fabrik v. Levinstein .... Bahia and San Franoisco Hail. Co., Inre , , , Bailey v. Sweeting ... Ball, Ex parte .... Bannatyne v. Direct • Spanish Tele graph Co. . Barber, Inre . Bardick i>. Garrick . Barker's Tinists, Inre . Barne, Ex parte ... Barnes v. Toye Barney v. United Telephone Co. Barrow's Case .... Bateman u Mid Wales Bail. Co. Baum, Ex parte Beard v. Webb Belaney v. Ffrench , ■ . 184 145 21 260 173 72 270 262 241 38 195 269 113 246 42 84 PAGE Bell, In re . 270 — In the Goods of . 299 Bellamy, Inre 293 Besant v. Wood . 55 Bianchi v. Offord . 73 Bills of Sale Act, In the Matter of . 66 Bird, Inre , . 260 Birkmyr v. Darnell . 333 Bishop, Exparte . 257 Blaiberg v. Beckett . . 71 — v. Parke . 65 — V. Parsons . . 71 Blakely Ordnance Co., In re 96, li t4, 145 Blaksley's Trusts, In re . . . 99 Blanchett, Exparte. . 239 Blanckenhagen v. Blundell . 109 Blandy v. Whitmore . 305 Bloxam v. Saunders . 32 Bolland, Exparte . . 75 — In re. . 240 Bonham, Exparte . . 242 Bothomley v. Sherson 306, 3C 7, 308 Boulton's Trusts, In re . , . 328 Bowen v. Brecon Rail. Co. 148 Bowes V. Hope Life Insurance Co. 264 Bown, In re, O'Halloran v. King 48 Bradford Banking Co, v. Briggs 175 Bradlaugh v. Newdegate . 95 Brandon, Exparte . 240 — V. Robinson 259 Bray v. Gardner 188 Breton v. Mockett . 5 Brice v. Bannister . 102 — -0. Stokes 299 Bridger v. Savage . 57 Brinsmead ii. Harrison . 82 British India Steam Navigation Co V. Commissioners of Inland Re venue .... 142 Broadbent v. Barrow S06 Brocklehurst v. Railway Printing and Publishing Co.. 147 Brook r. Hook . . 115 xxu TABLE OF CASES CITED. PAGE PAGE Brown v. Gellatly . . 309 Collins Co. (The) v. Brown . 201 Bruce v. Wait .... . 227 Collins V. Blantern . . 54 Buck V. Eobsou . 102 Colonial Bank v. Whinney . 253 Buckley v. Barber . 6 Consolidated Credit and Mortgage Buckmaster v. Buckmaster . 40 Corporation v. Gosney . . 73 Burdick v. Garrick . . 270 Coombs V. Brooks . . 262 Burgess v. Eve . 234 — V. Coombs . . 282 Burlinson v. Hall . . 102 — V. Dibble . . 56 Bumaby v. Equitable Reversic nary Conelly v. Steer . 76 Interest Society . . 41 Cooper, Ex parte . 261 Bursill V. Tanner . . 44 — V. Metropolitan Board of Butcbir V. Stead . 261 Works .... . 207 Butler r. Butler . 48 Cordwell's Estate, Inre . . 280 — V. Wearing . . 250 Cork & Youghal Rail. Co., In re . 55 Buxton V. Bust 22, 25 Cotton, Ex parte . 68 Coulthart v. Clementson . . 234 Caledonian Rail. Co. v. Carmi chael 268 Couston, In re ... 253, 264 Calver v. Laxtou . 305 Cowper V. Smith . 234 Campbell, Ex parte . . 243 Credit Co. v. Pott . . 75 In re . 54 Cropper v. Smith . . 188 Cann, Inre . . 76 Crossfield v. Such . 7 Capital Fire Insurance Associa tion, Crossthwaite, Ex parte . . 250 Inre . 84 Croydon Gas Co. v. Dickinson . . 235 Castle Mail Packets Co., Expai te . 246 Crouch V. Credit Foncier . 105, 113, 144, Caton V. Caton . 26 145, 148 Cave V. Hastings . 20 Cuddee v. Eutter . 35 — v. Roberts . 316 Cunningham, Ex parte . 241 Cavendish v. Geaves . 96 Currey, Inre . 44, 48 Challinor, Ex parte . 74, 75 Curtis V. White . 113 Chalmers, Ex parte . . 32 Chancellor, In re . . 309 Dalbt v. India and London Life Chaplin, Ex parte . 240, 257 Assurance Co. . . 151, 152, 160 Chapman, In re . . 240 Davies v. Rees . 72 Chappell V. Boosey . . 216 Davis V. Burton . 70 Charing Cross Advance & De posit — V. Usher 64, 76 Bank, Ex parte . . 75 ■ — -u. Williams . 313 Chase v. Westmore . 83, 84 Dearie, Ex parte 239, 241 Cherry v. Heming . . 28 Deeks v. Strutt . 324 Chester v. Chester . . 311 Delta Syndicate, Ld , In re . 174 Chienery, Ex parte . . 239 Dickson's Trust . 310 Christian v. Whitaker . 49 Direct Spanish Telegraph Co., In re 173 City Bank, Ex parte . 145 District Bank of Loudon, Exp xrte . 249 Clark V. Gilbert . 81 Dixon, Ex parte . 242 — V. Randall . 290 — V. BoviU . 146 Clay & Tetley, Inre . 312 — v. Sadler , 159 Clayton's Case . . . . . 280 Dobell V. Hutchinson . 20 Cleaver, Inre . 72, 73 DoUond V. Johnson . . 231 Clement v. Cheesman . 285 Donaldson v. Beckett . 212 Gierke v. Gierke . 318 Dowd V. Hawtin . 298 Coburn v, Collins . . 64 Drake, Ex parte . 82 Coggs V. Bernard . . 77 78, 79, 82 Draycott v. Harrison . 46, 274 Cohen, Inre . . 239 Drew V. Nunn . 42 TABLE OP CASES CITED. XXUl PAGE PABE Driffield & East Riding Pure Linseed Gillespie, In re . . . . 247 Calce Co. v. Waterloo Mills Cake Godfrey, Ex parte . . 245 & Wareliousing Co. 195 Godwin v. Francis . . 26 Duck V. Bates 215 Golding, Davis & Co., Ex parte . 35 Duke of Ancaster v. Mayer 305 Goldsmid, In re . . . . 260 Duncombe v. Brighton Club & Nor Goldstrotn v. TaUermann. 71,72 • folk Hotel Co. . 269 Goodman v. Griffiths Goodwin v. Robarts Gorgier v. Mieville . . 22 148, 149 . 148 Easton v. London Joint Stock Gorringe v. Irwell India Rubber, &c.. Bank .... . 148, 149 Works .... . 266 Eastwood V. Kenyou . 232 Graham v. Lord Londonderry . . 294 Eberle's Hottl Co. o. Jonas 247 Graves v. Ashford . . 219 Elder v. Pearson 293 Great Northern Rail. Co. v. Harri- Emden v. Carte 84 son . 52 Evans, In re . 311 Green v. Humphreys . 279 Evelyn v. Evelyn . 315 — V. Wynn Gregory v. Hurrill . Greer v. Young . 235 . 277 . 84 Faithfuli, Inre . 239 Grey's Settlements, In re 45, 284 Feast, Ex parte 239 Grimoldby v. Wells . 36 Feunell v. Eidler 60 Grimwade, Ex parte . 239 Fergusson v. Fyffe 270 Firtli, Hx parte 76 Florence, In re 253 Hall, Ex parte . 102 Flory V. Denny 61 Hallett V, Hastings . 48, 273 Forbes v. Jackson 236 Halsey v. Brotherhood . . 194 Ford, Ex parte 239 Hamilton v. Chaine . 75 Franks, Ex parte 42 Hamlyu v. Betteley . 75 Freakley v. Fox 306 Hammond v. Hocking . 72 Friedlander, In re 240 Hancock v. Bewley . . 182 Fryer, Ex parte 243 Harden Star Hand Grenade Fire '. jlx- Fuggle V. Bland 228 tiuguisher Co., /» re . . 202 Furber v. Cobb . 71, 73 Hardwicke, In re . . 64, 7 2, 74, 78 Fusee Vesta Co. v. Bryant & M [ay 188 Harding v. Harding Harman v. Reeve . Harrington v. Victoria Graving Dt . 102 . 16 )ck Gallahee v. Ferris . 311 Co . 54 Galland, Inre . 84 Harris v. Brisco . 95 Gardner v. London, Chatham & Dove r — V. Rothwell . . 184 Rail. Co. . 148 Hart V. Frontino, &c. , Mining Co . 145 Garland, Ex parte . 311 Harvey, Ex parte . . 256 Garrard v. Lewis . 113 Hastings, In re . 48, 239, 241, 273 General Estates Co., In re 145 Hatchard v. Mege . . 303 General Horticidtural Co., In •> •e 227 Hauxwell, Ex parte . . 64 General Rolling Stock Co., In re 282 Haydon v. Williams . 279 Genese, Inre . 249 Heaton's Trade Mark, In re . . 203 Gibson, Ex parte , 240 Heilbutt V. Hickson . 14 — V. Holland . 21 Hemingway, Inre . . 64 — V. "W"ay . 48 Hetherington v. Groome . . 71 Gilchrist, Ex parte . ' 15,24 0, 252 Hewer, Inre . . 65 Gillespie & Robarts, In re 129 Hewitt, Inre . . 244 XXIV TABLE OF OASES OITED. PAGE Heyworth, M pa,rte , . .242 Higgins V. Sargent .... 268 — V. Senior .... 24 Higgs V. Assam Tea Co. . . . 145 — V. Weaver .... 244 Higintotham v. Holme . . . 259 Hill, Ex parte ... 74, 260 — V. S. Staffordshire Eail. Co. . 269 Hindhaugli v. Blakey . . .112 Hoadley v. M'Laine . ' . 22, 23 Hotson, In.re 250 Hockaday, Inre . . . 74, 75 Holdsworth v. Hunter . . . 133 Holland, Inre 250 Holmes v. Penney .... 258 Holroyd v. Marshall . . 67, 96 Homfray v. Scroope .... 275 Hooper, Re 328 Hope V. Croydon and Norwood Tram- ways Co 148 Hopkins, In re . . . . 298 — V. Worcester and Birming- ham Canal Proprietors . . . 143 Home V. Roquette .... 135 Houghton and Hallmark's Trade Mark, Inre 204 Howe V. Earl of Dartmouth . . 309 Hubhard, Ex parte . . 64, 72, 78, 74 Hughes V. Little ... 72, 75 Hunt V. Clifford . . . .226 — V. Fensham . . . .226 — V. Wimbledon Local Board 50, 51 Hussey v. Home-Payne . . 20, 22 Hutchinson, Inre . . . 250, 260 Ide, Ex parte .... Ihlee V. Henshaw . Imperial Gas Light and Coke Co V. London Gas Light Co. Imperial Land Co. of Marseilles, In re ..... Ingle V. M'Cutchan . Irons i>. Smallpiece . Irvine v. Watson 239 206 277 145 102 8 25 Jacobs v. Latour. James, In re . Jarrett v. Hunter Jefferys v. Boosey Jenkinson, In re . 240 . 24 210, 211 252, 253 ] PAGE Jenkyn v. Vanghan . . 258 Johnson, Ex parte . 75, 240 Johnson v. Gallagher . 44 Jones, Ex parte . 37 — Inre , . 305 — V. Owens . 312 — V. Victoria Graving Dock Co. 51 Jordan, Inre . 252 Kahbn, Ex parte . 65 Kearsley v. Cole 235 Keeling, In re . . 239 Kelner v. Baxter . 26 Kemp V. Falk . 35 Kenworthy v. Scliofield 22 Kirk V. Gregory . 301 Knill V. Prowse 102 Knowlman v. Bluett 28 Knox V. Gye . 272, 273 Krugeri). Wilcox . . 84 Kurtz V. Spence • 194 Lacet, Lire . 250 Lampet's Case . 93 Lane, Inre . 74 Latch V. Latch 299 Law V. London Indisputable Life Policy .... 151 Lazarus, Inre . 245 Leaf, Sons & Co.'s Trade Mark Inre 202 Lee 1). Barnes . 71 Leeds Bank v. Walker 141 Leggott V. Western . 228 Le May ■». Welch . 197 Lennox, Ex parte . 242 Lewis V. Rucker 159 Lickbarrow v. Mason 32, 33 Lindenau v. Desborough . 160 Lindsay v. Cundy . 10 Linton v. Linton 246 Lintott, Ex parte 281 Liquidators of Overend, Gumey &Co. V. Liquidators of Oriental Fin aucial Corporation . 235 Liverpool Adelphi Loan Asso( iation V. Fairhurst. 42 Lloyd V. Fleming , 159 — & Sons' Trade Mark, In re 206 , 208 — V. Tench 323 Lloyds V Harper . . 234 TABLE OF OASES OITED. XXV PAGE London and County Banking Co. v. Terry 280 Lord V. Midland Rail. Co. . . 81 Lovering, Sx parte .... 252 Lowis V. Eiimiiey .... 282 Lucas V. Harris ... 95, 255 Lumley v. Simmons . . 72, 73 Lyde v. Barnard .... 238 Lynch V. Dayrell .... 160 Lyndon's Trade Mark, Inre . . 204 Lyon 1). Morris . . . .71 M'Kenzie v. British Linen Co. . 115 Mackenzie v. Mackenzie . . . 290 Mackintosh, Inre . . . . 242 Maclean v. Dunn .... 26 Maddison v. Alderson ... 15 Maggi; Inre 231 Maley, In the Goods of . . . 297 Mander v. Harris ... 46, 292 March, Inre . . . . 46, 292 Margary v. Robinson . . . 290 Market Overt, The case of . . 8 Marseilles Extension Rail. & Land. Co. , Smallpage's & Brandon's Cases, In re . Marshall v. Green , Mathers v. Green . Matthew, Ex parte . Matthews v. Baxter Matthiessen v. London & County Bank . May, Ex parte Melville v. Stringer Mercer, Ex parte Merle v. "Wells Meyerstein v. Barber Millar v. Taylor Miller v. Race . Mills V. Fowkes Mitchell, In re Mitchell & Co.'s Trade Mark, In re. M'Lean v. Clydesdale Banking Co. . Molton V. Camroux Mooro, Ex parte .... — & Robinson's Banking Co., Ex parte 66 Morant, In the Goods of . . . 302 Morgan v. Rowlands . . . 279 Morrioe v. Aylmer . . 165, 166, 167 Morrisi Inre 65 135 17, 18, 19 . 182 . 239 . 42 . 138 . 244 . 71 256, 258 . 234 . 77 210, 211 . 105 . 280 . 241 204 117 41 239 Morritt, Inre . 68, 73 Morton v. Tibbett . . 36 Moss, Ex parte 96, 251 Moyce v. Newington . 11 Mulliner v. Florence . 83 Munday, In re . 75 Murray v. Lord Elibaiik . 295 Murrell, Inre . 252 Myers v. Elliott . 71 Natal Investment Co., Inre . . 145 National Mercantile Bunk, Ex parte 75 National Provincial Bank v. Harle . 102 Neilson w. James . . . .173 Nelson, Ex parte. . . 74, 75^ 230 New City Constitutional Club Co., -f™™ 266 Newman, Inre . . , . 246 — V. Newman . . . 153 Newton's Patents, In re . . . 191 NichoU, Ex parte .... 240 Nichols to Nixey . . , .251 Normal Trade Mark, In re . 203, 208 N. Central Wagon Co. v. Manchester, Sheffield & Lincolnshire Rail. Co. 64 N. of England Oil Cake Co. v. Arch- angel Insurance Co. . . 158, 159 Nottage V. Jackson .... 220 Nottingham, Ex parte . . . 249 Nottingham Hide Co. v. Bottrill . 234 Nugent V. Smith .... 81 Oastlee, Ex parte .... 240 Odessa Tramways Co. v. Mendel . 54 Official Receiver, Ex parte, In re Morritt . 68, 73 — V. TaUby . 67, 97 O'HaUoran v. King. ... 48 O'Neil V. City & County Finance Co. 68 Oram, Ex parte .... 242 Ord V. White 95 Otto V. Steel 184 Overend, Gurney & Co., Lintott, Ex parte 281 Ovey, Inre 306 Owens, Be 312 Palmer's, J. B., Trade Mark, In re 206 Parker, In re . . 65. 76, 242, 254, 255 XXVI TABLE OF CASES CITED. PAGE Parsons, Ex parte . . .64, 72, 74 Payne, In re 246 Pearce, Ex parte . . . .71 — In re 250 — V. P)rooks . . . .54 Pearson, In re . . . 258, 259 — V. Pearson .... 207 Peirce v. Corf . . . .27 Pellas V. Neptune Marine Insurance Co 159 Perry v. Barnett .... 173 Peruvian Rail. Co. v. Thames & Mersey Mar. Ins. Co. . . . 114 Phelps V. Upton Snodsbury Highway Board 51 Philips, In re 40 Picker v. London & County Banking Co 149 Pickering v. Ilfracombe Rail. Co. . 54 Pickersgill v. Rodger . . 290, 291 Pike r. Fitzgibbon .... 44 Pinterton v. Easton ... 84 Pinnock v. Bailey .... 100 Player, In re 256 Plimpton V. Malcolmson . . .183 Price, In re 292 — In the Goods of . . . 297 Price's Patent Candle Co., In re . 202 Prince Albert v. Strange . . . 21 Printing, &c., Co. v. Sampson . . 55 Prynne, In re 99 Pye, Ex parte 305 Pyman v. Burt . . . .270 Queen v. County Court Judge of Essex 270 Ramsay's Case . 264 Eanelaugh, E., v. Hayes . 236 Rawlings, Ex parte . 72, 73 Reade v. Conquest . . 211, 212, 216 Reeves v. Barlow . . 64 — V. Capper . 61 Reed, Ex parte . 243 Reid, Ex parte . 247 — 1). Reid . 46, 292 Reuss V. Picksley . . 25 Reynolds v. Doyle . . 117 Rhodes, In re . Rigby, Me ... . River Steamer Co., In re Mitchell'i Claim ...... Roberts v. Roberts . Robinson v. Mollett Rogers, Ex parte Rolfe V. Gregory Rollason, In re RoUs V. Miller Rolph, Ex parte Ross V. Army & Navy Hotel Co. Rossiter v. MiUer . Routledge v. Low . Roux V. Salvador . Row V. Dawson RyaU V. Rowles . 94, 95, 96, 97, Ryder v. 'Worabwell rAGB 242 231 279 66 29 243 277 78 252 76 147 24 214 159 96 105, 253 38 Sadler's Co. v. Badcock Salaman, Ex parte . Sampson & Wall, In re . Sanders, In re Schmitz, Ex parte . Schotsmans v. Lancashire, &c. Co Schove V. Schmincke Schwerdtfeger, In the Goods of Scott V. Tyler . Shakespeare, In re . Sharman v. Brandt . Sheppard v. Duke . Sherry, Inre . Sibley v. Higgs Sievebright v. Archibald . Simpson v. Gutteridge Sinclair, In re Smith V. Anderson . — V. Lucas — V. Sparrow . — V. Tebbitt . Societe Gdn^rale de Paris v. Tram ways Union Co. . Souch V. Strawbridge Sontar's Policy Trust, In re South of Ireland CoUiery Co. Waddle Spalding v, Ruding . Spencer v. Clarke . 155, 160 246 40 239 239 R;iil 32 212 318 310 45 26 327 280 72 15 299 240, 257 4 41 60 41 175 28 153 50 35 153 TABLE OF OASES CITED. XXVU PAGE Spindler, In re 76 StafTord v. Stafford . 292 Stainton, In the Goods of 316 Stanford, Ex parte . 72 Stannard v. Harrison 218 — V. Lee 218 State Fire Insurance Co. ; ' limes Assurance Co.'s Case . 271 Steele v. M'Kinlay . 112, 129 Stephens, Exparte . 258, 259 Stewart, In the Goods of . 318 Storm V. Stirling 109 Stubbins, Exparte . 260 Studds V. Watson . 21 Suffell V. Bank of England 130 Sully, Exparte 252 Sutton's Ti-usts, In re 101 Swift V. Pannell 74 Swindell v. Bulkeley 276 Symington & Co. v. Footman & Co. 202 Symmons, Exparte 252 Tanner v. Smart . 277 Taunton v. Morris . 295 Taylor, Exparte 250 260 — V. Addyman 82 — V. Blakelock 105 — V. Bowers . 53 Tennent, In re 239 Thacker v. Hardy . 57 Thomas u Ketteriche 315 — V. Turner . 216 Thompson v. Dominy 146 — V. Gardner 27 Thomson v. Davenport . 24 Tihbits V. George . 96 ,251 Tollemache, Inre . 240 Toole V. Young 216 Tooth V; Hallett . 96 Topham v. Morecraft 324 Toward, Inre . . 96 ,251 Townley v. Sherborne 299 To-wnsend, Inre '.64,7 2, 74 Trench, Inre . 240 Tuff, In re . . . 249 Turner, Be . 231 Turquand, Exparte 65, 76, 254 , 255 — V. Board of Trade 244 Twycross v. Grant . 176 Twyne's Case . . 257 , 258 Tyrie v. Fletcher . • 159 PAGE United Stock Exchange Co. . . 264 Van Duzeu's Trade Mark, In re . 202 Vardon's Trusts, Inre . 41,48 Vanghan, In re . 306 — ■». Thomas . 306 Vertue v. East Anglian Eail. Co. . 114 Vilmont v. Bentley . 10, 11 Wadsworth v. Queen of Spain . 227 "Wain V. Warlters . . 22, 233, 327 "Waite V. Jones , 54 "Walker, Inre . , 240 — V. Bradford Old Bank 102 103 — V. Kussey . . . 20 "Wall V. Taylor . . ' . 215 "Wallace, In re . . . 243 "Wallis, In re . 252 "Walter v. Howe , 214 "Ward V. Eyre .... . 269 — 0. Turner , 285 "Ware, In re . . 82 "Warren, Exparte . . 250 "Warwick v. Bruce . , 40 Waters v. Tompkins 279 Watkius, Exparte . 253, 254 — V. Evans . 68, 73 Watson, Inre 242 Weaver, Inre . , 244 Webb V. Stenton . 228 Webber, Exparte . 95 255 Webster, Exparte . . 65 — V. British Empire Assurance Co. . . . 268 WeUcome's Trade Mark, In re , 207 Wensley, In the Goods of . 318 West London Commercial Bank v. Kitson .... , 114 Westhead v. Riley . 229 Whlnney, Exparte . 239 Whitaker, Inre . . 49, 284 , 291 White, Exparte . 246 White Rose Trade Mark, In re 203 ,204 Whittaker, Inre . 309 Whitting, Inre . 102 Wilder 1). Pigott . . 41 Wildes V. Dudlow . , 233 Wilkins v. Sibley . . 99 Wilkinson, Inre . , 260 — V. Evans , 22 xxvm TABLE OF CASES CITED. Williams, Ex parte . — Tnre — V. Lee ■Williams' Estate, In re PAGE . 230 71, 313 . 824 . 231 Willmott V. London Celluloid Co. 261, 267 Wilson V. Brett 81 — V. Strugnell. ... 53 Wingfield, Ex parte . . . 253 Winterbottom Hx parte . , . 239 Wise, Inre . . . . 256, 258 Wittmano'. Oppenheim . . . 199 Wolverhampton Banking Co., Ex PAOE parte .... Wood V. Dixie . 54 . 258 Woodall, Ex parte . Woodland v. Fuller . . 239 . 13 Woolridge v. Boydell — V. Norris. . 159 . 236 Wraggs' Trade Mark, In re 206, 208 Wright V. Wright . Wylson V. Dunn . 94 . 21 Zucco, In re . . 261 XXIX TABLE OF STATUTES CITED. -*- PACE 9 Hen. III. c. 18 (Magna Carta) 286 13 Edw. I. c. 19 (Statute of West. 2nd) 287 25 Edw. I. (Magna Carta) 286 4 Edw. III. c. 7 (Administration) 303 25 Edw. III. c. 5 (Administration) . . . ■ . ■ ib. 31 Edw. III. c. 11 (Administration) 288 21 Hen. YIII. c. 5 (Administration) 316 s. 3 321 s. 8 302 c. 11 (Restitution) 10 32 Hen. VIII. c. 1 (Wills) . • 285 2 & 3 Ph. & M. u. 7 (Horse : Markets and Fairs) 11 13 Eliz. c. 5 (Fraudulent Conveyance) 257, 259 27 Eliz. e. 4 (Fraudulent Conveyance) 257 29 Eliz. i;. 5 (Fraudulent Conveyance) ib. 31 Eliz. c. 12 (Horse : Markets and Fairs) 11 21 Jao. I. c. 3 (Monopolies) 180, 182, 183 s. 6 180 c. 16 (Limitations) 271, 280 fi. 3 272 s. 4 275 s. 7 273 22 & 23 Car. II. c. 10 (Distributions) 2, 292, 296, 314 s. 1 . ■ 321 S3. 1, 5 322 s. 4 323 29 Car. II. c. 3 (Frauds) 14, 16, 23, 24, 28, 36 s. 4 15, 17, 23, 27, 232, 326 s. 7 13 a. 16 12 s. 17 13, 15, 17, 19, 27 s. 24 292, 296 c. 7. (Sunday Sales) s. 1 59 1 Jao. II. 0. 17 (Distributions) 314, 322 s. 7 324 3 & 4 Anne, c. 9 (Bills of Exchange) 105 4 Anne, o. 16 (Limitations) 272 s. 19 - 275 7 Anne, c. 25 (Perpetuation of Acts) . 105 8 Anne, c. 19 (Books— Copyright) 211 XXX TABLE OP STATUTES CITED. 9 Anne, c. 6 (Assurance) s. 57 11 Geo. I. c. 18 (Wills— London) . 8 Geo. II. c. 13 (Engravings, &c., Copyright) H. 1 9 Geo. II. 0. 36 (Charities) .... 17 Geo. 11. c. 38 (Crown Debts) s. 3 . ' . 19 Geo. II. c. 37 (Marine Assurance) . s. 1, 2, 3 s. 6 s. 7 21 Geo. II. c. .40 (Spirits) . s. 12 . , . 7 Geo. III. c. ,38 (Engravings, &c.— Copyright} s. 6 . . . s. 7 . . ,. . . 12 Geo. III. 0. 7.2 (Bills of Exchange) s. 37 .. ... ss. .39— 43 14 Geo. III. c. 48 (Assurance) s. 1, . . . s,2 . ... . s. 3. . . . . • . , . c, 78 (Fire Assurance) . . s. 8.3 . ' . . , . 15 Geo. III. c, 53 (Books— Copyright) . ° . 17 Geo. III. _c. 5.7 (En.gravi.ngs— Copyright) 27 Geo. UI. c. 38 (Designs) .... 28 Geo..III. c. 66 (Assurance) ' , . s.. 1 29 Geo. III. c. 19 (Designs) .... 34 Geo. III. c. 23 (Designs) . 36 Geo. III. .c. 52 (Legacy Duty) . ss. 12—15 ... . s, 18 s. -3,2 .. ,. 38 Geo. III. u. 71 (Sculpture— Copyright) c. 87 . .... , s.,6 39 & 40 Geo. III. c. 36 (Bank of England— Chancery) c. 98 (Accumulations — Thellusson Act) 41 Geo. III. c. 107 (Books— Copyright) 45 Geo. I.1I. u. 28 (Legacy) s. 5 54 Geo. III. c. 56 (Sculpture— Copyright) . a. 1 ss. 3—6 c. 156 (Books — Coppight) . 55 Geo. 111. c. 149 (Legacy and Succession) . c. 184 PAflB 151 286 218 219 306 231 155 156 a. ib. 151, 218, 196, 58 218 219 ib 107 a. 160 ib. ib. 152 160 161 212 219 195 157 158 195 ih. 330 333 330 333 309 219 320 297 100 5 212 330 219 219 220 212 331 332 TABLE OF STATUTES CITED. xxxi PAGE 55 Geo. III. 0. 184, s. 37 302 s. 38 328 ss. 45—49 .... 329 Sched. Part III 332 4 Geo. IV. 0. 83 (Factors) 79 6 Geo. IV. e. 94 (Factors) 79 7 & 8 Geo. IV. c. 29 (Larceny) s. 57 10 9 Geo. IV. c. 14 (Contracts) 16, 17, 272 s. .1 277, 278, 279 s. 6 238 s- 7 13, 16, 17, 27 11 Geo. IV. & 1 Wm. IV. 0. 40 (Administration) 3II 3 Wm. IV. c. 15 (Dramatic and Musical Copyright) s. 2 215 s. 3 216 3 & 4 "Wm. IV. c. 14 (Savings Bank) s. 28 231 c. 27 (Limitation) 327 s. 6 313 s. 40 327 c. 42 (Law Amendment) s- 2 304 s. 3 271 ss. 3—5 281 s- 28 268, 270, 271 s. 29 269 c. 74 (Fines and Recoveries) s. 77 294 ss. 79, 80 ij. s. 91 ij. 5 & 6 Wm. IV. 0. 65 (Lectures— Copyright) 217 s. 5 218 1 Vict. c. 26 (Wills) 289 s. 1 2 • 3 289 ss. 7—9 290 ss. 14 — 25 iJi, a. 24 289 s. 29 290 s. 33 ib., 291 c. 73 (Companies) 162 ss. 2—5 163 s. 9 ih. s. 20 ib. s. 21 164 1 & 2 Vict. c. 110 (Execution Creditor) s. 7 270 s. 12 226 ss, 14, 15 ,228 c. 114 (Bills of Exchange) s- 1 107 s. 9 ij. XXXU TABLE OF STATUTES CITED. PAGE 2 Viot. 0. 13 (Designs) 195 c. 17 (Designs) 196 3 & 4 Viot. c. 82 (Judgment Creditor) s. 1 228 5 Viot; c. 5 (Distringas) ss.- 4, 5 ■ 99 Soted. I ill- 5 & 6 Vict. c. 39 (Factors) ■ . . . ■ 79 s. 1 ib. e. 45 (Books— Copyright) .- 212, 218 s. 2 ' 212, 213 s. 3 213 ss. 6—10 217 s. 11 213, 216 ss. 13—15 *. s. 18 214 s. 20 215, 216 ss. 20—22 . . 213 s. 21 215 s. 22 ib. s. 23 216 s. 24 213, 215, 216 ss. 25, 26 217 s. 26 216 s. 27 . 212 c. 79 (Administration) s. 23 329 0. 97 (Costs) s. 2 220 G. 100 (Designs) 196 s. 1 ..... ■ . . . . . ih. 7 & 8 Vict., c. 12 (International Copyright) 222 c. 110 (Companies) 162,168 8 Vict. c. 16 (Companies) 164 s. 1 il). s. 6 ib. S.I ib. a. 9 ib. s. 11 ■ ib. ss. 14—16 165 ss. 18—20. ib. s. 22 ib. s. 45—47 144 ss. 45—49 148 s. 49 • . 144 s. 61—64 165 s. 97 51 8 & 9 Viot. c. 76 (Legacy Duty) s. 4 329, 330 c. 91 (Bank of England) 299 c. 109 (Gaming) . s. 1.8 56 9 & 10 Viot. 0. 93 (Administration) 304 TABLE OF STATUTES CITED. xxxiii PAGE 9 & 10 Vict. 0. 95 (County Courts) s. B8 325 8. 65 ib. s. 66 ib. s. 76 281 S3. 95—97 230 10 & 11 Vict. 0. 96 (Trustees) 327 12 & 13 Vict. c. 74 (Trustees) ib. 13 & 14 Vict. c. 60 (Trustees) 154, 262 c. 61 (County Courts) 8. 1 325 c. 104 (Sculpture — Copyright) S3. 6, 7 220 15 Vict. c. 3 (Intestates' Estates) ... 317 s. 2 321 c. 12 (Engravings — Copyright) a. 14 218, 219 15 & 16 Vict. c. 12 (International Copyright) 222 c. 24 (Wills) 290 16 & 17 Vict. c. 51 (Succession Duty) s. 3 S34 3. 4 333 8. 5 334 s. 8 329 8. 10 .333 =.11 332 ss. 18—20 333 3. 19 331 83. 29, 30 334 s. 31 333 s. 32 334 8. 33 ... 333 ss. 39—41 . . 335 c. 59 (Bills of Exchange) 3. 19 116 17 & 18 Vict. c. 36 (Bills of Sale) 61 o. 104 (Merchant Shipping) 85 3. 18 ib. 3. 19 86, 87 S3. 37—39 87 s. 43 88 ss. 55—57 *. ss. 58—60 89 ss. 66, 69 ib. 8. 71 ii- s. 72 255 88. 73—87 89 ss. 88—91 90 c. 120 (Merchant Shipping) ... .... 85 c. 125 (Copimon Law Procedure) 230 s. 78 82 18 & 19 Viot. c. 43 (Infants) 40 c XXXIV TABLE OF STATUTES OITED. PAGE 18 & 19 Vict. c. 67 (Bills of Exchange) .... . 107 c. 91 (Merchant Shipping) 85 s. 11 . 88 c. Ill (Bills of Lading) .... 33 c. 133 (Companies) ... . 169 19 & 20 Vict. c. 47 (Companies) ib. c. 60 (Mercantile Law) s. 12 . 108 c. 94 (Administration) .... 324 c. 97 (Mercantile Law) . 272 s. 1 . 12, 226 s. 2 . 35 s. 3 . 22, 233 s. 4 . 234 s. 5 . 237 s. 6 . 112 s. 7 . . ... . . 108 s. 9 . 272 s. 10 273, 281, 327 s. 11 . 276 s. 12 275 s. 13 . 278 20 & 21 Vict. c. 57 (Married AVomen) .... 294 u. 77 (Prohate) . 288 s. 23 . . .... 302, 325 s. 29 . . 288 s. 30 . . 289 ss. 46—48 . 297 s. 50 ib. ss. 55—60 . ib. s. 70 . 298, 319 s. 72 . 320 s. 73 318 s. 74 . . . . . 320 s. 79 . . ... 302 ss. 81—83 . 321 c. 85 (Divorce) . . 42 s. 21 . 43 ss. 25, 26 ib. 21 & 22 Vict. 0. 95 (County Courts) .... . 288 s. 10 . . 297 s. 12 . ib. rs. 16 302 s. 18 . 320 s. 19 813 c. 108 (Married Women) ss. 8—10 . 43 22 & 23 Vict. c. 35 (Law of Property) s. 21 . 103, 104 ss. 27—29 805 s. 30 328 ». 31 ...•., 299 TABLE OF STATTJTES CITED. XXXV 22 & 23 Vict. c. 35, s. 32 . 23 & 24 Yict. c. 15 (Administration) ss. 4, 5 . c. 38 (Judgment Debtor — Kegistration) ss. 3—5 .... =.9 ss. 10, 11 . . . s. 13 .... c. 126 (Common Law Procedure) c. 127 (Solicitors) s. 28 0. 145 (Trustees) s. 30 s. 34 . 24 & 25 Vict, c. 92, s. 93 c. 96 (Larceny) s. 100 " . c. 101 (Copyright) . 25 & 26 Vict. c. 38 (Spirits) .... c. j63 (Merchant Shipping) s. 3 . i;. 68 (Paintings, &c. — Copyright) s. 1 a. 3 ss. 4—6 . ss. 7—9 b. 10 . ss. 11, 12. c. 89 (Companies) s. 2 . 3. 4 ss. 6—10 a. 10 s. 12 . s. 14 s. 15 s. 16 s. 18 ss. 22—26 ss. 28—31 s. 34 rs. 35 . s. 38 s. 43 . s. 47 s. 48 . S3. 50, 51 . ss. 74—78 s. 75 . s. 79 . PAGE 309 329 231 328 309 327 230 84 311 ib. 329 9 10 219 59 85 lb., 220 221 222 221 222 221 222 51, 168 169, 262 . 170 169 170 171 173 171 172 281 172 ib. 175 . 172 264, 265 . 147 114, 115 . 171 . . 173 . 264 269, 281 . 177 c 2 XXXVl TABLE OF STATUTES CITED. 25 & 26 Vict. 0. 89, a. 79 (4) . s. 80 . s. 81 s. 82 . s. 84 s. 85 . s. 87 s. 98 . s. 129 d. 147 . s. 158 s. 163 . s. 164 s. 196 . s. 199 s. 199 (3) (6) . s. 199 (4) . ss. 199—204 . s. 205 s. 209 pts. Ti., vii., & viii Sched. III. . Table A. . 26 & 27 Viot. 0. 57 (Regimental Detts) c. 118 (Companies) s. 22 s. 34 . 27 & 28 Viot. c. 56 (Administration) .s. 4 0. 95 (Administration) 28 & 29 Yict. c. 78 (Debentures) . s. 37 s. 38 . c. 86 (Partnership) ss. 1—6 . s. 5 . c. 99 (County Courts) s. 1 (1) s. 1 (5) . . 8. 1 (5) . . ss. 2, 3 s. 5 s. 8 . ss. 9, 10 29 & 30 Viot. c. 96 (Bills of Sale) c. 108 (Railways) s. 10 . ss. 14—18 30 Vict. c. 29 (Companies) . 30 & 31 Viot. 0. 35 (Restitution) s. 9 u, 69 (Assurance) PAGE . . 263 . ib. 177, 179 . 263 265 266 ib. 265 178 ih. 266 ib. 267 264 178 263 ib. . 170 168, 169 170, 264 170 168 172, 174, 175 231 144 ib. 329 304 150 ib. ib. 7 249 32 262 328 326 ib. 230 326 61 144 ib. 168, 173 10 151 TABLE OF STATUTES CITED. XXXvii PAGE 30 & 31 Viet. 0. 124 (Merchant Shipping) 85 c. 127 (Railways) a. 26 144 0. 131 (Companies) 168, 171, 173 ss. 4—8 171 ss. 9—22 173 s. 23 171 s. 24 174 s. 25 ib. s. 26 172 ss. 27—32 175 =.37 51, 114 s. 38 176 s. 40 263 ss. 41—46 179 0. 142 (County Courts) s. 4 59 s. 24 328 c. 144 (Assurance) .......... 152 ss. 1, 2, 5 ib. s. 3 153 31 & 32 Tict. 0. 86 (Marine Assurance) 159 ss. 1, 2 ib. c. 124 (Administration) s. 7 328 c. 129 (Merchant Shippiug) 85 32 Vict. 0. 11 (Merchant Shipping) ii. 32 & 33 Viet. c. 46 (Administration) . 232 c. 48 (Companies) ss. 1—4 144 c. 62 (Debtors) ss. 4, 5 224 s. 5 242 c. 71 (Bankruptcy) s. 92 259, 261 33 Vict. c. 14 (Naturalisation) s. 14 86 33 & 34 Vict. c. 35 (Apportionment) 285 c. 61 (Life Assurance Companies) 170 0. 93 (Poor — Guardians) 153 s. 10 ib. c. 102 (Naturalisation) 86 u. 104 (Companies) 168 34 & 35 Vict. c. 58 (Life Assurance) 170 c. 87 (Sunday Observance) 60 0. 110 (Merchant Shipping) 85 35 & 36 Vict. c. 39 (Naturalisation) 86 c. 41 (Life Assurance) 170 s. 4 177 s. 8 170 c. 44 (Chancery Funds) 309 u. 73 (Merchant Shipping) - 85 XXXVIU TABLE OF STATUTES CITED. 35 & 36 Yiot c. 93 (Pawnbrokers) . B. 10 B. 16 ... s. 17 . B. 18 s. 19 . s. 24 s. 27 . s. 28 36 & 37 Tict a. 35 (Debenture s. 5 . s. 11 . s. 13 s. 14 . c. 66 (Judicature s. 16 s. 24 . !s. 25 (6) s. 25 (8) s. 25 (11) B. 31 . s. 34 3) . . ' 8. 34 (3) c. 85 (Merchant Shipping) . 37 & 38 Vict. c. 42 (Building Societies) s. i . s. 32 . c. 57 (Limitation) ss. 8, 9 . 0. 62 (Infants) . s. 1 s. 2 . c. 85 (Judicature) s. 10 . 38 & 39 Vict. e. 9 (Building Societies) c. 12 (International Copyright) u. 55 (Public Health) s. 174 c. 60 (Friendly Societies) s. 15 (7) . c. 66 (Companies) .... c. 77 (Judicature) s. 2 s. 10 s. 18 .... c. 91 (Trade Marks) 39 & 40 Vict. c. 36 (Customs) .... s. 42 ss. 44, 45 . u. 45 (Industrial and Provident Societies] s. 6 B. 17 . , , PAOB 78 ib. ib. ib. 79 ib. 78 79 ib. 149 150 ib. ib. ib. 288 101 100 229 6, 101 289 262 325 85 179 ib. ib. 327 ib. 37, 40 37 ib. 232 179 222 51 179 231 169 289 266 289 202 213, 217 ib., ib. ib., ib. 179 ib. ib TABLE OF STATUTES CITED. xxxix PAGE 39 & 40 Vict. c. 80 (Merchant Shipping) ,85 c. 81 (Cheques) 135 40 & 41 Vict. u. 26 (Companies) 169, 173 c. 39 (Factors) s. 2 79 s. 5 34 c. 63 (Building Societies) . . 179 41 & 42 Vict. c. 13 (BOIs of Exchange) 112 c. 31 (BiUs of Sale) 61,147 s. 1 62 s. 3 74 s. 4 62, 63, 74, 88, 147 B. 5 62, 63 s. 7 66 =.8 74 s. 10 65, 74, 76, 147 (2) 65 (3) ib. H. 11 ib. s. 13 ib, s. 14 66 s. 15 76 s. 21 ... 65, 76 s. 23 62 c. 38 (Innkeepers) 83 c. 54 (Debtors) s. 1 .224 42 & 43 Vict. c. 76 (Companies) 169 s. 5 174 43 Vict. u. 14 (Administration) ss. 9, 10 328 s. 11 335 s. 13 ■ 329, 332 c. 19 (Companies) 169 43 & 44 Vict. c. 18 (Merchant Shipping) 85,87 c. 22 (Merchant Shipping) ... .... 85 c. 43 (Merchant Shipping) ... . . . . ib. 44 Vict. c. 12 (Customs) 328 s. 28 ib- ss. 31—36 329 a. 36 ... . 332 ss. 38—40 329 a. 41 332, 333 s. 43 335 44 & 45 Vict. K>. 41 (Conveyancing and Law of Property) s. 2 (1) 1 =.7 ... 72 s. 19 68 s. 20 ib., 73 s. 34 (1) (2) (3) 103 s. 37 311. 312 a. 38 7, 300 Xl TABLE OF STATUTES CITED. PAQB 4i & 45 Vict c. 41, B. 39 49 s. 40 *• ». 43 4 s. 50 103 ». 60 52 s. 71 311 45 & 46 Viot. c. 38 (Settled Land) s. 64 ib. u. 39 (Conveyaucing) s. 1 (4) (i.) .... 1 s. 7 73, 294 c. 40 (Music— Copyright) ... ... 213, 215 .;. 43 (BiUs of Sale) 61 s. 2 67 s. 3 63, 64, 66, 74, 76 s. 4 66 s. 5 ib. s. 6 ib. s. 7 67, 68, 69 s. 7 (2) 73 s. 7 (4) 71 s. 8 65, 74 s. 9 64, 68, 69, 70, 74 s. 10 65, 74 s. 12 64 s. 13 68 s. 15 ... 67 s. 17 147 c. 60 (Corporations) s. 70 (2) 263 c. 61 (Bills of Exchange) 107 s. 2 ' 112, 113, 139 =. 3 107 s. 4 108 =.7 109 s. 8 a., 119 s. 8 (1) 120 s. 9 (3) 130 s. 10 110, 140 s. 11 110 s. 13 Ill s. 14 ib. o. 15 ib., 132 s. 17 Ill s. 19 (2) 112 =). 19 (2) (a) 120 8. 19 (2) (c) 128 «. 20 113, 130 s. 21 112, 113, 119, 139 s. 22 . . 114 s. 23 115 s. 24 ij. TABLE OF STATUTES CITED. xli PAGE 45 & 46 Yict. c. 61, ss. 25, 26 . 116 S.27 .... 117 s. 28 ib., 118 s. 29 lis, 121 s. 30 117 o. 31 .... 119 s. 32 (1) ib. ^. 32 (4) . ib. s. 32 (6) 120 ss. 33, 34 . . . . . ib. s. 35 (1) ib. s. 36 .... ib. s. 36 (3) . 140 s. 38 .... 121 s. 39 (1), (2), (3) . . . ib. s. 40 .... 122 s. 41(1), (2). . . . ib. ss. 42, 44 . ib. s. 43 Ill ». 43(1) .... 120 s. 45 123 SS.45, 46. 140 s. 46 135 =. 46 (1) . 124, 126 s. 46 (2) ..... 123, 125 s. 47 .... Ill, 124 s. 47 (1) . . . . 120 0. 48 .... 124 s. 49 125 ». 50 .... 127 B. 50 (1) 126- s. 60 (2) . 125 s. 51 131 s. 51(1), (2) . . . 127 s. 51 (5), (9) . . . . ib. ,,.51(7) .... 126 s. 61 (8) . 127 s. 52 .... 128, 140 s. 53 (2) 107 s. 54 .... . . 128 s. 55 ib. s. 56 .... 129 B. 57 ib. s. 57(1) .... 270 s. 59 (1), (3) . . . . 130 =.60 .... 116 BS. 61—64 . . . . 130 ». 65 .... 131 s. 65 (3) . 132 ». 66 .... 131 s. 67 132 s. 68 .... ib. xlii TABLE OF STATUTES CITED. 45 & 46 Vict. c. 61, s. 71 . s. 72 s. 72 (3) ,->. 73 . s. 74 . s. 75 . . s. 76 (1) s. 76 (2) . ». 77 . s. 81 . =. 82 . s. 83 s. 84 . s. 85 ». 86 . B. 87 . ». 88 . s. 89 . . o. 91 . s. 93 . . s. 94 . s. 95 s. 96 . s. 97 s. 97 (1) =. 97 (2) . s. 97 (2), (b) . s. 97 (3), (d) . s. 98 . s. 100. Sohed. 1 . c. 75 (Married "Women) s. 1 s. 1 (1) . . s.l(2). . s. 1 (3) . . «. 1 (4) . s. 1 (5) . . s. 2 s. 4 . =. 5 . S3. 6—10 B. 11. s. 12 =. 13—15 Sf5. 13, 14 a. 14 s. 15 . s. 17 s. 18 . s. 19 . 97, 108 153, 252 ib. 46 46 153 45, 48, 49, 284, 133 134 135 ib. ib. 136 ib. 137 ib. ib. 138 139 ib. 140 ib. ib. ib. 141 114, 115 127 ib. 138 112, 135 131, 136 107 . ib., 129 114 138 107 ib. 127 295, 297 290, 298 44 291 44, 274 45 , ib. 240, 252 290, 291 , 249 , 262 290, 291 , 98 154, 257 48, 275 47, 282 . 265 . 283 284 a , 98 98, 298 290, 291 TABLE OF STATUTES CITED. xliii 45 & 46 Vict. c. 75, s. 23 . s. 24 . s. 25 . 46 & 47 Vict. c. 28 (Companies) c. 41 (Merchant Shipping) c. 52 (Bankruptcy) . s. 4 (1), (as)-(d) s. 4 (1), (J) . s. 4 (1), (c) . s. 4 (1), (e) . s. 4 (1), (e), (3) s. 4 (1), (/), {h} s. 4 (1), (/) . s. 5 . ss. 5, 6 . s. 6 (2) . s. 6 (c) . ». 7 (3), (4), (5) s. 8 s. 8 (1) . . s. 9 s. 9 (2) . s. 10 (ij, (2) . s. 12 . . s. 18 (1) s. 18 (10), (11) . o. 20 (1) s. 21 (1) . s. 22 (1) ». 23 . . s. 23 (1), (3) . ». 28 (2), (3), (6) ss. 28, 29 3. 30 (1), (2) . s. 37 (l)-(3), (8) ». 37(4)-(7) . s. 39 s. 40 (1), (2) . s. 40 (3) . a. 40 (5) s. 42 . s. 43 . s. 44 (1), (2) s. 44 (i.) s. 44 (i.) (ii) s. 44 (iii.) s. 45 - 46 (1), (2) s. 46 (3) . s. 47 . s. 48 (1) . 153, 153, PAGE . 296 . 2, 298 . 292 . . 169 . 85 , 239, 257 . 240 . . 257 . 259 . . 261 . 239 . . 240 . 241 . . 242 . 241 . , 250 . 251 . . 242 . 241 . . 240 . 242 . . 249 . 242 . . a. . 243 . . ib. 244, 251 . . 244 . ib. . . 245 . 243 . . 246 . 245 . . 246 . ib. . . 247 . ib. 249—270 . 247 241, 248 . 271 . . 249 . 251 . . 252 . 246 . . 251 . 253 . . 250 . ib. . . 251 , 256, 257 . . 259 xliv TABLE OF STATUTES CITED. PAOB 46 & 47 Viet. e. 52, s. 48 (2) 260 ss. 48, 49 261 s. 49 258 B. 60—54 244 s. 63 (1), (2) 255 s. 66 (1), (2) 245 s. 66 (4) 261 s. 57 (1), (4)— (9) 245 s. 59 241, 248 s. 64 245 s. 66 243 s. 70 tJ. s. 70 (1) (c) 243 a.70{l){g) 244 o. 92 241 83. 95, 96 ib. B. 103 (5) 243, 261 s. 108 262 sa. 110—115 241 s. Ill 242 s. 121 , . . . . 244 s. 122 243, 261 s. 123 262 ». 125 244, 261 s. 125 (3) 262 s. 145 226 B. 147 .... 262 s. 152 153, 240, 257 s. 168 (1) 240, 250, 252 Sched. 1 243 r. 12 249 r. 13 241 Sched. II., rr. 9—12 249 I-. 16 ib. r. 18 241 r. 20 270 c. 57 (Patents, Designs, and Trade Marks) .... 181, 220 B. 3 191, 192 B. 4 (1), (2) 182 =. 5 (1), (2) ib. 8. 5 (2), (3), (4). (5) 185 s. 6 186 8. 7 (1), (2), (3) ib. 8. 7 (5), (6) 187 8. 8 185 s. 9 (1), (2), (3) 186 B. 9 (4). (5) . . . . 187 s. 10 ■ . . . ib. s. 11 (1) 188 8. 11 (2), (3), (4) 189 B. 12 (1), (2), (3) ib. f. 13 187, 189 TABLE OF STATUTES CITED. xlv 46 & 47 Vict. 0. 57, ss. 14—17 s. 18 (9) ss. 18—21 s. 22 . s. 23 (1), (2) s. 23 (3) s. 24 s. 25 . s. 26 (1), (2X (3), (4) B. 26 (8) B. 27 8. 32 . s. 33 s. 34 . s. 35 s. 36 . 8 37 s. 39 . ss. 40, 41 s. 43 . s. 44 s. 45 (2) s. 46 . s. 47 (1), (2), (3) s. 47 (4), (5), (6), s. 48 (2) 8. 49 8. 50 (1) s. 50 (2) . s. 51 . s. 52 s. 53 . 83. 54, 55 . s. 56 . 8. 57 8. 58 . n. 59 s. 60 . 8. 61 S3. 62, 63 ri, 64 (1), (2) s. 65 . BS. 66, 67 . 8. 68 . s. 69 (1), (2) B. 69 (3), (4) . 8. 70 s. 71, 72 . s. 73 8. 74 (1) {a), (2) ss. 75—77 s. 78—80 (7) PAGE 190 193 128 192 193 194 190 191 192 193 191 194 189 ib. 193 ib. 190 185 187 192 191 191, 192 182, 183 197 198 ib. ib. ib. 199 ib. 200 200 199 200 198 200, 201 201 196, 220 197 203 202 203 205 203 ib. 204 207 204 203 206 ib. 207 xlvi TABLE OF STATUTES CITED. PAGE 46 & 47 Viot. c. 57, s. 81 . . 208 s. 82 186 s. 82 (1) 182 B. 83 .... 186 s. 84 189 s. 85 194, 199, 207 s. 86 190, 198 s. 87 199 ss. 87—89 207 S8. 87—91 194 s. 88—91 200 s. 90 208 s. 91 ib. s. 92 207 s. 94 186, 190 s. 95 190 B. 99 182 s. 101 181, 196, 202 a. 103 (1), (2), 13) 209 s. 104 *. s. 105 195, 201 ss. 107—112 181 =.113 196, 202, 220 ss. 116, 117 182 s. 117 186, 192, 194, 197, 202 Sched. 1 189, 197, 203 Sched. Ill 220 47 & 48 Vict. c. 41 (Building Societies) 179 c. 71 (Intestates' Estates) S3. 2, 3 317 48 & 49 Vict. c. 51 (Inland Revenue) s. 11 335 Pt. II ib. c. 63 (Patents, Designs, and Trade Marks) . . . 181, 196, 202 s. 2 182 s. 3 . . 185, 187, 189 s. 4 187 s. 5 182, 186 s. 6 209 49 Vict. c. 23 (Companies) 169 49 & 50 Vict. c. 28 (Bankruptcy) s. 3 247 c. S3 (International Copyright) 222 s. 8 214, 223 c. 37 (Patents, Designs, and Trade Marks) .... 181, 196 =.2 185 s. 3 185, 198 50 Vict, c. 5 (Expiring Laws Continuance) 60 TABLE OF STATUTES CITED. xlvii KULES OF SUPREME COURT. PAGE R. S. 0. 1880, Ord. XLVI. r. 2a 99 1882 65 1883, Ord XIV 107 Ord. XVII 276 Ord. XIX. r. 15 28, 281 Ord. XXII. r. 17 309 Ord. XLII. r.l 224 1.3 ib. r. 6 225, 229 r. 10 225 I. 16 270 r. 17 225 rr. 22, 23 (a) 230 r. 23 (a) (6) (c) ib. 1. 23 (rf) . . 231 r. 24 224 1. 28 224, 225 rr. 31—33 225 r. 32 228 Ord. XLIII. r. 2 . . 226 rr. 3—5 227 1. 5 226 r. 6 225 rr. 6, 7 229 Ord. XLIV. ... 224 Ord. XLV. 225, 227 r. 2—6 ib. Ord. XLVI. r. 1 . 225, 228 1. 2 99 rr. 2—11 98 1. 8 99 rr. 12—13 .100 r. 14 . ; 98 Ord. XLVIII 82 1. 1 225 rr. 1, 2 229 Ord. L. r. 8 84 Ord. Lll. rr. 19—22 328 Ord. LV 325 i. 2 . . . . 328 i:5A,{h) 299 r. 57 282 rr. 62, 63 270 Ord. LXI. rr. 25—27 ?5 r. 26 76 r. 27 ib. Xlviii TABLE OF STATUTES CITED. FAQE E. S. C. 1883, Ord. LXV. r. 26 328 Ord. LXXI. r. 1 224 App. B 227 App. H 226, 227, 229 App. K 228 RULES OF COUNTY COURT (1886). K. C. 0. 1886, Ord. III. rr. 17—29 326 Ord. VI. r. 6 ib. Ord. X. r. 14 281 Ord. XXII. r. 11 326 Ord. XXIV ib. Ord. XXV. x.l. 230 rr. 4—12 ib. 1. 9 (c) 231 r. 50 82, 230 r. 51 230 Ord. XXVI ib. Ord. XXXVIII. i. 1 328 Ord. XXX 304, 325 1. 10 230 Ord. XLIX 297 Ord. LI. 1. 13 270 RULES, BANKRUPTCY (1886). G. E. 6 (e) 261 86 242, 244, 261 157—169 242 190 244 227—331 282 *** Where reference is made to GOODEVE'S MODERN LAW OP REAL PROPERTY it is cited as M. L. R. P. THE MODEKN LAW PEESONAL PEOPEETY, INTKODUCTION. This treatise is upon that branch of the Law of Property Intro, which deals with things movable, or goods and chattels Personal or (excluding chattels real), or personal property (excluding property. leaseholds) (a). It comprises, on the one hand, corporeal ^*^^°^^^;o^_ chattels or choses in possession; on the other hand, in- chores in corporeal chattels or choses in a ction. Examples of the latter class are debt s, stock in the public funds, shares in companies, patents, copyrights, &c. Among the former class are included tree s, cut or blown down, and severed from the laud, and the fruit or produce when seyeredjrom the body of the tree, tenant's fixtures, and animals domitce naturae. Both classes are expressly mentioned in the definition of property in the Conveyancing Act, 1882 (5). In that Act ' property ' includes " real and personal pro- perty, and any debt, and any thing in action, and any (o) As to tlie origin and meaning (6) 45 & 46 Vict. c. 39, s. 1 (4) (i.) ; of these classifications and what they and see Conveyancing and Law of comprehend, see M. L. R. P. Intro. Property Act, 1881 (44 & 45 Vict, part i. ; and, as to chattels real or c. 41), s. 2 (i.). leaseholds, ih. ch. v. THE MODERN LAW OE PERSONAL PEOPEETY. Intro. other riglit or interest in the nature of property, whether in possession or not." Also in the Married Women's Property Act, 1882, 'property' includes a thing in action (c). In the Wills Act (d) ' personal estate ' extends to " monies, shares of Government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, and goods." Contrasted " The law of property in movables," says Professor Bell, "is immovTbir ^^^^ peculiar than that of territorial property. Movables were of property. little consideration under our early law. Possession was the badge of property in them while a man lived; and, by equal divisio n among his family on his death, those of his movables were dis- posed of which were not requisite for the heir's equipment for his feudal duties. Mova,bles^ unaffected by any_of the rules of the feudal law, remained under the rules_of a jurisprudence_imme- diately derived from the Civilians ; jjq jnany of it s doctri nes modified, and in some respects improved, by the Canonists. In modern times, movable property is frequently of much greater value than property in land. It is the part of the wealth of the people most generally diffused, and the most frequent subject of transaction and of transference. And although it makes not so great a figure in our law books, the modes of its transference being simple, and less exposed to those blunders and mistakes out of which so much litigation and so many doubts arise, a correct knowledge of the rules by which it is regulated, and of their combinations, is of great consequence in the daily transactions of life " (e). No heir. Personal property upon the death of the owner domiciled in England, in the absence of testamentary or other dis- position, goes through an administrator appointed by the Court beneficiallj^ to the next of kin of the deceased, who are ascertained under the Statute of Distributions (/), not (c) 45 & 46 Vict, c, 75, s. 24. Scotland, edited by Gutlirie, § 1283. (d) 1 Vict. c. 26, s. 1. (/) 22 & 23 Car. IL c. 10. See (e) Bell's Principles of the Law of post, ch. xiv. INTEODUCTION. to the -lieir. It is subject to the law whicli g^overns tlie Intro. person of the owner ; and, therefore, if he dies, it is not the Domicile of * - ' — — — — ' ' ' ' owner. law of the country in which the property is, but the law of the country of which he is a subject , that will regulate the succession — mobilia sequuntur ^rsonam. Personal property (excluding chattels real or leaseholds) No estate, is not the subject of tenure but of absolute ownership, and, therefore, cannot be held for an ' estate ' {g). Although in assigning an absolute interest by deed, it has been usual to assign it to a man, his executors, administrators and assigns, as an interest in land in fee simple was conveyed to a man, his heirs and assigns, there was no necessity for doing so ; and since the Conveyancing Act did away wit h tlie_ne cessit y oL limiting^aiL .estatejn fee._simpla_taja„m.an and his heir s (7^), the practice has been less common. For the mirpose of^giying limited interests, or interests Limited or in succession, the interposition of trustees is strictly interests— ■^ """^ ~ - ' " ' — " trusts ■ necessary ; and powers are conferred upon them in the powers— ~~ II', n , ,1 1 settlements. same manner and subject generally to the same rules as upon trustees of real estate {i). For instance, supposing a man about to marry desires to settle a sum of stock for the benefit of his wife and the issue of the marriage, he would transfer it into the names of trustees, and by the settlement declare that it should be held by them on trust to pay the income (say) to his wife during the joint lives of himself and his wife, then to the survivor for life, and after on trust for the issue of the marriage on attaining majority, equally or as the parents may appoint, with powers of main- tenance, education, and advancement in the meantime. (51) See M. L. E, P. 39. 320 d eeq.; as to trustees, ib. 278 {h) See M. L. R. P. 86. et seq, (i) As to powers, see M. L. R. P, B 2 THE MODEEN LAW OP PEESONAL PEOPEETT. Intro. The power of applying the income of property for the maintenance, education, or benefit of an infant need no longer be expressly conferred by the instrument creating the trust ; for trustees are now empowered by the Convey- ancing and Law of Property Act, 1881, in the absence of expression of contrary intention, to apply the income of any property held by them for an infant, whether for life or for any greater interest, and whether absolutely or contingently on his attaining the age of twenty- one or the occurrence of any event before, and they are directed to accumulate the income at compound interest (y). The trustees are in law the ov/ners of the property transferred to them, and deal with it as principals, as owners, and as masters, sub- ject only to an equitable obligation to account to those persons to whom they stand in the relation of trustees, and who are their cestuis que trust (k). But in the case of^is- position by will the gift may be made direct to the succes- sive takers, who, therefore, seem to take an estate : in fact the Court, in place of trustees, is ready to interpose for the protection of the successive interests, and thus preserve the property through the whole number of successive takers for the benefit of the person entitled to the ulterior and absolute interest (Z). The nature of the property may prevent the possibility of future interests ; thus articles quce ipso usu consumuntur must be given absolutely, unless they form part of a stock-in-trade (to) ; and even then the interest will be held to be absolute if the taker is not to be liable to ( j) 44 & 45 Vict. c. 41, s. 43. As 282—4 et seq. to receipts by trastees, retirement of (k) See per James, L.J., in Smith v.- trustees, appointment of new trustees, Anderson, L. E. 15 Ch. D. 275. and vesting the trust property in them (I) Jarman on WUls, i. 879, 880. by declaration, and the powers of (m) lb.; and Theobald on Wills, trustees generally, see M. L. R. P. 439. INTRODUCTION. account for any diminution or depreciation in the stock (n). Intro. A limited interest of the nature of an estate tail cannot be created in personalty ; an attempt to do so would give the absolute interest to that person who, if the subject-matter were realty, would be the first tenant in tail. " For," says Blackstone (o), " this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail ; and therefore the law vests in him at once the entire dominion of the goods." The rule against perpetuities, that is, against tying up pro- Perpetuity, perty beyond a limited period, applies equally to real and to personal property. So that personal property may not, any more than real property, be so disposed of as to render the corpus inalienable for a longer period than a life or a series of lives in being at the time of the disposition and twenty- one years afterwards, with a further period of gestation where existing (p). Similarly, as in the case of realty, the periods during which alone income may be accumulated are prescribed by the Thellusson Act (q). Personal property, like real property, may be owned by Ownership several jointly with benefit of survivorship, or in common, common— ia or it may be owned in severalty. Says Blackstone (r) :- " If a horse, or other personal chattel, be given to two or more, absolute!}', they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship. So also, if (n) Breton v. Moclcett, L. K. 9 Ch. (?) 39 & 40 Geo. III. c. 98. See D. 95. M. L. E. P. 10.3 et seq. \o) VoL ii. 398. {r) 2 Bl. 399. Ip) See M. L. K. P. 101 et seq., 233. severalty). 6 THE MODERN LAW OF PEESONAL PEOPEETT. Intro. ^100 be given by will to two or more, equally to he divided between them, this makes them tenants in common ; as the same words would have done in regard to real estates." Tartiiers. The legal maxiiu jus accrescendi inter mercatores locum non hahet applies to prevent a right of survivorship in partnership chattels. And the same law which excepts the goods of merchants, for the benefit of commerce, from the general law of joint tenancy, extends to those of manu- facturers (s). In truth, the share of each partner is not a ehare in any specific asset or any specific part of the assets, but is his share of what will ultimately come to him when the accounts are ascertained, and when the partners who are to contribute have contributed, and when the assets are got in, the debts paid, and the amounts realised (t). The joint ownership in partnership property, or joint share in the profits of the business, gave rise to the joint liability of the partners at law ; in equity their liability was held to be several as well as joint, tLat is to say, each singly, as well as all of them collectively, was r esponsib le for all the debts and engagements of the firm ; an^ now the rules of equity prevail (m). The joint interest in the assets or profits of the business giving rise to the liabihtj'-, it will extend even to a dormant partner ; on the other hand, the letting it be supposed that one is a partner, whereby credit is given to the firm, even though having no longer any interest, will make such person liable (:c). The hardship caused by the mere interest in the profits of the business constituting liability to third parties as a partner (s) Buckley v. Barher, 6 Ex. 164. {it) Jud. Act. 1873 (36 & 37 Vict. (t) Per James, L.J., in Ashvorth v. c. 66, s. 25, § 11). Munn, L. R. 15 Ch. D. 370 ; and see (x) See Smith's Mer. Law, Bk. i M, L, R. P. 14. ch. 2. INTRODUCTION. gave rise to BotjU's Act to amend the law of Partnership, Intro. which enacted that a loan to a person (including a firm, a company, and a corporation), engaged or about to engage in any trade or undertaking, upon a contract in writing that the lender should receive a rate of interest varying with the profits, or a share of the profits, should not of itself constitute him a partner (?/) ; nor a contract for the remuneration of a servant or agent by a share of the profits (z) ; nor the receipt by way of annuity by the widow or child of a deceased partner of a portion of the profits(a); nor the receipt by way of annuity or otherwise of a portion of the profits in consideration of the sale of the goodwill of the business (b) ; but in the event of bankruptcy of the partnership such lender or vendor is not to be entitled to recover any profits until the claims_of the other creditors have been satisfied (c). When a chose in action is in joint names, for instance. Joint choso stock in the public funds in the names of two trustees, the legal right is in the survivor (cZ), though he may be respon- sible to others in equity. And, by virtue of the Conveyancing and Law of Property Joint power Act, 1881, where a power or trust is given to or vested in two or more executors or trustees jointly, under instruments coming into operation after 1881, in the absence of expres- sion of contrary intention, the same may be exercised or perfbimadJby Ihe survivor or survivors for the time being (e). (y) 28 & 29"Vict.'c.'8C,'ss. 1, ff. (c) S. 5. See generally upon the (z) S. 2. Act, Lindley on PartnersMp, 43 et seq. (a) S. 3. {d) Grossfield v. Such, 8 Ex. 825. (6) S. 4. , (e) 44 & 45 Vict. c. 41, s. 38, THE MODERN LAW OF PERSONAL PEOPEETT. Chap. I. Nature of. I. Transfer of A. by delivery. Title. Market overt. CHAPTER I. COKPOEEAL THINGS — CHOSES IN POSSESSION. CoEPOEEAL goods and chattels, or ' choses in possession,' include all things which, being themselves capable of inotjon or of being moved, may be perceived by the senses — seen, touched, taken possession of : as ships, household furniture ; goods and effects of all kinds ; farm stock and implements ; horses, cattle, and other animals ; corn, money, jevpels, wearing apparel, " Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons to the exclusion of the rest of their creditors, for remedy whereof be it therefore enacted, &c." This enactment was repealed in 1878, and another Act Bills of Saie was passed to consolidate and amend the law relating to 1882! ' bills of sale, which in its turn was amended in 1882 ; so ' that the law now in force is contained in the Bills of S ale Acts, 1878 and 1882 (c), except as regards bills of sale (a) Bemes v. Gapper, 5 Bing. N. C. 29 & 30 Vict. c. 96. 136 ; Fhry v. Bmmy, 7 Ex. 581. (c) 41 & 42 Vict. o. 31, and 45 & 46 (5) 17 & 18 Vict. c. 36, amended by Vict. c. 43. 62 THE MODEEN LAW OP PBESONAL PEOPEETY. Chap. Ill, executed before the 1st of Janu ary, 1879 {d). These Acts relate only to ' personal chattels,' which are defined by the principal Act to mean : — " Good s, furnit ure, and other articl es capable oi_ complete tr ansfer by delivery, and (when separately assigned or charged) fixtures and growin g crops, but shaU not include chattel interests in re al estate, nor fixtures (except trade machinen^ as herein- after defined), when assigned together with a freehold or lease- hold interest in any land or building to which they are affixed, TTor^grQwing-Crgps when assigned together with any interest in the land on which they grow, nor sharesor interests jn^the stoc k, funds, or securities of any government, or in the cajjital or property of incorporated or joint stock companifis, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale " (/). By the same Act it is provided that ' trade machinery ' shall be deemed personal chattels {g), and it is defined to mean : — " The machinery used in or attached to any faetgry_or_w^ork- shop; " 1st. Exclusive of the fixed motive-powers, such as the water- wheels and steam engines, and the steam boilers, donkey engines, and other fixed appurtenances of the said motive powers ; and "2nd, Exclusive of the fixed, power machinery, such as the shafts , wheel s, drums, and their fixed appurtenances, which_ transmit the acti on of the motive-powers to the other machinery, fixed and loose ; and " 3rd. Exclusive of the pipes f or steam, gas, and water, in the factory or workshop. (d) 41 & 42 Vict. c. 31, ss. 1, 23. (/) S. 4. {g) S. 5. OOEPOREAL THINGS-CHOSES IN POSSESSION. 63 " The machinery or eiFects excluded by this section from Chap. Ill the definition of trade machiner y shall not b e deemed to be per sonal chattels within the meaning of this Act." ' Factory or workshop ' is at the same time defined to mean (A) : — "Any premises on which any_maimal_labojn'_is_exercised„by way of trad e, or for purpose s— of gain, in or incidental to the following purposes or any of them ; that is to say, — " (a.) In or incidental to the maldng^j^yjirticle or part of an article ; or " (b.) In or incidental to the altering, repairing^ ornament ing. fini^Mng^fjjay_ajtiele ; or " (c.) In or incidental to the adapting fo r sale any ^ticle." The following documents are excluded from both Acts (*), namely : — " Assignments for the benefit of the, credi tors of the person making or giving the same, marriage^ettlements (k), transfers or assignments of any ship or vess el or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign, parts or at sea, biUs of lading, India w arrant s, warehouse keep ers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authoring or purporting to authorise either by indorsement or by delivery, the pogsessor jof such document to transfer or receive goods thereby represented." But the expression ' bill of sale ' includes (l) : — " Assignment s, t ransfer s, decla.rationa of trust witbmit tTgrnsfer, inventories of goods with receipt thereto attached, or receipts for (h) 41 & 42 Vict. c. 31, s. 5. gistered : Ashton v. BlacJcshaw, L, R. 9 (i) S. 4; 45 & 46 Vict. o. 43, s. 3. Eq. 510. (jfc) But a post-inipti al settlement or (J.) 41 & 42 Vict. c. 31, s. 4. agreement for settlement must be re- 64 THE MODEEN LAW OF PERSONAL PEOPEETT. Chap. Ill, purchase monies of goods, and other assu rances of personal chattels, and also p owers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreemen t, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred." ' Bill of sale ' then includes a document giving licence to take immediate possession of goods as a security for a debt (to) ; but not, when goods are delivered as a security ^^ * pledgee, a document signed by the pledgor recording the transaction and regulating the pledgee's right of sale (n) ; nor an agreement by a clause in an ordinary building con - tract, that all building and other materials brought by the builder upon the land shall become the property of the landlord (o) ; nor a parol agreement to give a bill of sale (p). It also includes a written contract for the purchase of a business containing a declaration that the vendors shall have a lien or charge on the effects for the unpaid purchase money (2'). Bills of Sale The Amendment Act of 1882 applies only to documents Art 1882 nriiniwtirijL .j.--=-^. - "' " -Its require- ^I^- ^J '^^J oLj§2SritzioOaym^tol money (r), which n^nts and must bc in accordauce with the form jn the Schedule annexed to the Act (s) ; and the consideration must not be under £30 (t). Such bill of sale (1) must be duly attested (m) Ex parte Parsons, In re Town- (r) 45 & 46 Vict. c. 43, s. 3. For send, L. K. 16 Q. B. D. 532. instance of oomprehensiveness of tliis (w) Ex parte Hubbard, In re Hwrd- section, see N. Central Wagon Go. v. wicke, L. B. 17 Q. B. D. 690. Manchester, Sheffield, and Lincolnshire (o) Beeves v. Ba/rlmo, L. R. 12 Q. B. Bail. Co., 32 Ch. D. 477. D. 436. (s) 45 & 46 Vict. c. 43, s. 9. (p) Ex parte Sauxmell, In re Hem- (t) S. 12. See Davis v. Usher, ingway, L. R. 23 CL D. 626. L. R. 12 Q. B. D. 490. (q) Cobwrny.Collins,W.'S.{18a'J),'i8. COEPOBEAL THINGS— CHOSES IN POSSESSION. 65 by one or more credible witness or witnesses, not a party Ch ap. II I, or parties thereto (u) ; (2) it must be registered under the principal Act in the Supreme Court registry within seven days after execution, or if executed out of England within seven days after the time at which it would in ordinary course arrive in England if posted immediately after execu- tion (x), and, if the grantor resides or_the_goods are_outsi_de the London Bankruptcy District, the Registrar is to transmit within three clear days of registration an abstract for regis- tration to the Registrar of the County Court of the district or districts where the grantor resides and the goods are situate (?/) ; (3) it must truly set forth the consideration for which it was given (z) ; otherwise, if any of the above three conditions are not observed, it will be void (a). There must at the same time with registration be presented to, and filed with, the Registrar a copy of the bill of sa le and an affida vit of the time of such bill of sale having been made, and of its due execution and attestation, and a description of the resi- dence and occupation of the grantor and of every attesting witness (b). The registration must be renewed once at least every five years, or will become void (c) ; but re-registration is not necessary by reason only of transfer or assignment of the bill of sale (c/). Any judge of the High Court, on being (m) 4.3 & 46 Vict. c. 43, ss. 8, 10 ; D. 90 ; In re Heicer, Ex 'parte Kulien, and 41 & 42 Vict. c. 31, s. 10, §§ 2, 3. 21 Ch. D. 871. {x) 45 & 46 Vict. c. 43, s. 8 ; 41 & (c) 41 & 42 Vict. c. 31, s. 11. The 42 Vict. c. 31, ss. 13, 21 ; R. S. C. statement of names, &c., in affidavit (1883), Ord. LXI. IT. 25 — 27; and as to on re-registration, must accord with local registration, R. S. C. (Dec. 1882). that in previous affidavit : see Ex (y) 45 & 46 Vict. c. 43, s. 11. yarte Webster, In re Morris, L. R. 22 (z) lb. s. 8. See 2Mst, p. 74. Ch. D. 136. (a) 45 & 46 Vict. c. 43, s. 8. {d) 41 & 42 Vict. c. 31, s. 10. See (6) 41 & 42 Vict. c. 31, s. 10 (2). Ex j)arte Turquand, In re Parker, L. B,. See Blaiberg ^', Parlce, L. B. 10 Q. B. 14 Q. B. D, 636. 66 THE MODERN LAW OE PEESONAL PROPEETY. Chap. Ill , satisfied that the omission to register a bill of sale, or aa affidavit of renewal, within the prescribed time, or the omission or misstatement of the name, residence, or occupa- tion of any person, was accidental or due to inadvertence, may in his discretion order the same to be rectified by the insertion of the true name, residence, or occupation, or by extending the time for such registration on such terms and conditions as he thinks fit (e). To the bill of sale there must be a schedule containing an inve ntory of the chattels comprised in it (/) ; and in respect of any chattels not specifically described, or of which the grantor was not the true owner at the time of execution, it will be void, except as against the grantor {g), and except in respect of any of the following things (^), that is to say : — S. 6 (1.) "Any growing crops separately-assigned or charged, where such crops were actually growing at the time when the bill of sale was executed. (2.) " Any fixtures separately assigned or charged, and any plant, or trade machinery where such fixtures, plant, or trade machinery are used in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse, or other place in substitution for any of the like fixtures, plant, or trade machinery specifically described in the schedule to such bill of sale." The above exception must be read together with the antecedent provision in the principal Act (i), namely : — (e) 41 & 42 Vict. c. 31, s. 14 ; Qi) 45 & 46 Vict. c. 43, s. 6. In tlie matter of the Bills of Sale Act, (i) 41 & 42 Vict. c. 31, s. 7 ; 45 & " Times," April 5, 1887. 46 Vict. c. 43, s. 3. As to this pro- (/) 45 & 46 Vict. 0. 43, s. 4. vision, see per Bacon, V.-C, in'.E'^c (£/) 45 & 46 Vict. c. 43, s. D. See parte Moore and Robinson's Banking Roberts v, Robei ts, L. R. 13 Q. B. D. 794. Co., L. R. 14 Cb. D. 386. COEPOBEAL THINGS— OHOSES IN POSSESSION. 67 S. 7. " No fixtures or growing crops shall be deemed Chap. III. under this Act to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which thej' grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are af&xed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or person." It would seem that an assignment of all the book debts due and owing, or which might during the continuance of the security become due and owing to the mortgagor in a specified business, would be valid, and operate to pass the interest in a debt come into existence subsequently (h) ; but not so where the assignment would apply to any book debt to become due to the assignor in any business carried on by him during the continuance of the security, such an assignment being too vague. The Amendment Act does not affect the validity of any- thing done or suffered under the principal Act before its commencement, that is, the 1st Nov. 1882 {!). Although by the bill of sale the chattels comprised in it Seizure of are assigned to the grantee, such person may not seize or sale, take possession of them except for one of the following causes (m), namely : — S. 7 (1.) " If the grantor shall make default in payment of the sum or sums of money thereby secured at the time therein provided for payment, or in the performance of any ^fwpnfj^y^f nr agr eement contained in Jhe bilL of sale _and necessary _fn r_J3MJataiBi!I£j;lL'^_gg£H2l'y ', (jfc) I7ie Official Receiver v. Tailhy, (Ch.) 193. L. E. 18 Q. B. D. 25. See Holroyd v. (Z) 45 & 46 Vict. c. 43, ss. 2, 15. Marshall, 10 H. of L. C, 191 ; 33 L. J. (ro) 45 & 46 Vict. u. 43, s, 7. F 2 68 THE MODEEN LAW OF PEESONAL PEOPEETY, Chap^III._ (2.) "If the grantor shall hecome a haiiknipt, or suffer the said goods or any of them to be distrained for rent, rates, or taxes ; (3.) " If the grantor shall fr audulently either remov e or suffer the said goods, or any of them, to be removed from the premises ; (4.) " If the grantor shall not without reasonable excuse (n), upon demand in writing by the grantee, produce to him his last receijDts for rent, rates, and taxes ; (5.) " If execution shall have been levied against the goods of the grantor under any judgment at law." And it is provided that the grantor may within five daj's from such seizure or taking possession apply to the High Court ; and the Court, or a Judge thereof, if satisfied that by payment of money or otherwise the cause of seizure no longer exists, may restrain the grantee from removing or selling, or may make such other order as may seem just (o) ; and, doubtless in furtherance of such provision, the goods may not be removed or sold until after five clear days from the day they were seized or taken possession of (j?). rorm. The form of bill of sale given in the schedule, in accord- ance with which one made or given by way of security for payment of money must be, or it will be void, is as follows (q) : — " This indenture, made the day of , between A. B. of of the one part, and C. D. of of the other part, witnesseth that in consideration of the sum of £ now paid to A. B. by C. D., the receipt of which the said A. B. («) See Ex parte Cotton, L. E. 11 and wlience derived, wliether by im- Q. B. D. 301. plication or under the Conveyancing (o) 45 & 46 Viet. c. 43, s. 7. Act, 1881 (44 & 45 Vict. c. 41, ss. 19, (p) lb. s. 13. See O'Neil v. Gity di 20), see diverse opinions of the Judges County Finance Co., L. R. 17 Q. B. D. in Ex parte Official Receiver, In re 234, where a carriage and horses were Morritt, L. E. 18 Q. B. D. 222 ; Wat- seized in a puhlio street and removed Inns v. Evans, ib. 386. to premises of the grantee. As to (j) 45 & 46 Vict. c. 43, s. 9, grantee's powers of seizure and of sale, (JOEPOEEAL THINGS— CHOSES IN POSSESSION. 69 hei-eby acknowledges {or whatever else the consideration may he), Chap. III. he the said A. B. doth hereby assign unto C. D. his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of £ and interest thereon at the rate of per cent, per annum (or what- ever else may he the rate). And the said A. B. doth further agree and declare that he will duly pay to the said CD. the principal sum aforesaid, togetlier with the interest then due bj^ equal payments of £ on the day of (or whatever else may he the stipulated times or time of payment). And the said A. B. doth also agree with the said CD. that he will Qiere insert terms as to insurance, payment of rent, or otherwise, tvhich the parties may agree to for the maintenance or defeazancc of the security). Provided always that the chattels hereby assigned shall not be liable to seizure or to be taken possession of bj^ the said C D. for any cause other than those specified in s. 7 of the Bills of Sale Act (1878) Amendment Act, 1882. " In witness, &c. " Signed and sealed by the said A. B. in the presence of me E. F. (add icitness's name, address, and description)." Many questions have arisen with regard to this form, and many documents have been held to be void by reason of not being in accordance w^ith it. Its scope and the object of the statute were thus expressed shortly after its coming into operation by Brett, M.R. : — - " Its provisions have been drawn with stringency against the holders and the takers of bills of sale. Whatever may be thought of the wisdom of this legislation, I feel myself bound to come to the conclusion that the object of the statute was twofold : first, that the borrower should understand the nature of the security which he was about to give for the debt due from him ; and, secondly, that a creditor upon merely searching the register should be able to understand the position of the borrower, and should not be compelled to go to a solicitor in order to get counsel's opinion as to the meaning of a security already created by the borrower. These objects are carried out by s. 9, which 70 THE MODEEN LAW OE PEESONAL PEOPEBTY. Chap III, requires that bills of sale shall, as nearly as possible, be in the form given in the Schedule; that form is very simple, and an intending creditor has the opportunity of ascertaining how far he ought to trust the borrower, and he need not take advice as to tlie document before him. The legislature intended that the loan of money upon the security of a bill of sale shall be a simple trans- action ; a bill of sale given by way of security for the payment of money shall be void against all the world, even as against the grantor, if it does not comply with the provisions of s. 9. That enactment provides that a bill of sale shall be ' in accordance with the form in the Schedule.' That must mean that every bill of sale shall be substantially like the form in the Schedule. Nothing substantial must be subtracted from it, and nothing actually in- consistent must be added to it. The real principle of the form is that whatever may be the consideration for the sum of money secured by the bill of sale, a fixed sum shall be stated therein in figures and in direct terms, and that sum, with rateable interest thereon, shall be recovered by the holder ; that interest shall be calculated up to the time when the sum mentioned as the principal amount shall be called in. The grantee must not attempt to alter the sum secured, and nothing must be added to it except by way of rateable interest. The statute does not prevent payment of the principal sum by instalments, together with interest from time to time falling due ; and at the time of paying each instalment, interest at the agreed and named rate may be added. And I do not think that the statute prevents the payment of interest by instalments becoming due at fixed periods. But if upon failure to pay the first instalment the whole of the interest, which the grantee is ultimately upon performance of the contract to receive, becomes immediately payable, the bill of sale would, I think, be contrary to the form in the Schedule of the Act ; for interest is payable upon money only so long as it is due, and it is contrary to the nature of interest to make it payable before it is due, on the ground that a condition has not been per- formed, or because a certain event has happened; that is an alteration of, and a departure from, the form given in the Schedule to the Act " (r). (r) navin v. Bitrton, L. E. U Q. B, D. 539, CORPOEEAL THINGS— OHOSBS IN POSSESSION. 71 Therefore it was held that a document which provided Chap. III. for payment of capitalized, instead of rateable, interest was void (s) ; that the same document was also void because it enabled the grantee, who had lent the money, to seize the goods upon a failure to comply with a verbal demand for the production of receipts for rents, rates, and taxes (t). And a document, which authorised the grantee, who was an auctioneer, to reimburse himself costs of sale " including therein the full charges and commission of the grantee as auctioneer, as if he were selling on behalf of the grantee," was held to be void (u). Similarly, although perhaps not contravening the Act except in not following the prescribed form, a complicated document not substantially in accord- ance with the form will be void ; for instance, one made between the grantor and several other parties for securing to each of those parties separately different debts of different amounts, borrowed at different times, and payable at different times and under different conditions (v). Also an agreement to perform the covenants and stipulations in a recited indenture, those covenants and stipulations not ap- pearing on the document, will render such document void(x) ; so will a provision that upon any sale the purchaser shall not be bound to see or inquire whether any default has been made (?/). The sum secured must be payable at a specified time, and not on demand (2) or if the grantee shall (s) Ih. And see Myers v. Elliott, mann, 18 Q. B. D. 1 ; and Purler v. L. E. 16 Q. B. D. 526 ; and Goldstrom Gohh, 18 Q. B. D. 494, per Lord V. Tallermann, 18 Q. B. D. 1. Esher, M.E., and Sir J. Hannen. (0 See 45 & 46 Vict. c. 43, s. 7 (4), {x) Lee v. Barnes, L. E. 17 Q. B. D. ante, p. 68. 77. (u) Furber v. Oobb, L. E. 18 Q. B. (y) Blaiberg v. Parsons, L. E. 17 Q. D. 494. Similarly, authority to pur- B. D. 336 ; Blaiberg v. Beohett, 18 Q. chase at a valuation, Lyon v. Morris, B. D. 96. W. N. (1887), 76. (z) Melville v. Stringer, L. E. 13 Q. (i)) Melville V. Stringer, L. E. 13 Q. B. D. 392 ; and In re Williams, Ex B. D. 392 ; and see Goldstrom v. Taller- parte Pearce, 25 Ch. D. 656 ; Hether- 72 THE MODEEN LAW OF PEESONAL PEOPERTT. Chap. Ill, be called upon to pay a guaranteed sum (a). So strict is the rule that the form must be followed that if the grantor purport to assign the chattels " as beneficial owner," the document will be void {b). It is immaterial that it is a document Avithin the definition of a bill of sale in the principal Act but from its nature impossible to be in the form ; for instance, a licence to take immediate possession of goods (c). If the document is void, it is wholly so ; therefore a covenant con- tained in it for the payment of principal and interest is void (d). On the other hand, an agreement that the grantor will pay the premiums of insurance and produce and deliver the receipts to the grantee will not invalidate the instrument (e). Nor will an agreement that the grantee may pay all rent, rates, taxes, charges, assessments, and outgoings at any time due in respect of the premises in which the chattels may be, and that such payments with interest shall be a chai'ge upon the assigned chattels (/) ; nor will the in- strument be invalid because the payments of interest may vary in amount from time to time (g), or the rate is stated at " Is. in the pound per month " instead of so much per cent, per annum (h) ; nor because there is inserted a con- inrjlon V. Groome, 13 Q. B. D. 789 ; sale given by way of imlemnity to a Sibley v. Hirjgs, 15 Q. B. D. 619. surety. And see Ex: parte HMard, (a) Hughes v. Little, L. R. 18 t^). B. In re Hardicid; 17 Q. B. D. 600, post, D. 32. p. 78. (b) Ex parte Stanford, In re Barber, {d) Davies v. ii'cc.s, L. E. 17 Q. B. D. L. E. 17 Q. B. D. 259 ; and Goldstrom 408. V. Tallermann, 18 Q. B. D. 1. Con- (e) Hammond y. Hocking, L. E. 12 veyancing Act, 1881 (44 & 45 Vict. Q. B. D. 291 ; and see Ex parte Stan- c. 41), s. 7. See In re Cleaoer, Ex ford, In re Barber, 17 Q. B. D. 259. parte Eauiings, 18 Q. B. D. 489 ; (/) GokUtrom v. Tallerman, L. E. covenant for further assurance does 18 Q. B. D. 1. not invalidate. (), to be a security for the payment of a debt by the pawnor or bailor (g) : unlike the pledge. Ex 'parte Firth, 19 Ch. D. 419. Bnt 46 Vict. >.. 43, s. 3. see In re Gann, 13 Q. B. D. 36; (n) Ex parte Ihtrqmtiid, In re Parker, Davis V. Usher, 12 Q. B. D. 490. L. R. 14 Q. B. D. 636, 644. (7i.) Ex parte Ralph, In re Spindler, (o) 41 & 42 Vict. c. 31, ss. 15, 21 ; L. R. 19 Ch. D. 98. R. S. 0. (1883), Ord. LXI., 26, 27. (i) 41 & 42 Vict. c. 31, .-<. 10 ; 45 & (p) For earliest riicorded instance of 46 Vict. c. 43, s. 3. a pledge, see Gen. xxxviii., 17, 18, (k) (7o?ieMj/v.Ster,L.R.7Q.B.D.521. wliere Tamar took a pledge of JiidaH. (l) Ante, p. 65. (q) Said to be derived from hailler, (m) 41 & 42 Vict. e. 31, s. 10 ; 45 & Fr. ' to deliver.' COEPOEEAL THINGS-OHOSES IN POSSESSION. 77 case of a mortgage, delivery to the creditor is essential ; Chap. III. but it is sufficient if there be a constructive delivery (r). Lord Holt, C.J., thus explained (1) what property the pawnee has in the pawn or pledge, and (2) what is his liability in respect of it (.s) : — "As to the Jirst, he has a special i:)ropert v. for the pawn is a securing to the pawnee, that he shall be repaid his debt and to compel the pawnor to pay him. But if the pawn be such as it will bo the worse for using, the pawnee cannot use it, as clothes, &c. ; but if it be such as will be never the worse, as if jewels for the purpose were pawned to a lady, she might use them : but then she must do it at her peril ; for whereas, if she keeps them locked up in her. cabinet, if her cabinet should be broken open, and the jevyels taken fronxthencej she would be excused ; if she wears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and, as such, is not liable to be used. But if the pawn be of such a nature, as the pawnee is at any charge about the thing pawned, to maintain it, as a horse, cow, &c., then the p)awnee may use the horsg_ in. a reasonable jnajmer, or milk the_ cow, &.c., in recompense for the meat .... As to the second point : in effect if a creditor takes a pawn, b e is bou nd to restore_it upon the pay- ment of thejik bt ; but yet it is sufficient, if the jjawnee use true diligence, and he will _be indemnified in so doing,'and notwith- stauding tlue_loss, yet he shall resort to the pawnor for his debt But, indeed, if the money for which the goods were pawned be tendered to t he pawnee before they are lost, then the pawnee shall be answerable for them ; because the pawnee, bj detainin g them after the tender J3f_the money, is a wrong-do^r, and is a wrongful detainer of the goods, and the special property of the pawnee is determined. And a man that keeps goods by wrong must be answerable for them at all events ; for the detain- ing of them by him is the reason of the loss." ()•) Metjentein v. Barber, L, R. 2 (s) Goggsv.Bemard,^aymo\i(l,Q09; C. P. 52. 1 Sm. L. Ca. 211. 78 THE MODEEN LAW OP PERSONAL PEOPERTY. Cha p. III. If the pawnor make default at the stipulated time for payment of the debt, the pawnee has a right to sell the pawn ; and if there is no stipulated time, then he may sell after due demand and notice to the pawnor (t). The pawn - broke r's interes^in the pawn is alienable, and may be seized in execution by the sheriff (^^). A pawn or pledge is not within the Bills of Sale Acts, although accompanied by a contemporaneQiis doaument signed by the pawnor or pledgor recording the transaction, and regulating the rights of the pawnee or pledgee as to the sale of the goods (m). Pawnbrokers Many statutory provisions have been made with regard to pawnbrokers or professed money-lenders, beginning with 1 Jac, 1, c. 21 ; but these have all been superseded by the Pawnbrokers Act^l872 (cc). The Act applies (a) to every loan by a pawnbroker of forty shillings ._or-undfii:, and (fi) to every loan by a pawnbroker of a bove forty shillings and not a bove ten pojauds, except in the case of a special con - tract as authorised by the Act between the pawnor and pawnbroker at the time of the pawning (y). Besides general regulations for the carrying on of the business, including a scale of profits and charges, the Act provides that every pledge shall be redeemable within twelve months from the day of pawning and seven days of ;grace (s). If the pledge have been for ten shillings or under, and have not been redeemed within that time, it becomes the pawn- broker's absolute property (a); but if for above ten shiUings, (t) Notes to Goggs v. Bernard, 1 Sm. (u) Ex parte Hubbard, In re Hard- L. Ca. 227. See Ex parte Hubbard, In wide, L. R. 17 Q. B. D. 690. re Hardwich, L. E. 17 Q. B. D. 698, (x) 35 & 36 Vict. c. 93. pier Bowen, L.J. {y) 35 & 36 Viet. c. 93, ss. 10, 24. (ft) In re Bollason, L. E. 34 Ch. D. (is) S. 16. 495; see post, ch. xi., i. (a) S. 17. COEPOEEAL THINGS— CHOSES IN POSSESSION. 79 it remains redeemable until disposed .of(^), and such dis- Chap. III. position must be by sale by auction and otherwise as pre- scribed by the Act (c). The pawnor is protected against l oss by fi re, or by depreciation jn valiie of the pledge through the p awnbroke r's defa ult (d). For the protection of a certain class of pawnees the Factors Acts, 1823 to 1877 Factors Acts, 1823 to 1877, were passed (e). Although advances on the security of goods and merchandise had become an usual and ordinary course of business,- and although such goods were largely entrusted to factors or agents for sale, a factor could not bind or affect the property of his principal by a pledge (/). By the above Acts, bond fide advances to any a£ent__entrusted with the possession of goods, or of the documents of title to thein, on the security of such goods or documents, are made good against the_owner of the goodg and all others in terested in them, notwithstanding the person claiming.the pledge had notice . oILihe agency Lq) ; and where any agent or person continues in the possession of such goods or documents, any revocation of his entm^stment or j,gency is not to prejudice or affect the title or rights of any other person who, without notice of such revocation, purchases or makes advances upon the faith or security of such goods or documents {h). The different sorts of ' bailme nt,' by which^ the posses- ni. Baii- sion of goods may be transferred by the owner ,whilg. the general pr operty in them xemains- in him, were thus classi- fied by Lord Holt in the judgment already quoted from(^) : — (6) 35 & 36 Vict. c. 93, s. 18. (/) See Turner's Contract of Pa-vvu, (c) S. 19. ■ p. 13. Id) SS. 27, 28. (y their goods and chattels, rents and profits, till they shall obey the summons or directions of the Court." The Rules do not state expressly what is the effect of the service on the company, but only that it shall have the same force and effect against the company as a writ of dis- tringas duly issued would have had (0). The effect was notice only, the object of it being to prevent the fund be ing dealt with without the person who issued the writ having a n opportunit;iL Jl[-jass£rting_Jiis_claim(jj). The _eff"ect is tftmjorary or(1y , namely, untHjifterjlue^^ie for bringing an action ; but an order may be obtained under s. 4 of 5 Yict. c. 5 {q) upon motion or petition in a summary way, without action : — " To restrain the Governor and Company of the Bank of (i) E. S. C. 1880, Ord. XLVI. r. 2a. (0) Orel. XLVI. r. 8. See E. S. C. 1883, Ord. XLVI. r. 2. {p) See po- Stuart, V.-C, in Wilkins (k) 5 Vict. c. 5, s. 5. v. Sibley, 4 Giff. 446, 447. (Q See Sched. I. to 5 Vict. c. 5. (q) See In re Blahsleifs Trusts, L. E. (m) Setoii on Decree.?, vol. i. 285. 23 Cli. D. 549 ; In re Prynne, W. N. (n) Bl. vol. iii. 445. (1885), 144, H a 100 THE MODERN LAW OE PEESONAL PfiOPERTr. Chap. v. England or any other public companj^, whether incorporated or not, from permitting^ the transfer of any stock in the public funds, oT any stock or shares in any public company which may be standing in the name or names of any person or persons or body politic or corporate, in the books of the Governor and Company of the Bank of England, or in the books of any such public company, or from paying any dividend or dividends due or to become due thereon." stop Order. Judicature Act, 1873. Or in tlie case of the Bank of England an injunction may be obtained againt the Bank, under 39 & 40 Geo. 3, c. 36, in an action against the person interested in the fund (7"). Where t he fund is in Court to the general credit of any cause or matter, or to the account of any class of persons, the assignee should obtain a stop oi;der by application to the Court upon petition or summons (s) ; or a subsequent assignee may obtain priority by doing so (t). I Under the Judicature Act, 1873 (it), an absolute ass|g^ii- ment by writing, with express notice., jn writings to Jbhe debtor^_Jimtee;|_31,ptlier_ person from Avhom the assignor would have been entitled to receive or claim the chose in action, is effectual in law to pass and transfer the legal right. It is enacted : — S. 25 (6). " Any absolute_ assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities jvhich would have been entitled to priority over^the right of the assi gnee i f th is Ac t had not (?•) Seton on Decrees, vol. i. 284. (t) Pinnoch v. Bailey, L. R. 23 Ch. (s) E. S. C. 1883, Old. XLVI. rr. D. 497. 12, 13, («) 36 & 37 Vict. c. 66, s. 25 (6). INOOEPOEEAL THINGS— CHOSES IN ACTION. 101 ]3a^sed,) to pass and transfer the legal right to such debt Chap. V. or chose in action from the date of such notice, and al l lega l and other remedips fnv Jhp. same, and the power to give a good discharge for the same, without the concurrence of the assignor : Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action (x) shall have had notice that such assigamfintiajiis- puted by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making cltxim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees." Tt will be observed that the above section, vphile dealing with the assignment of a " debt or other legal chose in action," speaks of notice to " the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action." Bat a c laim against ajtrustee would be equitable, and before the Act the assignee couldj^aswe have seen, sue in his own name in a Court of equit y; and it would have been assignable in equity without a writing. It was considered that the effect of the Judicature Act irrespective of the above provision, by the fusion of juris- diction of the Courts of Common Law and Equity (?/), was that an assignee for yalue^( whether absolute or by way of mortgage only) of a legal debt or other chose in action could siie in his_ own name (z). But it has been held that, by virtue of the above provision, the mortgagee of a debt must, a s former ly, sue in the name of the mortgagor : that (x) i.e., of which there had been an s. 25 (11), ahsolute assignment in writing : In re (z) See 2 Da. ii. 137, and notes to Sutton's Trusts, L. R. 12 Ch. D. 175. Judicature Act, 1873, by F. 0, {y) 36 & 37 Vict. c. 66, s. 24 and Haynes. 102 THE MODEEN LAW OE PERSONAL PEOPEETY, Chap. V. the covenant to reconvey on payment of what was owing indicated upon the face of the assignment that " it purports to be by way of charge only," so as to bring it within tlie exception, and prevent it from being an absolute assign- ment within the meaning of the statute (a). This being so, it is still necessary in a mortgage of a debt to give the assignee a power of attorney to sue for the debt in the name of the creditor (h). On the other hand it has been held that an assignment upon trust to receive the debts assigned, and to pay there- out a sum due to the assignee by the assignor, and to pay the surplus to the assignor, was " absolute " within the above provision, and the assignee might sue in his own name for the debts (c). The assignment need not be^ of an existin^debt ; it may be of a debt to become due, for instance, a sum of money to be earned by a builder under agreement {d) ; and it may be contained in a written^ order to the debtor to joay a sura ofjnpney to a third party out_of moneys due, or to become due, to the creditor (e) ; and such order may be addressed to the third party, notice being given to the debtor (/). It is not stated in the above section by whom notice is to be given to the debtor, or that it must be given in the life- time of the assignor; so that notice by the assignee after the death of the assignor will be good, and enable the — Ui (a) Per Pollock, B., National Pro- D. 615 ; Walker v. Bradford Old Bank, vindal_ Bank v^arl},'~irR7 6 Q. B. 12 Q. B. D. 511. D. 630. (e) Brice v. Bannister, L. E. 3 Q. B. (b) See Form, 2 Da. ii. 725. D. 569 ; Ingle v. M'Gutchan, 12 Q. B. (c) Bxwlinson v. Hall^ L. R. 12 Q. D. 518 ; Knill v. Proxose, 33 W. E. B. D. SI7. ^ 163. (d) Brice v. Bannister, L. E. 3 Q. (/) Harding v. Harding, L. E. 17 B. D. 569 ; Buck v. Robson, ih. 686 ; Q. B. D. 442. Ex parte Hall, In re Whitting, 10 Cli. INOOEPOEBAL THINGS-CHOSES IN ACTION. 103 assignee to sue in his own name {g). The effect of delay Chap. V. ill_i!Zi?S_J^^— Mtl^e would only be to let in all equities ^IMH^ ^^y ^^^^^ PL be created prior thereto {h). Under the Conveyancing and Law of Property Act, Couveyandng 1881, the right to recover and receive any debt or other thing in action subject to a trust will, on the appointment of a new trustee, without any assignment, vest in the trustees, if the deed appointing the new trustee contains a declaration by the appointor to that effect {i) ; and similarly where a deed by which a retiring trustee is discharged under the Act contains such a declaration by the retiring and continuing trustees and by the other person, if any, empowered to appoint trustees (Jc). Except that this pro- vision does not extend to any such share, stock, annuity, or property as is only transferable in books kept by a com- pany or other body, or in manner prescribed by or under Act of Parliament (/) ; such exception being for the purpose of reserving to companies and other bodies the right to require transfers in the statutory form for making the same. Such vesting by declaration without assignment will not render notice to the debtor unnecessary. Also by the Conveyancing and Law of Property Act, 1881, it is enacted that a thing in action may be conveyed {i.e., assigned) by a person to himself jointly with another person, by the like means by which it might be conveyed by him to another person (to). This was supplemental to Lord St. Leonard's Law of Property, &c., Amendment Act, 1859 {n), by which it was enacted that : — ((/) Walker v. Bradford Old Bank, (k) S. 34 (2). L. E. 12 Q. B. D. 511. (l) S. 34 (3). (h) Walker v. Bradford Old Bank, (m) S. 50. See M. L. E. V. 267. L. E. 12 Q. B. D. 517, per Smith, J. (n) 22 & 23 Vict. c. 35, s. 21. (i) 44 & 45 Vict. c. 41, s. 34 (1). 104 THE MODERN LAW OP PERSONAL PEOPEETY. Chap. V. g, 21. " Any person shall have power to assign personal property now by law assignable, including chattels real, directly to himself and another person or other persons or corporation, by the like means as he might assign the same to another." Prior to the Act of 1859 an assignment of leasehold pro- perty or choses in possession by A. to himself and B. vested the whole of the property in B. ; and it was therefore necessary on a change of trustees to have two deeds, namely, first, an assignment by the continuing trustee to a provisional trustee, and, secondly, an assign- ment by such provisional trustee to the continuing and new trustees jointly. 105 CHAPTER VI. Chap. VI. CHOSES IN ACTION {continued). In exception to the doctrine of the non-assignabihty of a Bills of chose in action, Bills of Exchange early became assignable p'romissoiy by custom (a), and Promissory Notes_ by statute (5) ; and negotiable, the person who by a g enuine in dorsement, or, where the instrument was payable to bearer, by deUvery, became holder, might sue in his own name on the contract, and, if a bond fide holder for value, he had a good title notwiihstanding any defect of title in the party (whether indorser or deliverer) from whom he took it (c), that is to say, it was ' negotiable.' The rule, that any one taking an assignment of a chose in action takes it subject to all existing equities {d), was not the rule as regards the right to sue on a bill of exchange or promissory note (e). The following is a form of Bill of Exchange : — i- Bills of exchange. " London, 1st April, 1887. £100. Two months after date pay to Mr. John Jones or Order One Hundred Pounds for value received. Benjamin Beown. To Mr. Egbert Eobinson, Merchant, Liverpool." («) Notes to Uyall v. Bowles, 2 Wi. Q. B. 382, per Blackburn, J. ; & T. L. Ca. in Eq. 837. v. Race, 1 Sin. L. Ca. 516. (5) 3 & 4 Anne, o. 9 ; 7 Anne, (d) Ante, p. 96. c. 25. (e) Taylor v. Blalcelock, L. R. 32 Ch. (c) Grouch V. Credit Fancier, L. E. 8 P. 567, yer Cotton, L.J. 106 THE MODERN LA.W OF PERSONAL PROPERTY. Chap. VI . Benjamin Brown would be termed the ' drawer ' ; Robert Bobinson the ' drawee,' and, if he accepted it the 'acceptor'; John Jones tlie 'payee,' and, if he indorse it, the 'in- dorser'; and the person to whom it is indorsed the ' indorsee ' or ' holde;i-.' Blackstone says (/) : — " A bill of exchange is a security , originally invented among merchants in different countries, for the more easy re mittance of money from one to the other, which has since spread itself into almost all pecuniary transactions. It is an open letter_of request from one man to another, desiring him to pay a sum named therein to a third person on his account ; by which means a man at the most distant part of the world may have money remitted to him from any trading country. If A. lives in Jamaica, and owes B., who lives in England, lOOOL, now if C. be going from England to Jamaica, he may pay B. this lOOOL, and take a bill of exchange drawn by B. in England upon A. in Jamaica, and receive it when he comes thither. Thus doesB. receive his debt, at any distance of place, by transferring it to C. ; who carries over his money in paper credit, without danger of robbery or loss. This method is said to have been brought into general use by the Jews and Lombards, when banished for their usury and other vices ; in order more easily to draw their effects out of France and England, into those countries in which they had chosen to reside. The invention of them was a little earlier : for the Jews were banished out of Guienne in 1287, and out of England in 1290 ; and in 1236 the use of paper credit was introduced into the Mogul Empire in China." Again, Professor Bell says [g) : — " Bills are to be viewed not only as obligations of simple form and ready execution, but as part of the circulating medium of the country, by means of which manufacturers and merchants turn {/) Vol. ii. 466. ig) Bell's Principles of the Law of Scotland (edited by Guthrie), § 305. INCOEPOKEAL THINGS— CHOSES IN ACTION. 107 credit into a negotiable shape, and are enabled to proceed with Chap. VI. their dealings as if paid in cash for their goods, while the buyer is indulged with a delay of payment till the returns of trade fill his hands." The Bills of Exchange Act, 1882 (h), was passed tu BiUs of codify the law relating to bills of exchange, cheques, and Act, 188-2. promissory notes, and, with the exception of two special Common law, provisions relating to Scotland only {i), it makes one uniform ^'[.y, "a"'^^'""*' law for the whole United Kingdom ; the rules of common niptcy. law, liowever,^jj3cludin^ the law merchant, when not in- consistent witlijhe express provisions of the Act, continue to apply (/i;). Also the rules in bankruptcy continue to apply (Z). The Act contains the following definition of a Bill of Definition. Exchange (m) : — S. 3 (1). " A bill of exchange is an unconditional orde r in wilting, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on deman d, or at a fixed or determinable future Jime, a sum certain in money to, or to the order of, a s pecifi ed person, or to bearer. (2.) "An instrument which does not comply jvijOi, these conditions , or which orders aiiy^a^ to^ be done in^aMition to the payment of money, is not a bill of exchange. (3.) " An oi'der to pay out of a particular fun d is not unconditional within the meaning of this section ; but an unqualified order to pay, coujiled with (a) an indication of a particular fund out of which the drawee is to re-imburse (h) 45 & 46 Vict. c. 61. K. S. C. 1883, Ord. XIV. has been (i) SS. 53 (2), 100. See also s. 98, siibstituted for 18 & 19 Vict. c. 67. preserving the summary procedure (/c) 45 & 46 Vict. c. 61, s. 97 (2). under 12 Geo. III. c. 72, ss. 37, 39— {1} S. 97 (1). 43 ; and 1 & 2 Vict. c. 114, ss. 1, 0. (m) S. 3. In England summary procedure imder 108 THE MODERN LAW OF PEESONAl PROPERTY. Chap. VI. himself or a particular account to be debited with the amount, or (6) a statement of the transaction which gives rise to the bill is unconditional. (4.) " A bill is not invalid by reason (a.) That it is not dated ; (b.) That it does not specify the value given, or that any value has been given therefor ; (c.) That it does not specify the place where it is drawn or the place where it is payable." foreign °' ^^^^^ °^ cxcliaDge are classified as 'inland' or 'foreign.' Before the statutes passed in 1856 (n) for assimilating the mercantile laws of tlie United Kingdom, a bill drawn in Scotland or Ireland upon England was a foreign bill ; l)ut those statutes extended the geological limits for inland bills, and these remain the same under the Bills of Exchange Act, 1882, in which are the following definitions of inland and foreign bills (o) :— • S. 4 (1). " An inland bill is a bill which is or on the face of it purports to be (a) both drawn and payable within the British islands, or (b) drawnjwithin. the British ^^^^ s_orQe person resident therein. Any other bill is a foreign bill. For the purposes of this Act ' British Islands ' mean any part of the United Kingdom of Great Britain and Ire- land, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them being part of the dominions of Her Majesty. (2.) " Unless the contrary appear on the face of the bill the holder may treat it as an inland bill." Payee. Where a bill was not payable to bearer it was requisite that the payee should be so named or indicated as to be (n) 19 & 20 Vict. c. 60, s. 12 ; ]9 & 46 Vict. c. 61, s. 96). 20 Vict. 0. 97, s. 7 (repealed by 45 & (o) 45 & 46 Vict. c. 61, s. 4. INCOEPOEEAL THINGS— CHOSES IN ACTION. 109 capable of being ascertained at the time the instrument was Chap. VI. raade ; therefore there coukl not be an alternative paj'ee, as A. or B. (jj), nor could the payee be an officer for the time being of a company (g) ; but now a bill may be made payable in the alternative, or to such officer. The Bills of Exchange Act, 1882, provides (r) : — S. 7 (1). " Where a bill is not payable to bearer, the payee • inust be named or otherwise indicated therein within reason- able certainty. (2.) " A bill may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several paj^ees. A bill may also be made payable to the holder of an office for the time being. (3.) " Where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer." Formerly a bill of exchange was not negotiable unless it What mus are contained one or other of the words ' order ' or ' bearer ' ; but now these words need not appear (s). It is thus stated in the Bills of Exchange Act, 1882, what bills are not negotiable and what are (f) : — S. 8 (1). " When a bill contains words prohibiting transfer, or indicating an intention that it should not be transferable, it is valid as between the parties thereto, but is not ne- gotiable. (2.) " A negotiable bill may be payable either to order or to bearer. (3.) " A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank. {p) Blanckenliagen v. Blundell, 2 B. (s) Byles on Bills (I4th ed.), 9.3 & Aid. 417. (note). (q) Storm v. Stirling, 3 E. & B. 832, («) 45 & 46 Vict. c. 61, s. 8. (r) 45 & 46 Vict. c. 61, s. 7. 110 THE MODEEN LAW OF PEESONAL PEOPERTY. Cha p. VI. (4.) " A bill is imyable to order which is expressed to be so payable, or which is expressed to be paj'able to a pai'ticular person, and does not_ contain words prohibiting transfer or indicating an intention that it should not be transferable (/()■ (5.) "Where a bill, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option." When payable. A bill is either payable on demand, or at a deter- minable future time. Each is defined by the Act as follows (x) : — S. 10 (1). " A bill is payable on demand ; — («.) "Which is expressed to be ijayable on demand, or at sight, or on joresenta^ tion : or (&.) In which no time for payment is ex- pressed. (2.) " Where a bill is accepted or indorsed when it is over- due, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand. S. 11. "A bill is payable at a determinable future time within the meaning of this Act which is expressed to be payable : — (1.) At a fixed period after date or sight. (2.) On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening may be uncertain. An instrument expressed to be payable on a con- tingency is not a bill, and the happening of the event does not cure the defect." (u) Formerly in Scotland only, not in England, might bills, although not taken payable to order, be indorsed ; Bell's Principles, § 329. (x) 45 & 46 Yict. c, 61, ss. 10, 11. » INOOEPOEEAL THINGS-OHOSES IN ACTION. 1X1 In the case of the hitter, three days, called ' days of Chap. VI. grace,' are added to the time of payment fixed by the Days of grace. bill : but when the last of such days falls on Sunday, Christmas Day, Good Friday, or a day appointed by Royal Proclamation as public fast or thanksgiving day, the bill is due and payable on the preceding busiaess day ; or when the last day of grace is a bank holiday (other than Christ- mas Day or Good Friday), or it is a Sunday and the second dc\y of grace is a bank holiday, the bill is due and payable on the succeeding business day {y). A bill is not invalid by reason only that it is ante-dated, post-dated, or bearsdate on a. Sunday (z). The name of a ' referee in case of need ' may be inserted Referee in in a bill by the drawer or any indorser, that is, a person to "" ' whom the holder may resort in case the bill is dishonoured by non-acceptance or non-payment (a). It has been said above that the drawee of the bill, Acceptance. if he accept it, is termed the acceptor. The following definition and requisites of acceptance are given in the Act {h) :— S. 17 (1.) " The acceptance of a bill is the signification by the drawee of his assent to the order pi the drawer ; (2.) "An acceptance is invahd unless it complies with the following conditions, namely : («.) It must be written on the bill and be signed by the drawee. The mere signature of the drawee without additional words is sufficient. (&.) It must not express that the drawee will perform his promise by any other means than the pay- ment of money." iy) S. 14. (a) S. 15. And see ss. 4.3, 47. (z!) S. 13. (J) S. 17. 113 THE MODERN LAW OP PERSONAL PEOPEETY. Cha p, vr. The provision that mere signature is sufficient for accept- ance is in accordance with the Bills of Exchange Act, 1878 (c), which was passed to overrule a decision in 1876 that it was not sufficient since the Mercantile Law Amend- ment Act, 1856 {d). An acceptance may be ' general ' or ' qualified.' The Act says (e) : — S. 19 (2.) " A general acceptance assents without qualifica- tion to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn. In particular an acceptance is qualified, which is (a.) Conditional, that is to say, which makes paj'ment by the acceptor dependent on the fulfilment of a condition therein stated : (6.) Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn : (c.) Local, that is to saj', an acceptance to pay only at a particular Specified place : An acceptance to pay at a particular place is a general accept- ance, unless it expressly states that the bill is to be paid there only and not elsewhere : (d.) Qualified as to time : (e.) The acceptaiiee^ of some one or more of the drawees, but not of all." Deiiyeiy. To givo effect to it there must be delivery of the bill (/), that is, transfer of possession, actual or constructive, from one person to another (g), and until delivery every contract in it, whether the drawer's, the acceptor's, or an indorser's, is incomplete and revocable ; or there must be notification, (c) 41 & 42 Vict. 0. 13 ; repealed by Ca. 754. 45 & 46 Vict. c. 61, s. 96. (e) 45 & 46 Vict. c. 61, s. 19. (d) 19 & 20 Vict. c. 97, s. 6. See (/) 45 & 46 Vict. c. 61, b. 21. Hindhaugh v. Blakey, L. E. 3 C. P. D. (ry) S. 2. 136 ; also Steele v. M'Kinlaij, 5 Ap. INCOEPOEEAL THINGS-CHOSES IN ACTION. 12.3 that is, notice by the drawee to, or according to the direc- Chap. VI. tions of, the person entitled to the bill that he has accepted it, and then the acceptance is complete and irrevocable {h). The signing and delivery of a blank or skeleton bill is a skeleton prmA facie authority tjO_fill it_up_foi^ny an^^ indite staj^p will_cover, using the signature fo~r that "of the drawer, '"''■'"™'"*'- the acceptor, or an indorser ; and similarly, when a bill is wanting in any material particular the holder has primd fade authority to fill up the omission in any way he thinks fit(/). Bat the completion must be within a reasonable time and in accordance with the authority given {j) ; the drawer's name, it would seem, may be filled in even after the acceptor's death (A). As wc have seen (/), infants are generally incapable of Parties- entering into contracts, and in general a corporation can corpontions. only contract by writing under their common seal (to), and being established for a specific purpose canno t bind itself by a contract which is entirely unconnected Avith the pur- poses of its inc orporation (n). Therefore, it was held that a railway company, incorporated in the usual way by private Act of Parliament, which contained no provision empowering them to draw, accept, or indorse bills of exchange, was not competent to do so, and acceptances given by them with the seal of the company annexed were not binding upon them (o). But a corporation may issue bills, Avhere the terms of the instrument under which it is constituted authorise, upon a fair construction, the issuing (7i) 4,'3 & 46 Vict. c. 61, .'s. 2, 21. (;») Ante, p. 49. See Croud, v. (i) S. 20(1). Bee Garrard V. Levis, Credit Foncici nf Emjkmd, L. E. 8 L. K. 10 Q. B. D. 30. Q. B. 374. (j) 45 & 46 Vict. c. 61, s. 20 (2). {n) Bateman v. Sj'H IVaks ]!,iil. Co., (k) Curtis V. IFhite, L. E. 55 Cli. D. L. E. 1 C. P. 508, per Erie, C..h 666. . (o) lb. p. 499. {I) Ante, p. 37, 114 THE MODEEN LAW OP PEESONAL PEOPEETY. Chap. VI. , of bills, or where the business of the corporation is one which c annot in its ordinary course be carried on without bills (/>), for instance, where it is incorporated for the pur- pose of trade (q). In the case of a company under the Companies Act, 1862, the provisions thereof not being affected by the Bills of Exchange Act (r), the question will ' turn upon the proper construction of the Memorandum and 'Articles of Association (s). Accordingly, by the Bills of Exchange Act, -1882, it is enacted as follows (t) : — • S. 22 (1.) " Capacity to incur liability as a party to a bill is co-extensive with capacity to contract. Provided that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor, or indorser of a bill unless it is competent to it so to do under the law for the time being in force relating to corpora- tions. (2.) " Where a bill is drawn or indorsed by an infant, minor,, or corporation, having no capacity or power to incur liability on a bill, the drawing or indorsement entitles the holder to receive payment of the bill, and to enforce it against any other partj' thereto." In the case of a corporation in place of signature to any instrument in writing required by the Act to be signed, the cor porate seal may beattached ; but this does not mean that the bill or note of a corporation must be under seal [u). By the Companies Act, 1862 (x), with regard to a company (p) Peruvian Bail. Go. v. Thames & on acceptances for tlieir company Mersey Mar. Ins. Go., L. E. 2 Ch. Ap. when it lias no power to accept bills, 622, per Lord Cairns, L.J. see West London Gommeroial Bank v. (2) Byles on Bills, IT. Kitson, L. R. 13 Q. B. D. 360. (r) 45 & 46 Vict. c. 61, s. 97 (2) (6). (t) 45 & 46 Vict. c. 61, s. 22. (s) See Buckley's Companies Acts, («) S. 91. 156 ; 25 & 26 Vict. c. 89, s. 47. As (x) 25 & 26 Vict. c. 89, s. 47 ; and to the personal liability of directors see 36 & 31 Vict. c. 131, s. 37. INCOEPOEEAL THINGS— CHOSES IN ACTION. 115 incorporated thereunder, and having authority to draw, Chap. VI. accept, or indorse a bill of exchange, it is provided that : — S. 47. " A promissory note or bill of exchange shall be deemed to have been made, accepted, or indorsed on behalf of any company under this Act, if made, accepted, or indorsed in the name of the company by any person acting mider the authority of the company, or if made, accepted, or indorsed by or on behalf or on account of the company by any person acting under the authority of the company." Signature is essential to liability under a bill whether as signature. drawer, indorser, or acceptor, but it may be written by another person by or under the authority of the person to be liable {y) ; and generally where a signature is forged or placed on a bill without authority, it is wholly inoperative, unless the party, against whom it is sought to retain or enforce payment of the bill, is precluded from setting up the forgery or want of authority {s). For instance, where one (Estoppel- sued upon a bill has declared or admitted that the signature ~" ' is his own and has thereby altered the condition of the holder to whom the declaration or admission has been made, he is estopped from denying his signature (a) ; but where there has been no such declaration or admission, but on the contrary a statement that the alleged signature was a forgery, there arises no such estoppel and there_caimotJie ratification o f a forgery (h). Ratification can apply only to an unauthorised signature not amounting to a forgery, for instance, where it was jDretended to be made for or under the authority of the person sought to be charged (c). {y) 45 & 46 Vict. c. 61, s. 91. Linm Co., 6 Ap. Ca. 82. (s) Ss. 23, 24. (5) Ih. [a) Brook v. Hooh, L. B,. 6 Ex. 99, (c) Ih. per Kelly, C.B. See M'Ken!.ie v. British I 2 116 THE MODERN LAW OF PERSONAL PROPERTY. Chap. VI. (Bankers. ) (Per procura- tion — agent.) ConsiJeration. For the protection of bankers, however, Avhen a bill paj'able to order on demand is drawn on a banker, who pays it in good faith and in the ordinary course of business, he need not show that the indorsement of the payee, or any subsequent indorsement, was by or under the authority of the person whose indorsement it purports to be ; and he will b e deemed to have paid in due course, although the indorsement have been forged or made without au- thority' (d). Sometimes the signature is ' by procuration,' thus, "Benjamin Brown per pro: Samuel Smith." Such a signature operates as notice that Samuel Smith as the agent of Benjamin Brown has but a liniited authority to sign ; and the principal is bound only if the agent was„ acting within the limits of his authority (e). Where an agent signs for or on behalf of a principal, or in a representative character, he is not liable ; but the mere addition to his signature of words describing him as an agent, or as filling a repre- sentative character, does not exempt him from personal liability (/). The usual term to employ in an indorsement by an agent is sans recours or ' without recourse/ (' to me ' being understood), or sans f rat's. It will be remembered that in the case of a contract by deed, that is, under seal, or, as it is termed, a ' specialty,' consideration is presumed in law ( g) ; this is by reason of the solemnity and deliberation with which, on account of the ceremonies to be observed, it is supposed to be entered into. But to support a contract not under seal, or a ' simple contract/ valuable consideration must be proved. Now (rf) 45 & 46 Vict. c. 61, s. 60 ; taken (/) S. 26. from 16 & 17 Vict. c. 59, s. 19. (g) Ante, p. 13. (e) 45 & 46 Vict. c. 61, s. 25. INOOEPORBAL THINGS— OHOSBS IN ACTION. 117 contracts arising on a bill of exchange are simple contracts, Chap. VI. but consideration is presumed till the contrary appear ; or, as it is expressed in the Bills of Exchange Act, 1882 (/^) : — ■ S. 30 (1.) " Every party whose signature appears on a bill is primd facie deemed to have become a party thereto for value. (2.) " Every holder of a bill is primd facie deemed to be a holder in due course ; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill." Valuable consideration may be constituted (^) by : — S. 27 (1) " (a.) Any consideration sufficient to support a simple contract ; (b.) An agtgc^dentdehLor liability. Such a debt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time." Sometimes a person wishing to issue a bill will ask Accommoda. another to lend him his acceptance, the intention being that the latter should be considered as the real acceptor of the bill, and should take up the bill when it became due, but the former should provide the funds for so doing or in- demnify the acceptor {k). Such a bill is called an ' accom- modation bill.' With regard to it the Bills of Exchange Act has the following provision (l) : — (h) 45 & 46 Vict. c. 61, s. 30 ; and Ca. 115. And see post, p. 233. see s. 27. (k) Reynolds v. Doyle, 1 Man. & Gr. (i) 45 & 46 Vict. c. 61, s. 27 (1). 753 ; and Byles on Bills, 151. See per Lord Blackburn in M'Lean v. {I) 45 & 46 Vict. c. 61, s. 28. Clydesdale Banking Co., L. E. 9 Ap. tion. due course. 118 THE MODEEN LAW OP PEESONAL PEOPEETY. Chap. VI. S. 28 (1.) " An accommodation party to a bill is a person who lias signed a bill as draw er, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. (2.) "An accommodation party is liable on the bill to a ' holder for value ; and it is immaterial whether, when such j holder took the bill, he knew such party to be an accommoda- 1 tion party or not." It will be observed that the accommodating party becomes liable as soon as value is given, and notice to the party giving value is immaterial. Holder iu The ' holder of a bill in due course,' w^hich expression takes the place of ' bond fide holder for value without notice,' is thus defined (m) : — S. 29 (1.) "A holder in due com*se is a holder who has taken a bill, complete and regular on the face of it, under the following conditions, namely, — (a.) That he became the holder of it before it was overdue, and without notice that it had been previously dishonoured, if such was the fact : (h.) That he took the bill in good faith and for value, and that at the time the biU was negotiated to him he had no notice of any djfecHn the tit le of the person who negotiated it. (2.) " In particular the title of a person who negotiates a bill is defective within the meaning of this Act when he obtained the bill, or the acceptance thereof, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or imder such circumstances as amount to a fraud, (3.) " A holder (whether for value or not), who derives his title to a bill through a holder in due com'se, and who is not himself a party to any fraud or illegality affecting it, has a ll t he ri ghts of thathd^der in due course as regards the acceptor, and all parties to the bill prior to that holder." (/))) 45 & 4G Vict. c. 61, s. 29. INOOEPOEEAL THINGS— OHOSES IN ACTION. 119 We have seen what bills are negotiable, and that there Chap. VI. must be delivery of the instrument to give effect to it (n). Negotiation. This leads to the question what amounts to negotiation of a bill. The Act thus expresses it (o) : — S. 31 (1.) " A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill. (2.) " A bill payable to bearer is negotiated by delivery. (3.) " A bill payable to order is negotiated by the indorse- ment of the holder completed by delivery. (4.) " Where the holder of a bill payable to his order transfers it for value without indorsing it, the transfer gives the ti'ansferee such title as the transferor had in the bill,' arid the transferee in addition acquires the right to have the indorsement of the transferor. (5.) " Where any person is under obligation to indorse a bill in a representative capacity, he may indorse the biU in such terms as to negative personal liability." The indorsement is sometimes written on an ' allonge, indorsement. that is, a slip of paper attached to the bill, where there is not room on the bill for all the indorsements (jj). Where in a bill payable to order the payee or indorsee is wrongly designated or his name is misspelt, he may indorse the bill as therein described, adding, if he think fit, his proper signature (q). Where a bill is made payable to the order of a married woman thus, " To Mrs. John Jones or order," the generally accepted indorsement is (say) "Martha Jones, wife of John Jones " (r). Although the drawing of a bill must be unconditional. (n) Ante, ss. 8, 21 ; ante, pp. 109, (q) S. 32 (4). 112. (r) See Chalmers on Bills of Ex- (o) 45 & 46 Vict. c. 61, s. 31. change Act, 1882, p. 21. {p) S. 32 (1). 120 THE MODERN LAW OP PERSONAL PROPERTY. Chap. YI, the acceptance, it will have been seen, may be condi- tional (s), fur instance, " payable on delivery of bills of lading " : so an indorsement is not void because it purports to be conditional, but the condition may be disregarded by the payer, and payment to the indorsee will be valid whether the condition have been fulfilled or not (t). An indorsement ' in blank ' specifies no indorsee, and the bill is payable to bearer ; a ' special ' indorsement speci- fies the person to whom, or to whose order, the bill is payable (m). It would seem that the drawing of a bill may be restric- tive, in which case it is not negotiable (x) ; the indorse- ment may also contain terms making it restrictive (y) ; thus, it may be indorsed " Pay D. only," or " Pay D. for the account of X.," or " Pay D. or order for collection " (z). Negotiation A negotiable bill continues to be so until it has been re- dishonoured strictively endorsed, or discharged by payment or other- wise (a) ; but~if it-be 'overdue', or have been dishonoured ,(Z»), when negotiated the rights 'of the holder, will, not, be' the same as when negotiated before. The Act provides (c) : — S. 36 (2.) " Where an overdue^ bill is negotiated, it can only be negotiated subject to any defect of title affecting it at its maturity, and thenceforward no person who takes it can acquire or give a better title than that which the person from whom he took it had. (3.) " A bill payable on demand is deemed to be overdue within the meaning, and for the purposes, of this section, when it appears on the face of it to have been in circulation (s) 45 & 46 Vict. c. 61, s. 19 (2) (a) ; (x) 45 & 46 Vict. c. 61, s. 35 (1). onfe, p. 112. (a) S. 36(1). (<) S. 33. (b) See ss. 43 (1), 47 (1), as to Avhat («) S. 34 (1) (2). is dishonour, by non-acceptance or hy {x) S. 8 (1) ; ante, p. 109. non-payment. {y) S. 32 (6;. S. 36. bill. INCOEPOEEAL THINGS-CHOSES IN ACTION. 121 for an umeasonable length of time. What is an unreason- Chap. VI. able length of time for this purpose is a question of fact. ' (4.) " Except where an indorsement bears date after the maturity of the bill, every negotiation is prima facie deemed to have been effected before the bill v?as overdue. (5.) "Where a bill which is not overdue has been dis- honoured, any person who takes it with notice of the dis- honour takes it subject to any defect of title attaching thereto at the time of dishonour, but nothing in this sub- section shall affect the rights of a holder in due course " {d). Otherwise the rights and powers of the holder of the bill Eigi'ts of are as follows (e) : — holder. S. 38 (1.) " He may sue on the bill in his own name : — (2.) "Where he is a holder in due course, he holds the bill free from any defect of title of prior parties, as well as from mere personal defence s available to prior parties among themselves, and" may enforce p ayment against all parties j able on the bill : (3.) " Where his title is defective (a) if he negotiates the bill to a holder in due course, that holder obtains a good and complete title to the bill ; and {h) if he obtains payment of the bill, the person who pays him in due course gets a valid discharge for the bill." In order to render liable any party to a bill, in the Presentment following cases only is ' presentment ' by the holder of a ancc. °^^' bill to the drawee for acceptance necessary, namely : (1.) Where it is payable after sigh t, then it is necessary in order to fix the maturity of the instrument ; or (2.) Where it expressl y ^stipulates that it shall be presented ; or, (3.) Where it is drawn payable elsewhere than at the residence or place of business of the drawee (/). (fZ) For definition of ' holder in due (/) 45 & 46 Vict. c. 61, s. 39 (1), course,' see s. 29, miU, p. 118. (2), (3). (<;) 45 & 46 Vict. c. 61, s. 33. 1?;2 THE MODERN LAW OP PEE80NAL PEOPEETY. Chap. VI. The holder of a bill payable after sight must either present it for acceptance or negotiate it within a reasonable time, or the drawer and all endorsers prior to that holder will be discharged ; in determining what is reason- able time regard must be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case (g). Presentment must be according to the rules expressed in the Act (k) ; except in the following cases, in which a bill may be treated as dishonoured by non-acceptance (^'), namely : — S. 41 (2) " (a.) Where the drawee is dead or bankrup t, or is a fictitio us person, or a person not having capacity tocon- tra,ct hj^ biir : (h.) Where, after the exercise of reasonable diligence, such presentment cannot be effected : (c.) Where, although the presentment has been irregular, acceptance has been refused on some other ground." Non-acceptance within the customary time must be treated as dishonour ; the effect of which is that an immediate right of recourse against the drawer and indorsers accrues to the holder, and no presentment for payment is necessary (/i-). A qualified acceptance may be refused by the holder and treated as dishonour ; but where taken without the authority or assent of the drawer or an indorser, it not being a partial acceptance whereof due notice has been given, such drawer or indorser is discharged from liability (1). Presentment Every bill must be presented for payment, or the drawer for payment. (g) 45 & 46 Vict. o. 61, s. 40. (k) Ss. 42, 43. (7i) S. 41 (1). (0 S. 44. (i) S. 41 (2). INCOEPOEEAL THINGS— CHOSES IN ACTION. 123 and indorsers will be discharged (to), except in the follow- Chap. VI. ing cases (n) : — S. 46 (2) " (a.) Where, after the exercise of reasonable diligence presentment, as required by this Act, cannot be effected. The fact that the holder has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for presentment. (h.) Where the drawee is a fictitious person : (c.) As regards the drawer where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented : (d.) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented : (e.) By waiver of presentment, express or implied." Presentment in order to bind the drawer and indorsers must be according to the rules expressed in the Act (o), for instance : — S. 45 (1.) "Where the bill is not payable on demand, presentment must be made on the day it falls due. (2.) " Where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorse- ment, in order to render the indorser liable. In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case. (m) 45 & 46 Vict. c. 61, s. 45. (n) S. 46 (2). (o) S. 45. 124 THE MODEEN LAW OF PERSONAL PROPERTY. Chap. YI. (6.) " Where a bill is drawn upon, or accepted by two or more persons who are not partners, and no place of payment is specified, presentment must be made to them all. (7.) "Where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment must be made to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found. (8.) " Where authorised by agreement or usage, a present- ment thi'ough the post office is sufiicient." Delay in presentment is excused when caused by circum- stances beyond the control of the holder, and not im- putable to his default, misconduct, or negligence ; but it must then be made with reasonable diligence when the cause of delay ceases to operate ( p). The effect of dishonour by non-payment is that an im- mediate right of recourse against the drawer and indorsers accrues to the holder {q). Notice of Notice of dishonour, whether by non-acceptance or by non-payment, must, except in the cases mentioned below, be given to the drawer and each, indorser, and any to whom notice is not given will be discharged (r) ; provided that : — S. 48 (1.) " Where a bill is dishonoured by non-accept- ance, and notice of dishonour is not given, the rights of a holder in due course subsequent to the omission, shall not be prejudiced by the omission. (2.) " Where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted." {p) 45 & 46 Vict. c. 61, s. 46 (1). {q) S. 4". {r) S. 48. INCOEPOEEAL THINGS-CHOSES IN AOTIOX. I35 The exceptions referred to above, in which notice of dis- Chap. YI. lionour is dispensed with, are very similar to those in which presentment for payment is dispensed with; they are (s) ; — S. 50 (2) " (a.) When, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged ; (6.) By waiver, express or implied, notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice : (c.) As regards the drawer in the following cases, namely — (1) where drawer and drawee are the same person, (2) where the drawee is a fictitious person o\- a person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (5) where the drawer has countermanded payment : {d.) As regards the indorser in the following cases, namely — (1) where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill, (2) where the indorser is the person to whom the bill is j)resented for payment, (3) where the bill was accepted or made for his accommodation." Notice must be given in accordance with the rules ex- pressed in the Act (t), for instance : — S. 49 (12.) " The notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter. In the absence of special circumstances, notice is not (s) 45 & 46 Viut. c. 61, s. 50 (2). See s. 46 (2), ante, p. 12.3. (<) S. 49. 126 THE MODERN LAW OF PEESONAL PEOPEETY. Chap. VI. deemed to have been given within a reasonable time, unless — (rt.) Where the person giving, and the person to receive notice, reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill : (b.) "Where the person giving, and the person to receive notice, reside in different places, the notice is sent off on the day after the dishonour of the bill, if there be a post at a convenient hour on that daj', and if there be no such post on that day, then by the next post thereafter. (13.) " Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he give notice to bis principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. (14.) " Where a party to a bill receives due notice of dishonour, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonour." Delay in giving notice of dishonour is excused in circum- stances similar to those in which delay in presentment for payment is excused ; and in like manner notice must be given -with reasonable diligence when the cause of delay ceases to operate {it). Protest or ^ ' protest ' is a solemn declaration made by a notary- noting of ^ _ . til'- public (x) ; it must contain a copy of the bill, and must be signed by the notary, and must specify : — S. 51 (7) (a.) " The person at whose request the bill is protested : («) 45 & 46 Vict. c. 61, s. 50 (1). (x) Byles on Bills, 212, 214 ; 45 & See 8. 46 (1), ante, p. 124. 46 Vict. c. 61, s. 51 (7). INCOEPOEEAL THINGS— CHOSES IN ACTION. 127 (h.) " The place and date of protest, the cause or reason Chap. VI. for protesting the hill, the demand made, and the ' answer given, if any, or the fact that the drawee or acceptor could not be found." Where tlie bill is lost or destroyed, or wrongfully detained, the protest may be on a copy, or written particulars of it (?/). Where a notary cannot be obtained, it may be protested by a householder, or substantial resident of the place where the bill is dishonoured, in the presence of two witnesses, in the form prescribed by the Act (z). 'Noting' is a minute made on the bill by the officer at the time of refusal of acceptance or payment, and is considered as the preparatory step to protest (a). But the Act provides that where a bill is required to be protested within a specified time, or before some further proceeding is taken, it is sufficient that the bill has been noted for protest, and the formal protest may be extended at any time as of the date of the noting (6). An inland bill may be noted or protested for non- acceptance or non-payment ; but need not be so to preserve recourse against the drawer or indorser. On the other hand a foreign bill, appearing on the face of it to be such, must be duly protested (c). And where the acceptor of a bill becomes bankrupt, or suspends payment before it matures, the holder may have the bill protested for better security against the drawer and indorsers (d). Protest is dispensed with by any circumstances which would dispense Avith notice of dishonour, and delay is excused in similar circumstances (e). (y) 45 & 46 Viot. c. 61, s. 51 (8). (2). Various reasons are given for (a) S. 94, and Sched. I. this difference : see Byles on Bills, 211. (a) Byles on Bills, 214. (d) 45 & 46 Vict. c. 61, s. 51 (5). (6) 45 & 46 Vict. c. 61, s. 9.3. (e) S. 51 (9) ; and see s. 50 (1), (2), (c) 45 & 46 Vict. c. 61, s. 51 (1), ante, pp. 124, 126. ]2S THE MODEEK LAW OP PEESONAL PEOPEETY. Chap. VI. As against the acceptor, presentment for payment is Acceptor. not necessarj, except when required by the terms of a qualified acceptance, and even then in the absence of express stipulation he will not, as the drawer and indorsers, be dis- charged by the omission to present it on the day it matures ; nor as against him is protest or notice of dis- honour necessary (/). It will be remembered that an acceptance to pay at a par- ticular place, without an express statement that the bill is to be paid there only and not elsewhere, is a general and not a qualified acceptance {g). Exhibiting Tlie bill must be exhibited when pavment is demanded, and delivering , '■ up of bill. and on payment delivered up to the party paying it {h). Liabilities of The engagements of the acceptor of a bill, of the drawer, pai lea. ^^^ ^£ ^^ indorser, are thus expressed in the Act (?') ; — S. 54. " The acceptor of a bill by accepting it — (1.) Engages that he will pay it according to the tenor of his acceptance. S. 55 (1.) " The drawer of a bill by drawing it — Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duty taken ; (2.) " The indorser of a bill by endorsing it — Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken." (/) 45 & 46 Vict. c. 61, s. 52 (1), (A) S. 52 (4). (2), (3). ('■> ^^' ^4' ^^• ((,) S. 19 (2) (c), mie, p. 112. INCOEPOEEAL THINGS— CHOSES IN ACTION. 129 A stranger who signs the bill {e.g., for security,) incurs Chap. VI. no liability to the drawer or acceptor, but he incurs the liability of an indorser to a holder in due course {h). Where a bill is dishonoured, the following liquidated Damages on _ _ dishonour of damages may be recovered against the parties liable, — by Mil. the holder from any party liable on the bill, by the drawer who has been compelled to pay from 'the acceptor, and by an indorser who has been compelled to pay from the acceptor, or from the drawer, or from a prior indorser : — (a.) The amount of the bill. (h.) Interest from presentment for payment, if payable on demand, otherwise from maturity, (c.) The expenses of noting or, when protest is necessary and the protest has been extended, of protest {I). Where the bill has been dishonoured abroad, in lieu of the above, the holder may recover from the drawer or an in- dorser, and the drawer or an indorser who has been com- pelled to pay, may recover from any party liable to him, the amount of the re-exchange with interest thereon until pay- ment. In addition to this, special damages of an unliqui- dated character which have been sustained may be recovered (m). Where interest may be recovered as liquidated damages, it may, if justice so require, be withheld wholly or in part ; and, where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper [n). ' Interest proper ' (it; 45 & 46 Vict. c. 61, s. 56. See See s. 97 (2), ante, p. 107 ; and In re Steele v. M'Kinlay, L. K. 5 Ap. Ca. Gillespie db Boharts, L. R. 18 Q. B. D, 754. 286. (0 45 & 46 Viet. c. 61, a. 57 (1). (w) 45 & 46 Vict. c. 61, s. 57 (3). (m) 45 & 46 Vict. c. 61, s. 57 (2). 130 THE MODEEN LAW OF PERSONAL PEOPEETY. Discharge of bill. Chap. YI. is where ca bill is expressed to be payable with interest ; which, unless the instrument otherwise provides, runs from the date of the bill, and if the bill is undated from its issue (o). A bill is discharged : — (a) by payment in due course (that is, at or after maturity to the holder in good faith and without notice of defect in title) by the drawee or ac- ceptor (jy) : (b) if an accommodation bill, when paid in due course by the party accommodated (q) : (c) where the acceptor is the holder at or after maturity in his own right (r) : (d) when the holder at or after maturity renounces his rights against the acceptor; but such renunciation must be in writing, unless the bill is delivered up to the acceptor (s) : (e) where it is intentionally and apparently cancelled by the holder or his agent (t). Alteration. Also, where a bill or acceptance is materially altered without the assent of all parties, the bill is discharged, except against the party who made, authorised, or assented to the alteration, and subsequent indorsers ; provided that, where the alteration is not apparent, the holder in due course may avail himself of the bill as if it had not been altered, and may enforce payment according to its original tenor (u). Where the alteration is such as to make a fresh stamp (o) 45 & 46 Vict. c. 61, s. (p) S. 59 (1). ((?) S. 59 (3). (r) S. 61. (s) S. 62. (0 S. 63. 9 (3). («) 45 & 46 Vict. c. 61, s. 64. But see as to supplying material omission, s. 20, ante, p. 113. For instance of material alteration, see Suffell v. BanJc of Enrjland, L. E. 9 Q. B. D. 555, mOOEPOEEAL THINGS-OHOSES IN ACTION. 131 requisite, the bill may notwithstanding be void under the Chap. YI. Stamp Acts (x). The provisions of the Act as to protesting inland and Acceptance 1 -ii r p p for honour. foreign bills for non-acceptance or for non-payment, or lor better security, have been referred to (y). It also provides, in accordance generally with the previous law or custom enabling anyone interested to intervene for the protection of any party from loss by the return of the bill and accumu- lation of expenses, that where a bill has been protested for non-acceptance or for better security and is not overdue, any person not already liable on it may, with the consent of the holder, intervene and accept the bill supra protest, for the honour of any party liable on it, or of the person for whose account it was drawn (z) ; where a bill payable after sight is accepted for honour, its maturity is notwithstanding calculated from the date of the noting for non-acceptance (a). The liability of the acceptor for honour is thus ex- pressed (b) : — S. 66 (1.) " The acceptor for honour of a hill by accept- ing it engages that he will, on due presentment, pay the bill according to the tenor of his acceptance, if it is not paid by the drawee, provided it has been duly presented for payment, and protested for non-payment, and that he receives notice of these facts. (2.) " The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted." A dishonoured bill accepted for honour, or containing a (x) 45 & 46 Vict. c. 61, s. 97. (a) S. 65 (5). ly) S. 51, ante, pp. 126, 127. (6) S. 66. In) S. 65. K 2 133 THE MODERN LAW OE PERSONAL PROPERTY. Chap. VI. reference in case of need (c), must be protested for non- payment before presentment to the acceptor for honour or referee in case of need ; delay in presentment, or non-pre- sentment, is excused in the same circumstances as delay in presentment, or non-presentment, for payment {d). Payment Also where a bill has been protested for non-payment any person may intervene to pay it supra protest for the honour of any party liable on it, or of the person for whose account it was drawn (e). Acceptance for honour does not require to be attested by a notarial act (/), but payment for honour, to operate as such, and not as a mere voluntary payment must be so attested {g). The effect of payment for honour is thus expressed {h) : — S. 68 (5.) " Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is subrogated for, and succeeds to both the rights and duties of, the holder as regards the party for whose honour he pays, and all parties liable to that party." If the holder refuse to receive payment supra protest, he will lose his right of recourse against any party who would have been discharged by payment (^ ). Bills in a set. Foreign bills are often drawn in duplicate or in ' a set,' each part of the set being numbered and referring to the other parts ; for instance : — " Calcutta, 1 Jan., 1887. £5000. At three months after sight pay this one first of (c) 45 & 46 Vict. c. 61, s. 15. See (/) S; 65 (3). ante, p. 111. (), be entered on the register of the company to be kept for such purpose, and which is to be open for [y) 45 & 46 Vict. c. 43, s. IV. See Brocklehurst v. Rail. Printing ), companies could only be in- corporated by Charter conferred by Letters Patent from the Crown or by Act of Parliament, which respectively determined the nature and incidents of the shares to be held therein (c) ; and they were generally declared to be in the nature of personal estate {d). The powers of the Crown were extended in 1837 by an Act for better enabling Her Majesty to confer certain powers and immunities on trading and other companies (e) ; by which, after reciting that divers associations were and might be formed for trading and other purposes, some of which associations it would be inexpedient to incorporate by Royal Charters, although it would be expedient to confer on them some of the privileges of and incident to corpora- tions incorporated by Royal Charters, and also to invest such associations or some of them with certain other powers and privileges : and that it would also be expedient to extend the power of Her Majesty in reference to the creation (a) AnU, pp. 142 ei se^. (6) 7 & 8 Vict. c. 110. (c) As to corporations, see M. L. E. P. 93 ei sej. (d) See M. L. E. P, 15, («) 1 Vict. c. 73. INCOEPOEEAL THINQS-OHOSES IN ACTION. 163 of corporations, and to the conferring of privileges upon Chap. VIII. corporations, and upon other bodies or companies enabled to sue and be sued, it was enacted : — S. 2. " That it shall and may be lawful for Her Majesty, and her heirs and successors by Letters Patent, to be from time to time for that purpose issued under the Great Seal of the United Kingdom of Great Britain and Ireland, or in Scotland under the Seal appointed by the Articles of Union ^ to be used instead of the Great Seal thereof, to grant to any company or body of persons associated together for any trading or other purposes whatsoever, and to the heirs, executors, administrators, and assigns of any such persons, although not incorporated by such Letters Patent, any privilege or privileges which, according to the rules of the common law, it would be competent to Her Majesty, her heirs and successors, to grant to any such company or body of persons in and by any charter of incorporation." It was also enacted that Letters Patent so granted might provide that suits should be carried on in the name of one of the officers of any company appointed for the purpose (/) ; that the individual liability of members of a company might be restricted by Letters Patent ( g) ; that every company should be entered into by a deed of partnership or agree- ment in writing, in which the number of shares should be specified, also the names or styles of the members, its business, and the place of carrying it on (Ji) ; that on the transfer by deed or writing of any share, notice in writing should be given to the company by the transferee (^) ; that no person should be entitled to share in the profits until registered as a member (Jc) ; and that a person ceasing to be a member should continue liable until a return of the (/) 1 Vict. c. 73, s. 3. {i) S. 9. ig) S. 4. {h) S. 20. (Ti.) S. 5. .M 2 164 THE MODEEN LAW OE PEESONAL PEOPEETT. Chap. VIII. transfer or other fact -whereby he ceased to be a member should be registered (I). Companies As regards companies incorporated by Act of Parlia- Consoiidation ment, an Act was passed in 1845 for consolidating in one Act certain provisions usually inserted in the special Act of incorporation with respect to the constitution of com- panies incorporated for carrying on undertakings of a • public nature, commonly known as the Companies Clauses Consolidation Act, 1845 (m). Its object is thus clearly stated in the preamble : — " It is expedient to comprise in one general Act sundry pro- visions relating to the constitution and management of joint stock companies usually introduced into Acts of Parliament authorising the execution of undertakings of a puhlic nature hy such com- panies, and that as well for the purpose of avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves." The Act is made applicable to all joint stock companies thereafter incorporated by Act of Parliament, except so far as any of its provisions are varied or excepted by such Act (n). The capital is to be divided into shares of the number and amount prescribed by the special Act, and all shares are to be personal estate and transmissible as such (o). There is to be a registry of shareholders, and certificates of shares are to be issued to the shareholders (p). The shareholders may, subject to the regulations of the Act and of the special Act, sell and transfer their shares ; and every transfer i s to be by deed duly stanipedj in which the consideration is to (l) 1 Vict. c. 73, s. 21. (o) Ss. 6, 7. (m) 8 Vict. c. 16. (p) Ss. 9, 11. (w) S. 1. INCOEPOEEAL THINQS-CHOSES IN ACTION. 165 be truly stated ; but no transfer is to be made until all calls Chap. VIII. made thereon have been paid ; and the transfer is to be duly registered {q). Provision is made for transmission otherwise than by transfer, as on marriage, by will, &c. ; and the company are not bound to regard trusts (r). The company may from time to time make such calls of money upon the respective shareholders, in respect of the amount of capital respectively subscribed or owing by them, as they think fit (s). Also the company is empowered to convert the whole stock. or any part of its fully paid-up shares into stock (t) ; and the holders may transfer the whole or any part of their interests in the same manner and subject to the same regulations according to which any shares might be transferred under the provisions of the Act, or of the special Act ; and such transfers are to be registered ; and the shareholders are to be entitled to participate in the dividends and profits of the company according to the amount of their respective interests in such stock (m). Question arose as to the effect of consolidating shares into stock, whether a bequest of shares in a railway company included stock. In the judgments of the Court of Appeal and of the House of Lords, deciding that the bequest in- cluded stock, the difference between shares and stock and the effect of consolidation were thus explained. Lord Cairns, L. C. said (v) : — " It is to be observed that tbe term ' stock/ or ' capital stock,' wliich is there used, obYiously is derived from the consideration (q) 8 Vict. c. 16, ss. 14, 15, 16. (u) 8 Vict. c. 16, ss. 61, 62, 63, 64. (r) Ss. 18, 19, 20. {v) Morrice v. Aylmer, L. E. 10 Ch. (s) S. 22. Ap. 154. («) See ante, p. 143. 166 THE MODERN LAW OF PERSONAL PEOPERTY. nap. VIII. t}jat these were what were called joint stock companies, and that * stock ' was the short name for 'joint stock,' and joint stock, in my opinion, is only another name for ' shares,' because the owner of part of the capital of a company is an owner of a part or a share of the joint stock. The use of the term ' stock ' appears to me merely to denote that the company have recognised the fact of the complete payment of the shares, and that the time has come when those shares may he assigned in fragments, which for obvious reasons could not be permitted before, but that stock shall still be the qualification, for example, of directors, who must possess a certain number of shares, and that the meetings shall be of the persons entitled to this stock, who shall meet as share- holders, and vote as shareholders, in the proportion of shares which would entitle them to vote before the consolidation into stock. " If ever there was a case in which the substance is that • stock ' and ' shares ' are identical, it is a case of this kind. It appears to me that the doubt which has arisen, has arisen from the circumstance that it has been supposed, without sufficient attention having been paid to these provisions, that stock in a railway had some sort of analogy to stock in the public funds. It has none whatever. It is possible that debenture stock in a railway company may be said to have some analogy to stock in the public funds, but th e joint stock capital of a co mpany is a perfectly different_thing from stock in the public funds. In my opinion, when a man is an owner of stock in a railway, he is properly said to be a shareholder in the company, and would properly call himself a shareholder in the company." Sir W. M. James, L. J., said (x) : — " It is necessary to bear in mind that there is no such thing in rerum naturd as a railway share. It is not such a thing as jou can see, or touch, or handle. It is a term which indicates simply a right to participate in the profits of a particular joint stock undertaking. Well, then, stock, or that which is called ' stock,' the thing into which the shares have been consolidated, so far as (a) Morrke v. Aylmer, L, R. 10 Ch. Ap. 155. , INCOEPOEEAL THINGS-CHOSES IN ACTION. 167 regards the interest of one person in that stock, is the right to Chap. VIII participate in the profits of the undertaking. Both sets of words ' my railway stock,' ' my railway shares,' mean, etymologically, my right to share. Therefore, if you are construing the will merely upon etymological considerations, the words of the will are strictly and correctly applicable to the particular subject-matter in question before us. Bat, generally speaking, it is unsatis- factory to deal with words in common use by etymological con- siderations. If, then, we add to them the common usage of mankind, I am satisfied that there is not a man who has got an interest in any railway in England, speaking merely according to the vernacular which he is accustomed to use, who would ever think of describing a stockholder in a railway otherwise than as a shareholder, or who would think that he was speaking incorrectly in describing his stock as a share in that railway, or a meeting of stockholders as a meeting of shareholders." And Lord Hatherley said (y) ■: — " There is a certain extent of change, as well as consolidation, in these paid-up shares. They are chan ged irom ordinar y shares in this respect, that the}'' are no_longer incapabie_^bein£^ub- divided. Shares in a company, as shares, cannot be bought in small fractions of any amount, fractions of less than a pound, but the consolidated stock of a company can be bought just in the same way as the stock of the public debt can be bought, split up into as many portions as you like, and subdivided into as small fractions as you please. And that, no doubt, is of great import- ance in selling the stock of a railway company. Independently of that, however, it possesses all the qualities of shares. It is, in fact, simply a set of shares put together in a bundle, with this peculiarity added to them, that they are transferable in a manner in which you cannot transfer the ordinary shares of a railway company. That being the case, as they can be thus fractionally dealt with, a provision is added with respect to this process of consolidation of shares, that as regards the power of voting there shall be no yotinpf upon, these -fra ctions, but that the voting shall (y) Morrice v. Aylmer, L. E. 7 E. & I. Ap, 724. 168 THE MODBEN LAW OF PEESONAl PEOPEETY. Chap. YIII. go on in the same way as if the stock only represented a definite number of shares of corresponding amount taken at their nominal value independently of the fraction ; that is to say, you may have twenty shares' worth, if I may so express it, of this consolidated stock, plus some small fractional amount ; in that case you will only vote as a holder of twenty shares. But in all other respects you will be just as you were before the consolidation of your shares. " What, then, is the result of the consolidation of your shares ? You obtain a dividend in respect of the whole amount of those shares on the profits of tlie -JumuianY ; you are entitled to shar e in those profi ts. It is_not,at all analogous, as the learned counsel who spoke last on behalf of the appellant suggested, to the intere st .^Litl£i3i^i£j£ktVl^i£Li§paidjtaill&^^ _ai;d funds ; but it is an^ actual parta§rsh;p. The partnership is complete with all the same accessories, except as to that simple point of voting in respect of a fraction of a share, as those with which the holders of shares remaining still unconverted hold them." The Coin- In 1862 was passed an Act for the Incorporation, Re- panies Acts, . itt- • • i i 1862 to 1886. gulation, and v\ mding-up of Trading Companies and other Associations, to consolidate and amend the laws relating thereto, entitled the Companies Act, 1862 (z). By it was repealed the Joint Stock Companies Act, 1844 (a), to which reference has been made (h), and fifteen other Acts passed in that and subsequent years for the regulation and winding- up of joint-stock companies, including banking companies (c). It has been amended by the Sale and Purchase of Bank Shares Act, 1867 (d), the Companies Act, 1867 (e), the Joint Stock Companies Arrangement Act, 1870 (/), the (z) 25 & 26 Vict. c. 89. Sched. III. (a) 7 & 8 Vict. c. 110. (d) 30 Vict. c. 29. (5) AnU, p. 162. (e) 30 & 31 Vict. c. 131. (c) 25 & 26 Vict. c. 89, s. 205, (/) 33 & 34 Vict. c. 104. INOOEPOEEAL THINGS— CHOSES IN ACTION. 169 Companies Act, 1877 (^), the Companies Act, 1879(A), Chap. VIII. the Companies Act, 1880 (^■), the Companies Act, 1883 (k), and (as regards Scotland) the Companies Act, 1886 (/). The first Act limiting the liability of members of joint- stock companies for the debts and engagements of such companies was passed in 1855 (m) ; it was rendered obsolete by subsequent Acts, and repealed by the Statute Law Re- vision Act, 1875 (n). The Joint Stock Companies Act, 1856 (o), repealed by the Companies Act, 1862 {p), did not apply to persons associated together for the purpose of banking or insurance. By the Companies Act, 1862 (q), partnerships consisting Application of of more than a certain number of persons were prohibited. Act, i862. except as Companies under the Act. It was enacted : — S. 4. " No company, association, or partnership consisting of more than ten person s shall be formed, after the com- mencement of this Act (r) for the purpose of carrying on the business of banking , unless it is registered as a company under th is Act, or i s formed in pursuance o f some other Apt of Parliamen t, or b y Letters Paten t ; and no company, associa- tion, or partnership consisting of more than twenty person s shall be formed after the commencement of this Act, for the purpose of carrying on any other business that has for its object the acquisitio n of gain by the company, association, or partnership, or by the individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of some other Act of Parliament, or of Letters Patent, or is a company engaged in working mines within and subject to the jurisdiction of the Stannaries" (s). (g) 40 & 41 Vict. c. 26. (o) 19 & 20 Vict. c. 47. (h) 42 & 43 Vict. c. 76. (p) 25 & 26 Vict. c. 89, s. 205. (i) 43 Vict. c. 19. (?) S. 4. (k) 46 & 47 Vict. c. 28. (r) i.e. 2nd Nov. 1862. See s. 2. (l) 49 Vict. c. 23. (s) i.e. in Devonshire and Com- (m) 18 c& 19 Vict. c. 133. wall. In] 38 & 39 Vict. c. 66. ]70 THE MODEEN LAW OF PERSONAL PEOPEETY. Chap. VIII. jt ^yju i^g gggjj ^|jg^|. neither banking companies nor in- surance companies are excluded from the Act {t) ; the latter are also regulated by the Life Assurance Companies Acts, 1870 to 1872 (zf). The Act also applies in part to com- panies formed or registered under the Joint Stock Companies Acts (x), and as regards winding-up may apply to any partnership, association, or company, except railway com- panies incorporated by Act of Parliament, consisting of more than seven members, and not registered under the Act(?/). Memorandum Under the Act scvcn or more persons associated for any of associa- « i ^ ' ^ '. tion. lawful purpose may, by Ru,b&cribing tJiPiir nanifts to a Memo- randum of Associatio n and registering i t. form an incorporated company with or without limited liabiht y (s). The memo- randum must contain the prescribed statements (a), of which the most important are the objects for which the company is to be established, for thereby are its powers limited (5), and whether the liabi lity of its members is li mited , and if so to what extent, or otherwise (c). Liability of The liability of the members of a company under the Act members. ,,..,.,. , . „ may be Imiited either to the am ount , i t_aj]^-..uxLpjaid on their shares, or to such amount as the members may undertake by the memorandum to contribute to the assets of the company in the event of its being wound up (c?) ; in the former case the company is said to be 'limited by shareg,' in the latter case to be ' limited by g uarante e.' Where (t) See also sg. 3, 209. {y) lb. pt. viii., ss. 199—204. (u) 33 & 34 Vict. c. 61 ; 34 & 35 (z) S. 6. Vict. c. 58 ; 35 & 36 Vict. c. 41 ; see (a) Ss. 8, 9, 10. B. 8. (6) See ante, pp. 114, 142. (x) 25 & 26 Vict. c. 89, pts. vi. and (c) 25 & 26 Vict. c. 89, sa. 8, 9, 10. vii., and s. 209. (d) S. 7. INOOEPOEEAL THINGS-OHOSES IN ACTION. 171 no limit is placed on the liability of the members, it is called Chap. VIII. an ' unlimited' company (e). By the Companies Act, 1867, it has been provided that, although the liabil ity of Jjhe .members ia.Jimited, tdb.at-of ihe directors or ma,nagers, or the.^_ ra,anaglng „dirfi£,t.Qr may J)e unlimited- ( f). By the same Act any association about to be formed as a limited company, if it proves to the Board of Trade that it is formed for the purpose of promoting com- merce, art, science, religion, charity, or any other useful object, and that it is the intention of such association to apply the profits, if any, or other income of the association, in promoting its-objects, and to prohibit the payment of any dividend to the members of the association, maybe registered with limited liability without the addition of the word ' limited ' to its name (g). If a company carries on business when the number of its members is less than seven for a period of six months after the number has been reduced, every person who is a member of the company during the time that it carries on business after such period of six months, and is cognizant of the fact that it is so carrying on the business with fewer than seven members, will be severally liable and may be separately sued for the pay- ment of the whole debts of the company contracted during such time (h). In the case of a company limited by shares the Memo- Articles of ■^ _ association. randum of Association may be, and in the case of a company limited by guarantee or unlimited it must be, accompanied by Arti cles of Association signed by the subscribers to the memorandum, prescribing regulations for the company (i). (e) 25 & 26 Vict. c. 89, s. 10. (h) 25 & 26 Vict. c. 89, s. 48. (/) 30 & 31 Vict. c. 131, ss. 4—8. (i) S. 14. ((/) S. 23. 17^ THE MODEEN LAW OF PEESONAL PEOPEETY. Incorporation of company. Shares. Transfer. Leeraan's Act, 1867. Chap. VIII. In t]ie former case, if the memorandum is not accompanied by articles, or in so far as the articles do not exclude or modify the regulations in Table A. in the first schedule to the Act of 1862, such regulatiocs, so far as -applicable, are to be the regulations of the company (Jc). Upon registration the members become a body corporate, capable of exercising all the functions of an incorporated company, and having perpetual succession and a common seal (J). " The shares or other interest of any member are persona l estate, transferableas _proyy£5L by thfi- regulations^ of JJb.e compan y ; and each share, where the capital is divided into shares, must be distinguished by its appropriate number (m). The names of every member must be registered (n). It will be observed that transfer is not, as under the Companies Clauses Consolidation Act, required to be bv deed (o). The following is the regulation in Table A. as to transfer : — - Art. 8. "The instrument of transfer of any share in the company shall be executed both by the transferor and trans- feree, and the tran sferor shall be deMn&djto remain a holder of such sharejmtil^he name of the transferee is jntered in the register book in respect thereof." Art. 10. " The company may decline to register any transfer of shares made by a member who is indebted to them" {%>). In order to prevent contracts for the sale and purchase of shares and stock in joint-stock banking companies, of which Qc) 25 & 26 Vict. c. 89, s. 15. {I) S. 18. See M. L. R. P. 97, as to holding lands. (m) 25 & 26 Vict. c. 89, s. 22 ; and see s. 24. (w) Ss. 23, 25, 26, 35 ; and see 30 & 31 Vict. 0. 131, s. 26. (o) See ante, p. 164. {p) As to sufficiency of this, see Buckley's Companies Acts, 412 ; and Palmer's Company Precedents, 124. INCOEPOEEAL THINGS— CHOSES IN ACTION. I73 the sellers are not possessed or over which they have no Chap. VIII. control, an Act, commonly called Leeman's Ac t, was passed in 1867 {q), paaking void jll such ^ contractsjadiich.. do-not specify the^dlstinguishing numbers_ol,§uch.sJiaresi5r s tock, or , if there a re no distinguishing Dumb,ers,..lhfi_person or person s in whose name or names the sam^e then_stand_asxegistered proprie tor. Dealers in the Stock Exchange have disregarded this Act as impracticable, at the risk of incurring personal liability. But it has been held that the usage of the Stock Exchange to disregard the Act is unreasonable, and not binding on strangers who do not know such usage (r) ; by following it a stockbroker may render himself liable for a breach of duty in not making a valid contract (s). If authorized by its regulations as originally framed, or as Alteration altered by special resolution {t), any company limited by or name!' shares may modify the conditions contained in its memo- randum of association, so as to increase its capit al by the issue of new shares, or to consolidate and divide its capital into shares of larger amount, or to convert its paid-up shares into stock, or to change its name (ti). Similarly under the Acts of 1867 and 1877 {x), such companies may reduc e their capital; also under the Act of 1867 they may by subdivision of shares or any of them, divide their capital or any part of it into shares of smaller amount than is fixed by the memorandum of association (y). The Act of 1862, unlike the Companies Clauses Act, does Payment of not provide for the making of calls ; but that is left to the calls. (5) 30 Vict. c. 29. (x) 30 & 31 Vict. c. 131, ss. 9—20 ; (r) Peny Y. Barnett,L.T>,. lb Q.B. and 40 & 41 Vict. c. 26. See Banna- J)_ 388. %™^ '"'■ Vired Spanish Telegraph Co., (s) Neilson V. James, L. E. 9 Q. B. L. E. 34 Ch. D. 287 ; In re Direct j)_ 54g, Spanish Tilegraph Co., ih. 307. \t) 25 & 26 Vict. c. 89, ss. 50, 51. {y) 30 & 31 Vict. 3. 131, ss. 21, 22. {u) S. 12. 174 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. VIII. regulations of the company {z). It has, however, been provided by the Act of 1867 (a), that nothing contained in the principal Act shall prevent any company, if authorised by its regulations as originally framed or as altered by special resolution, from doing any one or more of the follow- ing things, namely : — S. 24 (1). " Making arrangements on the issue of shares for a difference between the holders of such shares in the amount of calls to be paid and in the time of payment of such calls : (2.) "Accepting from any member of the company who assents thereto the whole or a part of the amount remaining unpaid on any share or shares held by him either in discharge of the amount of a call payable in respect of any other share or shares held by him, or without any call having been made : (3.) " Paying dividend in proportion to the amount paid up on each share in cases where a larger araount is paid up on some shares than on others." And it was further enacted : — S. 25. " That every share in any company shall be deemed and taken to have been issued and to be held subject to the payment of the whole amount thereof in cash unless the same shall have been otherwise determined bj"- a contract duly made in writing, and filed with the registrar of joint-stock companies at or before the issue of such shares " (b). Also the Act of 1879 (c) provides that a limited company may, by special resolution, declare that any portion of its capital, which has not been already called up, shall not be {z) See Table A (4)— (7). Limited, L. E. 30 Ch. D. 153. (a) 30 & 31 Vict. c. 131, s. 24. (c) 42 & 43 Vict, c, 76, s, 5. (6) S. 25. See In re Delta Syndicate, INOOEPOEEAL THINGS— OHOSES IN ACTION. I75 called up except in the event of and for the purpose of the Chap. VIII. company being wound up. Notice of increase of capital (e), also of consoHdation, Notice of .... . , . increase of division, or conversion, must be given to the registrar (/). capital, &c. Further, under the Companies Act, 1867 {g), if authorised share by its regulations as originally framed, or as altered by special resolution, a company limited by shares may, with respect to any fully paid-up share or stock, issue under their seal a share-warrant to bearer, that is to say, a warrant stating that the bearer of the warrant is entitled to the share or shares or stock therein specified, and may provide by coupons or otherwise, for the payment of the future dividends on the share or shares or stock included in such warrant. Such warrant entitles the bearer to the shares or stock specified in it, which may be transferred by the delivery of the warrant Qi). No notice of any trust, expressed, implied, or constructive, Trusts, is to be entered on the" register or be receivable by the registrar (^). A certificate under the common seal of the company, Certificate- specifying any share or shares or stock held by any member, membership. IS primd facie evidence of such member's title Qc). To protect shareholders against deception by insuring Prospectus— poll t"T'310"t"S them full information as to all the material circumstances prior to attending the formation of the company, antecedently to the issuing of the prospectus, there is in the Companies (e) 25 & 26 Vict. c. 89, s. 34. SocUU OenSrale de Paris v. Tramways (/)S. 28. Sees. 29. Union Co., L. R. 11 Ap. Ca. 20; ig) 30 & 31 Vict. c. 131, s. 27. Bradford Banking Co. v. Briggs, 12 (h) S. 28. Aa to the eflfect of a Ap. Ca. 29. share warrant on membership, see (/c) 25 & 26 Vict, c, 89, s. 31. See ss. 29—32. Table A (2). (i) 25 & 26 Vict. c. 89, s. 30. See 176 THE MODEEN LAW OP PERSONAL PROPERTY, Chap. VIII. Act, 1867 Q), a provision requiring every prospectus of a company to specify the dates and names of parties to any contract made prior to the issue of such prospectus ; its comprehensiveness has given rise to many questions (m) : it is in the following terms : — S. 38. " Every prospectus of a company, and every notice inviting persons to subscribe for shares in any joint-stock company, shall specify t he dates an d the names of the parties to any co ntract entered into by the company, or the promoters, directors, or trustees thereof, before the issue of such pro- spectus or notice, whether subject to adoption by the directors or the company, or otherwise ; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, and officers of the company knowingly issuing the same, as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract." The object of the enactment was thus eloquently ex- pounded by Cockburn, C.J. {n) : — " There are cases in which, in the absence of active fraud, passive misrepresentation, that is to say, silence as to some fact which it would be material to the one party to know, but which the other is not legally bound to communicate, may involve the one in loss, but in which the party suffering what amounts to a moral, but not a legal, wrong, has no remedy at law. In the ordinary transactions of life, an individual can make inquiries and require positive information, or insist on a warranty, before entering into a contract or embarking in a common enterprise. But in these vast undertakings, carried on by the united enterprise and capital of hundreds, perhaps thousands, of shareholders, the individual shareholder is more or less at the mercy of those who invite him to join the company, as to the facts on which he may be led to (l) 30 & 31 Vict. c. 131, s. 38. (n) Twycross v. Grant, L. R. 2 C. P. (m) See Buckley's Companies Acts, D. .532. 504 et seq. INCOEPOEBAL THINGS— CHOSES IN ACTION. I77 invest his money. Experience has shown that shareholders may Chap. VIII. be plundered, not only by being led to invest in bubble companies, but also where the undertaking is intended to be carried out (as was, I have no doubt, the case in the present instance) by the resources of the company being impoverished by clandestine agreements, from which failure of the enterprise results, or by the company being made to pay largely in excess of the value of what it gets by the cupidity of those who set it going, and that share- holders may be victimised by being made to pay more than the real value of their shares, owing to dishonest or improvident bargains made in the inception of the undertaking, and not dis- closed in the prospectus. It was, I must assume, to protect the shareholder against these things, and to insure him all the infor- mation necessary to judge of the merits of the undertaking, that the enactment in question was passed, which requires, as I read it, that he shall be informed of all contracts entered into in the inception and formation of the company prior to the invitation to , the public to join it by taking shares. It was for this reason, I presume, that contracts entered into by promoters, who are the parties by whom companies are usually formed and set going, are expressly included." For the purpose of putting an end to a company, it may winding-xip. be wound up either by the Court (0). or voluntarily , or subject to the supervision of the Cour t. A company may be v?ound up by the Court under the By the Court. following circumstances (p) : — S. 79 (1), " Whenever the company has passed a specia l resolution requiring the company to be wound up by the Court : (2.) " Whenever the company does not commence its business within a vgar fro m its inc orporation , or suspends its business for the space of a whole year : (0) 25 & 26 Vict. c. 89, s. 81. Companies Act, 1872 (35 & 36 Vict. (p) S. 79. See Life Assurance c. 41), s. 4. 178 Chap. VIII. Voluntary winding-up. THE MODERN LA.W OF PEESONAL PEOPBETY. (3.) " Whenever the members are reduced in number to less than seven : (4.) " Whenever the company is unable to pay its debt s : (5.) " Whenever the Court is of opinion that it is just an d equitable that the company should be wound up." A company may be wound up voluntarily under the following circumstances {q) : — S. 129 (1). " Whenever the period, if any, fixed for th e duration of the com pany by the articles of association expires, or whenever the event, if any, occurs, upon the occurrence of which it is provided by the articles of associa- tion that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarilj'^ : (2.) " Whenever the company has passed a special resolu - tion requiring the company to be wound up voluntarily : (3.) "Whenever the company has passed an extraordinar y resolutio n to the eifect that it has been proved to their satis- faction that the com pany cann ot, b y reas pn-^f it^; iJ3];^j]if^oB contin^t^ it s bnsinps R, and that it is advisable to wind up the same." Subject to When a resolution has been passed by a company to of ODurt!" wind up voluntarily, the Court may make an order that the voluntary winding up shall continue subject to the super- vision of the Court (r). An unregistered company may not be wound up volun- tarily or under the supervision of the Court, but only by the Court (s). County Court, When the High Court makes an order for winding up a company, it may direct all subsequent proceedings to be had Unregistered company. {q) 25 & 26 Vict. c. (r) S. 147. , s. 129. («) S. 199. INCOEPOEEAL THINGS— CHOSES IN ACTION. ;I79 in a County Court (^). Such is also tlie Court by, or Chap. VIII' subject to the supervision of which, Building Societies (u), and Industrial and Provident Societies are wound up (x). The latter societies are for carrying on any labour, trade or handicraft, whether wholesale or retail, including the buy- ing and selling of land, but as to banking subject to pre- scribed conditions, of which societies no member other than a society registered under the Industrial and Provident Societies Act, 1876, shall have or claim an interest in the funds exceeding £200 (.?/). («) 30 & 31 Vict. c. 131, ss. 41—46. Vict. c. 63 ; and 47 & 48 Vict. c. 41). And see 25 & 26 Vict. c. 89, s. 81. (x) 39 & 40 Vict. c. 45, a. 17. (m) 37 & 38 Vict. c. 42, ss. 4, 32. (y) 39 & 40 Vict. o. 45, s. 6 (sic). This Act was amended in 1875, 1877, See also the Friendly Societies Act, and 1884 (38 & 39 Vict. c. 9 ; 40 & 41 1875 (38 & 39 Vict. c. 60). N 2 ]80' THE MODERN LAW OF PERSONAL PROPERTY. c. 3 Chap. IX. CHAPTER IX. CHOSES IN ACTION [continued). I. Patents. ' PATENTS ' are another kind of incorporeal property, granted by the Crown to the authors of new inventions, securing to them the profit of the same for a limited period. The grants are contained in Charters or Letters Patent, that is, open letters, literce patentee, so-called, says Blackstone (a), because " they are not sealed up, but exposed to open view, with the great seal pendent at the bottom, and are usually directed or addressed by the king to all his subjects at large." 21 Jac. I. The right to grant such monopolies was preserved to the Crown by the Statute of Monopolies (&), whereby all monopolies, or Hcences, or privileges, allowed by the king for the sole buying and selling, making, working, or using of anything whatsoever, were rendered void, except as stated in the following saving clause :-^ S. 6. " Be it declared and enacted that any declaration before mentioned shall not extend to any letters patent and grants of privilege, for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor or inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not use : so as also they be not contrary to the law, nor mischievous to the State by raising prices of commodities at home, or hurt of trade, or generally inconvenient ; the said fourteen years (a) Vol. ii. 346. For present form, (5) 21 Jac. I. c. 3, s. 6. see 46 & 47 Vict. c. 57, Sched. I. .-INOOEPOEEAL THINGS— CHOSES IN ACTION. • 181 to be accounted from the date of the first letters patent or Chap. IX. grant of such privilege hereafter to be made; but that the same shall be of such force as they should be if this Act had never been made, and of none other." The principle upon whicli the exception was permitted has been thus expressed by Professor Bell (c) : — " The right to a patent monopoly of a useful invention is granted on the principle of a compromise or bargain between the inventor and the public. If left to the common law, the inventor would be deprived of the benefit of his invention. If he held a monopoly of it for ever, the public interest would sufier by high prices imposed by him wherever the use of his invention was valuable, and so would be deprived of the advantage of the dis- covery by other persons. On these grounds the bargain proceeds, by which there is given to the public the full benefit of the dis- covery, on a fair disclosure of it in its most beneficial shape, and in terms so plain and intelligible that it may be used without danger of useless expense, and without the necessity of further experiment ; and the public, on the other hand, is restrained for a time from interfering with the gains." The grant and protection of a patent are now regulated ^6 & 47 viot. by the Patents, Designs, and Trade Marks Act, 1883 (d), which was passed to amend and consolidate the law relating to patents for inventions, and the registration of designs and of trade marks, by the general rules of the Board of Trade thereunder (e), and by the amending Acts of 1885 and 1886 (/). These Acts, subject to certain special provi- sions, apply also to Scotland and Ireland (g), and to the Isle of Man (^). - (c) Bell's Principles, § 1349. (/) 48 & 49 Vict. c. 63 ; 49 & 50 (d) 46 & 47 Vict. c. 57. Reference Viot. c. 37. should be made to the treatise of (g) 46 & 47 Vict. c. 57, ss. 107^ Mr. Aston on this Act. 111. ■ (e) 46 & 47 Viot. c. 57, s. 101. {h} S. 112. 182 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. IX. In the above Acts, ' patent ' means letters patent for an invention, ' patentee ' the person for the time being entitled to the patent, and 'invention' any manner of new manufac- ture the subject of letters patent and grant of privilege, within the above exception to the Statute of Monopolies, and includes an alleged invention Qi). The Acts are not to take away, abridge, or prejudicially affect, the prerogative of the Crown in relation to the grant- ing of Letters Patent or withholding a grant {i). Who may Any person (which includes a body corporate (Zj) ), pateut. whether a British subject or not, may apply for a patent (Z); and two or more persons may apply and a patent be granted to them jointly, although some or one only be the true inventors or inventor {m). Formerly they must have been joint inventors. There is no implied contract that no one of the co-patentees shall use the invention without the consent of the others, or, if he does, that he shall use it for their joint benefit {n). Application— The application must be in the prescribed form, and true and first '^^ , inventor. must be left at or sent by post to the Patent Office (o). It must contain a declaration (statutory or otherwise as may be prescribed) to the effect that the applicant, or in a joint application one or more of the applicants, claims or claim to be the true and first inventor or inventors {p). The Act does not attempt to define who is ' the true and first inventor ' ; to ascertain the meaning of the expression, recourse must still be had to the numerous decisions upon Qi) 46 & 47 Vict. c. 57, s. 46. Ap. 29 ; Goodeve's Patent Cases, 298. (i) S. ] 16. See Hancock v. Bewley, ib. 219 ; Johns. (k) S. 117. 601. (l) S. 4 (1). (o) 46 & 47 Vict. c. 57, ss. 5 (1), {m) S. 4 (2) ; and 48 & 49 Vict. 82 (1). For form, see 1st Sched. c. 63, s. 5. (p) Us. 5 (2), 99 ; 48 & 49 Vict. (n) Mathers v. Green, L. E, 1 Ch. c. 63, s. 2. INOOEPOEEAL THINGS-OHOSES IN ACTION. j^g the Statute of Monopolies {q). A person, who in a popular Chap. IX, sense was not the true or first inventor, may yet be ' the true and first inventor ' in a legal sense ; for instance, he may have been the first to have imported some one else's invention from abroad, or he may have been the first to make known an invention which others had also discovered but had not made known to the public. Said Sir G. Jessel, M.R. (r) :— " It is not for a Judge of the present day to give his meaning as to what should be attributed to the words of the statute. He must take the construction put on the statute to be of the same effect, as guiding him to a correct decision, as if that construction had been enacted as part of the statute. " In order that those who may have to consider my judgment hereafter may know the view that I take of the statute combined with decisions, I will state the result at which I have arrived. As I understand, shortly after the passing of the statute, the question arose whether a man could be called a first and true inventor who, in the popular sense, had never invented anything, but who, having learned abroad (that is, out of the realm, in a foreign country, because it has been decided that Scotland is within the realm for this purpose) that somebody else had invented something, quietly copied the invention, and brought it over to this country, and then took out a patent. As I said before, in the popular sense he had invented nothing. But it was decided, and now, therefore, is the legal sense and meaning of the statute, that he was a first and true inventor within the statute, if the invention, being in other respects novel and useful, was not previously known in this country — ' known ' being used in that particular sense, as being part of what had been called the com- mon or public knowledge of the country. That was the first thing. Then there was a second thing. Suppose there were two people, actual inventors in this country, who invented the same thing simultaneously, could either be said to be the first and true (q) See 46 & 47 Vict, c, 57, 8. 46 : {r) Plimpton v. Makohnson, L. E, ante, p. 180. 3 Ch. D. 555. 184 THE MODERN LAW OP PEESONAL PEOPEETY. Chap. IX, inventor? It was decided that the man who first took out the j)atent was the first and true inventor. Then there was another point. If the man who took out the patent was not, in popular language, the first and true inventor, because somebody had in- vented it before, but had not taken out a patent for it, would he still, in law, be the first and true inventor ? It was decided he would, provided the invention of the first inventor had been kept secret, or, without being actually kept secret, had not been made known in such a way as to become a part of the common know- ledge, or of the public stock of information. Therefore, in that case also, there was a person who was legally the first and true inventor, although, in common language, he was not, because one or more people had invented it before him, but had not sufficiently disclosed it." Subject- matter. ExMliitions. Otherwise the mvention must be novel, as well as useful, both matter of actual discovery and of useful discovery ; it may be of an improvement on, or addition to, an existing patent, or a new application of known principles. A new process including distinct means to the same known end is good subject-matter of a patent, and so is a new combina- tion of old things, but not a mere principle or idea alone, or the new use of an old thing (s). The exhibition of an invention at an Industrial or Inter- national Exhibition, certified as such by the Board of Trade, or the publication of any description of it during the Exhi- bition, or the use of it for the purpose of the Exhibition and in the place of the Exhibition, or the use of it during the Exhibition by any person elsewhere without the privity or consent of the inventor, is not to prejudice the rights of the (s) See Goodeve's Patent Cases, Index, titles 'subject-matter' (and Badische Anilin und Soda Fahrih v. Levinstein, ib. 24 ; L. R. 24 Ch. D. 156), ' novelty of invention,' and ' user.' As to prior publication, see Otto V. Steel, L. R. 31 Ch. D. 241 ; and Harris v. Bothwell, W. N. (1886), 166. ; INCOEPOEBAL THINGS— CHOSES IN AOTIQN. 185 inventor ; provided that before exhibiting he gives the Chap. IX. Comptroller notice of his intention to do so, and the applica- tion is made within six months from the date of opening (t). This protection may be extended by Her Majesty by Order in Council to any Exhibition to be mentioned in the Order ; which may also provide that the exhibitor shall be relieved from the condition as to notice, absolutely or upon terms (u). An application for a patent must be accompanied by a provisional ' specification,' which may be either ' provisional ' or ' com- ^^^" ''''^°°' plete ' (x). A provisional specification must describe the nature of the invention, and be accompanied by drawings if required (?/) ; a complete specification must particularly describe and ascertain the nature of the invention, and in what manner it is to be performed, and must be accom- panied by drawings, if required, or refer to those which accompanied the provisional specification (s). Every speci- fication must commence with the title of the invention, and a complete specification must end with a complete state- ment of it (a). The complete specification, if not left with the application, may be left at any time within nine months or, with leave, within a further period of one month (b), from the date of application ; and unless it is left within that time, the application is deemed to be abandoned (c). Formerly the specification was completed subsequently to the grant of the patent. It has been provided that, when an application has been abandoned, no specification or («) 46 & 47 Vict. c. 57, s. 39. s. 2. For form, see 1st Sched. to 46 & (w) 49 & 50 Vict. c. 37, s. 3. 47 Vict. c. 57. (x) 46 & 47 Vict. c. 57, s. 5 (2). (a) 46 & 47 Vict. c. 57, a. 5 (5). (y) S. 5 (3). For forni, see 1st (b) 48 & 49 Vict. c. 63, s. 3. Sched. (c) 46 & 47 Vict. c. 57, s, 8. (a) S. 5 (4); 49 & 50 Vict. c. 37, 186 THE MODERN LAW OF PERSONAL PROPERTY, Chap. IX. drawings shall be open to public inspection or be published by the Comptroller (J). S'JISiner— "" '^^^ Comptroller is the officer under whose immediate law officer. control the Patent Office is placed, and who acts under the superintendence and direction of the Board of Trade, by whom he is appointed (e). He is to refer every application to an Examiner, who is also an officer appointed by the Board of Trade (/), whose duty it is to ascertain and report to the Comptroller whether the nature of the invention has been fairly described, whether the application, specification, and drawings (if any) have been prepared as prescribed, and whether the title sufficiently indicates the subject-matter (^) ; upon the report of the Examiner the Comptroller may, after opportunity to the applicant of being heard {h), require the application, specification, or drawings to be amended, subject to an appeal to the law officer (^), that is, the Attorney or Solicitor-General (Jc). Complete Similarly where a complete specification is left, after a provisional one, the Comptroller is to refer it to an Examiner that he may ascertain whether it has been prepared as prescribed, and whether the invention particularly described in the complete specification is substantially the same as that described in the provisional specification ; upon the report of the Examiner the Comptroller may, after oppor- tunity to the applicant of being heard {I), refuse to accept the complete specification unless amended, subject to an appeal to the law officer (m). Unless a complete specifica- tion is accepted within twelve months (or, with leave, within (d) 48 & 49 Vict. c. 63, s. 5. (i) S. 1 (1), (2), (3). (e) 46 & 47 Vict. c. 57, ss. 82, 83. {k) S. 117. (/) S. 83. {I) S. 94. (.9) S. 6. (m) S. 9 (1), (2), (3). (A) S. 94. specification. INCOEPORBAL THINGS-CHOSES IN ACTION. 187 a further period of three months {n) ) from the date of Chap. IX. application, then (unless an appeal have been lodged) the application becomes void at the expiration of the twelve months (o), or of the extended time {p). As in the case of an abandoned application (g), so in the case of one becoming void no specification or drawings shall be open to public inspection or be published by the Comptroller (r). In no case are the reports of Examiners to be published or open to public inspection (s). But on the acceptance of the complete specification the Comptroller is to advertise the acceptance, and the application and specification or specifi- cations with the drawings (if any) are to be open to inspec- tion {t) ; and provision is made for the issue of an official journal by the Comptroller (m), and for a patent museum {x). If, after an application has been made but before a patent Applications has been sealed, another application is made with a speci- of same f..,. , .,,.,..■.■. p InveDtion. tication bearmg the same or a similar title, it is tfie duty of the Examiner to report to the Comptroller whether the specification appears to comprise the same invention ; if ho reports in the affirmative, after notice to the applicants, the Comptroller may determine, subject to appeal to the law officer, whether the invention is the same, and, if so, refuse the application of the second applicant (z/). It is also pro- vided that in case of more than one application for a patent for the same invention, the sealing of a patent on one application shall not prevent the sealing of a patent on an earlier application (z). (n) 48 & 49 Vict. c. 63, s. 3. (i) S. 10. (o) 46 & 47 Vict. ^. 57, s. 9 (4}. (m) S. 40. Ip) 48 & 40 Vict. c. 63, s. 3. {x) S. 41. (3) Ante, p. 185. {y) S. 7 (5), (6). (V) 48 & 49 Viot. c. 63, s. 4. (z) S. 13. (s) 46 & 47 Vict. c. 57, s. 9 (5). iSS THE MODERN LA.W OP PERSONAL PEOPEETY. Amendment of specifica- tion. Chap. IX. The Comptroller, subject to an appeal to the law officer, may permit an amendment from time to time in a specifica- tion (including the drawings) by way of disclaimer, correc- tion, or explanation, by an applicant or a patentee, provided that he do not thereby claim an invention substantially larger or different, and that no action for infringement or other legal proceeding in relation to a patent is pending(a). In an action for infringement, or proceeding for revocation, the patentee may, with the leave of the High Court or a Judge thereof, amend by way of disclaimer, and in such case the hearing of the action will in the meantime be postponed (5). In case of amendment no damages will be recoverable in respect of user prior thereto, unless the patentee establishes that his original claim was framed in good faith and with reasonable skill and knowledge (c). Any person may, within two months from the date of advertisement of the acceptance of a complete specification, give notice of opposition to the grant of a patent on the following grounds only, — (1) that the applicant has obtained the invention from him, or from a person of whom he is the legal representative ; or, (2), that the invention has been patented on an application of prior date ; or, (3), that the Examiner has reported that the specification appears to comprise the same invention as is comprised in a specifica- tion bearing the same or a similar title and accompanying a previous application (d). After the two months the Comptroller is to decide on the case subject to an appeal Opposition to grant. (a) 46 & 47 Vict. c. 57, ss. 18, 21. An appeal pending to the House of Lords is not an action, &c., pending. ' Pending action ' is an action before judgment : ' other legal proceeding ' is a proceeding for revocation : Crop- per V. Smith, L. E. 28 Ch. D. 148. (6) 46 & 47 Vict. c. 57, ss. 19, 21. See Fiisee Vesta Co. v. Bryant & May, L. E. 34 Ch. D. 458 ; Bray v. Gardner, ib. 668. (c) 46 & 47 Vict. c. 57, s. 20. (d) S. 11 (1). INOOEPOEEAL THINGS— CHOSES IN ACTION. 1S9 to the law officer, who may call in the assistance of an Chap. IX. expert (e). If there is no opposition, or in case of opposition if the Grant of determination is in favour of the grant, the Comptroller is to cause a patent to be sealed with the seal of the Patent Office (/). The patent must be for one invention only, but may contain more than one claim ; but no objection may be taken in any action or proceeding on the ground that the patent comprises more than one invention {g). The patent is to be sealed as soon as may be, and not after fifteen months from the date of application, unless the time for leaving a complete specification has been extended, in which , case a further period of four months is allowed (7^), except in the following cases: — (1) where the sealing is delayed by an appeal to the law officer, or by opposition to the grant, then it may be sealed at such time as the law officer may direct ; and (2) if the applicant dies before the expiration of the fifteen months, the patent may be granted to his legal representative and sealed at any time within twelve months after his death [i). Now, also, in the case of the death of an inventor, the appHcation for a patent may be made by his legal represen- tative, provided that it is made within six months of his decease {k). Every patent is to be dated and sealed as of the day of the application ; but no proceedings can be taken in respect of an infringement before the publication of the complete specification {I). _ (e) 46 & 47 Vict. c. 57, s. 11 (2), (3), Qi) 48 & 49 Vict. c. 63, s. 3. (4). (i) 46 & 47 Vict. c. 57, s. 12 (3). ('/) Ss. 12 (1), (2), 84. ■ W S. 34. \g) S. 33. See form of patent in {I) S. 13. 1st Sched. 190 THE MODEEN LAW OF PEESONAL PEOPERTY. Chap. IX. Protection — provisional — by complete specification. Refusal to grant patent. Loss or destruction of patent. Extent and duration of patent. Where an application has been accepted, the invention may between the date of application and of sealing be used and published without prejudice to the patent to be granted ; such protection from the consequence of use and publication is called ' provisional protection ' (m). After the acceptance of a complete specification until the date of sealing the patent or expiration of time for sealing, the applicant has the like privileges and rights as if a patent had been sealed on the date of acceptance ; only he cannot institute proceedings for infringement until a patent has been granted to him (n). The Comptroller may refuse to grant a patent of which the use would in^ his opinion be contrary to law or morality (o). If a patent is lost or destroyed, or its non-production is accounted for to his satisfaction, the Comptroller may at any time cause a duplicate to be sealed (p). The patent when sealed has effect throughout the United Kingdom and the Isle of Man (q). The term limited in the patent for its duration is fourteen years from its date ; but the patent will cease on failure by the patentee to make the prescribed payments within the prescribed times, unless the time has been enlarged by the Comptroller, when satisfied that the failure to pay was attributable to accident, mistake, or inadvertence (r). On the other hand the term may be extended on petition to Her Majesty in Council, which must be presented at least six months before the time limited for the expiration of the patent, for a further term not exceeding seven, or, in exceptional cases, fourteen, (m) 46 & 47 Vict. c. 57, s. 14. (n) S. 15. (o) Ss. 86, 94, 95. (p) S. 37. (q) S. 16. (»■) Ss. 17, 24. , INCOEPOEEAL THINGS— CHOSES IN ACTION. 191 years, if the Judicial Committee, having regard to the Chap. IX. nature and merits of the invention in relation to the public, to the profits made by the patentee as such, and to tlie circumstances of the case, report that the patentee has been inadequately remunerated by his patent ; or a new patent may be granted for the term therein mentioned and containing any restrictions, conditions, and provisions that the Judicial Committee may think fit (s). All patents granted after the 31st of December, 1883 (t), Crown and have the like effect against Her Majesty and her heirs and the crown, successors as against a subject ; but the officers or autho- rities administering any department of the service of the Crovpn may, by themselves, their agents, contractors, or others, use the invention on terms to be before or after the use agreed on, with the approval of the Treasury, between them and the patentee, or in default of such agreement on such terms as may be settled by the Treasury (u). Also provision is made for the assignment by the inventor of any improvement in instruments or munitions of war to Her Majesty's Principal Secretary of State for the War Department (for or without valuable consideration) of all the benefit of the invention, and of any patent obtained or to be obtained for the same, and for keeping the particulars of such invention and the manner in which it is to be performed secret (x). A patent is not to prevent the use of an invention for the Foreign purposes of the navigation of a foreign vessel within the jurisdiction of Her Majesty's Courts in the United Kingdom or the Isle of Man, or the use of an invention in a foreign vessel within that jurisdiction, if not used for or in connec- (s) 46 & 47 Vict. c. 57, s. 25. See (0 46 & 47 Yict. c. 57, ss. 3, 45 (2). In re Newton's Patents, L. E. 9 Ap. Ca. (i6) S. 27. 592. (3=) S. 44. 192 THE MODERN LAW OF PEESONAL PEOPEETY. Chap. IX. Compulsory licenses. Revocation. tion with the manufacture or preparation of anything to be sold in or exported from the United Kingdom or Isle of Man ; provided that a similar indulgence is accorded by the foreign state to the use of inventions in British vessels while in the waters within the jurisdiction of such state {y). A patentee (where the patent has been granted since the 31st of December, 1883 (2) ) may be ordered by the Board of Trade to grant licenses for the use of his invention on such terms as to royalties, security for payment, or other- wise, as the Board, having regard to the nature of the invention and the circumstances of the case, may deem just, when it is proved that : — S. 22 (a.) " The patent is not being worked in the United Kingdom ; or (6.) " The reasonable requirements of the public with respect to the invention cannot be supplied ; or (c.) " Any person is prevented from working or using to the best advantage an invention of which he is possessed " (a). The old comphcated proceeding to repeal a patent by scire facias is abolished, and in place thereof revocation of a patent may be obtained on petition to the High Court ; but every ground on which a patent might be repealed by scire facias is still available by way of defence to an action of infringement and is also a ground of revocation (5). A petition of revocation may be presented (c) by the Attorney- General or any person authorised by him or by (c.) " Any person alleging that the patent was obtained in fraud of his rights, or of the rights of any person under or through whom he claims : \y) 46&47 Vict. c. 57, s. (z) Ss. 3, 45 (2). (a) S. 22. 43. (6) Ss. 26 (1), (2), (3), 117. (c) S. 26 (4). INCOEPOREAL THINGS— OHOSES IN ACTION. I93 (d.) "Any person alleging that lie or any person under Chap. IX. or through -whom he claims, was the true inventor of any invention included in the claim of the patentee : (e.) " Any person alleging that he, or any person under or through whom he claims an interest in any trade, busi- ness, or manufacture, had publicly manufactured, used, or sold, within this realm, before the date of the patent, anything claimed by the patentee as his invention." When a patent has been revoked on the ground of fraud, upon an application by the true inventor, a patent may be granted to him in lieu of, and bearing the same date as the date of revocation of, the revoked patent ; but it will cease on the expiration of the term for which the revoked patent was granted (d). Similarly a patent granted to the true and first inventor will not be invalidated by an appUcation in fraud of him, or by provisional protection obtained thereon, or by any use or publication during such pro- tection (e). A patentee may assign his patent for any place in or Assignment. part of the United Kingdom or Isle of Man, as if it had been granted to extend to that place or part only (/). This does not limit his power of assignment absolutely (g). In the Eegister of Patents at the Patent Office are to be Registers. entered the names and addresses of grantees of patents, notifications of assignments and of transmissions of patents, of licenses, of amendments, extensions, and revocations, and such other matters affecting the validity or pro- prietorship as may from time to time be prescribed, and the Tegister will be prima facie evidence (h). Also copies of deeds, licenses, and any other documents affecting proprietorship, must be supplied to the Comptroller (d) 46 & 47 Vict. c. 57, s. 26 (8). (/) S. 36. (e) S. 35. Further as to fraud, see (9) See form, 2 Da. i. 629. s. 18 (9). (h) 46 & 47 Vict. c. 57, s. 23 (1), (2). 194 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. IX. for filing in the Patent Office {i). The person for the time being entered as proprietor has, subject to any rights appearing from the register to be vested in any other person, power absolutely to assign, grant licenses as to, or otherwise deal with, the patent, and give effectual receipts for any consideration ; provided that any equities may be enforced as in respect of any other personal pro- perty {Ic) : but there must not be entered in the register or received by the Comptroller notice of any trust (Z). The register is to be open to inspection, and certified copies of any entry may be obtained (m). Certified copies or extracts of or from patents and other documents in the Patent Office, and of or from registers and other books kept therein, are to be received in evidence without further proof or production of tlie originals {n). The High Court may, on the application of any person aggrieved, order the register to be rectified (o), and the Comptroller may correct a clerical error (p). Threats of Formerly a patentee who issued notices against the sale b™patentfe. or purchase of certain articles, alleging infringements of his patent and threatening proceedings, was not liable to an action for damages by the vendor or for an injunction, if he acted hondfide; on the ground that an action for slander of title would not lie unless the statements were not only untrue, but were made without reasonable and probable cause, that is maid fide (q). But now the Act of 1883 (r) provides that : — (i) 46 & 47 Vict. 0. 57, s. 23 (3). (p) S. 91. (7c) S. 87. (q) Halsey v. Brotherhood, L. E. 19 (l) S. 85. Ch. D. 386. See per BaggaUay, L.J., (m) S. 88. 389. (u) S. 89. (r) 46 & 47 Vict. c. 57, s. 32. See (o) Ss. 90, 117. Knrh v. Spence, L. E. 33 Ch. D. 579. INCOEPOEBAL THINGS-OHOSES IN ACTION. I95 S. 32. " Where any person claiming to be the patentee of Chap. IX. an invention, bj'' circulars, advertisements, or otherwise threatens any other person with any legal proceedings or liability in respect of any alleged manufacture, use, sale or purchase of the invention, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as may have been sustained thereby, if the alleged manufacture, use, sale, or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats. Pro- vided that this section shall not apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent." It must be proved by the person aggrieved, as a condition precedent to obtaining an injunction, that there has not in fact been any infringement of the claimant's rights (s). Such person may obtain an injunction although the threats were contained only in a letter to him (t). On the other hand any person representing that any Falsely article sold by him is a patented article, when no patent IXTes"toTe has been granted for it, is made liable for every offence on i*"*™*^ • summary conviction to a fine not exceeding 5L (u). In 1787 anAct(»)was first passed for the encourage- 11. Designs. ment of the arts of designing and printing linens, cottons, caHcoes, and muslins, by granting the sole right to use any new and original pattern for printing the same during the period of three months. The period of protection was subsequently extended (?/) ; and also the principle of the (s) Barney v. United Telephone Co., D. 638. L. E. 28 Ch. D. 394. W 46 & 47 Vict. 0. 57, s. 105. (t) Driffield & East Riding Pure (x) 27 Geo. III. c. 38. Linseed Cake Co. v. Waterloo Mills {y) 29 Geo. III. c. 19 ; 34 Geo. III. Cake c{: JFarehousing Co., L. E. 31 Ch. c. 23 ; and 2 Vict. c. 13. 3 196 THE MODEEN LAW OF PERSONAL PEOPEETY. Chap. IX. Act was extended to secure to proprietors of designs for certain articles of manufacture the copyright of such designs for a limited time (z). In 1842 a consolidating and amending Act was passed for tlie protection of the copy- right of designs for ornamenting articles of manufacture whereby the prior Acts were repealed (a). This Act with the subsequent amending Acts, was repealed by the 46 & 47 Vict. Patents, Designs and Trade Marks Act, 1883(6), by which, by the General Rules of the Board of Trade there- under (c), and by the Amending Acts of 1885, 1886 (d), the protection to the proprietor of any new or original design is now regulated. Design— For the purposes of the Act ' design,' which it will be proprietor^f. observcd IS not confined to purposes of ornament, and ' copyright ' therein are thus defined (e) : — S. 60. " 'Design' means any design applicable to any article of manufacture, or to any substance artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape, or con- figuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applic- able, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemi- cal, separate or combined, not being a design for a sculpture, or other thing within the protection of the Sculpture Copy- right Act of the year 1814 (fifty-fourth George the Third, chapter fifty-six). " ' Copyright' means the exclusive right to apply a design to any article of manufacture or to any such substance as (z) 2 Vict. 0. 17. (d) 48 & 49 Vict. c. 63 ; 49 & 50 (a) 5 & 6 Vict. c. 100, s. 1. Vict. c. 37. (b) 46 & 47 Vict. c. 57, s. 113. (c) 46 & 47 Vict. c. 57, s. 60. (c) S. 10]. INCOEPOEEAL THINGS— CHOSES IN ACTION. I97 aforesaid in the class or classes in which the design is Chap. IX. registered." Also ' proprietor ' is defined as follows (/) : — S. 61. " The author of any new and original design shall be considered the proprietor thereof, unless he executed the work on behalf of another person for a good or valuable consideration, in which case such person shall be considered the proprietor, and every person acquiring for a good or valuable consideration a new and original design, or the right to apply the same to any such article or substance as aforesaid, either exclusively of any other person or other- wise, and also every person on whom the property in such design or such right to the application thereof shall devolve, shall be considered the proprietor of the design in the respect in which the same may have been so acquired, and to that extent, but not otherwise." On application by or on behalf of any person (which Eegistration. includes a body corporate) claiming to be the proprietor of any new or original design not previously published in the United Kingdom, which must be in the prescribed form and be left at or sent by post to the Patent Office, the Comp- troller may register the design (g). The application must contain a statement of the nature of the design, and the class or classes of goods in which it is desired that it should be registered (h), and be accompanied with the prescribed number of copies of drawings, photographs, or tracings, sufficient to identify the design, or with exact representa- tions or specimens of the designs; the Comptroller may refuse any drawing, photograph, tracing, representation, or (/) 46 & 47 Vict. 0. 57, s. 61. see Le May v. Welch, L. R. 28 Ch. D. {g) Ss. 47 (1), (2), 117. Eor form, 24. see Ist Schedule : for example of Qi) 46 & 47 Vict. 0. 57, s. 47 (3). desism refused as not new or original, 198 THE MODEEN LAW OF PEESONAL PEOPEETT. Chap. IX. Exhibitions. Duration of copyright. specimen, which is not in his opinion suitable for the official records («). The design may be registered in more than one class ; and, in case of doubt as to the class in which it ought to be registered, the Comptroller may decide the question ; also he may, if he thinks fit, refuse to register any design, subject to appeal to the Board of Trade {k). When registered the Comptroller is to grant a certificate of registration to the proprietor, and in case of loss of the original, or in any other case in which he deems it expedient, he may grant a copy or copies of the certificate {!). The exhibition of a design or any article to which it is applied at an Industrial or International Exhibition certified by the Board of Trade, or the exhibition elsewhere during the Exhibition, without the privity or consent of the pro- prietor, or the publication of a description of a design during any such Exhibition will not prevent the design from being registered, or invalidate the registration ; provided that beforehand the exhibitor give the Comptroller notice of his intention, and the application is made within six months from the date of opening (to). This protection may be extended by Her Majesty by Order in Council to any Exhibition to be mentioned in the Order, which may also provide that the exhibitor shall be relieved from the con- dition as to notice, absolutely or upon terms {n). In place of the periods of protection varying, as formerly, according to the class of goods, the copyright in a registered design now extends in all cases to one period of five years from the date of registration (o). Before delivery on sale of any articles to which a regis- {i) 46 & 47 Vict. c. 57, s. 48 (2). (Jc) S. 47 (4), (5), (6), (7). See 86. (0 S. 49. {m) S. 57. (li) 49 & 50 Vict. c. 37, s. 3. (o) 46 & 47 Vict. c. 57, s. 50 (1). INCOEPOEEAL THINGS-CHOSES IN ACTION. I99 tered design has been applied, if exact representations or Chap, IX. specimens were not furnished on application, the proprietor must then furnish them, or the Comptroller may erase his name from the register, and his copyright will cease (jy). Also before deUvery on sale the proprietor must cause each article to be marked with the prescribed mark, word or words, or figures, denoting that the design is registered, or his copyright will cease ; unless he shows that he took all proper steps to ensure the marking of the article (q). The copyright will also cease if the design is used in manufacture in any foreign country, and not in this country, within six months of its registration (r). This provision is new, and it will be observed that it is not confined to use abroad by the proprietor. In the Register of Designs at the Patent Ofiice are to be Registers. entered the names and addresses of proprietors of registered designs, notifications of assignments, and of transmissions of registered designs, and such other matters as may from time to time be prescribed ; and the register will be prima facie evidence (s). The person for the time being entered as proprietor has, subject to any rights appearing from the register to be vested in any other person, power absolutely to assign, grant licences as to, or otherwise deal with, the copyright, and give effectual receipts for any consideration ; provided that any equities may be enforced as in respect of any other personal property {i) ; but there must not be entered on the register or received by the Comptroller notice of any trust {u). During the existence of copyright, the design is not open {p) 46 & 47 Vict. c. 57, s. 50 (2). (r) 46 & 47 Vict. c. 57, s. 54. (2) S. 51. For instance of the (s) S. 55. exception, see Wittman v. Oppenheivi, (t) S. 87. L. R. 27 Ch. D. 260. (m) S- 85. 200 THE MODERN LAW OP PERSONAL PROPERTY. Chap. IX. to inspection, except by the proprietor, or a person authorised in writing by him or a person authorised by the Comptroller or bytheCourt,andfurnishing such information as may enable the Comptroller to identify the design, nor except in the pre- sence of the Comptroller or his officer, and on payment of the prescribed fee ; and the person making the inspection may not take a copy of the design or any part of it (x). When, however, the copyright has ceased, the design is to be open to inspection, and copies may be taken by any person on payment of the prescribed fee (y), or certified copies obtained (z). Certified and sealed copies or extracts of or from the register are to be received in evidence without further proof or produc- tion of the originals (a). The Court may, on the application of any person aggrieved, order the register to be rectified (5), and the Comptroller may correct a clerical error (c). Piracy— false On the request of any person producing a particular represen a- ^ggjgjj^ -^yj^;]^ il;g mark of registration, or producing only its mark of registration, or furnishing such information as may enable the Comptroller to identify the design, and on pay- ment of the fee, the Comptroller is to inform him whether the registration still exists, and in respect of what class or classes of goods, and the date of registration, and the name and address of the proprietor (d). For the protection of the proprietor of a design against piracy thereof it has been enacted that (e) : — S. 58. "During the existence of copyright in any design — (a.) " It shall not be lawful for any person without the license or written consent of the registered proprietor to (x) 46 & 47 Vict. c. 57, s. 52 (1). (6) S. 90. (y) Ss. 52 (2), 56. (c) S. 91. (z) S. 88. (d) S. 53. (a) S. 89. («) S. 58. INOOEPOEEAL THINGS— CHOSES IN ACTION. ^Ol apply such design or any fraudulent or obvious imitation Chap. IX. thereof, in the class or classes of goods in which such ' design is registered, for purposes of sale to any article of manufacture or to any substance artificial or natural, or partly artificial and partly natural ; and (h.) "It shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, knowing that the same has been so applied without the consent of the registered proprietor." And an offender is made liable for every offence to forfeit by way of penalty a sum not exceeding 50^. to the pro- prietor, who may recover it as a simple contract debt (/) ; or, if he elects to do so, the proprietor may bring an action for the recovery of damages {g). Also any person who describes any design applied to any article sold by him as registered, which is not, is made liable for every offence on summary conviction to a fine not exceeding 51. (h). Particular traders have long been in the habit of using m. Trade some particular mark or stamp to indicate that the article ™" ^ to which it was affixed had been manufactured by them. It was settled law that there was no property whatever in a trade-mark ; but a person who had been in the habit of using a particular mark might, by proceedings in the Courts of law or of equity, prevent other persons from fraudulently taking advantage of the reputation which his goods had acquired by using his mark in order to pass off their goods as his to his injury (^). But in 1875 an Act was passed to (/) 46 & 47 Vict. c. 57, s. 58. (i) The Collins Co. v. Brovm, 3 K. & {g) S. 59. J. 423. {h) S. 105. 202 THE MODERN LAW OF PERSONAL PROPERTY. Chap. IX. establish a register of trade-marks, under which a person could be registered as the first proprietor of a trade-mark (k). 46 & 47 Vict, ijijig ^^i^ wi\k the subsequent amending Acts, was repealed by the Patents, Designs, and Trade Marks Act, 1883 (Z), by which and the General Rules of the Board of Trade thereunder (m), and the Amending Act of 1885 (ra), the registration of trade-marks and the protection of their pro- prietors are now regulated. For the purposes of the Act a trade-mark must consist of, or contain, at least one of the following essential par- ticulars (o) : — (a.) "A Bame of an individual or firm printed, impressed, or woven in some particular and distinctive manner ; or (h.) " A written signature or copy of a written signature of the individual or firm applying for registration thereof as a trade mark ; or (c.) " A distinctive device, mark, brand, heading, label, ticket, or fancy word or words not in common use " (p). And there may be added to any one or more of such pai'- ticulars any letters, words, or figures, or combination of them, or of any of them {q). Eegistration. An application by or on behalf of any person (which in- cludes a body corporate (r) ) claiming to be the proprietor of a trade-mark for particular goods or classes of goods, (7c) 38 & 39 Vict, c, 91. nan di Co., W. N. (1887), VO. (l) 46 & 47 Vict. c. 57, s. 113. (q) 46 & 47 Vict. o. 57, s. 64 (2). (m) S. 101. For instances of application refused, (n) 48 & 49 Vict. c. 63. see Price's Patent Candle Co., L. E. 27 (o) 46 & 47 Vict. c. 57, s. 64 (1). Ch. D. 681 ; In re Harden Star Hand Ip) As to ' fancy word,' see In re (h-enade Fire Extinguislier Co., W. N. Van Duxer's Trade Marie, In re Leaf, (1886), 84 : of application granted, see Sons, dh Co.'s Trade Mark, L. K. 34 Ch. In re Trade Marh "Alpine," L. E. 29 D. 623; In re Arlenzs Application and Ch. D. 877; but questioned in In re Osborne ° judgments, mcut or O rder for the recovery by or payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any Court, whose jurisdiction was transferred by the Judicature Act, 1873, might have been enforced at its passing; that is to say, as regards the debtor's personal property, the person to whom the money is payable may, as soon as it is payable. (a) E. S. C. Ord. XLII. rr. 1, 24. 1883, Ord. XLIV. ; 32 & 33 Vict. (J) There are further remedies in c. 62, s. 4 ; and 41 & 42 Vict. c. 54, personam, viz., of iraprisoninent unde r s. 1). the Debtoia Act, 1869 32 & 33 Vict. (c) E. S. C. 1883, Ord. XLII. rr. 3, c. 62, s. 5), and of attach ment (E. S. C. 24, 28 ; and Ord. LXXI. r. 1. &c. ENFOEOEMENT OF DEBTS. 225 sue oiat a writ of fieri fadas (d), apply for an order to Chap. XI. attach debts owing or accruing from a third person to the debtor (e), for equitable execution (/), or for a charging order upon the debtor's stock or shares in the Government funds or public companies (g). Where the judgment or order is to pay money into Cou rt, or to do any oth er act in a lim ited time, the person prosecuting the same may issue a writ of^equestration (h). Where the judgment or order is against a corporation, by leave a writ of sequestration may be issued against the cori^orate property or the property pf the directors or ath^er_Qffic.em (0- A judgment for the recovery of any prop erty other than (land or) money may be enforced by writ for de livery of the property, or by A vrit of sequestrat Jimf^). Where the judg- ment or order is against a firm, execution may issue (1) against any property of t he partnership;, (2) against any person who has appeared i n Jiis own name, or who has admitted on the pleadings that he is, or who has been adjudged to b e, a partner, (3) against any person who has been served, as a partner, with the writ of summons, and has failed to appear ; if execution is claimed against any other person, as being a member of the firm, leave must be given (1). Under a writ oi fieri facias (commonly called fi. fa.), the "Writ of sheriff or his officer is at common law empowered to seize and sell the debtor's goods. It is so called from the com- mencing words : " We command you that of the goods and chattels of (the debtor) in your bailiwick you cause to be (d) R. S. C. 1883, Ord. XLII. r. 17 ; (g) Ord. XLVI. r. 1. and Ord. XL VIII. r. 1. (h) Ord. XLIII. r. 6. (e) Ord. XLV. See Ord. XLII. (i) Ord. XLII. r, 31. r. 32. (*) li- r. 6. And see r. 33. (/) Ord. Xm. rr. 3, 28, (0 Ord. XLII, r. 10. . 5. against creditors all gifts, alienations, conveyances, &c., of (lands) goods and chattels made with intent to hinder, delay, or defraud them. This applies to any debtor, whether bankrupt or not, and in the case of a bankrupt, whether the voluntary settlement was within or outside the period of ten years. But the statute does not extend to any interest on good consideration and hondjide lawfully con- veyed to any person, not having notice of such covin (o). An ordinary marriage settlement made prior to marriage, or after marriage in pursuance of articles, is not within it or the Bankruptcy Act {p). Many questions have arisen under the statute of Eliza- beth ; it was at first held that the conveyance of goods was not bond fide, although for good consideration, if the (it) 46 & 47 "Vict. 0. 52, s. 152 ; and (o) This statute is given in the see Married Women's Property Act, notes to Tioym's case, 1 Sm. L. Ca. 12. 1882 (45 & 46 Vict. c. 75), s. 11. See Ex parte Chaplin, In re Sinclair, (l) Ez parte Bishop, L. E. 8 Ch. Ap. L. E. 26 Ch. D. 336, per Fry, L.J. 718. And see M. L. E. P. Ill et seq., as to (m) lb. per James and Mellish, 13 EEz. c. 5, and 27 Eliz. c. 4 (as to L.JJ. lands). (to) 13 Eliz. c. 5 (made perpetual hy (p) 46 & 47 Vict. c. 52, s. 47. See 29 Eliz. c. 5). See also 46 & 47 Vict, the Author's " Exposition of the New c. 52, s. 4 (1) (b), ante, p. 240, Law of Bankruptcy," 56 et seq. 258 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. XII. debtor was allowed to remain in possession ; but now the question of bona fides, where there has been no change of possession, is regarded as a question of fact in each case {q). It has also been decided that the mere fact of a settlement being voluntary is not enough to render it void against creditors ; but there must, for instance, be unpaid debts which were existing at the time of making the settle- ment, and the settlor must have been at the time, not necessarily insolvent, but so largely indebted as to induce the Court to believe that the intention of the settlement, taking the whole transaction together, was to defraud the creditors (r). Further, it has been held that a conveyance is not fraudulent and void, either under the statute or at common law, merely because it is intended to defeat the expected execution of a particular creditor, provided that it was for valuable consideration and bond fide — i.e., that it was the intention of both parties to buy and sell in reality (s) ; and, in case the debtor is adjudged bankrupt within three months from the date of the conveyance, provided also that the conveyance took place before the receiving order, and that the person to whom it was made had not at the time notice of any available act of bankruptcy committed by the bank- rupt before that time if). And, apart from any statutory provision, the general policy of the law, while it allows a stranger to convey an (j) See Twyne's case, 1 Sm. L. Ca. 1, L. E. 3 Ch. D. 807, where there were and notes. no unpaid debts or insolvent eiroum- (r) See Holmes v. Penney, 3 K. & J. stances, but the object was plainly to 90, as to then creditors ; and see Jenhijn defeat future creditors. V. Vcmjhcm, 3 Dr. 419 ; and Ex parte (s) Wood v. Dixie, 7 Q. B. 892. See Mercer, In re Wise, L. E. 17 Q. B. D. 46 & 47 Vict. c. 52, s. 49. 290, as to subsequent creditors ; and (t) S, 49. see In re Pearson, Ex parte Stephens, ENFOEOEMENT OF DEBTS. 2S9 interest in property for the benefit of another terminable by Chap. XII. that person's bankruptcy, or on his aliening or charging it (u) , as in the case of property coming from the wife on marriage, renders invalid against the trustee in bankruptcy a similar settlement of property belonging to the party him- self (x) , that is, so far as the curtailment of his life interest is concerned (i/) . Besides avoiding in certain circumstances voluntary Fraudulent -settlements as above explained, the bankruptcy law also avoids payments, conveyances, or transfers of property, or charges thereon, by a debtor made, as it is termed, by way of 'fraudulent preference '; that is, made to give a preference to a particular creditor or class of creditors, which, the policy of the law being an equal distribution of the debtor's property among all creditors, is treated as fraudulent. Before the Bankruptcy Act of 1869 (z) the Courts considered such payments and transfers of property to be frauds upon the bankruptcy law, although not forbidden by express enact- ment (a). It will be remembered that to make such conveyance, transfer, or charge, is an act of bankruptcy upon which a bankruptcy petition may be presented {b). The provision of the Bankruptcy Act, 1883 (c), avoiding preferences, is as follows : — (u) Brandon v. Robinson, 18 Ves. tute of Elizabeth (13 Eliz. c. 5), in- 429. See form 3 Da. ii. 798 ; 2 Prid. valid m toto, see In re Pearson, L. E. 273. 3 Ch. D. 807. {x) 3 Da. i. 134 et seq. ; and 2 Prid. (z) 32 & 33 Vict. o. 71, s. 92. 212. This does not prevent a person (a) See the Author's " Exposition settling his own property so as to take of the New Law of Bankruptcy," 58 an interest defeasible on alienation. et seq. (y) Higinbotliam v. Holme, 19 Ves. (V) Ante, p. 240 ; 46 & 47 Vict. 87 ; or in the case of a voluntary c. 52, s. 4 (1) (c). gettlement, fraudulent within the sta- (c) S. 48 (1). s 3 260 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. XII. S. 48 (1). "Every conveyance or transfer of property, or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor, or any person in trust for any creditor with a view of giving such creditor a preference over the other creditors shall, if the person making, taking, paying, or suffering the same, is adjudged bankrupt on a bankruptcy petition presented within three months after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee in the bankruptcy." The Court in determining whether a payment or transfer of property is fraudulent within the above provision must consider what, as a question of fact, was the real dominant motive of the debtor ; and, if it come to the conclusion that it was (e.g.) to save himself from exposure or a criminal prosecution, it must hold that, notwithstanding the payee or transferee was in fact preferred, there was not a fraudu- lent preference (d). Also the payment or transfer must be by a debtor to a creditor or to somebody in trust for a creditor ; therefore the voluntary making good by the debtor of trust money which he has misapplied is not a fraudulent preference ; the relation of debtor and credi- tor does not exist between a trustee and his co-trustee, or between a trustee and his cestui que trust (e). And the above section is not to " affect the rights of any person making title in good faith and for valuable con- sideration through or under a creditor of the bankrupt," that is, a transferee of the creditor (/). Further, for the (d) Ex parte Taylor, In re Goldsmid, son, L. E. 17 Ch. D. 58 ; Ex parte L. E. 18 Q. B. D. 295. See Ex parte Taylor, In re Goldsmid, 18 Q. B. D. Hill, III re Bird, 23 Ch. D. 704, 705, 295 ; Ex parte Ball, In re Hutchinson, per Bowen, L.J. W. N. (1887), 21. (e) Ex parte Stubbins, In re Wilkin- (/) 46 & 47 Vict. c. 52, s. 48 (2) ; ENFOEOEMENT OF DEBTS. 261 protection of a payment or transfer to a creditor, not only Chap. XII. must it not have been made with a view of preferring, but it must have been made before the receiving order, and the creditor must have had no notice of any available act of bankruptcy committed before the payment (g) ; otherwise if the debtor is adjudged a bankrupt on a petition presented within three months from the date of payment, such pay- ment will not prevail against the trustee (h). The doctrine of fraudulent preference is not to be taken advantage of for the purpose of benefiting a single creditor, but only for the benefit of the whole body of creditors (^). As already indicated, in addition to the ordinary pro- Receiving . . P 1 1 1 • order against cedure by petition upon an act of bankruptcy, there is judgment given by the Bankruptcy Act power to the Court to make a receiving order against a debtor upon an application by a judgment creditor for his committal {k) ; and through its registrar to administer his estate where judgment has been obtained against a debtor in a County Court and he is unable to pay the amount forthwith, and he alleges that his whole indebtedness amounts to less than £50 {I). Also the Court is empowered to administer in bankruptcy Debtor dying „ , . . , - ... insolvent. the estates ot persons dying insolvent, on the petition oi a creditor whose debt would have been sufficient to support a bankruptcy petition (to). An order for administration in. such case is not to be made until after two mouths f rom the grant of probate or lettera of administration, unless contrary to the old law tinder the Act (i) Willmott v. London Celluloid Co., of 1869 (32 & 33 Vict. c. 71), s. 92. L. S. 34 Oh. D. 147, following Ex See Butcher v. Stead, L. R. 7 E. & I. parte Cooper, In re Zucco, L. E. 10 Ch. Ap. 846 ; and the Author's " Exposi- Ap. 510. tion of the New Law of Bankruptcy," (k) 46 & 47 Vict. c. 52, s. 103 (5), 58—61. ante, T^. 243. (g) 46 & 47 Vict. c. 52, s. 49. (l) S. 122, ante, p. 243. {h) Ss. 48, 49. See G. K. (1886), 6 («). (m) S. 125, ante, p. 244. 263 THE MODEEN LAW OF PEESONAL PEOPEETY. Bankruptcy of a trustee. Chap. XII. witli the concurrence, of thfe. legal personal representaJti^, or unless the petitioning creditor proves that the deceased committed an act of bankruptcy within three months before his decease (n). If a debtor by or against whom a petition has been presented dies, the proceedings, unless the Court otherwise orders, are to be continued as if he were alive (o). In the case of a trustee becoming bankrupt and it being expedient to appoint another trustee in his place, for in- stance, where he has trust money to receive or deal with so that he can misappropriate it, and whether a trustee solely or jointly with others {p), the BankruptcY Act empowe rs the Court havin g jurisdiction under the Trustee Act, 1850 (q), t hat is, the Chancery Divisio n _of_th^ High^Court {r), or where the trust estate does not exceed in amount or value the sum of £500 (s) a County Court, to remove such bank- rupt trustee and appoint another in his stead {t). It is expressly enacted by the Bankruptcy Act (u) that a receiving order shall not be made against any corporation, or against any partnership, association, or company, regis- tered under the Companies Act, 1862 (x). As regards a corporation, Blackstone says (?/) : — " The debts of a corporation, either to or from it, are totally extinguished by its dissolution ; so that the members thereof cannot recover, or be charged with them, in their natural capaci- ties ; agreeable to that maxim of the civil law, 'si quiduniversitati debetnr, singulis non debetur ; nee, quod debet universitas, singuli debent.' " II. Corpora- tions. Companies. (n) 46 & 47 Vict. c. 52, s. 125 (3). (o) S. 108. (p) In re BarJcer's Trusts, L. K. 1 Ch. D. 43 ; In re Adam's Trust, 12 Ch. D. 634. (j) 13 & 14 Vict. c. 60. (r) Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 34. (s) County Courts Act, 1865 (28 & 29 Vict. c. 99), s. 1, § 5. (0 46 & 47 Vict, c 52, s. 147. See Coombes v. Brookes, L. K. 12 Eq. 61. (u) 46 & 47 Vict. c. 52, s. 123. (x) 25 & 26 Vict. c. 89. iv) Vol. i. 484. ENEOECEMENT OF DEBTS. 263 A corporation may be dissolved, (1) by Act of parlia- Chap. XII. ment; (2) by the natural death of all its members, in Dissolution of ' corporation. case of an aggregate corporation ; (3) by surrender of its franchises ; (4) by forfeiture of its charter (z). Also by the loss of such an integral part of its members as is necessary, according to its character, to the validity of the corporate elections (a). We have seen under what circumstances a company can 'Winding-up be wound up under the Companies Acts (&). Among the ° ''°"'^^"''' circumstances under which one may be wound up by the Court is the inability to pay its debts (c). Any application to the Court for winding-up must be by Petition. petition, which may be presented by the company, or by one or more creditor or creditors, contributory or contribu- tories of the company (d). But no contributory may present a petition unless the members are reduced to less than seven, or unless his shares or some of theni either were originally allotted to him, or have been held by him and registered in his name, for at least six months during the previous . eighteen months, or have devolved upon him through the death of a former holder (e). A company is deemed unable to pay its debts (/) — (1). "Whenever a creditor, by assignment or otherwise, to whom the company is indebted, at law or in equity, in a sum exceeding fifty pounds then due, has served on the com- pany, by leaving the same at their registered office, a demand under his hand requiring the company to pay the sum so due, and the company has for the space of three weeks suc- ceeding the service of such demand neglected to pay such (z) Bl. vol. i. 484. and see s. 199 (3) (i). (a) 3 St. Bl. 30. But as to municipal (d) S. 82. corporations, see 45 & 46 Vict. c. 50, (e) 30 & 31 Vict. c. 131, s. 40. s. 70 (2). (/) 25 & 26 Vict. c. 89, s. 80. See (b) Ante, pp. 177 et seq. a. 199 (4). (c) 25 & 26 Vict, c, 89, s. 79 (4) ; 264 THE MODEEN LAW OP PERSONAL PEOPEETY. Chap. XII. sum, or to secure or compound for the same to the reason- able satisfaction of the creditor : (2.) "Whenever, in England and Ireland, execution or other process issued on a judgment, decree, or order obtained in any Court in favour of any creditor, at law or in equity, in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part : (3.) " Whenever, in Scotland, the inducise of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without pay- ment being made : (4.) " Whenever it is proved to the satisfaction of the Court that the company is vmable to pay its debts." A creditor unable to obtain payment of bis debt is in general entitled ex debito justiticB to an order for winding-up by tbe Court {g). Contributory. A ' Contributory ' is a person liable to contribute to the assets of the company in the event of its being wound up (Ji), that is to say, as defined by the Act {i) : — " Every present and past member of such company shall be liable to contribute to the assets of the company to an amount sufficient for payment of the debts and liabiUties of the company, and the costs, charges, and expenses of the winding-up, and for the payment of such sums as may be required for the adjustment of the rights of the contributories amongst themselves with the qualifications following (that is to say) : (1.) "No past member shall be liable to contribute to the assets of the company if he has ceased to be a member for a period of one year or upwards prior to the commencement of the winding-up : (2.) " No past member shall be Hable to contribute in respect of any debt or liabihty of the company contracted after the time at which he ceased to be a member : {g) Bowes v. Eope Life Insurance (h) 25 & 26 Vict. c. 89, s. 74. See Go., 11 H. of L. Ca. 389. See In re ss. 74—78. United Stock Exchange Go., W. N. (i) S. 38. See ss. 196, 209 ; and (1884), 251. Ramsay's case, L. E. 3 Cli. D. 388. ENFOEOEMENT OF DEBTS. 265 (3.) "No past member shall be liable to contribute to the Chap. XII. assets of the company unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act : (4.) " In the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member : (5.) " In the case of a company limited by guarantee, no contribution shall be required from any member exceeding the amount of the undertaking entered into on his behalf by the memorandum of association." After making an order for winding-up the Court settles a list of contributories (k). This is divided into two parts, namely, the A. list and the B. list. The former comprises the members of the company at the commencement of the winding-up, that is, at the time of the presentation .of the petition (Z), which is settled as soon as may be ; the latter comprises the past members who have ceased to be members within a year before its commencement, and is settled after it appears that the present members are unable to satisfy the debts (m). The provision of the Mai'ried Women's Property Act, Married • T 11 •I'll- women. 1882, that a woman alter marriage shall contmue liable m respect of her debts, contracts, &c., before marriage, ex- pressly includes any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories (w) ; and in Hke manner, so far as a husband is liable to his wife's debts, &c., contracted before marriage, his liability will extend to such sums (o). gc) 25 & 26 Vict. c. 89, s. 98. (m) 45 & 46 Vict. c. 75, s. 13, (l) S. 84. p. 282. (m) See notes to s. 38 in Buckley's (o) S. 14, post, p. 283. Companies Acts. 265 THE MODEEN LAW OF PEESONAL PEOPEETY. Chap. XII. By the Judicature Act, 1875 (j?), it is provided that in Rules of the winding-up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding-up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabihties provable, and as to the valua- tion of annuities and future and contingent liabilities respec- tively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of any such company, may come in under the winding-up of such company, and make such claims against the same as they may respectively be entitled to by virtue of the Judicature Act. The above enactment was for the purpose of getting rid of the old rule in equity as to proof by a secured creditor (q) ; it does not apply, for instance, the rules of bankruptcy relating to order and disposition (r). By the Companies Act, 1862, any attachment, sequestra- tion, distress, or execution, put in force against the estate or effects of the company after the commencement of the winding-up, will be void (s), except with the leave of the Court, and subject to such terms as the Court may im- pose {t) ; and any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property, as (p) 38 & 39 Vict. c. 77, s. 10. See (r) Goninge v. Irwell India-RuUer, the Annual Practice, and ante, p. 232. cfcc, Works, L. R. 34 Ch. D. 128. (?) See M. L. E. P. 116. Further, (s) 25 & 26 Vict. c. 89, s. 163. aa to the effect of the section, see (j) Ss. 85, 87. See In re New Gity notes to Companies Act, 1862, s. 158, Constitutional CM Co., W. N. (1887), by Mr. Buckley. 26. ENFORCEMENT OF DEBTS. 267 would, if made or done by or against any individual, be Chap. XII. deemed in the event of his bankruptcy to have been made or done by way of undue or fraudulent preference of his creditors, will, if made or done by or against any company, in like manner be invalid (m). (m) 25 & 26 Vict. c. 89, s. 164. See Willmott v. Loivion Gelluloid Co., L. R. 34 Ch. D. 147. 268 THE MODERN LAW OF PERSONAL PROPERTY. Chap. XIII. I. Interest on debts. At law. By statute. CHAPTER XIII. ENFORCEMENT OF DEBTS {continued). At law (and equity followed the law (a) ) the rule was that interest was allowed only upon mercantile securities, or in those cases where there had been an express promise to pay interest, or where such promise was to be implied from the usage of trade or other circumstances {h). It applied to bills of exchange and promissory notes, and to debts for which the debtor had agreed to give a bill or note, but not to a covenant for the payment of monies under a poHcy of assurance after the death of the assured. Interest was also payable on money wrongfully, fraudu- lently, or vexatiously withheld and not paid on the day when it ought to have been paid (c). By the Law Amendment Act, 1833, it was enacted {d) : — S. 28. " That upon all debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor at a rate not exceeding thfe current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand (a) See 'per Thesiger, L.J., in Web- ster V. British Empire Assurance Co., L. R. 15 Ch. D. 178, 179. (5) Per Abbott, C.J., in Higgins v. Sargent, 2 B. & Or. 349. (c) Seton on Decrees, vol. ii. 798 — 800. And see per Lord Westbury in. Caledonian Rail. Co. v. Carmichael, L. R. 2 Sc. Ap. 66. (d) 3 & 4 Wm. IV. c. 42, ss. 28, 29. ENFOEOEMENT OF DEBTS. 269 shall give notice to the debtor that interest will be claimed Chap. XIII. from the date of such demand until the term of payment ; provided that interest shall be payable in all cases in which it is now payable by law." And further : — S. 29. " That the jury on the trial of any issue or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure in all actions of trover or trespass de bonis asportatis, and over and above the money recoverable in all actions on policies of assurance made after the passing of this Act." It will be observed that a discretion is given to the jury to say whether, under all the circumstances of a case, it is one in which interest ought to be allowed or not : and a Judge of fact will act as a jury (e). Under the former section it is not necessa,ry that the day for payment should be mentioned in the instrument, if a time or event be fixed the date of which can be ascertained afterwards (/). We have seen that the liability of a person to contribute to the assets of a company being wound up under the Companies Acts creates a debt (g) ; therefore, a notice upon a contributory of a call made in winding up, requiring its payment by a given day and stating that if not paid by that day interest will be charged, will make interest to be payable on the call under the above statute (h). (e) See 'per Hall, V.-C, in Hill v. Rail. Co., 18 Eq. 170 : what is not a 8 Staffordshire Bail. Go., L. E. 18 Bq. sufficient demand, see Ward v. Eyre, 170. 15 Ch. D. 130. (/) Bimcombe v. Brighton Club cfc {g) Ante, p. 264. See 25 & 26 Vict. Norfolk Hotel Co., L. E. 10 Q. B. 371. c. 89, s. 75. As to wliat is not a ' debt or sum (h) Barrow's case, L. E. 3 Ch. Ap. payable,' see Hill v, S, Staffordshire 784. 270 THE MODERN LAW OF PERSONAL PEOPEETY. Chap. XIII. The statutory provision as to payment of interest by way of damages where a bill of exchange is dishonoured has been previously noticed (^). Compound interest cannot be claimed, except under a contract express or implied from the mode of dealing with former accounts or from custom (/). Under the Rules of the Supreme Court, interest runs upon the amount for which the judgment or order is passed with costs, at the rate of £4 per cent, per annum (k). Under 1 & 2 Vict. c. 110, s. 7, every judgment debt carries interest at that rate from the time of entering up the judgment {kk). Adopting the principle of the statute, 3 & 4 Wm. IV. c. 42, s. 28, the following provision has been introduced into the bankruptcy law as to the right of proof by a creditor for interest upon his debt (Z) : — " On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or a^eed for , and which is overdue at the date of the receiving order and provable in bankruptcy, the cre ditor may pr ove for interest at a rate no t exceeding four per c^rt^^_annum to the da.f.p. of f.he order fmm the time when the debt or sum wsp^^ble, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made giving the debtor notice that interest will be claimed from the date of the demand until the time of payment." It is further provided that if there is^ any s urplus after - (i) Ante, p. 125. See 45 & 46 Vict. LV. rr. 62, 63 ; Pyrmn v. Burt, W. N. c. 61, s. 57 (1). (1884), 100. And see Coimty Court (J) Fergusson v. Fyffe, 8 C. & F. 121. Rules, 1886, Ord. LI. r. 13. As to the case of an accounting party {Mc) This applies also to County employing the money {e.g. of his prin- Court judgments : The Queen v. County cipal) in business, see Burdick v. Gar- Court Judge of Essex, L. E. 18 Q. B. D. rich, L. R. 5 Ch. Ap. 233 ; In re Bell, 638. 34 Ch. D. 462. Q) 46 & 47 Vict. c. 52, Sched. II. (Jc) E. S. C. Ord. XLII. r. 16 ; Ord. r. 20. And see s, 39. ENTOEOEMENT OF DEBTS. 37I payment of debts proved, including such interest, it i s to be Chap. XIII. applied in payment of inter est, froni the date of the receiving order at the ra te of £4 per cent^ per annum . on,_ all de"bts proved in the bankm ptp.y (m). In the winding-up of a company by, or under the super- in winding-up vision of, the Court, creditors whose debts carry interest are ° '^°^^^^^- entitled to dividends only upon what was due for principal and interest at the date of the winding-up ; and it is only in the event of there being a surplus that they have any claim for subsequent interest ; and in that, case the divi- dends will be treated as applicable, first, in payment of interest, and then in reduction of principal (n). Upon debts in respect of which interest would have been recoverable under the above statute (3 ' & 4 Wm. IV. c. 42, s. 28), interest to the same date is payable in the winding-up (0). A resolution to wind up voluntarily will not stop interest from running; but, where it is followed by an order to wind up under the supervision of the Court, interest will stop at the date of the resolution to wind up voluntarily {p). Although a man's property is generally liable to his n. statutes of debts, the enforcement of them must be within the period ™^ * ^°°' prescribed by statute. That period, as regards simple con- tract debts, is limited to six years from the cause of action, by the Statute of Limitations, 21 Jac. I. c. 16 ; as regards specialty debts, to twenty years from the cause of action, by the Law Amendment Act, 1833 (q). In the former case the further period allowed in case of the party entitled to sue being under disability or the debtor being beyond (to) 46 & 47 Vict. c. 52, s. 40 (5). Assurance Go's ease, 2 H. & M. 722. (m) See notes to Companies Act, {p) See Buckley's Companies Acts, 1862, 3. 158, by Mr. Buckley. 331. (0) State Fire Insurance Oo.; Times (q) 3 & 4 Wm. IV, c. 42, s; 3, 272 THE MODERN LAW OF PERSONAL PROPERTY. Chap. XIII. seas when the cause of action accrues, is regulated also by the statutes 4 Anne, c. 16, and the Mercantile Law Amend- ment Act, 1866 (r) ; also the right to sue may be revived to the creditor by certain acts of the debtor notwithstanding the lapse of time, under the provisions of Lord Tenterdeu's Act (s), amended by the Mercantile Law Amendment Act, 1856 (t) ; and by the latter statute are regulated actions on accounts between merchants, which were excepted from the statute of James. By the statute of James it is enacted (u) : — (a) Simple contract debts. 21 Jac. I. c. 16, s. 3. Meroliants' accounts. 19 & 20 Vict, c. 97, s. 9. S. 3. " That all actions of account, and upon the case (x) (other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants), all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the cause of such actions or suit, and not after." And by the Mercantile Law Amendment Act, 1856, it is enacted (y) : — S. 9. " All actions of account or for not accounting, and suits for such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen then within six years after the passing of this Act ; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having (r) 19 & 20 Vict. c. 97. (s) 9 Geo. IV. c. 14. (t) 19 & 20 Vict. c. 97. (m) 21 Jac. I. c. 16, s. 3. (x) As to such actions, see notes to AsUy V. WTiite, 1 Sm. L. Ca, 297, or Broom's Commentaries. (y) 19 & 20 Vict. c. 97, s. 9. See Knox V. Gye, L. R. 5 E. & I. 673, per Lord Wesfbury : read ' comprised in ' as 'that would have been compre< hended in,' ENFOECEMENT OF DEBTS. 273 arisen within six years next before the commencement of Chap. XIII. such action or suit." These statutes have been acted upon in Courts of equity, Law— equity. as well as in Courts of law, either directly or by way of analogy. As explained by Lord Westbury (2) :— " Where the remedy in equity is correspondent to tlie remedy at law, and the latter is subject to a limit in point of time by the Statute of Limitations, a Court of equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the common phrase, that a Court of equity acts by analogy to the Statute of Limitations, the meaning being, that where the suit in equity corresponds with an action at law which is included in the words of the statute, a Court of equity adopts the enactment of the statute as its own rule of procedure. But if any proceeding in equity be included within the words of the statute, there a Court of equity, like a Court of law, acts in obedience to the statute." The disability of a party to sue in respect of a simple Disabilities. contract debt was extended under the statute of James, not only to minors, married women, and lunatics, but also to parties imprisoned or beyond seas ; the latter were deprived of the further period allowed under that statute by the Mer- cantile Law Amendment Act, 1856 (a). So the enactment in the earlier statute should now be read thus {h) : — S. 7. " If any person or persons that is or shall be entitled to any such .... actions of accounts, actions of debts, .... be or shall be, at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis . . . . then such person or persons shall be at liberty (z) Knox V. Gye, L. E. 5 E. & I. (1887), 69. Ap. 674. See recent instance, In re {a) 19 & 20 Vict. c. 97, s. 10. Hastings, Ealhtt v, Hastings, W. N. (J) 21 Jac. I. c. 16, s. 7. T 274 THE MODERN LAW OE PEESONAL PEOPERTY. Chap. XIII. to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of sane memory .... as other persons having no such impediment should have done." And the statute has been further modified by the Married Women's Property Act, 1882, which, as we have seen, enacts that (c) ; — S. 1 (2.) " A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property (d) on any contract, and of suing and being sued, either in contract or in tort, or other- wise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise." It is also enacted by that Act that every woman, whether married before or after the commencement of the Act (January 1st, 1883) shall have in her own name, against all persons whomsoever, including her husband, the same civil remedies and also the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole ; and a husband or wife shall be competent to give evidence against each other ; provided that no criminal proceeding shall be taken against her husband while they are living together, nor while they are living apart as to or (c) 45 & 46 Vict. c. 75, s. 1 (2), anticipation : Draycott v. Ha/rrison, ante, p. 44. L. R. 17 Q. B. D. 147. {d) i.e. not subject to restraint upon ENFOECEMENT OE DEBTS. 275 concerning any act done by the husband while they were Chap. XIII. living together, unless the property claimed by her shall have been wrongfully taken by him, when leaving or de- serting or about to leave or desert her (e). The disabihty must have existed when the cause of action arose : it is a settled rule that where the time has once begun to run, no subsequent disability, however involuntary, will suspend the operation of the statute (/). The period was also extended, by the statute of Anne, in the DeUov beyond seas. case of the debtor being beyond seas, that is, being outside of the United Kingdom of Great Britain and Ireland, or the Islands of Man, Guernsey, Jersey, Alderney and Sark, or any island adjacent being part of the dominions of the Crown (g). By the statute of Anne it is enacted that persons entitled to their causes of action by the statute of James shall be at liberty, if the person against whom the cause of suit or action exists "be or shall be at the time of such cause of suit or action given or accrued fallen or come beyond the seas," to bring the said action against such person after his return from beyond the seas ; so as they take the same after his return from beyond the seas within the time limited by the statute of James (h). In certain circumstances, for instance, if judgment for the Action by plaintiff were reversed by error, or if the defendant be out- executor or lawed and afterwards reverse the outlawry, the statute of James (t) provided that in such cases the plaintiff, " his heirs, executors, or administrators as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed," &c. Proceed- (e) 45 & 46 Vict. c. 75, s. 12. (h) 4 Anne,c. 16 (in statutes revised, (/) See per Lord Denman, C.J., 4 & 5 Anne, c. 3), s. 19. Homfray v. Serotype, 13 Q. B. 512. (i) 21 Jac. I. c. 16, s. 4. (o) 19 & 20 Vict, c, 97, s. 12, 276 THE MODERN LAW OF PEESONAL PEOPEETY. Chap. XIII. ing upon the equity of the section, the Court extended it to the case of an executor, whose testator had died pending an action brought by him, such case being within the mischief, though not within the words of the section {k) ; and similarly, the rule was that where an action was commenced within the period of limitation and the defendant died, then the plaintiff had a right to bring a new action against the executor or administrator if he did so in a reasonable time (l). And this is still the rule, although the cause or matter does not become abated by the death of any of the parties {m). Joint debtors. And whcre the cause of action lies against two or more joint debtors, it is enacted by the Mercantile Law Amend- ment Act, 1856 (n), that : — S. 11. " The person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or persons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond seas at the time the cause of action or suit accrued after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid." Accrual of cause of action — ignorance — fraxid. Time will begin to run, in the case of the debtor beyond (/c) Per Lord Denman, C.J., Adam v. BulJceley, L. R. 18 Q. B. D. 253. V InhaUtants of Bristol, 2 Ad. & El. (m) S. G. ; and see E. S. 0. Ord. 404. XVIL (?) Per Lord Esher, M.E.., Swindell (n) 19 iSf 20 Vict. c. 97, s. 11, ENFORCEMENT OP DEBTS. 277 seas, from his return, although the creditor be unaware of Chap. XIII. his return (o), on the principle that the statute runs against a creditor's claim, although he is not aware of the accrual of his cause of action. And, on the same principle, at law the statute will run notwithstanding the fraudulent concealment of the cause of action [p) ; but in equity the right of a party defrauded is not affected by lapse of time, or, generally speaking, by anything done or omitted to be done, so long as he remains without any fault of his own in ignorance of the fraud that has been committed (g). The effect of the Statute of Limitations being to bar the New promise to pay — • remedy not to extinguish the debt (?■), a debtor may by a acknowiedg- , . ,.,.,. , . ment — part new promise to pay revive his habihty and give a new payment, cause of action (s). Such promise may be express, or implied from an acknowledgment of the debt or by payment of any principal or interest. Prior to Lord Tenterden's Act (9 Geo. IV. c. 14) a verbal promise or acknowledg- ment was sufficient ; but by that Act, after reciting that various questions had arisen in actions founded on simple contracts as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the Statute, it is enacted {£) : — S. 1. " That in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments or either of them, or to (o) Gregory v. Hurrill, 5 B. & Or. (r) Contrary to the statutes affect- 341. ing real property. See M. L. R. P. (p) Imperial Gas Light & CoJce Co. 398. V. London Gas Light Co., 10 Ex. 39. (s) See per Lord Tenterden, 0. J., (g) Bolfe V. Gregory, 13 W. R. 356, in Tanner v. Smart, 2 B. & Or. 606. per Lord Westbury, L.C. As regards (t) 9 Geo. IV. c. 14, s. 1. and and rent, see M. L. R. P. 393. 278 THE MODERN LAW OE PEESONAL PEOPEETY., Chap. XIII. deprive any party of the benefit thereof unless such acknow- ledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby ; and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator, shall lose the benefit of the said enactments or either of them, so as to be charge- able in respect or by reason only of any written acknowledg- ment or promise made and signed by any other or others of them : Provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principle or interest made by any person whatsoever : Provided also, that in actions to be commenced against two or more such joint contractors, or executors or adminis- trators, if it shall appear at the trial or otherwise that the plaintiff .... as to one or more of such joint con- tractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff." And by the Mercantile Law Amendment Act, 1856 (u), it is further enacted that : — S. 13. " An acknowledgment or promise niade or con- tained by or in a writing signed by an agent of the party chargeable thereby, duly authorised to make such acknow- ledgment or pi'omise, shall have the same effect as if such writing had been signed by such party himself." The effect of Lord Tenterden's Act (a;), which did not make any alteration in the legal construction to be put upon promises or acknowledgments, but merely required a (w) 19 & 20 Vict. c. 97, s. 13. (x) 9 Geo. IV. c. 14, s. 1, ENFOEOEMENT OP DEBTS. 279 different mode of proof (y), was thus stated by Hellish, Chap. XIII. L.J. (2) :_ " There must be a proof of some writing signed by himself, either containing an express promise to pay the debt, or being in terms from which an unconditional promise to pay it is necessarily to be implied. If, therefore, the writer, although he admits the existence of a debt, refuses to pay it, or reserves the matter for future consideration, or refers the creditor to some third person for payment, or the like, this will not be sufficient to prevent the operation of the statute. That being the rule, there must be one *of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied ; or, secondly, there must be an unconditional promise to pay the debt ; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed." Similarly for a payment of interest or part payment of capital to take the debt out of the Statute of Limitations, it must take place under such circumstances that a promise to pay may be inferred in fact, not merely implied in law ; thus, a payment of interest after judgment in an action for the same, would not be a payment from which a promise to pay the principal could in fact be inferred (a). The exception from Lord Tenterden's Act of payment of any capital or interest was made for the reasons thus expressed by Parke, B. {h) :— " The meaning of part payment of the principal, is not the naked fact of payment of a sum of money, but payment of a smaller on account of a greater sum, due from the person making {y) Per Tindal, C.J., in Haydon v. 474. . Willicvrm, 7 Bing. 166. {a) Morgan v. Rowlands, L. E. 7 {z) In re River Steamer Go., Mitchell's Q. B. 493. Claim, L. E. 6 Ch. Ap. 828. See (5) Waters v. Tompkins, 2 C. M. & Green v. Humphreys, L. E. 26 Ch. D. E. 726. 280 THE MODERN LAW OF PEESONAL PEOPEETY. Chap. XIII. the paj^ment to him to whom it is made; which part payment implies an admission of such greater sum being then due, and a promise to pay it: and the reason why the effect of such a payment is not lessened by the act, is that it is not a mere acknowledgment by words, but it is coupled with a fact. The same observation applies to the payment of interest." Appropria- tion of payments. Where there are two or more debts owing by the debtor to the same creditor and some are barred by the statute, the appropriation by the creditor, without the direction of the debtor, of any general payment to the satisfaction of these (which, the remedy only being barred, he could make), will not be such a part payment by the debtor to take others, or other items if they are in a running account, out of the statute ; it were otherwise if the debtor so appro- priated the payment. The law as to the appropriation of any payment to a particular debt or item is that the debtor may, in the first instance, appropriate the payment — solvitur in modum solventis ; if he omit to do so, the creditor may make the appropriation — recipitur in modum recipientis ; but if neither make any appropriation, the law appropriates the payment to the earlier debt : and the creditor may make the appropriation at any time before action (c). Eetainerby Another instance of the effect of the Statute of Limita- administrator, tious being Only to bar the remedy, not the debt, is to be found in the right of retainer by an executor as against a general legatee of a debt by him to the testator barred by the statute, or by an administrator of a debt by one of the next of kin as against his share in the estate of the deceased {d). (c) See Mills v. Fowkes, 5 Bing. N. C. 455 ; Clayton's case, 1 Mer. 585, and Tudor's L. Mar. Ca. 1 ; In re Sherry, London !. 7, DEVOLUTION ON DEATH OF OWNBE. 329 returned ; and, in like manner, if the value of the property Chap. XIV. turns out to be greater than was set out in the affidavit, further duty must be paid {I). Where the value of the personal estate, without any deduction for debts or funeral expenses, exceeds the value of £100, but does not exceed the value of £300, a fixed duty of 30s. is payable (m). Credit may be given in certain cases where it is not con- venient to pay the duty down (n). Ships at sea are to be charged for as if at port of registration (o). Personal estate appointed by will under a general power has been made chargeable with probate duty, which shall be a charge or burden upon such property (p). In order to prevent dispositions to take effect after death, On accounts other than by will, or in fraud of the revenue, it has been dmationes enacted by the Customs and Inland Revenue Act, 1881 ($'), &c. that stamp duties, at the like rates as charged on affidavits, shall be charged on accounts, which are to be delivered by any person acquiring possession or assuming the manage- ment of personal property of the following descriptions, namely, — (a.) " Anj' property taken as donatio mortis causa made by any person dying on or after the first day of June, one thou- sand eight hundred and eighty-one, or taken under a volun- tary disposition, made by any person so dying, purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust or otherwise, which shall not have been bond fide made three months before the death of the deceased. (J) 44 Vict. c. 12, ss. 31, 32; and {p) 23 & 24 Vict. c. 15, ss. 4, 5. See see 5 & 6 Vict. c. 79, s. 23 ; 24 & 25 8 & 9 Vict. c. 76, s. 4, as to special Vict. c. 92, s. 3. power. And see M. L. E. P. 322 et (m) 44 Vict. c. 12, ss. 33—36. See seq. s. 27 ; 43 Vict. c. 14, s. 13. {q) 44 Vict. c. 12, ss. 38—40. See in) 55 Geo. III. c. 184, ss. 45—49. also Succession Duty Act (16 & 17 (o) 27 & 28 Vict. c. 56, s. 4. Vict. c. 51), s. 8, 330 THE MODEEN LAW OF PERSONAL PEOPEETY. Chap. XIV. (6.) " Any property which a person dying on or after such day having been absolutely entitled thereto, has voluntarily caused or may voluntarily cause to be transferred to or vested in himself and any other person jointly, whether by disposition or otherwise, so that the beneficial interest therein or in some part thereof passes or accrues by survivorship on his death to such other person. (c.) " Any property passing under any past or future volun- tary settlement made by any person dying on or after such day by deed or any other instrument not taking effect as a will, whereby an interest in such property for life or any other period determinable by reference to death is reserved either expressly or by implication to the settlor, or whereby the settlor may have reserved to himself the right bj' the exer- cise of any power, to restore to himself, or to reclaim the absolute interest in such property." Legacies. Successions. Legacy Duty Acts. Legacies under a will and distributive shares under an intestacy are also subject to duty, under the provisions of the statute 36 Geo. III. c. 52. The statute provided {inter alia) for duties on legacies enjoyed in succession (r), and legacies subjected to a power of appointment (s). For the purpose of such duty a ' legacy ' was thus defined by a later statute (t) : — " Every gift by any will or testamentary instrument of any person, which by virtue of any such will or testamentary instru- ment is or shaU be payable, or shall have effect or be satisfied out of the personal or moveable estate or effects of such person, or out of any personal or moveable estate or effects which such person hath had or shall have had power to dispose of, or which gift is or shall be payable or shall have effect or be satisfied out of or is or shall be charged or rendered a burden upon the real or heritable estate (ii) of such person, or anj' real or (r) 36 Geo. III. c. 52, ss. 12—15. (s) S. 18. («) 8 & 9 Vict. c. 76, s. 4. (u) By whom to he paid; see 45 Geo. III. c. 28, s. 5. DEYOLUTION ON DEATH OP OWNEE. 381 lieritable estate or the rents or profits thereof which such person Chap. XIV. hath had or shall have had any right or power to charge, burden, or affect with the payment of money or out of or upon any monies to arise by the sale, burden, mortgage, or other disposition of any such real or heritable estate or any part thereof, whether such gift shall be by way of annuity or in any other form, and also every gift which shall have effect as a donation mortis causa, shall be deemed a legacy within the true intent and meaning of all the several Acts granting or relating to duties on legacies in Great Britain and Ireland respectively, and shall be subject and liable to the said duties accordingly : Provided always, that no sum of money which by any marriage settlement is or shall be subjected to any limited power of appointment to or for the benefit of any person or persons therein specially named or describe'd as the object or objects of such power, or to or for the benefit of the issue of any such person or persons, shall be liable to the said duties on legacies under the will in which such sum is or shall be appointed or apportioned in exercise of such limited power." By the Succession Duty Act (x), which came into opera- tion on May 19th, 1853, it was enacted that leaseholds should no longer be charged with duties under the Legacy Act, but under that Act the stamp duties themselves, both upon legacies and upon successions upon intestacy, are regulated by the statute 55 Geo. III. c. 149, if the legacy or succession be to a lineal descendant or lineal ancestor of the deceased, at the rate of 11. per cent. ; if to a brother or sister or any descendant, of 3/. per cent. ; if to an uncle or aunt or any descendant, of 51. per cent. ; if to a great uncle or aunt or any descendant, of 6/. per cent, ; if to any other relation or to a stranger in blood, of 101. per cent. Legacies and residues, or shares of residue, given or devolving to or for the benefit of the husband or wife of the {x) 16 & 17 Vict, c. .51, s. 10. 332 THE MODEEN LAW OE PEESONAL PEOPEETY. Chap. XIV. deceased, or to or for the benefit of any of the Royal Family are exempted (?/). Where the wife or husband is of nearer consanguinity to the deceased than the person to take, the rate of duty will only be such as the wife or husband would have been chargeable with (z). Where the value of the whole of the personal estate of any person dying after the 24th March, 1880, does not amount to 100^., no legacy duty is to be charged in respect of it or any portion of it (a). Where duty of 11. per centum would otherwise be payable as above mentioned, it is not, since June 1st, 1881, payable in respect of any legacy, residue, or share of residue payable out of or consisting of any estate or effects according to the value whereof duty has been paid upon the affidavit for grant of probate or letters of administration (b). And where the fixed duty of 30s. has been paid upon such affidavit where the gross value of the estate does not exceed BOOL, it will also be in satisfaction of any claim to legacy or succession duty(c). Under the statute 55 Geo. III. c. 184, upon every legacy " specific, pecuniary, or of any other description," of the amount or value of 20Z. or upwards, duty was payable; and similarly upon the residue or share of the residue, whether under testamentary disposition or an intestacy. But now duty is payable upon every pecuniary legacy, or residue, or share of residue, under the will or intestacy of any person dying on or after June 1st, 1881, although not of an amount or value of 201 (d). Succession As WO havc scen, the leasehold hereditaments of a Duty Act, (2/) 55 Geo. III. c. 184, Sched. (i) 44 Vict. o. 12, s. 41. pt. III. (c) S. 36. (z) 16 & 17 Vict. c. 51, s. 11. (d) S. 43. (a) 43 Vict. c. 14, s. 13, DEVOLUTION ON DEATH OP OWNEE. 33!j deceased are not to be charged with duty under the Legacy Chap. XIV. Duty Acts, but are made chargeable under the Succession Duty Act (e). Under that Act also are chargeable generally successions to (real and) personal estate not subject to duty under the Legacy Duty Acts (/), at the same rate (^), payable on the successor becoming entitled in possession {h) ; except when the whole succession or successions derived from the same predecessor and passing upon any death to any person or persons does not amount in value to 100?., or where the succession, estimated accord- ing to the provisions of the Act, is of less value than 20/. in the whole, or where the succession, if the same were a legacy bequeathed by the predecessor, would be exempted from duty under the Legacy Duty Acts (i). The Customs and Inland Revenue Act, 1881 (Ic), has also exempted from succession duty any succession the duty on which would be 11. per centum, where the duty has been paid upon the affidavit according to the provisions of the Act ; and where the fixed duty of 30s. has been paid upon such affidavit {I). The value of an annuity, or of any interest chargeable with duty as an annuity, is to be calculated according to the tables annexed to the Succession Duty Act, as well for the purposes of that Act as of the Legacy Duty Acts (m). By the Succession Duty Act provision is made both in respect of a person exercising a general power of appointment and a person taking under the exercise of a limited power of appointment {n). An interest accruing (e) 16 & 17 Vict. c. 51, s. 19. {I) S. 36. (/) S. 18. (ii) 16 & 17 Vict. c. 51, s. 31. See (^) s. 10. 36 Geo. III. c. 52, s. 8. (/i) S. 20. ('0 16 & 17 Vict. c. 51, ss. 4, 33. ii\ S. 18. See 36 Geo. III. c. 52, s. 18, ante, [h] 44 Vict. c. 12, s. 41. p. 330. 334 THE MODEEN LAW OP PERSONAL PEOPEETT. Chap. XIV. by survivorship in respect of property vested in two or more jointly is subjected to duty as a succession (o) ; and similarly an increase of benefit accruing to a person on the extinction of a charge by the death of another person, or at a period ascertainable only by reference to death {p). The interest of any successor in monies to arise from the sale of real property under any trust for sale, so far as the same is not chargeable with duty under the Legacy Duty Acts, is to be deemed personal property chargeable with duty under the Succession Duty Act ; provided that where such monies are subject to any trust for reinvestment in the purchase of other real property to which the successor would not be absolutely entitled, such monies are to be deemed real property [q). In like manner the interest of any successor in personal property subject to any trust for investment in the pur- chase of real property to which the successor would be absolutely entitled, so far as the same is not chargeable with duty under the Legacy Duty Acts, is to be chargeable with duty under the Succession Duty Act as personal property ; and personal property subject to any trust for investment in the purchase of real property to which the successor would not be absolutely entitled, so far as the same is not chargeable with duty under the Legacy Duty Acts, is chargeable as real property (r). Certain provisions of the Legacy Duty Act, 36 Geo. III. c. 52, relating to the assessment and payment of and exemption from duty, are made applicable to successions under the Succession Duty Act, with the substitution of the tables in the latter Act (s). (o) 16 & 17 Vict. c. 51, s. 3. (r) S. 30. {f) S. 5. (a) S. 32. (2) S. 29. DEVOLUTION ON DEATH OF OWNEE. 335 The Commissioners of Inland Revenue are empowered Chap. XIV. in certain cases to compound the duty payable as a succes- sion under the Succession Duty Act, and to enlarge the time for payment of duty {t) ; also they may accept com- position for legacy duty under a will (m). They may receive the duty in advance, subject to a discount (a;). And they may commute the duty presumptively payable on a succession in expectancy (?/) ; this power is extended and applied also to duties under the Legacy Duty Acts by the Customs and Inland Revenue Act, 1880 (z). A duty has now been imposed upon properly belonging Bodies , . , ,. . 1 • I corporate. to or vested in bodies corporate or incorporate, which escape liabihty to probate, legacy, or succession duties, by the Customs and Inland Revenue Act, 1885 (a), whereby it is enacted that there shall be levied and paid, in respect of all real and personal .property which shall have belonged to or been vested in such body during any yearly period ending on the fifth of April, a duty at the rate of 51. per centum upon the annual value, income, or profits of such property accrued to such body in the same yearly period. (t) S. .39. to duty under tlie Legacy Duty Acts. (u) 44 Vict. c. 12, s. 43. {y) 16 & 17 Vict. c. 51, s. 41. (x) 16 & IV Vict. c. 51, s. 40. The (z) 43 Vict. c. 14, s. 11. Act applies only to duty under the (o) 48 & 49 Vict. c. 51, s. 11, and Succession Duty Act, but in practice pt. ii. the former is treated as extending also !.37 INDEX. ABATEMENT of legacies, 308 ABILITY, representation as to, must be in writing, 238 ABSOLUTE OWNEESHIP, personal property is the subject of, 3 ACCEPTANCE, of bill of exchange, 106, 111, 112, 119—122, 128 for honour, 131, 132 ACCEPTANCE AND EECEIPT OP GOODS, ■when necessary under Statute of Frauds, 18 what constitutes, 19 ACCOMMODATION, 117. See Bills op Exchange. ACCOUNTS. See Mercantile Law Amendmexx Act, 1856. ACCUMULATIONS of income, o ACKNOWLEDGMENT. See Limitations, Statute op; Signatube; Tenteeden's, Loud, Act. of debt barred by the Statute of Limitations, must be in writing, 277, 288 may be made by an agent duly authorised, 278 ACT OF BANKEUPTCY. See Bankeitptcy. ACTIONS. See Oonteacts. by and against infants, 37 — 40 married women, 43, 44, 274 within what time to be brought, 271 — 282 cannot be maintained at law against executor, 324, 325 except in the case of a specific legacy to which he has assented., 324 338 INDEX. ADEMPTION. See LBaAOiES . of specific legacy, 307, 308 ADJUDICATION. See Bankbottoy . ADMINISTRATION. See Executors and Abministbators. statutes of, 287, 288 ADMINISTRATION ACTION, 324. See ExEcnoRS Ain) Administrators. ADMINISTRATOR, 312—325. See Exec0TORS aitd Adhinistratobs. AGENT. See Principal and Agent. AGREEMENTS. See Contracts. ALIEN. See Ships. may acquire, hold, and dispose of real and personal property, 86 cannot be the owner of a British ship, id. ALIENATION. See Assignment. at law, 93 ALLONGE. See Bills q]? Exchange. indorsement written on, 119 ALTERATION of contract in writing, what evidence necessary for, 29 of bill of exchange, 130 may be made in the capital or name of joint stock companies, 173 but notice thereof must be given to the registrar, 175 may be made in trade-mark with leave of High Court, 207 in the writing of a will, 290 ANIMALS, domitce naturce are personal property, 1 ANTENUPTIAL DEBTS. See Husband ; Married Women ; Married Women's Property Act, 1882. ANTICIPATION. See Married Women ; Married Women's Property Act, 1882. restriction against not interfered with by the Married Women's Pro- perty Act, 1882 ; 45, 46 unless created by the woman herself, 45, 48, 284 APPROPRIATION OF PAYMENT. See Limitations, Statute of; Payment. INDEX. 839 AEEANGEMBNT OE COMPOSITION. See Bankruptcy. •with creditors, 243, 245 AETICLB3 OF ASSOCIATION. See Joint Stock Companies. prescribe regulations for company, 171 may modify or exclude the regulations contained in "Table A.'' in Schedule to the Companies Act, 1862 ; 172 ASSIGNMENT, under Bills of Sale Acts, 63, 67 of book debts, 67 against public policy, not allowed, 94, 95 of choses in action, 93, 94, 100 of bills of lading, 33 of dock warrants, 34 of bills of exchange, 105, 109, 110 of cheques, 135 of dividend warrants, 138 of promissory notes, id. of debentures, 144 of foreign bonds and scrip, 148, 149 of policies of Ufo assurance, 150, 152, 153 of marine assurance, 155, 158, 169 of shares in companies, 164, 165, 172 of patents, 191, 193, 194 of copyright in designs, 197, 199 of trade-marks, 207 of copyright in books, 211, 213, 215 in paintings, drawings, and photographs, 222 ASSOCIATION. See Articles op Association ; Memorandum op Association. ASSUEANCE. See Fire Assurance; Life Assurance; Marine Assurance. ATTACHMENT OF DEBTS. See Debts. AUCTION, goods seized under an execution for over £20 must be sold by, 226 BAILMENT, goods may be transferred by, 79 different sorts of, id., 80 depositum, 80 commodatum, id, loeatio et eonductio, id, vadium, id, loeatio operis faciendi, id. mandatum, id., 81 z 2 84.0 INDEX. BAILMENT— conHntierf. liability of bailee, 80, 8 1 goods found, 81, 82 action for conversion or detention, 82 BANK HOLIDAY, wien bills of exchange fall due on, 111 BANK OE ENGLAND. See Distbingas ; Funds. stocks or funds standing in the name of a married woman in, are generally presumed to be for her sole use, 97, 98 notice in lieu of distringas may be served on, 98, 99 efleot of, 99, 100 •when injunction may be obtained against, 100 when stop order, id. may require aU the executors who have proved to concur iu transfer of stock, 299 legacies to infants or persons abroad, to be paid into, 309 BANKERS. See Bills or Exchange ; Cheques. protection to, in paying bills of exchange, 116 in paying cheques, 137, 138 eSect of failure of, with regard to cheques, 135 revocation of authority of, 136 BANKEUPTCT, acts of, 239, 240, 259 may be committed by married women, 240, 241 estate of bankrupt becomes distributable among his creditors, 239, 251 in case of partners, 241, 247, 248 how proceedings are commenced, 241 in what Court, id. who may present petition, id. and under what circumstances, id, when official receiver appointed, 242 duties of, 242—244 when receiving order may be made, 242, 261 first meeting of creditors, 243 creditors may agree on composition or arrangement subject to approval of Court, 243, 245 provisions of composition, how enforced, 243 under what circumstances annulled, id. adjudication, 243, 244, 245 appointment of trustee, 244 of committee of inspection, id. until appointment, official receiver is trustee, id. may sell bankrupt's'property, 244, 245 INDEX.; 341 BA.WKRVPTCY— continued. discharge of bankrupts, 245, 246 effect of, id. may be subject to conditions, 246 ■wiat debts are provable in, id. wbatarenot, id. mode of proof, 249 estimate to be made of contingent debts, 246, 247 rule as to mutual debts or credits, 247 priority of debts, id. rule as to joint and separate estates in case of partners, 247, 248 loans by wife for purpose of husband's business, 248, 240 power of landlord to distrain, 249 secured creditors, definition of, 250 powers of, 249, 250 when bankruptcy commences, 251 what property is divisible among creditors, id. what powers of bankrupt may be exercised by trustee, 251, 252 ' caiinot be exercised after bankrupt's death, 251 tools and clothing under £20 protected, 252 goods belonging to other persons not included among bankrupt's property, id. unless in his order or disposition in his trade cr business, 252, 253 meaning of reputed ownership, 253 — 255 registered mortgage of ship not affected by act of, 255 when Court may order bankrupt's salary, income or pension, or part thereof, to be paid to creditors, 255 certain voluntary settlements may" be avoided, 255, 256 but not one made before and in consideration of marriage, 256 or in favour of a purchaser for valuable consideration, id. or on wife or children of property accrued in right of wife, id. or a policy of assurance for benefit of wife and children, 257 or ordinary covenant to pay to trustees of marriage settle- ment, id. statute of Elizabeth against fraudulent conveyances, 257 — 259 stranger may convey interest iii property to another terminable on his bankruptcy, 258, 259 but similar settlement cannot be made by the person himself, 259 fraudulent preference, definition of, 259 — 261 estate of person dying insolvent may be administered in, 261, 262 if bankrupt dies, proceedings to be continued as if he were alive, 262 appointment of new trustee in place of one becoming bankrupt, id. receiving order not to be made against corporations, id. how far rules of, apply to the winding-up of companies, 266 the Statute of Limitations ceases to run against creditor, on the bank- ruptcy of debtor, 282 343 INDEX. BANKTSJJ-PTUY— continued. bankrupt may be executor though not administrator, 298, 319 but a receiver of the testator's estate will be appointed, 298 BANKRUPTCY ACT, 1882. See B^JStketjptct. sale by sheriff of goods under execution exceeding £20 must be by public auction, 226 BAEaAIN AND SALE, effect of, 13, 14, 31 time of deliyery and of payment, 31 BASTAED, owner of personalty dying intestate, 316, 317 administration will be granted to Solicitor of the Treasury for the use of the Crown, id., id, BENEFICE, bankrupt's right of nomination to, does not vest in his trustee, 251 BENEFICED CLEEKS. iSee Cleeqtmen ; Seqxtesteation. BETTING. See Gaming. BILLS OE EXCHANGE. See Cheques; Dividend Waeeants; LO.U.; Peomissoey Notes. form of, 105 are negotiable, id. were assignable from an early period, id. holder could sue in his own name, id. definition of, 106, 107 drawer, 106 drawee, id. acceptor, id. indorser, id. indorsee, id. holder, id. law relating to, codified by Bills of Exchange Act, 1882 ; 107 rules of common law, and in bankruptcy apply to, id. are inland and foreign, 108, 132 — 135 difference between, 108 payee, who may be, id. what are negotiable, 109, 110 when payable, 110, 111, 120, 121 days of grace. 111 when day of payment falls on Sunday, Christmas Day, Good Priday, &c., id. INDEX. 343 BILLS OP EXCHANGE— con^mwci. not invalid by being ante-dated, post-dated, or dated on Sunday, 111 referee in case of need, id. acceptance, definition and requisites of. 111, 112 may be conditional, 1 12, 120 delivery, 112 skeleton bill, inchoate instruments, 113 parties to, who may be, id. infants, 113, 114 corporations, 113, 114, 115 signature is essential to, 115 per procuration, 116 by an agent, id. sans recours, id. estoppel as to, 115 ratification, id. cannot be to a forgery, id. protection to bankers as to, 116 consideration, id. is presumed, 116, 117 what is, 117 effect of illegality in, id. accommodation bills, definition of, id. provision in Bills of Exchange Act, respecting, 117, 118 " holder in due course," definition of, 118 rights and powers of, 121 negotiation, what amounts to, 119 indorsement, id. sometimes written on an "allonge," id. form of by married women, id, may be conditional, 120 but condition may be disregarded by payee, id. in blank, efiect of, id. negotiation of, when overdue or dishonoured, id. when bill payable on demand is overdue, 120, 121 presentment for acceptance, 121, 122 for payment, 122—124 not necessary as against acceptor, 128 efiect of dishonour by non-payment, 124 notice of dishonour, 124 — 126 when dispensed with, 125 when to bo given, 125, 126 protest and noting, 126, 127, 132 when to be exhibited and delivered up, 128 liabilities of parties, 128, 129 acceptor, 128 for honour, 131, 132 344 INDEX. BILLS OP EXCHANGE— confc«ei. liabilities of drawer, 128 indorser, id. stranger, 129 damages on dishonour, id. interest, id. expenses of noting and protest, id, discharge of, 130 alteration, eflect of, id. may render fresh stamp necessary, id., 131 acceptance for honour, 131, 132 payment for honour, 132 drawn in a set, id,, 133 liability of indorser or acceptor, 133 conflict of laws respecting, 133 — 135 BILLS OE EXCHANGE ACT, 1882. See Bills of Exchange; Cheques; Dividend Warrants ; I.O.U. ; Peomissohy Notes. BILLS OF LADING. See Ships. what they are, 90 indorsement of, defeats right of stoppage in transitu, 33, 34 are excluded from the operation of the Bills of Sale Acts, 63 BILLS OE SALE, meaning of, 63, 64 transfer of goods by, 61 Acts regulating, id. , 62, 64 et seq. what "personal chattels " are included in, 62 requisites of, under Act of 1882, 64 et aeq. registration of, must be renewed every five years, 65 seizure and sale of goods under, 67, 68, 71 form of, 68, 69 consideration for, must be "truly set forth," 74 — 76 priority in case of two or more, 76 entry of satisfaction on Tegistered copy, id. transfer of ship or share of ship, 88 BILLS OE SALE ACT, 1882. See Bills of Sale. debentures need not be registered under, 147 transfer of ship or share of ship, not within, 63 BOOKS. See Coptright. BOTTOMEY, definition of, 157 BOVILL'S ACT. See Loans; Partners. INDEX. 345 BUILDING- SOCIETIES, are to he wound up in a County Court, 179 BUSINESS OE TESTATOR, Uabilitj' of executor ■while carrying on, 311 CALLS. See Joint Stock Companies. may bo made of capital in joint stock companies, 173, 174 when interest payable on, 269 CAMPBELL'S, LOED, ACT, for compensating the families of persons killed by accidents, 301 CAEEIEE, liability of, 80, 81 CEETIEICATE, under common seal, is prima facie CTidence of membership in joint stock companies, 175 CHAMPEETY, definition of, 95 assignment partaking of the nature of, not permitted, id. CHAEGING OEDEE, on debtor's interest in funds or shares, may be obtained by judgment creditor, 225, 228 CHAEITY, when legacy to, valid, 306 CHAETEE, companies may be incorporated under, 162 grants of patents contained in, 180 CHAETEE PAETY, definition of, 90 CHATTELS. See Choses in Action; Choses in Possession; Peesonal Peopeett. CHATTELS EEAL, are not within the scope of this work, 1 on death of owner, devolve upon his personal representative and not his heir, 285 346 INDEX. CHATTELS WSAI,— continued. acquired by wife after 1882, no longer vest in husband, 296 legatee of, cannot enter into possession without executor's consent, 306, n. (m) CHEQUES, Bills of Exchange Act, 1882, applies to, 135 definition of, id. efiect of non-presentment in reasonable time, id. what is reasonable time, id. effect of discharge of drawer, id., 136 banker's authority to pay, 136 how revoked, id. when banker liable for dishonour, id. crossing of, 136—138 different modes of, 136, 137 effect of, 137, 138 title of holder of crossed cheque marked " not negotiable," 137 protection to bankers in paying, id., 138 CHILDEEN. See Iotants. application of income for the maintenance and education of, 4 cannot claim the benefit of their mother's " equity to a settlement '' after her death, 295 portions to, 305 shares of, under the Statute of Distributions, 322, 323 CHOSES IN ACTION. See Bills op Exchange; CoNVETAiirciNG and LawofPeopebtt Act, 1881; Coptkight; Debenttjees; Debts; Funds ; Joint Stock Companies ; Mahbied Women's Peopeety Act, 1882; Patents; Policies of Assueance. examples of, 1 are mentioned in definition of property in the Conveyancing Act, 1882, id. nature of, 92 were not assignable at law, 93 but were in equity, 94 assignments against public policy not permitted, id. officers' full and half pay not assignable, 95 pensions sometimes alienable, id. assignments not permitted which partake of the nature of maintenance and champerty, id. assignment is subject to equities affecting its subject matter, 96 notice of assignment must be given, 97, 100 may be assigned at law under Judicature Act, 1873, 100 assignee of debt may sue in his own name, 101 but mortgagee in name of mortgagor, id., 102 in many instances do not pass to executor, 303, 304 INDEX. 347 CHOSES IN POSSESSION. See Bailment ; Bills of Sale ; Conteact ; Lien; Pawn or Pledge; Ships. are mentioned in the definition of property in tlio Conveyancing Act, 1882; 1 definition of, 2 transfer of, 8 by deliyery, id. title, id. market overt, id. Larceny Act, 1861 ; 9 torses, 11 Mercantile Law Amendment Act, 1856 ; 12 by contract, 13 declaration of tioist, id. executory, id. executed, or bargain and sale, id. Statute of Frauds, 14 Lord Tenterden's Act, 15 application of statutes, 16 fixtures, emblements, id., 17 growing trees, 17 CHEISTMAS DAT, when bills of exchange fall due on. 111 CLEEGYMEN, sequestration of benefices of, for debt, 226, 227 CO-DEBTOES. See Limitations, Statute of. COMPANIES. See Joint Stock Companies. COMPANIES CLAUSES CONSOLIDATION ACT, 1843 applies to aU companies thereafter incorpor ated by Act of Parliament, 164 objects and provisions of, 164 — 168 contracts by companies incorporated under, 51 mortgages and charges affecting the property of such companies must be registered, 148 shares in such companies are personal property, 164 are assignable, 164, 165 when fully paid up, may be converted into stock, 165 effect of such conversion, 165 — 168 transfer of, must be by deed, 164, 172 COMPOSITION OE AEEANGEMENT. See BANKErpTor. with creditors, 243, 245 348 INDEX. CONFLICT OF LAWS, respecting bills of exchange, 133, 134 CONSENT of executor to legacy, 306 CONSIDERATION, definition of, 117, 233 necessary to a contract, 13, 116 presumed in a deed, id., id. and in a bill of exchange, 117 must not be illegal, 53 — 56 for guaranty need not appear, 22 n. (k), 233 for bill of sale must be truly set forth, 74 — 76 CONTINGENT LEGACY. See Legacies. CONTEACT. See CnosES is Possession ; Deunkaeds ; Pbaitds, Statute of; Ini'Akts; Lunatics; Mareied Women; Memoeandum in Weiting; Peincipai and Agent; Peincipax and Sueett; SiGNATUEE ; YeNDOE AND PUECHASEE. for sale of goods, 13 may be executory or executed, id. of the value of £10 or upwards must be in writing, id., 15 unless the buyer accepts part of the goods, or gives, some- thing in earnest, 15 fixtures, emblements, 16, 17 ^ growing trees, 17 alternative proofs of, 18 acceptance and receipt of part, id., 19 earnest or part payment, 19 note or memorandum in writing, 20 not to be performed within a year, 27 who may be parties to, 36, 113 ^ who are incompetent, 36, 37 infants, 37, 113 married women (at common law), 37, 42 persons nrm compotes mentis including drunkards, id., 41, 42 with corporations, 49, 113, 114 under Public Health Act, 1875 ; 51 may be with two or more jointly, 52 must not be illegal, 53 or against public policy, 53 — 56 by way of gaming, cannot be enforced, 56 against Tippling Acts cannot be enforced, 58, 59 sales on Sunday, 59, 60 CONTRIBUTION. See Principal and Sueety. between co-sureties, 236, 237 INDEX. .349 CONTEIBUTORT. See Joint Stock Companies. CONVBESION. See Bailment. CONVEYANCING AND LAW OF PROPERTY ACT, 1881, gives trustees power to apply income for maintenance of children, 4 power given to two or more by, may be exercised by tbe survivors, 7 when the Court may bind a married woman's interest in any property, 49 enables a married woman to appoint an attorney for certain purposes, id. eflfect on contracts with, two or more jointly, 52 effect in vesting property on appointment of new trustees, 103 conveyance of a chose in action by a person to himself jointly with another person, id. enables executors to compromise, settle or abandon any debt, 311, 312 but gives no such power to administrators, 312 CONVEYANCING ACT, 1882, definition of " property '' in, 1 COPYRIGHT. See Designs. in books, 210—217 always existed in unpublished works, 210, 211 statutes affecting, 211—213, 215 doubt of existence of at common law after publication, 211 extent and duration of, 213 perpetual in certain universities, &c., with respect to certain books, 212 definition of " book," id. " dramatic piece,'' id. " copyright," 213 publishers and proprietors of encyclopaedias, periodicals, &o., 214 right of performing dramatic piece or musical composition, 214, 215 penalties for infringing, 215 registration of, id., 216 piracy, 216 damages for, id. time of commencement of actions, id,, 217 is personal property, 217 what books are prohibited to be imported, id. in lectures, id., 218 right of publication belongs to authors by statute, 217 but only under certain conditions, 218 no protection against re-delivery, id. in engravings, etchings, prints, and lithographs, id., 219 statutes affecting, 218 duration of, 219 penalties and damages for infringing, id. S5.0 INDEX. COFYRmBT— continued. in sculpture, 219, 220 statutes afleoting, id, duration of, id. damages for infringement of, 219 in paintings, drawings, and photographs, 220 — 222 statute affecting, 220 duration and extent of, 220, 221 registration of, 221 piracy, id. penalties and damages for, 221, 222 is personal property, 222 assignment of, id. in literary and artistic works first published abroad, 222, 223 COEPOE^lTIONS. See Joint Stock Companies. could formerly only contract under seal, 49, 113 exceptions in the case of trading corporations, 49, 50 under the Companies Acts, 51 under the Public Health Act, 1873, id. when capable of being parties to bills of exchange, 113 — 115 receiving order in bankruptcy not to be made against, 262 debts extinguished on dissolution of, id. how dissolred, 262, 263 duty payable on property of, 335 OOEPOEEAL THINGS. See Choses in Possession. CO-SUEETIES. See Peincipal and Surety. contribution between, 236, 237 COUNTY COUET, order may be made in, for the delivery of goods not exceeding £50 in value, 82 building societies, and industrial and provident societies are to be wound up in, 179 High Court may order proceedings in winding-up joint stock companies to be had in, 178, 179 judgments of, how enforced, 229, 230 two years after execution cannot issue without leave, 230 interest is payable on, 270 n. Qck) jurisdiction of, in bankruptcy, 241, 261, 262 probate of wills in, 297 administration suits in, 325, 326 may be transferred to the Chancery Division, 326 COUNTY DEBENTUEES ACT, 1873, debentures may be issued under, 149, 150 may be payable to bearer, 150 coupons to be attached to, id. register of, to bo kept, id. INDEX. 351 OEEDITOES. See Bankruptcy ; Elizabeth, Statute or. effect of legacies to, 305 legacies by, id. when administration will be granted to, 317, 318 CROWN. See Bastaed. rights of officers of, with respect to patents, 191 priority of debts due to, 231 CUSTOM OF TRADE, annexed to terms of contract, 29 how far limited by law, 29 — 31 when the doctrine of " reputed ownership " in bankruptcy is excluded by, 254, 255 CUSTOMS AND INLAND REVENUE ACTS, duties payable on transmission of personal property, 328 — 335 on affidavit for probate or letters of administration, 328, 329 accounts in respect of donationes mortis causa, 329, 330 legacies and successions, 330 — 335 property vested in bodies corporate, 335 Legacy Duty Acts, 330, 331 Succession Duty Act, 331 — 335 DAMAGES. See Bills of Exchange; Coptkight; Designs; Trade Marks. when interest may be recovered as, 129 unliquidated, not provable in bankruptcy, 246 DEATH. See Devolution of Property on Death; Executors and Administrators. of parties entitled or liable to execution, 230 of debtor before satisfaction of judgment, 231 leave must be obtained to issue execution, 230, 231 priority of satisfaction of judgment debts, 231 of other debts, 231, 232 of person dying insolvent, 261, 262 of bankrupt, 251,262 DEBENTURES. See County Debentures Act, 1873; Foreign Bonds ; Joint Stock Companies; Railway Companies. what are, 142, 143 different kinds of, 142 do not require a stamp, id, power of companies to issue, id. may be in the form of stock, 143 352 INDEX. DEBENTUEES— cojifonue d. assignability of, 144— 14 7 need not be registered under the Bills of Sale Act, 1882 ; 147 may be issued under County Debentures Act, 1873 ; 149, 150 also under Mortgage Debenture Act, 1865 ; 150 DEBTS, fe BANKRUPTcy— Execution ; Interest— Makbied Women ; Payment; Principal aitd Sttkett. are oboses in action, 1 assignment of, 93, 96, 97 personal property liable to, 224 money ordered to be paid by any judgment, included in, id. mode of enforcing judgments, 224 — 232 in case of judgment against a firm, 225 writ oi fieri facias, 225, 226 what may be seized under, 226 debts due by tbird persons to debtor may be attached, 227 by a garnishee order, id. proceedings when garnishee does not pay, 227, 228 charging orders on debtor's interest in funds, stock, or shares, 228 equitable execution by appointment of receiver, 228, 229 writ of sequestration, 229 writ of delivery, id. judgments in County Courts, 229, 230 when leave to issue execution must be obtained, 230, 231 on death of debtor, 231 priority of debts, 231, 232, 247, 305 guaranties, 232—238 what are, and what are not provable in bankruptcy, 246 payment of, by executors, 304, 305 when satisfied by legacies, 305, 306 compounding by executors, 311, 312 DEED. See Seal. consideration implied in, 13, 116 DELIYEEY, of goods, 8 of bills of exchange, 112 of promissory notes, 139 writ of, for delivery of property, 82, 225, 229 mode of enforcing, 229 DEMONSTEATIVE LEGACIES, definition of, 308 abate with specific, not with general legacies, id. INDEX. 353 DESIGNS. See Copyright; Patents; Trade Marks. statutes protecting, 195, 196 copyright in, 196 meaning of " design," id. " copyright," 196, 197 "proprietor," 197 duration of copyright, 198, 199 eflfect of exhibition, 198 registration of, 197, 198 register of, what to be entered on, 199 no notice of any trust, id. not open to general inspection during duration of copyright, 199, 200 piracy of, 200, 201 penalty and damages for, 201 penalty for falsely representing, as registered, 201 arrangements for the protection of foreign and colonial, 208, 209 DETENTION. See Bailment. DEVASTAVIT. See Exbcutoes and Administeatoes. DEVOLUTION OP PROPERTY ON DEATH. See Customs and Inland Revenue Acts ; Disteibutions, Statute of ; Death ; ExECUTOES AND Administeatoes ; Will. personal property devolves upon personal representative, 2, 3, 285, .303 but not a donatio mortis causa, 285 power of bequest has always existed, 285, 286 but originally not to all a man's personal estate, 286 provision as to, in Magna Charta, id. as to citizens of London in 11 Goo. I. c. 18, id. in case of intestacy the king was entitled to seize the goods, id. afterwards the ordinary, 286, 287 for pious uses, 287 the ordinary afterwards had the probate cf wills, id. Prerogative Courts, id. statutes of administration, 287, 288 jurisdiction of Ecclesiastical Court transferred to Probate Court, 288 then to High Court, and Probate, Divorce and Admiralty Division, 288, 289 power of executor and administrator, whence derived, 289 all personal property may be bequeathed by will, id. including property over which testator has a power of appoint- ment, 290 formalities i-equisite in a will, id. meaning of failure of issue, id. married women may dispose of property by will, 291, 292 husband's interest in wife's propertj', 292 — 291 on death of wife, her children have no " equity to settlement," 295 duties to be paid on, 328 — 335 A a 354 INDEX. DISABILITIES. See Oonteaot; Limitations, Statute op. to sue, so as to prevent the Statute of Distributions beginning to run, 273, 275 from being a. feme covert, 273 being under twenty-one years of age, id. being non compos mentis, id. the debtor being beyond the seas, 275, 276 DISCHAEGE. See Bankuuptcy ; Peincipal and Sueety. of surety, 235, 236 of bankrupt, 245, 246 DISHONOUE. See Bills of Exchange. notice of, 124—126 DISSOLUTION OF COEPOEATIONS. See Coepoeations. DISTEESS. See Bankeuptcy; Landloed. DISTEIBUTIONS, STATUTE OP. See Exeoutoes and Adminis- TEATOES; Kin; Ejndeed. settles the devolution of personal property in cases of intestacy, 2 doubt as to the effect of, on husband's right to wife's estate, 292, 296 administrator must distribute estate according to, 322 — 324 . provisions of, 323, 324 DISTEINGAS, abolished by Eule of Supreme Court in 1880, 99 notice in lieu of, 98—100, 228 effect of, 99, 100 DIVIDEND WAEEANT3, Bills of Exchange Act, 1882, applies to, 138 but does not aflecfc the validity of any usage relating to, id. DOCK WAEEANTS, indorsement of, defeats right of stoppage in transitu, 34 DOMICILE, of owner, regulates succession to personal property, 3 DONATIO MORTIS CAUSA, does not go to personal representative of deceased, 285 but becomes the absolute property of the donee, id, definition o', id. when liable to duty, 329, 330 DEAMATIC PIECES. See CoPYEianT. INDEX. 355 DEAWER, of bill of exchange, 108, 128 DEAWINGS. See Copyright. DRUNKAEDS, not liable on contracts made during a state of intoxication, 41 contracts by, are not void but voidable, 42 DUTIES. See Customs and Inland Eevexub Acts. payable on the transmission of personal property, 328 — 335 EARNEST OR PART PAYMENT, effect of under Statute of Frauds, 19 ECCLESIASTICAL GOODS, writs of ^. fa. or sequestration against, 226 EDUCATION, of infants, application of income for, 4 ELIZABETH, STATUTE OP, avoids as against creditors, all gifts, alienations, &c., made to defraud them, 257—259 EMBLEMENTS. See Featjds, Statute of ; Tenteeden's, Loed, Act. ENCYCLOPEDIAS. See Oopteight. ENFOECEMENT OF DEBTS. See Debts. ENGEAVINGS. See Copteight. EQUITABLE EXECUTION. See Execution. how obtained, 228, 229 EQUITY, enforces the duty of trustees, 4 rules of, to prevail, when in conflict with those of law, 6 choses in action assignable in, 94, et seq. analogy between, and law with regard to the Statute of Limitations, 273 EQUITY TO SETTLEMENT, wife's, 295 cannot be claimed by children after her death, id. ESTATE. personal property cannot be held for an, 3, 5 A A 2 356 INDEX. ESTOPPEL. as to signature to bill of exchange, 115 ETCHINGS. See Copyeight. EVIDENCE. of sale of goods, required under the Statute of Frauds, 13, 15 — 28 parol, cannot be received to vary written contract, 29. but may, to explain it, id. or to show that principal is also liable on contract signed by agent, 24 of mercantile customs may be given, 29 of ownership of shares in joint stock companies, 175 of patents, 193 of designs, 199 of trade-marks, 207 EXECUTED AND EXECUTOEY OONTEAOTS. See Coxteacts. EXECUTION. in case of judgment against a firm, 225 equitable, 228, 229 of County Court judgments, how enforceable, 229, 230 when leave must be obtained to issue, 230, 231 after lapse of six years from judgment in High Court, 230 or two years in a Countj' Court, id. in case of death of parties entitled or liable to execution, id., 231 in ease of husband on judgment for or against wife, 230 on judgment of assets in faturo, or quando cieciderint, id. against shareholders or public oflicor, upon judgment against a joint stock company, id., 231 EXECUTORS AND ADMINISTEATOES. See Customs and Inland Eevenue Acts — Death — Devolxition of Peoperty on Death — Legacies. when concurrence of, is required before the Court will administer the estate of a deceased insolvent, 261, 262 may retain debts barred by the Statutes of Limitations, as against a general legatee or one of the next of kin, 280 may retain debts duo to themselves though barred by the statute, 282 power of executor is derived from the will itself, 289 of administration from the Court, id. semhJe husband must take out administration to wife, 296 where no executor, administration granted, with will annexed, 297 also where infant is sole executor, id., 298 or where executor is abroad, 298 married woman may now be executiix, id. bankrupt may be executor though not administrator, id., 319 but a receiver of the estate will bo appointed, 298 INDEX. 357 EXECUTORS AND ADMINISTEATOES— co«