PRACTICE-Appeal-Order whether Final or
Interlocutory-Order to try Preliminary Question
of Liability-Action dismissed-Contract, Breach
of.
An order was made in an action, brought to
recover damages for breach of contract, that the
questions of liability and breach of contract only
were to be tried, and that the rest of the case, if
any, was to go to an official referee. At the trial
the judge held that there was no binding contract
between the parties, and made an order dismiss
ing the action, from which order the plaintiff
appealed:-
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Held, that the appeal was from a final order.
Shubrook v. Tufnell, (1882) 9 Q. B. D. 621,
followed. Bozson v. ALTRINCHAM URBAN DISTRICT
COUNCIL -
C. A. 547
Charging Order-Interest in Shares
charged with Judgment Debt Application to
enforce Charge by Order for Sale of Shares-
Jurisdiction-Judicature Act, 1873 (36 & 37 Vict.
c. 66), s. 24—Rules of Supreme Court, Order XLVI.,
r. 1-Leave for Service out of Jurisdiction—Action
to enforce Charging Order – Rules of Supreme
Court, Order XI., r. 1 (e)—Judgments Act, 1838
(1 & 2 Vict. c. 110), 88. 14, 15.
Where an order has been made charging a
judgment debtor's interest in shares with the
amount due on the judgment under the Judg
ments Act, 1838, that order cannot, under s. 21 |
of the Judicature Act, 1873, be enforced by an
order made in the original action.
Leggott v. Western, (1884) 12 Q. B. D. 287,
followed.
Leave cannot be given for service of a writ
out of the jurisdiction under Order XI., r. 1 (e),
in an action to enforce such a charging order.
KOLCHMANN r. MEURICE
3. Cost-Detinue-Action founded on
Tort-Return during Progress of Case of Articles
claimed—Rights of Parties at Date of Writ—
County Courts Act, 1888 (51 & 52 Vict. c. 43),
8. 116, sub-s. 2.
The plaintiff brought an action in the High
Court to recover from the defendants certain
drawings that had been deposited with them as
agents for sale, and damages for their detention, I
and he claimed also an account in respect of such
of the drawings as had been sold, and the amount'
that might be proved to be due on the taking of
the account. The defendants pleaded that they
had always been ready and willing to return the
drawings in their possession, and offered to return
them forthwith on obtaining a proper receipt. -
The plaintiff replied accepting the offer to return
the drawings, and they were accordingly returned
to him. They were of the value of 201 and |
upwards. The action went to trial on the question
of the amount due from toe defndants in respect
of the drawings that had been sell, and resulted
in a verdict for the plaintiff for 334.:—
Held, that the plaintiff was entitled to casts
on the High Court scale on the grounds (1) that
he had recovered the drawings tarongh the exi-
gency of the writ, and that the return of them
during the progress of the case did not affect the
rights of the parties at the date of the writ; and
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4. · Costs-Tico Defendants jointly repre-
sented-Judgment for one Defendant and against
the other-Plaintiff liable to pay half the Costs of
the Defence.
Where two defendants are jointly represented
by the same solicitor, and judgment with costs
is given in favour of one defendant and against
the other, the successful defendant is, in the
absence of any agreement between him and
his co-defendant as to how their costs are to be
borne inter se, entitled to recover from the
plaintiff half the costs of the defence. BEAUMONT
- Div. Ct. 282
Clay- Compulsory purchase - Mines and
minerals
See MINES.
Mortgages of policies-Equitable interests RAIN WATER-Sewer-Drain receiving drain-
age from more than one building 829
See LONDON. 1.
RATES-Appeal - Special Sessions - Notice of
Appeal-Parish Council-Poor-rate Parochial
Assessment Act, 1836 (6 & 7 Will. 4, c. 96), 8. 6—
417 Local Government Act, 1894 (56 & 57 Vict. c. 73),
8. 6, sub-s. 1, and s. 52, sub-8, 5.
Where, upon a poor-rate being made in a rural
parish having a parish council, an appeal against
the rate is brought to special sessions under s. 6
of the Parochial Assessment Act, 1836, it is now,
since the passing of the Local Government Act,
1894, a condition precedent to the jurisdiction of
the justices to hear the appeal that the appellant
should have given notice of appeal to the parish
council. THE KING v. TEWKESBURY JUSTICES
Div. Ct. 39
Arrears of gas rate-Right to recover from
incoming tenant
See GAS.
Streets-Execution of works by local autho- REAL PROPERTY LIMITATION ACT-Rever-
RAILWAY-Contract of Carriage-Conveyance of
Goods by Passenger Train-Collection and Deli-
very-Inclusive Charge for Carriage and Collection
of Goods-Special Act-Railways Clauses Con-
solidation Act, 1845 (8 & 9 Vict. c. 20), 8. 90.
A schedule of the statutory maximum rates
and charges authorized to be taken by a railway
company for the conveyance of goods contained a
provision that the company should not be under
obligation to carry non perishable goods by pas-
senger train. The company announced to the
public their willingness to carry tailors' clothing
by passenger train at a "collected and delivered"
rate specified in a scale of charges which they
published. The plaintiffs, who were common
carriers at Bristol, sent parcels of tailors' clothing
from Bristol to Southampton by the company's
passenger train, having themselves collected the
goods at Bristol and handed them over to the
REHEARING - Costs of rehearing petition-
"Costs of petitioning creditor" 735
See BANKRUPTCY.
REINSURANCE-Constructive total loss-"To
pay as may be paid thereon"-Salvage
charges
See INSURANCE, MARINE. 4.
therein mentioned. The Duchess and the Ditton
estate during her lifetime were in fact kept fully
indemnified against the mortgage debt and inte-
rest. The Duchess died on March 28, 1895:—
Held, reversing the judgment of Phillimore J.,
[1902] 1 K. B. 429, that, in calculating the value
of the estate which passed upon the death of the
Duchess for the purpose of estate duty, the mort-
gage debt of 27,000l. must be dedueted from the
principal value of the Ditton estate. ATTORNEY-
GENERAL v. LORD MONTAGU
C. A. 483
3. Estate Duty-Succession Duty-Gift to
a Charitable Society-Reservation of Annuity to
Renewal "at costs of Donor-Bonâ fide Purchase-Partial Considera-
349 tion-Finance Act, 1894 (57 & 58 Vict. c. 30),
8. 2, sub-8. 1 (c); 8. 3, sub-8. 2-Succession Duty
Act, 1853 (16 & 17 Vict. c. 51), 8. 7.
- Lease
lessee"-Award
See LANDLORD AND TENANT. 6.
RES JUDICATA-Streets-Private street works
-Estoppel
See STREETS. 3.
REVENUE-Estate Duty-Gift of Personal Pro-
perty—Finance Act, 1894 (57 & 58 Vict. c. 30),
8. 2, sub-s. 1 (c).
In view of the approaching marriage of the
defendant it was agreed between his father and
the bride's father that the latter would settle
20,000l. on his daughter, on condition that the
defendant's father would give to the defendant
10,000. That sum was accordingly paid to the
defendant by his father, and a settlement of the
20,000l. was executed, and the marriage subse-
quently took place. The defendant's father died
within twelve months of the date of payment:-
Held, that estate duty was payable by the
defendant on the 10,000l. under s. 2, sub-s. 1 (c),
of the Finance Act, 1894.
Attorney-General v. Worrall, [1895] 1 Q. B.
99; Attorney-General v. Johnson, [1903] 1 K. B.
617, followed. ATTORNEY-GENERAL v. HOLDEN
Ridley J. 832
Estate Duty Property passing on
Death-Principal Value - Mortgage in Fee by
Tenant for Life and Remaindermen-Tenant for
Life indemnified against Mortgage Debt-Finance
Act, 1894 (57 & 58 Vict. c. 30), s. 1; s. 2, sub-
8. 1 (b); s. 7, sub-88. 1, 7.
In May, 1888, the Ditton estate stood limited
to the Dowager Duchess of Buccleuch for life,
and, after her death, to such uses as Lord Montagu
and his eldest son should jointly appoint, and, in
default of and subject to such appointment, to
Lord Montagu for life, with remainders over.
By deed of May 29, 1888, the Dowager Duchess,
Lord Montagu, and his eldest son concurred in
granting and appointing the fee by way of mort-
gage to secure payment with interest of 27,000l.,
advanced by the mortgagees to Lord Montagu
and his eldest son, who alone covenanted to repay
the principal and interest. By a further deed of
the same date Lord Montagu and his eldest son
covenanted to indemnify the Duchess and the
Ditton estate during her lifetime against the
mortgage debt and interest, and they conveyed
and assigned to trustees a yearly sum of 1500l.
charged on other estates, in which they had a
sufficient interest upon trust to keep down the
interest on the mortgage, and otherwise to effectu-
ate the indemnity of the Duchess in the manner
In 1889 500l. was paid to the directors of an
unincorporated charitable society, in lieu of a
legacy, and upon the terms of a resolution of the
directors of the society that the trustees of the
society should be authorized to pay to the person
from whom the 500l. was received, and to his wife
if she survived him, an annuity of 251. The
annuity was not charged upon or secured by the
property of the society, and was paid by the
directors as one of the ordinary outgoings of
the society. The commercial value of the annuity
in the year 1889 was 2101. The payer of the
500l. and his wife, who survived him, died after
the date of the Finance Act, 1894. The Crown
claimed that on his death estate duty became
payable by the society on the 5001. under s. 2,
sub-s. 1 (c), of the Act; and that on her death
succession duty became payable on the 5001.
under 8. 7 of the Succession Duty Act, 1853:—
Held, that the transaction was a gift and not
a bonâ fide purchase of an annuity, and that con-
sequently estate duty was payable on the full
sum of 500l., without any deduction in respect of
the value of the annuity:
Held, also, that, the disposition of the 5001.
not being a bonâ fide sale, succession duty was
payable under s. 7 of the Succession Duty Act,
Judgment of Phillimore J., [1902] 1 K. B.
416, reversed. ATTORNEY-GENERAL T. JOHNSON
C. A. 617
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4. House Duty School Buildings
"Other Offices' -48 Geo. 3, c. 55, Sched. B-
House Tax Act, 1851 (14 & 15 Vict. c. 36).
The appellant was the occupier of a dwelling-
house and premises, which he used for the pur-
poses of a boarding school. He also occupied
adjacent buildings, which were separated from
the first-mentioned premises by a wall. There
was a door in the wall through which, by means
of a covered-in passage, there was communication
between the premises on each side of the wall.
The adjacent buildings were respectively used
as a chapel, a gymnasium, class-rooms, fives
court, and for such like school purposes in con-
nection with the boarding-school, other than the
ordinary purposes of a dwelling-house :—
Held (reversing the judgment of Phillimore J.),
that the adjacent buildings must be included in
the valuation of the premises for the purposes of
inhabited house duty, as being offices belonging
ever attempted to control or interfere with the
management of the foreign company, or had any
power to do so otherwise than by voting as share-
Held, that the foreign company was not
carried on by the English company, nor was it
the agent of the English company, and that the
English company was not, therefore, assessable
to income tax under the first case of Sched. D of
5 & 6 Vict. c. 35, s. 100, upon the full amount of
the profits of the foreign company.
Judgment of Phillimore J., [1902] 2 K. B. 450,
affirmed. KODAK, LIMited v. Clark
Income Tax Deductions — Premium
on Life Insurance-Income Tax Act, 1853 (16 & 17
Vict. c. 34), s. 54.
to and occupied with the dwelling-house within
the meaning of rule 2 of Sched. B of 48 Geo. 3,
BROWNE v. FURTADO
C. A. 723
5. Income Tax-"Annuity”—Purchase-holder:-
money-Payment by Annual Instalments with In-
terest-Income Tax Acts, 1842, 1853 (5 & 6 Vict.
c. 35; 16 & 17 Vict. c 34), Scheds. C. and D.
By a contract, made in 1849, between the
Fast India Company and the Great Indian
Peninsula Railway Company, it was agreed that
at the expiration of fifty years therefrom it should
be lawful for the East India Company, on notice
to the railway company, to purchase from them
their railway at a price representing the full
amount of the value of all the shares or capital
stock of the railway company, and that if and
when the East India Company should become
liable under the contract to pay for the purchase
of the railway it should be lawful for them,
instead of paying a gross sum therefor, to declare,
by notice to the railway company, their option to
pay an "annuity," to commence from the time
when the gross amount would be payable and to
continue during the residue of a term of ninety-
nine years, the rate of interest to be used in
calculating the annuity to be determined as
therein specified. At the expiration of the fifty
years the Secretary of State for India, in whom
the powers exercisable by the East India Com-
pany under the contract had become vested, gave
notice to the railway company of his intention to
purchase the railway, and the price was deter-
mined and became payable. The Secretary of
State thereupon duly declared his option to pay
an annuity, and the rate of interest to be used in
calculating the annuity was duly fixed. The
annuity was paid half-yearly, each payment
representing, as to a part of it, an instalment of
the price paid for the railway, and, as to the
residue, interest on the amount of the price for
the time being unpaid. This arrangement was
sanctioned by a local Act, which provided that
the Secretary of State should pay the annuity to
certain trustees appointed on behalf of the share-
holders of the railway company :-
Held, that so much or each instalment as
represented payment of the purchase-money was
not within the term "annuity" in Sched. C of
the Income Tax Acts, and, therefore, that income
tax was not payable upon the whole amount of
each half-yearly payment, but only upon so much
of it as represented interest.
Judgment of Phillimore J., [1902] 2 K. B. 413,
reversed. SCOBLE v. SECRETARY OF STATE IN
COUNCIL FOR INDIA
C. A. 494
6. Income Tax Company resident in
United Kingdom Holding Preponderating
Majority of Shares in Company Abroad-Control
-Income Tax Act, 1842 (5 & 6 Vict. c. 35), 8. 100,
Sched. D, Case 1.
An English Company carrying on business in
the United Kingdom owned 98 per cent. of the
shares in a foreign company, which gave it a
preponderating influence in the control, election
of directors, &c., of the foreign company. The
remaining shares in the foreign company were,
however, held by independent persons, and there
was no evidence that the English company had
The suppliant effected an insurance on his
life for 15001. upon the terms that the annual
premium should be 667. 178. 6d., and that the
insurers should in each year advance to him by
way of loan the amount of 331., and that he
should pay interest annually upon amounts so
advanced and be personally liable to repay the
same, and that the advances and interest thereon
should be a first charge upon the policy. In each
year the suppliant paid 331. 178. 6d. in cash in
respect of the premium, and was debited with
the remaining 331. as a loan, and he paid interest
annually in respect of those loans:-
Held (reversing the judgment of Phillimore J.,
[1902] 2 K. B. 255), that the above-mentioned
transaction did not amount to payment of an
annual premium of 661. 178. 6d. by the assured
within the meaning of s. 54 of the Income Tax
Act, 1853, and therefore that the suppliant was
only entitled under that section to deduct from
the amount of his assessment to income tax the
sum of 331. 178. 6d. which he had paid in cash.
HUNTER V. THE KING
C. A. 514
Deductions
8. Income Tax-Salary
Contribution to Thrift Fund-Sum payable or
chargeable by virtue of Act of Parliament-Income
Tax Act, 1842 (5 & 6 Vict. c. 35), 8. 146-
Manchester Corporation Act, 1891 (54 & 55 Vict.
c. covii.).
A municipal corporation were by a local Act
empowered to establish a fund for the encourage-
ment of thrift among their officers and servants,
and with a view to providing a sum of money
which, in the event of the retirement or death of
any person in the service of the corporation, who
had contributed to the fund, should be available
for himself or his representatives, and to frame a
scheme for that purpose. By a scheme framed
by the corporation in pursuance of the Act, it
was provided that persons in the service of the
corporation should respectively contribute to the
fund a certain percentage of their salaries, to be
from time to time deducted from those salaries
by the corporation. In accordance with the
requirements of the Act, the scheme provided
that the amount so contributed by each con-
tributor should be repaid with interest to him,
upon his retirement from the service of the cor-
poration, or, in the event of his death in that
service, to his personal representatives :-
Held, that amounts deducted in pursuance of
the scheme from the salaries of persons in the
service of the corporation did not come within
the words "sums payable or chargeable on the
same by virtue of any Act of Parliament where
the same have been really and bonâ fide paid and
borne by the party to be charged," in the first
rule of s. 146 of the Income Tax Act, 1842, and
therefore they could not be deducted from the
amounts of the salaries for the purpose of assess-
ment to income tax under Sched. E.
Beaumont v. Bowers, [1900] 2 Q. B. 204, not
followed. HUDSON v. GRIBBLE. BELL v. GRIBBLE
C. A. 517
9. Stamp-Mortgage -Trust Deed for
securing Debenture Stock-Security auxiliary or
by way of further Assurance-Stamp Act, 1891
(54 & 55 Vict. c. 39), s. 86, sub-s. 1; First
Schedule," Mortgage, &c." (2).
RULES OF SUPREME COURT-continued.
Order LIV., r. 8 (c)-Applications and Pro-
ceedings at Chambers
184
See INSURANCE, LIFE. 1.
Supreme Court of Judicature (Officers)
Rules of January, 1902, pursuant to
Supreme Court of Judicature (Officers)
Act, 1879
See LANDS CLAUSES ACTS. 2.
See under ADULTERATION.
Forfeited shares-Call unpaid-Power to
make fresh call on purchaser
See COMPANY. 1.
Intoxicating liquor to children
See CRIMINAL LAW. 3.
chaser-Warranty of Fitness—Sale of Goods Act,
1893 (56 & 57 Vict. c. 71), s. 14.
A limited company, upon the issue of deben-
ture stock, by deed entered into with trustees for
the holders of the stock, acknowledged that the
company was indebted to the trustees to the
amount of the stock, and agreed to convey to the SALE OF GOODS-Negligence-Dangerous Goods
trustees certain freehold property, not at the time-Knowledge of Vendor-Duty of Vendor to Pur-
in the possession of the company, and power was
given to the trustees to enforce payment by fore-
closure. The company subsequently acquired
the property and conveyed it to the trustees upon
the trusts and purposes and subject to the pro-
visions of the trust deed. Stamp duty was paid
on the trust deed under the 1st schedule to the
Stamp Act, 1891, title "Mortgage, &c.," clause 2,
on the amount of the debenture stock. The
Commissioners assessed the duty on the second
deed under the same schedule, clause 2, at
6d. per cent. on the amount of the debenture
stock. On appeal:-
Where the vendor of a tin containing disin-
fectant powder knew that it was likely to cause
danger to a person opening it, unless special
care was taken, and the danger was not such as
presumably would be known to or appreciable
by the purchaser, unless warned of it:-
Held, that, independently of any warranty,
there was cast upon the vendor a duty to warn
the purchaser of the danger.
Where one of the rules of a co-operative
society stated that no warranties were given
with goods sold by the society, except on the
written authority of one of the managing directors
or the assistant manager.
Query, whether the rule had the effect of
excluding the implied warranty that an article
sold for a particular purpose is fit for that
purpose. CLARKE AND WIFE v. ARMY AND NAVY
Co-OPERATIVE SOCIETY, LIMITED
C. A. 155
Warranty-Beer sold by Retail—Fit-
ness for Consumption-Implied Warranty-Breach
-Damages-Sale of Goods Act, 1893 (56 & 57
Vict. c. 71), s. 14.
By s. 14, sub-s. 2, of the Sale of Goods Act,
1893, "Where goods are bought by description
from a seller who deals in goods of that des-
cription (whether he be the manufacturer or
not), there is an implied condition that the
goods shall be of merchantable quality: provided
that if the buyer has examined the goods,
there shall be no implied condition as regards
defects which such examination ought to have
revealed."
The defendant kept a beerhouse in which
the beer supplied to customers, for consumption
on the premises, was that of a particular firm of
brewers only. This fact was known to the
plaintiff, who frequented the beerhouse for the
purpose of buying the beer of that firm. The
beer contained arsenic, by reason of which the
health of the plaintiff was injured. In an action
to recover damages for breach of warranty:-
Held, that the beer had been bought by
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