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THB



LAW JOUENAL REPOETS



FOB



THE YEAR 1890:

oompbuhto

REPORTS OF CASES

ur

Zfft ^ouste of lorHd anli m tf)t ^rfiip ConntH,
€fit Court of Septal utdi t()e Court for Crolon Cac(e0 iUfferbt^,

AMD »

THE HIGH COURT OP JUSTICE

€ ^anttrp ; ^nttn^i Stncf) ; anli ^robatt, fitborrt, anli
SDimiraltp^ Bihistioni.

MICHAELMAS 1889 to MICHAELMAS 1890.



T%s AppdkUe Caui, in the Bonu of Lords, and in ths Court o/Ajppeal, are tnth ike SeforU of Caeet
in ike ropM^tw JHvitUme and Courts from which the Appeals come. These Cases form five distinct
Volumes^ kamng separate Ltdeses of Subjects and Tables of Cases: vie., the Friw Council Volume;
the Chancery Vclume; the Queen's Bench or Common Law Volume, including Bankruptcy Cases; the
Probate, JHcoroe, and Admuralty Volume; and the Magistrate^ Cases. -



Tab Casub bblatiho to thb Foob Law» thb Cbiminal Law, and othbb subjbcts chbixt

OOBBBOIBD 'WITH THB DVTIBS AMD OfUCB OF MaOISTBATBBi ABB 8BPABATSLT ASBAMOBD,
AMD FOBM A DI8TIKCT VOLUICB OF BbPOBTS, TB. ThB ICAaUTBATBB' Ga8B8.



Thb PRIYY COUNCIL CASES, digludiko SCOTCH akd IRISH APPEALS in tbb Housb of Loboi.

HATB TBBIB OWN IbDBX ABD TabLB OF CaSBS, ABD FOBM A DiBUKCT YoLVlCB OF BbFOBTB.



TEE BSP0BT3 ABE EDITED BY
FBEDEBICK HOABE COLT, Esq.,

ABD

JOHN OEOBOE WITT, Esq., Babkistkbs-at-Law.



CHANCEEY DIVISION, VOL. LIX.

[COITIMFOBABT WITB LAW BSF. 4Z, 44 AND 45 CB. DIT. ; 15 AKD 16 APP. 0A& ]



LONDON:

PBIBTBD BT SPOniBWOODB ABD 00., MBW-0TBBBT SQVABB.

PUBU&HiO) BY F. £. STBEETEN, 5 QUALITY COURT, CHANCERY LANE.

MDOOOXO.

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NAMES OF THE BARRISTEES
BY WHOM THE CASES ARE REPORTED.



In ibt l^ouse of %oti%j

LIONEL LANCELOT SHADWELL.
In tf^e ^rfbg ODouncn

{INCLUDING SCOTCH AND IRISH APPEALS IN THE HOUSE OF LORDS),

EDWARD BULLOCK and LIONEL LANCELOT SHADWELL.

In l^er M^\t%tQ'% ODoutt of ^ppeal^

W. DECIMUS I. FOULKES, ARTHUR CLEMENT EDDIS,

WILLIAM EDWARD GORDON, EDWARD NASH,

GEORGE HUMPHREYS, HARRY BAIRD HEMMING, JOSEPH SMITH,

FRANCIS BOOKER FITZROY COWPBR, and AMYAND JOHN HALL.



THE HIGH COURT OF JUSTICE.

(SDtancerg Bfbfsfon,

ARTHUR CORDERY, JAMES E. HORNE, GEORGE A. STREETEN,

LEWIS BOYD SEBASTIAN, JAMBS EYRE THOMPSON,

REGINALD BRODRICK SCHOMBERG, JOHN FRANCIS WAGGETT,

HARRY BAIRD HEMMING, HENRY FREDERICK AMEDROZ,

and AMYAND JOHN HALL.

®u£ni'»v^wJr»(bfefoir

(^INCLUDING B^ANKRld^Cf),

RICHARD HOLMDEN AMPHLETT, GILBERT METCALFE,

WILLIAM MOXON BROWNE, JOSEPH SMITH,

ARTHUR HORATIO TODD, FRANCIS BOOKER FITZROY COWPER,

and CHRISTOPHER TRUMAN CAMPBELL.

probate, Bitwitce, antt ^KmCraltB iOfbisfon,

HENRY STOKES and LOUIS DISTON POWLES.



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JUDGES AND LAW OFFICERS.

MICTTAET«MAS 1889 to HICHAELlfAS 1890.



HBB MAJESTY'S COURT OF APPEAL.

The Bigbt Hon. Baron Halsbubt, Lord Higb Chancellor, President.

The Bight Hon. Baron Coleridge, Lord Chief Justice of England.

The Bight Hon. Baron Esheb, Master of the Bolls.

The Bight Hon. Sir EDbnbt Cotton, Lord Justice of Appeal.

The Bight Hon. Sir James Hannen, President of the Probate, Divorce, and

Admiralty Division.
The Bight Hon. Sir Nathaniel Lindlet, Lord Justice of Appeal.
The Bight Hon. Sir Charles Stnge Christopher Bowen, Lord Justice of

Appeal.
The Bight Hon. Sir Edward Frt, Lord Justice of Appeal.
The Bight Hon. Sir Henry Charles Lopes, Lord Justice of Appeal.



HEB MAJESTY'S HIGH COUBT OP JUSTICE.
CHANCERY DIVISION.

The Bight Hon. Baron Halsbubt, Lord High Chancellor, President.

The Hon. Sir Edward Ebenezer Kat.

The Hon. Sir Joseph William Chittt.

The Hon. Sir Ford North.

The Hon. Sir James Stirling.

The Hon. Sir Arthur Kekbwich.

QUEENS BENCH DIVISION.

The Bight Hon. Baron Coleridge, Lord Chief Justice of England, President.

The Hon. George Dbnman.

The Hon. Sir Charles Edward Pollock.

The Hon. Sir William Ventris Field.

The Hon. Sir John Walter Huddleston.

The Hon. Sir Henrt Manisty.

The Hon. Sir Henrt Hawkins.

The HoiL Sir James Fitzjames Stephen.

The Hon. Sir James Charles Mathbw.

The Hon. Sir Lewis William Cave.

The Hon. Sir John Charles Dat.

The Hon. Sir Archibald Levin Smith.

The Hon. Sir Alfred Wills.

The Hon. Sir Willum Grantham.

The Hon. Sir Arthur Charles.

The Hon. Sir Boland Vaughan Willums.

The Hon. Sir John Comfton Lawranoe.

PROBATE, DIVORCE, AND ADMIRALTY DIVISION.
The Bight Hon. Sir Jambs Hannen, President.
The Hon. Sir Charles Parebb Butt.



Sir Bichabd Evebard Webster, Attorney- General.
Sir Edward Clarke, Solicitor-General.



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PREFERMENTS AND MEMORANDA.



In Hilary Sittings, 1890, the Hon. Sir Henry Manisty, one of the Judges of the
High Court of Justice, Queen's Bench Division, died.

In the same Sittings, Mr. Roland Yaughan Williams, Q.C, waa appointed a
Judge of the High Court of Justice, Queen's Bench Division.

In the same Sittings, the Hon. Sir William Ventris Field, one of the Judges of
the High Court of Justice, Queen's Bench Division, resigned, and was raised to the
Peerage under the title of Baron Field.

In the same Sittings, Mr. John Compton Lawrance, Q.C, was appointed a Judge
of the High Court of Justice, Queen's Bench Division.

In the same Sittings, Sir Augustus Keppel Stephenson, K.C.B., of Lincoln's
Inn ; Sir William Hardman, of the Inner Temple ; Mr. Edmund Macrort, of the
Middle Temple ; Mr. Albert Venn Dicey, of the Inner Temple; Mr. Cyril Dodd, of
the Inner Temple ; Mr. Richard Ouseley Blake Lane, of the Inner Temple ; Mr.
Sidney Woolf, of the Middle Temple ; Mr. Charles Alfred Cripps, of the Middle
Temple ; and Mr. Richard Burdon Haldane, of Lincoln's Inn, were appointed Her
Msgesty's Counsel learned in the law.

In the same Sittings, Mr. Herbert Henry Asquith, of lincoln's Inn, and Mr.
John Lawson Walton, of the Inner Temple, were appointed Her Majesty's Counsel
learned in the law.



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EEPOKTS



OF

CASES ARGUED AND DETERMINED

iOy APPEAL FBOM THE COURT OF APPEAL JN ACTIONS
IN THE CHANCEBY DIVISION),

BEPOBTED BT

LIONEL LANCELOT SHADWELL,
BAKBISTER-AT-LAW ;

or

i^er flpaiegtp'g Court of :appeal

{ON APPEAL FBOM THE CHANCEBY DIVISION),
BEPOBTED BT

ABTHUB CLEMKETT EDDIS, EDWABD NASH,
PABBY BAIBD HEMMING, and AMYAND JOHN HALL,

BASMSTEES-AT-LAW ;

ASD IN THE

Cljancetp 2OttJt0ton

OF

THE HIGH COURT OF JUSTICE,

BEPOBTED BY

ABTHUB COBDEBY, JAMES E. HOBNE, GEOBGE A. STBEETEN,

I.EWIS BOYD SEBASTIAN, JAMES EYBE THOMPSON,

BSarNALD BBODBICE: SCHOMBEBG, JOHN FBANCIS WAGGETT,

HABBY BAIBD HEMMING, HENBY FBEDEBICE AMEDBOZ,

and AMYAND JOHN HALL,

BARBISTERS-AT-LAW.



EDITED BY

FREDERICK HOARE COLT,

BABBISTEB-AT-LAW.



MICHAELMAS 1889 to MICHAELMAS 1890
53 & 54 ViCTORL®.



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SUPREME COURT OF JUDICATURE.



CASES ARGUED AND DETERMINED

IH

Cj^e €l)nttctvn Bibtcdoit

AND DIVISIONAL COURTS

OP

THE HIGH COUET OF JUSTICE,

AND ON APPEAL THBRBFROM TO

THE COURT OF APPEAL AND HOUSE OF LORDS.

MICHAELMAS 1889 to MICHAELMAS 1890.

63 Vidorix.



[IN THE COURT OF APPEAL.]
Cotton, L.J. ^

BOWEN, L.J. J. „ „

Fry, L J. [ ^'' ^* '^^^^•

1889 I J=M)YLB V, HAYES.

Nov. i. .

Practice — Originating Summons — Juris-
diction — Question as to Validity of Grift
made by Testator in his Lifetime — Rvles
of Supreme Court, 1883, Order LV. rule 3.

The Court has no jurisdiction under
Order LiV. rule 3 to determine^ on an origi-
nating summons J questions which could not
have been determined under a judgment for
administration of a testator^s estate or the
execution of a trust. Consequently, there is
no jurisdiction, on an originating summons,
to determine the question of the validity of
a gift of money made hy a testator to his
wvfe in his lifetime, the money being in her
possession at the time of his death.

Decision o/'Kekewich, J., reversed.

In re Davies; Davies v. Davies (57 Law
J. Rep. Cbanc. 759 ; Law Rep. 38 Ch. D.
210) approved.

This was an appeal firom a decision of
Kekewich, J.

On the 13th of May, 1889, Alfred
Boyle, one of the executors of the estate
of William Royle deceased, took out
Vol. 59.->CHA]rc.



an originating summons against George
Hayes, the other executor of the said
estate, and Sarah Ann Royle, the testator's
widow, a person entitled to the income of
the real and personal estate of the said
William Royle, that the following ques-
tions in matters arising in the adminis-
tration of the testator's estate might be
determined under the Rules of the
Supreme Court, Order LV. rule 3, sub-
sections (a), (e), and (g) : —

1. Whether or no the sum of 171^. 15*.,
received by the said William Royle on or
about the 24th of May, 1885, from Mrs.
Hope, in part payment of the purchase-
money due from her in respect of a plot
of freehold land purchased by her from
the said William Royle, belonged to the
said William Royle and formed part of
his estate at his death on the 29th of
May, 1885.

2. Whether, if the said sum of 171 Z. 15*.
or any part thereof belonged to the said
William Royle at his death, the use of
the same was or is necessary for carrying
on his farming business.

3. Whether Sarah Ann Royle ought to
render any, and, if so, what, accounts to
the executors and trustees of the said Wil-
liam Royle in respect of the fismning busi-

ess. Consequential relief.
Sarah Ann Royle claimed that her
B



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CHA>'CEEY DIVISION.



[X. s.



In, re Boyle^ -^PP'
husband William Royle had given her the
sum in question during his Hfe, and that
after paying certain debts out of it she
had placed the balance of the money in
a bank in her own name.

When the summons came on before
Kekewich, J., an objection was taken on
behalf of Sarah Ann Royle that this was
a hostile action against her, and that there
was no jurisdiction to determine the ques-
tion as to the sum of \1\L 15^. on an
originating summons. Kekewich, J., over-
ruled the objection, on the ground that the
question was one arising in the adminis-
tration, and, on the merits, held that a
gift to the widow was not made out.

The defendants appealed.

Levettf for the appellants. — ^The question
with regard to the sum of 1711. 15«. is
whether there was a valid gift of this sum
by the testator during his life to Sarah
Ann Royle. That is, the plaintiflf makes
a hostile claim against Sarah Ann Royle,
and there is no jurisdiction to determine
this question on an originating summons.
The question is not one between the exe-
cutors and her as a legatee, and is therefore
not within Order LV. rule 3, sub-section
(a), and it is not a question arising in the
adbninistration. The test is that there
is no jurisdiction on an administration
action to make an order on a legatee to
pay a debt to the estate; the executors
must bring an action for payment. In
In re Davies; Daviea v. Davies (1),
Korth, J., held that upon an originating
summons under rule 3 of Order LV. of
the Rules of Supreme Court, 1883, there
is jurisdiction to determine such questions
only as before the existence of the rule
could have been determined under a judg-
ment for the administration of an estate
or execution of a trust, and consequently
that there was not jurisdiction on an
originating summons to decide a question
between legal beneficial devisees under a
will.

E. S. Fardf for the respondent. — ^The
question with regard to the 17N. 15*. is
one arising in the administration, and
can therefore be properly determined on
an originating summons, and that was the

(I) 57 Law J. Rep. Chanc. 759; Law Rep.
88Ch. D. 210.



ground on which Kekewich, J., decided
that the Court had jurisdiction. Further,
the defendant has submitted to the jurisdic-
tion ; she has filed evidence. InreTurcan
(2) shews that where a party has appeared
on a summons, it is too late for him to
object that the Court has no jurisdiction
to determine the question on the sum-
mons.

[By arrangement the case was then
heard on the merits, but on these a report
is unnecessary.]

Cotton, L.J. — On the question of
jurisdiction, Mr. Justice Kekewich con-
sidered that he had jurisdiction to deal
with the question raised on this originating
summons ; but, in my opinion, that view
is erroneous. Under Order LV. rule 3,
questions between executors and legatees
as legatees may be determined on an
originating summons; but the claim made
on this summons is not made against
the widow as a legatee, but is made in
respect of a sum to which she claims to
be entitled as a gift from her husband.
The question is between the executors and
a person who says she is entitled to the
sum. It is not a question which could be
properly determined in an administration
action, and therefore cannot be raised on
an originating summons. In an admin-
istration action an enquiry might have
been properly directed as to whether the
money formed part of the testator's estate ;
but the finding on that enquiry would
not have been a decision against the
widow, who does not claim this money as
part of the testator*s estate. I think the
contention of Mr. Levett on the question
of jurisdiction is right.

BowEN, L.J. — ^With regard to the juris-
diction of the Court on this originating
summons, the question for determination
is one which, adversely, and without con-
sent, could not be decided on an origina-
ting summons because it does not come
within Order LV. rule 3. It was urged
on behalf of the plaintiff that the defen-
dant had submitted to the jurisdiction,
and In re Turcan (2) was referred to ;
but that can only decide that if a person
who is served with an originating sum-
(2) 58 Law J. Rep. Chanc. 101.



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MICHAELMAiS 1889 to MICHAELMAS 1890.



Vol. 59.]

In re Boyle^ Ap^'
mons not within Order LV. rule 3, ob-
jected to the jurisdiction, and did not
appear, the Court would not go on ; but
when he had appeared and taken the de-
cision of the Court, it was too late for him
to take objection to the jurisdiction on the
case coming before the Court of Appeal.
But that is not the present case, and here,
I think, the Court has no jurisdiction to
make an order on an originating summons.

Fey, L.J. — I am entirely of the same
opinion. Order LV. rule 3 is not in-
tended to give jurisdiction, except in mat-
ters which might have been tried in an
administration action. The words of the
Order itself are emphatic on the point.
This is not such a matter. I entirely
concur with the views expressed by Mr.
Justice North in In re Davies ; Bavies v.
Davua (1).

[On the £eu^ their Lordships held that
the gift was made out.]

Decision o/ Kekewich, J., reversed.



Solicitors— Bower, Cotton k Bower, agents for
W. H. Vaughan, Cheadle, for defendants;
Yielding, Barlow k Piper, agents for Cobbett,
Wheeler k Cobbett, Manchester, for plaintiflP.



CniTrY, J. 1

I ggO THE NEATH PERMANENT BENE-

Oct. 29.'30 r ™ B^ILD^NG SOCIETY V,

Nov. 7. J ^^^^•

Building Society — Extent of Bon-rowing
Power — " Amount secured by Mortgage " —
Building Societies Acty 1874 (37 d; 38
Vict, c. 42), *. 15, sub-s, 2 — Society borrow-
ing ultra vires — Extent of Lender's Right
to have tJie Benefit of Securities obtained by
means of ike Loan,

In calculating the eoctent of a building
sodetxfs borrovying power, which, by the
Building Societies Act, 1874, *. 15, sub-s. 2,
is not to exceed " two-thirds of the amount
for the time being secured to the society by
mortgages from its members,'* the amount
so secured is not to be limited to tlie prin-
cipal sum secured by such m^ortgages, but
covers all sums due thereon at tlte date



when the borrounng power is exercised^
whether for principal, or interest, or fines,
or otherwise, and all instalments not then
accrued due, but secured by such mortgages
and outstanding.

The right of a person who has lent m,oney
to a building society in excess of its borrow-
ing power to have the benefit of securities
obtained from tnembers of the society hy
Tneatis of the loan extends to the whole
amount cohered by such securities, although
a lesser amount was, in fact, received by the
members from the society.

Blackburn and District Benefit Build«
ing Society v, Cunliffe, Brookes & Co. (54
Law J. Rep. Ghanc. 1091 ; Law Hep. 29
Ch. D. 902) followed.

The plaintiff society w^as established un«
der 6 <k 7 Will. 4. c. 32, and in 1882 was
incorporated under the Building Societies
Act, 1874. Its rules were, in the main,
similar to those of other building societies,
that having reference to the borrowing
powers of the society (rule 10) being
expressed in the same terms as those
used in section 15, sub-section 2, of the
Building Societies Act, 1874 — ^namely,
" The total amount so received on deposit
or loans, and not repaid by the society,
shall not at any time exceed two-thirds of
the amount for the time being secured to
the society by mortgages from its mem-
bers,'' and empowering the society to raise
such loans on the security of mortgage-
deeds belonging to them. Bule 6 provided
that " the society wiU make advances to
its members for terms of from seven to
sixteen years, repayable by monthly or
quarterly contributions, covering principal
and interest," at certain specified rates;
and, by rule 13, a member might redeem,
his mortgage to the society before the
expiration of the term for which it was
taken, *' on payment of all advance repay-
ments, and any fines due in respect there-
of up to the time of the redemption of
such mortgage, and of all other contribu-
tions required by the rules (if any), and
of the present value of the future repay-
ments calculated by the consulting actuary
upon the principle of pa3rment8 made at
the end of each year to the end of the
original term, and discounted after a itite
of interest to be fixed by the consulting



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CHANCEBY DIVISION.



[N. S.



yeath Building Society ▼. Luce.

actuary, not lower than 3/. 10*. per
cent."

In 1885 an order was made to wind
up the society, and a liquidator was ap-
pointed.

The society had in the years 1882 and
1883 borrowed from the defendants sums
amounting to 12,500/. under indentures
by which the society secured the repay-
ment of the same by a charge on all their
assets and property, and pcuiiicularly on
certain specified mortgages from mem-
bers, which were deposit^ with the de-
fendiants.

These loans were alleged to be in excess
of the borrowing powers of the society,
and this action was brought, with the
sanction of the Court in the winding-up,
for a declaration that the indentures of
charge were invalid and unauthorised as
against the society, and for delivery up of
the same to be cancelled ; or, in the alter-
native, for an account of what was due to
the defendants by way of lien or charge
on the securities deposited with them.

The defendants, by counter-claim, asked
a declaration that the indentures were
valid to the extent of the amounts applied
in payment of the debts and liabilities of
the society properly payable, and that
they were entitled to the benefit of all
securities obtained by the society for ad-
vances made by means of the loans. On
the 1st of August, 1887, an order was made
by consent for certain preliminary ac-
counts and enquiries, when questions
arose as to the basis upon which the
amount secured to the society by mort-
gages from its members was to be calcu-
lated, and, by an order of the 19th of
July, 1889, the question of law was di-
rected to be set down for argument before
the Court — namely, upon what principle
is it to be ascertained what was the amount
secured to the plaintiff society by mort-
gages friim its members, wxdun the mean-
ing of section 15 of the Building Societies
Act, 1874, on the respective dates of the
indentures of charge %

Sir H. Dav$y, Q.C., and J. G. Wood, for
the soeiety.^-The term '' amount secured
by mortgage," as used in section 15, sub-
section 2, of the Building Societies Act,
1874, means only the principal money



due on a security, and does not include
every sum capable of being recovered
under the mortgage-deed, and which
would have to be paid by a mortgagor
seeking to redeem, such as interest, fines,
&c. If it were so, a society might, by
allowing interest to &I1 into arrear, extend
its borrowing powers, whereas the object
of the section in imposing the limit of
two-thirds was to leave a fixed margin
for the protection both of lenders to the
society and its members.

The instalments payable by advanced
members are made up of principal and in-
terest, and vary according to the limit for
repayment, and, when spread over sixteen
years, two-thirds of their total will be
found to exceed the amount advanced to
the member. And as a member can
always redeem his mortgage under rule
13 at a discount, at no time is the amount
of the whole number of instalments reaUy
secured to the society.

The intention of section 15 was to com-
pare a loan to the society with an advance
from the society, in which the only fixed
element is the principal, that being inde-
pendent both of the form of the mortgage-
deed and of arrangements with the mort-
gagor.

In section 40, which requires an annual
Ktatement of the society's funds, and where
the object was to include everything due
on the mortgage, the term used is, " the
balance due or outstanding on the mort-



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